Vol. 80 Monday, 

No. 124 June 29, 2015 

Part II 

Department of Defense 

Department of the Army, Corps of Engineers 

33 CFR Part 328 

Environmental Protection Agency 

40 CFR Parts 110, 112, 116, et al. 

Clean Water Rule: Definition of ‘‘Waters of the United States’’; Final Rule 

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37054 Federal Register / Vol. 80, No. 124 / Monday, June 29, 2015 / Rules 

DEPARTMENT OF DEFENSE 

Department of the Army, Corps of 

Engineers 

33 CFR Part 328 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 110, 112, 116, 117, 122, 

230, 232, 300, 302, and 401 

[EPA–HQ–OW–2011–0880; FRL–9927–20– 

OW] 

RIN 2040–AF30 

Clean Water Rule: Definition of 

‘‘Waters of the United States’’ 

AGENCY: U.S. Army Corps of Engineers, 

Department of the Army, Department of 

Defense; and Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) and the U.S. Army Corps 

of Engineers (Corps) are publishing a 

final rule defining the scope of waters 

protected under the Clean Water Act 

(CWA or the Act), in light of the statute, 

science, Supreme Court decisions in 

U.S. v. Riverside Bayview Homes, Solid 

Waste Agency of Northern Cook County 

v. U.S. Army Corps of Engineers 

(SWANCC), and Rapanos v. United 

States (Rapanos), and the agencies’ 

experience and technical expertise. This 

final rule reflects consideration of the 

extensive public comments received on 

the proposed rule. The rule will ensure 

protection for the nation’s public health 

and aquatic resources, and increase 

CWA program predictability and 

consistency by clarifying the scope of 

‘‘waters of the United States’’ protected 

under the Act. 

DATES: This rule is effective on August 

28, 2015. In accordance with 40 CFR 

part 23, this regulation shall be 

considered issued for purposes of 

judicial review at 1 p.m. Eastern time on 

July 13, 2015. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Donna Downing, Office of Water (4502– 

T), Environmental Protection Agency, 

1200 Pennsylvania Avenue NW., 

Washington, DC 20460; telephone 

number 202–566–2428; email address: 

CWAwaters@epa.go v. Ms. Stacey 

Jensen, Regulatory Community of 

Practice (CECW–CO–R), U.S. Army 

Corps of Engineers, 441 G Street NW., 

Washington, DC 20314; telephone 

number 202–761–5856; email address: 

USACE_CWA_Rule@usace.army.mil. 

SUPPLEMENTARY INFORMATION: This final 

rule does not establish any regulatory 

requirements. Instead, it is a definitional 

rule that clarifies the scope of ‘‘waters 

of the United States’’ consistent with the 

Clean Water Act (CWA), Supreme Court 

precedent, and science. Programs 

established by the CWA, such as the 

section 402 National Pollutant 

Discharge Elimination System (NPDES) 

permit program, the section 404 permit 

program for discharge of dredged or fill 

material, and the section 311 oil spill 

prevention and response programs, all 

rely on the definition of ‘‘waters of the 

United States.’’ Entities currently are, 

and will continue to be, regulated under 

these programs that protect ‘‘waters of 

the United States’’ from pollution and 

destruction. 

State, tribal, and local governments 

have well-defined and longstanding 

relationships with the Federal 

government in implementing CWA 

programs and these relationships are not 

altered by the final rule. Forty-six states 

and the U.S. Virgin Islands have been 

authorized by EPA to administer the 

NPDES program under section 402, and 

two states have been authorized by the 

EPA to administer the section 404 

program. All states and forty tribes have 

developed water quality standards 

under the CWA for waters within their 

boundaries. A federal advisory 

committee has recently been announced 

to assist states in identifying the scope 

of waters assumable under the section 

404 program. 

The scope of jurisdiction in this rule 

is narrower than that under the existing 

regulation. Fewer waters will be defined 

as ‘‘waters of the United States’’ under 

the rule than under the existing 

regulations, in part because the rule 

puts important qualifiers on some 

existing categories such as tributaries. In 

addition, the rule provides greater 

clarity regarding which waters are 

subject to CWA jurisdiction, reducing 

the instances in which permitting 

authorities, including the states and 

tribes with authorized section 402 and 

404 CWA permitting programs, would 

need to make jurisdictional 

determinations on a case-specific basis. 

Table of Contents 

I. General Information 

A. How can I get copies of this document 

and related information? 

B. Under what legal authority is this rule 

issued? 

II. Executive Summary 

III. Significant Nexus Determinations 

A. The Significant Nexus Standard 

B. Science Report 

C. Significant Nexus Conclusions 

1. Scope of Significant Nexus Analysis 

2. Categories of Waters Determined to Have 

a Significant Nexus 

3. Case-Specific Significant Nexus 

Determinations 

IV. Definition of ‘‘Waters of the United 

States’’ 

A. Summary of Rule 

B. Traditional Navigable Waters 

C. Interstate Waters 

D. Territorial Seas 

E. Impoundments 

F. Tributaries 

G. Adjacent Waters 

H. Case-Specific ‘‘Waters of the United 

States’’ 

I. Waters and Features That Are Not 

‘‘Waters of the United States’’ 

V. Economic Impacts 

VI. Related Acts of Congress, Executive 

Orders, and Agency Initiatives 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

L. Environmental Documentation 

M. Judicial Review 

I. General Information 

A. How can I get copies of this 

document and related information? 

1. Docket. An official public docket 

for this action has been established 

under Docket Id. No. EPA–HQ–OW– 

2011–0880. The official public docket 

consists of the documents specifically 

referenced in this action, any public 

comments received, and other 

information related to this action. The 

official public docket also includes a 

Technical Support Document that 

provides additional legal and scientific 

discussion for issues raised in this rule, 

and the Response to Comments 

document. Although a part of the 

official docket, the public docket does 

not include Confidential Business 

Information or other information whose 

disclosure is restricted by statute. The 

official public docket is the collection of 

materials that is available for public 

viewing at the OW Docket, EPA West, 

Room 3334, 1301 Constitution Ave. 

NW., Washington, DC 20004. This 

Docket Facility is open from 8:30 a.m. 

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Federal Register / Vol. 80, No. 124 / Monday, June 29, 2015 / Rules 37055 

1The agencies use the term ‘‘water’’ and ‘‘waters’’ 

in categorical reference to rivers, streams, ditches, 

wetlands, ponds, lakes, oxbows, and other types of 

natural or man-made aquatic systems, identifiable 

by the water contained in these aquatic systems or 

by their chemical, physical, and biological 

indicators. The agencies use the terms ‘‘waters’’ and 

‘‘water bodies’’ interchangeably in this preamble. 

2While section 311 uses the phrase ‘‘navigable 

waters of the United States,’’ EPA has interpreted 

it to have the same breadth as the phrase ‘‘navigable 

waters’’ used elsewhere in section 311, and in other 

sections of the CWA. See United States v. Texas 

Pipe Line Co., 611 F.2d 345, 347 (10th Cir. 1979); 

United States v. Ashland Oil & Transp. Co., 504 

F.2d 1317, 1324–25 (6th Cir. 1974). In 2002, EPA 

revised its regulatory definition of ‘‘waters of the 

United States’’ in 40 CFR part 112 to ensure that 

the language of the rule was consistent with the 

regulatory language of other CWA programs. Oil 

Pollution Prevention & Response; NonTransportation-Related Onshore & Offshore 

Facilities, 67 FR 47042, July 17, 2002. A district 

court vacated the rule for failure to comply with the 

Administrative Procedure Act, and reinstated the 

prior regulatory language. American Petroleum Ins. 

v. Johnson, 541 F. Supp. 2d 165 (D. D.C. 2008). 

However, EPA interprets ‘‘navigable waters of the 

United States’’ in CWA section 311(b), in the pre2002 regulations, and in the 2002 rule to have the 

same meaning as ‘‘navigable waters’’ in CWA 

section 502(7). 

3For example, the CWA section 402 (33 U.S.C. 

1342) program regulates discharges of pollutants 

Continued 

to 4:30 p.m., Monday through Friday, 

excluding legal holidays. The OW 

Docket telephone number is 202–566– 

2426. A reasonable fee will be charged 

for copies. 

2. Electronic Access. You may access 

this Federal Register document 

electronically under the ‘‘Federal 

Register’’ listings at http://

www.regulations.gov. An electronic 

version of the public docket is available 

through EPA’s electronic public docket 

and comment system, EPA Dockets. You 

may access EPA Dockets at http://

www.regulations.gov to view public 

comments, access the index listing of 

the contents of the official public 

docket, and access those documents in 

the public docket that are available 

electronically. For additional 

information about EPA’s public docket, 

visit the EPA Docket Center homepage 

at http://www.epa.gov/epahome/

dockets.htm. Although not all docket 

materials may be available 

electronically, you may still access any 

of the publicly available docket 

materials through the Docket Facility. 

B. Under what legal authority is this rule 

issued? 

The authority for this rule is the 

Federal Water Pollution Control Act, 33 

U.S.C. 1251, et seq., including sections 

301, 304, 311, 401, 402, 404 and 501. 

II. Executive Summary 

In this final rule, the agencies clarify 

the scope of ‘‘waters of the United 

States’’ that are protected under the 

Clean Water Act (CWA), based upon the 

text of the statute, Supreme Court 

decisions, the best available peerreviewed science, public input, and the 

agencies’ technical expertise and 

experience in implementing the statute. 

This rule makes the process of 

identifying waters 1 protected under the 

CWA easier to understand, more 

predictable, and consistent with the law 

and peer-reviewed science, while 

protecting the streams and wetlands that 

form the foundation of our nation’s 

water resources. 

Congress enacted the CWA ‘‘to restore 

and maintain the chemical, physical, 

and biological integrity of the Nation’s 

waters,’’ section 101(a), and to 

complement statutes that protect the 

navigability of waters, such as the 

Rivers and Harbors Act. 33 U.S.C. 401, 

403, 404, 407. The CWA is the nation’s 

single most important statute for 

protecting America’s clean water against 

pollution, degradation, and destruction. 

To provide that protection, the Supreme 

Court has consistently agreed that the 

geographic scope of the CWA reaches 

beyond waters that are navigable in fact. 

Peer-reviewed science and practical 

experience demonstrate that upstream 

waters, including headwaters and 

wetlands, significantly affect the 

chemical, physical, and biological 

integrity of downstream waters by 

playing a crucial role in controlling 

sediment, filtering pollutants, reducing 

flooding, providing habitat for fish and 

other aquatic wildlife, and many other 

vital chemical, physical, and biological 

processes. 

This final rule interprets the CWA to 

cover those waters that require 

protection in order to restore and 

maintain the chemical, physical, or 

biological integrity of traditional 

navigable waters, interstate waters, and 

the territorial seas. This interpretation is 

based not only on legal precedent and 

the best available peer-reviewed 

science, but also on the agencies’ 

technical expertise and extensive 

experience in implementing the CWA 

over the past four decades. The rule will 

clarify and simplify implementation of 

the CWA consistent with its purposes 

through clearer definitions and 

increased use of bright-line boundaries 

to establish waters that are jurisdictional 

by rule and limit the need for casespecific analysis. The agencies 

emphasize that, while the CWA 

establishes permitting requirements for 

covered waters to ensure protection of 

water quality, these requirements only 

apply with respect to discharges of 

pollutants to the covered water. In the 

absence of a discharge of a pollutant, the 

CWA does not impose permitting 

restrictions on the use of such water. 

Additionally, Congress has exempted 

certain discharges, and the rule does not 

affect any of the exemptions from CWA 

section 404 permitting requirements 

provided by CWA section 404(f), 

including those for normal farming, 

ranching, and silviculture activities. 

CWA section 404(f); 40 CFR 232.3; 33 

CFR 323.4. This rule not only maintains 

current statutory exemptions, it expands 

regulatory exclusions from the 

definition of ‘‘waters of the United 

States’’ to make it clear that this rule 

does not add any additional permitting 

requirements on agriculture. The rule 

also does not regulate shallow 

subsurface connections nor any type of 

groundwater, erosional features, or land 

use, nor does it affect either the existing 

statutory or regulatory exemptions from 

NPDES permitting requirements, such 

as for agricultural stormwater discharges 

and return flows from irrigated 

agriculture, or the status of water 

transfers. CWA section 402(l)(1); CWA 

section 402(l)(2); CWA section 502(14); 

40 CFR 122.3(f); 40 CFR 122.2. 

Finally, even where waters are 

covered by the CWA, the agencies have 

adopted many streamlined regulatory 

requirements to simplify and expedite 

compliance through the use of measures 

such as general permits and 

standardized mitigation measures. The 

agencies will continue to develop 

general permits and simplified 

procedures, particularly as they affect 

crossings of covered ephemeral and 

intermittent tributaries jurisdictional 

under this rule to ensure that projects 

that offer significant social benefits, 

such as renewable energy development, 

can proceed with the necessary 

environmental safeguards while 

minimizing permitting delays. 

The jurisdictional scope of the CWA 

is ‘‘navigable waters,’’ defined in section 

502(7) of the statute as ‘‘waters of the 

United States, including the territorial 

seas.’’ The term ‘‘navigable waters’’ is 

used in a number of provisions of the 

CWA, including the section 402 

National Pollutant Discharge 

Elimination System (NPDES) permit 

program, the section 404 permit 

program, the section 311 oil spill 

prevention and response program,2 the 

water quality standards and total 

maximum daily load programs (TMDL) 

under section 303, and the section 401 

state water quality certification process. 

However, while there is only one CWA 

definition of ‘‘waters of the United 

States,’’ there may be other statutory 

factors that define the reach of a 

particular CWA program or provision.3

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37056 Federal Register / Vol. 80, No. 124 / Monday, June 29, 2015 / Rules 

from ‘‘point sources’’ to ‘‘waters of the United 

States,’’ whether these pollutants reach 

jurisdictional waters directly or indirectly. The 

plurality opinion in Rapanos noted that ‘‘there is 

no reason to suppose that our construction today 

significantly affects the enforcement of § 1342. . . . 

The Act does not forbid the ‘addition of any 

pollutant directly to navigable waters from any 

point source,’ but rather the ‘addition of any 

pollutant to navigable waters.’ ’’ 547 U.S. at 743. 

4There are numerous regulations that utilize the 

definition of ‘‘waters of the United States’’ and each 

is codified consistent with its place in a particular 

section of the Code of Federal Regulations. For 

simplicity, throughout the preamble the agencies 

refer to the rule as organized into (a), (b), (c) 

provisions and intend the reference to encompass 

the appropriate cites in each section of the Code of 

Federal Regulations. For example, a reference to 

(a)(1) is a reference to all instances in the CFR 

identified as subject to this rule that state ‘‘All 

waters which are currently used, were used in the 

past, or may be susceptible to use in interstate or 

foreign commerce, including all waters which are 

subject to the ebb and flow of the tide.’’ 

Existing regulations (last codified in 

1986) define ‘‘waters of the United 

States’’ as traditional navigable waters, 

interstate waters, all other waters that 

could affect interstate or foreign 

commerce, impoundments of waters of 

the United States, tributaries, the 

territorial seas, and adjacent wetlands. 

33 CFR 328.3; 40 CFR 122.2.4

However, the Supreme Court has 

issued three decisions that provide 

critical context and guidance in 

determining the appropriate scope of 

‘‘waters of the United States’’ covered 

by the CWA. In United States v. 

Riverside Bayview Homes, 474 U.S. 121 

(1985) (Riverside), the Court, in a 

unanimous opinion, deferred to the 

Corps’ ecological judgment that adjacent 

wetlands are ‘‘inseparably bound up’’ 

with the waters to which they are 

adjacent, and upheld the inclusion of 

adjacent wetlands in the regulatory 

definition of ‘‘waters of the United 

States.’’ Id. at 134. The Court observed 

that the broad objective of the CWA to 

restore and maintain the integrity of the 

Nation’s waters ‘‘incorporated a broad, 

systemic view of the goal of maintaining 

and improving water quality. . . . 

Protection of aquatic ecosystems, 

Congress recognized, demanded broad 

federal authority to control pollution, 

for ‘[w]ater moves in hydrologic cycles 

and it is essential that discharge of 

pollutants be controlled at the source.’ 

In keeping with these views, Congress 

chose to define the waters covered by 

the Act broadly.’’ Id. at 132–33 (citing 

Senate Report No. 92–414, p. 77 (1972)). 

In Solid Waste Agency of Northern 

Cook County v. U.S. Army Corps of 

Engineers, 531 U.S. 159 (2001) 

(SWANCC), the Supreme Court held 

that the use of ‘‘isolated’’ non-navigable 

intrastate ponds by migratory birds was 

not by itself a sufficient basis for the 

exercise of federal regulatory authority 

under the CWA. Although the SWANCC 

decision did not call into question 

earlier decisions upholding the CWA’s 

coverage of wetlands or other waters 

‘‘adjacent’’ to traditional navigable 

waters, it created uncertainty with 

regard to the jurisdiction of other waters 

and wetlands that, in many instances, 

may play an important role in protecting 

the integrity of the nation’s waters. The 

majority opinion in SWANCC 

introduced the concept that it was a 

‘‘significant nexus’’ that informed the 

Court’s reading of CWA jurisdiction 

over waters that are not navigable in 

fact. 

Five years later, in Rapanos v. United 

States, 547 U.S. 715 (2006) (Rapanos), 

all Members of the Court agreed that the 

term ‘‘waters of the United States’’ 

encompasses some waters that are not 

navigable in the traditional sense. In 

addition, Justice Kennedy’s opinion 

indicated that the critical factor in 

determining the CWA’s coverage is 

whether a water has a ‘‘significant 

nexus’’ to downstream traditional 

navigable waters such that the water is 

important to protecting the chemical, 

physical, or biological integrity of the 

navigable water, referring back to the 

Court’s decision in SWANCC. Justice 

Kennedy’s concurrence in Rapanos 

stated that to constitute a ‘‘water of the 

United States’’ covered by the CWA, ‘‘a 

water or wetland must possess a 

‘significant nexus’ to waters that are or 

were navigable in fact or that could 

reasonably be so made.’’ Id. at 759 

(Kennedy, J., concurring in the 

judgment) (citing SWANCC, 531 U.S. at 

167, 172). Justice Kennedy concluded 

that wetlands possess the requisite 

significant nexus if the wetlands ‘‘either 

alone or in combination with similarly 

situated [wet]lands in the region, 

significantly affect the chemical, 

physical, and biological integrity of 

other covered waters more readily 

understood as ‘navigable.’’’ 547 U.S. at 

780. 

In this rule, the agencies interpret the 

scope of the ‘‘waters of the United 

States’’ for the CWA using the goals, 

objectives, and policies of the statute, 

the Supreme Court case law, the 

relevant and available science, and the 

agencies’ technical expertise and 

experience as support. In particular, the 

agencies looked to the objective of the 

CWA ‘‘to restore and maintain the 

chemical, physical, and biological 

integrity of the Nation’s waters,’’ and 

the scientific consensus on the strength 

of the effects of upstream tributaries and 

adjacent waters, including wetlands, on 

downstream traditional navigable 

waters, interstate waters, and the 

territorial seas. An important element of 

the agencies’ interpretation of the CWA 

is the significant nexus standard. This 

significant nexus standard was first 

informed by the ecological and 

hydrological connections the Supreme 

Court noted in Riverside Bayview, 

developed and established by the 

Supreme Court in SWANCC, and further 

refined in Justice Kennedy’s opinion in 

Rapanos. The agencies also utilized the 

plurality standard in Rapanos by 

establishing boundaries on the scope of 

‘‘waters of the United States’’ and in 

support of the exclusions from the 

definition of ‘‘waters of the United 

States.’’ The analysis used by the 

agencies has been supported by all nine 

of the United States Courts of Appeals 

that have considered the issue. 

The agencies assess the significance of 

the nexus in terms of the CWA’s 

objective to ‘‘restore and maintain the 

chemical, physical, and biological 

integrity of the Nation’s waters.’’ When 

the effects are speculative or 

insubstantial, the ‘‘significant nexus’’ 

would not be present. The science 

demonstrates that the protection of 

upstream waters is critical to 

maintaining the integrity of the 

downstream waters. The upstream 

waters identified in the rule as 

jurisdictional function as integral parts 

of the aquatic environment, and if these 

waters are polluted or destroyed, there 

is a significant effect downstream. 

In response to the Supreme Court 

opinions, the agencies issued guidance 

in 2003 (post-SWANCC) and 2008 (postRapanos). However, these two guidance 

documents did not provide the public or 

agency staff with the kind of 

information needed to ensure timely, 

consistent, and predictable 

jurisdictional determinations. Many 

waters are currently subject to casespecific jurisdictional analysis to 

determine whether a ‘‘significant 

nexus’’ exists, and this time and 

resource intensive process can result in 

inconsistent interpretation of CWA 

jurisdiction and perpetuate ambiguity 

over where the CWA applies. As a result 

of the ambiguity that exists under 

current regulations and practice 

following these recent decisions, almost 

all waters and wetlands across the 

country theoretically could be subject to 

a case-specific jurisdictional 

determination. 

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. Chief Justice Roberts’ 

concurrence in Rapanos underscores 

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5Chief Justice Roberts’ concurrence in Rapanos 

emphasized that ‘‘[a]gencies delegated rulemaking 

authority under a statute such as the Clean Water 

Act are afforded generous leeway by the courts in 

interpreting the statute they are entrusted to 

administer.’’ Id. at 758. Chief Justice Roberts made 

clear that, if the agencies had undertaken such a 

rulemaking, ‘‘the Corps and the EPA would have 

enjoyed plenty of room to operate in developing 

some notion of an outer bound to the reach of their 

authority.’’ Id. (Emphasis in original.) 

6U.S. Environmental Protection Agency, 

Connectivity of Streams and Wetlands to 

Downstream Waters: A Review and Synthesis of the 

Scientific Evidence (Final Report), EPA/600/R–14/ 

475F, (Washington, DC: U.S. Environmental 

Protection Agency, (2015)). http://www.epa.gov/

ncea. 

the importance of this rulemaking 

effort.5 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. 

The agencies proposed a rule 

clarifying the scope of waters of the 

United States April 21, 2014 (79 FR 

22188), and solicited comments for over 

200 days. This final rule reflects the 

over 1 million public comments on the 

proposal, the substantial majority of 

which supported the proposed rule, as 

well as input provided through the 

agencies’ extensive public outreach 

effort, which included over 400 

meetings nationwide with states, small 

businesses, farmers, academics, miners, 

energy companies, counties, 

municipalities, environmental 

organizations, other federal agencies, 

and many others. The agencies sought 

comment on a number of approaches to 

specific jurisdictional questions, and 

many of these commenters and 

stakeholders urged EPA to improve 

upon the April 2014 proposal, by 

providing more bright line boundaries 

and simplifying definitions that identify 

waters that are protected under the 

CWA, all for the purpose of minimizing 

delays and costs, making protection of 

clean water more effective, and 

improving predictability and 

consistency for landowners and 

regulated entities. 

The agencies’ interpretation of the 

CWA’s scope in this final rule is guided 

by the best available peer-reviewed 

science—particularly as that science 

informs the determinations as to which 

waters have a ‘‘significant nexus’’ with 

traditional navigable waters, interstate 

waters, or the territorial seas. 

The relevant science on the 

relationship and downstream effects of 

waters has advanced considerably in 

recent years. A comprehensive report 

prepared by the EPA’s Office of 

Research and Development entitled 

‘‘Connectivity of Streams and Wetlands 

to Downstream Waters: A Review and 

Synthesis of the Scientific Evidence’’ 6

(hereafter the Science Report) 

synthesizes the peer-reviewed science. 

The Science Report provides much of 

the technical basis for this rule. The 

Science Report is based on a review of 

more than 1,200 peer-reviewed 

publications. EPA’s Science Advisory 

Board (SAB) conducted a 

comprehensive technical review of the 

Science Report and reviewed the 

adequacy of the scientific and technical 

basis of the proposed rule. The Science 

Report and the SAB review confirmed 

that: 

• Waters are connected in myriad 

ways, including physical connections 

and the hydrologic cycle; however, 

connections occur on a continuum or 

gradient from highly connected to 

highly isolated. 

• These variations in the degree of 

connectivity are a critical consideration 

to the ecological integrity and 

sustainability of downstream waters. 

• The critical contribution of 

upstream waters to the chemical, 

physical, and biological integrity of 

downstream waters results from the 

accumulative contribution of similar 

waters in the same watershed and in the 

context of their functions considered 

over time. 

The Science Report and the SAB review 

also confirmed that: 

• Tributary streams, including 

perennial, intermittent, and ephemeral 

streams, are chemically, physically, and 

biologically connected to downstream 

waters, and influence the integrity of 

downstream waters. 

• Wetlands and open waters in 

floodplains and riparian areas are 

chemically, physically, and biologically 

connected with downstream waters and 

influence the ecological integrity of 

such waters. 

• Non-floodplain wetlands and open 

waters provide many functions that 

benefit downstream water quality and 

ecological integrity, but their effects on 

downstream waters are difficult to 

assess based solely on the available 

science. 

Although these conclusions play a 

critical role in informing the agencies’ 

interpretation of the CWA’s scope, the 

agencies’ interpretive task in this rule— 

determining which waters have a 

‘‘significant nexus’’—requires scientific 

and policy judgment, as well as legal 

interpretation. The science 

demonstrates that waters fall along a 

gradient of chemical, physical, and 

biological connection to traditional 

navigable waters, and it is the agencies’ 

task to determine where along that 

gradient to draw lines of jurisdiction 

under the CWA. In making this 

determination, the agencies must rely, 

not only on the science, but also on 

their technical expertise and practical 

experience in implementing the CWA 

during a period of over 40 years. In 

addition, the agencies are guided, in 

part, by the compelling need for clearer, 

more consistent, and easily 

implementable standards to govern 

administration of the Act, including 

brighter line boundaries where feasible 

and appropriate. 

Major Rule Provisions 

In this final rule, the agencies define 

‘‘waters of the United States’’ to include 

eight categories of jurisdictional waters. 

The rule maintains existing exclusions 

for certain categories of waters, and 

adds additional categorical exclusions 

that are regularly applied in practice. 

The rule reflects the agencies’ goal of 

providing simpler, clearer, and more 

consistent approaches for identifying 

the geographic scope of the CWA. The 

rule recognizes jurisdiction for three 

basic categories: Waters that are 

jurisdictional in all instances, waters 

that are excluded from jurisdiction, and 

a narrow category of waters subject to 

case-specific analysis to determine 

whether they are jurisdictional. 

Decisions about waters in each of 

these categories are based on the law, 

peer-reviewed science, and the agencies’ 

technical expertise, and were informed 

by public comments. This rule replaces 

existing procedures that often depend 

on individual, time-consuming, and 

inconsistent analyses of the relationship 

between a particular stream, wetland, 

lake, or other water with downstream 

waters. The agencies have greatly 

reduced the extent of waters subject to 

this individual review by carefully 

incorporating the scientific literature 

and by utilizing agency expertise and 

experience to characterize the nature 

and strength of the chemical, physical, 

and biological connections between 

upstream and downstream waters. The 

result of applying this scientific analysis 

is that the agencies can more effectively 

focus the rule on identifying waters that 

are clearly covered by the CWA and 

those that are clearly not covered, 

making the rule easier to understand, 

consistent, and environmentally more 

protective. 

The jurisdictional categories reflect 

the current state of the best available 

science, and are based upon the law and 

Supreme Court decisions. The agencies 

will continue a transparent review of 

the science, and learn from on-going 

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experience and expertise as the agencies 

implement the rule. If evolving science 

and the agencies’ experience lead to a 

need for action to alter the jurisdictional 

categories, any such action will be 

conducted as part of a rule-making 

process. 

The first three types of jurisdictional 

waters, traditional navigable waters, 

interstate waters, and the territorial seas, 

are jurisdictional by rule in all cases. 

The fourth type of water, 

impoundments of jurisdictional waters, 

is also jurisdictional by rule in all cases. 

The next two types of waters, 

‘‘tributaries’’ and ‘‘adjacent’’ waters, are 

jurisdictional by rule, as defined, 

because the science confirms that they 

have a significant nexus to traditional 

navigable waters, interstate waters, or 

territorial seas. For waters that are 

jurisdictional by rule, no additional 

analysis is required. 

The final two types of jurisdictional 

waters are those waters found after a 

case-specific analysis to have a 

significant nexus to traditional 

navigable waters, interstate waters, or 

the territorial seas, either alone or in 

combination with similarly situated 

waters in the region. Justice Kennedy 

acknowledged the agencies could 

establish more specific regulations or 

establish a significant nexus on a caseby-case basis, Rapanos at 782, and for 

these waters the agencies will continue 

to assess significant nexus on a casespecific basis. 

The major elements of the final rule 

are briefly summarized here. 

Traditional Navigable Waters, Interstate 

Waters, Territorial Seas, and 

Impoundments of Jurisdictional Waters 

Consistent with existing regulations 

and the April 2014 proposed rule, the 

final rule includes traditional navigable 

waters, interstate waters, territorial seas, 

and impoundments of jurisdictional 

waters in the definition of ‘‘waters of the 

United States.’’ These waters are 

jurisdictional by rule. 

Tributaries 

Previous definitions of ‘‘waters of the 

United States’’ regulated all tributaries 

without qualification. This final rule 

more precisely defines ‘‘tributaries’’ as 

waters that are characterized by the 

presence of physical indicators of 

flow—bed and banks and ordinary high 

water mark—and that contribute flow 

directly or indirectly to a traditional 

navigable water, an interstate water, or 

the territorial seas. The rule concludes 

that such tributaries are ‘‘waters of the 

United States.’’ The great majority of 

tributaries as defined by the rule are 

headwater streams that play an 

important role in the transport of water, 

sediments, organic matter, nutrients, 

and organisms to downstream waters. 

The physical indicators of bed and 

banks and ordinary high water mark 

demonstrate that there is sufficient 

volume, frequency, and flow in such 

tributaries to a traditional navigable 

water, interstate water, or the territorial 

seas to establish a significant nexus. 

‘‘Tributaries,’’ as defined, are 

jurisdictional by rule. 

The rule only covers as tributaries 

those waters that science tells us 

provide chemical, physical, or 

biological functions to downstream 

waters and that meet the significant 

nexus standard. The agencies identify 

these functions in the definition of 

‘‘significant nexus’’ at paragraph (c)(5). 

Features not meeting this legal and 

scientific test are not jurisdictional 

under this rule. The rule continues the 

current policy of regulating ditches that 

are constructed in tributaries or are 

relocated tributaries or, in certain 

circumstances drain wetlands, or that 

science clearly demonstrates are 

functioning as a tributary. These 

jurisdictional waters affect the chemical, 

physical, and biological integrity of 

downstream waters. The rule further 

reduces existing confusion and 

inconsistency regarding the regulation 

of ditches by explicitly excluding 

certain categories of ditches, such as 

ditches that flow only after 

precipitation. Further, the rule 

explicitly excludes from the definition 

of ‘‘waters of the United States’’ 

erosional features, including gullies, 

rills, and ephemeral features such as 

ephemeral streams that do not have a 

bed and banks and ordinary high water 

mark. 

Adjacent Waters 

The agencies determined that 

‘‘adjacent waters,’’ as defined in the 

rule, have a significant nexus to 

traditional navigable waters, interstate 

waters, and the territorial seas based 

upon their hydrological and ecological 

connections to, and interactions with, 

those waters. Under this final rule, 

‘‘adjacent’’ means bordering, 

contiguous, or neighboring, including 

waters separated from other ‘‘waters of 

the United States’’ by constructed dikes 

or barriers, natural river berms, beach 

dunes and the like. Further, waters that 

connect segments of, or are at the head 

of, a stream or river are ‘‘adjacent’’ to 

that stream or river. ‘‘Adjacent waters’’ 

include wetlands, ponds, lakes, oxbows, 

impoundments, and similar water 

features. However, it is important to 

note that ‘‘adjacent waters’’ do not 

include waters that are subject to 

established normal farming, silviculture, 

and ranching activities as those terms 

are used in Section 404(f) of the CWA. 

The final rule establishes a definition 

of ‘‘neighboring’’ for purposes of 

determining adjacency. In the rule, the 

agencies identify three circumstances 

under which waters would be 

‘‘neighboring’’ and therefore ‘‘waters of 

the United States’’: 

(1) Waters located in whole or in part 

within 100 feet of the ordinary high 

water mark of a traditional navigable 

water, interstate water, the territorial 

seas, an impoundment of a 

jurisdictional water, or a tributary, as 

defined in the rule. 

(2) Waters located in whole or in part 

in the 100-year floodplain and that are 

within 1,500 feet of the ordinary high 

water mark of a traditional navigable 

water, interstate water, the territorial 

seas, an impoundment, or a tributary, as 

defined in the rule (‘‘floodplain 

waters’’). 

(3) Waters located in whole or in part 

within 1,500 feet of the high tide line of 

a traditional navigable water or the 

territorial seas and waters located 

within 1,500 feet of the ordinary high 

water mark of the Great Lakes. 

The agencies emphasize that the rule 

has defined as ‘‘adjacent waters’’ those 

waters that currently available science 

demonstrates possess the requisite 

connection to downstream waters and 

function as a system to protect the 

chemical, physical, or biological 

integrity of those waters. The agencies 

also emphasize that the rule does not 

cover ‘‘adjacent waters’’ that are 

otherwise excluded. Further, the 

agencies recognize the establishment of 

bright line boundaries in the rule for 

adjacency does not in any way restrict 

states from considering state specific 

information and concerns, as well as 

emerging science to evaluate the need to 

more broadly protect their waters under 

state law. The CWA establishes both 

national and state roles to ensure that 

states specific circumstances are 

properly considered to complement and 

reinforce actions taken at the national 

level. 

‘‘Adjacent’’ waters as defined are 

jurisdictional by rule. The agencies 

recognize that there are individual 

waters outside of the ‘‘neighboring’’ 

boundaries stated above where the 

science may demonstrate through a 

case-specific analysis that there exists a 

significant nexus to a downstream 

traditional navigable water, interstate 

water, or the territorial seas. However, 

these waters are not determined 

jurisdictional by rule and will be 

evaluated through a case-specific 

analysis. The strength of the science and 

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the significance of the nexus will be 

established on a case-specific basis as 

described below. 

Case-Specific Significant Nexus 

The rule identifies particular waters 

that are not jurisdictional by rule but are 

subject to case-specific analysis to 

determine if a significant nexus exists 

and the water is a ‘‘water of the United 

States.’’ This category of case-specific 

waters is based upon available science 

and the law, and in response to public 

comments that encouraged the agencies 

to ensure more consistent 

determinations and reduce the 

complexity of conducting jurisdictional 

determinations. Consistent with the 

significant nexus standard articulated in 

the Supreme Court opinions, waters are 

‘‘waters of the United States’’ if they 

significantly affect the chemical, 

physical, or biological integrity of 

traditional navigable waters, interstate 

waters, or the territorial seas. This 

determination will most typically be 

made on a water individually, but can, 

when warranted, be made in 

combination with other waters where 

waters function together. 

In this final rule, the agencies have 

identified by rule, five specific types of 

waters in specific regions that science 

demonstrates should be subject to a 

significant nexus analysis and are 

considered similarly situated by rule 

because they function alike and are 

sufficiently close to function together in 

affecting downstream waters. These five 

types of waters are Prairie potholes, 

Carolina and Delmarva bays, pocosins, 

western vernal pools in California, and 

Texas coastal prairie wetlands. 

Consistent with Justice Kennedy’s 

opinion in Rapanos, the agencies 

determined that such waters should be 

analyzed ‘‘in combination’’ (as a group, 

rather than individually) in the 

watershed that drains to the nearest 

traditional navigable water, interstate 

water, or the territorial seas when 

making a case-specific analysis of 

whether these waters have a significant 

nexus to traditional navigable waters, 

interstate waters, or territorial seas. 

The final rule also provides that 

waters within the 100-year floodplain of 

a traditional navigable water, interstate 

water, or the territorial seas and waters 

within 4,000 feet of the high tide line or 

the ordinary high water mark of a 

traditional navigable water, interstate 

water, the territorial seas, 

impoundments, or covered tributary are 

subject to case-specific significant nexus 

determinations, unless the water is 

excluded under paragraph (b) of the 

rule. The science available today does 

not establish that waters beyond those 

defined as ‘‘adjacent’’ should be 

jurisdictional as a category under the 

CWA, but the agencies’ experience and 

expertise indicate that there are many 

waters within the 100-year floodplain of 

a traditional navigable water, interstate 

water, or the territorial seas or out to 

4,000 feet where the science 

demonstrates that they have a 

significant effect on downstream waters. 

In circumstances where waters within 

the 100-year floodplain of a traditional 

navigable water, interstate water, or the 

territorial seas or within 4,000 feet of 

the high tide line or ordinary high water 

mark are subject to a case-specific 

significant nexus analysis and such 

waters may be evaluated as ‘‘similarly 

situated,’’ it must be first demonstrated 

that these waters function alike and are 

sufficiently close to function together in 

affecting downstream waters. The 

significant nexus analysis must then be 

conducted based on consideration of the 

functions provided by those waters in 

combination in the point of entry 

watershed. A ‘‘similarly situated’’ 

analysis is conducted where it is 

determined that there is a likelihood 

that there are waters that function 

together to affect downstream water 

integrity. To provide greater clarity and 

transparency in determining what 

functions will be considered in 

determining what constitutes a 

significant nexus, the final rule lists 

specific functions that the agencies will 

consider. 

In establishing both the 100-year 

floodplain and the 4,000 foot bright line 

boundaries for these case-specific 

significant nexus determinations in the 

rule, the agencies are carefully applying 

the available science. Consistent with 

the CWA, the agencies will work with 

the states in connection with the 

prevention, reduction and elimination 

of pollution from state waters. The 

agencies will work with states to more 

closely evaluate state-specific 

circumstances that may be present 

within their borders and, as appropriate, 

encourage states to develop rules that 

reflect their circumstances and emerging 

science to ensure consistent and 

effective protection for waters in the 

states. As is the case today, nothing in 

this rule restricts the ability of states to 

more broadly protect state waters. 

Exclusions 

All existing exclusions from the 

definition of ‘‘waters of the United 

States’’ are retained, and several 

exclusions reflecting longstanding 

agency practice are added to the 

regulation for the first time. 

Prior converted cropland and waste 

treatment systems have been excluded 

from the definition of ‘‘waters of the 

United States’’ definition since 1992 

and 1979 respectively, and continue to 

be excluded. Ministerial changes are 

made for purposes of clarity, but these 

two exclusions remain substantively 

and operationally unchanged. The 

agencies add exclusions for waters and 

features previously identified as 

generally exempt (e.g., exclusion for 

certain ditches that are not located in or 

drain wetlands) in preamble language 

from Federal Register documents by the 

Corps on November 13, 1986, and by 

EPA on June 6, 1988. This is the first 

time these exclusions have been 

established by rule. The agencies for the 

first time also establish by rule that 

certain ditches are excluded from 

jurisdiction, including ditches with 

ephemeral flow that are not a relocated 

tributary or excavated in a tributary, and 

ditches with intermittent flow that are 

not a relocated tributary, or excavated in 

a tributary, or drain wetlands. The 

agencies add exclusions for 

groundwater and erosional features, as 

well as exclusions for some waters that 

were identified in public comments as 

possibly being found jurisdictional 

under proposed rule language where 

this was never the agencies’ intent, such 

as stormwater control features 

constructed to convey, treat, or store 

stormwater, and cooling ponds that are 

created in dry land. These exclusions 

reflect the agencies’ current practice, 

and their inclusion in the rule as 

specifically excluded furthers the 

agencies’ goal of providing greater 

clarity over what waters are and are not 

protected under the CWA. 

Role of States and Tribes Under the 

Clean Water Act 

States and tribes play a vital role in 

the implementation and enforcement of 

the CWA. Section 101(b) of the CWA 

states that it is Congressional policy to 

preserve the primary responsibilities 

and rights of states to prevent, reduce, 

and eliminate pollution, to plan the 

development and use of land and water 

resources, and to consult with the 

Administrator with respect to the 

exercise of the Administrator’s authority 

under the CWA. 

Of particular importance, states and 

tribes may be authorized by the EPA to 

administer the permitting programs of 

CWA sections 402 and 404. Forty-six 

states and the U.S. Virgin Islands are 

authorized to administer the NPDES 

program under section 402, while two 

states administer the section 404 

program. The CWA identifies the waters 

over which states may assume section 

404 permitting jurisdiction. See CWA 

section 404(g)(1). The scope of waters 

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that are subject to state and tribal 

permitting is a separate inquiry and 

must be based on the statutory language 

in CWA section 404. States administer 

approved CWA section 404 programs for 

‘‘waters of the United States’’ within the 

state, except those waters remaining 

under Corps jurisdiction pursuant to 

CWA section 404(g)(1) as identified in a 

Memorandum of Agreement between 

the state and the Corps. 40 CFR 233.14; 

40 CFR 233.70(c)(2); 40 CFR 

233.71(d)(2). EPA has initiated a 

separate process to address how the 

EPA can best clarify assumable waters 

for dredged and fill material permit 

programs pursuant to the Clean Water 

Act section 404(g)(1). 80 FR 13539 (Mar. 

16, 2015). Additional CWA programs 

that utilize the definition of ‘‘waters of 

the United States’’ and are of 

importance to the states and tribes 

include the section 311 oil spill 

prevention and response program, the 

water quality standards and total 

maximum daily load (TMDL) programs 

under section 303, and the section 401 

state water quality certification process. 

States and federally-recognized tribes, 

consistent with the CWA, retain full 

authority to implement their own 

programs to more broadly and more 

fully protect the waters in their 

jurisdiction. Under section 510 of the 

CWA, unless expressly stated, nothing 

in the CWA precludes or denies the 

right of any state to establish more 

protective standards or limits than the 

Federal CWA. Congress has also 

provided roles for eligible Indian tribes 

to administer CWA programs over their 

reservations and expressed a preference 

for tribal regulation of surface water 

quality on Indian reservations to ensure 

compliance with the goals of the CWA. 

See 33 U.S.C. 1377; 56 FR 64876, 

64878–79 (Dec. 12, 1991)). Tribes also 

have inherent sovereign authority to 

establish more protective standards or 

limits than the Federal CWA. Where 

appropriate, references to states in this 

document may also include eligible 

tribes. Many states and tribes, for 

example, regulate groundwater, and 

some others protect wetlands that are 

vital to their environment and economy 

but outside the jurisdiction of the CWA. 

Nothing in this rule limits or impedes 

any existing or future state or tribal 

efforts to further protect their waters. In 

fact, providing greater clarity regarding 

what waters are subject to CWA 

jurisdiction will reduce the need for 

permitting authorities, including the 

states and tribes with authorized section 

402 and 404 CWA permitting programs, 

to make jurisdictional determinations 

on a case-specific basis. 

Overview of the Preamble 

The remainder of this preamble is 

organized as follows. Section III 

(Significant Nexus Standard) provides 

additional background on the rule, 

including a discussion of Supreme 

Court precedent, the science 

underpinning the rule, and the agencies’ 

overall interpretive approach to 

applying the significant nexus standard. 

Section IV (Definition of Waters of the 

United States) explains the provisions of 

the final rule, including subsections on 

each of the major elements of the rule. 

Section V summarizes the economic 

analysis of the rule and Section VI 

addresses Related Acts of Congress, 

Executive Orders and Agency 

Initiatives. 

III. Significant Nexus Standard 

With this rule, the agencies interpret 

the scope of the ‘‘waters of the United 

States’’ for the CWA in light of the goals, 

objectives, and policies of the statute, 

the Supreme Court case law, the 

relevant and available science, and the 

agencies’ technical expertise and 

experience. The key to the agencies’ 

interpretation of the CWA is the 

significant nexus standard, as 

established and refined in Supreme 

Court opinions: Waters are ‘‘waters of 

the United States’’ if they, either alone 

or in combination with similarly 

situated waters in the region, 

significantly affect the chemical, 

physical, or biological integrity of 

traditional navigable waters, interstate 

waters, or the territorial seas. The 

agencies interpret specific aspects of the 

significant nexus standard in light of the 

science, the law, and the agencies’ 

technical expertise: The scope of the 

region in which to evaluate waters when 

making a significant nexus 

determination; the waters to evaluate in 

combination with each other; and the 

functions provided by waters and 

strength of those functions, and when 

such waters significantly affect the 

chemical, physical, or biological 

integrity of the downstream traditional 

navigable waters, interstate waters, or 

the territorial seas. 

In the rule, the agencies determine 

that tributaries, as defined (‘‘covered 

tributaries’’), and ‘‘adjacent waters’’, as 

defined (‘‘covered adjacent waters’’), 

have a significant nexus to downstream 

traditional navigable waters, interstate 

waters, and the territorial seas and 

therefore are ‘‘waters of the United 

States.’’ In the rule, the agencies also 

establish that defined sets of additional 

waters may be determined to have a 

significant nexus on a case-specific 

basis: (1) Five specific types of waters 

that the agencies conclude are 

‘‘similarly situated’’ and therefore must 

be analyzed ‘‘in combination’’ in the 

watershed that drains to the nearest 

traditional navigable water, interstate 

water, or the territorial seas when 

making a case-specific significant nexus 

analysis; and (2) waters within the 100- 

year floodplain of a traditional 

navigable water, interstate water, or the 

territorial seas, or waters within 4,000 

feet of the high tide line or ordinary 

high water mark of traditional navigable 

waters, interstate waters, the territorial 

seas, impoundments or covered 

tributaries. The rule establishes a 

definition of significant nexus, based on 

Supreme Court opinions and the 

science, to use when making these casespecific determinations. 

Significant nexus is not a purely 

scientific determination. The opinions 

of the Supreme Court have noted that as 

the agencies charged with interpreting 

the statute, EPA and the Corps must 

develop the outer bounds of the scope 

of the CWA, while science does not 

provide bright line boundaries with 

respect to where ‘‘water ends’’ for 

purposes of the CWA. Therefore, the 

agencies’ interpretation of the CWA is 

informed by the Science Report and the 

review and comments of the SAB, but 

not dictated by them. With this context, 

this section addresses, first, the 

Supreme Court case law and the 

significant nexus standard, second, the 

relevant scientific conclusions reached 

by analysis of existing scientific 

literature, and third, the agencies’ 

significant nexus determinations 

underpinning the rule. Section IV of the 

preamble addresses in more detail the 

precise definitions of the covered waters 

promulgated by the agencies to provide 

the bright line boundaries identifying 

‘‘waters of the United States.’’ 

A. The Significant Nexus Standard 

Congress enacted the CWA ‘‘to restore 

and maintain the chemical, physical, 

and biological integrity of the Nation’s 

waters.’’ Section 101(a). The agencies’ 

longstanding regulations define ‘‘waters 

of the United States’’ for purposes of the 

Clean Water Act, and the Supreme 

Court has addressed the scope of 

‘‘waters of the United States’’ protected 

by the CWA in three cases. The 

significant nexus standard evolved 

through those cases. 

In United States v. Riverside Bayview 

Homes, 474 U.S. 121 (1985) (Riverside), 

which involved wetlands adjacent to a 

traditional navigable water in Michigan, 

the Court, in a unanimous opinion, 

deferred to the Corps’ ecological 

judgment that adjacent wetlands are 

‘‘inseparably bound up’’ with the waters 

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to which they are adjacent, and upheld 

the inclusion of adjacent wetlands in 

the regulatory definition of ‘‘waters of 

the United States.’’ Id. at 134. The Court 

observed that the broad objective of the 

CWA to restore and maintain the 

integrity of the Nation’s waters 

‘‘incorporated a broad, systemic view of 

the goal of maintaining and improving 

water quality . . .. Protection of aquatic 

ecosystems, Congress recognized, 

demanded broad federal authority to 

control pollution, for ‘[w]ater moves in 

hydrologic cycles and it is essential that 

discharge of pollutants be controlled at 

the source.’ In keeping with these views, 

Congress chose to define the waters 

covered by the Act broadly.’’ Id. at 132– 

33 (citing Senate Report No. 92–414). 

The Court also recognized that ‘‘[i]n 

determining the limits of its power to 

regulate discharges under the Act, the 

Corps must necessarily choose some 

point at which water ends and land 

begins. Our common experience tells us 

that this is often no easy task: The 

transition from water to solid ground is 

not necessarily or even typically an 

abrupt one. Rather, between open 

waters and dry land may lie shallows, 

marshes, mudflats, swamps, bogs—in 

short, a huge array of areas that are not 

wholly aquatic but nevertheless fall far 

short of being dry land. Where on this 

continuum to find the limit of ‘waters’ 

is far from obvious.’’ Id. The Court then 

deferred to the agencies’ interpretation: 

‘‘In view of the breadth of federal 

regulatory authority contemplated by 

the Act itself and the inherent 

difficulties of defining precise bounds to 

regulable waters, the Corps’ ecological 

judgment about the relationship 

between waters and their adjacent 

wetlands provides an adequate basis for 

a legal judgment that adjacent wetlands 

may be defined as waters under the 

Act.’’ Id. at 134. 

The issue of CWA jurisdiction over 

‘‘waters of the United States’’ was 

addressed again by the Supreme Court 

in Solid Waste Agency of Northern Cook 

County v. U.S. Army Corps of Engineers, 

531 U.S. 159 (2001) (SWANCC). In 

SWANCC, the Court (in a 5–4 opinion) 

held that the use of ‘‘isolated’’ nonnavigable intrastate ponds by migratory 

birds was not by itself a sufficient basis 

for the exercise of federal regulatory 

authority under the CWA. The 

SWANCC Court noted that in Riverside 

it had ‘‘found that Congress’ concern for 

the protection of water quality and 

aquatic ecosystems indicated its intent 

to regulate wetlands ‘inseparably bound 

up’ with the ‘waters’ of the United 

States’’ and that ‘‘[i]t was the significant 

nexus between the wetlands and 

‘navigable waters’ that informed our 

reading of the CWA’’ in that case. Id. at 

167. SWANCC did not invalidate any 

parts of the regulatory definition of 

‘‘waters of the United States.’’ 

Five years after SWANCC, the Court 

again addressed the term ‘‘waters of the 

United States’’ in Rapanos v. United 

States, 547 U.S. 715 (2006) (Rapanos). 

Rapanos involved two consolidated 

cases in which the CWA had been 

applied to wetlands adjacent to nonnavigable tributaries of traditional 

navigable waters. All Members of the 

Court agreed that the term ‘‘waters of 

the United States’’ encompasses some 

waters that are not navigable in the 

traditional sense. A four-Justice 

plurality in Rapanos interpreted the 

term ‘‘waters of the United States’’ as 

covering ‘‘relatively permanent, 

standing or continuously flowing bodies 

of water . . .,’’ id. at 739, that are 

connected to traditional navigable 

waters, id. at 742, as well as wetlands 

with a ‘‘continuous surface connection 

. . .’’ to such water bodies, id. (Scalia, 

J., plurality opinion). The Rapanos 

plurality noted that its reference to 

‘‘relatively permanent’’ waters did ‘‘not 

necessarily exclude streams, rivers, or 

lakes that might dry up in extraordinary 

circumstances, such as drought,’’ or 

‘‘seasonal rivers, which contain 

continuous flow during some months of 

the year but no flow during dry months. 

. . .’’ Id. at 732 n.5 (emphasis in 

original). 

Justice Kennedy concurred that the 

cases should be remanded for further 

decision making, and stated that ‘‘to 

constitute ‘navigable waters’ under the 

Act, a water or wetland must possess a 

‘significant nexus’ to waters that are or 

were navigable in fact or that could 

reasonably be so made.’’ Id. at 759 

(citing SWANCC, 531 U.S. at 167, 172). 

Justice Kennedy concluded that ‘‘The 

required nexus must be assessed in 

terms of the statute’s goals and 

purposes. Congress enacted the law to 

‘restore and maintain the chemical, 

physical, and biological integrity of the 

Nation’s waters,’ 33 U.S.C. 1251(a), and 

it pursued that objective by restricting 

dumping and filling in ‘navigable 

waters,’ §§ 1311(a), 1362(12).’’ Id. at 

779. He concluded that wetlands 

possess the requisite significant nexus if 

the wetlands ‘‘either alone or in 

combination with similarly situated 

[wet]lands in the region, significantly 

affect the chemical, physical, and 

biological integrity of other covered 

waters more readily understood as 

‘navigable.’ ’’ 547 U.S. at 780. Justice 

Kennedy’s opinion notes that such a 

relationship with navigable waters must 

be more than ‘‘speculative or 

insubstantial.’’ Id. at 780. 

While Justice Kennedy’s opinion 

focused on adjacent wetlands in light of 

the facts of the cases before him, his 

opinion is clear that a significant nexus 

is the basis for jurisdiction to protect 

non-navigable waters and wetlands 

under the CWA (id. at 759), and there 

is no indication in his opinion that the 

analytical framework his opinion 

provides for determining significant 

nexus for adjacent wetlands is limited to 

adjacent wetlands. In addition, the four 

dissenting Justices in Rapanos, who 

would have affirmed the court of 

appeals’ application of the agencies’ 

regulation, also concluded that the term 

‘‘waters of the United States’’ 

encompasses, inter alia, all tributaries 

and wetlands that satisfy ‘‘either the 

plurality’s [standard] or Justice 

Kennedy’s.’’ Id. at 810 & n.14 (Stevens, 

J., dissenting). Neither the plurality nor 

the Kennedy opinion invalidated any of 

the current regulatory provisions 

defining ‘‘waters of the United States.’’ 

Chief Justice Roberts’ concurrence in 

Rapanos emphasized that ‘‘[a]gencies 

delegated rulemaking authority under a 

statute such as the Clean Water Act are 

afforded generous leeway by the courts 

in interpreting the statute they are 

entrusted to administer.’’ Id. at 758. 

Chief Justice Roberts made clear that, if 

the agencies had undertaken such a 

rulemaking, ‘‘the Corps and the EPA 

would have enjoyed plenty of room to 

operate in developing some notion of an 

outer bound to the reach of their 

authority.’’ Id. (Emphasis in original.) 

The agencies utilize the significant 

nexus standard, as articulated by Justice 

Kennedy’s opinion and informed by the 

unanimous opinion in Riverside 

Bayview and the plurality opinion in 

Rapanos which all recognize that the 

Act and the agencies must identify the 

scope of CWA jurisdiction ‘‘on this 

continuum to find the limit of ‘waters,’ ’’ 

Riverside Bayview at 132, to interpret 

the scope of the statutory term ‘‘waters 

of the United States.’’ While a 

significant nexus determination is 

primarily weighted in the scientific 

evidence and criteria, the agencies also 

consider the statutory language, the 

statute’s goals, objectives and policies, 

the case law, and the agencies’ technical 

expertise and experience when 

interpreting the terms of the CWA. 

B. Science Report 

EPA’s Office of Research and 

Development prepared the Science 

Report, a peer-reviewed compilation 

and analysis of published peer-reviewed 

scientific literature summarizing the 

current scientific understanding of the 

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7U.S. EPA. 2014. SAB review of the draft EPA 

report Connectivity of Streams and Wetlands to 

Downstream Waters: A Review and Synthesis of the 

Scientific Evidence. EPA–SAB–15–001, U.S. 

Environmental Protection Agency, Washington, DC. 

(‘‘SAB 2014a.’’) 

8The hyporheic zone is the subsurface area 

immediately below the bed of intermittent and 

ephemeral streams that remains wet even when 

there is no surface flow. These areas are extremely 

important to macro-benthic organisms critical to the 

bio-chemical integrity of streams. 

connectivity of and mechanisms by 

which streams and wetlands, singly or 

in combination, affect the chemical, 

physical, and biological integrity of 

downstream waters. The final Science 

Report is available in the docket and at 

http://cfpub.epa.gov/ncea/cfm/

recordisplay.cfm?deid=296414. 

The process for developing the 

Science Report followed standard 

information quality guidelines for EPA. 

In September 2013, EPA released a draft 

of the Science Report for an 

independent SAB review and invited 

submissions of public comments for 

consideration by the SAB panel. In 

October 2014, after several public 

meetings and hearings, the SAB 

completed its peer review of the draft 

Science Report. The SAB was highly 

supportive of the draft Science Report’s 

conclusions regarding streams, riparian 

and floodplain wetlands, and open 

waters, and recommended strengthening 

the conclusion regarding non-floodplain 

waters to include a more definitive 

statement that reflects how numerous 

functions of such waters sustain the 

integrity of downstream waters.7 The 

final peer review report is available on 

the SAB Web site, as well as in the 

docket for this rulemaking. EPA revised 

the draft Science Report based on 

comments from the public and 

recommendations from the SAB panel. 

The SAB was established in 1978 by 

the Environmental Research, 

Development, and Demonstration 

Authorization Act (ERDDAA), to 

provide independent scientific and 

technical advice to the EPA 

Administrator on the technical basis for 

Agency positions and regulations. 

Advisory functions include peer review 

of EPA’s technical documents, such as 

the Science Report. At the time the peer 

review was completed, the chartered 

SAB was comprised of more than 50 

members from a variety of sectors 

including academia, non-profit 

organizations, foundations, state 

governments, consulting firms, and 

industry. To conduct the peer review, 

EPA’s SAB staff formed an ad hoc panel 

based on nominations from the public to 

serve as the primary reviewers. The 

panel consisted of 27 technical experts 

in an array of relevant fields, including 

hydrology, wetland and stream ecology, 

biology, geomorphology, 

biogeochemistry, and freshwater 

science. Similar to the chartered SAB, 

the panel members represented sectors 

including academia, a federal 

government agency, non-profit 

organizations, and consulting firms. The 

chair of the panel was a member of the 

chartered SAB. 

The SAB process is open and 

transparent, consistent with the Federal 

Advisory Committee Act, 5 U.S.C., App 

2, and agency policies regarding Federal 

advisory committees. Consequently, the 

SAB has an approved charter, which 

must be renewed biennially, announces 

its meetings in the Federal Register, and 

provides opportunities for public 

comment on issues before the Board. 

The SAB staff announced via the 

Federal Register that they sought public 

nominations of technical experts to 

serve on the expert panel: SAB Panel for 

the Review of the EPA Water Body 

Connectivity Report (via a similar 

process the public also is invited to 

nominate chartered SAB members). 78 

FR 15012 (Mar. 8, 2013). The SAB staff 

then invited the public to comment on 

the list of candidates for the panel. Once 

the panel was selected, the SAB staff 

posted a memo on its Web site 

addressing the formation of the panel 

and the set of determinations that were 

necessary for its formation (e.g., no 

conflicts of interest). In the public 

notice of the first public meetings 

interested members of the public were 

invited to submit relevant comments for 

the SAB Panel to consider pertaining to 

the review materials, including the 

charge to the Panel. Over 133,000 public 

comments were received by the Docket. 

Every meeting was open to the public, 

noticed in the Federal Register, and had 

time allotted for the public to present 

their views. In total, the Panel held a 

two-day in-person meeting in 

Washington, DC, in December 2013, and 

three four-hour public teleconferences 

in April, May, and June 2014. The SAB 

Panel also compiled four draft versions 

of its peer review report to inform and 

assist the meeting deliberations that 

were posted on the SAB Web site. In 

September 2014, the chartered SAB 

conducted a public teleconference to 

conduct the quality review of the 

Panel’s final draft peer review report. 

The peer review report was approved at 

that meeting, and revisions were made 

to reflect the chartered SAB’s review. 

The culmination of that public process 

was the release of the final peer review 

report in October 2014. All meeting 

minutes and draft reports are available 

on the SAB Web site for public access. 

The final Science Report states that 

connectivity is a foundational concept 

in hydrology and freshwater ecology. 

