U.S. Environmental Protection Agency


### Documentation of OMB Review Under Executive Order 12866 Title of Action: Clean Water Rule: Definition of “Waters of the United States”
Docket#: EPA-HQ-OW-2011-0880 FRL#: FRL-9927-20-OW RIN: 2040-AF30 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: Donna Downing Email: CWAwaters@epa.gov Phone: 202-566-2428 Revised 05/05/2010*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Page 1 of 186 EO12866_CWR_2040-AF30_Final_20150403 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-9901-47-OW] [RIN 2040- AF30]

Clean Water Rule: Definition of “Waters of the United States”

AGENCIES: Environmental Protection Agency (EPA); and U.S. Army Corps of Engineers, Department of the Army, Department of Defense

.

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), 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*** E.O. 12866 Review

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Page 2 of 186 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 clar ifying the scope of “waters of the United States” protected under the Act.

EFFECTIVE DATE: This rule is effective on [ 60 days after Fed eral Register publication ] . In accordance with Section 509 of the Clean Water Act, review of this action, a n “other limitation ” under section 301 of the Act, may be had by any interested person in the Circuit Courts of Appeals of the United States within 120 days.

FOR FURTHER INFORMATION CONTACT : Ms. Donna Downing, Office of Water (4502

– T), Environmental Protection Agency, 1200 P ennsylvania Avenue, NW, Washington, DC 20460; telephone number 202

– 566

– 2428; e

- mail address: CWAwaters@epa.gov. 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: The final rule does not e stablish 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 Pollution Discharge Elimination System (NPDES) permit program, the section 404 permit program for discharge of dredged or fill material, and the section 311 oil spill*** E.O. 12866 Review

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Page 3 of 186 prevention and clean

- up 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 to administer the NPDES program under section 402, and two states administer the section 404
program. All states and forty tribes have developed water quality standards under the CWA for waters within their boundaries. The scope of regulatory jurisdiction in this rule is narrower than that under the existi ng regulation

. F ewer 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 jurisdict ion, reducing the instances in which 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.

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 Final Rule Issued?
II. Executive Summary
III. Significant Nexus Determinations*** E.O. 12866 Review

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Page 4 of 186 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
I V

. Definition of Waters of the United States
A. Summary of Final 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 A re N ot Waters of the United States
V. Economic Impacts
V I

. Related Acts of Congress, Executive Orders, and Agency Initiatives
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism*** E.O. 12866 Review

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Page 5 of 186 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 Pop ulations
K. Congressional Review Ac t L. Environmental Doc umentation

I. General Information A. How Can I Get Copies of This Document and Related Information ?
1. Docket. EPA and the Corps of Engineers have established an official public docket for this action under Docket Id. No. EPA

- HQ

- OW

- 2011

- 0880. The official public docket consists of the document s specifically referenced in this action, any public comments received, and other information related to this action. The official public docket also incl udes 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.*** E.O. 12866 Review

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Page 6 of 186 NW, Washington , DC 20004. This Docket Facility is open from 8:30 a.m. 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 Fe deral 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 comm ent 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 th e 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 d ocket 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 T his Rule Issued? The authority for this rule is the Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq
.

II. Executive Summary In this final rule, EPA and the Corps clarify the scope of “waters of the United States” that are protected under the Clean Water Act (CWA), using the text of the statute, Supreme Court decisions, the best available peer

- reviewed science, public input, and the agencies’ technical expertise and experience in implementing the statute. This rule makes the process of ide ntifying waters protected under the CWA easier to understand, m ore predictable, and*** E.O. 12866 Review

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Page 7 of 186 consistent with the law and peer

- reviewed scien c e, 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,” 33 U.S.C. § 1251(a), and to complement statutes that protect the navigability of waters , such as Rivers and Harbors Act s. The CWA i s 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 wa ters that are navigable in fact. Peer

- reviewed science and practical experience demonstrate that upstream waters, including headwaters and wetlands, can significantly impact the chemical, physical, and biological integrity of downstream
waters

– 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 wa ters 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 be st 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 throug h clearer definitions and increased use of bright

- line rules. The agencies emphasize that, while the CWA establishes permitting requirements for covered waters to ensure protection of water quality, these requirements are only triggered when a person disc harges a pollutant to the*** E.O. 12866 Review

