U.S. Environmental Protection Agency 

Documentation of OMB Review Under Executive Order 12866 

Title of Action: 

Docket#: FRL#: RIN:

This action was submitted to the Office of Management and Budget (OMB) for review under Executive Order (E.O.) 

12866, titled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Whenever EPA makes publicly available 

a regulatory action that was reviewed under E.O. 12866, section 6(a)(3)(E) of the E.O. directs the Agency to also: 

(1) Make available to the public a copy of the information that was provided to OMB’s Office of Information and 

Regulatory Affairs (OIRA) for review under the E.O., i.e., the text of the draft regulatory action and, if applicable, 

an assessment of the potential costs and benefits, as well as additional information for those actions that are 

determined to be economically significant under the E.O. (Information requirements are described in sections 

6(a)(3)(B) and (C)). 

(2) Identify for the public any substantive changes between the draft submitted to OIRA and the action that was 

subsequently issued, using a method that is complete, clear, and simple. 

(3) Identify for the public those substantive changes made at the suggestion or recommendation of OIRA.

For this regulatory action, were substantive changes made to information reviewed under E.O. 

12866? [Please check the appropriate answer.]

No. [In the docket, include the information identified in item (1) below.]

Yes. [In the docket, include the information identified in items (1) – (3) below.]

Accordingly, the Agency has included this form and the following information in the public 

docket for this regulatory action: [Please check the appropriate information.]

(1) A copy of the information that was provided to OIRA for review under the E.O. 

(2) Documentation of any substantive changes made to the draft regulatory text that was 

submitted to OIRA when compared with what was subsequently made publicly available.

The documentation is provided on the pages following this form. Changes made at the 

suggestion or recommendation of OIRA, if any, are clearly identified through attribution to 

OIRA. EPA has used one or more of the following methods to note changes: [Select the 

appropriate option(s).]

(a) Redline-Strikeout – A copy of the draft regulatory action submitted, using redlinestrikeout to show the substantive changes that were made.

(b) Hand Markup – A copy of the draft regulatory action submitted, using handwritten notes 

to show the substantive changes that were made.

(c) Note to the file - A document that identifies the substantive changes that were made, 

with page and paragraph references to the draft regulatory action that was submitted.

If you have any questions about this regulatory action or this documentation, please call the 

contact:

Name: Email: Phone: 

Revised 05/05/2010 

Definition of “Waters of the United States” Under the Clean Water Act

EPA-HQ-OW- 2011-0880 9901-47-OW 2040- AF30

Donna Downing CWAwaters@epa.gov 202–566–2428
Documentation of OMB Review Under Executive Order 12866 for Definition of “Waters of the United 

States” Under the Clean Water Act, Docket ID No. EPA-HQ-OW- 2011-0880

Note to the File

Substantial Changes Made to the Draft During E.O. 12866 Review

• The proposed rule text regarding nonjurisdictional ditches was changed so that “[d]itches that are 

excavated wholly in uplands, drain only uplands, and have less than perennial flow” are proposed 

to not be jurisdictional instead of upland ditches that “have no more than ephemeral flow,” which 

was in the version that went into interagency review (emphases added).

• The proposed rule text was clarified to make explicit that tributaries to jurisdictional 

impoundments are also “waters of the United States.” These are not substantive changes from the 

version that went into interagency review.

• Changes to preamble language were made to include a more detailed discussion of subsurface 

flows and to clarify that groundwater is not a “water of the United States.” These are not 

substantive changes from the version that went into interagency review.

• Added additional discussion about how to determine whether an “other water” has a significant 

nexus to the preamble. This is not a substantive change to the version that went into interagency 

review.

• The preamble includes an insertion of options for addressing “other waters” in addition to the 

proposed “case specific” approach and asks for comments on these alternative approaches. 

(Changes made at the request of OMB)