Connectivity is the degree to which 

components of a system are joined, or 

connected, by various transport 

mechanisms and is determined by the 

characteristics of both the physical 

landscape and the biota of the specific 

system. Connectivity for purposes of 

interpreting the scope of ‘‘waters of the 

United States’’ under the CWA serves to 

demonstrate the ‘‘nexus’’ between 

upstream water bodies and the 

downstream traditional navigable water, 

interstate water, or the territorial sea. 

The scientific literature does not use the 

term ‘‘significant’’ as it is defined in a 

legal context, but it does provide 

information on the strength of the 

effects on the chemical, physical, and 

biological functioning of the 

downstream water bodies from the 

connections among covered tributaries, 

covered adjacent waters, and casespecific waters and those downstream 

waters. The scientific literature also 

does not use the terms traditional 

navigable waters, interstate waters, or 

the territorial seas. However, evidence 

of strong chemical, physical, and 

biological connections to larger rivers, 

estuaries, and lakes applies to that 

subset of rivers, estuaries, and lakes that 

are traditional navigable waters, 

interstate waters, or the territorial seas. 

The Science Report presents evidence 

of those connections from various 

categories of waters, evaluated singly or 

in combination, which affect 

downstream waters and the strength of 

that effect. The objectives of the Science 

Report are (1) to provide a context for 

considering the evidence of connections 

between downstream waters and their 

tributary waters, and (2) to summarize 

current understanding about these 

connections, the factors that influence 

them, and the mechanisms by which the 

connections affect the function or 

condition of downstream waters. The 

connections and mechanisms discussed 

in the Science Report include transport 

of physical materials and chemicals 

such as water, wood, sediment, 

nutrients, pesticides, and mercury; 

functions that covered adjacent waters 

perform, such as storing and cleansing 

water; movement of organisms or their 

seeds and eggs; and hydrologic and 

biogeochemical interactions occurring 

in and among surface and groundwater 

flows, including hyporheic zones 8 and 

alluvial aquifers. 

The Science Report presents five 

major conclusions: 

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Conclusion 1: Streams 

The scientific literature unequivocally 

demonstrates that streams, individually 

or cumulatively, exert a strong influence 

on the chemical, physical, and 

biological integrity of downstream 

waters. All tributary streams, including 

perennial, intermittent, and ephemeral 

streams, are chemically, physically, and 

biologically connected to downstream 

rivers via channels and associated 

alluvial deposits where water and other 

materials are concentrated, mixed, 

transformed, and transported. Streams 

are the dominant source of water in 

most rivers, and the majority of 

tributaries are perennial, intermittent, or 

ephemeral headwater streams. 

Headwater streams also convey water 

into local storage compartments such as 

ponds, shallow aquifers, and 

floodplains, and into regional and 

alluvial aquifers; these local storage 

compartments are important sources of 

water for maintaining baseflow in rivers. 

In addition to water, streams transport 

sediment, wood, organic matter, 

nutrients, chemical contaminants, and 

many of the organisms found in rivers. 

The scientific literature provides robust 

evidence that streams are biologically 

connected to downstream waters by the 

dispersal and migration of aquatic and 

semiaquatic organisms, including fish, 

amphibians, plants, microorganisms, 

and invertebrates, that use both 

upstream and downstream habitats 

during one or more stages of their life 

cycles, or provide food resources to 

downstream communities. In addition 

to material transport and biological 

connectivity, ephemeral, intermittent, 

and perennial flows influence 

fundamental biogeochemical processes 

by connecting channels and shallow 

groundwater with other landscape 

elements. Chemical, physical, and 

biological connections between streams 

and downstream waters interact via 

integrative processes such as nutrient 

spiraling. This occurs when stream 

communities assimilate and chemically 

transform large quantities of nitrogen 

and other nutrients that otherwise 

would be transported directly 

downstream, thereby increasing nutrient 

loads and associated impairments due 

to excess nutrients in downstream 

waters. Science Report at ES–2. 

Conclusion 2: Riparian/Floodplain 

Wetlands and Open Waters 

The scientific literature clearly shows 

that wetlands and open waters in 

riparian areas and floodplains are 

chemically, physically, and biologically 

integrated with rivers via functions that 

improve downstream water quality, 

including the temporary storage and 

deposition of channel-forming sediment 

and woody debris, temporary storage of 

local groundwater that supports 

baseflow in rivers, and transformation 

and transport of stored organic matter. 

Riparian/floodplain wetlands and open 

waters improve water quality through 

the assimilation, transformation, and 

sequestration of pollutants, including 

excess nutrients and chemical 

contaminants such as pesticides and 

metals that can degrade downstream 

water integrity. In addition to providing 

effective buffers to protect downstream 

waters from point source and nonpoint 

source pollution, these systems form 

integral components of river food webs, 

providing nursery habitat for breeding 

fish and amphibians, colonization 

opportunities for stream invertebrates, 

and maturation habitat for stream 

insects. Lateral expansion and 

contraction of the river in its floodplain 

result in an exchange of organic matter 

and organisms, including fish 

populations that are adapted to use 

floodplain habitats for feeding and 

spawning during high water, that are 

critical to river ecosystem function. 

Riparian/floodplain wetlands and open 

waters also affect the integrity of 

downstream waters by subsequently 

releasing (desynchronizing) floodwaters 

and retaining large volumes of 

stormwater, sediment, and 

contaminants in runoff that could 

otherwise negatively affect the 

condition or function of downstream 

waters. Science Report at ES–2 to 

ES–3. 

Conclusion 3: Non-Floodplain Wetlands 

and Open Waters 

Wetlands and open waters in nonfloodplain landscape settings (‘‘nonfloodplain wetlands’’) provide 

numerous functions that benefit 

downstream water integrity. These 

functions include storage of floodwater; 

recharge of groundwater that sustains 

river baseflow; retention and 

transformation of nutrients, metals, and 

pesticides; export of organisms or seeds 

to downstream waters; and habitats 

needed for stream species. This diverse 

group of wetlands (e.g., many Prairie 

potholes or vernal pools) can be 

connected to downstream waters 

through surface water, shallow 

subsurface water, and groundwater 

flows, and through biological and 

chemical connections. 

In general, connectivity of nonfloodplain wetlands occurs along a 

gradient, and can be described in terms 

of the frequency, duration, magnitude, 

timing, and rate of change of water, 

material, and biotic fluxes to 

downstream waters. These descriptors 

are influenced by climate, geology, and 

terrain, which interact with factors such 

as the magnitudes of the various 

functions within wetlands (e.g., amount 

of water storage or carbon export) and 

their proximity to downstream waters to 

determine where wetlands occur along 

the connectivity gradient. At one end of 

this gradient, the functions of nonfloodplain wetlands clearly affect the 

condition of downstream waters if a 

visible (e.g., channelized) surface water 

or a regular shallow subsurface-water 

connection to the river network is 

present. For non-floodplain wetlands 

lacking a channelized surface or regular 

shallow subsurface connection (i.e., 

those at intermediate points along the 

gradient of connectivity), 

generalizations about their specific 

effects on downstream waters from the 

available literature are difficult because 

information on both function and 

connectivity is needed. Science Report 

at ES–3. 

Conclusion 4: Degrees and Determinants 

of Connectivity 

Connectivity of streams and wetlands 

to downstream waters occurs along a 

gradient that can be described in terms 

of the frequency, duration, magnitude, 

timing, and rate of change of water, 

material, and biotic fluxes to 

downstream waters. These terms, which 

we refer to collectively as connectivity 

descriptors, characterize the range over 

which streams and wetlands vary and 

shift along the connectivity gradient in 

response to changes in natural and 

anthropogenic factors and, when 

considered in a watershed context, can 

be used to predict probable effects of 

different degrees of connectivity over 

time. The evidence unequivocally 

demonstrates that the stream channels 

and riparian/floodplain wetlands or 

open waters that together form river 

networks are clearly connected to 

downstream waters in ways that 

profoundly influence downstream water 

integrity. The connectivity and effects of 

non-floodplain wetlands and open 

waters are more variable and thus more 

difficult to address solely from evidence 

available in peer-reviewed studies. 

Science Report at ES–3 to ES–4. 

Conclusion 5: Cumulative Effects 

The incremental effects of individual 

streams and wetlands are cumulative 

across entire watersheds, and therefore, 

must be evaluated in context with other 

streams and wetlands. Downstream 

waters are the time-integrated result of 

all waters contributing to them. For 

example, the amount of water or 

biomass contributed by a specific 

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9U.S. EPA. 2014. SAB Consideration of the 

Adequacy of the Scientific and Technical Basis of 

the EPA’s Proposed Rule titled ‘‘Definition of 

Waters of the United States under the Clean Water 

Act.’’ EPA–SAB–14–007, U.S. Environmental 

Protection Agency, Washington, DC. (‘‘SAB 

2014b.’’) 

ephemeral stream in a given year might 

be small, but the aggregate contribution 

of that stream over multiple years, or by 

all ephemeral streams draining that 

watershed in a given year or over 

multiple years, can have substantial 

consequences on the integrity of the 

downstream waters. Similarly, the 

downstream effect of a single event, 

such as pollutant discharge into a single 

stream or wetland, might be negligible 

but the cumulative effect of multiple 

discharges could degrade the integrity of 

downstream waters. 

When considering the effect of an 

individual stream or wetland, all 

contributions and functions of that 

stream or wetland should be evaluated 

cumulatively. For example, the same 

stream transports water, removes excess 

nutrients, transports pollutants, 

mitigates flooding, and provides refuge 

for fish when conditions downstream 

are unfavorable; if any of these 

functions is ignored, the overall effect of 

that stream would be underestimated. 

Science Report at ES–5 to ES–6. 

SAB Review of the Proposed Rule 

In addition to its peer review of the 

draft Science Report, in a separate effort 

the SAB also reviewed the adequacy of 

the scientific and technical basis of the 

proposed rule and provided its advice 

and comments on the proposal in 

September 2014.9 The same SAB Panel 

that reviewed the draft Science Report 

met via two public teleconferences in 

August 2014 to discuss the scientific 

and technical basis of the proposed rule. 

The Panel submitted comments to the 

Chair of the chartered SAB. A work 

group of chartered SAB members 

considered comments provided by 

panel members, agency representatives, 

and the public on the adequacy of the 

science informing the rule. This work 

group then led the September 2014 

public teleconference discussion of the 

chartered SAB. The public had an 

opportunity to submit oral or written 

comments during these two public 

meetings. The SAB’s final letter to the 

EPA Administrator can be found on the 

SAB Web site and in the docket for this 

rule. 

The SAB found that the available 

science provides an adequate scientific 

basis for the key components of the 

proposed rule. The SAB noted that 

although water bodies differ in degree of 

connectivity that affects the extent of 

influence they exert on downstream 

waters (i.e., they exist on a 

‘‘connectivity gradient’’), the available 

science supports the conclusion that the 

types of water bodies identified as 

‘‘waters of the United States’’ in the 

proposed rule exert strong influence on 

the chemical, physical, and biological 

integrity of downstream waters. In 

particular, the SAB expressed support 

for the proposed rule’s inclusion of 

tributaries and ‘‘adjacent waters’’ as 

categorical waters of the United States 

and the inclusion of ‘‘other waters’’ on 

a case-specific basis, though noting that 

certain ‘‘other waters’’ can be 

determined as a subcategory to be 

similarly situated. 

Regarding tributaries, the SAB found, 

‘‘[t]here is strong scientific evidence to 

support the EPA’s proposal to include 

all tributaries within the jurisdiction of 

the Clean Water Act. Tributaries, as a 

group, exert strong influence on the 

physical, chemical, and biological 

integrity of downstream waters, even 

though the degree of connectivity is a 

function of variation in the frequency, 

duration, magnitude, predictability, and 

consequences of physical, chemical, and 

biological processes.’’ The Board 

advised EPA to reconsider the definition 

of tributaries because not all tributaries 

have ordinary high water marks (e.g., 

ephemeral streams with arid and semiarid environments or in low gradient 

landscapes where the flow of water is 

unlikely to cause an ordinary high water 

mark). The SAB also advised EPA to 

consider changing the wording in the 

definition to ‘‘bed, bank, and other 

evidence of flow.’’ SAB 2014b at 2. The 

agencies did not make this change 

because this recommendation seemed to 

suggest that any hydrologic connection 

is sufficient for CWA jurisdiction. The 

definition of ‘‘tributary’’ in the rule 

better identifies tributaries that have a 

significant nexus to downstream 

traditional navigable waters, interstate 

waters, or the territorial seas. In 

addition, the SAB suggested that EPA 

reconsider whether flow-through lentic 

systems should be included as ‘‘adjacent 

waters’’ and wetlands, rather than as 

tributaries. 

Regarding ‘‘adjacent waters’’ and 

wetlands, the SAB stated, ‘‘[t]he 

available science supports the EPA’s 

proposal to include ‘‘adjacent waters’’ 

and wetlands as a waters of the United 

States. . . . because [they] have a strong 

influence on the physical, chemical, and 

biological integrity of navigable waters.’’ 

Id. In particular, the SAB noted, ‘‘the 

available science supports defining 

adjacency or determination of adjacency 

on the basis of functional 

relationships,’’ rather than ‘‘solely on 

the basis of geographical proximity or 

distance to jurisdictional waters.’’ Id. at 

2–3. The agencies have determined 

which waters are adjacent, and thus 

jurisdictional under the rule, based on 

both functional relationships and 

proximity because those factors identify 

the waters that have a strong influence 

on the chemical, physical, or biological 

integrity of traditional navigable waters, 

interstate waters, or the territorial seas. 

Section C. and IV.F below. The 

agencies’ determination is informed by 

the science, and consideration of 

proximity is reasonable in interpreting 

the scope of adjacency. 

In the evaluation of ‘‘other waters,’’ 

the SAB found that ‘‘scientific literature 

has established that ‘other waters’ can 

influence downstream waters, 

particularly when considered in 

aggregate.’’ Id. at 3. The SAB thus found 

it ‘‘appropriate to define ‘other waters’ 

as waters of the United States on a caseby-case basis, either alone or in 

combination with similarly situated 

waters in the same region.’’ Id. The SAB 

found that distance could not be the 

sole indicator used to evaluate the 

connection of ‘‘other waters’’ to 

jurisdictional waters. The agencies’ 

identification of the areas within which 

a water is assessed on a case-specific 

basis for a significant nexus is informed 

by the science and the agencies’ 

experience and technical expertise, and 

consideration of proximity is reasonable 

in interpreting the scope of the statute. 

The SAB also expressed support for 

language in one of the options discussed 

in the preamble to the proposed rule. 

Specifically, the SAB stated there is 

‘‘also adequate scientific evidence to 

support a determination that certain 

subcategories and types of ‘other waters’ 

in particular regions of the United States 

(e.g., Carolina and Delmarva Bays, Texas 

coastal prairie wetlands, prairie 

potholes, pocosins, western vernal 

pools) are similarly situated (i.e., they 

have a similar influence on the 

chemical, physical, and biological 

integrity of downstream waters and are 

similarly situated on the landscape) and 

thus could be considered waters of the 

United States.’’ Id. The Board noted that 

other sets of wetlands could be 

identified as ‘‘similarly situated’’ as the 

science continues to develop and that 

science does not support excluding 

groups of ‘‘other waters’’ or 

subcategories thereof from jurisdiction. 

The exclusions paragraph of the 

proposed rule generated the most 

comments from the SAB. The SAB 

noted, ‘‘[t]he Clean Water Act 

exclusions of groundwater and certain 

other exclusions listed in the proposed 

rule and the current regulation do not 

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have scientific justification.’’ Id. With 

regard to ditches, the Board found that 

there is a lack of scientific knowledge to 

determine whether ditches should be 

categorically excluded. For example, 

some ditches that would be excluded in 

the Midwest may drain Cowardin 

wetlands and may provide certain 

ecosystem services, while gullies, rills, 

and non-wetland swales can be 

important conduits for moving water 

between jurisdictional waters. The SAB 

also noted that artificial lakes or ponds, 

or reflection pools, can be directly 

connected to jurisdictional waters via 

either shallow or deep groundwater. 

The SAB also recommended that the 

agencies clarify in the preamble to the 

final rule that ‘‘significant nexus’’ is a 

legal term, not a scientific one. 

C. Significant Nexus Conclusions 

As noted earlier, the agencies 

interpret the scope of ‘‘waters of the 

United States’’ protected under the 

CWA based on the information and 

conclusions in the Science Report, other 

relevant scientific literature, the 

Technical Support Document that 

provides additional legal and scientific 

discussion for issues raised in this rule, 

the relevant Supreme Court decisions, 

the agencies’ technical expertise and 

experience, and the objectives and 

requirements of the CWA. In light of 

this information, the agencies made 

scientifically and technically informed 

judgments about the nexus between the 

relevant waters and the significance of 

that nexus and conclude that 

‘‘tributaries’’ and ‘‘adjacent waters,’’ 

each as defined by the rule, have a 

significant nexus such that they are 

‘‘waters of the United States’’ and no 

additional analysis is required. The 

agencies also determined that additional 

waters may, on a case-specific basis, 

have a significant nexus to traditional 

navigable waters, interstate waters, and 

the territorial seas, either alone or in 

combination with similarly situated 

waters. The agencies’ interpretation of 

the scope of ‘‘waters of the United 

States’’ is informed by the Science 

Report and the review and comments of 

the SAB. The rule reflects the judgment 

of the agencies in balancing the science, 

the agencies’ expertise, and the 

regulatory goals of providing clarity to 

the public while protecting the 

environment and public health, 

consistent with the law. 

Since the Rapanos decision, the 

agencies have gained extensive 

experience making significant nexus 

determinations, and that experience and 

expertise has informed the judgment of 

the agencies as reflected in the 

provisions of the rule. The agencies, 

most often the Corps, have made more 

than 400,000 CWA jurisdictional 

determinations since 2008. Of those, 

more than 120,000 are case-specific 

significant nexus determinations. The 

agencies made determinations in every 

state in the country, from the arid West 

to the tropics of Hawaii, from the 

Appalachian Mountains in the East to 

the lush forests of the Northwest. With 

field staff located in 38 Corps District 

offices and 10 EPA regional offices, the 

agencies have almost a decade of 

nationwide experience in making 

significant nexus determinations. These 

individual jurisdictional determinations 

have been made for waters ranging from 

an intermittent stream that provides 

flow to a drinking water source, to a 

group of floodplain wetlands in North 

Dakota that provide important 

protection from floodwaters to 

downstream communities alongside the 

Red River, to headwater mountain 

streams that provide high quality water 

that supplies baseflow and reduces the 

harmful concentrations of pollutants in 

the main part of the river below. 

Through this experience, the agencies 

developed wide-ranging technical 

expertise in assessing the hydrologic 

flowpaths along which water and 

materials are transported and 

transformed that determine the degree 

of chemical, physical, or biological 

connectivity, as well as the variations in 

climate, geology, and terrain within and 

among watersheds and over time that 

affect the functions (such as the removal 

or transformation of pollutants) 

performed by streams and wetlands for 

downstream traditional navigable 

waters, interstate waters or the 

territorial seas. 

The agencies utilize many tools and 

many sources of information to help 

make jurisdictional determinations, 

including U.S. Geological Survey 

(USGS) and state and local topographic 

maps, aerial photography, soil surveys, 

watershed studies, scientific literature 

and references, and field work. For 

example, USGS and state and local 

stream maps and datasets, aerial 

photography, gage data, watershed 

assessments, monitoring data, and field 

observations are often used to help 

assess the contributions of flow of 

tributary streams, including intermittent 

and ephemeral streams, to downstream 

traditional navigable waters, interstate 

waters or the territorial seas. Similarly, 

floodplain and topographic maps of 

federal, state and local agencies, 

modeling tools, and field observations 

can be used to assess how wetlands are 

trapping floodwaters that might 

otherwise affect downstream waters. 

Further, the agencies utilize the large 

body of scientific literature regarding 

the functions of tributaries, including 

tributaries with ephemeral, intermittent 

and perennial flow and of wetlands and 

open waters to inform their evaluations 

of significant nexus. In addition, the 

agencies have experience and expertise 

for decades prior to and since the 

SWANCC and Rapanos decisions with 

making jurisdictional determinations, 

and consider hydrology, ordinary high 

water mark, biota, and other technical 

factors in implementing Clean Water 

Act programs. This immersion in the 

science along with the practical 

expertise developed through casespecific determinations across the 

country and in diverse settings is 

reflected in the agencies’ conclusions 

with respect to waters that have a 

significant nexus, as well as where the 

agencies have drawn boundaries 

demarking where ‘‘waters of the United 

States’’ end. 

1. Scope of Significant Nexus Analysis 

Under the significant nexus standard, 

waters possess the requisite significant 

nexus if they ‘‘either alone or in 

combination with similarly situated 

[wet]lands in the region, significantly 

affect the chemical, physical, and 

biological integrity of other covered 

waters more readily understood as 

‘navigable.’ ’’ Rapanos at 780. Several 

terms in this standard were not defined. 

In this rule the agencies interpret these 

terms and the scope of ‘‘waters of the 

United States’’ based on the goals, 

objectives, and policies of the statute, 

the scientific literature, the Supreme 

Court opinions, and the agencies’ 

technical expertise and experience. 

Therefore, for purposes of a significant 

nexus analysis, the agencies have 

determined (1) which waters are 

‘‘similarly situated,’’ and thus should be 

analyzed in combination, in (2) the 

‘‘region,’’ for purposes of a significant 

nexus analysis, and (3) the types of 

functions that should be analyzed to 

determine if waters significantly affect 

the chemical, physical, or biological 

integrity of traditional navigable waters, 

interstate waters, or the territorial seas. 

These determinations underpin many of 

the key elements of the rule and are 

reflected in the definition of ‘‘significant 

nexus’’ in the rule. 

a. Similarly Situated Waters 

As reflected in the rule’s definition of 

‘‘significant nexus,’’ the agencies 

determined that it is reasonable to 

consider waters as ‘‘similarly situated’’ 

where they function alike and are 

sufficiently close to function together in 

affecting the nearest traditional 

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10September 2, 2014. Memorandum from Dr. 

Amanda Rodewald to Dr. David Allen. Comments 

to the chartered SAB on the Adequacy of the 

Scientific and Technical Basis of the EPA’s 

Proposed Rule titled ‘‘Definition of ‘Waters of the 

United States’ under the Clean Water Act.’’ (‘‘SAB 

2014c.’’) 

navigable water, interstate water, or the 

territorial sea. Since the focus of the 

significant nexus standard is on 

protecting and restoring the chemical, 

physical, and biological integrity of the 

nation’s waters, the agencies interpret 

the phrase ‘‘similarly situated’’ in terms 

of whether particular waters are 

providing common, or similar, functions 

for downstream waters such that it is 

reasonable to consider their effect 

together. Regarding covered tributaries 

and covered adjacent waters, the 

agencies define each water type such 

that the functions provided are similar 

and the waters are situated so as to 

provide those functions together to 

affect downstream waters. 

The science demonstrates that 

covered tributaries provide many 

common vital functions important to the 

chemical, physical, and biological 

integrity of downstream waters, 

regardless of the size of the tributaries. 

The science also supports the 

conclusion that sufficient volume, 

duration, and frequency of flow are 

required to create a bed and banks and 

ordinary high water mark. The science 

also supports the conclusion that 

tributaries function together to affect 

downstream waters. The agencies 

conclude that covered tributaries with a 

bed and banks and ordinary high water 

mark are similarly situated for purposes 

of the agencies’ significant nexus 

analysis. 

For covered adjacent waters, the 

science demonstrates that these waters 

provide many similar vital functions to 

downstream waters, and the agencies 

defined ‘‘adjacent waters’’ with distance 

boundaries to ensure that the waters are 

providing similar functions to 

downstream waters and that the waters 

are located comparably in the region 

such that the agencies’ reasonably 

judged them to be similarly situated. 

For waters for which a case-specific 

significant nexus determination is 

required the agencies have determined 

that some waters in specific regions are 

similarly situated; for other specified 

waters, the determination of whether 

there are any other waters providing 

similar functions in a similar situation 

in the region must be made as part of 

a case-specific determination. See 

section IV.H. 

Assessing the functions of identified 

waters in combination is consistent not 

only with Justice Kennedy’s significant 

nexus standard, but with the science. 

Scientists routinely combine the effects 

of groups of waters, aggregating the 

known effect of one water with those of 

ecologically similar waters in a specific 

geographic area, or to a certain scale. 

This is because the chemical, physical, 

and biological integrity of downstream 

waters is directly related to the 

aggregate contribution of upstream 

waters that flow into them, including 

any tributaries and connected wetlands. 

As a result, the scientific literature and 

the Science Report consistently 

document that the health of larger 

downstream waters is directly related to 

the aggregate health of waters located 

upstream, including waters such as 

wetlands that may not be hydrologically 

connected but function together to 

ameliorate the potential impacts of 

flooding and pollutant contamination 

from affecting downstream waters. See 

Technical Support Document. 

For example, excess nutrients 

discharged into small tributary streams 

in the aggregate can cause algal blooms 

downstream that reduce dissolved 

oxygen levels and increase turbidity in 

traditional navigable waters, interstate 

waters, and the territorial seas. Water 

low in dissolved oxygen cannot support 

aquatic life. This widely-recognized 

phenomenon, known as hypoxia, has 

impacted commercial and recreational 

fisheries in the northern Gulf of Mexico. 

In this instance, the cumulative effects 

of nutrient export from the many small 

headwater streams of the Mississippi 

River have resulted in large-scale 

ecological and economically harmful 

impacts hundreds of miles downstream. 

See Technical Support Document. 

In review of the scientific and 

technical adequacy of the rule, the SAB 

panel members ‘‘generally agreed that 

aggregating ‘similarly situated’ waters is 

scientifically justified, given that the 

combined effects of these waters on 

downstream waters are often only 

measurable in aggregate.’’ 10 As stated in 

section III.B. above, one of the main 

conclusions of the Science Report is that 

the incremental contributions of 

individual streams and wetlands are 

cumulative across entire watersheds, 

and their effects on downstream waters 

should be evaluated within the context 

of other streams and wetlands in that 

watershed. For example, the Science 

Report finds, ‘‘[t]he amount of nutrients 

removed by any one stream over 

multiple years or by all headwater 

streams in a watershed in a given year 

can have substantial consequences for 

downstream waters.’’ Science Report at 

1–11. Cumulative effects of streams, 

wetlands, and open waters across a 

watershed must be considered because 

‘‘[t]he downstream consequences (e.g., 

the amount and quality of materials that 

eventually reach a river) are determined 

by the aggregate effect of contributions 

and sequential alterations that begin at 

the source waters and function along 

continuous flowpaths to the watershed 

outlet.’’ Id. at 1–19. 

The agencies conclude that it is 

appropriate to assess the effects of 

waters in combination based on the 

similarity of the functions they provide 

to the downstream water and their 

location in the watershed. This is 

consistent with the science and 

effectively meets the goals of the CWA. 

b. In the Region 

Since Justice Kennedy did not define 

the ‘‘region,’’ the agencies determined 

that the single point of entry watershed 

is a reasonable and technically 

appropriate scale for identifying ‘‘in the 

region’’ for purposes of the significant 

nexus standard. A single point of entry 

watershed is the drainage basin within 

whose boundaries all precipitation 

ultimately flows to the nearest single 

traditional navigable water, interstate 

water, or the territorial sea. The agencies 

determined that because the movement 

of water from watershed drainage basins 

to coastal waters, river networks, and 

lakes shapes the development and 

function of these systems in a way that 

is critical to their long-term health, the 

watershed is a reasonable and 

technically appropriate way to identify 

the scope of waters that together may 

have an effect on the chemical, physical, 

or biological integrity of a particular 

traditional navigable water, interstate 

water, or territorial sea. The watershed 

includes all streams, wetlands, lakes, 

and open waters within its boundaries. 

Using the watershed that flows to the 

nearest single traditional navigable 

water, interstate water, or territorial sea 

is consistent with court decisions that 

these waters are the ultimate focus of 

CWA protections. Using the single point 

of entry watershed ensures that any 

analysis of significant nexus is 

appropriately connected to these 

touchstone waters. 

Because the movement of water from 

watershed drainage basins to coastal 

waters, river networks, and lakes shapes 

the development and function of these 

systems in a way that is critical to their 

integrity, using a watershed as the 

framework for conducting significant 

nexus evaluations is scientifically 

supportable. Watersheds are generally 

regarded as the most appropriate spatial 

unit for water resource management. 

Anthropogenic actions and natural 

events can have widespread effects 

within the watershed that collectively 

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impact the integrity and quality of the 

relevant traditional navigable water, 

interstate water, or the territorial sea. 

The functions of the contributing waters 

are inextricably linked and have a 

cumulative effect on the integrity of the 

downstream traditional navigable water, 

interstate water, or the territorial sea. 

For these reasons, it is more appropriate 

to conduct a significant nexus analysis 

at the watershed scale than to focus on 

a specific site, such as an individual 

stream segment. See proposal Appendix 

A, Scientific Analysis, 79 FR 22246, 

April 21, 2014, Science Report, and 

Technical Support Document. 

Concluding that the watershed is the 

reasonable and appropriate region for 

purposes of a significant nexus analysis 

is also consistent with the agencies’ 

longstanding practice and experience. 

To restore or maintain the health of the 

downstream affected water, the 

agencies’ standard practice is to 

evaluate the condition of the waters that 

are in the contributing watersheds and 

to develop a plan to address the issues 

of concern. The Corps has used 

watershed framework approaches for 

water sources, for navigation 

approaches for more than 100 years, and 

in the regulatory program since its 

inception. Also, using a watershed 

framework is consistent with more than 

two decades of practice by EPA and 

many other governmental, academic, 

and additional entities that recognize 

that a watershed approach is the most 

effective framework to address water 

resource challenges. Finally, the 

watershed that drains to the nearest (i.e., 

first downstream) traditional navigable 

water, interstate water, or the territorial 

seas is likely to be of a size commonly 

understood as a ‘‘region.’’ 

In light of the scientific literature, the 

longstanding approach of the agencies’ 

implementation of the CWA, and the 

statutory goals underpinning Justice 

Kennedy’s significant nexus framework, 

the watershed draining to the nearest 

traditional navigable water, interstate 

water, or the territorial sea, is the 

appropriate ‘‘region’’ for a significant 

nexus analysis. See the proposed rule 

preamble and Technical Support 

Document. 

c. Significantly Affect Chemical, 

Physical, or Biological Integrity 

The agencies’ definition of the term 

‘‘significant nexus’’ in the rule is 

consistent with language in Riverside 

Bayview, SWANCC, and Rapanos, and 

with the goals, objectives, and policies 

of the CWA. The definition reflects that 

not all waters have a requisite 

connection to traditional navigable 

waters, interstate waters, or the 

territorial seas sufficient to be 

determined jurisdictional. Justice 

Kennedy was clear that to be covered, 

waters must significantly affect the 

chemical, physical, or biological 

integrity of a downstream navigable 

water and that the requisite nexus must 

be more than ‘‘speculative or 

insubstantial,’’ Rapanos, at 780. The 

agencies define significant nexus in 

precisely those terms. Under the rule a 

‘‘significant nexus’’ is established by a 

showing of a significant chemical, 

physical, or biological effect. In 

characterizing the significant nexus 

standard, Justice Kennedy stated: ‘‘[t]he 

required nexus must be assessed in 

terms of the statute’s goals and 

purposes. Congress enacted the [CWA] 

to ‘restore and maintain the chemical, 

physical, and biological integrity of the 

Nation’s waters’. . . .’’ 547 U.S. at 779. 

It is clear that Congress intended the 

CWA to ‘‘restore and maintain’’ all three 

forms of ‘‘integrity,’’ Section 101(a), so 

if any one is compromised then that is 

contrary to the statute’s stated objective. 

It would subvert the objective if the 

CWA only protected waters upon a 

showing that they had effects on every 

attribute of the integrity of a traditional 

navigable water, interstate water, or the 

territorial sea. 

In the rule’s definition of ‘‘significant 

nexus,’’ the agencies identify the 

functions that waters provide that can 

significantly affect the chemical, 

physical, or biological integrity of 

traditional navigable waters, interstate 

waters and the territorial seas. In 

identifying the functions to be 

considered the agencies were informed 

by the goals of the statute and the 

available science. Among the means to 

achieve the CWA’s objective to restore 

and maintain the chemical, physical, 

and biological integrity of the Nation’s 

waters, Congress established an interim 

national goal to achieve wherever 

possible ‘‘water quality which provides 

for the protection and propagation of 

fish, shellfish, and wildlife and provides 

for recreation in and on the water.’’ 

Section 101(a)(2). Functions to be 

considered for the purposes of 

determining significant nexus are 

sediment trapping; nutrient recycling; 

pollutant trapping, transformation, 

filtering, and transport; retention and 

attenuation of floodwaters; runoff 

storage; contribution of flow; export of 

organic matter; export of food resources; 

and provision of life-cycle dependent 

aquatic habitat (such as foraging, 

feeding, nesting, breeding, spawning, 

and use as a nursery area) for species 

located in traditional navigable waters, 

interstate waters, or the territorial seas. 

The effect of an upstream water can be 

significant even when a water, alone or 

in combination, is providing a subset, or 

even just one, of the functions listed. 

Science demonstrates that these 

aquatic functions provided by smaller 

streams, ponds, wetlands and other 

waters are important for protecting the 

chemical, physical, and biological 

integrity of downstream traditional 

navigable waters, interstate waters, and 

the territorial seas. For example, States 

identify sediment and nutrients as the 

primary contaminants in the nation’s 

waters. Sediment storage and export via 

streams to downstream waters is critical 

for maintaining the river network, 

including the formation of channel 

features. Although sediment is essential 

to river systems, excess sediment can 

impair ecological integrity by filling 

interstitial spaces, reducing channel 

capacity, blocking sunlight transmission 

through the water column, and 

increasing contaminant and nutrient 

concentrations. Streams and wetlands 

can prevent excess deposits of sediment 

downstream and reduce pollutant 

concentrations in downstream waters. 

Thus the function of trapping of excess 

sediment, along with export of 

sediment, have a significant effect on 

the chemical, physical, and biological 

integrity of downstream waters. 

Nutrient recycling results in the 

uptake and transformation of large 

quantities of nitrogen and other 

nutrients that otherwise would be 

transported directly downstream, 

thereby decreasing nutrient loads and 

associated impairments due to excess 

nutrients in downstream waters. 

Streams, wetlands and open waters 

improve water quality through the 

assimilation, transformation, or 

sequestration of pollutants, including 

excess nutrients and chemical 

contaminants such as pesticides and 

metals that can degrade downstream 

water integrity. Nutrient transport 

exports nutrients downstream and can 

degrade water quality and lead to stream 

impairments. Nutrients are necessary to 

support aquatic life, but excess nutrients 

lead to excessive plant growth and 

hypoxia, in which over-enrichment 

causes dissolved oxygen concentrations 

to fall below the level necessary to 

sustain most aquatic animal life in the 

downstream waters. Nutrient recycling, 

retention, and export can significantly 

affect downstream chemical integrity by 

impacting downstream water quality. 

The contribution of flow downstream 

is an important role, as upstream waters 

can be a cumulative source of the 

majority of the total mean annual flow 

to bigger downstream rivers and waters, 

including via the recharge of baseflow. 

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Streams, wetlands, and open waters 

contribute surface and subsurface water 

downstream, and are the dominant 

sources of water in most rivers. 

Contribution of flow can significantly 

affect the physical integrity of 

downstream waters, helping to sustain 

the volume of water in larger waters. 

Small streams and wetlands are 

particularly effective at retaining and 

attenuating floodwaters. By 

subsequently releasing 

(desynchronizing) floodwaters and 

retaining large volumes of stormwater 

that could otherwise negatively affect 

the condition or function of downstream 

waters, streams and adjacent wetlands 

and open waters affect the physical 

integrity of downstream traditional 

navigable waters, interstate waters, or 

the territorial seas. This function can 

reduce flood peaks downstream and can 

also maintain downstream river 

baseflows by recharging alluvial 

aquifers. 

Streams, wetlands, and open waters 

supply downstream waters with 

dissolved and particulate organic matter 

(e.g., leaves, wood), which support 

biological activity throughout the river 

network. In addition to organic matter, 

streams, wetlands, and open waters can 

also export other food resources 

downstream, such as aquatic insects 

that are the food source for fish in 

downstream waters. The export of 

organic matter and food resources 

downstream is important to maintaining 

the food webs and thus the biological 

integrity of traditional navigable waters, 

interstate waters, and the territorial seas. 

Streams, wetlands, and open waters 

provide life-cycle dependent aquatic 

habitat (such as foraging, feeding, 

nesting, breeding, spawning, and use as 

a nursery area) for species located in 

traditional navigable waters, interstate 

waters, or the territorial seas. Many 

species require different habitats for 

different resources (e.g., food, spawning 

habitat, overwintering habitat), and thus 

move throughout the river network over 

their life-cycles. For example, 

headwater streams can provide refuge 

habitat under adverse conditions, 

enabling fish to persist and recolonize 

downstream areas once conditions have 

improved. These upstream systems form 

integral components of downstream 

food webs, providing nursery habitat for 

breeding fish and amphibians, 

colonization opportunities for stream 

invertebrates, and maturation habitat for 

stream insects, including for species 

that are critical to downstream 

ecosystem function. The provision of 

life-cycle dependent aquatic habitat for 

species located in downstream waters 

significantly affects the biological 

integrity of those downstream waters. 

Tributaries, adjacent wetlands, and 

open waters can perform multiple 

functions, including functions that 

change depending upon the season. For 

example, the same stream can 

contribute flow when 

evapotranspiration is low and can retain 

water when evapotranspiration is high. 

These functions, particularly when 

considered in aggregate with the 

functions of similarly situated waters in 

the region, can significantly affect the 

chemical, physical, or biological 

integrity of a traditional navigable 

water, interstate water, or the territorial 

seas. When considering the effect of an 

individual stream, wetland, or open 

water, all contributions and functions 

that the water provides should be 

evaluated cumulatively. For example, 

the same wetland retains sediment, 

removes excess nutrients, mitigates 

flooding, and provides habitat for 

amphibians that also live downstream; 

if any of these functions is ignored, the 

overall effect of that wetland would be 

underestimated. It is important to note, 

however, that a water or wetland can 

provide just one function that may 

significantly affect the chemical, 

physical or biological integrity of the 

downstream water. 

2. Categories of Waters Determined to 

Have a Significant Nexus 

In this rule, the agencies determine 

that: (1) Covered tributaries, in 

combination with other covered 

tributaries located in a watershed that 

drains to a traditional navigable water, 

interstate water, or the territorial seas, 

significantly affect the chemical, 

physical, and biological integrity of that 

water; and (2) covered adjacent waters, 

in combination with other covered 

adjacent waters located in a watershed 

that drains to a traditional navigable 

water, interstate water, or the territorial 

seas, significantly affect the chemical, 

physical, and biological integrity of that 

water. 

a. Covered Tributaries 

The agencies determine based on their 

scientific and technical expertise that 

waters meeting the definition of 

‘‘tributary’’ in a single point of entry 

watershed are similarly situated and 

have a significant nexus because they 

significantly affect the chemical, 

physical, or biological integrity of 

traditional navigable waters, interstate 

waters, and the territorial seas. As such, 

it is appropriate to conclude covered 

tributaries as a category are ‘‘waters of 

the United States.’’ See Technical 

Support Document. The agencies 

limited the tributaries that are ‘‘waters 

of the United States’’ to those that have 

both a bed and banks and another 

indicator of ordinary high water mark. 

That limitation served as a reasonable 

basis to consider covered tributaries 

similarly situated because those 

physical characteristics indicated 

sufficient flow that the covered 

tributaries are performing similar 

functions and located such that they are 

working together in the region to 

provide those functions to the nearest 

traditional navigable water, interstate 

water, or the territorial seas. Justice 

Kennedy noted that the requirement of 

a perceptible ordinary high water mark 

for tributaries, a measure that had been 

used by the Corps, ‘‘may well provide 

a reasonable measure of whether 

specific minor tributaries bear a 

sufficient nexus with other regulated 

waters to constitute ‘navigable waters’ 

under the Act.’’ 547 U.S. at 781, see also 

id. at 761. The science supports this. 

The agencies analyzed the Science 

Report and other scientific literature to 

determine whether tributaries to 

traditional navigable waters, interstate 

waters, or the territorial seas have a 

significant nexus to constitute ‘‘waters 

of the United States’’ under the Act such 

that it is reasonable to assert CWA 

jurisdiction over all such tributaries by 

rule. Covered tributaries have a 

significant impact on the chemical, 

physical, or biological integrity of 

waters into which they eventually 

flow—for CWA purposes, traditional 

navigable waters, interstate waters, and 

the territorial seas. The great majority of 

covered tributaries are headwater 

streams, and whether they are 

perennial, intermittent, or ephemeral, 

they play an important role in the 

transport of water, sediments, organic 

matter, nutrients, and organisms to 

downstream waters. Covered tributaries 

serve to store water, thereby reducing 

flooding; provide biogeochemical 

functions that help maintain water 

quality; trap and transport sediments; 

transport, store and modify pollutants; 

provide habitat for plants and animals; 

and sustain the biological productivity 

of downstream rivers, lakes, and 

estuaries. Such waters have these 

significant effects whether they are 

natural, modified, or constructed. 

Covered tributaries significantly affect 

the chemical integrity of traditional 

navigable waters, interstate waters, and 

the territorial seas. Covered tributaries 

influence the chemical composition of 

downstream waters, through the 

transport and removal of chemical 

elements and compounds, such as 

nutrients, ions, organic matter and 

pollutants. Ecosystem processes in 

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covered tributaries transform, remove, 

and transport these substances to 

downstream waters. In turn, these 

chemical compounds can influence 

water quality, sediment deposition, 

nutrient availability, and biotic 

functions in rivers. Because water flow 

transports chemical substances 

downstream, chemical effects are 

closely related to hydrological 

connectivity. Within covered tributaries, 

there are processes that occur that 

transform and export nutrients and 

carbon to downstream waters, serving 

important source functions that 

influence the chemical integrity of 

downstream waters. Organic carbon, in 

both dissolved and particulate forms, 

exported from covered tributaries is 

consumed by downstream organisms. 

The organic carbon that is exported 

downstream thus supports biological 

activity throughout the river network. 

Covered tributaries act as both sinks 

and sources of chemical substances, 

further affecting the chemical integrity 

of traditional navigable waters, 

interstate waters, and the territorial seas. 

Covered tributaries provide sink 

functions by trapping chemicals through 

absorption to sediments in the stream 

substrate (e.g., phosphorous adsorption 

to clay particles). They provide source 

functions by transporting chemicals to 

downstream traditional navigable 

waters, interstate waters, and the 

territorial seas as chemicals dissolved in 

the waters or as chemicals attached to 

suspended sediments. 

Covered tributaries significantly affect 

the physical integrity of traditional 

navigable waters, interstate waters, and 

the territorial seas. Physical connections 

between covered tributaries and 

traditional navigable waters, interstate 

waters, and the territorial seas result 

from the hydrologic transport from 

covered tributaries to downstream 

waters of numerous materials, including 

water, sediment and organic matter such 

as leaves and wood. This transport 

affects the physical characteristics of 

downstream waters. Covered tributaries, 

even when seasonally dry, are the 

dominant source of water in most rivers, 

rather than direct precipitation or 

groundwater input to main stem river 

segments. One of the primary functions 

of covered tributaries is transporting 

sediment to downstream waters. 

Covered tributaries, particularly 

headwaters, shape and maintain river 

channels by accumulating and gradually 

or episodically releasing sediment and 

large woody debris into river channels. 

These effects occur even when the 

covered tributaries flow infrequently 

(such as ephemeral covered tributaries), 

and even when the covered tributaries 

are great distances from the traditional 

navigable water, interstate water, or the 

territorial sea (such as some headwater 

covered tributaries). 

Covered tributaries significantly affect 

the biological integrity of traditional 

navigable waters, interstate waters, and 

the territorial seas. Covered tributaries, 

including intermittent and ephemeral 

streams, are critical in the life-cycles of 

many organisms capable of moving 

throughout river networks. In fact, many 

organisms, such as anadromous salmon, 

have complex life-cycles which involve 

migration through the river network, 

from headwaters to downstream rivers 

and oceans and back, over the course of 

their lives. In addition to providing 

critical habitat for complex life-cycle 

completion, covered tributaries provide 

refuge from predators and adverse 

physical conditions in rivers, and are 

reservoirs of genetic- and species-level 

diversity. Covered tributaries contribute 

materials to downstream food networks 

and supporting populations for aquatic 

species, including economically 

important species such as salmon. 

These effects occur even when the 

covered tributaries flow infrequently 

(such as ephemeral covered tributaries), 

and even when the covered tributaries 

are large distances from the traditional 

navigable waters, interstate waters, and 

the territorial seas (such as some 

headwater covered tributaries). 

Similarly, modified and constructed 

tributaries perform the same functions 

as natural tributaries, especially the 

conveyance of water that carries 

nutrients, pollutants, and other 

constituents, both good and bad, to 

traditional navigable waters, interstate 

waters, and the territorial seas. Modified 

and constructed covered tributaries also 

provide corridors for movement of 

organisms between headwaters and 

traditional navigable waters, interstate 

waters, and the territorial seas. The 

important effect—and thus the 

significant nexus—between a covered 

tributary and a traditional navigable 

water, interstate water, and the 

territorial sea is not broken where the 

covered tributary flows through a 

culvert or other structure. The scientific 

literature recognizes that features that 

convey water, whether they are natural, 

modified, or constructed, provide 

substantial connectivity between 

streams and downstream waters. For 

example, ditches that meet the 

definition of tributary and are not 

excluded quickly move water 

downstream to traditional navigable 

waters, interstate waters, and the 

territorial seas due to their often 

straightened and channelized nature, 

transporting downstream sediment, 

nutrients, and other materials. 

The CWA regulates and controls 

pollution at its source, in part because 

most pollutants do not remain at the site 

of the discharge, but instead flow and 

are washed downstream through the 

tributary system to endanger drinking 

water supplies, fisheries, and recreation 

areas. These fundamental facts about the 

movement of pollutants and the 

interconnected nature of the tributary 

system demonstrate why covered 

tributaries of traditional navigable 

waters, interstate waters, and the 

territorial seas, alone or in combination 

with other covered tributaries in a 

watershed, have a significant nexus 

with those downstream waters. Thus, in 

the rule the agencies assert CWA 

jurisdiction over all covered tributaries 

as defined. Those covered tributaries are 

‘‘waters of the United States’’ without 

the need for further analysis. 

b. Covered Adjacent Waters 

Based on the agencies’ review of the 

scientific literature and the law, the 

agencies determine that covered 

adjacent waters, as defined, have a 

significant nexus and are ‘‘waters of the 

United States.’’ The scientific literature, 

including the Science Report, 

consistently supports the conclusion 

that covered adjacent waters provide 

similar functions and work together to 

maintain the chemical, physical, and 

biological integrity of the downstream 

traditional navigable waters, interstate 

waters, and the territorial seas because 

of their hydrological and ecological 

connections to, and interactions with, 

those waters. Science demonstrates that 

this functional connectivity is 

particularly evident where covered 

adjacent waters are located within the 

floodplain of the traditional navigable 

water, interstate water, the territorial 

seas, covered tributary, or impoundment 

to which they are adjacent or are 

otherwise sufficiently proximate to 

waters with no floodplain, such as lakes 

and ponds. Location within the 

floodplain and proximity ensure that 

the aquatic functions performed by 

covered adjacent waters are effectively 

and consistently provided to 

downstream waters. See Technical 

Support Document. 

The agencies conclude that all waters 

meeting the definition of ‘‘adjacent’’ in 

the rule are similarly situated for 

purposes of analyzing whether they 

have a significant nexus to a traditional 

navigable water, interstate water, or the 

territorial sea. Based on a review of the 

scientific literature, the agencies 

conclude that these bordering, 

contiguous, or neighboring waters 

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provide similar functions and function 

together to significantly affect the 

chemical, physical, or biological 

integrity of traditional navigable waters, 

interstate waters, or the territorial seas. 

Further, because the definition of 

‘‘adjacent’’ considers both the functional 

relationships and the proximity of the 

waters (i.e., those that are located near 

traditional navigable waters, interstate 

waters, the territorial seas, 

impoundments, and covered 

tributaries), interpreting the term 

‘‘similarly situated’’ to include all 

covered adjacent waters, as defined in 

the rule, is informed by the science and 

is a reasonable interpretation of the 

scope of the statute. The geographic 

proximity of an ‘‘adjacent’’ water 

relative to the traditional navigable 

waters, interstate waters, the territorial 

seas, impoundments, and covered 

tributaries is indicative of the 

relationship to it, with many of its 

defining characteristics resulting from 

the movement of materials and energy 

between the categories of waters. The 

scientific literature supports that waters, 

including wetlands, ponds, lakes, 

oxbow lakes, and similar waters, that 

are ‘‘adjacent,’’ as defined in the rule, to 

traditional navigable waters, interstate 

waters, the territorial seas, 

impoundments, and covered tributaries, 

are integral parts of stream networks 

because of their ecological functions 

and how they interact with each other, 

and with downstream traditional 

navigable waters, interstate waters, or 

the territorial seas. 

Covered adjacent waters function 

together to maintain the chemical, 

physical, or biological health of 

traditional navigable waters, interstate 

waters, and the territorial seas to which 

they are directly adjacent or to which 

they are connected by the tributary 

system. This functional interaction can 

result from hydrologic connections or 

because covered adjacent waters can act 

as water storage areas holding damaging 

floodwaters or filtering harmful 

pollutants. These chemical, physical, 

and biological connections affect the 

integrity of downstream traditional 

navigable waters, interstate waters, and 

the territorial seas through the 

temporary storage and deposition of 

channel-forming sediment and woody 

debris, temporary storage of local 

groundwater sources of baseflow for 

downstream waters and their tributaries, 

and transformation and transport of 

organic matter. Covered adjacent waters 

improve water quality through the 

assimilation, transformation, or 

sequestration of pollutants, including 

excess nitrogen and phosphorus, and 

chemical contaminants such as 

pesticides and metals that can degrade 

downstream water integrity. In addition 

to providing effective buffers to protect 

downstream waters from pollution, 

covered adjacent waters form integral 

components of downstream food webs, 

providing nursery habitat for breeding 

fish and amphibians, colonization 

opportunities for stream invertebrates, 

and maturation habitat for stream 

insects. Covered adjacent waters serve 

an important role in the integrity of 

traditional navigable waters, interstate 

waters, and the territorial seas by 

subsequently releasing 

(desynchronizing) floodwaters and 

retaining large volumes of stormwater, 

sediment, nutrients, and contaminants 

that could otherwise negatively impact 

the condition or function of traditional 

navigable waters, interstate waters, and 

the territorial seas. 

Floodplain areas connect aquatic 

environments through both surface and 

shallow subsurface hydrologic 

flowpaths. Waters in these areas are 

therefore uniquely situated in 

watersheds to receive and process water 

that passes over densely vegetated areas 

and through subsurface zones before 

reaching streams and rivers. When 

contaminants reach a floodplain water, 

they can be sequestered in sediments, 

assimilated into wetland plants and 

animals, transformed into less harmful 

and/or mobile forms or compounds, or 

lost to the atmosphere. Wetlands located 

in floodplains store large amounts of 

sediment and organic matter from 

upstream and upland areas. In addition, 

the primary function of many floodplain 

wetlands in the Western United States 

is sediment exchange, which can 

transform materials and compounds 

temporarily on floodplains. 

Wetlands and other similar waters in 

floodplain areas act as buffers that are 

among the most effective tools for 

mitigating nonpoint source pollution. 

The literature shows that collectively, 

wetlands and other similar waters 

improve water quality through 

assimilation, transformation, or 

sequestration of nutrients, sediment, 

and other pollutants—such as pesticides 

and metals—that can affect downstream 

water quality. These pollutants enter 

floodplain wetlands from dry and wet 

atmospheric deposition, runoff from 

upland agricultural and urban areas, 

spray drift, subsurface water flows, 

outfalls, pipes, and ditches. 

Floodplain waters, including 

wetlands, can reduce flood peaks by 

storing and desynchronizing 

floodwaters. They can also maintain 

river baseflows by recharging alluvial 

aquifers. Many studies have 

documented the ability of floodplain 

wetlands to reduce flood pulses by 

storing excess water from streams and 

rivers. One review of wetland studies 

reported that floodplain wetlands 

reduced or delayed floods in 23 of 28 

studies. For example, peak discharges 

between upstream and downstream 

gaging stations on the Cache River in 

Arkansas were reduced 10–20 percent 

primarily due to floodplain water 

storage. 

Ecosystem function within a river 

system is driven by interactions 

between the physical environment and 

the diverse biological communities 

living within the river system. Wetlands 

in floodplains become important seed 

sources for the river network, especially 

if catastrophic flooding scours 

vegetation and seed banks in other parts 

of the channel. Movements of organisms 

that connect aquatic habitats and their 

populations, even across different 

watersheds, are important for the 

survival of individuals, populations, 

and species, and for the functioning of 

the river ecosystem. For example, lateral 

expansion and contraction of the river 

in its floodplain results in an exchange 

of matter and organisms, including fish 

populations that are adapted to use 

floodplain habitat for feeding and 

spawning during high water. The 

organisms that live within the 

hyporheic zone for these mid- and largesized river systems have a demonstrated 

connection outward to several miles 

within the floodplain. General field 

practice observations further indicate 

that covered adjacent waters with a 

close proximity have a significant nexus 

with the downstream waters. 

Waters adjacent to impoundments 

and covered tributaries are integrally 

linked to the chemical, physical, and 

biological functions of the waters to 

which they are adjacent and, through 

those waters, are integrally linked to the 

chemical, physical, and biological 

functions of the downstream traditional 

navigable waters, interstate waters, or 

the territorial seas. Thus, where waters 

are adjacent to impoundments or 

covered tributaries, they also have a 

significant nexus to the downstream 

traditional navigable waters, interstate 

waters, or the territorial seas. The 

important functions that covered 

adjacent waters perform that impact 

downstream traditional navigable 

waters, interstate waters, and the 

territorial seas and their integrated 

behavior with the tributary system 

demonstrate why all waters adjacent to 

traditional navigable waters, interstate 

waters, or the territorial seas as well as 

impoundments and covered tributaries, 

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covered adjacent wetlands in a 

watershed have a significant nexus with 

those downstream waters. 

Based on the science and their 

technical expertise and experience, the 

agencies determine it is appropriate to 

protect all covered adjacent waters 

because those waters are functioning as 

an integrated system with the 

downstream traditional navigable 

waters, interstate waters, or the 

territorial seas and significantly affect 

such downstream waters. Consequently, 

these waters are ‘‘adjacent’’ and 

therefore ‘‘waters of the United States’’ 

under the CWA. Covered adjacent 

waters are ‘‘waters of the United States’’ 

without the need for further analysis. 

3. Case-Specific Significant Nexus 

Determinations 

a. Two Exclusive Circumstances for 

Case-Specific Significant Nexus 

Determinations 

The rule identifies two exclusive 

circumstances under which a significant 

nexus determination is made on a casespecific basis to determine whether the 

water is a ‘‘water of the United States.’’ 

First, there are five subcategories of 

waters—Prairie potholes, Carolina and 

Delmarva bays, pocosins, western vernal 

pools in California, and Texas coastal 

prairie wetlands—that the agencies 

conclude must be analyzed ‘‘in 

combination’’ as ‘‘similarly situated ’’ 

waters when making a case-specific 

significant nexus analysis. Second, there 

are waters for which the agencies have 

made no conclusions with respect to 

which waters are ‘‘similarly situated’’ 

but for which a case-specific significant 

nexus analyses may be undertaken. The 

rule establishes that case-specific 

determinations may be made for waters 

located within the 100-year floodplain 

of a traditional navigable water, 

interstate water, or the territorial seas, 

and for waters located within 4,000 feet 

from the high tide line or the ordinary 

high water mark of traditional navigable 

waters, interstate waters, the territorial 

seas, impoundments, or tributaries. 

b. Summary of Rationale for ‘‘Similarly 

Situated’’ Determinations 

Based on the agencies’ expertise and 

experience and available literature and 

data, the agencies have determined that 

waters in the five subcategories of 

waters identified in paragraph (a)(7) are 

similarly situated and must be 

combined with other waters in the same 

subcategory located in the same 

watershed that drains to the nearest 

traditional navigable water, interstate 

water, or the territorial seas. See 

Technical Support Document. The 

scientific literature shows that these 

subcategories of waters are frequently 

located together in a complex or are 

otherwise closely co-located and 

perform similar functions. The agencies 

specifically sought comment in the 

proposal on options to address these 

five subcategories of waters, including 

whether waters in these subcategories 

should be found ‘‘similarly situated’’ by 

rule. 

Based on the body of scientific 

literature regarding the subcategories of 

waters specified in paragraph (a)(7) and 

their functions, the agencies determined 

that waters of the specified 

subcategories are similarly situated 

because they perform similar functions 

and they are located sufficiently close to 

each other to function together in 

affecting downstream waters and 

therefore reasonably be evaluated in 

combination with regard to their effects 

on the integrity of traditional navigable 

waters, interstate waters, or the 

territorial seas. The specified 

subcategories of waters perform similar 

functions as waters of the same 

subcategory in the same single point of 

entry watershed and collectively 

function together to affect a traditional 

navigable water, interstate water, or the 

territorial seas. Among the functions 

and relationships in the landscape the 

agencies considered to conclude that the 

subcategories are each similarly situated 

are the physical capacity of the waters 

to provide flood and sediment retention. 

In determining that the waters in each 

of the five subcategories are ‘‘similarly 

situated,’’ the agencies concluded that 

these subcategories of waters are colocated to each other or similar to the 

tributary system such that they have 

cumulative and additive effects on 

pollutant removal through parallel, 

serial, or sequential processing, such as 

the role of pocosins in maintaining 

water quality in estuaries. The 

subcategories of waters are sufficiently 

near each other or the tributary system 

to function as an integrated habitat that 

can support the life-cycle of a species or 

more broadly provide habitat to a large 

number of a single species. 

The SAB expressed support for the 

agencies’ option in the preamble of the 

proposed rule to identify certain 

subcategories of waters as similarly 

situated and highlighted these same five 

subcategories. It stated, ‘‘[t]here is also 

adequate scientific evidence to support 

a determination that certain 

subcategories and types of ‘other waters’ 

in particular regions of the United States 

(e.g., Carolina and Delmarva Bays, Texas 

coastal prairie wetlands, prairie 

potholes, pocosins, western vernal 

pools) are similarly situated (i.e., they 

have a similar influence on the physical, 

chemical and biological integrity of 

downstream waters and are similarly 

situated on the landscape) and thus 

could be considered waters of the 

United States. Furthermore, as the 

science continues to develop, other sets 

of wetlands may be identified as 

‘similarly situated.’ ’’ SAB 2014b at 3. 

The agencies concluded that the 

specific subcategories of waters listed in 

paragraph (a)(7) are similarly situated 

for purposes of a case-specific 

significant nexus based on the 

following: 

(i) Prairie potholes are a complex of 

glacially formed wetlands, usually 

occurring in depressions that lack 

permanent natural outlets that are found 

in the central United States and Canada. 

In the United States, they are found 

from central Iowa through western 

Minnesota, Montana, eastern South 

Dakota, and North Dakota. Prairie 

potholes demonstrate a wide range of 

hydrologic permanence; some hold 

permanent standing water and others 

are wet only in years with high 

precipitation. This in turn influences 

the diversity and structure of their 

biological communities. 