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Page 8 of 186 covered water. In the absence of a pollutant discharge that would pollute, degrade, or destroy a covered water, the CWA does not impose permitting restrictions on the use of such water. Additionally , Congress has exempted certain discharges associated with farming, ranching, and forestry practices from needing CWA permits . Finally, even where waters are covered by the CWA, the agencies have adopted many streamlined regulatory requirements to simplify and expedite complianc e through the use of measures such as general permits and
st andardized mitigation measures. The agencies will continue to develop general permits and simplified procedures, particularly as they affect crossings of ephemeral and intermittent tributaries 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 Supreme Court has issued three decisions that provide crit ical 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’ eco logical 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 bro ad 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*** E.O. 12866 Review

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Page 9 of 186 chose to define the waters covered by the Act broadly.” Id. at 132

- 33 ( citing Senate Report 92

- 414).
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 de cisions 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 protecti ng 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 Rapan os 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 stated 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 wat er 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 nav igable in fact or that could reasonably be so made.” Id . at 759 ( 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*** E.O. 12866 Review

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Page 10 of 186 with similarly situated [wet]lands in the region, significantly affect the chemical, physical, and bio logical integrity of other covered waters more readily understood as ‘navigable.’” 547 U.S. at
780. The agencies’ determination of what constitutes a “significant nexus” is grounded in Justice Kennedy’s opinion. At the core of the “significant nexus” a nalysis, the protection of upstream waters must be critical to maintaining the integrity of the downstream waters. These upstream waters function as integral parts of the aquatic environment, and if these waters are polluted or destroyed there is a signif icant effect downstream. 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 insubstantia l, the “significan t nexus” would not be present. The “significant nexus” standard articulated and refined in these Supreme Court opinions is the touchstone for the agencies’ interpretation of the CWA’s jurisdictional scope. In response to these opini ons, the agencies issued guidance in 2003 (post

- SWANCC ) and 2008 (post

Rapanos ) . However, these two guidance documents are not effective in providing the public or agency staff with the kind of information needed to ensure timely, consistent, and predicta ble jurisdictional determinations

. Many waters are currently subject to case

- specific 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, virtually all waters and wetlands across the country theoretically could be subject to a case

- specific jurisdictional determination

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Page 11 of 186 M embers 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 the value of this rulemaking effort. 1 In this final rule, the agencies are responding to those requests from across t h e country to m ake the process of identifying waters protected under the CWA easier to understand, m ore predictable, and m ore consistent with the law and peer

- reviewed scien c e. The agencies proposed a rule clarifying the scope of waters of the United States in April, 2014, and solicited c omments 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 ap proaches to specific jurisdictional questions, and many of t hese commenters and stakeholders urged EPA to improve upon the April 2014 proposal, by providing more bright lines 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.

1 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.*** E.O. 12866 Review

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Page 12 of 186 The agencies’ interpretation of the CWA’s scope in this final rule i s informed by the best available peer

- reviewed science

– particular ly as that science informs the policy judgment s and legal interpretations as to which waters have a “significant nexus” with traditional navigable
waters , interstate waters, and the territo rial seas. The relevant science on the relationship and downstream effects of waters has advanced considerably in recent years. A comprehensive report entitled “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Sc ientific Evidence” 2 (hereafter the Science Report) synthesizes the peer

- reviewed science

. The Science Report provides much of the technical basis for the rule. The Science Report is based on a review of more than 1,200 publications from the peer

- reviewe d literature. 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

.

• T hese variations in the degree of connectivity are a critical cons ideration to the ecological integrity and sustainability of downstream waters , which are fundamental to meeting the Supreme Court’s test of significant nexus.

2 U.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, D.C.: U.S. Environmental Protection Agency, ( 2015))

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Page 13 of 186 • 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 function s considered over time

.

The Science Report and the SAB review also confirmed that:

• T ributary streams, including pe rennial, 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, physica lly, and biologically connected with downstream rivers and influence the ecological integrity of such rivers

.

• 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

– determ ining which waters have a “significant nexus ”

– requires the integration of this science with policy judgment and 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*** E.O. 12866 Review

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Page 14 of 186 exper tise and practical experie nce 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 , and more consistent , and easily implementable standards to govern administration of the Act, including brighter lines where feasible and appropriate.

Major Rule Provisions

In this final rule, t he agencies define “waters of the United States” to include eight categories of jurisdictional waters. The rule maintains existing exclusions fo r 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 t he CWA. The rule establishes jurisdiction in three basic categories: waters that are jurisdictional in all instances, waters that are jurisdictional but only if they meet specific definitions in the rule, and a narrow ed category of waters subject to case

specific analysis. 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 existi ng procedures that often depend on i ndividual, time

- consuming, and often inconsistent analyses of the relationship between a particular stream, wetland, lake, or other water with downstream navigable waters. The agencies have greatly reduced the extent of waters subject to this individual r eview by carefully incorporating the scientific literature characterizing 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*** E.O. 12866 Review

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Page 1 5 of 186 the ag encies 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 categorie s 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 experience and expertise as th e agencies implement t he 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 categories of jurisdictional waters, traditional navigable waters, interstate
waters, and the territorial seas, are jurisdictional by rule in all cases. Impoundments of jurisdictional waters are also jurisdictional by rule in all cases. The waters in the next two categories, “tributaries” and “adjacent” waters , are jurisdictional by rule , as defined, because the science confirms that as defined 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 categories of jurisdictional waters ar e those waters subject to case

- specific analysis to determine whether they have a significant nexus to traditional navigable waters, interstate waters, or the territorial seas , either alone or in combination with similarly situate d waters in the region. The major elements of the final rule are briefly summarized here.*** E.O. 12866 Review

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Page 16 of 186 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 S tates.” 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 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 i mportant 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 suc h 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 covers, as tributaries, only those features that science tells us function as a tributary and that meet the significant nexus test articulated by Justice Kennedy. Features not meeting this legal and scientific test are not jurisdictional under this rule. The rule continues the*** E.O. 12866 Review

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Page 17 of 186 current policy of regulating ditches tha t are constructed in tributaries or are relocated tributaries, or that science clearly demonstrates are functioning as a tributary . These waters affect the chemical, physical, and biological integrity of downstream waters. T he rule further reduces existi ng confusion and inconsistency regarding the regulation of ditches by explicitly excluding certain categories of ditches, such as ditches that flow only after precipitation and most roadside ditches. This rule appropriately reduces regulatory burdens whil e minimizing costs for states, tribes, and municipalities charged with maintaining the nation’s roads.

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 the final rule, “adjacent” means bordering, contiguous, or neighboring, including waters separated from othe r “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. “Adjacent” waters do not include waters that are subject to established, normal farming , silviculture, and ranching activities (33 U.S.C. § 1344(f) (1) ). The final rule estab lishes 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”:*** E.O. 12866 Review

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Page 18 of 186 (1) Waters located in whole or in part w ithin 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

. (2) Waters located in whole or in part in the 100

- year floodplain (i.e., the area with a one percent annual chance of flooding ) 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 (“floodplain waters ”). (3) Waters located in who le or in part within 1,500 feet of the high tide line or the ordinary high water mark of a tidally

- influenced traditional navigable water, including the Great Lakes , or territorial sea.

The agencies emphasize that the rule covers as adjacent waters onl y those waters that currently available science demonstrates possess the requisite connection to downstream waters and function as a system to protect the chemical, physical and biological integrity of those
waters. The agencies recognize that the establi shment of “bright line” thresholds 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 agencie s recognize that there are individual waters outside of the “neighboring” limits stated above where the science may*** E.O. 12866 Review

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Page 19 of 186 demonstrate through a case

- specific analysis that there exists a significant nexus to a downstream traditional navigable water, interstate w ater, or the territorial seas. How ever, these waters are not determined jurisdictional by rule and will be evaluated through a case

- specific analysis. The strength of the science and the significance of the nexus will be established on a case

- specific b asis 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
Un ited States.” This category of case

- specific waters was determined using 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 jurisd ictional determinations.
U nder the significant nexus standard articulated in the Supreme Court opinion s, wa ters are “waters of the United S tates” 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 indiv idually, but can when warranted be made in combination with other waters where waters operate as a system. 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 signific ant nexus analysis and

are considered similarly situated by rule because they perform similar functions and are located sufficiently close together in the watershed to function as a single system in affecting downstream waters. Th ese five types of waters are prairie potholes, Carol ina and Delmarva bays ,*** E.O. 12866 Review

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Page 20 of 186 pocosins, western vernal pools in California , and Texas coastal prairie wetlands

. Supported by Justice Kennedy’s opinion in Rapanos , the agencies determined that s uch waters should be analyzed “in combination” ( as a group, rather t han 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, inte rstate waters, or territorial seas.
T he final rule provides that waters within 4,000 feet of the high tide line or the ordinary high water mar k of a traditional navigable water , interstate water, the territorial seas, impoundments, or covered tributary a re subject to case specific significant nexus determinations. The science available today does not establish that waters beyond those defined as “adjacent” are jurisdictional by rule under the CWA, but the agencies’ experience and expertise indicate that there are waters out to 4,000 feet where the scie nce demonstrates that they often have a significant effect on downstream waters. In circumstances where waters within 4, 0 00 feet of the high tide line or ordinary high water mark are subject to a case