Prairie potholes generally accumulate 

and retain water effectively due to the 

low permeability of their underlying 

soil, which can modulate flow 

characteristics of nearby streams and 

rivers. One of the most noted hydrologic 

functions of Prairie potholes is water 

storage. Because most of the water 

outflow in Prairie potholes is via 

evapotranspiration, Prairie potholes can 

become water sinks, preventing flow to 

downstream waters. Prairie potholes 

also can accumulate chemicals in 

overland flow, thereby reducing 

chemical loading to other bodies of 

water. When Prairie potholes are 

artificially connected to streams and 

lakes through drainage, they become 

sources of water and chemicals to 

downstream waters. Prairie potholes 

also support a community of highly 

mobile organisms, from plants to 

invertebrates that move among Prairie 

potholes and that can biologically 

connect the entire complex to the river 

network. 

Prairie potholes can be highly 

connected to other Prairie potholes via 

shallow subsurface connections and via 

surface hydrologic connections during 

the wet season. They can also be 

connected to the stream network via 

surface and shallow subsurface 

connections. Intense precipitation 

events or high cumulative precipitation 

over one or more seasons can result in 

temporary hydrologic connectivity 

between Prairie potholes and from 

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Prairie potholes to the tributary system 

via ‘‘fill-and-spill’’ events. 

Their density across the landscape 

varies from region to region as the result 

of several factors, including patterns of 

glacial movement, topography, and 

climate. In some parts of the region, 

prairie pothole density is very high. 

Though their density varies across the 

landscape, Prairie potholes often act as 

a complex. They have similar functions 

that can collectively impact downstream 

waters. 

Prairie potholes have been 

determined to be similarly situated 

based on the characteristics of Prairie 

potholes, including their density on the 

landscape, their interaction and 

formation as a complex of wetlands and 

open waters, their connections to each 

other and the tributary network, and 

their similar functions. In addition, their 

chemical, physical, and biological 

connections to downstream waters and 

the strength of their effects on the 

chemical, physical, or biological 

integrity of a traditional navigable 

water, interstate water, or the territorial 

seas support this determination that 

Prairie potholes are similarly situated by 

rule. 

(ii) Carolina and Delmarva bays are 

ponded depressional wetlands that 

occur along the Atlantic coastal plain 

from northern Florida to New Jersey. 

Though Carolina and Delmarva bays are 

from the same category of wetland and 

perform similar functions, they are 

located in different parts of the Atlantic 

coastal plain and thus have unique 

names. Carolina bays are most abundant 

in North Carolina and South Carolina, 

while Carolina bays found in the 

Delmarva Peninsula are commonly 

referred to as Delmarva bays or 

Delmarva potholes. 

Most bays receive water through 

precipitation, lose water through 

evapotranspiration, and lack natural 

surface outlets. Both mineral-based and 

peat-based bays have shown 

connections to shallow groundwater. 

Bays typically are in proximity to each 

other or to streams, providing for 

hydrologic connections to each other 

and to downstream waters in large rain 

events via overland flow or shallow 

subsurface connections. Some Delmarva 

bays have surface water connections to 

the Chesapeake Bay. In addition, human 

channeling and ditching of the bays are 

widespread and create surface 

connections to other waters, including 

the tributary system and estuaries. 

These ditches commonly connect the 

surface water of bays to other bays that 

are lower on the landscape, and 

ultimately, to streams. 

The hydrology in bays allow for 

denitrification (chemical and biological 

processes that remove nitrogen from 

water), which can reduce the amount of 

nitrate in both groundwater and 

downstream surface waters. Because 

bays are frequently connected 

chemically to downstream waters 

through ditches, they can be sources of 

sediment and nutrients to downstream 

waters. Where they are not connected 

via confined surface connections, bays 

can act as sediment and nutrient sinks. 

Fish are reported in bays that are 

known to dry out, indirectly 

demonstrating surficial connections. 

Amphibians and reptiles use bays 

extensively for breeding and for rearing 

young. These animals can disperse 

many feet on the landscape and can 

colonize, or serve as a food source to, 

downstream waters. Similarly, bays 

foster abundant insects that have the 

potential to become part of the 

downstream food chain. Humans have 

ditched and channelized a high 

percentage of bays, creating new surface 

connections to downstream waters and 

allowing transfer of nutrients, sediment, 

and other pollutants, such as 

methylmercury. 

Carolina and Delmarva bays can occur 

in high density on the landscape and 

can act as a wetlands complex. Bays 

have similar functions to other bays and 

cumulatively these functions can impact 

downstream waters. 

The agencies conclude that Carolina 

and Delmarva bays are similarly 

situated based on their close proximity 

to each other and the tributary network, 

their hydrologic connections to each 

other and the tributary network, their 

density on the landscape, and their 

similar functions. 

(iii) The word pocosin comes from the 

Algonquin Native American word for 

‘‘swamp on a hill,’’ and these evergreen 

shrub and tree-dominated wetlands are 

found from Virginia to northern Florida, 

but mainly in North Carolina. Typically, 

there is no standing water present in 

these peat-accumulating wetlands, but a 

shallow water table leaves the soil 

saturated for much of the year. They 

range in size from less than an acre to 

several thousand acres. The slow 

movement of water through the dense 

organic matter in pocosins removes 

excess nutrients deposited by rainwater. 

The same organic matter also acidifies 

the water. This water is slowly released 

to downstream waters and estuaries, 

where it helps to maintain the proper 

salinity, nutrients, and acidity. 

Because pocosins are the topographic 

high areas on the regional landscape, 

they serve as the source of water for 

downstream waters. Pocosins often have 

seasonal connections to drainageways 

leading to estuaries or are adjoining 

other wetlands draining into perennial 

streams or estuaries. Other pocosins 

have been ditched and are directly 

connected to streams. 

The agencies conclude that pocosins 

are similarly situated based on their 

close proximity to each other and the 

tributary network, their hydrologic 

connections to each other and the 

tributary network, their density on the 

landscape, and their similar functions. 

(iv) Western vernal pools are shallow, 

seasonal wetlands that accumulate 

water during colder, wetter months and 

gradually dry up during warmer, drier 

months. Western vernal pools are 

seasonal wetlands from the Pacific 

Northwest to northern Baja California, 

Mexico associated with topographic 

depressions, soils with poor drainage, 

mild, wet winters and hot, dry 

summers. The agencies have determined 

that California vernal pools are 

‘‘similarly situated.’’ 

Because their hydrology and ecology 

are so tightly coupled with the local and 

regional geological processes that 

formed them, western vernal pools in 

California typically occur within 

‘‘vernal pool landscapes,’’ or complexes 

of pools in which swales connect pools 

to each other and to seasonal streams. 

Some common findings about the 

hydrologic connectivity of western 

vernal pools include evidence for 

temporary or permanent outlets, 

frequent filling and spilling of higher 

pools into lower elevation swales and 

stream channels, and conditions 

supporting subsurface flows through 

pools without perched aquifers to 

nearby streams. 

Non-glaciated vernal pools in western 

states are reservoirs of biodiversity and 

can be connected genetically to other 

locations and aquatic habitats through 

wind- and animal-mediated dispersal. 

Animals and other organisms can move 

between western vernal pool complexes 

and streams. Insects and zooplankton 

can be flushed from vernal pools into 

streams and other waters during periods 

of overflow, carried by animal vectors 

(including humans), or dispersed by 

wind. 

The agencies conclude that western 

vernal pools in California are similarly 

situated based on their close proximity 

to each other and the tributary network, 

their interaction and arrangement as a 

complex of wetlands, their hydrologic 

connections to each other and the 

tributary network, their density on the 

landscape, and their similar functions. 

(v) Along the Gulf of Mexico from 

western Louisiana to south Texas, 

freshwater wetlands occur as a mosaic 

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of depressions, ridges, intermound flats, 

and mima mounds. These coastal prairie 

wetlands were formed thousands of 

years ago by ancient rivers and bayous 

and once occupied almost a third of the 

landscape around Galveston Bay, Texas. 

The term Texas coastal prairie wetlands 

is not used uniformly in the scientific 

literature but encompasses Texas prairie 

pothole (freshwater depressional 

wetlands) and marsh wetlands that are 

described in some studies that occur on 

the Lissie and Beaumont Geological 

Formations, and the Ingleside Sand. 

Texas coastal prairie wetlands are 

locally abundant and in close proximity 

to other coastal prairie wetlands and 

function together cumulatively. 

Collectively as a complex, Texas coastal 

prairie wetlands can be geographically 

and hydrologically connected to each 

other via swales and connected to 

downstream waters, contributing flow to 

those downstream waters. 

Cumulatively, these wetlands can 

control nutrient release levels and rates 

to downstream waters, as they capture, 

store, transform, and pulse releases of 

nutrients to those waters. 

The agencies conclude that Texas 

coastal prairie wetlands are similarly 

situated based on their close proximity 

to each other and the tributary network, 

their hydrologic connections to each 

other and the tributary network, their 

interaction and formation as a complex 

of wetlands, their density on the 

landscape, and their similar functions. 

IV. Definition of ‘‘Waters of the United 

States’’ 

A. Summary of the Rule 

The rule revises the existing 

definition of ‘‘waters of the United 

States’’ consistent with the CWA, 

science, the agencies’ technical 

expertise and experience, and Supreme 

Court decisions. The final rule 

establishes categories of waters that are 

jurisdictional and other categories of 

waters that are excluded, as well as 

categories of waters and wetlands that 

require a case-specific significant nexus 

evaluation to determine if they are 

‘‘waters of the United States’’ and 

covered by the CWA. The rule also 

provides definitions for key terms used 

in the regulation. The final rule retains 

much of the structure of the agencies’ 

longstanding definition of ‘‘waters of the 

United States,’’ and many of the existing 

provisions of that definition where 

revisions are not required in light of 

Supreme Court decisions or other bases 

for revision. All existing exclusions 

from the definition of ‘‘waters of the 

United States’’ are retained, and several 

exclusions reflecting longstanding 

agencies’ practice are added to the 

regulation for the first time. 

The agencies define ‘‘waters of the 

United States’’ in paragraph (a) of the 

rule for all sections of the CWA to 

include the traditional navigable waters 

(a)(1), interstate waters (a)(2), the 

territorial seas (a)(3), impoundments of 

jurisdictional waters (a)(4), covered 

tributaries (a)(5), and covered adjacent 

waters (a)(6). Waters in these categories 

are jurisdictional ‘‘waters of the United 

States’’ by rule—no additional analysis 

is required. This eliminates the need to 

make a case-specific significant nexus 

determination for covered tributaries or 

covered adjacent waters because the 

agencies determined that these waters 

have a significant nexus to waters 

identified in (a)(1) through (a)(3) of the 

rule and thus are ‘‘waters of the United 

States.’’ The agencies emphasize that 

the finding of jurisdiction for these 

covered tributaries and covered adjacent 

waters was not based on the mere 

connection of a water body to 

downstream waters, but rather a 

determination that the nexus, alone or 

in combination with other of these 

covered tributaries or covered adjacent 

waters in the watershed, is significant. 

The agencies exclude specified waters 

from the definition of ‘‘waters of the 

United States’’ in paragraph (b) of the 

rule. The rule makes no substantive 

change to the existing exclusion for 

waste treatment systems designed 

consistent with the requirements of the 

CWA and makes no change to the 

existing exclusion for prior converted 

cropland. The rule excludes for the first 

time certain waters and features over 

which the agencies have generally not 

asserted CWA jurisdiction, as well as 

groundwater, which the agencies have 

never interpreted to be a ‘‘water of the 

United States’’ under the CWA. 

Codifying these longstanding practices 

supports the agencies’ goals of 

providing greater clarity, certainty, and 

predictability for the regulated public 

and regulators, and makes rule 

implementation clear and practical. 

This final rule provides clear 

exclusions for certain types of ditches. 

The final rule also expressly excludes 

stormwater control features created in 

dry land and certain wastewater 

recycling structures created in dry land. 

Waters and features that are excluded 

under paragraph (b) of the rule cannot 

be determined to be jurisdictional under 

any of the categories in the rule under 

paragraph (a). 

In addition to waters that are 

categorically ‘‘waters of the United 

States’’ or categorically excluded under 

paragraphs (a) and (b), the rule 

identifies certain waters that can be 

‘‘waters of the United States’’ only 

where a case-specific determination has 

found a significant nexus between the 

water and traditional navigable waters, 

interstate waters, or the territorial seas. 

First, paragraph (a)(7) of the rule 

specifies five types of waters (Prairie 

potholes, Delmarva and Carolina bays, 

pocosins, western vernal pools in 

California, and Texas coastal prairie 

wetlands) that the agencies have 

determined to be ‘‘similarly situated,’’ 

and thus are to be considered in 

combination in a significant nexus 

analysis. Second, paragraph (a)(8) 

specifies that waters located within the 

100-year floodplain of a traditional 

navigable water, interstate water, or the 

territorial seas, and waters located 

within 4,000 feet from the high tide line 

or the ordinary high water mark of 

traditional navigable waters, interstate 

waters, the territorial seas, 

impoundments, or covered tributaries 

may be found to have a significant 

nexus on a case-specific basis, but the 

agencies have not made a determination 

that the waters are ‘‘similarly situated.’’ 

As a result, a significant nexus analysis 

for these waters will include a casespecific assessment of whether there are 

any similarly situated waters, as well as 

whether the water, alone or in 

combination with any waters 

determined to be similarly situated, has 

a significant nexus to a traditional 

navigable water, interstate water, or 

territorial sea. The rule outlines at 

(c)(5)(i)–(ix) functions relevant to these 

case-specific significant nexus analyses. 

Paragraph (c) of the rule provides 

definitions for key terms used in the 

regulation. Some of these are unchanged 

from the current regulations, including 

the definitions for ‘‘wetlands’’ at (c)(4), 

‘‘ordinary high water mark’’ at (c)(6) and 

‘‘high tide line’’ at (c)(7), although the 

latter two are existing, unchanged 

Corps’ definitions added to EPA’s 

regulations for the first time. 33 CFR 

328.3(d)–(e). The rule also defines for 

the first time ‘‘tributary’’ and 

‘‘tributaries’’ at (c)(3), ‘‘neighboring’’ (an 

aspect of adjacency) at (c)(2), and 

‘‘significant nexus’’ at (c)(5). 

This rule is effective on August 28, 

2015. Under existing Corps’ regulations 

and guidance, approved jurisdictional 

determinations generally are valid for 

five years. The agencies will not reopen 

existing approved jurisdictional 

determinations unless requested to do 

so by the applicant or, consistent with 

existing Corps’ guidance, unless new 

information warrants revision of the 

determination before the expiration 

period. Similarly, consistent with 

existing regulations and guidance, 

approved jurisdictional determinations 

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associated with issued permits and 

authorizations are valid until the 

expiration date of the permit or 

authorization. 

As a general matter, the agencies’ 

actions are governed by the rule in effect 

at the time the agency issues a 

jurisdictional determination or permit 

authorization, not by the date of a 

permit application, request for 

authorization, or request for a 

jurisdictional determination. However, 

any jurisdictional determinations issued 

prior to the effective date of the rule and 

jurisdictional determinations associated 

with permit applications deemed by the 

Corps to have been complete on the date 

this rule is published in the Federal 

Register, including complete preconstruction notifications, will be made 

consistent with the existing rule, unless 

the applicant requests that its approved 

jurisdictional determination or permit 

authorization be decided after the 

effective date of the new rule. Reliance 

on preliminary jurisdictional 

determinations is also not affected by 

the issuance of this rule. All other 

jurisdictional determinations and 

requests for authorization requiring an 

approved jurisdictional determination 

issued on or after the effective date of 

this rule will be made consistent with 

this rule. 

It is important to emphasize that the 

agencies do not anticipate being able to 

complete new jurisdictional 

determinations submitted after this rule 

is published before it becomes effective. 

As a result, requesters seeking 

jurisdictional determinations after the 

rule is published should expect the 

determination will be made consistent 

with this rule. The agencies recognize 

there are a number of requests for 

permit applications and requests for 

jurisdictional determinations pending at 

any time. The agencies expect only a 

small portion of those pending actions 

will require additional information from 

or work by the requester. As described 

in the Economic Analysis, the vast 

majority of requests address streams and 

adjacent wetlands, and the agencies do 

not expect new information or work will 

be needed to complete those requests. If 

any additional information is needed to 

assess these requests, the agencies will 

work proactively with permit applicants 

to reduce potential short-term 

disruptions in the permit process that 

may be associated with the rule. 

B. Traditional Navigable Waters 

The existing regulations include 

within the definition of ‘‘waters of the 

United States’’ all waters that are 

currently used, or were used in the past, 

or may be susceptible to use in 

interstate or foreign commerce, 

including all waters which are subject to 

the ebb and flow of the tide. See, e.g., 

33 CFR 328.3(a)(1); 40 CFR 230.3(s)(1); 

40 CFR 122.2 (‘‘waters of the U.S.’’). 

This paragraph of the regulation 

encompasses those waters that are often 

referred to as ‘‘traditional navigable 

waters.’’ The rule does not make any 

changes to this paragraph of the 

regulation. 

For purposes of CWA jurisdiction, 

waters will be considered traditional 

navigable waters, and jurisdictional 

under (a)(1) of the rule, if they: 

• Are subject to section 9 or 10 of the 

Rivers and Harbors Appropriations Act 

of 1899; 

• Have been determined by a Federal 

court to be navigable-in-fact under 

Federal law; 

• Are waters currently being used for 

commercial navigation, including 

commercial waterborne recreation (for 

example, boat rentals, guided fishing 

trips, or water ski tournaments); 

• Have historically been used for 

commercial navigation, including 

commercial waterborne recreation; or 

• Are susceptible to being used in the 

future for commercial navigation, 

including commercial waterborne 

recreation. 

See Technical Support Document; 

‘‘U.S. Army Corps of Engineers 

Jurisdictional Determination Form 

Instructional Guidebook Appendix D, 

‘Traditional Navigable Waters,’’’ 

available at: http://

www.usace.army.mil/Portals/2/docs/

civilworks/regulatory/cwa_guide/app_

d_traditional_navigable_waters.pdf. 

The agencies received several 

comments on the scope of traditional 

navigable waters. Some commenters 

observed that ‘‘traditional navigable 

waters’’ as a jurisdictional category is 

not based in science. Several 

commenters thought that the final rule 

should specify considerations to be 

taken into account when determining if 

a water is susceptible to being used in 

future commercial navigation. The 

agencies have not revised the regulation 

to address susceptibility, but observe 

that case law has provided a number of 

considerations and examples that are 

described further in the Technical 

Support Document and are reflected in 

longstanding agencies’ practice. 

C. Interstate Waters 

The existing regulations define 

‘‘waters of the United States’’ to include 

interstate waters, including interstate 

wetlands. The rule does not change that 

provision of the regulations. Therefore, 

interstate waters are ‘‘waters of the 

United States’’ even if they are not 

navigable for purposes of Federal 

regulation under (a)(1) and do not 

connect to such waters. Moreover, the 

rule protects impoundments of 

interstate waters, tributaries to interstate 

waters, waters adjacent to interstate 

waters, and waters adjacent to covered 

tributaries of interstate waters because 

they have a significant nexus to 

interstate waters. Protection of these 

waters is thus critical to protecting 

interstate waters. 

The language of the CWA indicates 

that Congress intended the term 

‘‘navigable waters’’ to include interstate 

waters without imposing a requirement 

that they be traditional navigable waters 

themselves or be connected to 

traditional navigable waters. The 

precursor statutes to the CWA subjected 

interstate waters and their tributaries to 

Federal jurisdiction. The text of the 

CWA, specifically CWA section 303, 

which establishes ongoing requirements 

for interstate waters, in conjunction 

with the definition of navigable waters, 

provides clear indication of Congress’ 

intent to protect interstate waters that 

were previously subject to Federal 

regulation. Other provisions of the 

statute provide additional textual 

evidence of the scope of the primary 

jurisdictional term of the CWA. 

The agencies also have a longstanding 

regulatory interpretation that interstate 

waters fall within the scope of CWA 

jurisdiction. The agencies’ 

interpretation was promulgated 

contemporaneously with the passage of 

the CWA and is consistent with the 

statutory and legislative history of the 

CWA. Furthermore, the Supreme Court 

has never addressed the CWA’s 

coverage of interstate waters, and it is 

not reasonable to read its decisions in 

SWANCC and Rapanos to question the 

jurisdictional status of interstate waters 

or to impose additional jurisdictional 

requirements on interstate waters. The 

assertion of jurisdiction over interstate 

waters is based on the statute and under 

predecessor statutes where ‘‘interstate 

waters’’ were defined as all rivers, lakes, 

and other waters that flow across, or 

form a part of, state boundaries. Pub. L. 

80–845, sec. 10, 62 Stat. 1155, at 1161 

(1948). The agencies will continue to 

implement the provision consistent 

with the intent of Congress. For 

additional discussion of the agencies’ 

interpretation of the CWA with respect 

to interstate waters, see Appendix B of 

the proposed rule and the Technical 

Support Document. 

It is reasonable to assert jurisdiction 

over tributaries, adjacent waters, and 

waters that have a significant nexus to 

interstate waters consistent with the 

framework set forth in Justice Kennedy’s 

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opinion in Rapanos for establishing 

jurisdiction over waters with a 

significant nexus to traditional 

navigable waters. Waters and wetlands 

with a significant nexus to traditional 

navigable waters and interstate waters 

have important beneficial effects on 

those waters, and by recognizing that 

polluting or destroying waters with a 

significant nexus can harm downstream 

jurisdictional waters. Traditional 

navigable waters and interstate waters 

cannot be protected without also 

protecting the waters that have a 

significant nexus to those waters as 

identified in the rule. The rule thus 

defines ‘‘waters of the United States’’ to 

include tributaries to interstate waters, 

waters adjacent to interstate waters, 

waters adjacent to tributaries of 

interstate waters, and other waters that 

have a significant nexus to interstate 

waters. 

The agencies received a number of 

comments on interstate waters. Some 

commenters asserted that interstate 

waters required a significant nexus to a 

traditional navigable water in order to 

be jurisdictional after Rapanos. The 

agencies disagree for the reasons 

described above, in Appendix B to the 

proposed rule, and in the Technical 

Support Document. 

D. Territorial Seas 

The CWA and its existing regulations 

include ‘‘the territorial seas’’ as a ‘‘water 

of the United States.’’ The rule makes no 

changes to that provision of the 

regulation other than to change the 

ordering to earlier in the regulation. The 

CWA defines ‘‘navigable waters’’ to 

include ‘‘the territorial seas’’ at section 

502(7). The CWA goes on to define the 

‘‘territorial seas’’ in section 502(8) as 

‘‘the belt of the seas measured from the 

line of ordinary low water along that 

portion of the coast which is in direct 

contact with the open sea and the line 

marking the seaward limit of inland 

waters, and extending seaward a 

distance of three miles.’’ The territorial 

seas establish the seaward limit of 

‘‘waters of the United States.’’ The 

territorial seas are clearly covered by the 

CWA (they are also traditional navigable 

waters), and it is reasonable to protect 

their covered tributaries and covered 

adjacent waters. 

Although some comments addressed 

the definition of ‘‘territorial seas’’ 

provided in the CWA suggesting that the 

distance thresholds be revised to reflect 

other resource statutes, the agencies do 

not have authority to revise statutory 

language. 

E. Impoundments 

The existing regulations provide that 

impoundments of ‘‘waters of the United 

States’’ remain ‘‘waters of the United 

States,’’ and the rule does not make any 

changes to the existing regulatory 

language. 

Impoundments are jurisdictional 

because an impoundment of a ‘‘water of 

the United States’’ remains a ‘‘water of 

the United States,’’ and because 

scientific literature demonstrates that 

impoundments continue to significantly 

affect the chemical, physical, or 

biological integrity of downstream 

traditional navigable waters, interstate 

waters, and the territorial seas. See 

Technical Support Document. The 

Supreme Court has confirmed that 

damming or impounding a ‘‘water of the 

United States’’ does not make the water 

non-jurisdictional. See S. D. Warren Co. 

v. Maine Bd. of Envtl. Prot., 547 U.S. 

370, 379 n.5 (2006) (‘‘[N]or can we agree 

that one can denationalize national 

waters by exerting private control over 

them.’’). Similarly, when presented with 

a tributary to the Snake River which 

flows only about two months per year 

because of an irrigation diversion 

structure installed upstream, the Ninth 

Circuit noted ‘‘it is doubtful that a mere 

man-made diversion would have turned 

what was part of the waters of the 

United States into something else and, 

thus, eliminated it from national 

concern.’’ U.S. v. Moses, 496 F.3d 984, 

988 (9th Cir. 2007), cert. denied, 554 

U.S. 918 (2008). As a matter of policy 

and law, impoundments do not defederalize a water, even where there is 

no longer flow below the impoundment. 

The agencies have analyzed stream 

networks, above and below 

impoundments, for connection to 

downstream traditional navigable 

waters, interstate waters, or the 

territorial seas. Scientific literature, as 

well as the agencies’ scientific and 

technical expertise and experience 

confirm that impoundments have 

chemical, physical, and biological 

effects on downstream waters. See 

Technical Support Document. 

The agencies also note that an 

impoundment of a water that is not a 

‘‘water of the United States’’ can become 

jurisdictional if, for example, the 

impounded waters become navigable-infact and covered under paragraph (a)(1) 

of the rule. 

By their nature, impoundments of 

jurisdictional waters would also often 

meet the definition of ‘‘adjacent 

waters,’’ as they are typically bordering 

or contiguous. Impoundments of 

‘‘waters of the United States’’ are per se 

jurisdictional under paragraph (a)(4) of 

the rule without the need to determine 

if they are also adjacent under 

paragraph (a)(6). However, as described 

in section IV.G below, ‘‘adjacent 

waters,’’ as defined, have a significant 

nexus to traditional navigable waters, 

interstate waters, or the territorial seas, 

which bolsters the agencies’ 

determination that impoundments of 

‘‘waters of the United States’’ remain 

‘‘waters of the United States.’’ 

Impoundments also may be one of the 

waters through which tributaries 

indirectly contribute flow to a 

traditional navigable water, interstate 

water, or territorial sea. As a matter of 

law and science, an impoundment does 

not cut off a connection between 

upstream tributaries and a downstream 

traditional navigable water, interstate 

water, or territorial sea, so covered 

tributaries above the impoundment are 

still considered a tributary to 

downstream traditional navigable 

waters, interstate waters, or the 

territorial seas even where the flow of 

water might be impeded due to the 

impoundment. See paragraph (a)(5). 

The agencies received comments on 

impoundments, which generally 

explored the impacts of impoundments 

on connectivity to downstream waters. 

For the reasons described above and in 

the Technical Support Document, the 

agencies concluded that impoundments 

of ‘‘waters of the United States’’ remain 

‘‘waters of the United States.’’ 

F. Tributaries 

The existing definition of ‘‘waters of 

the United States’’ regulates all 

tributaries without qualification. The 

final rule protects only waters that have 

a significant effect on the integrity of 

traditional navigable waters, interstate 

waters, or the territorial seas. The rule 

establishes a definition of ‘‘tributary,’’ 

and provides that a water meeting the 

definition of tributary, unless it is 

excluded under paragraph (b), is a 

‘‘water of the United States’’ without the 

need for a separate case-specific 

significant nexus evaluation. As 

explained in Section III above, covered 

tributaries and the functions they 

provide, alone or in combination with 

other tributaries in the watershed, 

significantly affect the chemical, 

physical, and biological integrity of 

traditional navigable waters, interstate 

waters, or the territorial seas. See also 

Technical Support Document. This 

section describes the provisions of the 

rule addressing tributaries and changes 

made to the provisions in the proposed 

rule based on public comments. 

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1. What are the provisions in the rule? 

The rule defines ‘‘tributary’’ by 

emphasizing the physical characteristics 

created by sufficient volume, frequency 

and duration of flow, and that the water 

contributes flow, either directly or 

through another water, to a traditional 

navigable water, interstate water, or the 

territorial seas. This definition is based 

on the best available science, intent of 

the CWA, and case law, and is 

consistent with current practice. As 

mentioned above in Section III, the 

Science Report concludes that ‘‘[t]he 

scientific literature unequivocally 

demonstrates that streams, individually 

or cumulatively, exert a strong influence 

on the integrity of downstream waters.’’ 

Science Report at ES–2. 

First, to meet the rule’s definition of 

‘‘tributary,’’ a water must flow directly 

or through another water or waters to a 

traditional navigable water, interstate 

water, or the territorial seas. Waters 

through which a tributary may 

contribute flow indirectly include, for 

example, impoundments, wetlands, 

lakes, and other tributaries. A tributary 

may contribute flow through any 

number of downstream waters, 

including non-jurisdictional features, 

such as a ditch excluded under 

paragraph (b) of the rule, and 

jurisdictional waters that are not 

tributaries, such as an adjacent 

wetland—but it must be part of a 

tributary system that eventually flows to 

a traditional navigable water, an 

interstate water, or the territorial seas. 

This limitation on what constitutes a 

tributary for purposes of this rule is 

fundamental. If a water is not part of the 

tributary system of a traditional 

navigable water, interstate water, or the 

territorial seas, it does not meet the 

definition of ‘‘tributary’’ and is not 

jurisdictional under this provision of 

the rule. For example, an intermittent 

stream that exists wholly within one 

state, is not itself a traditional navigable 

water, and whose flows eventually ends 

without connecting to a traditional 

navigable water, interstate water, or the 

territorial seas is not a ‘‘water of the 

United States’’ as a ‘‘tributary’’ for 

purposes of this rule. To determine 

whether a water meets this aspect of the 

definition, the connection can be traced 

using direct observation, U.S. Geological 

Survey (USGS) data, stream datasets 

such as the National Hydrography 

Dataset, aerial photography or other 

reliable remote sensing information, or 

other appropriate information. 

Under the rule, flow in the tributary 

may be perennial, intermittent, or 

ephemeral. The agencies received 

comments suggesting that the final rule 

provide definitions for the terms 

ephemeral flow, intermittent flow, and 

perennial flow. The agencies considered 

the request and determined that there 

was no need to include a definition 

since they are commonly used scientific 

terms. Longstanding agencies’ practice 

considers perennial streams as those 

with flowing water year-round during a 

typical year, with groundwater or 

contributions of flow from higher in the 

stream or river network as primary 

sources of water for stream flow. 

Intermittent streams are those that have 

both precipitation and groundwater 

providing part of the stream’s flow, and 

flow continuously only during certain 

times of the year (e.g., during certain 

seasons such as the rainy season). 

Ephemeral streams have flowing water 

only in response to precipitation events 

in a typical year, and are always above 

the water table. Precipitation can 

include rainfall as well as snowmelt. 

Science shows that tributaries regardless 

of flow duration are very effective at 

transporting pollutants downstream, 

such as excess nutrients and sediment, 

which impact the integrity and 

character of traditional navigable 

waters, interstate waters, and the 

territorial seas. See Technical Support 

Document. 

Second, the rule requires two physical 

indicators of flow: There must be a bed 

and banks and an indicator of ordinary 

high water mark. This definition of 

‘‘tributary’’ includes only those waters 

the agencies have concluded are the 

type of waters that the CWA was 

intended to protect and which either 

individually or in combination with 

other covered tributaries in the 

watershed have a significant nexus to a 

traditional navigable water, interstate 

water, or the territorial seas. Thus, the 

agencies are not defining ‘‘waters of the 

United States’’ to include all streams 

that might be considered ‘‘tributaries’’ 

in the general scientific literature. To 

provide additional clarity and for ease 

of use for the public, the agencies are 

including the Corps’ existing definition 

of ordinary high water mark in EPA’s 

regulations as well. Under that existing 

Corps regulation, ordinary high water 

mark indicators include characteristics 

such as shelving, scour, changes in soil 

characteristics, and destruction of 

terrestrial vegetation, among others. 

A bed and banks and other indicators 

of ordinary high water mark are 

physical indicators of water flow and 

are only created by sufficient and 

regular intervals of flow. These physical 

indicators can be created by perennial, 

intermittent, and ephemeral flows. See 

Technical Support Document. For 

purposes of the rule, ‘‘bed and banks’’ 

means the substrate and sides of a 

channel between which flow is 

confined. The banks constitute a break 

in slope between the edge of the bed 

and the surrounding terrain, and may 

vary from steep to gradual. Existing 

Corps regulations define ordinary high 

water mark as the line on the shore 

established by the fluctuations of water 

and indicated by physical 

characteristics such as a clear, natural 

line impressed on the banks, shelving, 

changes in the character of soil, 

destruction of terrestrial vegetation, the 

presence of litter and debris, or other 

appropriate means that consider the 

characteristics of the surrounding areas. 

33 CFR 328.3(e). That definition is not 

changed by the rule and is added to 

EPA’s regulations. 

Current Corps regulations and 

guidance identify bed and banks as 

indicators of the ordinary high water 

mark. The definition of ‘‘tributary’’ in 

this rule requires the presence of a bed 

and banks and an additional indicator of 

ordinary high water mark such as 

staining, debris deposits, or other 

indicator identified in the rule or agency 

guidance. In many tributaries, the bed is 

that part of the channel below the 

ordinary high water mark, and the banks 

often extend above the ordinary high 

water mark. For other tributaries, such 

as those that are incised, changes in 

vegetation, changes in sediment 

characteristics, staining, or other 

ordinary high water mark indicators 

may be found within the banks. In 

concrete-lined channels, the concrete 

acts as the bed and banks and can have 

other ordinary high water mark 

indicators such as staining and debris 

deposits. Indicators of an ordinary high 

water mark may vary from region to 

region across the country. See Technical 

Support Document. 

Other evidence, besides direct field 

observation, may establish the presence 

of bed and banks and another indicator 

of ordinary high water mark. The 

agencies currently use many tools in 

identifying tributaries and will continue 

to rely on their experience and expertise 

in identifying the presence of a bed and 

banks and ordinary high water mark. 

For example, several reliable, wellestablished remote sensing sources of 

information or mapping can assist to 

establish the presence of water that 

contributes flow to a traditional 

navigable water, interstate water, or the 

territorial seas and provide evidence 

regarding the presence of a bed and 

banks and another indicator of ordinary 

high water mark. Among the types of 

remote sensing or mapping information 

that can assist in establishing the 

presence of water are USGS topographic 

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11Stream order is a method for stream 

classification based on relative position within a 

river network, when streams lacking upstream 

tributaries (i.e., headwater streams) are first-order 

streams and the junction of two streams of the same 

order results in an increase in stream order (i.e., two 

first-order streams join to form a second-order 

stream, and so on). When streams of different orders 

join, the order of the larger stream is retained. See 

Science Report and Technical Support Document. 

data, the USGS National Hydrography 

Dataset (NHD), Natural Resources 

Conservation Service (NRCS) Soil 

Surveys, and State or local stream maps, 

as well as the analysis of aerial 

photographs, and light detection and 

ranging (also known as LIDAR) data, 

and desktop tools that provide for the 

hydrologic estimation of a discharge 

sufficient to create an ordinary high 

water mark, such as a regional 

regression analysis or hydrologic 

modeling. These sources of information 

can sometimes be used independently 

to infer the presence of a bed and banks 

and another indicator of ordinary high 

water mark, or where they correlate, can 

be used to reasonably conclude the 

presence of a bed and banks and 

ordinary high water mark. 

Both the USGS topographic data and 

the NHD data assist to delineate 

tributaries to traditional navigable 

waters, interstate waters, or the 

territorial seas. Where one or both of 

these sources have indicated a ‘‘blue 

line stream,’’ there is an indication that 

the tributary could exhibit a bed and 

banks and another indicator of ordinary 

high water mark. Where this 

information is combined with stream 

order,11 more certainty can result. For 

example, a water that is a second-order 

stream will be more likely to exhibit a 

bed and banks and another indicator of 

ordinary high water mark as compared 

to a first-order stream. This information 

will vary in validity in different parts of 

the country, so care will be taken to 

evaluate additional information prior to 

reasonably concluding a bed and banks 

or other indicators of ordinary high 

water mark are associated with the 

stream. This will be particularly true for 

first-order streams and for many streams 

in the arid portions of the country. 

Supporting information that can be used 

to conclude the presence of a bed and 

banks and another indicator of ordinary 

high water mark would be the presence 

of USGS stream data on the NRCS 

county Soil Survey or local stream maps 

which are mapped independently of the 

USGS, aerial photography 

interpretation, or digital terrain 

depictions created from LIDAR. See 

Technical Support Document. 

Tributaries are observable in aerial 

photography by their topographic 

expression, characteristic linear and 

curvilinear patterns, dark photographic 

tones, and the presence and pattern of 

riparian vegetation. The characteristic 

linear and curvilinear patterns and dark 

photographic tones observed on aerial 

photography can be caused by shadow 

cast from the banks of an incised stream 

or from water in the stream channel 

itself. In some cases stream channel 

morphology is visible, providing 

evidence of scour, materials sorting, and 

deposition, all characteristics of an 

ordinary high water mark. Visible 

persistent water (e.g., multiple dates of 

aerial photography showing visible 

water) provides strong evidence of the 

sufficient frequency and duration of 

surface flow to create a bed and banks 

and other indicators of ordinary high 

water mark. Visible indicators of 

running water such as rapids, riffles, 

and pools all indicate the presence of a 

bed and banks and other indicators of 

ordinary high water mark. Other 

physical characteristics of an ordinary 

high water mark that may be visible on 

aerial photography include the 

destruction of terrestrial vegetation and 

the absence of vegetation in a channel. 

These indicators gleaned from aerial 

photography interpretation can be 

correlated with the presence of USGS 

streams data in reasonably concluding 

that a bed and banks and another 

indicator of ordinary high water mark 

are present. See Technical Support 

Document. 

Additional desktop tools can assist in 

the identification of bed and banks and 

other indicators of ordinary high water 

mark. For instance, field staff use other 

methods for estimating ordinary high 

water mark, including, but not limited 

to, lake and stream gage data, flood 

predictions, historic records of water 

flow, and statistical evidence. Some 

desktop tools, such as a regional 

regression analysis and the Hydrologic 

Modeling System (HEC–HMS), provide 

for the hydrologic estimation of stream 

discharge sufficient to create an 

ordinary high water mark in tributaries 

under regional conditions. Such desktop 

tools are particularly useful for 

identifying presence of bed and banks 

and another indicator of ordinary high 

water mark when supported by 

additional remote sensing tools that 

indicate the presence of such physical 

features. 

LIDAR is a powerful tool to analyze 

the characteristics of the land surface, 

including tributary identification and 

characterization. LIDAR data are 

becoming more and more widespread 

for engineering and land use planning 

purposes. Where LIDAR data have been 

processed to create a bare earth model, 

detailed depictions of the land surface 

are available. Bare earth models reveal 

subtle elevation changes and can clearly 

show a tributary’s bed and banks and 

channel morphology. In many cases 

LIDAR can help delineate tributaries 

that would exhibit a bed and banks and 

another indicator of an ordinary high 

water mark in greater detail than aerial 

photography interpretation alone can. 

Visible linear and curvilinear incisions 

on a bare earth model are strong 

evidence that a tributary with a bed and 

banks and another indicator of an 

ordinary high water mark is present. 

LIDAR-indicated tributaries can be 

correlated with aerial photography 

interpretation and USGS stream data, to 

reasonably conclude the presence of a 

bed and banks and another indicator of 

an ordinary high water mark in the 

absence of a field visit. See Technical 

Support Document. The agencies have 

been using such remote sensing and 

desktop tools to delineate tributaries for 

many years where data from the field 

are unavailable or a field visit is not 

possible. 

In addition, such desktop tools are 

critical in circumstances where physical 

characteristics of bed and banks and 

another indicator of ordinary high water 

mark are absent in the field, often due 

to unpermitted alteration of streams. In 

such cases where physical 

characteristics of bed and banks and 

another indicator of ordinary high water 

mark no longer exist, they may be 

determined by using other appropriate 

means that consider the characteristics 

of the surrounding areas. Such reliable 

methods that can indicate prior 

existence of bed and banks and other 

indicators of ordinary high water mark 

include, but are not limited to, lake and 

stream gage data, elevation data, 

spillway height, historic water flow 

records, flood predictions, statistical 

evidence, the use of reference 

conditions, or through the remote 

sensing and desktop tools described 

above. 

The upper limit of the tributary is the 

point where a bed and banks and 

another indicator of ordinary high water 

mark cease to be identifiable. The 

ordinary high water mark establishes 

the lateral limits of a water, and its 

absence generally determines when a 

tributary’s channel or bed and banks has 

ended, representing the upper limit of 

the tributary. However, a natural or 

constructed break in bed and banks or 

other indicator of ordinary high water 

mark does not constitute the upper limit 

of a tributary where bed and banks or 

other indicator ordinary high water 

mark can be found farther upstream. 

Note that waters, including wetlands, 

which are adjacent to a tributary at the 

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upper limit of the channel are 

jurisdictional as ‘‘adjacent waters.’’ 

The definition of ‘‘tributary’’ includes 

tributaries that flow directly or 

indirectly through impoundments that 

are jurisdictional under paragraph (a)(4) 

of the rule. Tributaries to 

impoundments of ‘‘waters of the United 

States’’ are jurisdictional for the same 

reasons the impoundments themselves 

are jurisdictional. As discussed in 

section IV. E., under case law, an 

impoundment of a ‘‘water of the United 

States’’ remains a ‘‘water of the United 

States,’’ and scientific literature 

demonstrates that impoundments 

continue to significantly affect the 

chemical, physical, or biological 

integrity of downstream waters 

traditional navigable waters, interstate 

waters, and the territorial seas. 

Therefore, tributaries to such 

impoundments continue to have a 

significant nexus, alone or in 

combination with other covered 

tributaries in the watershed, to the 

downstream traditional navigable water, 

interstate water, or the territorial seas. 

Waters that meet the rule definition of 

tributary remain tributaries even if there 

is a manmade or natural break at some 

point along the connection to the 

traditional navigable water, interstate 

water, or the territorial seas. In many 

tributaries, there are often natural or 

constructed breaks in the presence of a 

bed and banks or ordinary high water 

mark while hydrologic connectivity 

remains. For example, in some regions 

of the country where there is a very low 

gradient, the banks of a tributary may be 

very low or may even disappear at 

times. Many tributaries lose their 

ordinary high water mark when adjacent 

wetlands are contiguous with the stream 

channel. The definition of ‘‘tributary’’ 

addresses these circumstances and 

states that waters that meet the 

definition of tributary remain tributaries 

even if such breaks occur, so long as bed 

and banks and an ordinary high water 

mark are present upstream of the break. 

Under the rule, when a covered 

tributary flows through a wetland into 

another tributary (sometimes called a 

‘‘run-of-stream’’ wetland), the covered 

tributary remains jurisdictional even 

though it lost its ordinary high water 

mark through the wetland. By looking to 

the presence of a bed and banks and an 

ordinary high water mark upstream, the 

rule ensures that a mere break in the 

ordinary high water mark does not 

render tributaries with a significant 

nexus to downstream waters not 

jurisdictional. Other breaks that do not 

sever jurisdiction include constructed 

breaks such as bridges, culverts, pipes, 

dams, or waste treatment systems, or 

natural breaks such as debris piles, 

boulder fields, or a stream that flows 

underground so long as a bed and banks 

and an ordinary high water mark can be 

identified upstream of the break. Site 

specific conditions will continue to 

determine the distance up valley that 

needs to be evaluated to see if the break 

in bed and banks and ordinary high 

water mark is temporary or the start of 

the stream system. 

The rule also clarifies that a water 

meets the definition of tributary if the 

water contributes flow through an 

excluded feature such as a ditch with 

ephemeral flow. While the water above 

and below the excluded feature is 

jurisdictional if it meets the definition 

of tributary, the excluded feature does 

not become jurisdictional. A water also 

continues to meet the definition of 

tributary if at some point the water 

contributes flow through a jurisdictional 

water that is not a tributary, such as an 

adjacent wetland or impoundment. 

The agencies’ longstanding 

interpretation of the CWA has included 

tributaries that are natural, modified, or 

constructed waters. While this rule at 

paragraph (b) excludes specific types of 

constructed waters from jurisdiction, it 

continues to interpret constructed 

tributaries as jurisdictional unless 

expressly excluded in paragraph (b). 

Natural, modified, and constructed 

tributaries provide many of the same 

functions, especially as conduits for the 

movement of water and pollutants to 

other tributaries or directly to 

traditional navigable waters, interstate 

waters, or the territorial seas. The 

discharge of a pollutant into a tributary 

generally has the same effect 

downstream whether the tributary 

waterway is natural, modified, or 

constructed. See discussion in section 

III.C. above and the Technical Support 

Document. Given the extensive human 

modification of watercourses and 

hydrologic systems throughout the 

country, it is often difficult to 

distinguish between natural 

watercourses and watercourses that are 

wholly or partly modified or 

constructed. For example, tributaries 

that have been channelized in concrete 

or otherwise have been modified may 

still meet the definition of tributaries 

under the rule so long as they have bed 

and banks and an ordinary high water 

mark, contribute flow to a traditional 

navigable water, interstate water, or the 

territorial seas, and are not excluded 

under paragraph (b). The important 

consideration for a modified or 

constructed water is whether it meets 

the definition of ‘‘tributary’’ and is not 

excluded under paragraph (b). 

Ditches are one important example of 

constructed features that in many 

instances can meet the definition of 

tributary. Ditches are jurisdictional 

under the rule only if they both meet the 

definition of ‘‘tributary’’ and are not 

excluded under paragraph (b)(3) in the 

rule. Not all ditches meet the definition 

of a tributary, and others—as discussed 

in Section I—are expressly excluded 

from jurisdiction. 

Ditches protected by the rule must 

meet the definition of tributary, having 

a bed and banks and ordinary high 

water mark, and contributing flow 

directly or indirectly through another 

water to a traditional navigable water, 

interstate water, or the territorial seas. 

Jurisdictional ditches include ditches 

such as the following: 

• Ditches with perennial flow, 

• Ditches with intermittent flow that 

are a relocated tributary, or are 

excavated in a tributary, or drain 

wetlands, 

• Ditches, regardless of flow, that are 

excavated in or relocate a tributary. 

The definition of tributary includes 

natural, undisturbed waters and those 

that have been man-altered or 

constructed, but which science shows 

function as a tributary. In addition, 

alteration or modification of natural 

streams and rivers for purposes such as 

flood control, erosion control, and other 

reasons does not convert the tributary to 

a ditch. A stream or river that has been 

channelized or straightened because its 

natural sinuosity has been altered, 

cutting off the meanders, is not a ditch. 

A stream that has banks stabilized 

through use of concrete or rip-rap (e.g., 

rocks or stones) is not a ditch. The Los 

Angeles River, for example, is a ‘‘water 

of the United States’’ (and, indeed, a 

traditional navigable water) and remains 

a ‘‘water of the United States’’ and is not 

excluded under paragraph (b)(3) even 

where it has been ditched, channelized, 

or concreted. 

A ditch that relocates a stream is not 

an excluded ditch under paragraph 

(b)(3), and a stream is relocated either 

when at least a portion of its original 

channel has been physically moved, or 

when the majority of its flow has been 

redirected. A ditch that is a relocated 

stream is distinguishable from a ditch 

that withdraws water from a stream 

without changing the stream’s aquatic 

character. The latter type of ditch is 

excluded from jurisdiction where it 

meets the listed characteristics of 

excluded ditches under paragraph 

(b)(3). Agency staff can determine 

historical presence of tributaries using a 

variety of resources, such as historical 

maps, historic aerial photographs, local 

surface water management plans, street 

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maintenance data, wetlands and 

conservation programs and plans, as 

well as functional assessments and 

monitoring efforts. A ditch with 

intermittent flow that drains a wetland 

and otherwise meets the definition of 

‘‘tributary’’ is a ‘‘tributary’’ and is not 

excluded under paragraph (b)(3). See 

IV.I. below. 

Evidence, such as current or historic 

photographs, prior delineations, or 

USGS, state and local topographic maps, 

may be used to determine whether a 

ditch is an excluded ditch. Site 

characteristics may also be present to 

inform the determination of whether the 

water body is a ditch, such as shape, 

sinuosity, flow indications, etc., as 

ditches are often created in a linear 

fashion with little sinuosity and may or 

may not connect to another ‘‘water of 

the United States.’’ 

2. What changes did the Agencies make 

from the proposed rule based on public 

comments? 

The rule’s definition of ‘‘tributary’’ 

retains many elements from the 

proposed rule, but reflects public 

comments in several important ways. In 

particular, the rule emphasizes flow. 

The rule defines ‘‘tributary’’ by 

emphasizing physical characteristics 

created by water flow and requiring that 

the water contributes flow, either 

directly or through another water, to a 

traditional navigable water, interstate 

water, or the territorial seas. The rule 

also is clearer regarding the 

jurisdictional status of certain ditches, 

and clarifies that wetlands and waters 

such as ponds and lakes that contribute 

flow to a traditional navigable water, 

interstate water, or the territorial seas 

but typically lack a bed and banks and 

ordinary high water mark are 

considered ‘‘adjacent’’ but not a 

‘‘tributary.’’ 

A number of commenters suggested 

that the agencies should exclude 

ephemeral streams from the definition 

of tributary, expressing concern that 

ephemeral waters that flow very rarely 

would be considered a jurisdictional 

tributary. The rule definition of 

‘‘tributary’’ requires that flow must be of 

sufficient volume, frequency, and 

duration to create the physical 

characteristics of bed and banks and an 

ordinary high water mark. If a water 

lacks sufficient flow to create such 

characteristics, it is not considered a 

‘‘tributary’’ under this rule. While some 

commenters expressed concern that a 

feature that flowed very rarely could 

meet the proposed definition of 

‘‘tributary,’’ it is the agencies’ judgment 

that such a feature is not a tributary 

under the rule because it would not 

form the physical indicators required 

under the definitions of ‘‘ordinary high 

water mark’’ and ‘‘tributary.’’ 

The rule includes ephemeral streams 

that meet the definition of tributary as 

‘‘waters of the United States’’ because 

the agencies determined that such 

streams provide important functions for 

downstream waters, and in combination 

with other covered tributaries in a 

watershed significantly affect the 

chemical, physical, and biological 

integrity of traditional navigable waters, 

interstate waters, and the territorial seas. 

As noted by the SAB, and consistent 

with the scientific literature, tributaries 

as a group exert strong influence on the 

chemical, physical, and biological 

integrity of downstream waters, even 

though the degree of connectivity is a 

function of variation in the frequency, 

duration, magnitude, predictability, and 

consequences of chemical, physical, and 

biological processes. See, e.g., SAB 

2014b. These significant effects on 

traditional navigable waters, interstate 

waters, and the territorial seas occur 

even when the tributary is small, 

intermittent, or ephemeral. 

In addition, the Science Report 

concludes that, ‘‘[a]lthough less 

abundant, the available evidence for 

connectivity and downstream effects of 

ephemeral streams was strong and 

compelling, particularly in context with 

the large body of evidence supporting 

the physical connectivity and 

cumulative effects of channelized flows 

that form and maintain stream 

networks.’’ Science Report at 6–13. For 

example, ephemeral headwater streams 

shape river channels in traditional 

navigable or interstate waters by 

accumulating and gradually or 

episodically releasing stored materials 

such as sediment and large woody 

debris. These materials help structure 

traditional navigable and interstate river 

channels by slowing the flow of water 

through channels and providing 

substrate and habitat for aquatic 

organisms. 

Moreover, the agencies have 

historically considered ephemeral 

tributaries to be ‘‘waters of the United 

States.’’ For example, for many years 

EPA has reviewed and approved state 

water quality standards for ephemeral 

waters under CWA section 303(c), 

several Corps’ Nationwide Permits 

under CWA section 404 address 

discharges of dredged or fill material 

into ephemeral waters, and the agencies’ 

definition of ‘‘waters of the United 

States’’ prior to this rule included all 

tributaries without reference to flow 

regime. 

Numerous commenters asked that the 

final rule define ‘‘bed and banks,’’ 

which are physical characteristics called 

for under the definition of tributary. 

Such commenters emphasized the 

importance of a definition of ‘‘bed and 

banks,’’ and some suggested definitional 

language. To increase clarity, the 

preamble in IV.F.1. above includes a 

definition of bed and banks adapted 

largely from longstanding agencies’ 

practice as well as comments. Several 

commenters suggested that the rule 

should add a definition of ‘‘ordinary 

high water mark.’’ In response and to 

increase clarity, the rule adds the Corps’ 

existing regulatory ordinary high water 

mark definition to EPA’s regulations. 

Corps technical manuals are available to 

help identify ordinary high water mark, 

referenced above. Several commenters 

suggested that the agencies not require 

a tributary to have both bed and banks 

and ordinary high water mark, because 

bed and banks are themselves an 

indicator of ordinary high water mark, 

and because ordinary high water mark 

alone is an appropriate criterion for 

many streams in the arid west where the 

characteristic of bed and banks is less 

common. The agencies based their 

significant nexus determination for the 

covered tributaries in part on the 

amount of flow indicated where a 

tributary has both a bed banks and 

another indicator of ordinary high water 

mark, so the rule continues to require 

both physical indicators with the 

preamble at IV.F.1. above clarifying the 

means to conclude that those indicators 

exist. 

Several commenters suggested that 

the rule exclude all constructed waters 

from the definition of ‘‘waters of the 

United States.’’ While the rule does 

exclude several types of constructed 

waters from jurisdiction, it continues to 

consider constructed tributaries as 

jurisdictional unless expressly excluded 

in paragraph (b) for the reasons 

described in section IV.I. and the 

Technical Support Document. 

Many comments recommended that 

wetlands, ponds, and lakes that 

contribute flow to a traditional 

navigable water, interstate water, or the 

territorial seas but lack a bed and banks 

and ordinary high water mark not be 

considered as tributaries, because of the 

importance of those physical 

characteristics to the definition. 

Wetlands typically lack bed and banks 

and ordinary high water mark, while 

lakes and ponds typically have an 

ordinary high water mark and a bed but 

may lack banks. The proposed rule 

expressly sought comment on whether 

such waters should be considered as 

tributaries or as ‘‘adjacent waters,’’ 

recognizing that it might add an element 

of uncertainty to the definition of 

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‘‘tributary’’ to include waters that lacked 

the physical features called for in the 

definition. In addition, the SAB 

commented that tributaries are not 

typically defined to include lentic 

systems (still waters), and suggested that 

the agencies reconsider including 

ponds, lakes, and wetlands as covered 

adjacent waters instead of tributaries. 

SAB 2014b at 2. In response, the rule 

does not consider these waters to be 

tributaries, but defines covered adjacent 

waters to include wetlands, lakes, and 

ponds that connect segments of 

tributaries or are at the head of the 

tributary system. See section G for 

further discussion. 

G. Adjacent Waters 

Section III above explains the basis for 

the agencies’ conclusion that covered 

adjacent waters have a significant nexus 

with traditionally navigable waters, 

interstate waters, or the territorial seas. 

The adjacency provision is based on the 

best available science, intent of the 

CWA, and case law, and is consistent 

with the experience of the agencies in 

making case-specific significant nexus 

determinations. As discussed above in 

Section III, the SAB concludes, ‘‘[t]he 

available science supports [the 

agencies’] proposal to include adjacent 

waters and wetlands as waters of the 

United States.’’ SAB 2014b at 2. This 

section describes the provisions of the 

rule governing adjacent waters, changes 

made to the adjacent waters provision 

based on comments on the proposed 

rule, and, finally, how science and the 

law support the agencies’ conclusions in 

the final rule. 

1. What are the provisions of the rule? 

Under the rule, ‘‘adjacent’’ means 

bordering, contiguous, or neighboring, 

including waters separated from other 

‘‘waters of the United States’’ by 

constructed dikes or barriers, natural 

river berms, beach dunes, and the like. 

Waters adjacent to a traditional 

navigable water, interstate water, 

territorial sea, impoundment, or 

tributary, are ‘‘waters of the United 

States.’’ For purposes of adjacency, an 

adjacent water includes wetlands within 

or abutting its ordinary high water mark. 

Adjacency is not limited to waters 

located laterally to a traditional 

navigable water, interstate water, the 

territorial seas, an impoundment, or a 

tributary. Therefore, waters that connect 

segments of a traditional navigable 

water, interstate water, the territorial 

seas, an impoundment, or a tributary or 

are located at the head of a traditional 

navigable water, interstate water, the 

territorial seas, an impoundment, or a 

tributary may be determined to be 

bordering, contiguous, or neighboring, 

and thus adjacent. ‘‘Adjacent waters’’ 

include wetlands, ponds, lakes, oxbows, 

impoundments, and similar water 

features. ‘‘Adjacent waters’’ do not 

include any water excluded under 

paragraph (b) of the rule. Note also that 

a water that does not meet the definition 

of ‘‘adjacent waters’’ may be determined 

to be a ‘‘water of the United States’’ on 

a case-specific basis under paragraph 

(a)(8) of the rule. 

Within the definition of ‘‘adjacent,’’ 

the terms bordering and contiguous are 

well understood, and for continuity and 

clarity the agencies continue to interpret 

and implement those terms consistent 

with the current policy and practice. 

Waters separated by a berm or other 

similar feature remain ‘‘adjacent’’ under 

the definition. 

Some waters included under the 

definition of ‘‘tributary’’ in the proposed 

rule, after consideration of public 

comment, are ‘‘adjacent’’ in the final 

rule. Specifically, waters that connect 

segments of, or are at the head of, a 

traditional navigable water, interstate 

water, the territorial seas, an 

impoundment, or a tributary are 

adjacent to that water. For example, a 

pond that is the source water to a 

tributary and borders the tributary at its 

uppermost reach is jurisdictional as an 

adjacent water. Further, the rule states 

that an adjacent water includes 

wetlands within or abutting its ordinary 

high water mark. This language is 

designed to ensure that if there is a 

fringe wetland abutting that pond that is 

the source water to a tributary, that 

wetland is considered part of the pond 

under the rule and such pond as a 

whole, including any abutting wetlands, 

is jurisdictional as an adjacent water. 

For purposes of adjacency, including 

all three provisions of the definition of 

‘‘neighboring,’’ the entire water is 

adjacent if any part of the water is 

bordering, contiguous or neighboring. 

Therefore, the entire wetland is 

‘‘adjacent’’ if any part of it is within the 

distance thresholds established in the 

definition of ‘‘neighboring.’’ For 

example, if a tributary has a 1,000 foot 

wide 100-year floodplain, then a water 

that is located within 1,000 feet of the 

ordinary high water mark of a covered 

tributary and extends to 2,000 feet is 

jurisdictional in its entirety as 

‘‘neighboring.’’ In addition, for purposes 

of determining whether a water is 

‘‘adjacent’’ artificial features (such as 

roads) do not divide a water; rather, the 

water is treated as one entire water. 

The definition of ‘‘adjacent’’ in the 

rule does not include those waters in 

which established, normal farming, 

silviculture, and ranching activities 

occur. Wetlands and farm ponds in 

which normal farming activities occur, 

as those terms are used in section 404(f) 

of the Clean Water Act and its 

implementing regulations, are not 

jurisdictional under the Act as an 

‘‘adjacent’’ water. Waters in which 

normal farming, ranching, and 

silviculture activities occur instead will 

continue to be subject to case-specific 

review, as they are today. These waters 

may be determined to have a significant 

nexus on a case-specific basis under 

paragraph (a)(7) or (a)(8). Recognizing 

the vital role of farmers in providing the 

nation with food, fiber, and fuel, the 

Clean Water Act in Section 404(f) 

exempts many normal farming activities 

such as seeding, harvesting, cultivating, 

planting, soil and water conservation 

practices, and other activities from the 

Section 404 permitting requirement. 