- spec ific significant nexus analysis and such waters may be evaluated as “similarly situated,” it must be first demonstrated that these waters perform similar functions and are located sufficiently close to each other to affect the integrity of the downstream

w aters. 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 “simil arly situated” analysis is conducted where it is determined that there is a likelihood that there are waters that function as a system to affect downstream water integrity. To provide greater clarity and transparency in determining what functions will be considered in determining what*** E.O. 12866 Review

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Page 21 of 186 constitutes a significant nexus, the fina l rule lists specific functions that the agencies will consider. The agencies recognize that in establishing the 4,000 feet

- foot “bright line” threshold for these case

- specific significant nexus determinations in the rule, the agencies are carefully appl ying the available science. The agencies will work with states to more closely evaluate
state

- specific circumstances that may be present across the country and, as appropriate, encourage states to develop rules that reflect their circumstances and emergin g 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 only ministerial changes are made . These two exclusions remain substantively and operationally unchanged. The agencies add exclusions for waters and features previously identi fied as generally exempt in preamble language from Federal Register notices by the Corps on November 13, 1986, and by EPA on June 6, 1988 . This is the first time these exclusions have been established by rule. The agencies for the first time also establish by rule that certain ditches are excluded from jurisdiction, including ephemeral and intermittent roadside ditches that drain*** E.O. 12866 Review

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Page 22 of 186 federal, state, county or municipal road s , and that are not a relocated tributary or ex cavated in a tributary . 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 ne ver the agencies’ intent, such as stormwater control features constructed to con vey, treat, or store stormwater, and cooling ponds that are created in dry land. These exclusions reflect current agencies’ practice, and their inclusion in the rule as specif ically 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 enforcemen t 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 co nsult with the Administrator with respect to the exercise of the Administra tor’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. 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 qua lity certification process.*** E.O. 12866 Review

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Page 23 of 186 States and 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 or tribe to establish more protective standards or limits than the Federal CWA. Many states and tribes, for example, regulate groundwater, and some others protect wetlands that are vital to the ir environment and economy but which are outside the regulatory 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 wha t 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 ag encies’ overall interpretive approach to applying the significant nexus standard. Section IV (Definition of Waters of the United States) explains the provisions of final rule, including subsections on each of the major elements of the rule. Section V sum marizes the economic analysis of the rule and Section VI addresses Related Acts of Congress, Executive Orders and Agency Initiative s.

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Page 24 of 186 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 caselaw, 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 Supre me 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, and biological integrity of traditional navigable waters, interst ate 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 to assess when making a significant nexus determ ination; 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 na vigable 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 tradit ional 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 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 territ orial seas when making a case

- specific significant nexus analysis; and (2)
waters within 4,000 feet of the high tide line or ordinary high water mark of traditional navigable*** E.O. 12866 Review

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Page 25 of 186 waters, interstate waters , the territorial seas , impoundments or covered tributar ies . The rule establishes a definition of significant nexus , based on Supreme Court opinions and the science, to use when making these case

- specific determinations. Significant nexus is not a purely a scientific determination and neither is the agencies’ interpretation of the scope of “waters of the United States. ” Further, 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 lines 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 t his 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 determi nations 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 lines 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.” 33 U.S.C. § 1251(a). The agencies ’ longstanding regulations defin e “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.*** E.O. 12866 Review

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Page 26 of 186 In United States v. Riverside Bayview Homes, 474 U.S. 121 (19 85) ( 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 to which they ar e 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 essenti al 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 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 nec essarily 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
t his continuu m 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 defini ng precise bounds to regulable waters, the Corps' ecological judgment about the relationship between waters and their adjacent wetlands*** E.O. 12866 Review

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Page 27 of 186 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” non

- navigable 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 Con gress’ 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 “it was the significant nexus between the wetlands and ‘navigable wa ters’ 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 , t he Court again addressed the term “waters of the United States” in Rapanos v. United States , 547 U.S. 715 (2006) ( Rap a n os )

. Rapanos involved two consolidated cases in which the CWA had been applied to wetlands adjacent to non

- navigable tributaries of traditional navigable waters. All Members of the Court agre ed 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 c ontinuously 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*** E.O. 12866 Review

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Page 28 of 186 Rapano s 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 Kenned y 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 i n ‘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 . a t 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 provide s for determining significant nexus for adjacent wetlands i s limited to adjacent wetland s . In addition, the four dissenting Justices in Rapanos , who would have affirmed the court of appeals’ application of the agencies’*** E.O. 12866 Review

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Page 29 of 186 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 that of Justice Kennedy.” 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.
T he agenci es 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 recognize that the Act and the agencies must draw lines “ on this co ntinuu m to find the limit of ‘waters,’” Riverside Bayview at 134, 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 agenci es also consider the statutory language, the statute’s goals , objectives and p olicies , 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*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Page 30 of 186 the current scientific understanding of the connectivity of and mechanisms by which streams and wetlands, singly or in combin ation, affect the chemical, physical, and biological integrity of do wnstream waters . The final Science Report is available 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 consi deration 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. 3 The final peer review report is available on the SAB website, 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 comprised more than 50 members from a variety of sectors including academia, non -profit organizations, foundations,

3 U.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.”)*** E.O. 12866 Review

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Page 31 of 186 state g overnments, 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 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. T he 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. Conseq uently, 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). 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 website addressing the formation of the panel and the set of determinations that were necessary for its formation ( e.g. , no conf licts of interest). In the public notic e of the first public meetings
i nterested 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 133,00 0 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 De cember 2013, and three four

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Page 32 of 186 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 m eeting deliberations that were posted on the SAB website. 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 mad e 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 website for public access. The final Science Rep ort states that c onnectivity 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 bot h 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. T he 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 bi ological functioning of the downstream water bodies from the connections among tributaries, adjacent waters, and case - specific waters and those downstream
waters

. The scientific literature also does not use the terms traditional navigable waters, intersta te 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.*** E.O. 12866 Review

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Page 33 of 186 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 Scien ce 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 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 zo nes and alluvial aquifers. The Science Report presents five major conclusions:

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 wate r 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*** E.O. 12866 Review

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Page 34 of 186 compartments are important sources of water for maintaining baseflow in rivers. In addition to
water, stre ams 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 co mmunities. 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. C hemical, ph ysical, 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 nutrient s that otherwise would be transported directly downstream, thereby increasing nutrient loads and associated impairments due to excess nutrients in downstream waters. Science Report at xxv. 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*** E.O. 12866 Review

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Page 35 of 186 pesticides and metals that can degrade downstream water integrity. In addition to providing effective buffers to protec t 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, a nd contaminants in runoff that could otherwise negatively affect the condition or function of downstream waters. Id. Conclusion 3: Non

- floodplain Wetlands and Open Waters Wetlands and open waters in non

- floodplain landscape settings (“non

- floodplain wetla nds”) 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 orga nisms 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 non

- floodplain 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 b iotic fluxes to downstream waters. These descriptors are influenced by climate,*** E.O. 12866 Review

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Page 36 of 186 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 pro ximity to downstream waters to determine where wetlands occur along the connectivity gradient. At one end of this gradient, the functions of non

- floodplain 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 connectivit y), 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 xxv

- vi. Conclusion 4: Degrees and Determinants of Connect ivity 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 ov er 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 connectivi ty 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 i ntegrity. 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 xxvii.*** E.O. 12866 Review

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Page 37 of 186 Conclusion 5: Cumulative Effects The i ncremental 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 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 o r 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 effe ct of multiple discharges could degrade the integrity of downstream waters.
W hen 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
st ream transports water, removes excess nutrients, 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 a t xxvii

- viii.

SAB Review o f 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. 4 The same SAB Panel

4 U.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*** E.O. 12866 Review

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Page 38 of 186 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 com ments to the Chair of the chartered SAB. A w ork g roup 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 w ork g roup then led the September 2 014 public teleconference discussion of the chartered SAB

. The public had an opportunity to submit oral or written comments during th e se two public meetings. The SAB’s final letter to the EPA Administrator can be found on the SAB website 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 cas e - 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 w ithin the jurisdiction of the Clean Water Act. Tributaries, as a group, exert strong influence on the physical, chemical, and biological integrity

Act

. ” EPA

- SAB

- 14

- 007 , U.S. Environmental Protection Agency, Washington, DC. (“SAB 2014b.”)*** E.O. 12866 Review