‘‘Normal’’ farming, ranching, and 

silviculture is clarified in the agencies’ 

implementing regulations to mean 

established and ongoing activities to 

distinguish from activities needed to 

convert an area to farming, silviculture, 

or ranching and activities that convert a 

water to a non-water. 40 CFR 

232.3(c)(1). The rule reflects this 

framework by clarifying the waters in 

which the activities Congress exempted 

under Section 404(f) occur are not 

jurisdictional as ‘‘adjacent.’’ It is 

important to recognize that 

‘‘tributaries,’’ including those ditches 

that meet the tributary definition, are 

not ‘‘adjacent’’ waters and are 

jurisdictional by rule. 

This provision interprets the intent of 

Congress and reflects the intent of the 

agencies to minimize potential 

regulatory burdens on the nation’s 

agriculture community, and recognizes 

the work of farmers to protect and 

conserve natural resources and water 

quality on agricultural lands. While 

waters in which normal farming, 

silviculture, or ranching practices occur 

may be determined to significantly 

affect the chemical, physical, or 

biological integrity of downstream 

navigable waters, the agencies believe 

that such determination should be made 

based on a case-specific basis instead of 

by rule. The agencies also recognize that 

waters in which normal farming, 

silviculture, or ranching practices occur 

are often associated with modifications 

and alterations including drainage, 

changes to vegetation, and other 

disturbances the agencies believe 

should be specifically considered in 

making a significant nexus 

determination. 

The rule establishes a definition of 

‘‘neighboring’’ for purposes of 

determining adjacency. In the rule, the 

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agencies identify three circumstances 

under which waters would be 

‘‘neighboring’’ and therefore ‘‘waters of 

the United States.’’ 

First, the term ‘‘neighboring’’ includes 

all waters located in whole or in part 

within 100 feet of the ordinary high 

water mark of a traditional navigable 

water, interstate water, the territorial 

seas, an impoundment, or a covered 

tributary. 

Second, the term ‘‘neighboring’’ 

includes all waters within the 100-year 

floodplain of a traditional navigable 

water, interstate water, the territorial 

seas, an impoundment, or a covered 

tributary that is located in whole or in 

part within 1,500 feet of the ordinary 

high water mark of that jurisdictional 

water. In this rule, the agencies interpret 

‘‘100-year floodplain’’ to mean ‘‘the area 

that will be inundated by the flood 

event having a one percent chance of 

being equaled or exceeded in any given 

year.’’ This is consistent with the 

Federal Emergency Management 

Agency’s (FEMA) definition of ‘‘100- 

year flood.’’ If the 100-year floodplain is 

greater than 1,500 feet from the ordinary 

high water mark, only those waters that 

are located in whole or in part within 

1,500 feet of the ordinary high water 

mark are ‘‘neighboring.’’ In addition, if 

the 100-year floodplain is less than 

1,500 feet from the ordinary high water 

mark, only those waters located in 

whole or in part within the floodplain 

are ‘‘neighboring’’ under this provision. 

Third, the rule defines ‘‘neighboring’’ 

to include all waters located in whole or 

in part within 1,500 feet of the high tide 

line of a traditional navigable water or 

the territorial seas, and all waters 

located within 1,500 feet of the ordinary 

high water mark of the Great Lakes. This 

provision defines waters that begin 

within 1,500 feet of a tidally-influence 

traditional navigable water or the 

territorial seas and waters within 1,500 

feet of the ordinary high water mark of 

the Great Lakes as ‘‘waters of the United 

States.’’ To provide clarity for this 

aspect of the definition, the agencies 

incorporated the Corps’ existing 

definition of high tide line into EPA’s 

regulations at paragraph (c)(7) in the 

rule. 

As noted above, the rule provides that 

with respect to the boundaries for 

covered adjacent waters the entire water 

is jurisdictional as long as the water is 

at least partially located within the 

distance threshold, and the agencies 

interpret the rule to apply to any single 

water or wetland that may straddle a 

distance threshold. Low-centered 

polygonal tundra and patterned ground 

bogs (also called strangmoor, string 

bogs, or patterned ground fens) are 

considered a single water for purposes 

of the rule because their small, 

intermingled wetland and non-wetland 

components are physically and 

functionally integrated. These areas 

often have complex micro-topography 

with repeated small changes in 

elevation occurring over short distances. 

Science demonstrates that these 

wetlands function as a single wetland 

matrix having clearly hydrophytic 

vegetation, hydric soils, and wetland 

hydrology. As a result, the agencies will 

continue to evaluate these wetlands as 

a single water under the rule. Where any 

portion of these wetland types is 

bordering, contiguous or neighboring, 

the entire wetland is a ‘‘water of the 

United States.’’ Similarly, for purposes 

of a case-specific determination under 

paragraph (a)(8), wetlands of these types 

constitute a single water when making 

a significant nexus determination. Other 

wetlands may also have intermingled 

wetland and non-wetland components 

that are so physically and functionally 

integrated they can be considered a 

single water for purposes of the rule. 

Groups of wetlands that are simply part 

of a complex of wetlands would not be 

considered a single water for purposes 

of the rule. 

The final rule also makes some 

ministerial changes to the definition of 

‘‘adjacent.’’ The existing regulation 

defined ‘‘adjacent’’ to mean ‘‘bordering, 

contiguous, or neighboring,’’ and had a 

second sentence that clarified that 

wetlands separated by berms and the 

like remain adjacent wetlands. The final 

rule combines those sentences without 

changing the scope of adjacency. 

When determining the jurisdictional 

boundaries under the CWA for 

‘‘adjacent waters,’’ the agencies will rely 

on published FEMA Flood Zone Maps 

to identify the location and extent of the 

100-year floodplain. https://

msc.fema.gov/portal. These maps are 

publicly available and provide a readily 

accessible and transparent tool for the 

public and agencies to use in locating 

the 100-year floodplain. It is important 

to recognize, however, that much of the 

United States has not been mapped by 

FEMA and, in some cases, a particular 

map may be out of date and may not 

accurately represent existing 

circumstances on the ground. The 

agencies will determine if a particular 

map is no longer accurate based on 

factors, such as streams or rivers moving 

out of their channels with associated 

changes in the location of the 

floodplain. In the absence of applicable 

FEMA maps, or in circumstances where 

an existing FEMA map is deemed by the 

agencies to be out of date, the agencies 

will rely on other available tools to 

identify the 100-year floodplain, 

including other Federal, State, or local 

floodplain maps, Natural Resources 

Conservation Service (NRCS) Soil 

Surveys (Flooding Frequency Classes), 

tidal gage data, and site-specific 

modeling (e.g., Hydrologic Engineering 

Centers River System Analysis System 

or HEC–RAS). http://

websoilsurvey.sc.egov.usda.gov/App/

HomePage.htm and HEC–RAS and 

http://www.hec.usace.army.mil/

software/hec-ras/. Additional 

supporting information can include 

historical evidence, such as 

photographs, prior delineations, 

topographic maps, and existing site 

characteristics. Because identifying the 

100-year floodplain is an important 

aspect of establishing jurisdiction under 

the rule and the reliable and appropriate 

tools for identifying the 100-year 

floodplain may vary, the agencies will 

coordinate with other federal and state 

agencies to develop additional 

information for EPA and Corps field 

staff to further improve tools for 

identifying the 100-year floodplain in a 

consistent, predictable, and 

scientifically valid manner. 

When determining the outer distance 

threshold for an ‘‘adjacent water’’ the 

line is drawn perpendicular to the 

ordinary high water mark or high tide 

line of the traditional navigable water, 

interstate water, the territorial seas, 

impoundment, or covered tributary and 

extended landward from that point. If 

there are breaks in the ordinary high 

water mark, the line should be 

extrapolated from the point where the 

ordinary high water mark is observed on 

the downstream side to the point where 

the ordinary high water mark is lost on 

the upstream side. Therefore, waters 

may meet the definition of neighboring 

even where, for example, a tributary 

temporarily flows underground. 

The agencies emphasize that they 

fully support efforts by States and tribes 

to protect under their own laws any 

additional waters, including locally 

special waters that may not be within 

the Federal protections of the CWA as 

the agencies have interpreted its scope 

in this rule. In promulgating the 

adjacent water boundaries, the agencies 

have balanced protection and clarity, 

scientific uncertainties and regulatory 

experience, and established boundaries 

that are, in their judgment, reasonable 

and consistent with the statute and its 

goals and objectives. 

If waters identified in this section are 

determined to be adjacent, no casespecific significant nexus evaluation is 

required. 

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2. What changes did the agencies make 

from the proposed rule based on public 

comments? 

In the proposal, the agencies sought 

comment on a number of ways to 

address and clarify jurisdiction over 

‘‘adjacent waters,’’ including 

establishing a floodplain interval and 

providing clarity on reasonable 

proximity as an important aspect of 

adjacency. In light of the comments, the 

science, the agencies’ experience, and 

the Supreme Court’s consistent 

recognition of the agencies’ discretion to 

interpret the bounds of CWA 

jurisdiction, the agencies have made 

some revisions in the final rule designed 

to more clearly establish boundaries on 

the scope of ‘‘adjacent waters.’’ 

Under the proposal and the final rule, 

‘‘adjacent waters’’ are jurisdictional 

based on the conclusion that they have 

a significant nexus to traditional 

navigable waters, interstate waters, or 

the territorial seas, and there is no need 

for additional analysis. Some 

commenters wanted a case-specific 

analysis for all ‘‘adjacent waters’’ as 

they believed that the waters would not 

individually have a significant nexus to 

an adjacent ‘‘water of the United 

States,’’ while others noted that their 

functional relationship to the 

downstream traditional navigable 

waters, interstate waters, or the 

territorial seas warranted the conclusion 

that they were all jurisdictional. Based 

on a review of the science, the agencies’ 

expertise and experience, and the law, 

the agencies determined that ‘‘adjacent 

waters,’’ as defined, alone or in 

combination with other covered 

‘‘adjacent waters’’ in a watershed have 

a significant nexus to a traditional 

navigable water, interstate water or the 

territorial seas and therefore are ‘‘waters 

of the United States’’ without the need 

for any additional analysis. However, 

the rule also provides for case-specific 

analysis of some waters that do not meet 

the definition of ‘‘neighboring’’ 

established by the rule. See section 

IV.H. 

The proposal included wetlands, 

ponds, lakes, and impoundments that 

contribute flow, directly or indirectly, to 

the downstream traditional navigable 

waters, interstate waters, or the 

territorial seas in the definition of 

‘‘tributary.’’ Some commenters 

expressed concern that since such 

waters generally do not have both an 

ordinary high water mark and a bed and 

banks, the definition of tributary was 

contradictory and confusing. The 

agencies sought comment on whether to 

treat these waters as ‘‘adjacent waters’’ 

instead of tributaries, since they not 

only contribute flow, but they also 

border or are contiguous to the waters 

to which they contribute flow. The SAB 

in particular commented that the 

agencies ‘‘may want to consider whether 

flow-through lentic systems should be 

included as ‘‘adjacent waters’’ and 

wetlands, rather than as tributaries.’’ 

SAB 2014b at 2. In light of the 

comments and to provide additional 

clarity, the agencies revised the 

definitions of ‘‘adjacent’’ and 

‘‘tributary’’ to include these waters as 

‘‘adjacent.’’ 

Under the existing rule, there is no 

definition for the term ‘‘neighboring,’’ 

and the public commented that not 

having a definition created a lack of 

clarity and inconsistent field practices 

across the nation. In the proposal, 

‘‘neighboring’’ was defined to include 

waters located within the riparian area 

or floodplain of a traditional navigable 

water, interstate water, territorial sea, 

impoundment, or tributary; waters with 

a shallow subsurface hydrologic 

connection to a jurisdictional water; and 

waters with a confined surface 

hydrologic connection to a 

jurisdictional water. Although the 

definitions were scientifically-based for 

the terms ‘‘riparian area’’ and 

‘‘floodplain’’ to define the lateral reach 

of the term ‘‘neighboring,’’ some 

commenters indicated that the proposed 

definitions to clarify neighboring were 

not clear. Those commenters requested 

that a specific floodplain interval or 

other limitation should be established to 

more clearly identify the outer limit of 

neighboring. Some commenters stated 

that the proposed definition of 

‘‘neighboring’’ was unclear, while other 

commenters found the definition helped 

clarify CWA jurisdiction and were 

supportive of including a broad 

definition, based on ecological 

interconnectedness. 

Some commenters stated that the 

proposed definitions of ‘‘riparian area’’ 

and ‘‘floodplain’’ were vague or 

ambiguous, broad or effectively 

limitless, beyond the agencies’ authority 

or difficult or impossible to implement 

in the field. Other commenters were 

supportive of using the riparian area as 

a basis for adjacency. Some commenters 

asked why the agencies were proposing 

a new definition of ‘‘floodplain’’ that 

was inconsistent with the definition 

used by other Federal agencies like 

NRCS or FEMA. Some commenters 

suggested that if the agencies use 

floodplains as a means to define 

‘‘neighboring,’’ it should be limited to 

the area inundated by the 2-year, 5-year, 

10-year, or 20-year flood, while other 

commenters supported the use of the 

100-year floodplain as a component of 

‘‘neighboring.’’ Some commenters 

supported including all wetlands and 

other waters in the 100-year floodplain 

as categorically jurisdictional. Other 

commenters requested that floodplain 

size be based on tributary size, while 

others suggested that it should be based 

on soil and geologic features, and some 

suggested the use of the FEMA flood 

zone maps. Some commenters stated 

that ‘‘reasonable proximity’’ was neither 

defined nor clarified adjacency, noting 

that adjacency should not apply to 

waters separated from a ‘‘water of the 

United States’’ by great distances. 

In response to comments and to 

provide greater clarity and consistency, 

in the rule the agencies establish a 

definition of neighboring which 

provides additional specificity 

requested by some commenters, 

including establishing a floodplain 

interval and providing specific 

boundaries from traditional navigable 

waters, interstate waters, the territorial 

seas, impoundments, and tributaries. In 

the proposal, the agencies requested 

comment on whether the rule should 

provide greater specificity with regard 

to how the agencies will determine if a 

water is located in the floodplain of a 

jurisdictional water. 79 FR 22209. As 

recommended by the public and based 

on science, the agencies’ boundaries for 

‘‘neighboring’’ are based largely on use 

of the 100-year floodplain. The agencies 

concluded that the use of the riparian 

area was unnecessarily complicated and 

that as a general matter, waters in the 

riparian area will also be in the 100-year 

floodplain. Further, should the riparian 

area on occasion extend beyond the 100- 

year floodplain, the agencies have the 

ability to perform a case-specific 

significant nexus analysis on a water out 

to 4,000 feet from the ordinary high 

water mark or high tide line of a 

traditional navigable water, interstate 

water, the territorial sea, impoundment, 

or tributary. The agencies have drawn 

these lines based on their technical 

expertise and experience in order to 

provide a rule that is practical to 

understand and implement and protects 

those waters that significantly affect the 

chemical, physical, or biological 

integrity of traditional navigable waters, 

interstate waters, or the territorial seas. 

Because science indicates that 

connectivity is on a gradient, the 

agencies have also identified limited 

circumstances in which waters that do 

not meet the definition of ‘‘neighboring’’ 

may be determined on a case-specific 

basis to have a significant nexus. See 

section IV.I. 

First, the rule establishes as 

‘‘neighboring’’ waters that occur within 

100 feet from traditional navigable 

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waters, interstate waters, the territorial 

seas, impoundments, and tributaries. 

Second, the rule utilizes a specific 

floodplain and also establishes 

maximum distances for purposes of 

‘‘neighboring.’’ Studies have found that 

waters within the floodplain are 

dynamically connected and frequently 

interact with the downstream traditional 

navigable water, interstate water, 

territorial sea, impoundment, or 

tributary. Some commenters indicated 

that a specific floodplain or other 

designation should be set to define the 

outer boundary of ‘‘neighboring.’’ 

Further, some commenters requested 

that the 100-year floodplain designation 

be used to define the outer boundary of 

adjacency because the public 

understands this concept. Several 

commenters recommended that FEMA 

or NRCS maps be used to support the 

analysis as these maps are easily 

accessible to the public. Because FEMA 

maps exist for many areas of the country 

and the NRCS Soil Survey maps do as 

well, the agencies decided that defining 

‘‘neighboring’’ based in part on a 

particular floodplain or recurrence 

interval was a reasonable means of 

ensuring the consistency and certainty 

that is important to the public and for 

implementation of the CWA. In drawing 

lines, the agencies chose the 100-year 

floodplain in part because FEMA and 

NRCS together have generally mapped 

large portions of the United States, and 

these maps are publicly available, wellknown and well-understood. 

Because the 100-year floodplain can 

be very wide in some areas of the 

country, particularly near large rivers, 

the agencies chose to provide increased 

clarity and certainty while ensuring that 

waters that provide important functions 

significantly affecting the chemical, 

physical, and biological integrity of the 

downstream traditional navigable 

waters, interstate waters, or the 

territorial seas are protected by 

establishing a 1,500 foot maximum 

distance for neighboring waters in the 

rule. Waters within the 100-year 

floodplain to a maximum of 1,500 feet 

of the ordinary high water mark are 

adjacent without regard to the presence 

of berms or other barriers. However, 

because the science demonstrates that 

floodplain waters provide important 

functions for downstream waters, the 

agencies have established a provision 

under paragraph (a)(8) for case-specific 

significant nexus evaluations of waters 

located in the 100-year floodplain of a 

traditional navigable water, interstate 

water, or the territorial seas beyond 

1,500 feet. 

The rule also establishes a separate 

bright line for including as 

jurisdictional those waters that occur 

within 1,500 feet of tidally-influenced 

traditional navigable waters or the 

territorial seas. 

The proposal defined ‘‘neighboring’’ 

to include waters with a surface 

connection to jurisdictional waters and 

some commenters recommended 

eliminating surface hydrologic 

connectivity as a basis for adjacency. 

The definition of neighboring does not 

include a provision defining 

‘‘neighboring’’ based on a surface 

hydrologic connection. However, waters 

with confined surface hydrologic 

connections are considered adjacent 

where they are bordering, contiguous, or 

neighboring a traditional navigable 

water, interstate water, the territorial 

seas, impoundment, or covered 

tributary. For example, a water with a 

confined surface hydrologic connection 

to a traditional navigable water that is 

1,200 feet from the high tide line of that 

water would meet the definition of 

neighboring and be considered an 

adjacent water. In circumstances where 

a water does not meet the definition of 

neighboring but is located within the 

100-year floodplain of a traditional 

navigable water, interstate water, or the 

territorial seas, or within 4,000 feet of a 

jurisdictional water, a confined surface 

hydrologic connection may be an 

important factor in evaluating a casespecific significant nexus under 

paragraph (a)(8). See section H. below. 

The proposal defined ‘‘neighboring’’ 

to include waters connected with a 

shallow subsurface connection, and 

some commenters recommended 

eliminating subsurface hydrologic 

connectivity as a basis for adjacency. 

For example, some commenters asserted 

that, because the CWA does not apply 

to groundwater, the agencies do not 

have the authority to assert jurisdiction 

over waters connected to other ‘‘waters 

of the United States’’ via a shallow 

subsurface hydrologic connection. Some 

commenters were concerned that the 

distinction between ‘‘groundwater’’ and 

a ‘‘shallow subsurface connection’’ was 

unclear and questioned whether using a 

shallow subsurface connection as a 

basis for adjacency is contradictory to 

excluding groundwater—including 

groundwater drained through 

subsurface drainage systems—as a 

‘‘water of the United States.’’ Some 

commenters supported use of shallow 

subsurface connectivity for adjacency, 

since the significant nexus test would be 

employed to make the determination of 

jurisdiction. Several commenters 

suggested that the rule should protect 

groundwater and shallow subsurface 

flow, due to its connectivity to other 

‘‘waters of the United States’’ and 

particularly since altering it could affect 

the downstream waters. A few 

commenters simply requested 

clarifications regarding issues such as 

how to determine whether a subsurface 

connection exists; the meaning of 

‘‘shallow;’’ distinguishing between 

‘‘shallow’’ and ‘‘deep;’’ whether there 

were any boundaries on adjacency via 

hydrologic connectivity; and 

determining whether the connection 

was ‘‘sufficient’’ to establish adjacency. 

In order to provide more certainty to the 

public, the rule does not include a 

provision defining neighboring based on 

shallow subsurface flow, though such 

flow may be an important factor in 

evaluating a water on a case-specific 

basis under paragraph (a)(8), as 

appropriate. 

Some commenters expressed concern 

that the agencies’ proposed definition of 

‘‘neighboring,’’ ‘‘riparian area,’’ and 

‘‘floodplain’’ would mean that all land 

within the floodplain or riparian area 

would become regulated. In fact, only 

waters, not land, in the floodplain or 

riparian area would have been 

considered adjacent under the proposed 

rule. Similarly, under the final rule, 

only waters, not land, are adjacent. In 

response, the agencies have eliminated 

the definitions of floodplain and 

riparian area and have provided a 

definition of neighboring which is clear 

that only waters in specified 

circumstances may be ‘‘waters of the 

United States.’’ 

The agencies also eliminated a 

parenthetical from the existing 

‘‘adjacent wetlands’’ regulatory 

provision. The phrase ‘‘other than 

waters that are themselves wetlands’’ 

was intended to preclude asserting 

CWA jurisdiction over wetlands that 

were simply adjacent to a nonjurisdictional wetland. Such waters do 

not meet the definition of ‘‘adjacent’’ 

under the rule since waters must be 

adjacent to a traditional navigable water, 

interstate water, the territorial seas, 

impoundment, or covered tributary, so 

the phrase is unnecessary and 

confusing. With this change, the 

agencies are protecting all waters that 

meet the definition of ‘‘adjacent’’ as 

‘‘waters of the United States,’’ and 

eliminating confusion caused by the 

parenthetical. For example, where the 

100-year floodplain is greater than 1,500 

feet, all wetlands within 1,500 feet of 

the tributary’s ordinary high water mark 

are jurisdictional because they are 

‘‘neighboring’’ to the tributary, 

regardless of the wetlands’ position 

relative to each other. 

Some commenters stated that the 

proposed rule was an expansion of 

jurisdiction because it would change the 

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provision from ‘‘adjacent wetlands’’ to 

‘‘adjacent waters.’’ The agencies 

acknowledge that under the existing 

regulation, the adjacency provision 

applied only to wetlands adjacent to 

‘‘waters of the United States.’’ However, 

also under the existing regulation, 

‘‘other waters’’ (such as intrastate rivers, 

lakes and wetlands that are not 

otherwise jurisdictional under other 

sections of the rule) could be 

determined to be jurisdictional if the 

use, degradation or destruction of the 

water could affect interstate or foreign 

commerce. This provision of the 

existing regulation reflected the 

agencies’ interpretation at the time of 

the jurisdiction of the CWA to extend to 

the maximum extent permissible under 

the Commerce Clause of the 

Constitution. Therefore, while the 

language of the specific adjacency 

provision in the final rule may have 

changed from wetlands to waters, that 

does not represent an expansion of 

jurisdiction as a whole in comparison to 

the existing regulation, since adjacent 

non-wetland waters would have been 

subject to jurisdiction under the ‘‘other 

waters’’ provision. The final rule does 

not protect all waters that were 

protected under the ‘‘other waters’’ 

provision of the existing regulation, and 

therefore the inclusion of adjacent 

ponds, for example, in the ‘‘adjacent 

waters’’ provision of the final rule does 

not reflect an overall expansion of 

jurisdiction when compared to the 

existing regulation. 

3. How do science and law support the 

rule? 

Based on a review of the scientific 

literature and the agencies’ expertise 

and experience the agencies determined 

that the categories of waters discussed 

below are integrally linked to the 

chemical, physical, or biological 

functions of waters to which they are 

adjacent and downstream to the 

traditional navigable waters, interstate 

waters or the territorial seas. Therefore, 

the agencies determined that the waters 

defined as adjacent have a significant 

nexus with traditional navigable waters, 

interstate waters or the territorial seas 

and are thus ‘‘waters of the United 

States.’’ Additional information, 

including citations, can be found in 

section III of the preamble, the Science 

Report, and the Technical Support 

Document for the rule. 

a. Waters that are Bordering or 

Contiguous 

As discussed in section III above, 

wetlands, ponds, lakes, oxbows, 

impoundments, and similar water 

features that are bordering or contiguous 

perform a myriad of critical chemical 

and biological functions associated with 

the downstream traditional navigable 

waters, interstate waters, or the 

territorial seas. Such waters are 

integrally linked with the jurisdictional 

waters to which they are adjacent. 

Because of their close physical 

proximity to nearby jurisdictional 

waters, bordering or contiguous waters 

readily exchange their waters through 

the saturated soils surrounding the 

traditional navigable water, interstate 

water, the territorial seas, 

impoundment, or covered tributary or 

through surface exchange. This 

commingling of waters allows bordering 

or contiguous waters to both provide 

chemically transformed waters to 

streams and to absorb excess stream 

flow, which in turn can significantly 

affect downstream traditional navigable 

waters, interstate waters, or the 

territorial seas. The close proximity also 

allows for the direct exchange of 

biological materials, including organic 

matter that serves as part of the food 

web of downstream traditional 

navigable waters, interstate waters, or 

the territorial seas. Waters that are 

bordering or contiguous are often 

located on the floodplain or within the 

riparian area of the waters to which they 

are adjacent. Bordering or contiguous 

waters include those that directly abut 

a traditional navigable water, interstate 

water, the territorial seas, 

impoundment, or covered tributary. The 

Science Report and the Technical 

Support Document demonstrate that 

such waters are physically, chemically, 

and biologically integrated with 

downstream traditional navigable 

waters, interstate waters, or the 

territorial seas and significantly affect 

their integrity. 

b. Waters Separated From Other 

‘‘Waters of the United States’’ by 

Constructed Dikes or Barriers, Natural 

River Berms, Beach Dunes and the Like 

Adjacent waters separated from a 

traditional navigable water, interstate 

water, the territorial seas, 

impoundment, or covered tributary by 

constructed dikes or barriers, natural 

river berms, beach dunes, and the like 

continue to have a significant effect on 

downstream traditional navigable 

waters, interstate waters, or the 

territorial seas, either alone or in 

combination with other ‘‘adjacent 

waters.’’ Such waters continue to have 

a hydrologic connection to downstream 

waters. This is because constructed 

dikes or barriers, natural river berms, 

beach dunes, and the like typically do 

not block all water flow. This 

hydrologic connection can occur via 

seepage, or the flow of water through 

the soil pores, or via over-topping, 

where water from the nearby traditional 

navigable water, interstate water, the 

territorial seas, impoundment, or 

covered tributary periodically overtops 

the berm or other similar feature. Bermlike landforms known as natural levees 

occur naturally and do not isolate 

adjacent wetlands from the streams that 

form them. Natural levees and the 

wetlands and waters behind them are 

part of the floodplain. Natural levees are 

discontinuous, which allows for a 

hydrologic connection to the stream or 

river via openings in the levees and thus 

the periodic mixing of river water and 

backwater. Man-made levees and 

similar structures also do not isolate 

‘‘adjacent waters.’’ Waters, including 

wetlands, separated from a 

jurisdictional water by a natural or manmade berm serve many of the same 

functions as other ‘‘adjacent waters.’’ 

Furthermore, even in cases where a 

hydrologic connection may not exist, 

there are other important 

considerations, such as chemical and 

biological functions, that result in a 

significant nexus between the adjacent 

wetlands or waters and the nearby 

‘‘waters of the United States,’’ and 

traditional navigable waters, interstate 

waters, or the territorial seas. On this 

point, Justice Kennedy stated: ‘‘In many 

cases, moreover, filling in wetlands 

separated from another water by a berm 

can mean that floodwater, impurities, or 

runoff that would have been stored or 

contained in the wetlands will instead 

flow out to major waterways. With these 

concerns in mind, the Corps’ definition 

of adjacency is a reasonable one, for it 

may be the absence of an interchange of 

waters prior to the dredge and fill 

activity that makes protection of the 

wetlands critical to the statutory 

scheme.’’ Rapanos at 775. For instance, 

covered adjacent waters behind berms 

can still serve important water quality 

functions, serving to filter pollutants 

and sediment before they reach 

downstream waters. Wetlands and open 

waters behind berms, where the system 

is extensive, can help reduce the 

impacts of storm surges caused by 

hurricanes. Such ‘‘adjacent waters,’’ 

including wetlands, separated from 

waters by berms and the like maintain 

ecological connection with those waters. 

It is not the existence of the dike, levee, 

and the like that makes these waters 

jurisdictional. Adjacent waters 

separated from the tributary network by 

constructed dikes or barriers, natural 

river berms, beach dunes, and the like 

continue to have a hydrologic 

connection to downstream waters. 

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Waters behind berms and the like can 

significantly affect the chemical, 

physical, and biologic integrity of 

traditional navigable waters, interstate 

waters, or the territorial seas. 

c. Waters Within 100 Feet 

All wetlands, ponds, lakes, oxbows, 

impoundments, and similar water 

features that are located in whole or in 

part within 100 feet of the ordinary high 

water mark of a jurisdictional water 

perform a myriad of critical chemical, 

physical, and biological functions 

associated with the downstream 

traditional navigable water, interstate 

water or the territorial seas and 

therefore the agencies have determined 

that they are ‘‘neighboring’’ and thus 

‘‘waters of the United States.’’ Waters 

within 100 feet of a jurisdictional water 

are often located within the riparian 

area and are often connected via surface 

and shallow subsurface hydrology to the 

water to which they are adjacent. While 

the SAB was clear that distance is not 

the only factor that influences 

connections and their effects 

downstream, due to their close 

proximity to jurisdictional waters, 

waters within 100 feet are often located 

within a landscape position that allows 

for them to receive and process surface 

and shallow subsurface flows before 

they reach streams and rivers. These 

waters individually and collectively 

affect the integrity of downstream 

waters by acting primarily as sinks that 

retain floodwaters, sediments, nutrients, 

and contaminants that could otherwise 

negatively impact the condition or 

function of downstream waters. 

Wetlands and open waters within close 

proximity of jurisdictional waters 

improve water quality through 

assimilation, transformation, or 

sequestration of nutrients, sediment, 

and other pollutants that can affect the 

integrity of downstream traditional 

navigable waters, interstate waters, or 

the territorial seas. These waters, 

including wetlands, also provide 

important habitat for aquatic-associated 

species to forage, breed, and rest. 

In order to provide greater clarity and 

consistency and based on a review of 

the science and the agencies’ expertise 

and experience, the agencies identified 

a 100 foot threshold for neighboring 

waters to a traditional navigable water, 

interstate water, territorial sea, tributary, 

or impoundment. Further, the agencies 

determined that there is a significant 

nexus with the downstream traditional 

navigable waters, interstate waters, or 

the territorial seas, and these ‘‘adjacent 

waters’’ are ‘‘waters of the United 

States.’’ With respect to provision of 

water quality benefits downstream, nonfloodplain waters within close 

proximity of the stream network often 

are able to have more water quality 

benefits than those located at a distance 

from the stream. Many studies indicate 

that the primary water quality and 

habitat benefits will generally occur 

within a several hundred foot zone of a 

water. In addition, the scientific 

literature indicates that to be effective, 

contaminant removal needs to occur at 

a reasonable distance prior to entry into 

the downstream traditional navigable 

waters, interstate waters, or the 

territorial seas. Some studies also 

indicate that fish, amphibians (e.g., 

frogs, toads), reptiles (e.g., turtles), and 

small mammals (e.g., otters, beavers, 

etc.) will use at least a 100 foot zone for 

foraging, breeding, nesting, and other 

life cycle needs. 

Based on a review of the scientific 

literature and the agencies’ expertise 

and experience, there is clear evidence 

that the identified waters within 100 

feet of the ordinary high water mark of 

a jurisdictional water, even when 

located outside the floodplain, perform 

critical processes and functions 

discussed in section III above. All 

waters within 100 feet of a jurisdictional 

water significantly affect the chemical, 

physical, or biological integrity of the 

waters to which they are adjacent, and 

those waters in turn significantly affect 

the chemical, physical, or biological 

integrity of the downstream traditional 

navigable waters, interstate waters, or 

the territorial seas. The agencies 

established a 100 foot threshold from 

the water’s lateral limit in the definition 

of neighboring because, based on the 

agencies’ expertise and experience 

implementing the CWA and in light of 

the science, the agencies concluded this 

was a reasonable and practical boundary 

within which to conclude the waters 

clearly significantly affected the 

integrity of traditional navigable waters, 

interstate waters, or the territorial seas, 

and these ‘‘adjacent waters’’ are ‘‘waters 

of the United States.’’ 

d. Floodplain Waters Within 1,500 Feet 

As discussed in section III above, 

wetlands and open waters that are 

neighboring perform a myriad of critical 

chemical and biological functions 

associated with the downstream 

traditional navigable waters, interstate 

waters, or the territorial seas. The 

scientific literature supports that 

wetlands and open waters in 

floodplains are chemically, physically, 

and biologically connected to 

downstream traditional navigable 

waters, interstate waters, or the 

territorial seas and significantly affect 

the integrity of such waters. The Science 

Report concludes that wetlands and 

open waters located in ‘‘floodplains are 

physically, chemically and biologically 

integrated with rivers via functions that 

improve downstream water quality, 

including the temporary storage and 

deposition of channel-forming sediment 

and woody debris, temporary storage of 

local ground water that supports 

baseflow in rivers, and transformation 

and transport of stored organic matter.’’ 

Science Report at ES–2 to ES–3. Such 

waters act as the most effective buffer to 

protect downstream waters from 

nonpoint source pollution (such as 

nitrogen and phosphorus), provide 

habitat for breeding fish and aquatic 

insects that also live in streams, and 

retain floodwaters, sediment, nutrients, 

and contaminants that could otherwise 

negatively impact the condition or 

function of downstream waters. 

For waters in the 100-year floodplain 

within 1,500 feet of the ordinary high 

water mark of a traditional navigable 

water, interstate water, the territorial 

seas, impoundment, or covered 

tributary, the agencies determine there 

is a significant nexus with the 

downstream traditional navigable 

waters, interstate waters, or the 

territorial seas and these waters are 

critical to protect the downstream 

waters. Based on a review of the 

scientific literature, the agencies’ 

technical expertise and experience, and 

the implementation value of drawing 

clear lines, the rule establishes a 

boundary for floodplain waters to meet 

the definition of ‘‘neighboring’’ and be 

‘‘waters of the United States’’ by rule. 

This boundary was established in order 

to protect vitally important waters 

within a watershed while at the same 

time providing a practical and 

implementable rule. The agencies are 

not determining that waters in the 

floodplain farther than 1,500 feet from 

the ordinary high water mark never 

have a significant nexus. Rather, the 

agencies are using their technical 

expertise to promulgate a practical rule 

that draws reasonable boundaries in 

order to protect the waters that most 

clearly have a significant nexus while 

minimizing uncertainty about the scope 

of ‘‘waters of the United States.’’ 

Because waters beyond these 

boundaries may have a significant 

nexus, the rule also establishes areas in 

which a case-specific significant nexus 

determination must be made. See 

section IV.H. 

e. Waters Within 1,500 Feet of TidallyInfluenced Traditional Navigable Waters 

or the Territorial Seas or the Great Lakes 

Many tidally-influenced waters do not 

have floodplains, so the agencies 

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include a separate provision within the 

definition of ‘‘neighboring’’ to protect 

the ‘‘adjacent’’ waters that have a 

significant nexus to tidally-influenced 

traditional navigable waters or the 

territorial seas or the Great Lakes. Under 

Riverside Bayview and Justice 

Kennedy’s opinion in Rapanos, waters 

adjacent to traditional navigable waters, 

including the territorial seas, are 

‘‘waters of the United States.’’ Because 

the connection to a tidally-influenced 

traditional navigable water, the 

territorial seas, or the Great Lakes is so 

close, the rule defines ‘‘neighboring’’ to 

include waters within 1,500 feet of the 

high tide line or the ordinary high water 

mark of the Great Lakes. Wetlands, 

ponds, lakes, oxbows, impoundments, 

and similar water features within 1,500 

feet of these waters are physically 

connected to such waters by surface and 

shallow subsurface flow. As 

demonstrated in section III above, these 

waters perform a myriad of critical 

chemical and biological functions 

associated with these nearby waters to 

which they are adjacent. 

These waters in combination 

significantly affect the integrity of the 

connected tidally influenced traditional 

navigable water or the territorial seas or 

the Great Lakes by acting primarily as 

sinks that retain floodwaters, sediments, 

nutrients, and contaminants that could 

otherwise negatively impact the 

condition or function of those waters. 

Like floodplain waters, the scientific 

literature supports that wetlands and 

other similar waters within close 

proximity improve water quality 

through assimilation, transformation, or 

sequestration of nutrients, sediment, 

and other pollutants that can affect 

downstream water quality. These waters 

also provide important habitat for 

aquatic-associated species to forage, 

breed, and rest in. 

For example, wetlands dominated by 

grass-like vegetation that occur in 

depressional areas between sand dunes 

or beach ridges along the territorial seas 

and the Great Lakes shoreline are 

dependent upon these waters for their 

water source. The waters, including 

wetlands, generally form when water 

levels of the territorial seas fall or the 

Great Lakes drop, creating swales that 

support a diverse mix of wetland 

vegetation and many endangered and 

threatened species. Many studies 

demonstrate that these waters have been 

shown to act in concert with the rising 

and lowering of the tide, and that the 

critical functions provided by these 

waters are similar and play an important 

role in maintaining the chemical, 

physical, or biological integrity of the 

nearby traditional navigable waters, 

interstate waters, or the territorial seas 

because of the hydrological and 

ecological connections to and 

interactions with those waters. 

Science demonstrates that distance is 

a factor in the connectivity and the 

strength of connectivity of wetlands and 

open waters to downstream waters. 

Thus, waters that are more distant 

generally have less opportunity to be 

connected to downstream waters. 

Wetlands and open waters closer to the 

stream network generally will have 

greater hydrologic and biological 

connectivity than waters located farther 

from the same network. For instance, 

waters that are more closely proximate 

have a greater opportunity to contribute 

flow. Via their hydrologic connectivity, 

they also have chemical connectivity to 

and effects on these downstream waters 

and are more likely to impact water 

quality due to their close distance. 

Waters more closely located to these 

waters are also more likely to be 

biologically connected to such waters 

more frequently and by more species, 

including amphibians and other aquatic 

animals. Because tidally-influenced 

traditional navigable waters, the 

territorial seas, and the Great Lakes are 

generally much larger in size than other 

jurisdictional waters, the agencies 

believe that a 1,500 foot threshold is a 

reasonable distance to capture most 

wetlands and open waters that are so 

closely linked to these waters that they 

can properly be considered adjacent as 

neighboring waters. 

Based on a review of the scientific 

literature and the agencies’ expertise 

and experience, there is clear evidence 

waters within 1,500 feet of these waters, 

even when located outside the 

floodplain, perform critical processes 

and functions discussed in section III 

above. The agencies established a 1,500 

foot threshold from the water’s lateral 

limit, which would be either the high 

tide line or the ordinary high water 

mark, in the definition of neighboring 

because, based on the agencies’ 

expertise and experience implementing 

the CWA and in light of the science, the 

agencies concluded this was a 

reasonable and practical boundary 

within which to conclude the waters 

most clearly significantly affected the 

integrity of the traditional navigable 

water or the territorial seas, and these 

covered adjacent waters are ‘‘waters of 

the United States.’’ Waters located 

within the 100-year floodplain of a 

traditional navigable water, interstate 

water, or the territorial seas, and waters 

located more than 1,500 feet and less 

than 4,000 feet from the ordinary high 

water mark of a traditional navigable 

water, interstate water, the territorial 

seas, an impoundment, or a tributary, 

may still be determined to have a 

significant nexus on a case-specific 

basis under paragraph (a)(8) of the rule 

and therefore be a ‘‘water of the United 

States.’’ See section IV.H. 

H. Case-Specific ‘‘Waters of the United 

States’’ 

The rule establishes two exclusive 

circumstances under which casespecific determinations will be made for 

whether a water has a ‘‘significant 

nexus’’ and is therefore a ‘‘water of the 

United States.’’ The proposed rule 

included a broad provision that allowed 

for a case-specific determination of 

significant nexus for any water that was 

not categorically jurisdictional or 

excluded. Many commenters expressed 

concern that such a broad opportunity 

for case-specific ‘‘waters of the United 

States’’ determinations would lead to 

too much uncertainty about the 

jurisdictional status of waters in broad 

areas throughout the country. The 

agencies have greatly reduced the extent 

of waters subject to this individual 

review by carefully incorporating the 

scientific literature and by utilizing 

agency expertise and experience to draw 

boundaries. The rule provides for casespecific determinations under more 

narrowly targeted circumstances based 

on the agencies’ assessment of the 

importance of certain specified waters 

to the chemical, physical, and biological 

integrity of traditional navigable waters, 

interstate waters, and the territorial seas. 

First, the rule identifies at paragraph 

(a)(7) five subcategories of waters 

(Prairie potholes, Carolina and 

Delmarva bays, pocosins, western vernal 

pools in California, and Texas coastal 

prairie wetlands) that the agencies have 

determined are ‘‘similarly situated’’ for 

purposes of a significant nexus 

determination. Second, the rule 

identifies at paragraph (a)(8) specific 

circumstances under which waters will 

be subject to a case-specific significant 

nexus determination but for which the 

agencies have not made a ‘‘similarly 

situated’’ determination: Waters within 

the 100-year floodplain of a traditional 

navigable water, interstate water, or the 

territorial seas, and waters within 4,000 

feet of the high tide line or the ordinary 

high water mark of a traditional 

navigable water, interstate water, the 

territorial seas, impoundments, or 

tributaries, as defined. If any water 

meets the definition of ‘‘adjacent’’ 

waters it is jurisdictional under 

paragraph (a)(6) and no case-specific 

significant nexus is required. Waters 

that do not fall within the six 

categorically jurisdictional waters 

identified in paragraph (a)(1) through 

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(a)(6) of the rule or within these two 

case-specific provisions are not ‘‘waters 

of the United States.’’ 

This section first discusses the five 

subcategories of waters that the agencies 

determine are ‘‘similarly situated’’ for 

purposes of a significant nexus 

determination; second, the 100-year 

floodplain and 4,000 foot boundaries 

under which waters will be subject to a 

case-specific significant nexus 

determination but for which the 

agencies have not made a ‘‘similarly 

situated’’ determination; third, the 

definition of ‘‘significant nexus’’ and 

how the case-specific significant nexus 

determinations will be made under 

these two provisions; and, finally, the 

revisions made to the rule with respect 

to case-specific determinations and 

major comments. 

1. Waters Determined To Be ‘‘Similarly 

Situated’’ by Rule for Which a CaseSpecific Significant Nexus 

Determinations Is Required 

In the rule, paragraph (a)(7) specifies 

the subcategories of waters (Prairie 

potholes, Carolina and Delmarva bays, 

pocosins, western vernal pools in 

California, and Texas coastal prairie 

wetlands) that, if they are not otherwise 

jurisdictional under paragraphs (a)(1) 

through (a)(6), the agencies determine to 

be ‘‘similarly situated’’ by rule. In the 

proposal the agencies sought comment 

on a number of options to address 

remaining waters that did not fit within 

the jurisdictional categories, including 

whether to conclude that other waters 

were ‘‘similarly situated’’ in certain 

areas of the country or whether to 

conclude that specified subcategories of 

waters were jurisdictional. 79 FR 22215, 

22216. The agencies concluded that 

waters within the five subcategories 

were ‘‘similarly situated’’ in the areas of 

the country in which they are located. 

The rationale for this determination is 

discussed above in Section III. Under 

paragraph (a)(7), Prairie potholes, 

Carolina and Delmarva bays, pocosins, 

western vernal pools in California, and 

Texas coastal prairie wetlands are 

jurisdictional when they have a 

significant nexus to a traditional 

navigable water, interstate water, or the 

territorial seas. Waters subject to normal 

farming, silviculture, and ranching 

activities that are within these 

subcategories will be assessed 

consistent with this provision of the 

rule. Waters in these subcategories are 

not jurisdictional as a class under the 

rule. However, because the agencies 

determined that these subcategories of 

waters are ‘‘similarly situated,’’ the 

waters within the specified 

subcategories that are not otherwise 

jurisdictional under paragraph (a)(6) of 

the rule must be assessed in 

combination with all waters of the same 

subcategory in the region identified by 

the watershed that drains to the nearest 

point of entry of a traditional navigable 

water, interstate water, or the territorial 

seas (hereinafter referred to as the point 

of entry watershed). 

When performing a case-specific 

significant nexus evaluation for a water 

in the paragraph (a)(7) subcategories, the 

rule establishes which waters must be 

considered in combination. The 

similarly situated waters identified in 

the subparagraphs will be combined 

with other waters in the same 

subparagraph located in a single point 

of entry watershed. For example, under 

paragraph (a)(7) only western vernal 

pools can be analyzed with other 

western vernal pools in the same point 

of entry watershed. Waters identified in 

the subparagraphs that are otherwise 

jurisdictional under the rule cannot be 

considered in combination with 

paragraph (a)(7) waters for purposes of 

a case-specific significant nexus 

determination under paragraph (a)(7). 

Individual waters of the specified 

subcategories may be jurisdictional 

under other paragraphs of this rule (e.g., 

a Prairie pothole that sits on a state 

border is an interstate water under 

paragraph (a)(2) or a western vernal pool 

that meets the definition of adjacent 

under paragraph (a)(6)). Where those 

individual waters are jurisdictional 

under paragraph (a)(1) through (a)(6) by 

rule, no case-specific significant nexus 

analysis is required. The rule also states 

that waters in paragraph (a)(7) shall not 

be combined with waters jurisdictional 

under paragraph (a)(6). Essentially, 

while Prairie potholes are an identified 

subcategory under paragraph (a)(7), that 

identification does not affect a Prairie 

pothole that borders a covered tributary 

and is jurisdictional as an adjacent 

water under paragraph (a)(6). 

Additionally, a Prairie pothole that is 

jurisdictional under paragraph (a)(6) 

cannot be combined with Prairie 

potholes that require a case-specific 

jurisdictional analysis under paragraph 

(a)(7) since ‘‘adjacent waters’’ have 

already been determined to have a 

significant nexus by rule. Finally, 

waters within the specified 

subcategories in paragraph (a)(7) are 

assessed under paragraph (a)(7) not 

under paragraph (a)(8); waters within 

the specified subcategories that are 

within the 100-year flood plain of a 

traditional navigable water, interstate 

water, or the territorial seas or within 

the 4,000 foot boundary established for 

case-specific determinations under 

paragraph (a)(8) remain ‘‘similarly 

situated’’ waters under paragraph (a)(7). 

These similarly situated waters are 

evaluated in combination for their effect 

on the chemical, physical, or biological 

integrity of traditional navigable waters, 

interstate waters, or the territorial seas. 

Additional details about the casespecific significant nexus analysis are 

found in section 4 below. 

2. Waters Within the 100-Year 

Floodplain of a Traditional Navigable 

Water, Interstate Water, or the 

Territorial Seas and Waters Within 

4,000 Foot Boundary for Which a CaseSpecific Significant Nexus 

Determination Is Required 

Paragraph (a)(8) in the rule specifies 

that a water that does not otherwise 

meet the definition of adjacency is 

evaluated on a case-specific basis for 

significant nexus under this paragraph 

where it is located within the 100-year 

floodplain of a traditional navigable 

water, interstate water, or the territorial 

seas or within 4,000 feet of the high tide 

line or ordinary high water mark of a 

traditional navigable water, interstate 

water, the territorial seas, 

impoundment, or covered tributary. 

Although these waters are not 

considered similarly situated by rule, 

waters under this paragraph can be 

determined on a case-specific basis to be 

similarly situated. This is a change from 

the proposal which would have allowed 

for a similarly situated analysis and 

significant nexus determination for any 

water, anywhere in the region. Under 

the rule, the waters specified in 

paragraph (a)(7) and waters that meet 

the requirements in paragraph (a)(8) are 

the only waters for which a case-specific 

significant nexus determination may be 

made. 

Under paragraph (a)(8), only waters 

that are within the 100-year floodplain 

of a traditional navigable water, 

interstate water, or the territorial seas or 

within the 4,000 foot boundary can be 

evaluated on a case-specific basis for 

significant nexus to a traditional 

navigable water, interstate water, or the 

territorial seas. If a portion of the water 

is located within the 100-year 

floodplain of a traditional navigable 

water, interstate water, or the territorial 

seas or 4,000 feet of the ordinary high 

water mark or high tide line of a 

traditional navigable water, interstate 

water, the territorial seas, 

impoundment, or covered tributary, the 

entire water will be considered to be 

within the boundaries for paragraph 

(a)(8) and will undergo a case-specific 

significant nexus determination. Under 

this provision, if the 100-year floodplain 

of a traditional navigable water, 

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interstate water, or the territorial seas 

extends beyond 4,000 feet of the 

ordinary high water mark, a water, that 

is not otherwise jurisdictional under the 

rule, within that floodplain will be 

evaluated under the 100-year floodplain 

boundary of paragraph (a)(8). A water 

within the boundaries must be 

evaluated on a case-specific basis for not 

only a significant nexus but also for a 

determination of whether there are any 

waters with which the waters is 

similarly situated. Waters identified in 

paragraph (a)(8) may not be combined 

with waters identified in paragraph 

(a)(6) for purposes of the significant 

nexus analysis, but may be combined 

with similarly situated waters located in 

the same point of entry watershed. If 

waters identified in paragraph (a)(8) also 

meet the definition of adjacency under 

paragraph (a)(6), they are jurisdictional 

as ‘‘adjacent waters’’ and do not need a 

case-specific significant nexus analysis. 

Under paragraph (a)(8), for example, the 

agencies would evaluate on a casespecific basis whether a low-centered 

polygonal tundra and patterned ground 

bog in an area with a small floodplain 

and located beyond the 1,500 foot 

boundary but within the 100-year 

floodplain of a traditional navigable 

water, interstate water, or the territorial 

seas or within the 4,000 foot boundary, 

or a wetland in which normal farming, 

ranching, or silviculture activities occur, 

as those terms are used in section 404(f) 

of the Clean Water Act and its 

implementing regulations, has a 

significant nexus as defined in the rule. 

Waters identified in the subcategories 

in paragraph (a)(7) are evaluated under 

paragraph (a)(7) only; the provisions of 

paragraph (a)(8), including the 

boundaries in paragraph (a)(8), do not 

apply to paragraph (a)(7) waters. The 

significant nexus analysis for waters 

under paragraph (a)(8) will then 

consider the waters individually or, if it 

is determined that there are similarly 

situated waters, as a group of waters 

within a point of entry watershed for 

their effect on the chemical, physical, or 

biological integrity of traditional 

navigable waters, interstate waters, or 

the territorial seas. 

Some commenters asked how 

wetlands underlain by permafrost 

would be treated under this rule. Waters 

subject to case-specific review under 

paragraph (a)(8) will include areas 

determined to meet the technical 

definition of ‘‘wetlands’’ because they 

have the required hydrology, vegetation, 

and soils. The presence of permafrost is 

not itself determinative of whether a 

particular area satisfies the three 

parameter requirement needed to be 

wetlands under the rule. This is true 

under existing regulations and remains 

unchanged in this rule. Because the 

definition of wetland does not change 

under the rule, the agencies do not 

anticipate the rule will alter the current 

scope of CWA jurisdiction over 

wetlands underlain by permafrost. 

a. Summary of Rationale for CaseSpecific Significant Nexus Analysis 

Within 100-Year Floodplain of a 

Traditional Navigable Water, Interstate 

Water, or the Territorial Seas 

As discussed in Section III, above, the 

scientific literature supports that 

wetlands and open waters in 

floodplains are physically, chemically, 

and biologically connected to 

downstream traditional navigable 

waters, interstate waters, or the 

territorial seas and significantly affect 

the integrity of such waters. The Science 

Report concludes that wetlands and 

open waters located in ‘‘floodplains are 

physically, chemically and biologically 

integrated with rivers via functions that 

improve downstream water quality, 

including the temporary storage and 

deposition of channel-forming sediment 

and woody debris, temporary storage of 

local ground water that supports 

baseflow in rivers, and transformation 

and transport of stored organic matter.’’ 

Science Report at ES–2 to ES–3. As 

described in the Science Report and the 

Technical Support Document, such 

waters act as the most effective buffer to 

protect downstream waters from 

nonpoint source pollution (such as 

nitrogen and phosphorus), provide 

habitat for breeding fish and aquatic 

insects that also live in streams, and 

retain floodwaters, sediment, nutrients, 

and contaminants that could otherwise 

negatively impact the condition or 

function of downstream waters. As 

discussed above, in defining waters as 

adjacent, and therefore categorically 

jurisdictional, the agencies established a 

1,500 foot boundary for waters located 

within the 100-year floodplain of a 

traditional navigable water, interstate 

water, the territorial seas, 

impoundment, or covered tributary in 

order to protect vitally important waters 

while at the same time providing a 

practical and implementable rule. In 

light of the science on the functions 

provided by floodplain waters and 

wetlands, waters and wetlands within 

the 100-year floodplain of traditional 

navigable waters, interstate waters, or 

the territorial seas are likely to provide 

those functions for traditional navigable 

waters, interstate waters, or the 

territorial seas. However, because the 

100-year floodplain of a traditional 

navigable water can, in some case be 

quite large, the agencies concluded it 

was reasonable to subject waters and 

wetlands in the 100-year floodplain that 

are beyond 1,500 feet of the ordinary 

high water mark, and therefore do not 

meet the definition of ‘‘neighboring,’’ to 

a case-specific significant nexus 

analysis rather than concluding that 

such waters are categorically 

jurisdictional. This inclusion of a casespecific analysis for such floodplain 

waters is supported by the SAB. The 

SAB concluded that ‘‘distance should 

not be the sole indicator used to 

evaluate the connection of ‘other waters’ 

to jurisdictional waters.’’ SAB 2014b at 

3. In allowing the case-specific 

evaluation of waters within the 100-year 

floodplain of a traditional navigable 

water, interstate water, or the territorial 

seas that do not meet the definition of 

adjacency, the agencies are allowing for 

the functional relationship of those 

floodplain waters to be considered 

regardless of distance. The SAB also 

supported the Science Report’s 

conclusion that ‘‘the scientific literature 

strongly supports the conclusions that 

streams and ‘bidirectional’ floodplain 

wetlands are physically, chemically, 

and/or biologically connected to 

downstream navigable waters; however, 

these connections should be considered 

in terms of a connectivity gradient.’’ 

SAB 2014a at 1. In addition, the SAB 

noted, ‘‘the literature review does 

substantiate the conclusion that 

floodplains and waters and wetlands in 

floodplain settings support the physical, 

chemical, and biological integrity of 

downstream waters.’’ Id. at 3. 

The agencies do not anticipate that 

there will be numerous circumstances 

in which this provision will be utilized 

because relatively few traditional 

navigable waters will have floodplains 

larger than 4,000 feet (the other 

threshold in paragraph (a)(8) for waters 

regardless of floodplain). Further, the 

agencies recognize that extensive areas 

of the nation’s floodplains have been 

affected by levees and dikes which 

reduce the scope of flooding. In these 

circumstances, the scope of the 100-year 

floodplain is also reduced and is 

reflected in FEMA mapping used by the 

agencies. In circumstances where there 

is little or no alteration of the floodplain 

and it remains relatively broad, the 

agencies will explicitly consider 

distance between the water being 

evaluated and traditional navigable 

water, interstate water, or the territorial 

seas when making a case-specific 

significant nexus determination. Based 

on the science concerning the important 

functions provided by floodplain waters 

and wetlands, the agencies established 

this provision to ensure that truly 

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important waters may still be protected 

on a case-specific basis. By using the 

100-year floodplain and limiting the 

provision to traditional navigable 

waters, interstate waters, or the 

territorial seas, the agencies are 

reasonably balancing the protection of 

waters that may have a significant nexus 

with the goal of providing additional 

certainty. 

b. Summary of Rationale for CaseSpecific Significant Nexus Analysis 

Within 4,000 Foot Boundary 

The agencies establish a provision in 

the rule for case-specific significant 

nexus determinations because the 

agencies concluded that some waters 

located beyond the distance limitations 

established for ‘‘adjacent waters’’ can 

have significant chemical, physical, and 

biological connections to and effects on 

traditional navigable waters, interstate 

waters, or the territorial seas. The 

agencies reasonably identified the 4,000 

foot boundary for these case-specific 

significant nexus determinations by 

balancing consideration of the science 

and the agencies’ expertise and 

experience in making significant nexus 

determinations with the goal of 

providing clarity to the public while 

protecting the environment and public 

health. The agencies’ experience has 

shown that the vast majority of waters 

where a significant nexus has been 

found, and which are therefore 

important to protect to achieve the goals 

of the Act, are located within the 4,000 

foot boundary. Moreover, because of the 

unique status under the CWA of 

traditional navigable waters, interstate 

waters, and the territorial seas, the 100- 

year floodplain boundary for these 

waters provides another means of 

identifying on a case-specific basis those 

waters that significantly affect 

traditional navigable waters, interstate 

waters or the territorial seas. The 

agencies’ balancing of these 

considerations is consistent with the 

statute and the Supreme Court opinions. 

The agencies decided that it is 

important to promulgate a rule that not 

only protects the most vital of our 

Nation’s waters, but one that is practical 

and provides sufficient boundaries so 

that the public reasonably understands 

where CWA jurisdiction ends. 

The agencies’ decision to establish a 

provision that authorizes case-specific 

significant nexus analysis for waters 

within 4,000 feet is based on a number 

of factors. These waters may be located 

within the floodplain of a traditional 

navigable water, interstate water, the 

territorial seas, impoundment, or 

covered tributary. Section IV.G. and the 

Technical Support Document discuss 

the importance of floodplain waters on 

the chemical, physical, and biological 

integrity of downstream traditional 

navigable waters, interstate waters, or 

the territorial seas. For purposes of 

clarity and to provide regulatory 

certainty, the agencies decided to use 

distance boundaries within the 100-year 

floodplain to define adjacency for 

floodplain waters. Under the rule, the 

only floodplain waters that are 

specifically identified as being 

jurisdictional as ‘‘adjacent’’ are those 

located in whole or in part within the 

100-year floodplain and not more than 

1,500 feet of the ordinary high water 

mark of jurisdictional waters. 

Similarly, due to the many functions 

that waters located within 4,000 feet of 

the high tide line of a traditional 

navigable water or the territorial seas 

provide and their often close 

connections to the surrounding 

traditional navigable waters, science 

supports the agencies’ determination 

that such waters are rightfully evaluated 

on a case-specific basis for significant 

nexus to a traditional navigable water or 

the territorial seas. Waters within 4,000 

feet of the ordinary high water mark of 

a traditional navigable water, interstate 

water, the territorial seas, 

impoundment, or covered tributary may 

fall within the riparian areas of such 

waters. As discussed in section IV.G., in 

response to comments regarding the 

uncertainty of the term ‘‘riparian area,’’ 

the agencies removed the term from the 

definition of ‘‘neighboring.’’ However, 

the agencies continue to recognize that 

science is clear that wetlands and open 

waters in riparian areas individually 

and cumulatively can have a significant 

effect on the chemical, physical, or 

biological integrity of downstream 

waters. Thus, the rule allows for a casespecific determination of significant 

nexus for waters located within 4,000 

feet of the high tide line or the ordinary 

high water mark of a traditional 

navigable water, interstate water, the 

territorial seas, impoundment, or 

covered tributary. 

The agencies have always recognized 

that adjacency is bounded by proximity, 

and the rule adds additional clarity to 

adjacency by bounding what can be 

considered neighboring. The science is 

clear that a water’s proximity to 

downstream waters influences its 

impact on those waters. The Science 

Report states, ‘‘[s]patial proximity is one 

important determinant of the 

magnitude, frequency and duration of 

connections between wetlands and 

streams that will ultimately influence 

the fluxes of water, materials and biota 

between wetlands and downstream 

waters.’’ Science Report at ES–11. 

Generally, waters that are closer to a 

jurisdictional water are more likely to be 

connected to that water than waters that 

are farther away. A case-specific 

analysis for waters located within 4,000 

feet of the high tide line or the ordinary 

high water mark of a traditional 

navigable water, interstate water, the 

territorial seas, impoundment, or 

covered tributary allows such waters to 

be considered jurisdictional only where 

they meet the significant nexus 

requirements. Even where not within a 

100-year floodplain, waters within 4,000 

feet of the high tide line or the ordinary 

high water mark of a traditional 

navigable water, interstate water, the 

territorial seas, impoundment, or 

covered tributary can have significant 

chemical, physical, and biological 

connections with traditional navigable 

waters, interstate waters, or the 

territorial seas. 

As noted previously, in response to 

comments concerned that there were no 

bounds in the proposed rule on how far 

a surface hydrologic connection could 

be for purposes of adjacency, the 

agencies did not include surface 

hydrologic connections as its own factor 

for determining adjacency in the final 

rule. Such connections, however, are 

relevant in a case-specific significant 

nexus determination under paragraph 

(a)(8). For example, waters located 

within 4,000 feet of the high tide line or 

the ordinary high water mark of a 

traditional navigable water, interstate 

water, the territorial seas, 

impoundment, or covered tributary that 

contribute confined surface flow to a 

downstream water can have important 

hydrologic connections to and effects on 

that downstream water such as the 

attenuation and cycling of nutrients that 

would otherwise effect downstream 

water quality. 

The agencies’ decision to establish the 

case-specific provision at paragraph 

(a)(8), including the boundaries, was 

also informed by the knowledge that 

waters located within 4,000 feet of the 

high tide line or the ordinary high water 

mark of a traditional navigable water, 

interstate water, the territorial seas, 

impoundment, or covered tributary can 

have a confined surface or shallow 

subsurface connection to such a water. 

In order to provide the clarity and 

certainty that many commenters 

requested regarding ‘‘adjacent waters,’’ 

the rule does not define ‘‘neighboring’’ 

to include all waters with confined 

surface or shallow subsurface 

connections. 

However, the agencies recognize that 

the science demonstrates that waters 

with a confined surface or shallow 

subsurface connection to jurisdictional 

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waters can have important effects on 

downstream waters. For purposes of a 

case-specific significant nexus analysis 

under the rule, a shallow subsurface 

hydrologic connection is lateral water 

flow over a restricting layer in the top 

soil horizons, or a shallow water table 

which fluctuates within the soil profile, 

sometimes rising to or near the ground 

surface. In addition, water can move 

within confined man-made subsurface 

conveyance systems such as drain tiles 

and storm sewers, and in karst 

topography. Confined subsurface 

systems can move water, and potential 

contaminants, directly to surface waters 

and rapidly without the opportunity for 

nutrient or sediment reduction along the 

pathway. 

Shallow subsurface connections move 

quickly through the soil and impact 

surface water directly within hours or 

days rather than the years it may take 

long pathways to reach surface waters. 

See Technical Support Document. Tools 

to assess shallow subsurface flow 

include reviewing the soils information 

from the NRCS Soil Survey, which is 

available for nearly every county in the 

United States. When assessing whether 

a water within the 4,000 foot boundary 

performs any of the functions identified 

in the rule’s definition of significant 

nexus, the significant nexus 

determination can consider whether 

shallow subsurface connections 

contribute to the type and strength of 

functions provided by a water or 

similarly situated waters. However, 

neither shallow subsurface connections 

nor any type of groundwater, shallow or 

deep, are themselves ‘‘waters of the 

United States.’’ 

The proposed rule did not set a 

distance threshold for case-specific 

waters to be evaluated for a significant 

nexus. Some commenters argued that 

there should be a limitation on areas 

subject to case-specific analysis while 

others contended that the agencies lack 

discretion to set regulatory limits that 

would exclude from jurisdiction any 

water meeting the significant nexus test. 

The agencies disagree that the agencies 

lack the authority to establish 

reasonable boundaries to determine 

what areas are subject to case-specific 

significant nexus analysis. Nothing in 

the CWA or case law mandates that the 

agencies require every water feature in 

the nation be subject to analysis for 

significant nexus. The Supreme Court 

has made clear that the agencies have 

the authority and responsibility to 

determine the limits of CWA 

jurisdiction, and establishing 

boundaries based on agency judgment, 

expertise and experience in 

administering the statute is at the core 

of the agencies authority and discretion. 

After weighing the scientific 

information about these waters’ 

connectivity and importance to 

protecting downstream waters, the 

agencies’ considerable experience 

making jurisdictional determinations, 

the objective of enhancing regulatory 

clarity and consistent with the statute 

and the caselaw, the agencies decided to 

set a boundary of 4,000 feet for casespecific significant nexus analysis for 

waters that do not otherwise meet the 

requirements of paragraphs (a)(1) 

through (a)(7). Tying this provision for 

case-specific significant nexus analysis 

to distance informed by the science, and 

the agencies’ experience and expertise, 

as spatial proximity is a key contributor 

to connectivity among waters. Science 

Report at ES–11. Distance is by no 

means the sole factor, and aquatic 

functions will play a prominent role in 

determining whether specific waters 

covered under this aspect of paragraph 

(a)(8) have a significant nexus. In light 

of the role spatial proximity plays in 

connectivity and the objective of 

enhancing regulatory clarity, 

predictability and consistency, the 

agencies conclude that establishing a 

boundary for this aspect of waters 

subject to case-specific significant nexus 

analysis based on distance is reasonable. 

While, for purposes of this national 

rule, distance is a reasonable and 

appropriate measure for identifying 

where this case-specific significant 

nexus analysis will be conducted, the 

science does not point to any particular 

bright line delineating waters that have 

a significant nexus from those that do 

not. The Science Report concluded that 

connectivity of streams and wetlands to 

downstream waters occurs along a 

gradient. The evidence unequivocally 

demonstrates that the stream channels 

and floodplain wetlands or open waters 

that together form river networks are 

clearly connected to downstream waters 

in ways that profoundly influence 

downstream water integrity. The 

connectivity and effects of nonfloodplain wetlands and open waters 

are more variable and thus more 

difficult to address solely from evidence 

available in peer-reviewed studies. 

Science Report at ES–5. Because of this 

variability, with respect to waters that 

are not covered by paragraphs (a)(1) 

through (a)(7) of the rule, the science 

does not provide a precise point along 

the continuum at which waters provide 

only speculative or insubstantial 

functions to downstream waters. 

Like connectivity itself, there is also 

a continuum of outcomes associated 

with picking a distance threshold. A 

smaller threshold increases the 

likelihood that waters that could have a 

significant nexus will not be analyzed 

and therefore not subject to the Act; a 

larger threshold reduces that possibility, 

but also means that agency and the 

public’s resources are expended 

conducting significant nexus analyses 

on waters that have a lower likelihood 

of meriting the Act’s protection. 

Recognizing that there is no optimal 

line, in selecting both the 100-year 

floodplain for and the 4,000 foot 

boundaries the agencies looked 

principally to the extensive experience 

the Corps has gained in making 

significant nexus determinations since 

the Rapanos decision. As noted in 

Section III above, since the Rapanos 

decision, the agencies have developed 

extensive experience making significant 

nexus determinations, and that 

experience and expertise informed the 

judgment of the agencies in establishing 

both the 100-year floodplain boundary 

and the 4,000 foot boundary. The 

agencies have made determinations in 

every state in the country, for a wide 

range of waters in a wide range of 

conditions. The vast majority of the 

waters that the Corps has determined 

have a significant nexus are located 

within 4,000 feet of a jurisdictional 

tributary, traditional navigable or 

interstate water, or the territorial seas. 

Therefore, the agencies conclude that 

the 100-year floodplain and 4,000 foot 

boundaries in the rule will sufficiently 

capture for analysis those waters that 

are important to protect to achieve the 

goals of the Clean Water Act. 

The agencies acknowledge that, as 

with any meaningful boundary, some 

waters that could be found 

jurisdictional lie beyond the boundary 

and will not be analyzed for significant 

nexus. The agencies minimize that risk 

by also establishing a provision in 

paragraph (a)(8) for case-specific 

significant nexus analysis of waters 

located within the 100-year floodplain 

of a traditional navigable water, 

interstate water, or the territorial seas. 

While in the agencies’ experience the 

vast majority of wetlands with a 

significant nexus are located within the 

4,000 foot boundary, it is the agencies’ 

experience that there are a few waters 

that have been determined to be 

jurisdictional that are located beyond 

this boundary, typically due to a surface 

or shallow subsurface hydrologic 

connections. Nonetheless, the agencies 

have weighed these considerations and 

concluded that the value of enhancing 

regulatory clarity, predictability and 

consistency through a distance limit 

outweigh the likelihood that a distinct 

minority of waters that might be shown 

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to meet the significant nexus test will 

not be subject to analysis. In the 

agencies’ experience, requiring an 

evaluation of significant nexus for 

waters covered by paragraph (a)(8) 

should capture the vast majority of 

waters having a significant nexus to the 

downstream waters. The agencies 

therefore conclude that that adoption of 

the 4,000 foot boundary is reasonable. 

The rule’s requirements for these 

waters, coupled with those for ‘‘adjacent 

waters,’’ create an integrated approach 

that tailors the regulatory regime based 

on the science and the agencies’ policy 

objectives. Determining by rule that 

covered adjacent waters have a 

significant nexus follows the science, 

achieves regulatory clarity and 

predictability, and avoids expenditure 

of agency and public resources on casespecific significant nexus analysis. 

Similarly, providing for case-specific 

significant nexus analysis for waters 

that are not adjacent but within the 

4,000 foot distance limit, as well as 

those within the 100-year floodplain of 

a traditional navigable water, interstate 

water, or the territorial seas, is 

consistent with science and agency 

experience, will ensure protection of the 

important waters whose protection will 

advance the goals of the Clean Water 

Act, and will greatly enhance regulatory 

clarity for agency staff, regulated parties, 

and the public. 

For these reasons, the agencies 

decided to allow case-specific 

determinations of significant nexus for 

waters located within the 100-year 

floodplain of a traditional navigable 

water, interstate water, or the territorial 

seas and for waters located within 4,000 

feet of the high tide line or the ordinary 

high water mark of a traditional 

navigable water, an interstate water, the 

territorial seas, an impoundment, or a 

covered tributary. Under the rule, these 

waters are jurisdictional only where 

they individually or cumulatively (if it 

is determined that there are other 

similarly situated waters) have a 

significant nexus to traditional 

navigable waters, interstate waters, or 

the territorial seas. Additional scientific 

and policy rationale for including such 

waters as waters that can be evaluated 

on a case-specific basis can be find in 

the Technical Support Document. 

The agencies emphasize that they 

fully support efforts by States and tribes 

to protect under their own laws any 

additional waters, including locally 

special waters that may not be within 

the jurisdiction of the CWA as the 

agencies have interpreted its scope in 

this rule. Indeed, the promulgation of 

the 100-year floodplain and 4000 foot 

boundaries for purposes of a casespecific analysis of significant nexus 

does not foreclose states from acting 

consistent with their state authorities to 

establish protection for waters that fall 

outside of the protection of the CWA. In 

promulgating the 4,000 foot boundary, 

the agencies have balanced protection 

and clarity, scientific uncertainties and 

regulatory experience, and established a 

line that is, in their judgment, 

reasonable and consistent with the 

statute and its goals and objectives. 

3. Case-Specific Significant Nexus 

Determinations 

Only waters identified in paragraphs 

(a)(7) or (a)(8) of the rule require a casespecific determination of significant 

nexus. This section discusses the 

definition of significant nexus in the 

rule and how the agencies will make 

case-specific significant nexus 

determinations under the rule. 

a. Definition of Significant Nexus 

Paragraph (c)(5) of the rule defines the 

term ‘‘significant nexus’’ to mean a 

significant effect (more than speculative 

or insubstantial) on the chemical, 

physical, or biological integrity of a 

traditional navigable water, interstate 

water, or the territorial seas. Waters, 

including wetlands, are evaluated either 

alone, or in combination with other 

similarly situated waters in the region, 

based on the functions the evaluated 

waters perform. Functions to be 

considered for the purposes of 

determining significant nexus are 

sediment trapping, nutrient recycling, 

pollutant trapping, transformation, 

filtering and transport, retention and 

attenuation of floodwaters, runoff 

storage, contribution of flow, export of 

organic matter, export of food resources, 

and provision of life-cycle dependent 

aquatic habitat (such as foraging, 

feeding, nesting, breeding, spawning, or 

use as a nursery area) for species located 

in traditional navigable waters, 

interstate waters, or the territorial seas. 

The agencies’ definition of significant 

nexus is based upon the language in 

SWANCC and Rapanos. The definition 

is also consistent with current practice, 

where field staff evaluate the functions 

of the waters in question and the effects 

of these functions on downstream 

waters. In order to add clarity and 

transparency to the definition of 

significant nexus, the agencies have 

listed in the definition the functions 

that will be considered in a significant 

nexus analysis. These functions are 

consistent with the agencies’ scientific 

understanding of the functioning of 

aquatic ecosystems. A water does not 

need to perform all of the functions 

listed in paragraph (c)(5) in order to 

have a significant nexus. Depending 

upon the particular water and the 

functions it provides, if a water, either 

alone or in combination with similarly 

situated waters, performs just one 

function, and that function has a 

significant impact on the integrity of a 

traditional navigable water, interstate 

water, or the territorial seas, that water 

would have a significant nexus. 

Case-specific determinations of 

significant nexus require paragraph 

(a)(7) or (a)(8) waters to be evaluated 

either alone, or in combination with 

other similarly situated waters in the 

region. In the rule, the agencies interpret 

the phrase ‘‘in the region’’ to mean the 

watershed that drains to the nearest 

traditional navigable water, interstate 

water, or the territorial seas through a 

single point of entry. See Section III. In 

circumstances where the single point of 

entry watershed includes waters that are 

identified under paragraph (a)(7) and 

waters that are subject to analysis under 

paragraph (a)(8), those waters will be 

analyzed separately under the 

provisions of those paragraphs. 

In a case-specific analysis of 

significant nexus, the agencies 

determine whether the water they are 

evaluating, in combination with other 

similarly situated waters in the region, 

has a significant effect on the chemical, 

physical, or biological integrity of the 

nearest traditional navigable water, 

interstate water, or the territorial seas. 

As noted previously, the agencies 

evaluate the listed functions in 

paragraph (c)(5) as part of that 

evaluation to determine if the water has 

an impact that is more than speculative 

or insubstantial. 

b. Conducting Case-Specific Significant 

Nexus Determinations Under 

Paragraphs (a)(7) and (a)(8) 

The significant nexus analysis for 

waters assessed under paragraphs (a)(7) 

and (a)(8) is a three-step process: First, 

the region for the significant nexus 

analysis must be identified—under the 

rule, it is the watershed which drains to 

the nearest traditional navigable water, 

interstate water or territorial sea; 

second, any similarly situated waters 

must be identified—under the rule, that 

is waters that function alike and are 

sufficiently close to function together in 

affecting downstream waters; and third, 

the waters are evaluated individually or 

in combination with any identified 

similarly situated waters in the single 

point of entry watershed to determine if 

they significantly impact the chemical, 

physical or biological integrity of the 

traditional navigable water, interstate 

water or the territorial seas. 

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i. ‘‘In the Region’’—The Point of Entry 

Watershed 

As discussed in Section III of the 

preamble and established in the 

definition of ‘‘significant nexus,’’ the 

region for purposes of a significant 

nexus analysis is the watershed that 

drains to the nearest traditional 

navigable water, interstate water, or the 

territorial seas. The first step of the 

analysis is to identify the point of entry 

watershed that the water being 

evaluated under paragraphs (a)(7) or 

(a)(8) drains to. This point of entry 

approach identifies the nearest 

traditional navigable water, interstate 

water, or the territorial seas that the 

water being evaluated and any similarly 

situated waters flow to and delineates 

the watershed of that nearest traditional 

navigable water, interstate water, or the 

territorial seas. The point of entry 

watershed is the area drained by the 

nearest traditional navigable water, 

interstate water, or the territorial seas 

and is typically defined by the 

topographic divides between one 

traditional navigable water, interstate 

water, or the territorial seas and another. 

Available mapping tools, such as 

those that are based on the NHD, 

topographic maps, and elevation data, 

can be used to demarcate boundaries of 

the single point of entry watershed. As 

discussed in Section III and in the 

Technical Support Document, the single 

point of entry watershed represents the 

scientifically appropriate sized area for 

conducting a case-specific significant 

nexus evaluation in most cases. 

In the arid West, the agencies 

recognize there may be situations where 

the single point of entry watershed is 

very large, and it may be reasonable to 

evaluate all similarly situated waters in 

a smaller watershed. Under those 

circumstances, the agencies may 

demarcate adjoining catchments 

surrounding the water to be evaluated 

that, together, are generally no smaller 

than a typical 10-digit hydrologic unit 

code (HUC–10) watershed in the same 

area. The area identified by this 

combination of catchments would be 

the ‘‘region’’ used for conducting a 

significant nexus evaluation under 

paragraphs (a)(7) or (a)(8) under those 

situations. The basis for such an 

approach in very large single point of 

entry watersheds in the arid West 

should be documented in the 

jurisdictional determination. 

ii. ‘‘Similarly Situated’’ 

Second, the agencies determine if the 

water or waters to be evaluated are 

similarly situated. The waters identified 

in paragraph (a)(7) are similarly situated 

by rule and shall be combined with 

other waters of the same category 

located in the same watershed that 

drains to the nearest traditional 

navigable water, interstate water, or the 

territorial seas with no need for a casespecific similarly situated finding. 

Under paragraph (a)(7), only waters of 

the same subparagraph in the point of 

entry watershed can be considered as 

similarly situated. For example, only 

pocosins may be evaluated with other 

pocosins in the same point of entry 

watershed. Pocosins in different point of 

entry watersheds cannot be combined, 

and pocosins cannot be combined with 

Carolina bays under paragraph (a)(7), 

even where they occur in the same point 

of entry watershed. 

Unlike waters evaluated under 

paragraph (a)(7), the waters specified at 

paragraph (a)(8) require a determination 

whether they are similarly situated. 

Under this step, the agencies apply 

factors in the determination of when 

waters evaluated under paragraph (a)(8) 

should be considered either 

individually or in combination for 

purposes of a significant nexus analysis. 

A determination of ‘‘similarly situated’’ 

requires an evaluation of whether a 

group of waters in the region that meet 

the distance thresholds set out under 

paragraph (a)(8) can reasonably be 

expected to function together in their 

effect on the chemical, physical, or 

biological integrity of downstream 

traditional navigable waters, interstate 

waters, or the territorial seas. 

Similarly situated waters can be 

identified as sufficiently close together 

for purposes of this paragraph of the 

regulation when they are within a 

contiguous area of land with relatively 

homogeneous soils, vegetation, and 

landform (e.g., plain, mountain, valley, 

etc.). In general, it would be 

inappropriate, for example, to consider 

waters as ‘‘similarly situated’’ under 

paragraph (a)(8) if these waters are 

located in different landforms, have 

different elevation profiles, or have 

different soil and vegetation 

characteristics, unless the waters 

perform similar functions and are 

located sufficiently close to a ‘‘water of 

the United States’’ to allow them to 

consistently and collectively function 

together to affect a traditional navigable 

water, interstate water, or the territorial 

seas. In determining whether waters 

under paragraph (a)(8) are sufficiently 

close to each other the agencies will also 

consider hydrologic connectivity to 

each other or a jurisdictional water. 

In determining whether groups of 

waters under paragraph (a)(8) perform 

‘‘similar functions’’ the agencies will 

consider functions such as habitat, 

water storage, sediment retention, and 

pollution sequestration. In addition, 

consideration of wetland/water type and 

landscape location are relevant for 

determining if the waters are similarly 

situated. For example, Texas coastal 

sand sheet wetlands that form a 

complex of wetlands with other 

wetlands of the same type on the 

landscape and are densely located may 

very well be similarly situated and 

considered in combination with other 

Texas coastal sand sheet wetlands in the 

same single point of entry watershed. 

However, under paragraph (a)(8), waters 

do not need to be of the same type (as 

they do in paragraph (a)(7)) to be 

considered similarly situated. As 

described above, waters are similarly 

situated under paragraph (a)(8) where 

they perform similar functions or are 

located sufficiently close to each other, 

regardless of type. The agencies will 

consider the hydrologic, geomorphic, 

and ecological characteristics and 

circumstances of the waters under 

consideration. Examples include: 

Documentation of chemical, physical, or 

biological interactions of the similarly 

situated waters; aerial photography; 

USGS and state and local topographical 

or terrain maps and information; NRCS 

soil survey maps and data; other 

available geographic information 

systems (GIS) data; National Wetlands 

Inventory maps where wetlands meet 

the CWA definition; and state and local 

information. The evaluation will use 

any available site information and 

pertinent field observations where 

available, relevant scientific studies or 

data, or other relevant jurisdictional 

determinations that have been 

completed in the region. 

Only those waters that do not meet 

the requirements in paragraph (a)(1) 

through (a)(6) are to be considered in 

case-specific significant nexus 

determinations; subcategory waters that 

meet the provisions in paragraph (a)(1) 

through (a)(6) are per se jurisdictional 

without the need for a significant nexus 

determination. For example, waters that 

are identified under paragraph (a)(6) are 

adjacent and are not subject to a casespecific significant nexus evaluation 

under paragraph (a)(7) or (a)(8). Waters 

evaluated under paragraph (a)(7) cannot 

be combined with waters identified in 

paragraph paragraph (a)(6) or (a)(8), and 

waters evaluated under paragraph (a)(8) 

cannot be combined with waters 

identified in paragraph (a)(6) or (a)(7). 

For example, Prairie potholes being 

evaluated under paragraph (a)(7) may 

not be combined with Prairie potholes 

that are per se jurisdictional under 

paragraph (a)(6) that meet the definition 

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of adjacent. When a water meets the 

specifications at both paragraphs (a)(7) 

and (a)(8), it can only be evaluated 

under paragraph (a)(7). That is, for 

example, if a wetland is a Western 

vernal pool and is also within 4,000 feet 

of the ordinary high water mark of a 

covered tributary, it can only be 

assessed for significant nexus under 

paragraph (a)(7) in combination with 

other Western vernal pools in the point 

of entry watershed. Unlike paragraph 

(a)(8), there is no distance threshold for 

waters evaluated under paragraph 

(a)(7)—that is, waters in the paragraph 

(a)(7) subcategories that are more than 

4,000 feet from the high tide line or the 

ordinary high water mark of a 

traditional navigable water, interstate 

water, the territorial seas, 

impoundment, or covered tributary or 

are beyond the 100-year floodplain of an 

traditional navigable water, interstate 

water, or the territorial seas are to be 

included in combination in a significant 

nexus analysis. 

iii. Significant Nexus Analysis for 

Paragraph (a)(7) and (a)(8) Waters 

Third, the agencies evaluate waters 

individually or in combination with any 

identified similarly situated waters in 

the single point of entry watershed to 

determine if they significantly impact 

the chemical, physical, or biological 

integrity of the traditional navigable 

water, interstate water, or the territorial 

seas. For purposes of determining 

significant nexus under paragraph (a)(7), 

all waters of the specified subcategory 

are to be considered in combination in 

the point of entry watershed, as those 

waters are similarly situated. For 

purposes of determining significant 

nexus under paragraph (a)(8), 

depending on the results of step two, a 

water within the boundaries in 

paragraph (a)(8) is evaluated either 

alone or in combination with other 

similarly situated waters in the region. 

For example, in the case where the 

agencies have determined that a 

particular water under paragraph (a)(8) 

is not similarly situated, it is evaluated 

individually for significant nexus; the 

water cannot be aggregated if it is not 

similarly situated with other such 

waters. 

The analysis will include an 

evaluation of the functions listed in 

paragraph (c)(5) of the rule, which 

defines significant nexus. A water has a 

significant nexus when any single 

function or combination of functions 

performed by the water, alone or 

together with similarly situated waters 

in the region, contributes significantly 

to the chemical, physical, or biological 

integrity of the nearest traditional 

navigable water, interstate water, or the 

territorial seas. A water may be 

determined to have a significant nexus 

based on performing any of the 

following functions: sediment trapping, 

nutrient recycling, pollutant trapping, 

transformation, filtering, and transport, 

retention and attenuation of 

floodwaters, runoff storage, contribution 

of flow, export of organic matter, export 

of food resources, or provision of life 

cycle dependent aquatic habitat (such as 

foraging, feeding, nesting, breeding, 

spawning, or use as a nursery area) for 

species located in a traditional 

navigable water, interstate water, or the 

territorial seas. 

For purposes of paragraph (c)(5)(ix), a 

species is located in a traditional 

navigable water, interstate water, or the 

territorial seas if such a water is a 

typical type of habitat for at least part 

of the life cycle of the species. For 

example, amphibians and many reptiles 

can use a traditional navigable water, 

interstate water, or the territorial seas 

for part of their life cycle needs. 

When evaluating a water individually 

or in combination with other similarly 

situated waters for the presence of a 

significant nexus to a traditional 

navigable water, interstate water, or the 

territorial seas, a variety of factors will 

influence the chemical, physical, or 

biological connections the water has 

with the downstream traditional 

navigable water, interstate water, or the 

territorial seas, including distance from 

a jurisdictional water, the presence of 

surface or shallow subsurface 

hydrologic connections, and density of 

waters of the same type (if it has been 

concluded that such waters can be 

evaluated in combination). The 

likelihood of a significant connection is 

greater with increasing size and 

decreasing distance from the identified 

traditional navigable water, interstate 

water, or the territorial seas, as well as 

with increased density of the waters for 

such waters that can be considered in 

combination as similarly situated 

waters. In addition, the presence of a 

surface or shallow subsurface 

hydrologic connection can influence the 

impact that a water has with 

downstream waters. 

In many cases, the presence of a 

hydrologic connection increases the 

strength of the impact of the 

downstream traditional navigable water, 

interstate water, or the territorial seas. 

However, a hydrologic connection is not 

necessary to establish a significant 

nexus, because, as Justice Kennedy 

stated, in some cases the lack of a 

hydrologic connection would be a sign 

of the water’s function in relationship to 

the traditional navigable water, 

interstate water, or the territorial seas. 

These functional relationships include 

retention of floodwaters or pollutants 

that would otherwise flow downstream 

to the traditional navigable water, 

interstate water, or the territorial seas. 

See 547 U.S. at 775 (citations omitted) 

(J. Kennedy) (‘‘it may be the absence of 

an interchange of waters prior to the 

dredge and fill activity that makes 

protection of the wetlands critical to the 

statutory scheme’’). The Science Report 

concludes, ‘‘[s]ome effects of nonfloodplain wetlands on downstream 

waters are due to their isolation, rather 

than their connectivity. Wetland ‘sink’ 

functions that trap materials and 

prevent their export to downstream 

waters (e.g., sediment and entrained 

pollutant removal, water storage) result 

because of the wetland’s ability to 

isolate material fluxes.’’ Science Report 

at ES–4. For example, a report that 

reviewed the results of multiple 

scientific studies concluded that 

depressional wetlands lacking a surface 

outlet functioned together to 

significantly reduce or attenuate 

flooding. See Science Report and 

Technical Support Document. Even 

when they lack a surface hydrologic 

connection to downstream traditional 

navigable waters, interstate waters, or 

the territorial seas, Prairie potholes, for 

instance, cumulatively can store large 

volumes of water, impacting streamflow 

and reducing flooding downstream, and 

several studies have quantified the large 

storage capacity of Prairie pothole 

complexes. This water storage function 

is estimated to hold tens of millions of 

cubic meters of water, including for 

example Prairie potholes located in the 

watersheds of Devils Lake and the Red 

River of the North, which have both had 

a long history of flooding. Where Prairie 

potholes lack a surface hydrologic 

connection, this water storage capacity 

is particularly effective in reducing 

downstream flooding and can have a 

significant effect on downstream 

traditional navigable waters, interstate 

waters, or the territorial seas. Thus, even 

when lacking a surface hydrologic 

connection, a water can still have a 

significant effect on the chemical or the 

biological integrity of downstream 

traditional navigable waters, interstate 

waters, or the territorial seas. 

The rule recognizes that not all waters 

have the requisite connection to 

traditional navigable waters, interstate 

waters, or the territorial seas sufficient 

to be determined jurisdictional. Waters 

with a significant nexus must 

significantly affect the chemical, 

physical, or biological integrity of a 

downstream traditional navigable water, 

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interstate water, or the territorial seas, 

and the requisite nexus must be more 

than ‘‘speculative or insubstantial.’’ 

Rapanos at 780. 

Evidence of chemical connectivity 

and the effect on waters can be found by 

identifying the properties of the water in 

comparison to the identified traditional 

navigable water, interstate water, or the 

territorial seas; signs of retention, 

release, or transformation of nutrients or 

pollutants; and the effect of landscape 

position on the strength of the 

connection to the nearest ‘‘water of the 

United States,’’ and through it to a 

traditional navigable water, interstate 

water, or the territorial seas. In addition, 

relevant factors influencing chemical 

connectivity include hydrologic 

connectivity (see physical factors, 

below), surrounding land use and land 

cover, the landscape setting, and 

deposition of chemical constituents 

(e.g., acidic deposition). 

Evidence of physical connectivity and 

the effect on traditional navigable 

waters, interstate waters, or the 

territorial seas can be found by 

identifying evidence of physical 

connections, such as flood water or 

sediment retention (flood prevention). 

Presence of indicators of hydrologic 

connections between the other water 

and jurisdictional water are also 

indicators of a physical connection. 

Factors influencing physical 

connectivity include rain intensity, 

duration of rain events or wet season, 

soil permeability, and distance of 

hydrologic connection between the 

paragraph (a)(7) or (a)(8) water and the 

traditional navigable water, interstate 

water, or the territorial seas, depth from 

surface to water table, and any 

preferential flowpaths. 

Evidence of biological connectivity 

and the effect on waters can be found by 

identifying: Resident aquatic or semiaquatic species present in the casespecific water and the tributary system 

(e.g., amphibians, aquatic and semiaquatic reptiles, aquatic birds); whether 

those species show life-cycle 

dependency on the identified aquatic 

resources (foraging, feeding, nesting, 

breeding, spawning, use as a nursery 

area, etc.); and whether there is reason 

to expect presence or dispersal around 

the case-specific water, and if so 

whether such dispersal extends to the 

tributary system or beyond or from the 

tributary system to the case-specific 

water. Factors influencing biological 

connectivity include species’ life history 

traits, species’ behavioral traits, 

dispersal range, population size, timing 

of dispersal, distance between the casespecific water and a traditional 

navigable water, interstate water, or the 

territorial seas, the presence of habitat 

corridors or barriers, and the number, 

area, and spatial distribution of habitats. 

Non-aquatic species or species such as 

non-resident migratory birds do not 

demonstrate a life cycle dependency on 

the identified aquatic resources and are 

not evidence of biological connectivity 

for purposes of this rule. 

For practical administrative purposes, 

the rule does not require evaluation of 

all similarly situated waters under 

paragraph (a)(7) or (a)(8) when 

concluding that those waters have a 

significant nexus to a traditional 

navigable water, interstate water, or 

territorial sea. When a subset of 

similarly situated waters provides a 

sufficient science-based justification to 

conclude presence of a significant 

nexus, for efficiency purposes a 

significant nexus analysis need not 

unnecessarily require time and 

resources to locate and analyze all 

similarly situated waters in the entire 

point of entry watershed. For example, 

if a single Carolina bay or a group of 

Carolina bays in a portion of the point 

of entry watershed is determined to 

significantly affect the chemical, 

physical, or biological integrity of a 

traditional navigable water, interstate 

water, or the territorial seas, the analysis 

does not have to document all of the 

similarly situated Carolina bays in the 

watershed in order to conduct the 

significant nexus analysis. A conclusion 

that significant nexus is lacking may not 

be based on consideration of a subset of 

similarly situated waters because under 

the significant nexus standard the 

inquiry is how the similarly situated 

waters in combination affect the 

integrity of the downstream water. 

While the rule is clear that waters that 

are jurisdictional by rule cannot be 

combined with waters subject to a casespecific significant nexus analysis, the 

analysis may appropriately include the 

evaluation of functions of paragraph 

(a)(8) waters that reach covered waters 

through paragraph (a)(6) waters without 

consideration of the functions 

contributed by those paragraph (a)(6) 

waters. The hydrologic connections 

between paragraph (a)(8) waters and a 

covered tributary and eventually to a 

traditional navigable water, interstate 

water, or the territorial seas, can often 

occur through an adjacent water. This 

hydrologic connection is an appropriate 

part of the case-specific analysis as to 

whether the paragraph (a)(8) waters, 

alone or in combination with any 

similarly situated paragraph (a)(8) 

waters in the point of entry watershed, 

provide those functions downstream 

such that they significantly affect the 

chemical, physical or biological 

integrity of the traditional navigable 

water, interstate water, or the territorial 

seas. For example, when evaluating a 

wetland that is 2,500 feet from the 

ordinary high water mark of an 

paragraph (a)(5) water and that has 

surface or shallow subsurface 

connections to downstream traditional 

navigable waters, interstate waters, or 

the territorial seas via a wetland that is 

adjacent to an paragraph (a)(4) water, 

the existence of those connections is not 

ignored. However, while a water’s 

connections to the traditional navigable 

water, interstate water, or the territorial 

seas through paragraph (a)(5) through 

(a)(7) waters can be considered in the 

significant nexus analysis in order to 

determine whether the functions of the 

paragraph (a)(8) waters are provided 

downstream, only the functions of the 

water, along with any similarly situated 

waters, being evaluated under paragraph 

(a)(8) on downstream water integrity can 

be included in the significant nexus 

analysis. 

The administrative record for a 

jurisdictional determination for a water 

under paragraph (a)(7) or (a)(8) will 

include available information 

supporting the determination. In 

addition to location and other 

descriptive information regarding the 

water at issue, the record will include 

an explanation of the rationale for the 

jurisdictional conclusion and a 

description of the information used. 

Relevant information can come from 

many sources, and need not always be 

specific to the water whose 

jurisdictional status is being evaluated. 

Studies of the same type of water or 

similarly situated waters can help to 

inform a significant nexus analysis as 

long as they are applicable to the water 

being evaluated. In the case of 

paragraph (a)(8) waters, the 

administrative record will include the 

rationale behind the similarly situated 

analysis, including an explanation of 

the data or information examined. 

The agencies expect that where waters 

are determined to be similarly situated 

in a single point of entry watershed, 

such similarly situated waters will often 

be found jurisdictional through the casespecific analysis of significant nexus. 

However, case-specific factors such as 

distance to the traditional navigable 

water, interstate water, or the territorial 

seas; density or number of similarly 

situated waters; individual and 

cumulative size of the similarly situated 

waters; soil permeability; climate; etc., 

may be considered in the determination, 

and there could be cases where even 

considering these waters in combination 

with similarly situated waters will not 

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be sufficient for waters to have a 

significant nexus. 

Within a single point of entry 

watershed, over a period of time there 

will likely be multiple jurisdictional 

determinations. For paragraph (a)(7) 

waters, if a case-specific significant 

nexus determination has been made in 

the point of entry watershed, all waters 

in the subcategory in the point of entry 

watershed are jurisdictional. For 

paragraph (a)(8) waters, the case-specific 

significant nexus analyses must use 

information used in previous 

jurisdictional determinations, and if a 

significant nexus has been established 

for one water in the watershed, then 

other similarly situated waters in the 

watershed would also be found to have 

a significant nexus. This is because 

under Justice Kennedy’s test, similarly 

situated waters in the region should be 

evaluated together. A positive 

significant nexus determination would 

then apply to all similarly situated 

waters within the point of the 

watershed. A negative case-specific 

significant nexus evaluation under 

paragraph (a)(7) or (a)(8) of all similarly 

situated waters in the point of entry 

watershed applies to all similarly 

situated waters in that watershed. 

However, as noted above, a conclusion 

that significant nexus is lacking may not 

be based on consideration of a subset of 

similarly situated waters, because under 

the significant nexus standard the 

inquiry is how the similarly situated 

waters in combination affect the 

integrity of the downstream water. The 

documentation for each case should be 

complete enough to support the specific 

jurisdictional determination, including 

an explanation of which waters were 

considered together as similarly situated 

and in the same region. 

4. Summary of Revisions to CaseSpecific Determinations of ‘‘Waters of 

the United States’’ and Major Comments 

a. Significant Nexus 

Some commenters stated concerns 

over the potential for inconsistent 

application of the significant nexus 

analysis in a jurisdictional 

determination. To address this concern 

within the regulatory framework, the 

agencies provide more detail regarding 

the definition of significant nexus in the 

rule and list the specific functions that 

will be considered in the analysis. This 

approach provides individual regulators 

who conduct the analysis clear and 

consistent parameters that they will 

consider during their review in making 

jurisdictional determinations and 

provides transparency to the regulated 

public over which factors will be 

considered. 

Overall, there was support for the 

concept of the single point of entry 

watershed as the interpretation of ‘‘in 

the region.’’ Several commenters 

supported the approach that the single 

point of entry watershed was an 

appropriate scale to use to measure 

effect on traditional navigable waters, 

interstate waters, or the territorial seas. 

Other commenters felt the single point 

of entry watershed was too small to 

capture all the benefits that waters that 

do not meet the definition of adjacency 

contribute. Some of the SAB panel 

members thought that because surface 

and ground-watershed units may not 

align, watersheds might be problematic 

for defining ‘‘in the region.’’ These 

panel members suggested that a more 

scientifically justified approach would 

include surface and subsurface waters 

in a watershed delineation. The 

agencies have retained the single point 

of entry watershed from the proposed 

rule as the appropriate unit of analysis 

for significant nexus in the final rule as 

these watersheds are more easily 

understood and easier to delineate than 

those that map subsurface waters as the 

SAB suggested. 

With respect to the agencies’ 

approach to ‘‘similarly situated waters,’’ 

commenters offered support for 

assessing waters in combination based 

on their type and function, particularly 

waters such as Prairie potholes. 

Conversely, several commenters found 

that the ability to aggregate waters that 

do not meet the definition of adjacency 

is over-reaching and causes uncertainty 

to the regulated public. Some 

commenters also attributed uncertainty 

in which waters were regulated to 

subjectivity in review by Federal 

regulator(s). Similarly, some 

commenters were concerned that waters 

eligible for protection were based on an 

individual analyst’s interpretation and 

wanted to know how the agencies 

would address consistency and 

potential bias. In response, the rule lists 

in paragraph (a)(7) a limited number of 

subcategories of waters where waters of 

the specified types have been 

determined by rule to be similarly 

situated for a significant nexus analysis. 

This will add consistency, 

predictability, and clarity, as the rule 

explicitly states that such waters are 

similarly situated for purposes of the 

significant nexus analysis. For waters 

identified under paragraph (a)(8), the 

agencies have established two 

limitations: Waters within the 100-year 

floodplain of a traditional navigable 

water, interstate water, or the territorial 

seas, and waters within 4,000 foot feet 

of a traditional navigable water, 

interstate water, the territorial seas, 

impoundment, or covered tributary. The 

agencies also have established within 

the definition of significant nexus at 

paragraph (c)(5) criteria for determining 

whether waters are similarly situated 

and should therefore be analyzed in 

combination. Waters identified under 

paragraph (a)(8) are similarly situated 

when they function alike and are 

sufficiently close to function together in 

affecting downstream waters. The 

agencies have not determined that such 

waters are categorically similarly 

situated, so the agencies will base their 

case-specific determinations of whether 

a particular water has any similarly 

situated waters on the available 

information and science. The rule also 

clarifies that paragraph (a)(8) waters 

cannot be considered similarly situated 

with ‘‘adjacent waters,’’ which are 

jurisdictional by rule, and paragraph 

(a)(7) waters, which have been 

determined to be similarly situated by 

rule. These parameters will reduce 

inconsistency in reviews and add 

clarity. 

Similarly, several commenters 

expressed concern that landowners 

would not know which water bodies on 

their property are subject to CWA 

jurisdiction due to aggregation, as 

waters on their property may be 

considered similarly situated with 

waters located off-site. While the rule 

does not eliminate the use of casespecific significant nexus analyses, and 

the concern arises from Justice 

Kennedy’s phrase ‘‘similarly situated,’’ 

the parameters placed on waters 

requiring a case-specific determination 

and the clearer definition of significant 

nexus address the concerns about 

uncertainty and inconsistencies in 

reviews. In particular, waters that are 

not either one of the five identified 

subcategories in paragraph (a)(7) or 

within the thresholds in paragraph (a)(8) 

cannot be subject to a case-specific 

significant nexus analysis under the 

rule. Generally, jurisdictional 

determinations are conducted at the 

request of an applicant or landowner for 

specific waters. While the agencies 

cannot arbitrarily depart from a 

determination that waters are ‘‘similarly 

situated,’’ landowners may provide new 

information to inform subsequent 

jurisdictional determinations. In 

addition, owners with questions 

regarding jurisdiction of waters on their 

property may always consult their local 

Corps District or EPA Regional Office, 

which is not a change from longstanding 

practice. 

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b. Case-Specific Determinations 

The rule provides more regulatory 

certainty by narrowing the scope of 

waters that can be assessed under a 

case-specific significant nexus 

evaluation as compared to the proposal. 

These changes still allow the scientific 

value of specific waters not covered in 

paragraph (a)(1) through (a)(6) to be 

evaluated on a case-specific basis. 

In the proposal, the agencies solicited 

comment regarding a variety of 

approaches to the category of waters 

subject to a case-specific significant 

nexus analysis. In addition, the agencies 

solicited comment on additional 

scientific research and data that might 

further inform decisions about these 

waters. In particular the agencies 

solicited information about whether 

current scientific research and data 

regarding particular types of waters are 

sufficient to support the inclusion of 

subcategories of types of waters, either 

alone or in combination with similarly 

situated waters, that can appropriately 

be identified as always lacking or 

always having a significant nexus. One 

of these alternate approaches in the 

preamble to the proposed rule was to 

determine by rule that certain additional 

subcategories of waters would be 

jurisdictional rather than addressed 

with a case-specific basis for 

determining significant nexus. 

Many commenters expressed support 

for the agencies’ proposed approach to 

case-specific waters, included 

additional references to support these 

waters being protected by rule, and 

supported the treatment of certain 

categories of waters as similarly situated 

(that is, evaluating them in combination 

with similarly situated waters for the 

purposes of the significant nexus 

analysis). Some suggested the agencies 

establish jurisdiction over case-specific 

waters by rule and provided detailed 

information in support of their position. 

Other commenters suggested additional 

subcategories of waters be considered as 

jurisdictional or as similarly situated by 

rule, such as playa lakes, kettle lakes, 

and woodland vernal pools. 

However, there was a concern raised 

by other commenters about what was 

termed regulatory overreach and 

uncertainty created by the ‘‘other 

waters’’ category in the proposal. Some 

commenters stated that the ‘‘other 

waters’’ category in the proposal would 

allow the agencies to regulate virtually 

any water. To address this concern, the 

rule places limits on which waters 

could be subject to a case-specific 

significant nexus determination, in 

recognition that case-specific analysis of 

significant nexus is resource-intensive 

and based on the body of science that 

exists. As noted above, the agencies also 

establish by rule subcategories of waters 

that are ‘‘similarly situated’’ for the 

purposes of a significant nexus analysis 

because science supports that the 

subcategory waters fall within a higher 

gradient of connectivity. By not 

determining that any one of the waters 

available for case-specific analysis is 

jurisdictional by rule, the agencies are 

recognizing the gradient of connectivity 

that exists and will assert jurisdiction 

only when that connection and the 

downstream effects are significant and 

more than speculative and insubstantial. 

Waters are covered under the rule 

only where they are identified as 

jurisdictional in paragraphs (a)(1) 

through (a)(6), where they are not 

excluded under paragraph (b), or where 

they are within the limited number of 

subcategories listed in paragraphs (a)(7) 

and (a)(8) and have a case-specific 

significant nexus to a traditional 

navigable water, interstate water, or the 

territorial seas. These limits on 

jurisdiction reflect the case law and are 

in response to comments requesting 

greater regulatory certainty. Although 

some commenters suggested additional 

subcategories of waters for 

consideration, such as playa lakes and 

kettle lakes, the agencies at this time are 

not able to determine that the available 

science supports that the suggested 

additional subcategories of waters as a 

class have a significant nexus to 

traditional navigable waters, interstate 

waters, or the territorial seas. However, 

to be clear, under the rule, individual 

waters of the suggested additional 

subcategories are jurisdictional where 

they meet the requirements of 

paragraphs (a)(1) through (a)(6) or (a)(8) 

(e.g., a playa lake that is an interstate 

water, a kettle lake that is an adjacent 

water, or a woodland vernal pool that is 

less than 4,000 feet from a jurisdictional 

tributary and is determined on a casespecific basis to have a significant nexus 

to a traditional navigable water, 

interstate water, or the territorial seas). 

In consideration of the variety of 

views of the commenters, the Science 

Report, the input from the SAB, and the 

developing state of the science, the 

agencies reasonably decided not to 

establish jurisdiction over all waters 

that do not meet the requirements of 

paragraph (a)(1) through (a)(6) by rule. 

Instead, the agencies established casespecific provisions for some specified 

waters at paragraph (a)(7) and waters 

within the boundaries at paragraph 

(a)(8). This approach strikes a balance 

between requests for clear boundaries 

and limited case-specific reviews with 

scientific support. 

I. Waters and Features That Are Not 

‘‘Waters of the United States’’ 

In the rule, the agencies identify a 

variety of waters and features that are 

not ‘‘waters of the United States.’’ Prior 

converted cropland and waste treatment 

systems have been excluded from this 

definition since 1992 and 1979, 

respectively, and they remain 

substantively and operationally 

unchanged. Only ministerial changes to 

delete an outdated cross reference are 

made to the exclusion for waste 

treatment systems. The agencies add 

exclusions for all waters and features 

identified as generally exempt in 

preamble language from Federal 

Register documents by the Corps on 

November 13, 1986, and by EPA on June 

6, 1988. This is the first time these 

exclusions have been established by 

rule. In addition, under prior preamble 

language, the agencies retained the 

authority to determine that a particular 

feature generally considered nonjurisdictional was in fact a ‘‘water of the 

United States.’’ The agencies do not 

retain that authority for features 

excluded under the rule. The agencies 

for the first time also establish by rule 

that certain ditches are excluded from 

jurisdiction. The agencies add 

exclusions for groundwater and 

erosional features, as well as exclusions 

for some waters that were identified in 

public comments as possibly being 

found jurisdictional under proposed 

rule language where this was never the 

agencies’ intent. These exclusions are 

reflective of current agencies’ practice, 

and their inclusion in the rule furthers 

the agencies’ goal of providing greater 

clarity over what waters are and are not 

protected under the CWA. Importantly, 

under the rule all waters and features 

identified in paragraph (b) as excluded 

will not be ‘‘waters of the United 

States,’’ even if they otherwise fall 

within one of the categories in 

paragraphs (a)(4) through (a)(8). For 

example, a ditch that is excluded under 

paragraph (b)(3)(i) or (b)(3)(ii) is not 

jurisdictional even when the ditch 

connects directly or through another 

water to a traditional navigable water, 

interstate water, or the territorial seas. 

The proposed rule referenced 

paragraphs (a)(1) through (a)(8), but the 

agencies did not intend to exclude any 

traditional navigable waters, for 

example, and the revision clarifies that. 

Finally, nothing in the rule is intended 

to change the way in which the Corps 

applies individual or nationwide 

permits. 

The exclusions reflect the agencies’ 

long-standing practice and technical 

judgment that certain waters and 

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features are not subject to the CWA. The 

exclusions are also guided by Supreme 

Court cases. The significant nexus 

standard arises from the case law and is 

used to interpret the terms of the CWA. 

Thus, a significant nexus determination 

is not a purely scientific inquiry, but 

rather is a determination by the agencies 

in light of the statutory language, the 

statute’s goals, objectives and policies, 

the case law, the relevant science, and 

the agencies’ technical expertise and 

experience. The plurality opinion in 

Rapanos also noted that there were 

certain features that were not primarily 

the focus of the CWA. See 547 U.S. at 

734. In this section of the proposed rule, 

the agencies are drawing lines and 

concluding that certain waters and 

features are not subject to the 

jurisdiction of the Clean Water Act. The 

Supreme Court has recognized that 

clarifying the lines of jurisdiction is a 

difficult task: ‘‘Our common experience 

tells us that this is often no easy task: 

The transition from water to solid 

ground is not necessarily or even 

typically an abrupt one. Rather, between 

open waters and dry land may lie 

shallows, marshes, mudflats, swamps, 

bogs—in short, a huge array of areas that 

are not wholly aquatic but nevertheless 

fall far short of being dry land. Where 

on this continuum to find the limit of 

‘waters’ is far from obvious.’’ Riverside 

Bayview at 132–33. The exclusions are 

an important aspect of the agencies’ 

policy goal of providing clarity and 

certainty. Just as the categorical 

assertions of jurisdiction over covered 

tributaries and covered adjacent waters 

simplify the jurisdiction issue, the 

categorical exclusions will likewise 

simplify the process, and they reflect 

the agencies’ determinations of the lines 

of jurisdiction based on science, the 

case law and the agencies’ experience 

and expertise. 

The existing exclusion for waste 

treatment systems moves to paragraph 

(b)(1) with no substantive changes. One 

ministerial change is the deletion of a 

cross-reference in the current language 

to an EPA regulation that no longer 

exists. Because the agencies are not 

addressing the substance of the 

exclusion, the agencies do not make 

conforming changes to ensure that each 

of the existing definitions of the ‘‘waters 

of the United States’’ for the various 

CWA programs have the exact same 

language with respect to the waste 

treatment system exclusion, with the 

exception of deleting the crossreference. 

Many commenters expressed concern 

about whether the agencies’ insertion of 

a comma following this ministerial 

change unintentionally narrowed the 

exclusion such that all excluded waste 

treatment systems must be designed to 

meet the requirements of the Clean 

Water Act. The commenters indicated 

concerns that waste treatment systems 

built before the Clean Water Act or 

primarily for purposes of other 

environmental laws could not be 

exempt. The agencies do not intend to 

change how the waste treatment 

exclusion is implemented and have 

deleted this proposed comma. 

Continuing current practice, any waste 

treatment system built in a ‘‘water of the 

United States’’ would need a section 

404 permit to be constructed and a 

section 402 permit for discharges from 

the waste treatment system into ‘‘waters 

of United States.’’ 

A number of commenters suggested 

the agencies clarify how the waste 

treatment system exclusion is currently 

implemented. Many comments raised 

questions about stormwater systems and 

wastewater reuse and whether such 

facilities qualified under the waste 

treatment system exclusion as part of a 

complete waste treatment system. For 

clarity, the agencies have identified 

related exclusions in paragraphs (b)(6) 

and (b)(7). Many commenters also 

suggested making substantive changes 

to the existing exclusion for waste 

treatment systems. Because the agencies 

are not making any substantive changes 

to the waste treatment system exclusion 

and these comments are outside the 

scope of the proposed rule, the final rule 

does not reflect changes suggested in 

public comments. 

The existing exclusion for prior 

converted cropland moves to paragraph 

(b)(2) of the rule and is unchanged. A 

number of commenters suggested 

changes to the existing exclusion for 

prior converted cropland. As with waste 

treatment systems, the preamble to the 

proposed rule stated this rulemaking 

was not making changes to the 

exclusion for prior converted cropland. 

As a result, comments requesting 

changes to the prior converted cropland 

exclusion or seeking clarification of how 

the exclusion is implemented in the 

field are outside the scope of this 

rulemaking, and the rule does not reflect 

changes or respond to issues raised in 

public comments. The agencies will 

continue to implement this exclusion 

consistent with current policy and 

practice. 

The agencies identify excluded 

ditches in paragraph (b)(3). 

Jurisdictional ditches are discussed at 

more detail in section IV.F. The rule 

excludes all ditches with ephemeral 

flow that are not excavated in or 

relocate a tributary. The rule also 

excludes ditches with intermittent flow 

that are not a relocated tributary, 

excavated in a tributary, or drain 

wetlands, regardless of whether or not 

the wetland is a jurisdictional water. 

Finally, ditches that do not connect to 

a traditional navigable water, interstate 

water, or territorial sea either directly or 

through another water are excluded, 

regardless of whether the flow is 

ephemeral, intermittent, or perennial. 

These ditch exclusions are clearer for 

the regulated public to identify and 

more straightforward for agency staff to 

implement than the proposed rule or 

current policies. The ditch exclusions 

do not affect the possible status of a 

ditch as a point source. 

Many comments addressed ditches, 

and many of these comments are 

reflected in the approach to ditches 

articulated in the rule. The majority of 

commenters requested that the agencies’ 

ditch exclusion be clarified or 

broadened. Many commenters were 

confused by the term ‘‘uplands’’ and did 

not feel the term had a common 

understanding. For example, some 

commenters felt the term referred only 

to areas at higher elevations in the 

landscape. Many expressed concerns 

that all ditches would be jurisdictional 

under the proposed rule. Many groups 

especially called for exclusions of 

roadside ditches. 

The revised exclusions reflect the 

agencies’ careful consideration of these 

comments. First, the agencies have 

eliminated the term ‘‘uplands’’ in 

response to the questions the term 

created. Second, the agencies have 

instead provided a clearer statement of 

the types of ditches that are subject to 

exclusion—ditches that are not 

excavated in or relocate a tributary and 

ditches that do not drain a wetland. 

Eliminating the term ‘‘uplands’’ with 

this more straightforward description 

should improve clarity. Finally, the 

agencies have more clearly stated the 

flow regimes in ditches that are subject 

to the exclusions; these flow regimes are 

described earlier and have been used by 

the agencies consistently and are readily 

understood by field staff and the public. 

As noted, the agencies received many 

comments asking that roadside ditches 

be addressed, and more specifically 

excluded, in the final rule. Like the 

proposed rule, the final rule does not 

include an explicit exclusion for 

roadside ditches, but the agencies 

believe the exclusions included in the 

final rule will address the vast majority 

of roadside and other transportation 

ditches. Moreover, since the agencies 

have focused in the final rule on the 

physical characteristics of excluded 

ditches, the exclusions will address all 

ditches that the agencies have 

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concluded should not be subject to 

jurisdiction, including certain ditches 

on agricultural lands and ditches 

associated with modes of transportation, 

such as roadways, airports, and rail 

lines. 

As discussed in Section IV.F.1., the 

definition of tributary includes natural, 

undisturbed waters and those that have 

been man-altered or constructed, but 

which science shows function as a 

tributary. In addition, natural streams 

and rivers that are altered or modified 

for purposes as flood control, erosion 

control, and other reasons does not 

convert the tributary to a ditch. A 

stream or river that has been 

channelized or straightened because its 

natural sinuosity has been altered, 

cutting off the meanders, is not a ditch. 

A stream that has banks stabilized 

through use of concrete or rip-rap (e.g., 

rocks or stones) is not a ditch. The Los 

Angeles River, for example, is a ‘‘water 

of the United States’’ (and, indeed, a 

traditional navigable water) and remains 

a ‘‘water of the United States’’ and is not 

a excluded under paragraph (b)(3), even 

where it has been ditched, channelized, 

or concreted. 

The rule excludes ditches with 

ephemeral flow except where a ditch is 

excavated in or relocates a covered 

tributary. Under the rule, that portion of 

a ditch with ephemeral flow actually 

excavated in or relocating the covered 

tributary would be considered 

jurisdictional. The jurisdictional status 

of upstream and downstream portions of 

the same ditch would have to be 

assessed based on the specific facts and 

under the terms of the rule to determine 

flow characteristics and whether or not 

the ditch is excavated in or relocates a 

tributary. This approach reasonably 

balances the exclusion with the need to 

ensure that covered tributaries, and the 

significant functions they provide, are 

preserved. A ditch that relocates a 

stream is not an excluded ditch under 

paragraph (b)(3), and a stream is 

relocated either when at least a portion 

of its original channel has been 

physically moved, or when the majority 

of its flow has been redirected. A ditch 

that is a relocated stream is 

distinguishable from a ditch that 

withdraws water from a stream without 

changing the stream’s aquatic character. 

The latter type of ditch is excluded from 

jurisdiction where it meets the listed 

characteristics of excluded ditches 

under paragraph (b)(3). The agencies 

will determine historical presence of 

tributaries using a variety of resources, 

such as USGS and state and local maps, 

historic aerial photographs, local surface 

water management plans, street 

maintenance data, wetlands and 

conservation programs and plans, as 

well as functional assessments and 

monitoring efforts. 

The rule also excludes ditches with 

intermittent flow except where a ditch 

is excavated in or relocates a covered 

tributary, or drains wetlands. Where an 

excluded ditch drains a wetland, the 

segment of the ditch that physically 

intersects the wetland would be 

considered jurisdictional. The 

jurisdictional status of upstream and 

downstream portions of the same ditch 

would have to be assessed based on the 

specific facts and under the terms of the 

rule to determine flow characteristics 

and whether or not the ditch drains a 

wetland. The provision of paragraph 

(b)(3) addressing draining of wetlands is 

specific to ditches with intermittent 

flow. As discussed previously, features 

that are ephemeral will flow only in 

response to precipitation events, such as 

rainfall or snowmelt. Ditches with 

ephemeral flow, therefore, do not 

typically have the flow characteristics 

characteristic of ditches that drain 

wetlands. The agencies have 

accordingly focused on intermittent 

ditches that drain wetlands. 

In addition, the agencies clarify that a 

ditch drains a wetland when it 

physically intersects the wetland. If the 

ditch has been cut to carry only 

ephemeral flows, such as those 

following a storm event, the effect of the 

ditch is minimal as it carries only that 

flow that overtops the wetland during 

and immediately following the rain 

event. However, if the ditch has been 

cut to carry intermittent or perennial 

flows from the wetland, the ditch is 

serving as a conduit for transferring flow 

from the wetland to a downstream 

tributary. As a result of the cut ditch, 

the wetland’s hydrologic regime is 

modified and can generally affect the 

natural functions performed by the 

wetland. When the ditch has been cut 

to carry intermittent or perennial flow 

from the wetland to the downstream 

tributary, the wetland soils and 

vegetation can shift into a community 

that supports less hydric soils and a mix 

of riparian or upland vegetation. 

Consequently, the ditch is draining the 

wetland and the wetland quality 

degrades and may cease to exist over 

time. Therefore, a ditch that carries 

intermittent flow and physically 

intersects with a wetland is not 

excluded under this provision. 

A number of commenters expressed 

concern that a ditch could be viewed as 

both a point source and a ‘‘water of the 

United States.’’ However, the approach 

that ditches can be considered both 

reflects the CWA itself as well as 

longstanding agency policy. 

Paragraph (b)(4) of the rule identifies 

features and waters that the agencies 

have identified as generally not ‘‘waters 

of the United States’’ in previous 

preambles or guidance documents. 

Codifying these longstanding practices 

supports the agencies’ goals of 

providing greater clarity, certainty, and 

predictability for the regulated public 

and the regulators. The agencies’ 1986 

and 1988 preambles indicated that these 

waters could be determined on a casespecific basis to be ‘‘waters of the 

United States.’’ This rule does not allow 

for this case-specific analysis to be used 

to establish jurisdiction—these waters 

are categorically excluded from 

jurisdiction. Some of the exclusions 

have been modified slightly to address 

public comments and improve clarity. 

The following features are not ‘‘waters 

of the United States’’: 

• Artificially irrigated areas that 

would revert to dry land should 

application of irrigation water to that 

area cease 

• Artificial, constructed lakes or 

ponds created by excavating and/or 

diking dry land such as farm and stock 

watering ponds, irrigation ponds, 

settling basins, log cleaning ponds, 

cooling ponds, or fields flooded for rice 

growing 

• Artificial reflecting pools or 

swimming pools created by excavating 

and/or diking dry land 

• Small ornamental waters created by 

excavating and/or diking dry land for 

primarily aesthetic reasons 

• Water-filled depressions created in 

dry land incidental to mining or 

construction activity, including pits 

excavated for obtaining fill, sand or 

gravel that fill with water 

• Erosional features, including 

gullies, rills, and other ephemeral 

features that do not meet the definition 

of tributary, non-wetland swales, and 

lawfully constructed grassed waterways 

• Puddles 

Several of these exclusions use the 

phrase ‘‘dry land.’’ This phrase appears 

in the 1986 and 1988 preambles, and the 

agencies believe the term is well 

understood based on the more than 30 

years of practice and implementation. 

But in keeping with the goal of 

providing greater clarity, the agencies 

state that ‘‘dry land’’ refers to areas of 

the geographic landscape that are not 

water features such as streams, rivers, 

wetlands, lakes, ponds and the like. 

However, it is important to note that a 

‘‘water of the United States’’ is not 

considered ‘‘dry land’’ just because it 

lacks water at a given time. Similarly, an 

area remains ‘‘dry land’’ even if it is wet 

after a rainfall event. The agencies 

received comments suggesting that the 

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12Log cleaning ponds are used to float logs for 

removal of twigs, branches, and large knots. 

final rule provide a definition of ‘‘dry 

land’’ as it relates to the exclusion for 

stormwater control features. The 

agencies considered the request and 

determined that there was no agreed 

upon definition given geographic and 

regional variability. The agencies 

concluded that further clarity on this 

issue can be provided during 

implementation. 

In the exclusion for artificial lakes or 

ponds, the agencies have removed 

language regarding ‘‘use’’ of the ponds, 

including the term ‘‘exclusively.’’ In 

most cases, the ‘‘use’’ of the pond is 

captured in its name. More importantly, 

the agencies recognize that artificial 

lakes and ponds are often used for more 

than one purpose and can have other 

beneficial purposes, such as animal 

habitat, water retention or recreation. 

For example, rice growing is typically 

facilitated by land leveling and 

inundation that floods vast areas. The 

fields are flooded for the purpose of 

weed control and to facilitate rice 

cultivation, but these rice fields are 

often extensively used by waterfowl and 

other wildlife. The agencies agree with 

commenters who raised concern that 

rice fields ‘‘used’’ both for rice growing 

and waterfowl habitat should continue 

to be excluded even where they are not 

used ‘‘exclusively’’ for a single purpose. 

The change to the exclusion reflects the 

agencies’ practice and ensures that 

waters the agencies have historically not 

treated as jurisdictional do not become 

so because of another incidental 

beneficial use. 

The agencies have also added farm 

ponds, log cleaning ponds, and cooling 

ponds to the list of excluded ponds in 

the rule based on public comments. The 

list of ponds has always been 

illustrative rather than exhaustive, and 

the additions respond to requests to 

clarify that farm ponds, and log cleaning 

ponds 12 created in dry land are 

excluded. The agencies have also added 

cooling ponds created in dry land to the 

list of excluded waters. The agencies 

also note that cooling ponds that are 

created under section 404 in 

jurisdictional waters and that have 

NPDES permits are subject to the waste 

treatment system exclusion, which is 

not changing. Cooling ponds created to 

serve as part of a cooling water system 

with a valid state permit constructed in 

waters of the United States prior to 

enactment of the Clean Water Act and 

currently excluded from jurisdiction 

remain excluded under the new rule. 

Additional ponds will also likely fall 

under the exclusion based on site 

specific evaluation, including, for 

example, fire control ponds and fishing 

ponds excavated from dry land. 

Artificial lakes and ponds created in dry 

land that do not connect to 

jurisdictional waters are covered by this 

exclusion. Where these ponds do 

connect and discharge to jurisdictional 

waters, the agencies will evaluate 

factors such as the potential for 

introduction of pollutants and coverage 

under an issued NPDES permit. As a 

general matter, ponds created in dry 

land that discharge to ‘‘waters of the 

United States’’ are covered by the 

exclusion where such discharge is 

regulated under a NPDES permit. 

Conveyances created in dry land that 

are physically connected to and are a 

part of the excluded feature are also 

excluded. These artificial features are 

working together as a system, and it is 

appropriate to treat them as one 

functional unit. The agencies emphasize 

that ponds excluded from ‘‘waters of the 

United States’’ can, in some 

circumstances, be point sources of 

pollution subject to section 301 of the 

Act. 

The rule includes several refinements 

to the exclusion for water-filled 

depressions created as a result of certain 

activities. In addition to construction 

activity, the agencies have also excluded 

water-filled depressions created in dry 

land incidental to mining activity. This 

change is consistent with the agencies’ 

1986 and 1988 preambles, which 

generally excluded pits excavated for 

obtaining fill, sand or gravel, and there 

is no need to distinguish between 

features based on whether they are 

created by construction or mining 

activity. 

The agencies also here clarify their 

longstanding view that only the specific 

land being directly irrigated that would 

revert to dry land should irrigation 

cease is exempt; it is not the case that 

all waters within watersheds where 

irrigation occurs are exempt. 

The rule identifies all erosional 

features, including gullies and rills, as 

non-jurisdictional features. While the 

proposed rule specifically identified 

gullies and rills, the agencies intended 

that all erosional features would be 

excluded. The final rule makes this 

clear. Erosional features are not 

jurisdictional under the terms of 

paragraph (a) and the definitions in 

paragraph (c), especially the definition 

of tributary. These features are 

specifically excluded in the rule to 

avoid confusion, because preceding 

guidance identified them as nonjurisdictional and many commenters 

stated these exclusions were important 

to maintain in the rule. 

Tributaries can be distinguished from 

erosional features by the presence of bed 

and banks and an ordinary high water 

mark. Concentrated surface runoff can 

occur within erosional features without 

creating the permanent physical 

characteristics associated with bed and 

banks and ordinary high water mark. 

See Technical Support Document. It 

should be noted that some ephemeral 

streams are colloquially called ‘‘gullies’’ 

or the like even when they exhibit a bed 

and banks and an ordinary high water 

mark; regardless of the name they are 

given locally, waters that meet the 

definition of tributary are not excluded 

erosional features. 

The rule also excludes lawfully 

constructed grassed waterways. Grassed 

waterways are lawfully constructed for 

purposes of this rule either where they 

are on dry land and replace nonjurisdictional erosional features or, more 

commonly, where they have been 

lawfully converted from an intermittent 

or ephemeral stream under a CWA 

permit. Once converted to grassed 

waterways, these former streams 

segments no longer exhibit a bed and 

banks or ordinary high water mark and 

are excluded because they do not meet 

the definition of ‘‘tributary.’’ However, 

such conversion does not sever 

jurisdiction over the entire length of the 

tributary above and below the grassed 

waterway. Instead, the grassed 

waterway is considered a constructed 

break in the bed and banks and ordinary 

high water mark. This is reflected in the 

definition of tributary, which 

specifically addresses natural or manmade breaks in bed and banks and 

ordinary high water mark. 

The final rule adds an exclusion for 

puddles. The proposed rule did not 

explicitly exclude puddles because the 

agencies have never considered puddles 

to meet the minimum standard for being 

a ‘‘water of the United States,’’ and it is 

an inexact term. A puddle is commonly 

considered a very small, shallow, and 

highly transitory pool of water that 

forms on pavement or uplands during or 

immediately after a rainstorm or similar 

precipitation event. However, numerous 

commenters asked that the agencies 

expressly exclude them in a rule. The 

final rule does so. 

The agencies include an exclusion for 

groundwater, including groundwater 

drained through subsurface drainage 

systems. As discussed in the preamble 

to the proposed rule, the agencies have 

never interpreted ‘‘waters of the United 

States’’ to include groundwater. The 

exclusion does not apply to surface 

expressions of groundwater, as some 

commenters requested, such as where 

groundwater emerges on the surface and 

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becomes baseflow in streams or spring 

fed ponds. 

The final rule includes a new 

exclusion in paragraph (b)(6) for 

stormwater control features constructed 

to convey, treat, or store stormwater that 

are created in dry land. The agencies 

stated in the proposed rule that the 

exclusions were guided by decisions of 

the Supreme Court and were intended 

to further the agencies’ goal of providing 

clarity and certainty. The agencies in 

the proposed rule sought to provide a 

‘‘full description’’ of the waters that will 

not be ‘‘waters of the United States.’’ 79 

FR at 22218. In response to the agencies’ 

proposal, several commenters indicated 

additional clarity was needed, 

particularly with respect to stormwater 

control features and wastewater 

recycling facilities. This exclusion 

responds to numerous commenters who 

raised concerns that the proposed rule 

would adversely affect municipalities’ 

ability to operate and maintain their 

stormwater systems, and also to address 

confusion about the state of practice 

regarding jurisdiction of these features 

at the time the rule was proposed. 

The agencies’ longstanding practice is 

to view stormwater control measures 

that are not built in ‘‘waters of the 

United States’’ as non-jurisdictional. 

Conversely, the agencies view some 

waters, such as channelized or piped 

streams, as jurisdictional currently even 

where used as part of a stormwater 

management system. Nothing in the 

proposed rule was intended to change 

that practice. Nonetheless, the agencies 

recognize that the proposed rule brought 

to light confusion about which 

stormwater control features are 

jurisdictional waters and which are not, 

and agree that it is appropriate to 

address this confusion by creating a 

specific exclusion in the final rule for 

stormwater controls features that are 

created in dry land. 

Many commenters, particularly 

municipalities and other public entities 

that operate storm sewer systems and 

stormwater management programs, 

expressed concern that various 

stormwater control measures—such as 

stormwater treatment systems, rain 

gardens, low impact development/green 

infrastructure, and flood control 

systems—could be considered ‘‘waters 

of the United States’’ under the 

proposed rule, either as part of a 

tributary system, an adjacent water, or 

as a result of a case-specific significant 

nexus analysis. This exclusion should 

clarify the appropriate limits of 

jurisdiction relating to these systems. A 

key element of the exclusion is whether 

the feature or control system was built 

in dry land and whether it conveys, 

treats, or stores stormwater. Certain 

features, such as curbs and gutters, may 

be features of stormwater collection 

systems, but have never been 

considered ‘‘waters of the United 

States.’’ 

Stormwater control features have 

evolved considerably over the past 

several years, and their nomenclature is 

not consistent, so in order to avoid 

unintentionally limiting the exclusion, 

the agencies have not included a list of 

excluded features in the rule. The rule 

is intended to exclude the diverse range 

of control features that are currently in 

place and may be developed in the 

future. 

Traditionally, stormwater controls 

were designed to direct runoff away 

from people and property as quickly as 

possible. Cities built systems to collect, 

convey, or store stormwater, using 

structures such as curbs, gutters, and 

sewers. Often, cities used existing 

stream networks as part of the 

stormwater drainage network. Retention 

and detention stormwater ponds were 

built to store excess stormwater until it 

could be more safely released. 

Recently, treatment of stormwater has 

become more prevalent to remove 

harmful pollutants before the 

stormwater is discharged. Even more 

recently, cities have turned to green 

infrastructure, using existing natural 

features or creating new features that 

mimic natural hydrological processes 

that work to infiltrate or evapotranspirate precipitation, to manage 

stormwater at its source and keep it out 

of the conveyance system. These 

engineered components of stormwater 

management systems can address both 

water quantity and quality concerns, as 

well as provide other benefits to 

communities. This rule is designed to 

avoid disincentives to this 

environmentally beneficial trend in 

stormwater management practices. This 

exclusion does not cover transportation 

ditches; those ditches are addressed 

under paragraph (b)(3) of the rule. As 

discussed above, the exclusion in 

paragraph (b)(6) is intended to address 

engineered stormwater control 

structures in municipal or urban 

environments. Stormwater control 

features are designed to address runoff 

that occurs during and shortly after 

precipitation events; as a result, 

stormwater features that convey runoff 

are expected to only carry ephemeral or 

intermittent flow. For ease of 

implementation, the agencies want 

water features to be dealt with under 

only one provision of the rule. However, 

the agencies do not expect the scope of 

ditches excluded to be different under 

paragraphs (b)(3) and (b)(6), so there 

should be little practical need to 

distinguish between the two. 

Paragraph (b)(7) of the rule clarifies 

that wastewater recycling structures 

constructed in dry land are excluded. 

This new exclusion clarifies the 

agencies’ current practice that such 

waters and water features used for water 

reuse and recycling are not 

jurisdictional when constructed in dry 

land. The agencies recognize the 

importance of water reuse and 

recycling, particularly in areas like 

California and the Southwest where 

water supplies can be limited and 

droughts can exacerbate supply issues. 

This exclusion responds to numerous 

commenters and encourages water reuse 

and conservation while still 

appropriately protecting the chemical, 

physical, and biological integrity of the 

nation’s water under CWA. 

The agencies specifically exclude 

constructed detention and retention 

basins created in dry land used for 

wastewater recycling as well as 

groundwater recharge basins and 

percolation ponds built for wastewater 

recycling. Many commenters noted the 

growing interest in and commitment to 

water recycling and reuse projects. 

Detention and retention basins can play 

an important role in capturing and 

storing water prior to beneficial reuse. 

Similarly, groundwater recharge basins 

and percolation ponds are becoming 

more prevalent tools for water reuse and 

recycling. These features are used to 

collect and store water, which then 

infiltrates into groundwater via 

permeable soils. Though these features 

are often created in dry land, they are 

also often located in close proximity to 

tributaries or other larger bodies of 

water. The exclusion also covers water 

distributary structures that are built in 

dry land for water recycling. These 

features often connect or carry flow to 

other water recycling structures, for 

example a channel or canal that carries 

water to a percolation pond. The 

agencies have not considered these 

water distributary systems jurisdictional 

where they do not have surface 

connections back into, and contribute 

flow to, ‘‘waters of the United States.’’ 

In contrast, the agencies have 

consistently regulated aqueducts and 

canals as ‘‘waters of the United States’’ 

where they serve as tributaries, 

removing water from one part of the 

tributary network and moving it to 

another. The exclusion in paragraph 

(b)(7) codifies long-standing agency 

practice and encourages water 

management practices that the agencies 

agree are important and beneficial. 

The agencies also received other 

suggestions for new exclusions that 

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were not adopted in the final rule. The 

agencies determined that it was not 

appropriate or necessary to add certain 

requested exclusions for one or more 

reasons, including: (1) The requested 

exclusion was so broadly characterized 

as to introduce significant confusion 

and potentially have the effect of 

excluding waters that the agencies have 

consistently determined should be 

covered as ‘‘waters of the U.S.,’’ (2) the 

requested exclusion was so site-specific 

or activity-based as to lack illustrative 

value, or (3) the requested exclusion 

was likely covered by another exclusion 

in the final rule. 

It is important to note that while the 

waters listed in the exclusions are not 

‘‘waters of the United States,’’ they can 

serve as a hydrologic connection that 

the agencies would consider under a 

case-specific significant nexus under 

paragraphs (a)(7) and (a)(8). For 

example, a wetland may be directly 

hydrologically connected to a covered 

tributary via flow through an excluded 

non-wetland swale. While the swale 

itself is excluded from jurisdiction, the 

connection of the wetland to the 

tributary is relevant for determining 

whether the wetland has a significant 

nexus to downstream traditional 

navigable waters, interstate waters, or 

the territorial seas. In addition, these 

geographic features may function as 

‘‘point sources’’ under CWA section 

502(14), such that discharges of 

pollutants to waters through these 

features would be subject to other CWA 

regulations (e.g., CWA section 402). 

V. Economic Impacts 

This rule establishing the definition of 

‘‘waters of the United States,’’ by itself, 

imposes no direct costs. The potential 

costs and benefits incurred as a result of 

this rule are considered indirect, 

because the rule involves 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, regulated under these 

programs that protect ‘‘waters of the 

United States’’ from pollution and 

destruction. Each of these programs may 

subsequently impose direct or indirect 

costs as a result of implementation of 

their specific regulations. 

While the rule imposes no direct 

costs, the agencies prepared an 

economic analysis for informational 

purposes. In preparing the economic 

analysis to accompany the final rule, the 

agencies considered what should be the 

appropriate baseline for comparison. 

Existing regulations and historic 

practice in implementing them 

represent one appropriate baseline for 

comparison, and because the final rule 

is narrower in jurisdictional scope than 

the existing regulations, there would be 

no additional costs in comparison to 

this baseline. A comparison to recent 

field practice following the 2008 

guidance is also an appropriate baseline, 

and the agencies prepared illustrative 

estimates of how the costs and benefits 

of various CWA programs may change 

with an increase in positive 

jurisdictional determinations relative to 

that baseline. 

To estimate changes in potential costs 

and benefits of different CWA programs, 

the economic analysis utilizes available 

program data to estimate the extent to 

which assertion of jurisdiction might 

change under the associated final 

policies. The proposed rule analysis 

utilized CWA Section 404 jurisdictional 

determination and permit data from 

fiscal years 2009–2010 (post SWANCC 

and Rapanos), following issuance of 

program guidance in 2008 by the EPA 

and the Corps. The analysis for the final 

rule has been updated using data from 

fiscal years 2013–2014, providing a 

comparison to a more recent year of 

data, which responds to public 

comments. An estimate of how assertion 

of jurisdiction may change compared to 

the recent practice baseline, developed 

using updated data from fiscal years 

2013–2014 jurisdictional 

determinations, is then applied to cost 

and benefit information for affected 

CWA programs. Additional updates to 

the economic analysis include a refined 

approach to calculating benefits from 

section 404 compensatory mitigation, 

differentiating between emergent and 

forested wetlands, as well as presenting 

results in ranges to reflect uncertainty. 

The agencies’ economic analysis yielded 

the following 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 increase of between 2.84 and 

4.65 percent in positive jurisdictional 

determinations annually. 

• 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 economic analysis estimates 

that incremental annual costs for 

scenario 1 will range from $158M– 

$307M and incremental annual benefits 

will range from $339M–$350M and, for 

scenario 2, costs will range from 

$237M–$465M and benefits will range 

from $555M–$572M. 

The agencies conducted this economic 

analysis to provide the public with 

information on the potential changes to 

the costs and benefits of various CWA 

programs that may result from a change 

in the number of positive jurisdictional 

determinations. The economic analysis 

was done for informational purposes 

only, and the final decisions on the 

scope of ‘‘waters of the United States’’ 

in this rulemaking are not based on 

consideration of the information in the 

economic analysis. The economic 

analysis fulfills the requirements of 

Executive Orders 13563 and 12866. An 

explanation of the data, methods, and 

assumptions used to estimate indirect 

costs and benefits can be found in the 

Economic Analysis for the Clean Water 

Rule; Definition of ‘‘Waters of the 

United States’’ Under the Clean Water 

Act (Final Rule) in the accompanying 

docket. 

VI. Related Acts of Congress, Executive 

Orders, and Agency Initiatives 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is a 

‘‘significant regulatory action.’’ 

Accordingly, EPA and the Army 

submitted this action to the Office of 

Management and Budget (OMB) for 

review under Executive Orders 12866 

and 13563 (76 FR 3821, January 21, 

2011) and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

In addition, EPA and the Army 

prepared an analysis of the potential 

costs and benefits associated with this 

action. This analysis is contained in 

Economic Analysis of the EPA-Army 

Clean Water Rule. A copy of the 

analysis is available in the docket for 

this action. 

B. 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 

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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). 

C. 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, we 

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). 

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 proposed rule on small 

entities.’’ 5 U.S.C. 603. The scope of 

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. 

This 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,’’ section 502(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 EPA 

and the Army determined to seek 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, Report 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. 

D. 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 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. 

E. 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 the 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 

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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 addition to engaging these key 

organizations, 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, Report on the Discretionary 

Consultation and Outreach to State, 

Local, and County Governments on the 

Clean Water Rule: Definition of ‘‘Waters 

of the United States;’’ Final Rule 

(Docket Id. No. EPA–HQ–OW–2011– 

0880) is available in the docket for this 

rule. 

F. 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 generally may not issue a 

regulation that has tribal implications, 

(1) 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 develop a tribal 

summary impact statement, or (2) that 

preempts tribal law unless 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 views 

and solicited their comments on the 

proposed action and on the 

development of this rule. In the course 

of this consultation, EPA and the Corps 

jointly participated in aspects of the 

process. 

The agencies began consultation with 

federally-recognized Indian tribes on the 

Clean Water Rule defining ‘‘waters of 

the United States’’ 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 views on the 

proposed rule. In 2011, close to 200 

tribal representatives 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 

organizations by the completion of the 

consultation period. The comments 

indicated that Tribes, overall, support 

increased clarity of waters protected by 

the Clean Water Act, but some 

expressed concern with the consultation 

process and the burden of any expanded 

jurisdiction. The agencies considered 

the feedback received through 

consultation and written comments in 

developing 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 (Docket Id. No. EPA– 

HQ–OW–2011–0880), is available in the 

docket for this rule. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to Executive 

Order 13045 (62 FR 19885, April 23, 

1997) because the environmental health 

or safety risks addressed by this action 

do not present a disproportionate risk to 

children. 

H. 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. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs federal agencies to use voluntary 

consensus standards in regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. NTTAA directs 

federal agencies to provide Congress, 

through OMB, explanations when the 

agency decides not to use available and 

applicable voluntary consensus 

standards. 

This rule does not involve technical 

standards. Therefore, the agencies are 

not considering the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (E.O.) 12898 (59 FR 

7629, Feb. 16, 1994) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

The agencies have determined that 

the rule will not have 

disproportionately high and adverse 

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human health or environmental effects 

on minority or low-income populations, 

because it does not adversely affect the 

level of protection provided to human 

health or the environment. 

The rule defines the scope of waters 

protected under the CWA. The 

increased clarity regarding the 

definition of ‘‘waters of the United 

States’’ is intended to benefit all 

regulators, stakeholders, and interested 

parties. In addition, this rule is national 

in scope and, therefore, is not specific 

to a particular geographic area. 

In the spirit of E.O. 12898, input from 

environmental justice stakeholders was 

requested during the rule development 

process, through a series of stakeholder 

meetings between April and November 

2014. On May 12, 2014, EPA held a 

focused teleconference with nontraditional stakeholders, including 

environmental justice and faith-based 

stakeholders, to solicit their individual 

input on the proposed rule. The 

agencies have used the feedback from 

public outreach as the source of early 

guidance and recommendations for 

refining the proposed rule. 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 today’s rule, 

and incorporate increased clarity for 

regulators, stakeholders, and the 

regulated public to assist them in 

identifying waters as ‘‘waters of the 

United States.’’ 

The agencies prepared a report 

summarizing their outreach to the 

environmental justice community, 

analysis of potential impacts, and how 

these results informed the development 

of the rule. This report, Environmental 

Justice Report for the Clean Water Rule: 

Definition of ‘‘Waters of the United 

States’’ Under the Clean Water Act; 

Final Rule (Docket Id. No. EPA–HQ– 

OW–2011–0880), is available in the 

docket for this rule. 

K. Congressional Review Act 

This action is subject to the 

Congressional Review Act (CRA), and 

the agencies will submit a rule report to 

each House of the Congress and to the 

Comptroller General of the United 

States. This action is a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2) based on 

potential indirect costs. 

L. Environmental Documentation 

In this joint rulemaking, the agencies 

establish a definitional rule that clarifies 

the scope of the Clean Water Act. The 

definition will apply to all provisions of 

the Act, and this regulation specifically 

amends EPA regulations implementing 

sections 301, 304, 306, 311, 402 and 

404, while the Army is making 

substantively identical revisions to its 

regulations under section 404 of the 

CWA. Section 511(c) of the Clean Water 

Act provides that, except for certain 

actions not relevant here, no action by 

EPA constitutes ‘a major federal action 

significantly affecting the quality of the 

human environment within the meaning 

of [NEPA]’’. 

The Army has prepared a final 

environmental assessment and Findings 

of No Significant Impact consistent with 

the National Environmental Policy Act 

(NEPA). The Army has determined that 

the rule is not a major federal action 

significantly affecting the quality of the 

human environment that would require 

the preparation of an environmental 

impact statement. The assessment is 

contained in the record for this 

rulemaking. Furthermore, appropriate 

environmental documentation, 

including an EIS when required, is 

prepared by the Corps for general 

permits and specifically for each and 

every standard individual permit 

application before making final permit 

decisions. 

M. Judicial Review 

Section 509(b)(1) of the CWA 

provides for judicial review in the 

courts of appeals of specifically 

enumerated actions of the 

Administrator. The Supreme Court and 

lower courts have reached different 

conclusions on the types of actions that 

fall within section 509. Compare, E.I. du 

Pont de Nemours and Co. v. Train, 430 

U.S. 112 (1977); NRDC v. EPA, 673 F.2d 

400 (D.C. Cir. 1982); National Cotton 

Council of Amer. v. EPA, 553 F.3d 

927(6th Cir. 2009) cert denied 559 U.S. 

936 (2010) with, Northwest 

Environmental Advocates v. EPA, 537 

F.3d 1006 (9th Cir. 2008); Friends of the 

Everglades v. EPA, 699 F.3d 1280 (11th 

Cir. 2012) cert denied 559 U.S. 936 

(2010). 

See DATES section for information 

regarding the timing for seeking judicial 

review of this rule. 

List of Subjects 

33 CFR Part 328 

Environmental protection, 

Administrative practice and procedure, 

Intergovernmental relations, Navigation, 

Water pollution control, Waterways. 

40 CFR Parts 110, 112, 116, 117, 122, 

230, 232, 300, 301, and 401 

Environmental protection, Water 

pollution control. 

Dated: May 27, 2015. 

Gina McCarthy, 

Administrator, Environmental Protection 

Agency. 

Dated: May 27, 2015. 

Jo-Ellen Darcy, 

Assistant Secretary of the Army, (Civil Works), 

Department of the Army. 

Title 33—Navigation and Navigable 

Waters 

For the reasons set out in the 

preamble, title 33, chapter II of the Code 

of Federal Regulations is amended as 

follows: 

PART 328—DEFINITION OF WATERS 

OF THE UNITED STATES 

■ 1. The authority citation for part 328 

is revised to read as follows: 

Authority: 33 U.S.C. 1251 et seq. 

■ 2. Section 328.3 is amended by 

revising paragraphs (a) through (c), 

removing paragraphs (d) and (e), and 

redesignating paragraph (f) as paragraph 

(d) to read as follows: 

§ 328.3 Definitions. 

* * * * * 

(a) For purposes of the Clean Water 

Act, 33 U.S.C. 1251 et seq. and its 

implementing regulations, subject to the 

exclusions in paragraph (b) of this 

section, the term ‘‘waters of the United 

States’’ means: 

(1) All waters which are currently 

used, were used in the past, or may be 

susceptible to use in interstate or foreign 

commerce, including all waters which 

are subject to the ebb and flow of the 

tide; 

(2) All interstate waters, including 

interstate wetlands; 

(3) The territorial seas; 

(4) All impoundments of waters 

otherwise identified as waters of the 

United States under this section; 

(5) All tributaries, as defined in 

paragraph (c)(3) of this section, of 

waters identified in paragraphs (a)(1) 

through (3) of this section; 

(6) All waters adjacent to a water 

identified in paragraphs (a)(1) through 

(5) of this section, including wetlands, 

ponds, lakes, oxbows, impoundments, 

and similar waters; 

(7) All waters in paragraphs (a)(7)(i) 

through (v) of this section where they 

are determined, on a case-specific basis, 

to have a significant nexus to a water 

identified in paragraphs (a)(1) through 

(3) of this section. The waters identified 

in each of paragraphs (a)(7)(i) through 

(v) of this section are similarly situated 

and shall be combined, for purposes of 

a significant nexus analysis, in the 

watershed that drains to the nearest 

water identified in paragraphs (a)(1) 

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through (3) of this section. Waters 

identified in this paragraph shall not be 

combined with waters identified in 

paragraph (a)(6) of this section when 

performing a significant nexus analysis. 

If waters identified in this paragraph are 

also an adjacent water under paragraph 

(a)(6), they are an adjacent water and no 

case-specific significant nexus analysis 

is required. 

(i) Prairie potholes. Prairie potholes 

are a complex of glacially formed 

wetlands, usually occurring in 

depressions that lack permanent natural 

outlets, located in the upper Midwest. 

(ii) Carolina bays and Delmarva bays. 

Carolina bays and Delmarva bays are 

ponded, depressional wetlands that 

occur along the Atlantic coastal plain. 

(iii) Pocosins. Pocosins are evergreen 

shrub and tree dominated wetlands 

found predominantly along the Central 

Atlantic coastal plain. 

(iv) Western vernal pools. Western 

vernal pools are seasonal wetlands 

located in parts of California and 

associated with topographic depression, 

soils with poor drainage, mild, wet 

winters and hot, dry summers. 

(v) Texas coastal prairie wetlands. 

Texas coastal prairie wetlands are 

freshwater wetlands that occur as a 

mosaic of depressions, ridges, 

intermound flats, and mima mound 

wetlands located along the Texas Gulf 

Coast. 

(8) All waters located within the 100- 

year floodplain of a water identified in 

paragraphs (a)(1) through (3) of this 

section and all waters located within 

4,000 feet of the high tide line or 

ordinary high water mark of a water 

identified in paragraphs (a)(1) through 

(5) of this section where they are 

determined on a case-specific basis to 

have a significant nexus to a water 

identified in paragraphs (a)(1) through 

(3) of this section. For waters 

determined to have a significant nexus, 

the entire water is a water of the United 

States if a portion is located within the 

100-year floodplain of a water identified 

in paragraphs (a)(1) through (3) of this 

section or within 4,000 feet of the high 

tide line or ordinary high water mark. 

Waters identified in this paragraph shall 

not be combined with waters identified 

in paragraph (a)(6) of this section when 

performing a significant nexus analysis. 

If waters identified in this paragraph are 

also an adjacent water under paragraph 

(a)(6), they are an adjacent water and no 

case-specific significant nexus analysis 

is required. 

(b) The following are not ‘‘waters of 

the United States’’ even where they 

otherwise meet the terms of paragraphs 

(a)(4) through (8) of this section. 

(1) Waste treatment systems, 

including treatment ponds or lagoons 

designed to meet the requirements of 

the Clean Water Act. 

(2) Prior converted cropland. 

Notwithstanding the determination of 

an area’s status as prior converted 

cropland by any other Federal agency, 

for the purposes of the Clean Water Act, 

the final authority regarding Clean 

Water Act jurisdiction remains with 

EPA. 

(3) The following ditches: 

(i) Ditches with ephemeral flow that 

are not a relocated tributary or 

excavated in a tributary. 

(ii) Ditches with intermittent flow that 

are not a relocated tributary, excavated 

in a tributary, or drain wetlands. 

(iii) Ditches that do not flow, either 

directly or through another water, into 

a water identified in paragraphs (a)(1) 

through (3) of this section. 

(4) The following features: 

(i) Artificially irrigated areas that 

would revert to dry land should 

application of water to that area cease; 

(ii) Artificial, constructed lakes and 

ponds created in dry land such as farm 

and stock watering ponds, irrigation 

ponds, settling basins, fields flooded for 

rice growing, log cleaning ponds, or 

cooling ponds; 

(iii) Artificial reflecting pools or 

swimming pools created in dry land; 

(iv) Small ornamental waters created 

in dry land; 

(v) Water-filled depressions created in 

dry land incidental to mining or 

construction activity, including pits 

excavated for obtaining fill, sand, or 

gravel that fill with water; 

(vi) Erosional features, including 

gullies, rills, and other ephemeral 

features that do not meet the definition 

of tributary, non-wetland swales, and 

lawfully constructed grassed waterways; 

and 

(vii) Puddles. 

(5) Groundwater, including 

groundwater drained through 

subsurface drainage systems. 

(6) Stormwater control features 

constructed to convey, treat, or store 

stormwater that are created in dry land. 

(7) Wastewater recycling structures 

constructed in dry land; detention and 

retention basins built for wastewater 

recycling; groundwater recharge basins; 

percolation ponds built for wastewater 

recycling; and water distributary 

structures built for wastewater 

recycling. 

(c) Definitions. In this section, the 

following definitions apply: 

(1) Adjacent. The term adjacent 

means bordering, contiguous, or 

neighboring a water identified in 

paragraphs (a)(1) through (5) of this 

section, including waters separated by 

constructed dikes or barriers, natural 

river berms, beach dunes, and the like. 

For purposes of adjacency, an open 

water such as a pond or lake includes 

any wetlands within or abutting its 

ordinary high water mark. Adjacency is 

not limited to waters located laterally to 

a water identified in paragraphs (a)(1) 

through (5) of this section. Adjacent 

waters also include all waters that 

connect segments of a water identified 

in paragraphs (a)(1) through (5) or are 

located at the head of a water identified 

in paragraphs (a)(1) through (5) of this 

section and are bordering, contiguous, 

or neighboring such water. Waters being 

used for established normal farming, 

ranching, and silviculture activities (33 

U.S.C. 1344(f)) are not adjacent. 

(2) Neighboring. The term neighboring 

means: 

(i) All waters located within 100 feet 

of the ordinary high water mark of a 

water identified in paragraphs (a)(1) 

through (5) of this section. The entire 

water is neighboring if a portion is 

located within 100 feet of the ordinary 

high water mark; 

(ii) All waters located within the 100- 

year floodplain of a water identified in 

paragraphs (a)(1) through (5) of this 

section and not more than 1,500 feet 

from the ordinary high water mark of 

such water. The entire water is 

neighboring if a portion is located 

within 1,500 feet of the ordinary high 

water mark and within the 100-year 

floodplain; 

(iii) All waters located within 1,500 

feet of the high tide line of a water 

identified in paragraphs (a)(1) or (a)(3) 

of this section, and all waters within 

1,500 feet of the ordinary high water 

mark of the Great Lakes. The entire 

water is neighboring if a portion is 

located within 1,500 feet of the high tide 

line or within 1,500 feet of the ordinary 

high water mark of the Great Lakes. 

(3) Tributary and tributaries. The 

terms tributary and tributaries each 

mean a water that contributes flow, 

either directly or through another water 

(including an impoundment identified 

in paragraph (a)(4) of this section), to a 

water identified in paragraphs (a)(1) 

through (3) of this section that is 

characterized by the presence of the 

physical indicators of a bed and banks 

and an ordinary high water mark. These 

physical indicators demonstrate there is 

volume, frequency, and duration of flow 

sufficient to create a bed and banks and 

an ordinary high water mark, and thus 

to qualify as a tributary. A tributary can 

be a natural, man-altered, or man-made 

water and includes waters such as 

rivers, streams, canals, and ditches not 

excluded under paragraph (b) of this 

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section. A water that otherwise qualifies 

as a tributary under this definition does 

not lose its status as a tributary if, for 

any length, there are one or more 

constructed breaks (such as bridges, 

culverts, pipes, or dams), or one or more 

natural breaks (such as wetlands along 

the run of a stream, debris piles, boulder 

fields, or a stream that flows 

underground) so long as a bed and 

banks and an ordinary high water mark 

can be identified upstream of the break. 

A water that otherwise qualifies as a 

tributary under this definition does not 

lose its status as a tributary if it 

contributes flow through a water of the 

United States that does not meet the 

definition of tributary or through a nonjurisdictional water to a water identified 

in paragraphs (a)(1) through (3) of this 

section. 

(4) Wetlands. The term wetlands 

means those areas that are inundated or 

saturated by surface or groundwater at 

a frequency and duration sufficient to 

support, and that under normal 

circumstances do support, a prevalence 

of vegetation typically adapted for life 

in saturated soil conditions. Wetlands 

generally include swamps, marshes, 

bogs, and similar areas. 

(5) Significant nexus. The term 

significant nexus means that a water, 

including wetlands, either alone or in 

combination with other similarly 

situated waters in the region, 

significantly affects the chemical, 

physical, or biological integrity of a 

water identified in paragraphs (a)(1) 

through (3) of this section. The term ‘‘in 

the region’’ means the watershed that 

drains to the nearest water identified in 

paragraphs (a)(1) through (3) of this 

section. For an effect to be significant, 

it must be more than speculative or 

insubstantial. Waters are similarly 

situated when they function alike and 

are sufficiently close to function 

together in affecting downstream waters. 

For purposes of determining whether or 

not a water has a significant nexus, the 

water’s effect on downstream paragraph 

(a)(1) through (3) waters shall be 

assessed by evaluating the aquatic 

functions identified in paragraphs 

(c)(5)(i) through (ix) of this section. A 

water has a significant nexus when any 

single function or combination of 

functions performed by the water, alone 

or together with similarly situated 

waters in the region, contributes 

significantly to the chemical, physical, 

or biological integrity of the nearest 

water identified in paragraphs (a)(1) 

through (3) of this section. Functions 

relevant to the significant nexus 

evaluation are the following: 

(i) Sediment trapping, 

(ii) Nutrient recycling, 

(iii) Pollutant trapping, 

transformation, filtering, and transport, 

(iv) Retention and attenuation of flood 

waters, 

(v) Runoff storage, 

(vi) Contribution of flow, 

(vii) Export of organic matter, 

(viii) Export of food resources, and 

(ix) Provision of life cycle dependent 

aquatic habitat (such as foraging, 

feeding, nesting, breeding, spawning, or 

use as a nursery area) for species located 

in a water identified in paragraphs (a)(1) 

through (3) of this section. 

(6) Ordinary high water mark. The 

term ordinary high water mark means 

that line on the shore established by the 

fluctuations of water and indicated by 

physical characteristics such as a clear, 

natural line impressed on the bank, 

shelving, changes in the character of 

soil, destruction of terrestrial vegetation, 

the presence of litter and debris, or 

other appropriate means that consider 

the characteristics of the surrounding 

areas. 

(7) High tide line. The term high tide 

line means the line of intersection of the 

land with the water’s surface at the 

maximum height reached by a rising 

tide. The high tide line may be 

determined, in the absence of actual 

data, by a line of oil or scum along shore 

objects, a more or less continuous 

deposit of fine shell or debris on the 

foreshore or berm, other physical 

markings or characteristics, vegetation 

lines, tidal gages, or other suitable 

means that delineate the general height 

reached by a rising tide. The line 

encompasses spring high tides and other 

high tides that occur with periodic 

frequency but does not include storm 

surges in which there is a departure 

from the normal or predicted reach of 

the tide due to the piling up of water 

against a coast by strong winds such as 

those accompanying a hurricane or 

other intense storm. 

* * * * * 

Title 40—Protection of Environment 

For reasons set out in the preamble, 

title 40, chapter I of the Code of Federal 

Regulations is amended as follows: 

PART 110—DISCHARGE OF OIL 

■ 3. The authority citation for part 110 

is revised to read as follows: 

Authority: 33 U.S.C. 1251 et seq., 33 U.S.C. 

1321(b)(3) and (b)(4) and 1361(a); E.O. 11735, 

38 FR 21243, 3 CFR parts 1971–1975 Comp., 

p. 793. 

■ 4. Section 110.1 is amended by 

removing the definition of ‘‘wetlands’’ 

and revising the definition of ‘‘navigable 

waters’’ to read as follows: 

§ 110.1 Definitions. 

* * * * * 

Navigable waters means waters of the 

United States, including the territorial 

seas. 

(1) For purposes of the Clean Water 

Act, 33 U.S.C. 1251 et seq. and its 

implementing regulations, subject to the 

exclusions in paragraph (2) of this 

section, the term ‘‘waters of the United 

States’’ means: 

(i) All waters which are currently 

used, were used in the past, or may be 

susceptible to use in interstate or foreign 

commerce, including all waters which 

are subject to the ebb and flow of the 

tide; 

(ii) All interstate waters, including 

interstate wetlands; 

(iii) The territorial seas; 

(iv) All impoundments of waters 

otherwise identified as waters of the 

United States under this section; 

(v) All tributaries, as defined in 

paragraph (3)(iii) of this definition, of 

waters identified in paragraphs (1)(i) 

through (iii) of this definition; 

(vi) All waters adjacent to a water 

identified in paragraphs (1)(i) through 

(v) of this definition, including 

wetlands, ponds, lakes, oxbows, 

impoundments, and similar waters; 

(vii) All waters in paragraphs 

(1)(vii)(A) through (E) of this definition 

where they are determined, on a casespecific basis, to have a significant 

nexus to a water identified in 

paragraphs (1)(i) through (iii) of this 

definition. The waters identified in each 

of paragraphs (1)(vii)(A) through (E) of 

this definition are similarly situated and 

shall be combined, for purposes of a 

significant nexus analysis, in the 

watershed that drains to the nearest 

water identified in paragraphs (1)(i) 

through (iii) of this definition. Waters 

identified in this paragraph shall not be 

combined with waters identified in 

paragraph (1)(vi) of this definition when 

performing a significant nexus analysis. 

If waters identified in this paragraph are 

also an adjacent water under paragraph 

(1)(vi), they are an adjacent water and 

no case-specific significant nexus 

analysis is required. 

(A) Prairie potholes. Prairie potholes 

are a complex of glacially formed 

wetlands, usually occurring in 

depressions that lack permanent natural 

outlets, located in the upper Midwest. 

(B) Carolina bays and Delmarva bays. 

Carolina bays and Delmarva bays are 

ponded, depressional wetlands that 

occur along the Atlantic coastal plain. 

(C) Pocosins. Pocosins are evergreen 

shrub and tree dominated wetlands 

found predominantly along the Central 

Atlantic coastal plain. 

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(D) Western vernal pools. Western 

vernal pools are seasonal wetlands 

located in parts of California and 

associated with topographic depression, 

soils with poor drainage, mild, wet 

winters and hot, dry summers. 

(E) Texas coastal prairie wetlands. 

Texas coastal prairie wetlands are 

freshwater wetlands that occur as a 

mosaic of depressions, ridges, 

intermound flats, and mima mound 

wetlands located along the Texas Gulf 

Coast. 

(viii) All waters located within the 

100-year floodplain of a water identified 

in paragraphs (1)(i) through (iii) of this 

definition and all waters located within 

4,000 feet of the high tide line or 

ordinary high water mark of a water 

identified in paragraphs (1)(i) through 

(v) of this definition where they are 

determined on a case-specific basis to 

have a significant nexus to a water 

identified in paragraphs (1)(i) through 

(iii) of this definition. For waters 

determined to have a significant nexus, 

the entire water is a water of the United 

States if a portion is located within the 

100-year floodplain of a water identified 

in paragraphs (1)(i) through (iii) of this 

definition or within 4,000 feet of the 

high tide line or ordinary high water 

mark. Waters identified in this 

paragraph shall not be combined with 

waters identified in paragraph (1)(vi) of 

this definition when performing a 

significant nexus analysis. If waters 

identified in this paragraph are also an 

adjacent water under paragraph (1)(vi), 

they are an adjacent water and no casespecific significant nexus analysis is 

required. 

(2) The following are not ‘‘waters of 

the United States’’ even where they 

otherwise meet the terms of paragraphs 

(1)(iv) through (viii) of this section. 

(i) Waste treatment systems (other 

than cooling ponds meeting the criteria 

of this paragraph) are not waters of the 

United States. 

(ii) Prior converted cropland. 

Notwithstanding the determination of 

an area’s status as prior converted 

cropland by any other Federal agency, 

for the purposes of the Clean Water Act, 

the final authority regarding Clean 

Water Act jurisdiction remains with 

EPA. 

(iii) The following ditches: 

(A) Ditches with ephemeral flow that 

are not a relocated tributary or 

excavated in a tributary. 

(B) Ditches with intermittent flow that 

are not a relocated tributary, excavated 

in a tributary, or drain wetlands. 

(C) Ditches that do not flow, either 

directly or through another water, into 

a water identified in paragraphs (1)(i) 

through (iii) of this definition. 

(iv) The following features: 

(A) Artificially irrigated areas that 

would revert to dry land should 

application of water to that area cease; 

(B) Artificial, constructed lakes and 

ponds created in dry land such as farm 

and stock watering ponds, irrigation 

ponds, settling basins, fields flooded for 

rice growing, log cleaning ponds, or 

cooling ponds; 

(C) Artificial reflecting pools or 

swimming pools created in dry land; 

(D) Small ornamental waters created 

in dry land; 

(E) Water-filled depressions created in 

dry land incidental to mining or 

construction activity, including pits 

excavated for obtaining fill, sand, or 

gravel that fill with water; 

(F) Erosional features, including 

gullies, rills, and other ephemeral 

features that do not meet the definition 

of tributary, non-wetland swales, and 

lawfully constructed grassed waterways; 

and 

(G) Puddles. 

(v) Groundwater, including 

groundwater drained through 

subsurface drainage systems. 

(vi) Stormwater control features 

constructed to convey, treat, or store 

stormwater that are created in dry land. 

(vii) Wastewater recycling structures 

constructed in dry land; detention and 

retention basins built for wastewater 

recycling; groundwater recharge basins; 

percolation ponds built for wastewater 

recycling; and water distributary 

structures built for wastewater 

recycling. 

(3) In this definition, the following 

terms apply: 

(i) Adjacent. The term adjacent means 

bordering, contiguous, or neighboring a 

water identified in paragraphs (1)(i) 

through (v) of this definition, including 

waters separated by constructed dikes or 

barriers, natural river berms, beach 

dunes, and the like. For purposes of 

adjacency, an open water such as a 

pond or lake includes any wetlands 

within or abutting its ordinary high 

water mark. Adjacency is not limited to 

waters located laterally to a water 

identified in paragraphs (1)(1) through 

(v) of this definition. Adjacent waters 

also include all waters that connect 

segments of a water identified in 

paragraphs (1)(i) through (v) or are 

located at the head of a water identified 

in paragraphs (1)(i) through (v) of this 

definition and are bordering, 

contiguous, or neighboring such water. 

Waters being used for established 

normal farming, ranching, and 

silviculture activities (33 U.S.C. 1344(f)) 

are not adjacent. 

(ii) Neighboring. The term 

neighboring means: 

(A) All waters located within 100 feet 

of the ordinary high water mark of a 

water identified in paragraphs (1)(i) 

through (v) of this definition. The entire 

water is neighboring if a portion is 

located within 100 feet of the ordinary 

high water mark; 

(B) All waters located within the 100- 

year floodplain of a water identified in 

paragraphs (1)(i) through (v) of this 

definition and not more than 1,500 feet 

from the ordinary high water mark of 

such water. The entire water is 

neighboring if a portion is located 

within 1,500 feet of the ordinary high 

water mark and within the 100-year 

floodplain; 

(C) All waters located within 1,500 

feet of the high tide line of a water 

identified in paragraphs (1)(i) or (iii) of 

this definition, and all waters within 

1,500 feet of the ordinary high water 

mark of the Great Lakes. The entire 

water is neighboring if a portion is 

located within 1,500 feet of the high tide 

line or within 1,500 feet of the ordinary 

high water mark of the Great Lakes. 

(iii) Tributary and tributaries. The 

terms tributary and tributaries each 

mean a water that contributes flow, 

either directly or through another water 

(including an impoundment identified 

in paragraph (1)(iv) of this section), to 

a water identified in paragraphs (1)(i) 

through (iii) of this definition that is 

characterized by the presence of the 

physical indicators of a bed and banks 

and an ordinary high water mark. These 

physical indicators demonstrate there is 

volume, frequency, and duration of flow 

sufficient to create a bed and banks and 

an ordinary high water mark, and thus 

to qualify as a tributary. A tributary can 

be a natural, man-altered, or man-made 

water and includes waters such as 

rivers, streams, canals, and ditches not 

excluded under paragraph (2) of this 

definition. A water that otherwise 

qualifies as a tributary under this 

definition does not lose its status as a 

tributary if, for any length, there are one 

or more constructed breaks (such as 

bridges, culverts, pipes, or dams), or one 

or more natural breaks (such as 

wetlands along the run of a stream, 

debris piles, boulder fields, or a stream 

that flows underground) so long as a bed 

and banks and an ordinary high water 

mark can be identified upstream of the 

break. A water that otherwise qualifies 

as a tributary under this definition does 

not lose its status as a tributary if it 

contributes flow through a water of the 

United States that does not meet the 

definition of tributary or through a nonjurisdictional water to a water identified 

in paragraphs (1)(i) through (iii) of this 

definition. 

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(iv) Wetlands. The term wetlands 

means those areas that are inundated or 

saturated by surface or groundwater at 

a frequency and duration sufficient to 

support, and that under normal 

circumstances do support, a prevalence 

of vegetation typically adapted for life 

in saturated soil conditions. Wetlands 

generally include swamps, marshes, 

bogs, and similar areas. 

(v) Significant nexus. The term 

significant nexus means that a water, 

including wetlands, either alone or in 

combination with other similarly 

situated waters in the region, 

significantly affects the chemical, 

physical, or biological integrity of a 

water identified in paragraphs (1)(i) 

through (iii) of this definition. The term 

‘‘in the region’’ means the watershed 

that drains to the nearest water 

identified in paragraphs (1)(i) through 

(iii) of this definition. For an effect to be 

significant, it must be more than 

speculative or insubstantial. Waters are 

similarly situated when they function 

alike and are sufficiently close to 

function together in affecting 

downstream waters. For purposes of 

determining whether or not a water has 

a significant nexus, the water’s effect on 

downstream (1)(i) through (iii) waters 

shall be assessed by evaluating the 

aquatic functions identified in 

paragraphs (3)(v)(A) through (I) of this 

definition. A water has a significant 

nexus when any single function or 

combination of functions performed by 

the water, alone or together with 

similarly situated waters in the region, 

contributes significantly to the 

chemical, physical, or biological 

integrity of the nearest water identified 

in paragraphs (1)(i) through (iii) of this 

definition. Functions relevant to the 

significant nexus evaluation are the 

following: 

(A) Sediment trapping, 

(B) Nutrient recycling, 

(C) Pollutant trapping, transformation, 

filtering, and transport, 

(D) Retention and attenuation of flood 

waters, 

(E) Runoff storage, 

(F) Contribution of flow, 

(G) Export of organic matter, 

(H) Export of food resources, and 

(I) Provision of life cycle dependent 

aquatic habitat (such as foraging, 

feeding, nesting, breeding, spawning, or 

use as a nursery area) for species located 

in a water identified in paragraphs (1)(i) 

through (iii) of this definition. 

(vi) Ordinary high water mark. The 

term ordinary high water mark means 

that line on the shore established by the 

fluctuations of water and indicated by 

physical characteristics such as a clear, 

natural line impressed on the bank, 

shelving, changes in the character of 

soil, destruction of terrestrial vegetation, 

the presence of litter and debris, or 

other appropriate means that consider 

the characteristics of the surrounding 

areas. 

(vii) High tide line. The term high tide 

line means the line of intersection of the 

land with the water’s surface at the 

maximum height reached by a rising 

tide. The high tide line may be 

determined, in the absence of actual 

data, by a line of oil or scum along shore 

objects, a more or less continuous 

deposit of fine shell or debris on the 

foreshore or berm, other physical 

markings or characteristics, vegetation 

lines, tidal gages, or other suitable 

means that delineate the general height 

reached by a rising tide. The line 

encompasses spring high tides and other 

high tides that occur with periodic 

frequency but does not include storm 

surges in which there is a departure 

from the normal or predicted reach of 

the tide due to the piling up of water 

against a coast by strong winds such as 

those accompanying a hurricane or 

other intense storm. 

* * * * * 

PART 112—OIL POLLUTION 

PREVENTION 

■ 5. The authority citation for part 112 

is revised to read as follows: 

Authority: 33 U.S.C. 1251 et seq. 

■ 6. Section 112.2 is amended by 

removing the definition of ‘‘wetlands’’ 

and revising the definition of 

‘‘Navigable waters’’ to read as follows: 

§ 112.2 Definitions. 

* * * * * 

Navigable waters means waters of the 

United States, including the territorial 

seas. 

(1) For purposes of the Clean Water 

Act, 33 U.S.C. 1251 et seq. and its 

implementing regulations, subject to the 

exclusions in paragraph (2) of this 

definition, the term ‘‘waters of the 

United States’’ means: 

(i) All waters which are currently 

used, were used in the past, or may be 

susceptible to use in interstate or foreign 

commerce, including all waters which 

are subject to the ebb and flow of the 

tide; 

(ii) All interstate waters, including 

interstate wetlands; 

(iii) The territorial seas; 

(iv) All impoundments of waters 

otherwise identified as waters of the 

United States under this section; 

(v) All tributaries, as defined in 

paragraph (3)(iii) of this definition, of 

waters identified in paragraphs (1)(i) 

through (iii) of this definition; 

(vi) All waters adjacent to a water 

identified in paragraphs (1)(i) through 

(v) of this definition, including 

wetlands, ponds, lakes, oxbows, 

impoundments, and similar waters; 

(vii) All waters in paragraphs 

(1)(vii)(A) through (E) of this definition 

where they are determined, on a casespecific basis, to have a significant 

nexus to a water identified in 

paragraphs (1)(i) through (iii) of this 

definition. The waters identified in each 

of paragraphs (1)(vii)(A) through (E) of 

this definition are similarly situated and 

shall be combined, for purposes of a 

significant nexus analysis, in the 

watershed that drains to the nearest 

water identified in paragraphs (1)(i) 

through (iii) of this definition. Waters 

identified in this paragraph shall not be 

combined with waters identified in 

paragraph (1)(vi) of this section when 

performing a significant nexus analysis. 

If waters identified in this paragraph are 

also an adjacent water under paragraph 

(1)(vi), they are an adjacent water and 

no case-specific significant nexus 

analysis is required. 

(A) Prairie potholes. Prairie potholes 

are a complex of glacially formed 

wetlands, usually occurring in 

depressions that lack permanent natural 

outlets, located in the upper Midwest. 

(B) Carolina bays and Delmarva bays. 

Carolina bays and Delmarva bays are 

ponded, depressional wetlands that 

occur along the Atlantic coastal plain. 

(C) Pocosins. Pocosins are evergreen 

shrub and tree dominated wetlands 

found predominantly along the Central 

Atlantic coastal plain. 

(D) Western vernal pools. Western 

vernal pools are seasonal wetlands 

located in parts of California and 

associated with topographic depression, 

soils with poor drainage, mild, wet 

winters and hot, dry summers. 

(E) Texas coastal prairie wetlands. 

Texas coastal prairie wetlands are 

freshwater wetlands that occur as a 

mosaic of depressions, ridges, 

intermound flats, and mima mound 

wetlands located along the Texas Gulf 

Coast. 

(viii) All waters located within the 

100-year floodplain of a water identified 

in paragraphs (1)(i) through (iii) of this 

definition and all waters located within 

4,000 feet of the high tide line or 

ordinary high water mark of a water 

identified in paragraphs (1)(i) through 

(v) of this definition where they are 

determined on a case-specific basis to 

have a significant nexus to a water 

identified in paragraphs (1)(i) through 

(iii) of this definition. For waters 

determined to have a significant nexus, 

the entire water is a water of the United 

States if a portion is located within the 

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100-year floodplain of a water identified 

in paragraphs (1)(i) through (iii) of this 

definition or within 4,000 feet of the 

high tide line or ordinary high water 

mark. Waters identified in this 

paragraph shall not be combined with 

waters identified in paragraph (1)(vi) of 

this definition when performing a 

significant nexus analysis. If waters 

identified in this paragraph are also an 

adjacent water under paragraph (1)(vi), 

they are an adjacent water and no casespecific significant nexus analysis is 

required. 

(2) The following are not ‘‘waters of 

the United States’’ even where they 

otherwise meet the terms of paragraphs 

(1)(iv) through (viii) of this definition. 

(i) The following ditches: 

(A) Ditches with ephemeral flow that 

are not a relocated tributary or 

excavated in a tributary. 

(B) Ditches with intermittent flow that 

are not a relocated tributary, excavated 

in a tributary, or drain wetlands. 

(C) Ditches that do not flow, either 

directly or through another water, into 

a water identified in paragraphs (1)(i) 

through (iii) of this definition. 

(ii) The following features: 

(A) Artificially irrigated areas that 

would revert to dry land should 

application of water to that area cease; 

(B) Artificial, constructed lakes and 

ponds created in dry land such as farm 

and stock watering ponds, irrigation 

ponds, settling basins, fields flooded for 

rice growing, log cleaning ponds, or 

cooling ponds; 

(C) Artificial reflecting pools or 

swimming pools created in dry land; 

(D) Small ornamental waters created 

in dry land; 

(E) Water-filled depressions created in 

dry land incidental to mining or 

construction activity, including pits 

excavated for obtaining fill, sand, or 

gravel that fill with water; 

(F) Erosional features, including 

gullies, rills, and other ephemeral 

features that do not meet the definition 

of tributary, non-wetland swales, and 

lawfully constructed grassed waterways; 

and 

(G) Puddles. 

(iii) Groundwater, including 

groundwater drained through 

subsurface drainage systems. 

(iv) Stormwater control features 

constructed to convey, treat, or store 

stormwater that are created in dry land. 

(v) Wastewater recycling structures 

constructed in dry land; detention and 

retention basins built for wastewater 

recycling; groundwater recharge basins; 

percolation ponds built for wastewater 

recycling; and water distributary 

structures built for wastewater 

recycling. 

(3) In this definition, the following 

terms apply: 

(i) Adjacent. The term adjacent means 

bordering, contiguous, or neighboring a 

water identified in paragraphs (1)(i) 

through (v) of this definition, including 

waters separated by constructed dikes or 

barriers, natural river berms, beach 

dunes, and the like. For purposes of 

adjacency, an open water such as a 

pond or lake includes any wetlands 

within or abutting its ordinary high 

water mark. Adjacency is not limited to 

waters located laterally to a water 

identified in paragraphs (1)(i) through 

(v) of this definition. Adjacent waters 

also include all waters that connect 

segments of a water identified in 

paragraphs (1)(i) through (v) or are 

located at the head of a water identified 

in paragraphs (1)(i) through (v) of this 

definition and are bordering, 

contiguous, or neighboring such water. 

Waters being used for established 

normal farming, ranching, and 

silviculture activities (33 U.S.C. 1344(f)) 

are not adjacent. 

(ii) Neighboring. The term 

neighboring means: 

(A) All waters located within 100 feet 

of the ordinary high water mark of a 

water identified in paragraphs (1)(i) 

through (v) of this definition. The entire 

water is neighboring if a portion is 

located within 100 feet of the ordinary 

high water mark; 

(B) All waters located within the 100- 

year floodplain of a water identified in 

paragraphs (1)(i) through (v) of this 

definition and not more than 1,500 feet 

from the ordinary high water mark of 

such water. The entire water is 

neighboring if a portion is located 

within 1,500 feet of the ordinary high 

water mark and within the 100-year 

floodplain; 

(C) All waters located within 1,500 

feet of the high tide line of a water 

identified in paragraphs (1)(i) or (1)(iii) 

of this definition, and all waters within 

1,500 feet of the ordinary high water 

mark of the Great Lakes. The entire 

water is neighboring if a portion is 

located within 1,500 feet of the high tide 

line or within 1,500 feet of the ordinary 

high water mark of the Great Lakes. 

(iii) Tributary and tributaries. The 

terms tributary and tributaries each 

mean a water that contributes flow, 

either directly or through another water 

(including an impoundment identified 

in paragraph (1)(iv) of this definition), to 

a water identified in paragraphs (1)(i) 

through (iii) of this definition that is 

characterized by the presence of the 

physical indicators of a bed and banks 

and an ordinary high water mark. These 

physical indicators demonstrate there is 

volume, frequency, and duration of flow 

sufficient to create a bed and banks and 

an ordinary high water mark, and thus 

to qualify as a tributary. A tributary can 

be a natural, man-altered, or man-made 

water and includes waters such as 

rivers, streams, canals, and ditches not 

excluded under paragraph (2) of this 

definition. A water that otherwise 

qualifies as a tributary under this 

definition does not lose its status as a 

tributary if, for any length, there are one 

or more constructed breaks (such as 

bridges, culverts, pipes, or dams), or one 

or more natural breaks (such as 

wetlands along the run of a stream, 

debris piles, boulder fields, or a stream 

that flows underground) so long as a bed 

and banks and an ordinary high water 

mark can be identified upstream of the 

break. A water that otherwise qualifies 

as a tributary under this definition does 

not lose its status as a tributary if it 

contributes flow through a water of the 

United States that does not meet the 

definition of tributary or through a nonjurisdictional water to a water identified 

in paragraphs (1)(i) through (iii) of this 

definition. 

(iv) Wetlands. The term wetlands 

means those areas that are inundated or 

saturated by surface or groundwater at 

a frequency and duration sufficient to 

support, and that under normal 

circumstances do support, a prevalence 

of vegetation typically adapted for life 

in saturated soil conditions. Wetlands 

generally include swamps, marshes, 

bogs, and similar areas. 

(v) Significant nexus. The term 

significant nexus means that a water, 

including wetlands, either alone or in 

combination with other similarly 

situated waters in the region, 

significantly affects the chemical, 

physical, or biological integrity of a 

water identified in paragraphs (1)(i) 

through (iii) of this definition. The term 

‘‘in the region’’ means the watershed 

that drains to the nearest water 

identified in paragraphs (1)(i) through 

(iii) of this definition. For an effect to be 

significant, it must be more than 

speculative or insubstantial. Waters are 

similarly situated when they function 

alike and are sufficiently close to 

function together in affecting 

downstream waters. For purposes of 

determining whether or not a water has 

a significant nexus, the water’s effect on 

downstream (1)(i) through (iii) waters 

shall be assessed by evaluating the 

aquatic functions identified in 

paragraphs (3)(v)(A) through (I) of this 

definition. A water has a significant 

nexus when any single function or 

combination of functions performed by 

the water, alone or together with 

similarly situated waters in the region, 

contributes significantly to the 

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chemical, physical, or biological 

integrity of the nearest water identified 

in paragraphs (1)(i) through (iii) of this 

section. Functions relevant to the 

significant nexus evaluation are the 

following: 

(A) Sediment trapping, 

(B) Nutrient recycling, 

(C) Pollutant trapping, transformation, 

filtering, and transport, 

(D) Retention and attenuation of flood 

waters, 

(E) Runoff storage, 

(F) Contribution of flow, 

(G) Export of organic matter, 

(H) Export of food resources, and 

(I) Provision of life cycle dependent 

aquatic habitat (such as foraging, 

feeding, nesting, breeding, spawning, or 

use as a nursery area) for species located 

in a water identified in paragraphs (1)(i) 

through (iii) of this definition. 

(vi) Ordinary high water mark. The 

term ordinary high water mark means 

that line on the shore established by the 

fluctuations of water and indicated by 

physical characteristics such as a clear, 

natural line impressed on the bank, 

shelving, changes in the character of 

soil, destruction of terrestrial vegetation, 

the presence of litter and debris, or 

other appropriate means that consider 

the characteristics of the surrounding 

areas. 

(vii) High tide line. The term high tide 

line means the line of intersection of the 

land with the water’s surface at the 

maximum height reached by a rising 

tide. The high tide line may be 

determined, in the absence of actual 

data, by a line of oil or scum along shore 

objects, a more or less continuous 

deposit of fine shell or debris on the 

foreshore or berm, other physical 

markings or characteristics, vegetation 

lines, tidal gages, or other suitable 

means that delineate the general height 

reached by a rising tide. The line 

encompasses spring high tides and other 

high tides that occur with periodic 

frequency but does not include storm 

surges in which there is a departure 

from the normal or predicted reach of 

the tide due to the piling up of water 

against a coast by strong winds such as 

those accompanying a hurricane or 

other intense storm. 

* * * * * 

PART 116—DESIGNATION OF 

HAZARDOUS SUBSTANCE 

■ 7. The authority citation for part 116 

is revised to read as follows: 

Authority: 33 U.S.C. 1251 et seq. 

■ 8. Section 116.3 is amended by 

revising the definition of ‘‘Navigable 

waters’’ to read as follows: 

§ 116.3 Definitions. 

* * * * * 

Navigable waters is defined in section 

502(7) of the Act to mean ‘‘waters of the 

United States, including the territorial 

seas.’’ 

(1) For purposes of the Clean Water 

Act, 33 U.S.C. 1251 et seq. and its 

implementing regulations, subject to the 

exclusions in paragraph (2) of this 

definition, the term ‘‘waters of the 

United States’’ means: 

(i) All waters which are currently 

used, were used in the past, or may be 

susceptible to use in interstate or foreign 

commerce, including all waters which 

are subject to the ebb and flow of the 

tide; 

(ii) All interstate waters, including 

interstate wetlands; 

(iii) The territorial seas; 

(iv) All impoundments of waters 

otherwise identified as waters of the 

United States under this section; 

(v) All tributaries, as defined in 

paragraph (3)(iii) of this definition, of 

waters identified in paragraphs (1)(i) 

through (iii) of this definition; 

(vi) All waters adjacent to a water 

identified in paragraphs (1)(i) through 

(v) of this definition, including 

wetlands, ponds, lakes, oxbows, 

impoundments, and similar waters; 

(vii) All waters in paragraphs 

(1)(vii)(A) through (E) of this definition 

where they are determined, on a casespecific basis, to have a significant 

nexus to a water identified in 

paragraphs (1)(i) through (iii) of this 

definition. The waters identified in each 

of paragraphs (1)(vii)(A) through (E) of 

this definition are similarly situated and 

shall be combined, for purposes of a 

significant nexus analysis, in the 

watershed that drains to the nearest 

water identified in paragraphs (1)(i) 

through (iii) of this definition. Waters 

identified in this paragraph shall not be 

combined with waters identified in 

paragraph (1)(vi) of this definition when 

performing a significant nexus analysis. 

If waters identified in this paragraph are 

also an adjacent water under paragraph 

(1)(vi), they are an adjacent water and 

no case-specific significant nexus 

analysis is required. 

(A) Prairie potholes. Prairie potholes 

are a complex of glacially formed 

wetlands, usually occurring in 

depressions that lack permanent natural 

outlets, located in the upper Midwest. 

(B) Carolina bays and Delmarva bays. 

Carolina bays and Delmarva bays are 

ponded, depressional wetlands that 

occur along the Atlantic coastal plain. 

(C) Pocosins. Pocosins are evergreen 

shrub and tree dominated wetlands 

found predominantly along the Central 

Atlantic coastal plain. 

(D) Western vernal pools. Western 

vernal pools are seasonal wetlands 

located in parts of California and 

associated with topographic depression, 

soils with poor drainage, mild, wet 

winters and hot, dry summers. 

(E) Texas coastal prairie wetlands. 

Texas coastal prairie wetlands are 

freshwater wetlands that occur as a 

mosaic of depressions, ridges, 

intermound flats, and mima mound 

wetlands located along the Texas Gulf 

Coast. 

(viii) All waters located within the 

100-year floodplain of a water identified 

in paragraphs (1)(i) through (iii) of this 

definition and all waters located within 

4,000 feet of the high tide line or 

ordinary high water mark of a water 

identified in paragraphs (1)(i) through 

(v) of this definition where they are 

determined on a case-specific basis to 

have a significant nexus to a water 

identified in paragraphs (1)(i) through 

(iii) of this definition. For waters 

determined to have a significant nexus, 

the entire water is a water of the United 

States if a portion is located within the 

100-year floodplain of a water identified 

in paragraphs (1)(i) through (iii) of this 

definition or within 4,000 feet of the 

high tide line or ordinary high water 

mark. Waters identified in this 

paragraph shall not be combined with 

waters identified in paragraph (1)(vi) of 

this definition when performing a 

significant nexus analysis. If waters 

identified in this paragraph are also an 

adjacent water under paragraph (1)(vi), 

they are an adjacent water and no casespecific significant nexus analysis is 

required. 

(2) The following are not ‘‘waters of 

the United States’’ even where they 

otherwise meet the terms of paragraphs 

(1)(iv) through (viii) of this definition. 

(i) Prior converted cropland. 

Notwithstanding the determination of 

an area’s status as prior converted 

cropland by any other Federal agency, 

for the purposes of the Clean Water Act, 

the final authority regarding Clean 

Water Act jurisdiction remains with 

EPA. 

(ii) The following ditches: 

(A) Ditches with ephemeral flow that 

are not a relocated tributary or 

excavated in a tributary. 

(B) Ditches with intermittent flow that 

are not a relocated tributary, excavated 

in a tributary, or drain wetlands. 

(C) Ditches that do not flow, either 

directly or through another water, into 

a water identified in paragraphs (1)(i) 

through (iii) of this definition. 

(iii) The following features: 

(A) Artificially irrigated areas that 

would revert to dry land should 

application of water to that area cease; 

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(B) Artificial, constructed lakes and 

ponds created in dry land such as farm 

and stock watering ponds, irrigation 

ponds, settling basins, fields flooded for 

rice growing, log cleaning ponds, or 

cooling ponds; 

(C) Artificial reflecting pools or 

swimming pools created in dry land; 

(D) Small ornamental waters created 

in dry land; 

(E) Water-filled depressions created in 

dry land incidental to mining or 

construction activity, including pits 

excavated for obtaining fill, sand, or 

gravel that fill with water; 

(F) Erosional features, including 

gullies, rills, and other ephemeral 

features that do not meet the definition 

of tributary, non-wetland swales, and 

lawfully constructed grassed waterways; 

and 

(G) Puddles. 

(iv) Groundwater, including 

groundwater drained through 

subsurface drainage systems. 

(v) Stormwater control features 

constructed to convey, treat, or store 

stormwater that are created in dry land. 

(vi) Wastewater recycling structures 

constructed in dry land; detention and 

retention basins built for wastewater 

recycling; groundwater recharge basins; 

percolation ponds built for wastewater 

recycling; and water distributary 

structures built for wastewater 

recycling. 

(3) In this definition, the following 

terms apply: 

(i) Adjacent. The term adjacent means 

bordering, contiguous, or neighboring a 

water identified in paragraphs (1)(i) 

through (v) of this definition, including 

waters separated by constructed dikes or 

barriers, natural river berms, beach 

dunes, and the like. For purposes of 

adjacency, an open water such as a 

pond or lake includes any wetlands 

within or abutting its ordinary high 

water mark. Adjacency is not limited to 

waters located laterally to a water 

identified in paragraphs (1)(i) through 

(v) of this definition. Adjacent waters 

also include all waters that connect 

segments of a water identified in 

paragraphs (1)(i) through (v) or are 

located at the head of a water identified 

in paragraphs (1)(i) through (v) of this 

definition and are bordering, 

contiguous, or neighboring such water. 

Waters being used for established 

normal farming, ranching, and 

silviculture activities (33 U.S.C. 1344(f)) 

are not adjacent. 

(ii) Neighboring. The term 

neighboring means: 

(A) All waters located within 100 feet 

of the ordinary high water mark of a 

water identified in paragraphs (1)(i) 

through (v) of this definition. The entire 

water is neighboring if a portion is 

located within 100 feet of the ordinary 

high water mark; 

(B) All waters located within the 100- 

year floodplain of a water identified in 

paragraphs (1)(i) through (v) of this 

definition and not more than 1,500 feet 

from the ordinary high water mark of 

such water. The entire water is 

neighboring if a portion is located 

within 1,500 feet of the ordinary high 

water mark and within the 100-year 

floodplain; 

(C) All waters located within 1,500 

feet of the high tide line of a water 

identified in paragraphs (1)(i) or (1)(iii) 

of this definition, and all waters within 

1,500 feet of the ordinary high water 

mark of the Great Lakes. The entire 

water is neighboring if a portion is 

located within 1,500 feet of the high tide 

line or within 1,500 feet of the ordinary 

high water mark of the Great Lakes. 

(iii) Tributary and tributaries. The 

terms tributary and tributaries each 

mean a water that contributes flow, 

either directly or through another water 

(including an impoundment identified 

in paragraph (1)(iv) of this definition), to 

a water identified in paragraphs (1)(i) 

through (iii) of this definition that is 

characterized by the presence of the 

physical indicators of a bed and banks 

and an ordinary high water mark. These 

physical indicators demonstrate there is 

volume, frequency, and duration of flow 

sufficient to create a bed and banks and 

an ordinary high water mark, and thus 

to qualify as a tributary. A tributary can 

be a natural, man-altered, or man-made 

water and includes waters such as 

rivers, streams, canals, and ditches not 

excluded under paragraph (2) of this 

definition. A water that otherwise 

qualifies as a tributary under this 

definition does not lose its status as a 

tributary if, for any length, there are one 

or more constructed breaks (such as 

bridges, culverts, pipes, or dams), or one 

or more natural breaks (such as 

wetlands along the run of a stream, 

debris piles, boulder fields, or a stream 

that flows underground) so long as a bed 

and banks and an ordinary high water 

mark can be identified upstream of the 

break. A water that otherwise qualifies 

as a tributary under this definition does 

not lose its status as a tributary if it 

contributes flow through a water of the 

United States that does not meet the 

definition of tributary or through a nonjurisdictional water to a water identified 

in paragraphs (1)(i) through (iii) of this 

definition. 

(iv) Wetlands. The term wetlands 

means those areas that are inundated or 

saturated by surface or groundwater at 

a frequency and duration sufficient to 

support, and that under normal 

circumstances do support, a prevalence 

of vegetation typically adapted for life 

in saturated soil conditions. Wetlands 

generally include swamps, marshes, 

bogs, and similar areas. 

(v) Significant nexus. The term 

significant nexus means that a water, 

including wetlands, either alone or in 

combination with other similarly 

situated waters in the region, 

significantly affects the chemical, 

physical, or biological integrity of a 

water identified in paragraphs (1)(i) 

through (iii) of this definition. The term 

‘‘in the region’’ means the watershed 

that drains to the nearest water 

identified in paragraphs (1)(i) through 

(iii) of this definition. For an effect to be 

significant, it must be more than 

speculative or insubstantial. Waters are 

similarly situated when they function 

alike and are sufficiently close to 

function together in affecting 

downstream waters. For purposes of 

determining whether or not a water has 

a significant nexus, the water’s effect on 

downstream (1)(i) through (iii) waters 

shall be assessed by evaluating the 

aquatic functions identified in 

paragraphs (3)(v)(A) through (I) of this 

definition. A water has a significant 

nexus when any single function or 

combination of functions performed by 

the water, alone or together with 

similarly situated waters in the region, 

contributes significantly to the 

chemical, physical, or biological 

integrity of the nearest water identified 

in paragraphs (1)(i) through (iii) of this 

definition. Functions relevant to the 

significant nexus evaluation are the 

following: 

(A) Sediment trapping, 

(B) Nutrient recycling, 

(C) Pollutant trapping, transformation, 

filtering, and transport, 

(D) Retention and attenuation of flood 

waters, 

(E) Runoff storage, 

(F) Contribution of flow, 

(G) Export of organic matter, 

(H) Export of food resources, and 

(I) Provision of life cycle dependent 

aquatic habitat (such as foraging, 

feeding, nesting, breeding, spawning, or 

use as a nursery area) for species located 

in a water identified in paragraphs (1)(i) 

through (iii) of this section. 

(vi) Ordinary high water mark. The 

term ordinary high water mark means 

that line on the shore established by the 

fluctuations of water and indicated by 

physical characteristics such as a clear, 

natural line impressed on the bank, 

shelving, changes in the character of 

soil, destruction of terrestrial vegetation, 

the presence of litter and debris, or 

other appropriate means that consider 

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the characteristics of the surrounding 

areas. 

(vii) High tide line. The term high tide 

line means the line of intersection of the 

land with the water’s surface at the 

maximum height reached by a rising 

tide. The high tide line may be 

determined, in the absence of actual 

data, by a line of oil or scum along shore 

objects, a more or less continuous 

deposit of fine shell or debris on the 

foreshore or berm, other physical 

markings or characteristics, vegetation 

lines, tidal gages, or other suitable 

means that delineate the general height 

reached by a rising tide. The line 

encompasses spring high tides and other 

high tides that occur with periodic 

frequency but does not include storm 

surges in which there is a departure 

from the normal or predicted reach of 

the tide due to the piling up of water 

against a coast by strong winds such as 

those accompanying a hurricane or 

other intense storm. 

* * * * * 

PART 117—DETERMINATION OF 

REPORTABLE QUANTITIES FOR 

HAZARDOUS SUBSTANCES 

■ 9. The authority citation for part 117 

is revised to read as follows: 

Authority: 33 U.S.C. 1251 et seq. and 

Executive Order 11735, superseded by 

Executive Order 12777, 56 FR 54757. 

■ 10. Section 117.1 is amended by 

revising paragraph (i) to read as follows: 

§ 117.1 Definitions. 

* * * * * 

(i) Navigable waters is defined in 

section 502(7) of the Act to mean 

‘‘waters of the United States, including 

the territorial seas.’’ 

(1) For purposes of the Clean Water 

Act, 33 U.S.C. 1251 et seq. and its 

implementing regulations, subject to the 

exclusions in paragraph (i)(2) of this 

section, the term ‘‘waters of the United 

States’’ means: 

(i) All waters which are currently 

used, were used in the past, or may be 

susceptible to use in interstate or foreign 

commerce, including all waters which 

are subject to the ebb and flow of the 

tide; 

(ii) All interstate waters, including 

interstate wetlands; 

(iii) The territorial seas; 

(iv) All impoundments of waters 

otherwise identified as waters of the 

United States under this section; 

(v) All tributaries, as defined in 

paragraph (i)(3)(iii) of this section, of 

waters identified in paragraphs (i)(1)(i) 

through (iii) of this section; 

(vi) All waters adjacent to a water 

identified in paragraphs (i)(1)(i) through 

(v) of this section, including wetlands, 

ponds, lakes, oxbows, impoundments, 

and similar waters; 

(vii) All waters in paragraphs 

(i)(1)(vii)(A) through (E) of this section 

where they are determined, on a casespecific basis, to have a significant 

nexus to a water identified in 

paragraphs (i)(1)(i) through (iii) of this 

section. The waters identified in each of 

paragraphs (i)(1)(vii)(A) through (E) of 

this section are similarly situated and 

shall be combined, for purposes of a 

significant nexus analysis, in the 

watershed that drains to the nearest 

water identified in paragraphs (i)(1)(i) 

through (iii) of this section. Waters 

identified in this paragraph shall not be 

combined with waters identified in 

paragraph (i)(1)(vi) of this section when 

performing a significant nexus analysis. 

If waters identified in this paragraph are 

also an adjacent water under paragraph 

(i)(1)(vi), they are an adjacent water and 

no case-specific significant nexus 

analysis is required. 

(A) Prairie potholes. Prairie potholes 

are a complex of glacially formed 

wetlands, usually occurring in 

depressions that lack permanent natural 

outlets, located in the upper Midwest. 

(B) Carolina bays and Delmarva bays. 

Carolina bays and Delmarva bays are 

ponded, depressional wetlands that 

occur along the Atlantic coastal plain. 

(C) Pocosins. Pocosins are evergreen 

shrub and tree dominated wetlands 

found predominantly along the Central 

Atlantic coastal plain. 

(D) Western vernal pools. Western 

vernal pools are seasonal wetlands 

located in parts of California and 

associated with topographic depression, 

soils with poor drainage, mild, wet 

winters and hot, dry summers. 

(E) Texas coastal prairie wetlands. 

Texas coastal prairie wetlands are 

freshwater wetlands that occur as a 

mosaic of depressions, ridges, 

intermound flats, and mima mound 

wetlands located along the Texas Gulf 

Coast. 

(viii) All waters located within the 

100-year floodplain of a water identified 

in (i)(1)(i) through (iii) of this section 

and all waters located within 4,000 feet 

of the high tide line or ordinary high 

water mark of a water identified in 

paragraphs (i)(1)(i) through (v) of this 

section where they are determined on a 

case-specific basis to have a significant 

nexus to a water identified in 

paragraphs (i)(1)(i) through (iii) of this 

section. For waters determined to have 

a significant nexus, the entire water is 

a water of the United States if a portion 

is located within the 100-year 

floodplain of a water identified in 

paragraphs (i)(1)(i) through (iii) of this 

section or within 4,000 feet of the high 

tide line or ordinary high water mark. 

Waters identified in this paragraph shall 

not be combined with waters identified 

in paragraph (i)(1)(vi) of this section 

when performing a significant nexus 

analysis. If waters identified in this 

paragraph are also an adjacent water 

under paragraph (i)(1)(vi), they are an 

adjacent water and no case-specific 

significant nexus analysis is required. 

(2) The following are not ‘‘waters of 

the United States’’ even where they 

otherwise meet the terms of paragraphs 

(i)(1)(iv) through (viii) of this section. 

(i) Waste treatment systems, (other 

than cooling ponds meeting the criteria 

of this paragraph) are not waters of the 

United States. 

(ii) Prior converted cropland. 

Notwithstanding the determination of 

an area’s status as prior converted 

cropland by any other Federal agency, 

for the purposes of the Clean Water Act, 

the final authority regarding Clean 

Water Act jurisdiction remains with 

EPA. 

(iii) The following ditches: 

(A) Ditches with ephemeral flow that 

are not a relocated tributary or 

excavated in a tributary. 

(B) Ditches with intermittent flow that 

are not a relocated tributary, excavated 

in a tributary, or drain wetlands. 

(C) Ditches that do not flow, either 

directly or through another water, into 

a water identified in paragraphs (i)(1)(i) 

through (iii) of this section. 

(iv) The following features: 

(A) Artificially irrigated areas that 

would revert to dry land should 

application of water to that area cease; 

(B) Artificial, constructed lakes and 

ponds created in dry land such as farm 

and stock watering ponds, irrigation 

ponds, settling basins, fields flooded for 

rice growing, log cleaning ponds, or 

cooling ponds; 

(C) Artificial reflecting pools or 

swimming pools created in dry land; 

(D) Small ornamental waters created 

in dry land; 

(E) Water-filled depressions created in 

dry land incidental to mining or 

construction activity, including pits 

excavated for obtaining fill, sand, or 

gravel that fill with water; 

(F) Erosional features, including 

gullies, rills, and other ephemeral 

features that do not meet the definition 

of tributary, non-wetland swales, and 

lawfully constructed grassed waterways; 

and 

(G) Puddles. 

(v) Groundwater, including 

groundwater drained through 

subsurface drainage systems. 

(vi) Stormwater control features 

constructed to convey, treat, or store 

stormwater that are created in dry land. 

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Federal Register / Vol. 80, No. 124 / Monday, June 29, 2015 / Rules 37113 

(vii) Wastewater recycling structures 

constructed in dry land; detention and 

retention basins built for wastewater 

recycling; groundwater recharge basins; 

percolation ponds built for wastewater 

recycling; and water distributary 

structures built for wastewater 

recycling. 

(3) In this paragraph, the following 

terms apply: 

(i) Adjacent. The term adjacent means 

bordering, contiguous, or neighboring a 

water identified in paragraphs (i)(1)(i) 

through (v) of this section, including 

waters separated by constructed dikes or 

barriers, natural river berms, beach 

dunes, and the like. For purposes of 

adjacency, an open water such as a 

pond or lake includes any wetlands 

within or abutting its ordinary high 

water mark. Adjacency is not limited to 

waters located laterally to a water 

identified in paragraphs (i)(1)(i) through 

(v) of this section. Adjacent waters also 

include all waters that connect segments 

of a water identified in paragraphs 

(i)(1)(i) through (v) or are located at the 

head of a water identified in paragraphs 

(i)(1)(i) through (v) of this section and 

are bordering, contiguous, or 

neighboring such water. Waters being 

used for established normal farming, 

ranching, and silviculture activities (33 

U.S.C. 1344(f)) are not adjacent. 

(ii) Neighboring. The term 

neighboring means: 

(A) All waters located within 100 feet 

of the ordinary high water mark of a 

water identified in paragraphs (i)(1)(i) 

through (v) of this section. The entire 

water is neighboring if a portion is 

located within 100 feet of the ordinary 

high water mark; 

(B) All waters located within the 100- 

year floodplain of a water identified in 

paragraphs (i)(1)(i) through (v) of this 

section and not more than 1,500 feet 

from the ordinary high water mark of 

such water. The entire water is 

neighboring if a portion is located 

within 1,500 feet of the ordinary high 

water mark and within the 100-year 

floodplain; 

(C) All waters located within 1,500 

feet of the high tide line of a water 

identified in paragraphs (i)(1)(i) or (iii) 

of this section, and all waters within 

1,500 feet of the ordinary high water 

mark of the Great Lakes. The entire 

water is neighboring if a portion is 

located within 1,500 feet of the high tide 

line or within 1,500 feet of the ordinary 

high water mark of the Great Lakes. 

(iii) Tributary and tributaries. The 

terms tributary and tributaries each 

mean a water that contributes flow, 

either directly or through another water 

(including an impoundment identified 

in paragraph (i)(1)(iv) of this section), to 

a water identified in paragraphs (i)(1)(i) 

through (iii) of this section that is 

characterized by the presence of the 

physical indicators of a bed and banks 

and an ordinary high water mark. These 

physical indicators demonstrate there is 

volume, frequency, and duration of flow 

sufficient to create a bed and banks and 

an ordinary high water mark, and thus 

to qualify as a tributary. A tributary can 

be a natural, man-altered, or man-made 

water and includes waters such as 

rivers, streams, canals, and ditches not 

excluded under paragraph (i)(2) of this 

section. A water that otherwise qualifies 

as a tributary under this definition does 

not lose its status as a tributary if, for 

any length, there are one or more 

constructed breaks (such as bridges, 

culverts, pipes, or dams), or one or more 

natural breaks (such as wetlands along 

the run of a stream, debris piles, boulder 

fields, or a stream that flows 

underground) so long as a bed and 

banks and an ordinary high water mark 

can be identified upstream of the break. 

A water that otherwise qualifies as a 

tributary under this definition does not 

lose its status as a tributary if it 

contributes flow through a water of the 

United States that does not meet the 

definition of tributary or through a nonjurisdictional water to a water identified 

in paragraphs (i)(1)(i) through (iii) of 

this section. 

(iv) Wetlands. The term wetlands 

means those areas that are inundated or 

saturated by surface or groundwater at 

a frequency and duration sufficient to 

support, and that under normal 

circumstances do support, a prevalence 

of vegetation typically adapted for life 

in saturated soil conditions. Wetlands 

generally include swamps, marshes, 

bogs, and similar areas. 

(v) Significant nexus. The term 

significant nexus means that a water, 

including wetlands, either alone or in 

combination with other similarly 

situated waters in the region, 

significantly affects the chemical, 

physical, or biological integrity of a 

water identified in paragraphs (i)(1)(i) 

through (iii) of this section. The term 

‘‘in the region’’ means the watershed 

that drains to the nearest water 

identified in paragraphs (i)(1)(i) through 

(iii) of this section. For an effect to be 

significant, it must be more than 

speculative or insubstantial. Waters are 

similarly situated when they function 

alike and are sufficiently close to 

function together in affecting 

downstream waters. For purposes of 

determining whether or not a water has 

a significant nexus, the water’s effect on 

downstream (i)(1)(i) through (iii) waters 

shall be assessed by evaluating the 

aquatic functions identified in 

paragraphs (i)(3)(v)(A) through (I) of this 

section. A water has a significant nexus 

when any single function or 

combination of functions performed by 

the water, alone or together with 

similarly situated waters in the region, 

contributes significantly to the 

chemical, physical, or biological 

integrity of the nearest water identified 

in paragraphs (i)(1)(i) through (iii) of 

this section. Functions relevant to the 

significant nexus evaluation are the 

following: 

(A) Sediment trapping, 

(B) Nutrient recycling, 

(C) Pollutant trapping, transformation, 

filtering, and transport, 

(D) Retention and attenuation of flood 

waters, 

(E) Runoff storage, 

(F) Contribution of flow, 

(G) Export of organic matter, 

(H) Export of food resources, and 

(I) Provision of life cycle dependent 

aquatic habitat (such as foraging, 

feeding, nesting, breeding, spawning, or 

use as a nursery area) for species located 

in a water identified in paragraphs 

(i)(1)(i) through (iii) of this section. 

(vi) Ordinary high water mark. The 

term ordinary high water mark means 

that line on the shore established by the 

fluctuations of water and indicated by 

physical characteristics such as a clear, 

natural line impressed on the bank, 

shelving, changes in the character of 

soil, destruction of terrestrial vegetation, 

the presence of litter and debris, or 

other appropriate means that consider 

the characteristics of the surrounding 

areas. 

(vii) High tide line. The term high tide 

line means the line of intersection of the 

land with the water’s surface at the 

maximum height reached by a rising 

tide. The high tide line may be 

determined, in the absence of actual 

data, by a line of oil or scum along shore 

objects, a more or less continuous 

deposit of fine shell or debris on the 

foreshore or berm, other physical 

markings or characteristics, vegetation 

lines, tidal gages, or other suitable 

means that delineate the general height 

reached by a rising tide. The line 

encompasses spring high tides and other 

high tides that occur with periodic 

frequency but does not include storm 

surges in which there is a departure 

from the normal or predicted reach of 

the tide due to the piling up of water 

against a coast by strong winds such as 

those accompanying a hurricane or 

other intense storm. 

* * * * * 

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37114 Federal Register / Vol. 80, No. 124 / Monday, June 29, 2015 / Rules 

PART 122—EPA ADMINISTERED 

PERMIT PROGRAMS: THE NATIONAL 

POLLUTANT DISCHARGE 

ELIMINATION SYSTEM 

■ 11. The authority citation for part 122 

continues to read as follows: 

Authority: The Clean Water Act, 33 U.S.C. 

1251 et seq. 

■ 12. Section 122.2 is amended by: 

■ a. Lifting the suspension of the last 

sentence of the definition of ‘‘Waters of 

the United States’’ published July 21, 

1980 (45 FR 48620); 

■ b. Removing the definition of 

‘‘wetlands’’ and revising the definition 

of ‘‘Waters of the United States’’ and 

■ c. Suspending the last sentence of the 

definition of ‘‘Waters of the United 

States’’ published July 21, 1980 (45 FR 

48620). 

The revision reads as follows: 

§ 122.2 Definitions. 

* * * * * 

Waters of the United States or waters 

of the U.S. means: 

(1) For purposes of the Clean Water 

Act, 33 U.S.C. 1251 et seq. and its 

implementing regulations, subject to the 

exclusions in paragraph (2) of this 

definition, the term ‘‘waters of the 

United States’’ means: 

(i) All waters which are currently 

used, were used in the past, or may be 

susceptible to use in interstate or foreign 

commerce, including all waters which 

are subject to the ebb and flow of the 

tide; 

(ii) All interstate waters, including 

interstate wetlands; 

(iii) The territorial seas; 

(iv) All impoundments of waters 

otherwise identified as waters of the 

United States under this section; 

(v) All tributaries, as defined in 

paragraph (3)(iii) of this section, of 

waters identified in paragraphs (1)(i) 

through (iii) of this section; 

(vi) All waters adjacent to a water 

identified in paragraphs (1)(i) through 

(v) of this definition, including 

wetlands, ponds, lakes, oxbows, 

impoundments, and similar waters; 

(vii) All waters in paragraphs 

(1)(vii)(A) through (E) of this definition 

where they are determined, on a casespecific basis, to have a significant 

nexus to a water identified in 

paragraphs (1)(i) through (iii) of this 

definition. The waters identified in each 

of paragraphs (1)(vii)(A) through (E) of 

this definition are similarly situated and 

shall be combined, for purposes of a 

significant nexus analysis, in the 

watershed that drains to the nearest 

water identified in paragraphs (1)(i) 

through (iii) of this definition. Waters 

identified in this paragraph shall not be 

combined with waters identified in 

paragraph (1)(vi) of this definition when 

performing a significant nexus analysis. 

If waters identified in this paragraph are 

also an adjacent water under paragraph 

(1)(vi), they are an adjacent water and 

no case-specific significant nexus 

analysis is required. 

(A) Prairie potholes. Prairie potholes 

are a complex of glacially formed 

wetlands, usually occurring in 

depressions that lack permanent natural 

outlets, located in the upper Midwest. 

(B) Carolina bays and Delmarva bays. 

Carolina bays and Delmarva bays are 

ponded, depressional wetlands that 

occur along the Atlantic coastal plain. 

(C) Pocosins. Pocosins are evergreen 

shrub and tree dominated wetlands 

found predominantly along the Central 

Atlantic coastal plain. 

(D) Western vernal pools. Western 

vernal pools are seasonal wetlands 

located in parts of California and 

associated with topographic depression, 

soils with poor drainage, mild, wet 

winters and hot, dry summers. 

(E) Texas coastal prairie wetlands. 

Texas coastal prairie wetlands are 

freshwater wetlands that occur as a 

mosaic of depressions, ridges, 

intermound flats, and mima mound 

wetlands located along the Texas Gulf 

Coast. 

(viii) All waters located within the 

100-year floodplain of a water identified 

in paragraphs (1)(i) through (iii) of this 

definition and all waters located within 

4,000 feet of the high tide line or 

ordinary high water mark of a water 

identified in paragraphs (1)(i) through 

(v) of this definition where they are 

determined on a case-specific basis to 

have a significant nexus to a water 

identified in paragraphs (1)(i) through 

(v) of this definition. For waters 

determined to have a significant nexus, 

the entire water is a water of the United 

States if a portion is located within the 

100-year floodplain of a water identified 

in (1)(i) through (iii) of this definition or 

within 4,000 feet of the high tide line or 

ordinary high water mark. Waters 

identified in this paragraph shall not be 

combined with waters identified in 

paragraph (1)(vi) of this definition when 

performing a significant nexus analysis. 

If waters identified in this paragraph are 

also an adjacent water under paragraph 

(1)(vi), they are an adjacent water and 

no case-specific significant nexus 

analysis is required. 

(2) The following are not ‘‘waters of 

the United States’’ even where they 

otherwise meet the terms of paragraphs 

(1)(iv) through (viii) of this definition. 

(i) Waste treatment systems, including 

treatment ponds or lagoons designed to 

meet the requirements of the Clean 

Water Act. This exclusion applies only 

to manmade bodies of water which 

neither were originally created in waters 

of the United States (such as disposal 

area in wetlands) nor resulted from the 

impoundment of waters of the United 

States. [See Note 1 of this section.] 

(ii) Prior converted cropland. 

Notwithstanding the determination of 

an area’s status as prior converted 

cropland by any other Federal agency, 

for the purposes of the Clean Water Act, 

the final authority regarding Clean 

Water Act jurisdiction remains with 

EPA. 

(iii) The following ditches: 

(A) Ditches with ephemeral flow that 

are not a relocated tributary or 

excavated in a tributary. 

(B) Ditches with intermittent flow that 

are not a relocated tributary, excavated 

in a tributary, or drain wetlands. 

(C) Ditches that do not flow, either 

directly or through another water, into 

a water identified in paragraphs (1)(i) 

through (iii) of this definition. 

(iv) The following features: 

(A) Artificially irrigated areas that 

would revert to dry land should 

application of water to that area cease; 

(B) Artificial, constructed lakes and 

ponds created in dry land such as farm 

and stock watering ponds, irrigation 

ponds, settling basins, fields flooded for 

rice growing, log cleaning ponds, or 

cooling ponds; 

(C) Artificial reflecting pools or 

swimming pools created in dry land; 

(D) Small ornamental waters created 

in dry land; 

(E) Water-filled depressions created in 

dry land incidental to mining or 

construction activity, including pits 

excavated for obtaining fill, sand, or 

gravel that fill with water; 

(F) Erosional features, including 

gullies, rills, and other ephemeral 

features that do not meet the definition 

of tributary, non-wetland swales, and 

lawfully constructed grassed waterways; 

and 

(G) Puddles. 

(v) Groundwater, including 

groundwater drained through 

subsurface drainage systems. 

(vi) Stormwater control features 

constructed to convey, treat, or store 

stormwater that are created in dry land. 

(vii) Wastewater recycling structures 

constructed in dry land; detention and 

retention basins built for wastewater 

recycling; groundwater recharge basins; 

percolation ponds built for wastewater 

recycling; and water distributary 

structures built for wastewater 

recycling. 

(3) In this definition, the following 

terms apply: 

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Federal Register / Vol. 80, No. 124 / Monday, June 29, 2015 / Rules 37115 

(i) Adjacent. The term adjacent means 

bordering, contiguous, or neighboring a 

water identified in paragraphs (1)(i) 

through (v) of this definition, including 

waters separated by constructed dikes or 

barriers, natural river berms, beach 

dunes, and the like. For purposes of 

adjacency, an open water such as a 

pond or lake includes any wetlands 

within or abutting its ordinary high 

water mark. Adjacency is not limited to 

waters located laterally to a water 

identified in paragraphs (1)(i) through 

(v) of this definition. Adjacent waters 

also include all waters that connect 

segments of a water identified in 

paragraphs (1)(i) through (v) or are 

located at the head of a water identified 

in paragraphs (1)(i) through (v) of this 

definition and are bordering, 

contiguous, or neighboring such water. 

Waters being used for established 

normal farming, ranching, and 

silviculture activities (33 U.S.C. 1344(f)) 

are not adjacent. 

(ii) Neighboring. The term 

neighboring means: 

(A) All waters located within 100 feet 

of the ordinary high water mark of a 

water identified in paragraphs (1)(i) 

through (v) of this definition. The entire 

water is neighboring if a portion is 

located within 100 feet of the ordinary 

high water mark; 

(B) All waters located within the 100- 

year floodplain of a water identified in 

paragraphs (1)(i) through (v) of this 

definition and not more than 1,500 feet 

from the ordinary high water mark of 

such water. The entire water is 

neighboring if a portion is located 

within 1,500 feet of the ordinary high 

water mark and within the 100-year 

floodplain; 

(C) All waters located within 1,500 

feet of the high tide line of a water 

identified in paragraphs (1)(i) or (iii) of 

this definition, and all waters within 

1,500 feet of the ordinary high water 

mark of the Great Lakes. The entire 

water is neighboring if a portion is 

located within 1,500 feet of the high tide 

line or within 1,500 feet of the ordinary 

high water mark of the Great Lakes. 

(iii) Tributary and tributaries. The 

terms tributary and tributaries each 

mean a water that contributes flow, 

either directly or through another water 

(including an impoundment identified 

in paragraph (1)(iv) of this definition), to 

a water identified in paragraphs (1)(i) 

through (iii) of this definition that is 

characterized by the presence of the 

physical indicators of a bed and banks 

and an ordinary high water mark. These 

physical indicators demonstrate there is 

volume, frequency, and duration of flow 

sufficient to create a bed and banks and 

an ordinary high water mark, and thus 

to qualify as a tributary. A tributary can 

be a natural, man-altered, or man-made 

water and includes waters such as 

rivers, streams, canals, and ditches not 

excluded under paragraph (2) of this 

definition. A water that otherwise 

qualifies as a tributary under this 

definition does not lose its status as a 

tributary if, for any length, there are one 

or more constructed breaks (such as 

bridges, culverts, pipes, or dams), or one 

or more natural breaks (such as 

wetlands along the run of a stream, 

debris piles, boulder fields, or a stream 

that flows underground) so long as a bed 

and banks and an ordinary high water 

mark can be identified upstream of the 

break. A water that otherwise qualifies 

as a tributary under this definition does 

not lose its status as a tributary if it 

contributes flow through a water of the 

United States that does not meet the 

definition of tributary or through a nonjurisdictional water to a water identified 

in paragraphs (1)(i) through (iii) of this 

definition. 

(iv) Wetlands. The term wetlands 

means those areas that are inundated or 

saturated by surface or groundwater at 

a frequency and duration sufficient to 

support, and that under normal 

circumstances do support, a prevalence 

of vegetation typically adapted for life 

in saturated soil conditions. Wetlands 

generally include swamps, marshes, 

bogs, and similar areas. 

(v) Significant nexus. The term 

significant nexus means that a water, 

including wetlands, either alone or in 

combination with other similarly 

situated waters in the region, 

significantly affects the chemical, 

physical, or biological integrity of a 

water identified in paragraphs (1)(i) 

through (iii) of this definition. The term 

‘‘in the region’’ means the watershed 

that drains to the nearest water 

identified in paragraphs (1)(i) through 

(iii) of this definition. For an effect to be 

significant, it must be more than 

speculative or insubstantial. Waters are 

similarly situated when they function 

alike and are sufficiently close to 

function together in affecting 

downstream waters. For purposes of 

determining whether or not a water has 

a significant nexus, the water’s effect on 

downstream (1)(i) through (iii) waters 

shall be assessed by evaluating the 

aquatic functions identified in 

paragraphs (3)(v)(A) through (I) of this 

definition. A water has a significant 

nexus when any single function or 

combination of functions performed by 

the water, alone or together with 

similarly situated waters in the region, 

contributes significantly to the 

chemical, physical, or biological 

integrity of the nearest water identified 

in paragraphs (1)(i) through (iii) of this 

definition. Functions relevant to the 

significant nexus evaluation are the 

following: 

(A) Sediment trapping, 

(B) Nutrient recycling, 

(C) Pollutant trapping, transformation, 

filtering, and transport, 

(D) Retention and attenuation of flood 

waters, 

(E) Runoff storage, 

(F) Contribution of flow, 

(G) Export of organic matter, 

(H) Export of food resources, and 

(I) Provision of life cycle dependent 

aquatic habitat (such as foraging, 

feeding, nesting, breeding, spawning, or 

use as a nursery area) for species located 

in a water identified in paragraphs (1)(i) 

through (iii) of this definition. 

(vi) Ordinary high water mark. The 

term ordinary high water mark means 

that line on the shore established by the 

fluctuations of water and indicated by 

physical characteristics such as a clear, 

natural line impressed on the bank, 

shelving, changes in the character of 

soil, destruction of terrestrial vegetation, 

the presence of litter and debris, or 

other appropriate means that consider 

the characteristics of the surrounding 

areas. 

(vii) High tide line. The term high tide 

line means the line of intersection of the 

land with the water’s surface at the 

maximum height reached by a rising 

tide. The high tide line may be 

determined, in the absence of actual 

data, by a line of oil or scum along shore 

objects, a more or less continuous 

deposit of fine shell or debris on the 

foreshore or berm, other physical 

markings or characteristics, vegetation 

lines, tidal gages, or other suitable 

means that delineate the general height 

reached by a rising tide. The line 

encompasses spring high tides and other 

high tides that occur with periodic 

frequency but does not include storm 

surges in which there is a departure 

from the normal or predicted reach of 

the tide due to the piling up of water 

against a coast by strong winds such as 

those accompanying a hurricane or 

other intense storm. 

* * * * * 

PART 230—SECTION 404(b)(1) 

GUIDELINES FOR SPECIFICATION OF 

DISPOSAL SITES FOR DREDGED OR 

FILL MATERIAL 

■ 13. The authority citation for part 230 

is revised to read as follows: 

Authority: 33 U.S.C. 1251 et seq. 

■ 14. Section 230.3 is amended by: 

■ a. Removing paragraph (b) and 

reserved paragraphs (f), (g), (j) and (l). 

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■ b. Redesignating paragraphs (c) 

through (e) as paragraphs (b) through 

(d). 

■ c. Redesignating paragraphs (h) and (i) 

as paragraphs (e) and (f). 

■ d. Redesignating paragraph (k) as 

paragraph (g). 

■ e. Redesignating paragraphs (m) 

through (q) as paragraphs (h) through (l). 

■ f. Redesignating paragraph (q-1) as 

paragraph (m). 

■ g. Redesignating paragraph (r) as 

paragraph (n). 

■ h. Redesignating paragraph (s) as 

paragraph (o). 

■ i. Revising newly redesignated 

paragraph (o). 

■ j. Removing paragraph (t). 

The revision reads as follows: 

§ 230.3 Definitions. 

* * * * * 

(o) The term waters of the United 

States means: 

(1) For purposes of the Clean Water 

Act, 33 U.S.C. 1251 et seq. and its 

implementing regulations, subject to the 

exclusions in paragraph (o)(2) of this 

section, the term ‘‘waters of the United 

States’’ means: 

(i) All waters which are currently 

used, were used in the past, or may be 

susceptible to use in interstate or foreign 

commerce, including all waters which 

are subject to the ebb and flow of the 

tide; 

(ii) All interstate waters, including 

interstate wetlands; 

(iii) The territorial seas; 

(iv) All impoundments of waters 

otherwise identified as waters of the 

United States under this section; 

(v) All tributaries, as defined in 

paragraph (o)(3)(iii) of this section, of 

waters identified in paragraphs (o)(1)(i) 

through (iii) of this section; 

(vi) All waters adjacent to a water 

identified in paragraphs (o)(1)(i) through 

(v) of this section, including wetlands, 

ponds, lakes, oxbows, impoundments, 

and similar waters; 

(vii) All waters in paragraphs 

(o)(1)(vii)(A) through (E) of this section 

where they are determined, on a casespecific basis, to have a significant 

nexus to a water identified in 

paragraphs (o)(1)(i) through (iii) of this 

section. The waters identified in each of 

paragraphs (o)(1)(vii)(A) through (E) of 

this section are similarly situated and 

shall be combined, for purposes of a 

significant nexus analysis, in the 

watershed that drains to the nearest 

water identified in paragraphs (o)(1)(i) 

through (iii) of this section. Waters 

identified in this paragraph shall not be 

combined with waters identified in 

paragraph (o)(1)(vi) of this section when 

performing a significant nexus analysis. 

If waters identified in this paragraph are 

also an adjacent water under paragraph 

(o)(1)(vi), they are an adjacent water and 

no case-specific significant nexus 

analysis is required. 

(A) Prairie potholes. Prairie potholes 

are a complex of glacially formed 

wetlands, usually occurring in 

depressions that lack permanent natural 

outlets, located in the upper Midwest. 

(B) Carolina bays and Delmarva bays. 

Carolina bays and Delmarva bays are 

ponded, depressional wetlands that 

occur along the Atlantic coastal plain. 

(C) Pocosins. Pocosins are evergreen 

shrub and tree dominated wetlands 

found predominantly along the Central 

Atlantic coastal plain. 

(D) Western vernal pools. Western 

vernal pools are seasonal wetlands 

located in parts of California and 

associated with topographic depression, 

soils with poor drainage, mild, wet 

winters and hot, dry summers. 

(E) Texas coastal prairie wetlands. 

Texas coastal prairie wetlands are 

freshwater wetlands that occur as a 

mosaic of depressions, ridges, 

intermound flats, and mima mound 

wetlands located along the Texas Gulf 

Coast. 

(viii) All waters located within the 

100-year floodplain of a water identified 

in paragraphs (o)(1)(i) through (iii) of 

this section and all waters located 

within 4,000 feet of the high tide line or 

ordinary high water mark of a water 

identified in paragraphs (o)(1)(i) through 

(v) of this section where they are 

determined on a case-specific basis to 

have a significant nexus to a water 

identified in paragraphs (o)(1)(i) through 

(iii) of this section. For waters 

determined to have a significant nexus, 

the entire water is a water of the United 

States if a portion is located within the 

100-year floodplain of a water identified 

in paragraphs (o)(1)(i) through (iii) of 

this section or within 4,000 feet of the 

high tide line or ordinary high water 

mark. Waters identified in this 

paragraph shall not be combined with 

waters identified in paragraph (o)(1)(vi) 

of this section when performing a 

significant nexus analysis. If waters 

identified in this paragraph are also an 

adjacent water under paragraph 

(o)(1)(vi), they are an adjacent water and 

no case-specific significant nexus 

analysis is required. 

(2) The following are not ‘‘waters of 

the United States’’ even where they 

otherwise meet the terms of paragraphs 

(o)(1)(iv) through (viii) of this section. 

(i) Waste treatment systems, including 

treatment ponds or lagoons designed to 

meet the requirements of the Clean 

Water Act are not waters of the United 

States. 

(ii) Prior converted cropland. 

Notwithstanding the determination of 

an area’s status as prior converted 

cropland by any other Federal agency, 

for the purposes of the Clean Water Act, 

the final authority regarding Clean 

Water Act jurisdiction remains with 

EPA. 

(iii) The following ditches: 

(A) Ditches with ephemeral flow that 

are not a relocated tributary or 

excavated in a tributary. 

(B) Ditches with intermittent flow that 

are not a relocated tributary, excavated 

in a tributary, or drain wetlands. 

(C) Ditches that do not flow, either 

directly or through another water, into 

a water identified in paragraphs (o)(1)(i) 

through (iii) of this section. 

(iv) The following features: 

(A) Artificially irrigated areas that 

would revert to dry land should 

application of water to that area cease; 

(B) Artificial, constructed lakes and 

ponds created in dry land such as farm 

and stock watering ponds, irrigation 

ponds, settling basins, fields flooded for 

rice growing, log cleaning ponds, or 

cooling ponds; 

(C) Artificial reflecting pools or 

swimming pools created in dry land; 

(D) Small ornamental waters created 

in dry land; 

(E) Water-filled depressions created in 

dry land incidental to mining or 

construction activity, including pits 

excavated for obtaining fill, sand, or 

gravel that fill with water; 

(F) Erosional features, including 

gullies, rills, and other ephemeral 

features that do not meet the definition 

of tributary, non-wetland swales, and 

lawfully constructed grassed waterways; 

and 

(G) Puddles. 

(v) Groundwater, including 

groundwater drained through 

subsurface drainage systems. 

(vi) Stormwater control features 

constructed to convey, treat, or store 

stormwater that are created in dry land. 

(vii) Wastewater recycling structures 

constructed in dry land; detention and 

retention basins built for wastewater 

recycling; groundwater recharge basins; 

percolation ponds built for wastewater 

recycling; and water distributary 

structures built for wastewater 

recycling. 

(3) In this paragraph (o), the following 

definitions apply: 

(i) Adjacent. The term adjacent means 

bordering, contiguous, or neighboring a 

water identified in paragraphs (o)(1)(i) 

through (v) of this section, including 

waters separated by constructed dikes or 

barriers, natural river berms, beach 

dunes, and the like. For purposes of 

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adjacency, an open water such as a 

pond or lake includes any wetlands 

within or abutting its ordinary high 

water mark. Adjacency is not limited to 

waters located laterally to a water 

identified in paragraphs (o)(1)(i) through 

(v) of this section. Adjacent waters also 

include all waters that connect segments 

of a water identified in paragraphs 

(o)(1)(i) through (v) or are located at the 

head of a water identified in paragraphs 

(o)(1)(i) through (v) of this section and 

are bordering, contiguous, or 

neighboring such water. Waters being 

used for established normal farming, 

ranching, and silviculture activities (33 

U.S.C. 1344(f)) are not adjacent. 

(ii) Neighboring. The term 

neighboring means: 

(A) All waters located within 100 feet 

of the ordinary high water mark of a 

water identified in paragraphs (o)(1)(i) 

through (v) of this section. The entire 

water is neighboring if a portion is 

located within 100 feet of the ordinary 

high water mark; 

(B) All waters located within the 100- 

year floodplain of a water identified in 

paragraphs (o)(1)(i) through (v) of this 

section and not more than 1,500 feet 

from the ordinary high water mark of 

such water. The entire water is 

neighboring if a portion is located 

within 1,500 feet of the ordinary high 

water mark and within the 100-year 

floodplain; 

(C) All waters located within 1,500 

feet of the high tide line of a water 

identified in paragraphs (o)(1)(i) or (iii) 

of this section, and all waters within 

1,500 feet of the ordinary high water 

mark of the Great Lakes. The entire 

water is neighboring if a portion is 

located within 1,500 feet of the high tide 

line or within 1,500 feet of the ordinary 

high water mark of the Great Lakes. 

(iii) Tributary and tributaries. The 

terms tributary and tributaries each 

mean a water that contributes flow, 

either directly or through another water 

(including an impoundment identified 

in paragraph (o)(1)(iv) of this section), to 

a water identified in paragraphs (o)(1)(i) 

through (iii) of this section that is 

characterized by the presence of the 

physical indicators of a bed and banks 

and an ordinary high water mark. These 

physical indicators demonstrate there is 

volume, frequency, and duration of flow 

sufficient to create a bed and banks and 

an ordinary high water mark, and thus 

to qualify as a tributary. A tributary can 

be a natural, man-altered, or man-made 

water and includes waters such as 

rivers, streams, canals, and ditches not 

excluded under paragraph (o)(2) of this 

section. A water that otherwise qualifies 

as a tributary under this definition does 

not lose its status as a tributary if, for 

any length, there are one or more 

constructed breaks (such as bridges, 

culverts, pipes, or dams), or one or more 

natural breaks (such as wetlands along 

the run of a stream, debris piles, boulder 

fields, or a stream that flows 

underground) so long as a bed and 

banks and an ordinary high water mark 

can be identified upstream of the break. 

A water that otherwise qualifies as a 

tributary under this definition does not 

lose its status as a tributary if it 

contributes flow through a water of the 

United States that does not meet the 

definition of tributary or through a nonjurisdictional water to a water identified 

in paragraphs (o)(1)(i) through (iii) of 

this section. 

(iv) Wetlands. The term wetlands 

means those areas that are inundated or 

saturated by surface or groundwater at 

a frequency and duration sufficient to 

support, and that under normal 

circumstances do support, a prevalence 

of vegetation typically adapted for life 

in saturated soil conditions. Wetlands 

generally include swamps, marshes, 

bogs, and similar areas. 

(v) Significant nexus. The term 

significant nexus means that a water, 

including wetlands, either alone or in 

combination with other similarly 

situated waters in the region, 

significantly affects the chemical, 

physical, or biological integrity of a 

water identified in paragraphs (o)(1)(i) 

through (iii) of this section. The term 

‘‘in the region’’ means the watershed 

that drains to the nearest water 

identified in paragraphs (o)(1)(i) through 

(iii) of this section. For an effect to be 

significant, it must be more than 

speculative or insubstantial. Waters are 

similarly situated when they function 

alike and are sufficiently close to 

function together in affecting 

downstream waters. For purposes of 

determining whether or not a water has 

a significant nexus, the water’s effect on 

downstream (o)(1)(i) through (iii) waters 

shall be assessed by evaluating the 

aquatic functions identified in 

paragraphs (o)(3)(v)(A) through (I) of 

this section. A water has a significant 

nexus when any single function or 

combination of functions performed by 

the water, alone or together with 

similarly situated waters in the region, 

contributes significantly to the 

chemical, physical, or biological 

integrity of the nearest water identified 

in paragraphs (o)(1)(i) through (iii) of 

this section. Functions relevant to the 

significant nexus evaluation are the 

following: 

(A) Sediment trapping, 

(B) Nutrient recycling, 

(C) Pollutant trapping, transformation, 

filtering, and transport, 

(D) Retention and attenuation of flood 

waters, 

(E) Runoff storage, 

(F) Contribution of flow, 

(G) Export of organic matter, 

(H) Export of food resources, and 

(I) Provision of life cycle dependent 

aquatic habitat (such as foraging, 

feeding, nesting, breeding, spawning, or 

use as a nursery area) for species located 

in a water identified in paragraphs (o)(1) 

through (3) of this section. 

(vi) Ordinary high water mark. The 

term ordinary high water mark means 

that line on the shore established by the 

fluctuations of water and indicated by 

physical characteristics such as a clear, 

natural line impressed on the bank, 

shelving, changes in the character of 

soil, destruction of terrestrial vegetation, 

the presence of litter and debris, or 

other appropriate means that consider 

the characteristics of the surrounding 

areas. 

(vii) High tide line. The term high tide 

line means the line of intersection of the 

land with the water’s surface at the 

maximum height reached by a rising 

tide. The high tide line may be 

determined, in the absence of actual 

data, by a line of oil or scum along shore 

objects, a more or less continuous 

deposit of fine shell or debris on the 

foreshore or berm, other physical 

markings or characteristics, vegetation 

lines, tidal gages, or other suitable 

means that delineate the general height 

reached by a rising tide. The line 

encompasses spring high tides and other 

high tides that occur with periodic 

frequency but does not include storm 

surges in which there is a departure 

from the normal or predicted reach of 

the tide due to the piling up of water 

against a coast by strong winds such as 

those accompanying a hurricane or 

other intense storm. 

* * * * * 

PART 232—404 PROGRAMS 

DEFINITIONS; EXEMPT ACTIVITIES 

NOT REQUIRING 404 PERMITS 

■ 15. The authority citation for part 230 

is revised to read as follows: 

Authority: 33 U.S.C. 1251 et seq. 

■ 16. Section 232.2 is amended by 

removing the definition of ‘‘wetlands’’ 

and revising the definition of ‘‘Waters of 

the United States’’ to read as follows: 

§ 232.2 Definitions. 

* * * * * 

Waters of the United States means: 

(1) For purposes of the Clean Water 

Act, 33 U.S.C. 1251 et seq. and its 

implementing regulations, subject to the 

exclusions in paragraph (2) of this 

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definition, the term ‘‘waters of the 

United States’’ means: 

(i) All waters which are currently 

used, were used in the past, or may be 

susceptible to use in interstate or foreign 

commerce, including all waters which 

are subject to the ebb and flow of the 

tide; 

(ii) All interstate waters, including 

interstate wetlands; 

(iii) The territorial seas; 

(iv) All impoundments of waters 

otherwise identified as waters of the 

United States under this section; 

(v) All tributaries, as defined in 

paragraph (3)(iii) of this definition, of 

waters identified in paragraphs (1)(i) 

through (iii) of this definition; 

(vi) All waters adjacent to a water 

identified in paragraphs (1)(i) through 

(v) of this definition, including 

wetlands, ponds, lakes, oxbows, 

impoundments, and similar waters; 

(vii) All waters in paragraphs 

(1)(vii)(A) through (E) of this definition 

where they are determined, on a casespecific basis, to have a significant 

nexus to a water identified in 

paragraphs (1)(i) through (iii) of this 

definition. The waters identified in each 

of paragraphs (1)(vii)(A) through (E) of 

this definition are similarly situated and 

shall be combined, for purposes of a 

significant nexus analysis, in the 

watershed that drains to the nearest 

water identified in paragraphs (1)(i) 

through (iii) of this definition. Waters 

identified in this paragraph shall not be 

combined with waters identified in 

paragraph (1)(vi) of this definition when 

performing a significant nexus analysis. 

If waters identified in this paragraph are 

also an adjacent water under paragraph 

(1)(vi), they are an adjacent water and 

no case-specific significant nexus 

analysis is required. 

(A) Prairie potholes. Prairie potholes 

are a complex of glacially formed 

wetlands, usually occurring in 

depressions that lack permanent natural 

outlets, located in the upper Midwest. 

(B) Carolina bays and Delmarva bays. 

Carolina bays and Delmarva bays are 

ponded, depressional wetlands that 

occur along the Atlantic coastal plain. 

(C) Pocosins. Pocosins are evergreen 

shrub and tree dominated wetlands 

found predominantly along the Central 

Atlantic coastal plain. 

(D) Western vernal pools. Western 

vernal pools are seasonal wetlands 

located in parts of California and 

associated with topographic depression, 

soils with poor drainage, mild, wet 

winters and hot, dry summers. 

(E) Texas coastal prairie wetlands. 

Texas coastal prairie wetlands are 

freshwater wetlands that occur as a 

mosaic of depressions, ridges, 

intermound flats, and mima mound 

wetlands located along the Texas Gulf 

Coast. 

(viii) All waters located within the 

100-year floodplain of a water identified 

in paragraphs (1)(i) through (iii) of this 

definition and all waters located within 

4,000 feet of the high tide line or 

ordinary high water mark of a water 

identified in paragraphs (1)(i) through 

(v) of this definition where they are 

determined on a case-specific basis to 

have a significant nexus to a water 

identified in paragraphs (1)(i) through 

(iii) of this definition. For waters 

determined to have a significant nexus, 

the entire water is a water of the United 

States if a portion is located within the 

100-year floodplain of a water identified 

in paragraphs (1)(i) through (iii) of this 

definition or within 4,000 feet of the 

high tide line or ordinary high water 

mark. Waters identified in this 

paragraph shall not be combined with 

waters identified in paragraph (1)(vi) of 

this definition when performing a 

significant nexus analysis. If waters 

identified in this paragraph are also an 

adjacent water under paragraph (1)(vi) 

of this definition, they are an adjacent 

water and no case-specific significant 

nexus analysis is required. 

(2) The following are not ‘‘waters of 

the United States’’ even where they 

otherwise meet the terms of paragraphs 

(1)(iv) through (viii) of this definition. 

(i) Waste treatment systems, including 

treatment ponds or lagoons designed to 

meet the requirements of the Clean 

Water Act are not waters of the United 

States. 

(ii) Prior converted cropland. 

Notwithstanding the determination of 

an area’s status as prior converted 

cropland by any other Federal agency, 

for the purposes of the Clean Water Act, 

the final authority regarding Clean 

Water Act jurisdiction remains with 

EPA. 

(iii) The following ditches: 

(A) Ditches with ephemeral flow that 

are not a relocated tributary or 

excavated in a tributary. 

(B) Ditches with intermittent flow that 

are not a relocated tributary, excavated 

in a tributary, or drain wetlands. 

(C) Ditches that do not flow, either 

directly or through another water, into 

a water identified in paragraphs (1)(i) 

through (iii) of this definition. 

(iv) The following features: 

(A) Artificially irrigated areas that 

would revert to dry land should 

application of water to that area cease; 

(B) Artificial, constructed lakes and 

ponds created in dry land such as farm 

and stock watering ponds, irrigation 

ponds, settling basins, fields flooded for 

rice growing, log cleaning ponds, or 

cooling ponds; 

(C) Artificial reflecting pools or 

swimming pools created in dry land; 

(D) Small ornamental waters created 

in dry land; 

(E) Water-filled depressions created in 

dry land incidental to mining or 

construction activity, including pits 

excavated for obtaining fill, sand, or 

gravel that fill with water; 

(F) Erosional features, including 

gullies, rills, and other ephemeral 

features that do not meet the definition 

of tributary, non-wetland swales, and 

lawfully constructed grassed waterways; 

and 

(G) Puddles. 

(v) Groundwater, including 

groundwater drained through 

subsurface drainage systems. 

(vi) Stormwater control features 

constructed to convey, treat, or store 

stormwater that are created in dry land. 

(vii) Wastewater recycling structures 

constructed in dry land; detention and 

retention basins built for wastewater 

recycling; groundwater recharge basins; 

percolation ponds built for wastewater 

recycling; and water distributary 

structures built for wastewater 

recycling. 

(3) In this definition, the following 

terms apply: 

(i) Adjacent. The term adjacent means 

bordering, contiguous, or neighboring a 

water identified in paragraphs (1)(i) 

through (v) of this definition, including 

waters separated by constructed dikes or 

barriers, natural river berms, beach 

dunes, and the like. For purposes of 

adjacency, an open water such as a 

pond or lake includes any wetlands 

within or abutting its ordinary high 

water mark. Adjacency is not limited to 

waters located laterally to a water 

identified in paragraphs (1)(i) through 

(v) of this definition. Adjacent waters 

also include all waters that connect 

segments of a water identified in 

paragraphs (1)(i) through (v) or are 

located at the head of a water identified 

in paragraphs (1)(i) through (v) of this 

definition and are bordering, 

contiguous, or neighboring such water. 

Waters being used for established 

normal farming, ranching, and 

silviculture activities (33 U.S.C. 1344(f)) 

are not adjacent. 

(ii) Neighboring. The term 

neighboring means: 

(A) All waters located within 100 feet 

of the ordinary high water mark of a 

water identified in paragraphs (1)(i) 

through (v) of this definition. The entire 

water is neighboring if a portion is 

located within 100 feet of the ordinary 

high water mark; 

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(B) All waters located within the 100- 

year floodplain of a water identified in 

paragraphs (1)(i) through (v) of this 

definition and not more than 1,500 feet 

from the ordinary high water mark of 

such water. The entire water is 

neighboring if a portion is located 

within 1,500 feet of the ordinary high 

water mark and within the 100-year 

floodplain; 

(C) All waters located within 1,500 

feet of the high tide line of a water 

identified in paragraphs (1)(i) or (1)(iii) 

of this definition, and all waters within 

1,500 feet of the ordinary high water 

mark of the Great Lakes. The entire 

water is neighboring if a portion is 

located within 1,500 feet of the high tide 

line or within 1,500 feet of the ordinary 

high water mark of the Great Lakes. 

(iii) Tributary and tributaries. The 

terms tributary and tributaries each 

mean a water that contributes flow, 

either directly or through another water 

(including an impoundment identified 

in paragraph (1)(iv) of this definition), to 

a water identified in paragraphs (1)(i) 

through (iii) of this definition that is 

characterized by the presence of the 

physical indicators of a bed and banks 

and an ordinary high water mark. These 

physical indicators demonstrate there is 

volume, frequency, and duration of flow 

sufficient to create a bed and banks and 

an ordinary high water mark, and thus 

to qualify as a tributary. A tributary can 

be a natural, man-altered, or man-made 

water and includes waters such as 

rivers, streams, canals, and ditches not 

excluded under paragraph (2) of this 

definition. A water that otherwise 

qualifies as a tributary under this 

definition does not lose its status as a 

tributary if, for any length, there are one 

or more constructed breaks (such as 

bridges, culverts, pipes, or dams), or one 

or more natural breaks (such as 

wetlands along the run of a stream, 

debris piles, boulder fields, or a stream 

that flows underground) so long as a bed 

and banks and an ordinary high water 

mark can be identified upstream of the 

break. A water that otherwise qualifies 

as a tributary under this definition does 

not lose its status as a tributary if it 

contributes flow through a water of the 

United States that does not meet the 

definition of tributary or through a nonjurisdictional water to a water identified 

in paragraphs (1)(i) through (iii) of this 

definition. 

(iv) Wetlands. The term wetlands 

means those areas that are inundated or 

saturated by surface or groundwater at 

a frequency and duration sufficient to 

support, and that under normal 

circumstances do support, a prevalence 

of vegetation typically adapted for life 

in saturated soil conditions. Wetlands 

generally include swamps, marshes, 

bogs, and similar areas. 

(v) Significant nexus. The term 

significant nexus means that a water, 

including wetlands, either alone or in 

combination with other similarly 

situated waters in the region, 

significantly affects the chemical, 

physical, or biological integrity of a 

water identified in paragraphs (1)(i) 

through (iii) of this definition. The term 

‘‘in the region’’ means the watershed 

that drains to the nearest water 

identified in paragraphs (1)(i) through 

(iii) of this definition. For an effect to be 

significant, it must be more than 

speculative or insubstantial. Waters are 

similarly situated when they function 

alike and are sufficiently close to 

function together in affecting 

downstream waters. For purposes of 

determining whether or not a water has 

a significant nexus, the water’s effect on 

downstream (1)(i) through (iii) waters 

shall be assessed by evaluating the 

aquatic functions identified in 

paragraphs (3)(v)(A) through (I) of this 

definition. A water has a significant 

nexus when any single function or 

combination of functions performed by 

the water, alone or together with 

similarly situated waters in the region, 

contributes significantly to the 

chemical, physical, or biological 

integrity of the nearest water identified 

in paragraphs (1)(i) through (iii) of this 

definition. Functions relevant to the 

significant nexus evaluation are the 

following: 

(A) Sediment trapping, 

(B) Nutrient recycling, 

(C) Pollutant trapping, transformation, 

filtering, and transport, 

(D) Retention and attenuation of flood 

waters, 

(E) Runoff storage, 

(F) Contribution of flow, 

(G) Export of organic matter, 

(H) Export of food resources, and 

(I) Provision of life cycle dependent 

aquatic habitat (such as foraging, 

feeding, nesting, breeding, spawning, or 

use as a nursery area) for species located 

in a water identified in paragraphs (1)(i) 

through (iii) of this definition. 

(vi) Ordinary high water mark. The 

term ordinary high water mark means 

that line on the shore established by the 

fluctuations of water and indicated by 

physical characteristics such as a clear, 

natural line impressed on the bank, 

shelving, changes in the character of 

soil, destruction of terrestrial vegetation, 

the presence of litter and debris, or 

other appropriate means that consider 

the characteristics of the surrounding 

areas. 

(vii) High tide line. The term high tide 

line means the line of intersection of the 

land with the water’s surface at the 

maximum height reached by a rising 

tide. The high tide line may be 

determined, in the absence of actual 

data, by a line of oil or scum along shore 

objects, a more or less continuous 

deposit of fine shell or debris on the 

foreshore or berm, other physical 

markings or characteristics, vegetation 

lines, tidal gages, or other suitable 

means that delineate the general height 

reached by a rising tide. The line 

encompasses spring high tides and other 

high tides that occur with periodic 

frequency but does not include storm 

surges in which there is a departure 

from the normal or predicted reach of 

the tide due to the piling up of water 

against a coast by strong winds such as 

those accompanying a hurricane or 

other intense storm. 

* * * * * 

PART 300—NATIONAL OIL AND 

HAZARDOUS SUBSTANCES 

POLLUTION CONTINTENCY PLAN 

■ 17. The authority citation for part 300 

is revised to read as follows: 

Authority: 33 U.S.C. 1251 et seq. 

■ 18. Section 300.5 is amended by 

revising the definition of ‘‘navigable 

waters’’ to read as follows: 

§ 300.5 Definitions. 

* * * * * 

Navigable waters means the waters of 

the United States, including the 

territorial seas. 

(1) For purposes of the Clean Water 

Act, 33 U.S.C. 1251 et seq. and its 

implementing regulations, subject to the 

exclusions in paragraph (2) of this 

definition, the term ‘‘waters of the 

United States’’ means: 

(i) All waters which are currently 

used, were used in the past, or may be 

susceptible to use in interstate or foreign 

commerce, including all waters which 

are subject to the ebb and flow of the 

tide; 

(ii) All interstate waters, including 

interstate wetlands; 

(iii) The territorial seas; 

(iv) All impoundments of waters 

otherwise identified as waters of the 

United States under this section; 

(v) All tributaries, as defined in 

paragraph (3)(iii) of this definition, of 

waters identified in paragraphs (1)(i) 

through (iii) of this definition; 

(vi) All waters adjacent to a water 

identified in paragraphs (1)(i) through 

(v) of this definition, including 

wetlands, ponds, lakes, oxbows, 

impoundments, and similar waters; 

(vii) All waters in paragraphs 

(1)(vii)(A) through (E) of this definition 

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where they are determined, on a casespecific basis, to have a significant 

nexus to a water identified in 

paragraphs (1)(i) through (iii) of this 

definition. The waters identified in each 

of paragraphs (1)(vii)(A) through (E) of 

this definition are similarly situated and 

shall be combined, for purposes of a 

significant nexus analysis, in the 

watershed that drains to the nearest 

water identified in paragraphs (1)(i) 

through (iii) of this definition. Waters 

identified in this paragraph shall not be 

combined with waters identified in 

paragraph (1)(vi) of this definition when 

performing a significant nexus analysis. 

If waters identified in this paragraph are 

also an adjacent water under paragraph 

(1)(vi), they are an adjacent water and 

no case-specific significant nexus 

analysis is required. 

(A) Prairie potholes. Prairie potholes 

are a complex of glacially formed 

wetlands, usually occurring in 

depressions that lack permanent natural 

outlets, located in the upper Midwest. 

(B) Carolina bays and Delmarva bays. 

Carolina bays and Delmarva bays are 

ponded, depressional wetlands that 

occur along the Atlantic coastal plain. 

(C) Pocosins. Pocosins are evergreen 

shrub and tree dominated wetlands 

found predominantly along the Central 

Atlantic coastal plain. 

(D) Western vernal pools. Western 

vernal pools are seasonal wetlands 

located in parts of California and 

associated with topographic depression, 

soils with poor drainage, mild, wet 

winters and hot, dry summers. 

(E) Texas coastal prairie wetlands. 

Texas coastal prairie wetlands are 

freshwater wetlands that occur as a 

mosaic of depressions, ridges, 

intermound flats, and mima mound 

wetlands located along the Texas Gulf 

Coast. 

(viii) All waters located within the 

100-year floodplain of a water identified 

in paragraphs (1)(i) through (iii) of this 

definition and all waters located within 

4,000 feet of the high tide line or 

ordinary high water mark of a water 

identified in paragraphs (1)(i) through 

(v) of this definition where they are 

determined on a case-specific basis to 

have a significant nexus to a water 

identified in paragraphs (1)(i) through 

(iii) of this definition. For waters 

determined to have a significant nexus, 

the entire water is a water of the United 

States if a portion is located within the 

100-year floodplain of a water identified 

in paragraphs (1)(i) through (iii) of this 

definition or within 4,000 feet of the 

high tide line or ordinary high water 

mark. Waters identified in this 

paragraph shall not be combined with 

waters identified in paragraph (1)(vi) of 

this definition when performing a 

significant nexus analysis. If waters 

identified in this paragraph are also an 

adjacent water under paragraph (1)(vi), 

they are an adjacent water and no casespecific significant nexus analysis is 

required. 

(2) The following are not ‘‘waters of 

the United States’’ even where they 

otherwise meet the terms of paragraphs 

(1)(iv) through (viii) of this definition. 

(i) Waste treatment systems (other 

than cooling ponds meeting the criteria 

of this paragraph) are not waters of the 

United States. 

(ii) Prior converted cropland. 

Notwithstanding the determination of 

an area’s status as prior converted 

cropland by any other Federal agency, 

for the purposes of the Clean Water Act, 

the final authority regarding Clean 

Water Act jurisdiction remains with 

EPA. 

(iii) The following ditches: 

(A) Ditches with ephemeral flow that 

are not a relocated tributary or 

excavated in a tributary. 

(B) Ditches with intermittent flow that 

are not a relocated tributary, excavated 

in a tributary, or drain wetlands. 

(C) Ditches that do not flow, either 

directly or through another water, into 

a water identified in paragraphs (1)(i) 

through (iii) of this definition. 

(iv) The following features: 

(A) Artificially irrigated areas that 

would revert to dry land should 

application of water to that area cease; 

(B) Artificial, constructed lakes and 

ponds created in dry land such as farm 

and stock watering ponds, irrigation 

ponds, settling basins, fields flooded for 

rice growing, log cleaning ponds, or 

cooling ponds; 

(C) Artificial reflecting pools or 

swimming pools created in dry land; 

(D) Small ornamental waters created 

in dry land; 

(E) Water-filled depressions created in 

dry land incidental to mining or 

construction activity, including pits 

excavated for obtaining fill, sand, or 

gravel that fill with water; 

(F) Erosional features, including 

gullies, rills, and other ephemeral 

features that do not meet the definition 

of tributary, non-wetland swales, and 

lawfully constructed grassed waterways; 

and 

(G) Puddles. 

(v) Groundwater, including 

groundwater drained through 

subsurface drainage systems. 

(vi) Stormwater control features 

constructed to convey, treat, or store 

stormwater that are created in dry land. 

(vii) Wastewater recycling structures 

constructed in dry land; detention and 

retention basins built for wastewater 

recycling; groundwater recharge basins; 

percolation ponds built for wastewater 

recycling; and water distributary 

structures built for wastewater 

recycling. 

(3) In this definition, the following 

terms apply: 

(i) Adjacent. The term adjacent means 

bordering, contiguous, or neighboring a 

water identified in paragraphs (1)(i) 

through (v) of this definition, including 

waters separated by constructed dikes or 

barriers, natural river berms, beach 

dunes, and the like. For purposes of 

adjacency, an open water such as a 

pond or lake includes any wetlands 

within or abutting its ordinary high 

water mark. Adjacency is not limited to 

waters located laterally to a water 

identified in paragraphs (1)(i) through 

(v) of this definition. Adjacent waters 

also include all waters that connect 

segments of a water identified in 

paragraphs (1)(i) through (v) or are 

located at the head of a water identified 

in paragraphs (1)(i) through (v) of this 

definition and are bordering, 

contiguous, or neighboring such water. 

Waters being used for established 

normal farming, ranching, and 

silviculture activities (33 U.S.C. 1344(f)) 

are not adjacent. 

(ii) Neighboring. The term 

neighboring means: 

(A) All waters located within 100 feet 

of the ordinary high water mark of a 

water identified in paragraphs (1)(i) 

through (v) of this definition. The entire 

water is neighboring if a portion is 

located within 100 feet of the ordinary 

high water mark; 

(B) All waters located within the 100- 

year floodplain of a water identified in 

paragraphs (1)(i) through (v) of this 

definition and not more than 1,500 feet 

from the ordinary high water mark of 

such water. The entire water is 

neighboring if a portion is located 

within 1,500 feet of the ordinary high 

water mark and within the 100-year 

floodplain; 

(C) All waters located within 1,500 

feet of the high tide line of a water 

identified in paragraphs (1)(i) or (1)(iii) 

of this definition, and all waters within 

1,500 feet of the ordinary high water 

mark of the Great Lakes. The entire 

water is neighboring if a portion is 

located within 1,500 feet of the high tide 

line or within 1,500 feet of the ordinary 

high water mark of the Great Lakes. 

(iii) Tributary and tributaries. The 

terms tributary and tributaries each 

mean a water that contributes flow, 

either directly or through another water 

(including an impoundment identified 

in paragraph (1)(iv) of this definition), to 

a water identified in paragraphs (1)(i) 

through (iii) of this definition that is 

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characterized by the presence of the 

physical indicators of a bed and banks 

and an ordinary high water mark. These 

physical indicators demonstrate there is 

volume, frequency, and duration of flow 

sufficient to create a bed and banks and 

an ordinary high water mark, and thus 

to qualify as a tributary. A tributary can 

be a natural, man-altered, or man-made 

water and includes waters such as 

rivers, streams, canals, and ditches not 

excluded under paragraph (2) of this 

definition. A water that otherwise 

qualifies as a tributary under this 

definition does not lose its status as a 

tributary if, for any length, there are one 

or more constructed breaks (such as 

bridges, culverts, pipes, or dams), or one 

or more natural breaks (such as 

wetlands along the run of a stream, 

debris piles, boulder fields, or a stream 

that flows underground) so long as a bed 

and banks and an ordinary high water 

mark can be identified upstream of the 

break. A water that otherwise qualifies 

as a tributary under this definition does 

not lose its status as a tributary if it 

contributes flow through a water of the 

United States that does not meet the 

definition of tributary or through a nonjurisdictional water to a water identified 

in paragraphs (1)(i) through (iii) of this 

definition. 

(iv) Wetlands. The term wetlands 

means those areas that are inundated or 

saturated by surface or groundwater at 

a frequency and duration sufficient to 

support, and that under normal 

circumstances do support, a prevalence 

of vegetation typically adapted for life 

in saturated soil conditions. Wetlands 

generally include swamps, marshes, 

bogs, and similar areas. 

(v) Significant nexus. The term 

significant nexus means that a water, 

including wetlands, either alone or in 

combination with other similarly 

situated waters in the region, 

significantly affects the chemical, 

physical, or biological integrity of a 

water identified in paragraphs (1)(i) 

through (iii) of this definition. The term 

‘‘in the region’’ means the watershed 

that drains to the nearest water 

identified in paragraphs (1)(i) through 

(iii) of this definition. For an effect to be 

significant, it must be more than 

speculative or insubstantial. Waters are 

similarly situated when they function 

alike and are sufficiently close to 

function together in affecting 

downstream waters. For purposes of 

determining whether or not a water has 

a significant nexus, the water’s effect on 

downstream (1)(i) through (iii) waters 

shall be assessed by evaluating the 

aquatic functions identified in 

paragraphs (3)(v)(A) through (I) of this 

definition. A water has a significant 

nexus when any single function or 

combination of functions performed by 

the water, alone or together with 

similarly situated waters in the region, 

contributes significantly to the 

chemical, physical, or biological 

integrity of the nearest water identified 

in paragraphs (1)(i) through (iii) of this 

definition. Functions relevant to the 

significant nexus evaluation are the 

following: 

(A) Sediment trapping, 

(B) Nutrient recycling, 

(C) Pollutant trapping, transformation, 

filtering, and transport, 

(D) Retention and attenuation of flood 

waters, 

(E) Runoff storage, 

(F) Contribution of flow, 

(G) Export of organic matter, 

(H) Export of food resources, and 

(I) Provision of life cycle dependent 

aquatic habitat (such as foraging, 

feeding, nesting, breeding, spawning, or 

use as a nursery area) for species located 

in a water identified in paragraphs (1)(i) 

through (iii) of this definition. 

(vi) Ordinary high water mark. The 

term ordinary high water mark means 

that line on the shore established by the 

fluctuations of water and indicated by 

physical characteristics such as a clear, 

natural line impressed on the bank, 

shelving, changes in the character of 

soil, destruction of terrestrial vegetation, 

the presence of litter and debris, or 

other appropriate means that consider 

the characteristics of the surrounding 

areas. 

(vii) High tide line. The term high tide 

line means the line of intersection of the 

land with the water’s surface at the 

maximum height reached by a rising 

tide. The high tide line may be 

determined, in the absence of actual 

data, by a line of oil or scum along shore 

objects, a more or less continuous 

deposit of fine shell or debris on the 

foreshore or berm, other physical 

markings or characteristics, vegetation 

lines, tidal gages, or other suitable 

means that delineate the general height 

reached by a rising tide. The line 

encompasses spring high tides and other 

high tides that occur with periodic 

frequency but does not include storm 

surges in which there is a departure 

from the normal or predicted reach of 

the tide due to the piling up of water 

against a coast by strong winds such as 

those accompanying a hurricane or 

other intense storm. 

* * * * * 

■ 19. In appendix E to part 300, section 

1.5 Definitions is amended by revising 

the definition of ‘‘navigable waters’’ to 

read as follows: 

Appendix E to Part 300—Oil Spill 

Response 

* * * * * 

1.5 Definitions. * * * 

Navigable waters means the waters of 

the United States, including the 

territorial seas. 

(1) For purposes of the Clean Water 

Act, 33 U.S.C. 1251 et seq. and its 

implementing regulations, subject to the 

exclusions in paragraph (2) of this 

definition, the term ‘‘waters of the 

United States’’ means: 

(i) All waters which are currently 

used, were used in the past, or may be 

susceptible to use in interstate or foreign 

commerce, including all waters which 

are subject to the ebb and flow of the 

tide; 

(ii) All interstate waters, including 

interstate wetlands; 

(iii) The territorial seas; 

(iv) All impoundments of waters 

otherwise identified as waters of the 

United States under this section; 

(v) All tributaries, as defined in 

paragraph (3)(iii) of this definition, of 

waters identified in paragraphs (1)(i) 

through (iii) of this definition; 

(vi) All waters adjacent to a water 

identified in paragraphs (1)(i) through 

(v) of this definition, including 

wetlands, ponds, lakes, oxbows, 

impoundments, and similar waters; 

(vii) All waters in paragraphs 

(1)(vii)(A) through (E) of this definition 

where they are determined, on a casespecific basis, to have a significant 

nexus to a water identified in 

paragraphs (1)(i) through (iii) of this 

definition. The waters identified in each 

of paragraphs (1)(vii)(A) through (E) of 

this definition are similarly situated and 

shall be combined, for purposes of a 

significant nexus analysis, in the 

watershed that drains to the nearest 

water identified in paragraphs (1)(i) 

through (iii) of this definition. Waters 

identified in this paragraph shall not be 

combined with waters identified in 

paragraph (1)(vi) of this definition when 

performing a significant nexus analysis. 

If waters identified in this paragraph are 

also an adjacent water under paragraph 

(1)(vi), they are an adjacent water and 

no case-specific significant nexus 

analysis is required. 

(A) Prairie potholes. Prairie potholes 

are a complex of glacially formed 

wetlands, usually occurring in 

depressions that lack permanent natural 

outlets, located in the upper Midwest. 

(B) Carolina bays and Delmarva bays. 

Carolina bays and Delmarva bays are 

ponded, depressional wetlands that 

occur along the Atlantic coastal plain. 

(C) Pocosins. Pocosins are evergreen 

shrub and tree dominated wetlands 

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found predominantly along the Central 

Atlantic coastal plain. 

(D) Western vernal pools. Western 

vernal pools are seasonal wetlands 

located in parts of California and 

associated with topographic depression, 

soils with poor drainage, mild, wet 

winters and hot, dry summers. 

(E) Texas coastal prairie wetlands. 

Texas coastal prairie wetlands are 

freshwater wetlands that occur as a 

mosaic of depressions, ridges, 

intermound flats, and mima mound 

wetlands located along the Texas Gulf 

Coast. 

(viii) All waters located within the 

100-year floodplain of a water identified 

in paragraphs (1)(i) through (iii) of this 

definition and all waters located within 

4,000 feet of the high tide line or 

ordinary high water mark of a water 

identified in paragraphs (1)(i) through 

(v) of this definition where they are 

determined on a case-specific basis to 

have a significant nexus to a water 

identified in paragraphs (1)(i) through 

(iii) of this definition. For waters 

determined to have a significant nexus, 

the entire water is a water of the United 

States if a portion is located within the 

100-year floodplain of a water identified 

in paragraphs (1)(i) through (iii) of this 

definition or within 4,000 feet of the 

high tide line or ordinary high water 

mark. Waters identified in this 

paragraph shall not be combined with 

waters identified in paragraph (1)(vi) of 

this definition when performing a 

significant nexus analysis. If waters 

identified in this paragraph are also an 

adjacent water under paragraph (1)(vi), 

they are an adjacent water and no casespecific significant nexus analysis is 

required. 

(2) The following are not ‘‘waters of 

the United States’’ even where they 

otherwise meet the terms of paragraphs 

(1)(iv) through (viii) of this definition. 

(i) Waste treatment systems (other 

than cooling ponds meeting the criteria 

of this paragraph) are not waters of the 

United States. 

(ii) Prior converted cropland. 

Notwithstanding the determination of 

an area’s status as prior converted 

cropland by any other Federal agency, 

for the purposes of the Clean Water Act, 

the final authority regarding Clean 

Water Act jurisdiction remains with 

EPA. 

(iii) The following ditches: 

(A) Ditches with ephemeral flow that 

are not a relocated tributary or 

excavated in a tributary. 

(B) Ditches with intermittent flow that 

are not a relocated tributary, excavated 

in a tributary, or drain wetlands. 

(C) Ditches that do not flow, either 

directly or through another water, into 

a water identified in paragraphs (1)(i) 

through (iii) of this definition. 

(iv) The following features: 

(A) Artificially irrigated areas that 

would revert to dry land should 

application of water to that area cease; 

(B) Artificial, constructed lakes and 

ponds created in dry land such as farm 

and stock watering ponds, irrigation 

ponds, settling basins, fields flooded for 

rice growing, log cleaning ponds, or 

cooling ponds; 

(C) Artificial reflecting pools or 

swimming pools created in dry land; 

(D) Small ornamental waters created 

in dry land; 

(E) Water-filled depressions created in 

dry land incidental to mining or 

construction activity, including pits 

excavated for obtaining fill, sand, or 

gravel that fill with water; 

(F) Erosional features, including 

gullies, rills, and other ephemeral 

features that do not meet the definition 

of tributary, non-wetland swales, and 

lawfully constructed grassed waterways; 

and 

(G) Puddles. 

(v) Groundwater, including 

groundwater drained through 

subsurface drainage systems. 

(vi) Stormwater control features 

constructed to convey, treat, or store 

stormwater that are created in dry land. 

(vii) Wastewater recycling structures 

constructed in dry land; detention and 

retention basins built for wastewater 

recycling; groundwater recharge basins; 

percolation ponds built for wastewater 

recycling; and water distributary 

structures built for wastewater 

recycling. 

(3) In this definition, the following 

terms apply: 

(i) Adjacent. The term adjacent means 

bordering, contiguous, or neighboring a 

water identified in paragraphs (1)(i) 

through (v) of this definition, including 

waters separated by constructed dikes or 

barriers, natural river berms, beach 

dunes, and the like. For purposes of 

adjacency, an open water such as a 

pond or lake includes any wetlands 

within or abutting its ordinary high 

water mark. Adjacency is not limited to 

waters located laterally to a water 

identified in paragraphs (1)(i) through 

(v) of this definition. Adjacent waters 

also include all waters that connect 

segments of a water identified in 

paragraphs (1)(i) through (v) or are 

located at the head of a water identified 

in paragraphs (1)(i) through (v) of this 

definition and are bordering, 

contiguous, or neighboring such water. 

Waters being used for established 

normal farming, ranching, and 

silviculture activities (33 U.S.C. 1344(f)) 

are not adjacent. 

(ii) Neighboring. The term 

neighboring means: 

(A) All waters located within 100 feet 

of the ordinary high water mark of a 

water identified in paragraphs (1)(i) 

through (v) of this definition. The entire 

water is neighboring if a portion is 

located within 100 feet of the ordinary 

high water mark; 

(B) All waters located within the 100- 

year floodplain of a water identified in 

paragraphs (1)(i) through (v) of this 

definition and not more than 1,500 feet 

from the ordinary high water mark of 

such water. The entire water is 

neighboring if a portion is located 

within 1,500 feet of the ordinary high 

water mark and within the 100-year 

floodplain; 

(C) All waters located within 1,500 

feet of the high tide line of a water 

identified in paragraphs (1)(i) or (1)(iii) 

of this definition, and all waters within 

1,500 feet of the ordinary high water 

mark of the Great Lakes. The entire 

water is neighboring if a portion is 

located within 1,500 feet of the high tide 

line or within 1,500 feet of the ordinary 

high water mark of the Great Lakes. 

(iii) Tributary and tributaries. The 

terms tributary and tributaries each 

mean a water that contributes flow, 

either directly or through another water 

(including an impoundment identified 

in paragraph (1)(iv) of this definition), to 

a water identified in paragraphs (1)(i) 

through (iii) of this definition that is 

characterized by the presence of the 

physical indicators of a bed and banks 

and an ordinary high water mark. These 

physical indicators demonstrate there is 

volume, frequency, and duration of flow 

sufficient to create a bed and banks and 

an ordinary high water mark, and thus 

to qualify as a tributary. A tributary can 

be a natural, man-altered, or man-made 

water and includes waters such as 

rivers, streams, canals, and ditches not 

excluded under paragraph (2) of this 

definition. A water that otherwise 

qualifies as a tributary under this 

definition does not lose its status as a 

tributary if, for any length, there are one 

or more constructed breaks (such as 

bridges, culverts, pipes, or dams), or one 

or more natural breaks (such as 

wetlands along the run of a stream, 

debris piles, boulder fields, or a stream 

that flows underground) so long as a bed 

and banks and an ordinary high water 

mark can be identified upstream of the 

break. A water that otherwise qualifies 

as a tributary under this definition does 

not lose its status as a tributary if it 

contributes flow through a water of the 

United States that does not meet the 

definition of tributary or through a nonjurisdictional water to a water identified 

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in paragraphs (1)(i) through (iii) of this 

definition. 

(iv) Wetlands. The term wetlands 

means those areas that are inundated or 

saturated by surface or groundwater at 

a frequency and duration sufficient to 

support, and that under normal 

circumstances do support, a prevalence 

of vegetation typically adapted for life 

in saturated soil conditions. Wetlands 

generally include swamps, marshes, 

bogs, and similar areas. 

(v) Significant nexus. The term 

significant nexus means that a water, 

including wetlands, either alone or in 

combination with other similarly 

situated waters in the region, 

significantly affects the chemical, 

physical, or biological integrity of a 

water identified in paragraphs (1)(i) 

through (iii) of this definition. The term 

‘‘in the region’’ means the watershed 

that drains to the nearest water 

identified in paragraphs (1)(i) through 

(iii) of this definition. For an effect to be 

significant, it must be more than 

speculative or insubstantial. Waters are 

similarly situated when they function 

alike and are sufficiently close to 

function together in affecting 

downstream waters. For purposes of 

determining whether or not a water has 

a significant nexus, the water’s effect on 

downstream (1)(i) through (iii) waters 

shall be assessed by evaluating the 

aquatic functions identified in 

paragraphs (3)(v)(A) through (I) of this 

definition. A water has a significant 

nexus when any single function or 

combination of functions performed by 

the water, alone or together with 

similarly situated waters in the region, 

contributes significantly to the 

chemical, physical, or biological 

integrity of the nearest water identified 

in paragraphs (1)(i) through (iii) of this 

definition. Functions relevant to the 

significant nexus evaluation are the 

following: 

(A) Sediment trapping, 

(B) Nutrient recycling, 

(C) Pollutant trapping, transformation, 

filtering, and transport, 

(D) Retention and attenuation of flood 

waters, 

(E) Runoff storage, 

(F) Contribution of flow, 

(G) Export of organic matter, 

(H) Export of food resources, and 

(I) Provision of life cycle dependent 

aquatic habitat (such as foraging, 

feeding, nesting, breeding, spawning, or 

use as a nursery area) for species located 

in a water identified in paragraphs (1)(i) 

through (iii) of this section. 

(vi) Ordinary high water mark. The 

term ordinary high water mark means 

that line on the shore established by the 

fluctuations of water and indicated by 

physical characteristics such as a clear, 

natural line impressed on the bank, 

shelving, changes in the character of 

soil, destruction of terrestrial vegetation, 

the presence of litter and debris, or 

other appropriate means that consider 

the characteristics of the surrounding 

areas. 

(vii) High tide line. The term high tide 

line means the line of intersection of the 

land with the water’s surface at the 

maximum height reached by a rising 

tide. The high tide line may be 

determined, in the absence of actual 

data, by a line of oil or scum along shore 

objects, a more or less continuous 

deposit of fine shell or debris on the 

foreshore or berm, other physical 

markings or characteristics, vegetation 

lines, tidal gages, or other suitable 

means that delineate the general height 

reached by a rising tide. The line 

encompasses spring high tides and other 

high tides that occur with periodic 

frequency but does not include storm 

surges in which there is a departure 

from the normal or predicted reach of 

the tide due to the piling up of water 

against a coast by strong winds such as 

those accompanying a hurricane or 

other intense storm. 

* * * * * 

PART 302—DESIGNATION, 

REPORTABLE QUANTITIES, AND 

NOTIFICATION 

■ 20. The authority citation for part 302 

is revised to read as follows: 

Authority: 33 U.S.C. 1251 et seq. 

■ 21. Section 302.3 is amended by 

revising the definition of ‘‘Navigable 

waters’’ to read as follows: 

§ 302.3 Definitions. 

* * * * * 

Navigable waters means the waters of 

the United States, including the 

territorial seas. 

(1) For purposes of the Clean Water 

Act, 33 U.S.C. 1251 et seq. and its 

implementing regulations, subject to the 

exclusions in paragraph (2) of this 

definition, the term ‘‘waters of the 

United States’’ means: 

(i) All waters which are currently 

used, were used in the past, or may be 

susceptible to use in interstate or foreign 

commerce, including all waters which 

are subject to the ebb and flow of the 

tide; 

(ii) All interstate waters, including 

interstate wetlands; 

(iii) The territorial seas; 

(iv) All impoundments of waters 

otherwise identified as waters of the 

United States under this section; 

(v) All tributaries, as defined in 

paragraph (3)(iii) of this definition, of 

waters identified in paragraphs (1)(i) 

through (iii) of this definition; 

(vi) All waters adjacent to a water 

identified in paragraphs (1)(i) through 

(v) of this definition, including 

wetlands, ponds, lakes, oxbows, 

impoundments, and similar waters; 

(vii) All waters in paragraphs 

(1)(vii)(A) through (E) of this definition 

where they are determined, on a casespecific basis, to have a significant 

nexus to a water identified in 

paragraphs (1)(i) through (iii) of this 

definition. The waters identified in each 

of paragraphs (1)(vii)(A) through (E) of 

this definition are similarly situated and 

shall be combined, for purposes of a 

significant nexus analysis, in the 

watershed that drains to the nearest 

water identified in paragraphs (1)(i) 

through (iii) of this definition. Waters 

identified in this paragraph shall not be 

combined with waters identified in 

paragraph (1)(vi) of this definition when 

performing a significant nexus analysis. 

If waters identified in this paragraph are 

also an adjacent water under paragraph 

(1)(vi), they are an adjacent water and 

no case-specific significant nexus 

analysis is required. 

(A) Prairie potholes. Prairie potholes 

are a complex of glacially formed 

wetlands, usually occurring in 

depressions that lack permanent natural 

outlets, located in the upper Midwest. 

(B) Carolina bays and Delmarva bays. 

Carolina bays and Delmarva bays are 

ponded, depressional wetlands that 

occur along the Atlantic coastal plain. 

(C) Pocosins. Pocosins are evergreen 

shrub and tree dominated wetlands 

found predominantly along the Central 

Atlantic coastal plain. 

(D) Western vernal pools. Western 

vernal pools are seasonal wetlands 

located in parts of California and 

associated with topographic depression, 

soils with poor drainage, mild, wet 

winters and hot, dry summers. 

(E) Texas coastal prairie wetlands. 

Texas coastal prairie wetlands are 

freshwater wetlands that occur as a 

mosaic of depressions, ridges, 

intermound flats, and mima mound 

wetlands located along the Texas Gulf 

Coast. 

(viii) All waters located within the 

100-year floodplain of a water identified 

in paragraphs (1)(i) through (iii) of this 

definition and all waters located within 

4,000 feet of the high tide line or 

ordinary high water mark of a water 

identified in paragraphs (1)(i) through 

(v) of this definition where they are 

determined on a case-specific basis to 

have a significant nexus to a water 

identified in paragraphs (1)(i) through 

(iii) of this definition. For waters 

determined to have a significant nexus, 

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the entire water is a water of the United 

States if a portion is located within the 

100-year floodplain of a water identified 

in paragraphs (1)(i) through (iii) of this 

definition or within 4,000 feet of the 

high tide line or ordinary high water 

mark. Waters identified in this 

paragraph shall not be combined with 

waters identified in paragraph (1)(vi) of 

this definition when performing a 

significant nexus analysis. If waters 

identified in this paragraph are also an 

adjacent water under paragraph (1)(vi), 

they are an adjacent water and no casespecific significant nexus analysis is 

required. 

(2) The following are not ‘‘waters of 

the United States’’ even where they 

otherwise meet the terms of paragraphs 

(1)(iv) through (viii) of this definition. 

(i) The following ditches: 

(A) Ditches with ephemeral flow that 

are not a relocated tributary or 

excavated in a tributary. 

(B) Ditches with intermittent flow that 

are not a relocated tributary, excavated 

in a tributary, or drain wetlands. 

(C) Ditches that do not flow, either 

directly or through another water, into 

a water identified in paragraphs (1)(i) 

through (iii) of this definition. 

(ii) The following features: 

(A) Artificially irrigated areas that 

would revert to dry land should 

application of water to that area cease; 

(B) Artificial, constructed lakes and 

ponds created in dry land such as farm 

and stock watering ponds, irrigation 

ponds, settling basins, fields flooded for 

rice growing, log cleaning ponds, or 

cooling ponds; 

(C) Artificial reflecting pools or 

swimming pools created in dry land; 

(D) Small ornamental waters created 

in dry land; 

(E) Water-filled depressions created in 

dry land incidental to mining or 

construction activity, including pits 

excavated for obtaining fill, sand, or 

gravel that fill with water; 

(F) Erosional features, including 

gullies, rills, and other ephemeral 

features that do not meet the definition 

of tributary, non-wetland swales, and 

lawfully constructed grassed waterways; 

and 

(G) Puddles. 

(iii) Groundwater, including 

groundwater drained through 

subsurface drainage systems. 

(iv) Stormwater control features 

constructed to convey, treat, or store 

stormwater that are created in dry land. 

(v) Wastewater recycling structures 

constructed in dry land; detention and 

retention basins built for wastewater 

recycling; groundwater recharge basins; 

percolation ponds built for wastewater 

recycling; and water distributary 

structures built for wastewater 

recycling. 

(3) In this definition, the following 

terms apply: 

(i) Adjacent. The term adjacent means 

bordering, contiguous, or neighboring a 

water identified in paragraphs (1)(i) 

through (v) of this definition, including 

waters separated by constructed dikes or 

barriers, natural river berms, beach 

dunes, and the like. For purposes of 

adjacency, an open water such as a 

pond or lake includes any wetlands 

within or abutting its ordinary high 

water mark. Adjacency is not limited to 

waters located laterally to a water 

identified in paragraphs (1)(i) through 

(v) of this definition. Adjacent waters 

also include all waters that connect 

segments of a water identified in 

paragraphs (1)(i) through (v) or are 

located at the head of a water identified 

in paragraphs (1)(i) through (v) of this 

definition and are bordering, 

contiguous, or neighboring such water. 

Waters being used for established 

normal farming, ranching, and 

silviculture activities (33 U.S.C. 1344(f)) 

are not adjacent. 

(ii) Neighboring. The term 

neighboring means: 

(A) All waters located within 100 feet 

of the ordinary high water mark of a 

water identified in paragraphs (1)(i) 

through (v) of this definition. The entire 

water is neighboring if a portion is 

located within 100 feet of the ordinary 

high water mark; 

(B) All waters located within the 100- 

year floodplain of a water identified in 

paragraphs (1)(i) through (v) of this 

definition and not more than 1,500 feet 

from the ordinary high water mark of 

such water. The entire water is 

neighboring if a portion is located 

within 1,500 feet of the ordinary high 

water mark and within the 100-year 

floodplain; 

(C) All waters located within 1,500 

feet of the high tide line of a water 

identified in paragraphs (1)(i) or (iii) of 

this definition, and all waters within 

1,500 feet of the ordinary high water 

mark of the Great Lakes. The entire 

water is neighboring if a portion is 

located within 1,500 feet of the high tide 

line or within 1,500 feet of the ordinary 

high water mark of the Great Lakes. 

(iii) Tributary and tributaries. The 

terms tributary and tributaries each 

mean a water that contributes flow, 

either directly or through another water 

(including an impoundment identified 

in paragraph (1)(iv) of this definition), to 

a water identified in paragraphs (1)(i) 

through (iii) of this definition that is 

characterized by the presence of the 

physical indicators of a bed and banks 

and an ordinary high water mark. These 

physical indicators demonstrate there is 

volume, frequency, and duration of flow 

sufficient to create a bed and banks and 

an ordinary high water mark, and thus 

to qualify as a tributary. A tributary can 

be a natural, man-altered, or man-made 

water and includes waters such as 

rivers, streams, canals, and ditches not 

excluded under paragraph (2) of this 

definition. A water that otherwise 

qualifies as a tributary under this 

definition does not lose its status as a 

tributary if, for any length, there are one 

or more constructed breaks (such as 

bridges, culverts, pipes, or dams), or one 

or more natural breaks (such as 

wetlands along the run of a stream, 

debris piles, boulder fields, or a stream 

that flows underground) so long as a bed 

and banks and an ordinary high water 

mark can be identified upstream of the 

break. A water that otherwise qualifies 

as a tributary under this definition does 

not lose its status as a tributary if it 

contributes flow through a water of the 

United States that does not meet the 

definition of tributary or through a nonjurisdictional water to a water identified 

in paragraphs (1)(i) through (iii) of this 

definition. 

(iv) Wetlands. The term wetlands 

means those areas that are inundated or 

saturated by surface or groundwater at 

a frequency and duration sufficient to 

support, and that under normal 

circumstances do support, a prevalence 

of vegetation typically adapted for life 

in saturated soil conditions. Wetlands 

generally include swamps, marshes, 

bogs, and similar areas. 

(v) Significant nexus. The term 

significant nexus means that a water, 

including wetlands, either alone or in 

combination with other similarly 

situated waters in the region, 

significantly affects the chemical, 

physical, or biological integrity of a 

water identified in paragraphs (1)(i) 

through (iii) of this definition. The term 

‘‘in the region’’ means the watershed 

that drains to the nearest water 

identified in paragraphs (1)(i) through 

(iii) of this definition. For an effect to be 

significant, it must be more than 

speculative or insubstantial. Waters are 

similarly situated when they function 

alike and are sufficiently close to 

function together in affecting 

downstream waters. For purposes of 

determining whether or not a water has 

a significant nexus, the water’s effect on 

downstream (1)(i) through (iii) waters 

shall be assessed by evaluating the 

aquatic functions identified in 

paragraphs (3)(v)(A) through (I) of this 

definition. A water has a significant 

nexus when any single function or 

combination of functions performed by 

the water, alone or together with 

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similarly situated waters in the region, 

contributes significantly to the 

chemical, physical, or biological 

integrity of the nearest water identified 

in paragraphs (1)(i) through (iii) of this 

definition. Functions relevant to the 

significant nexus evaluation are the 

following: 

(A) Sediment trapping, 

(B) Nutrient recycling, 

(C) Pollutant trapping, transformation, 

filtering, and transport, 

(D) Retention and attenuation of flood 

waters, 

(E) Runoff storage, 

(F) Contribution of flow, 

(G) Export of organic matter, 

(H) Export of food resources, and 

(I) Provision of life cycle dependent 

aquatic habitat (such as foraging, 

feeding, nesting, breeding, spawning, or 

use as a nursery area) for species located 

in a water identified in paragraphs (1)(i) 

through (iii) of this section. 

(vi) Ordinary high water mark. The 

term ordinary high water mark means 

that line on the shore established by the 

fluctuations of water and indicated by 

physical characteristics such as a clear, 

natural line impressed on the bank, 

shelving, changes in the character of 

soil, destruction of terrestrial vegetation, 

the presence of litter and debris, or 

other appropriate means that consider 

the characteristics of the surrounding 

areas. 

(vii) High tide line. The term high tide 

line means the line of intersection of the 

land with the water’s surface at the 

maximum height reached by a rising 

tide. The high tide line may be 

determined, in the absence of actual 

data, by a line of oil or scum along shore 

objects, a more or less continuous 

deposit of fine shell or debris on the 

foreshore or berm, other physical 

markings or characteristics, vegetation 

lines, tidal gages, or other suitable 

means that delineate the general height 

reached by a rising tide. The line 

encompasses spring high tides and other 

high tides that occur with periodic 

frequency but does not include storm 

surges in which there is a departure 

from the normal or predicted reach of 

the tide due to the piling up of water 

against a coast by strong winds such as 

those accompanying a hurricane or 

other intense storm. 

* * * * * 

PART 401—GENERAL PROVISIONS 

■ 22. The authority citation for part 401 

is revised to read as follows: 

Authority: 33 U.S.C. 1251 et seq. 

■ 23. Section 401.11 is amended by 

revising paragraph (l) to read as follows: 

§ 401.11 General definitions. 

* * * * * 

(l) The term navigable waters means 

the waters of the United States, 

including the territorial seas. 

(1) For purposes of the Clean Water 

Act, 33 U.S.C. 1251 et seq. and its 

implementing regulations, subject to the 

exclusions in paragraph (l)(2) of this 

section, the term ‘‘waters of the United 

States’’ means: 

(i) All waters which are currently 

used, were used in the past, or may be 

susceptible to use in interstate or foreign 

commerce, including all waters which 

are subject to the ebb and flow of the 

tide; 

(ii) All interstate waters, including 

interstate wetlands; 

(iii) The territorial seas; 

(iv) All impoundments of waters 

otherwise identified as waters of the 

United States under this section; 

(v) All tributaries, as defined in 

paragraph (l)(3)(iii) of this section, of 

waters identified in paragraphs (l)(1)(i) 

through (iii) of this section; 

(vi) All waters adjacent to a water 

identified in paragraphs (l)(1)(i) through 

(v) of this section, including wetlands, 

ponds, lakes, oxbows, impoundments, 

and similar waters; 

(vii) All waters in paragraphs 

(l)(1)(vii)(A) through (E) of this section 

where they are determined, on a casespecific basis, to have a significant 

nexus to a water identified in 

paragraphs (1)(i) through (iii) of this 

section. The waters identified in each of 

paragraphs (l)(1)(vii)(A) through (E) of 

this section are similarly situated and 

shall be combined, for purposes of a 

significant nexus analysis, in the 

watershed that drains to the nearest 

water identified in paragraphs (l)(1)(i) 

through (iii) of this section. Waters 

identified in this paragraph shall not be 

combined with waters identified in 

paragraph (l)(1)(vi) of this section when 

performing a significant nexus analysis. 

If waters identified in this paragraph are 

also an adjacent water under paragraph 

(l)(1)(vi), they are an adjacent water and 

no case-specific significant nexus 

analysis is required. 

(A) Prairie potholes. Prairie potholes 

are a complex of glacially formed 

wetlands, usually occurring in 

depressions that lack permanent natural 

outlets, located in the upper Midwest. 

(B) Carolina bays and Delmarva bays. 

Carolina bays and Delmarva bays are 

ponded, depressional wetlands that 

occur along the Atlantic coastal plain. 

(C) Pocosins. Pocosins are evergreen 

shrub and tree dominated wetlands 

found predominantly along the Central 

Atlantic coastal plain. 

(D) Western vernal pools. Western 

vernal pools are seasonal wetlands 

located in parts of California and 

associated with topographic depression, 

soils with poor drainage, mild, wet 

winters and hot, dry summers. 

(E) Texas coastal prairie wetlands. 

Texas coastal prairie wetlands are 

freshwater wetlands that occur as a 

mosaic of depressions, ridges, 

intermound flats, and mima mound 

wetlands located along the Texas Gulf 

Coast. 

(viii) All waters located within the 

100-year floodplain of a water identified 

in (l)(1)(i) through (iii) of this section 

and all waters located within 4,000 feet 

of the high tide line or ordinary high 

water mark of a water identified in 

paragraphs (l)(1)(i) through (v) of this 

section where they are determined on a 

case-specific basis to have a significant 

nexus to a water identified in 

paragraphs (l)(1)(i) through (iii) of this 

section. For waters determined to have 

a significant nexus, the entire water is 

a water of the United States if a portion 

is located within the 100-year 

floodplain of a water identified in 

paragraphs (l)(1)(i) through (iii) of this 

section or within 4,000 feet of the high 

tide line or ordinary high water mark. 

Waters identified in this paragraph shall 

not be combined with waters identified 

in paragraph (l)(1)(vi) of this section 

when performing a significant nexus 

analysis. If waters identified in this 

paragraph are also an adjacent water 

under paragraph (l)(1)(vi), they are an 

adjacent water and no case-specific 

significant nexus analysis is required. 

(2) The following are not ‘‘waters of 

the United States’’ even where they 

otherwise meet the terms of paragraphs 

(l)(1)(iv) through (viii) of this section. 

(i) Prior converted cropland. 

Notwithstanding the determination of 

an area’s status as prior converted 

cropland by any other Federal agency, 

for the purposes of the Clean Water Act, 

the final authority regarding Clean 

Water Act jurisdiction remains with 

EPA. 

(ii) The following ditches: 

(A) Ditches with ephemeral flow that 

are not a relocated tributary or 

excavated in a tributary. 

(B) Ditches with intermittent flow that 

are not a relocated tributary, excavated 

in a tributary, or drain wetlands. 

(C) Ditches that do not flow, either 

directly or through another water, into 

a water identified in paragraphs (l)(1)(i) 

through (iii) of this section. 

(iii) The following features: 

(A) Artificially irrigated areas that 

would revert to dry land should 

application of water to that area cease; 

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(B) Artificial, constructed lakes and 

ponds created in dry land such as farm 

and stock watering ponds, irrigation 

ponds, settling basins, fields flooded for 

rice growing, log cleaning ponds, or 

cooling ponds; 

(C) Artificial reflecting pools or 

swimming pools created in dry land; 

(D) Small ornamental waters created 

in dry land; 

(E) Water-filled depressions created in 

dry land incidental to mining or 

construction activity, including pits 

excavated for obtaining fill, sand, or 

gravel that fill with water; 

(F) Erosional features, including 

gullies, rills, and other ephemeral 

features that do not meet the definition 

of tributary, non-wetland swales, and 

lawfully constructed grassed waterways; 

and 

(G) Puddles. 

(iv) Groundwater, including 

groundwater drained through 

subsurface drainage systems. 

(v) Stormwater control features 

constructed to convey, treat, or store 

stormwater that are created in dry land. 

(vi) Wastewater recycling structures 

constructed in dry land; detention and 

retention basins built for wastewater 

recycling; groundwater recharge basins; 

percolation ponds built for wastewater 

recycling; and water distributary 

structures built for wastewater 

recycling. 

(3) In this paragraph (l), the following 

terms apply: 

(i) Adjacent. The term adjacent means 

bordering, contiguous, or neighboring a 

water identified in paragraphs (l)(1)(i) 

through (v) of this section, including 

waters separated by constructed dikes or 

barriers, natural river berms, beach 

dunes, and the like. For purposes of 

adjacency, an open water such as a 

pond or lake includes any wetlands 

within or abutting its ordinary high 

water mark. Adjacency is not limited to 

waters located laterally to a water 

identified in paragraphs (l)(1)(i) through 

(v) of this section. Adjacent waters also 

include all waters that connect segments 

of a water identified in paragraphs 

(l)(1)(i) through (v) or are located at the 

head of a water identified in paragraphs 

(l)(1)(i) through (v) of this section and 

are bordering, contiguous, or 

neighboring such water. Waters being 

used for established normal farming, 

ranching, and silviculture activities (33 

U.S.C. 1344(f)) are not adjacent. 

(ii) Neighboring. The term 

neighboring means: 

(A) All waters located within 100 feet 

of the ordinary high water mark of a 

water identified in paragraphs (l)(1)(i) 

through (v) of this section. The entire 

water is neighboring if a portion is 

located within 100 feet of the ordinary 

high water mark; 

(B) All waters located within the 100- 

year floodplain of a water identified in 

paragraphs (l)(1)(i) through (v) of this 

section and not more than 1,500 feet 

from the ordinary high water mark of 

such water. The entire water is 

neighboring if a portion is located 

within 1,500 feet of the ordinary high 

water mark and within the 100-year 

floodplain; 

(C) All waters located within 1,500 

feet of the high tide line of a water 

identified in paragraphs (l)(1)(i) or (iii) 

of this section, and all waters within 

1,500 feet of the ordinary high water 

mark of the Great Lakes. The entire 

water is neighboring if a portion is 

located within 1,500 feet of the high tide 

line or within 1,500 feet of the ordinary 

high water mark of the Great Lakes. 

(iii) Tributary and tributaries. The 

terms tributary and tributaries each 

mean a water that contributes flow, 

either directly or through another water 

(including an impoundment identified 

in paragraph (l)(1)(iv) of this section), to 

a water identified in paragraphs (l)(1)(i) 

through (iii) of this section that is 

characterized by the presence of the 

physical indicators of a bed and banks 

and an ordinary high water mark. These 

physical indicators demonstrate there is 

volume, frequency, and duration of flow 

sufficient to create a bed and banks and 

an ordinary high water mark, and thus 

to qualify as a tributary. A tributary can 

be a natural, man-altered, or man-made 

water and includes waters such as 

rivers, streams, canals, and ditches not 

excluded under paragraph (l)(2) of this 

section. A water that otherwise qualifies 

as a tributary under this definition does 

not lose its status as a tributary if, for 

any length, there are one or more 

constructed breaks (such as bridges, 

culverts, pipes, or dams), or one or more 

natural breaks (such as wetlands along 

the run of a stream, debris piles, boulder 

fields, or a stream that flows 

underground) so long as a bed and 

banks and an ordinary high water mark 

can be identified upstream of the break. 

A water that otherwise qualifies as a 

tributary under this definition does not 

lose its status as a tributary if it 

contributes flow through a water of the 

United States that does not meet the 

definition of tributary or through a nonjurisdictional water to a water identified 

in paragraphs (l)(1)(i) through (iii) of 

this section. 

(iv) Wetlands. The term wetlands 

means those areas that are inundated or 

saturated by surface or groundwater at 

a frequency and duration sufficient to 

support, and that under normal 

circumstances do support, a prevalence 

of vegetation typically adapted for life 

in saturated soil conditions. Wetlands 

generally include swamps, marshes, 

bogs, and similar areas. 

(v) Significant nexus. The term 

significant nexus means that a water, 

including wetlands, either alone or in 

combination with other similarly 

situated waters in the region, 

significantly affects the chemical, 

physical, or biological integrity of a 

water identified in paragraphs (l)(1)(i) 

through (iii) of this section. The term 

‘‘in the region’’ means the watershed 

that drains to the nearest water 

identified in paragraphs (l)(1)(i) through 

(iii) of this section. For an effect to be 

significant, it must be more than 

speculative or insubstantial. Waters are 

similarly situated when they function 

alike and are sufficiently close to 

function together in affecting 

downstream waters. For purposes of 

determining whether or not a water has 

a significant nexus, the water’s effect on 

downstream (1)(i) through (iii) waters 

shall be assessed by evaluating the 

aquatic functions identified in 

paragraphs (l)(3)(v)(A) through (I) of this 

section. A water has a significant nexus 

when any single function or 

combination of functions performed by 

the water, alone or together with 

similarly situated waters in the region, 

contributes significantly to the 

chemical, physical, or biological 

integrity of the nearest water identified 

in paragraphs (l)(1)(i) through (iii) of 

this section. Functions relevant to the 

significant nexus evaluation are the 

following: 

(A) Sediment trapping, 

(B) Nutrient recycling, 

(C) Pollutant trapping, transformation, 

filtering, and transport, 

(D) Retention and attenuation of flood 

waters, 

(E) Runoff storage, 

(F) Contribution of flow, 

(G) Export of organic matter, 

(H) Export of food resources, and 

(I) Provision of life cycle dependent 

aquatic habitat (such as foraging, 

feeding, nesting, breeding, spawning, or 

use as a nursery area) for species located 

in a water identified in paragraphs 

(l)(1)(i) through (iii) of this section. 

(vi) Ordinary high water mark. The 

term ordinary high water mark means 

that line on the shore established by the 

fluctuations of water and indicated by 

physical characteristics such as a clear, 

natural line impressed on the bank, 

shelving, changes in the character of 

soil, destruction of terrestrial vegetation, 

the presence of litter and debris, or 

other appropriate means that consider 

the characteristics of the surrounding 

areas. 

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Federal Register / Vol. 80, No. 124 / Monday, June 29, 2015 / Rules 37127 

(vii) High tide line. The term high tide 

line means the line of intersection of the 

land with the water’s surface at the 

maximum height reached by a rising 

tide. The high tide line may be 

determined, in the absence of actual 

data, by a line of oil or scum along shore 

objects, a more or less continuous 

deposit of fine shell or debris on the 

foreshore or berm, other physical 

markings or characteristics, vegetation 

lines, tidal gages, or other suitable 

means that delineate the general height 

reached by a rising tide. The line 

encompasses spring high tides and other 

high tides that occur with periodic 

frequency but does not include storm 

surges in which there is a departure 

from the normal or predicted reach of 

the tide due to the piling up of water 

against a coast by strong winds such as 

those accompanying a hurricane or 

other intense storm. 

* * * * * 

[FR Doc. 2015–13435 Filed 6–26–15; 8:45 am] 

BILLING CODE 6560–50–P 

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