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Page 39 of 186 of downstream waters, even though the degree of connectivity is a function of variation in the frequency, dur ation, magnitude, predictability, and consequences of physical, chemical, and biological process.” The Board advised EPA to reconsider the definition of tributaries because not all tributaries have o rdinary high water marks (e.g. , ephemeral streams with ar id and semi

arid 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.” S AB 2014b at 2. 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 s cience 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. 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 wat ers’ as waters of the United States on a case

- specific 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 water s” to jurisdictional waters. The SAB also expressed support for language in one of the options discussed in the preamble to the proposed rule.*** E.O. 12866 Review

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Page 40 of 186 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 infl uence 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.” Id. The Board noted that other sets of wetlands could be identified as “s imilarly 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 have scientific justification.” Id. With regard to ditches, the Board found that there is a lack of s cientific 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 al so 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*** E.O. 12866 Review

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Page 41 of 186 As noted earlier, i n the rule, 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 T echnical S upport D ocument, the relevant Supreme Cour t 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 “water of the United States” by rule. The agencies also determined that additional waters on a case

- specific basis may have a significant nexus to traditional navigable waters, interstate waters, and the territorial seas, either alone or in combination with similarly situated waters. As discussed earlier, significant nexus is not a purely scientific det ermination and neither is the agencies’ interpretation of the scope of “waters of the United States;” instead the agencies’ interpretation is informed by the Science Report and the review and comments of the SAB, but not dictated by them. The rule reflect s the judgment of the agencies when balancing the science, the statute, the Supreme Court opinions, the agencies’ expertise , and the regulatory goals of providing clarity to the public while protecting the environment and public health. Since the Rapanos decision, the agencies have 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 5 00,000 CWA jurisdictional determinations since 2008. Of those, approximately 250,000 have been case

- specific significant nexus determinations. The agencies have made determinations in every state in the country, from the arid West to the trop ics of*** E.O. 12866 Review

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Page 42 of 186 Hawaii, from the Appalachian Mountains in the East to the lush forests of the Northwest. Wi th field staff located across 38 Corps District offices and 10 EPA regional offices, the agencies have almost a decade of nationwide experience in making sign ificant nexus determinations. Through th is 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, phy sical, 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 do wnstream traditional navigable waters, interstate waters or the territorial seas. In addition, these individual jurisdictional determinations have been 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 import ant protection from floodwaters to downstream communit ies 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 mainstem river below. The agencies utilized many tools and many sources of informa tion to help make these 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 do wnstream 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*** E.O. 12866 Review

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Page 43 of 186 flood waters that might otherwise affect downstream waters. Further , the agencies utilize the large body of scientific literature regarding the functions of tributary streams, regardless of their flow permanence, and of wetlands and open waters to inform their e valuations 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, an d other technical factors in implementing Clean Water Act programs. This immersion in the science along with the practical expertise developed through case

- specific determinations across the country and in diverse settings is reflected in the agencies’ c onclusions with respect to waters that have a significant nexus, as well as where the agencies have drawn lines demarking where “waters of the United States” end. 1. Scope of Significant Nexus Analysis Under the significant nexus standard, waters possess the requisite s ignificant 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 scien tific literature , the S upreme 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 situate d , ” and thus should be in 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, and biological integrity of traditional navigable*** E.O. 12866 Review

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Page 44 of 186 waters, interstate waters and 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 s ituated w aters As reflected in the rule’s definition of “significant nexus,” t he agencies determined that it is reasonable to consider waters as “similarly situated” where they perform similar functions that affect downstream waters and are located within the watershed that drains to the nearest traditional nav igable 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 tradition al navigable waters as a landscape unit.
T he 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 f requency of flow are required to create a bed and banks and ordinary high water mark. 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 a nalysis.
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 distances limitations to ensure that the waters are providing simila r functions to downstream*** E.O. 12866 Review

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Page 45 of 186 waters and that the waters are locat ed comparably in the landscape such that t h e agencies’ reasonably judged them to be similarly situated

. For waters for which a case

- specific significant nexus determination is required the

a gencies 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 o f 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 water s 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 down stream 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 contaminati on 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
tra ditional navigable waters, interstate waters, and the territorial seas . Water low in dissolved oxygen cannot support aquatic life. It is widely

- recognized and documented that this phenomenon known as hypoxia has resulted in the devastation of commercial an d recreational*** E.O. 12866 Review

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Page 46 of 186 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 hun dreds of miles downstream. See Technical Support Document. In their 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 t he combined effects of these waters on downstream waters are often only measurable in aggregate.” 5 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 wetland s 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]h e amount of nutrients removed by any one s tream 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

- 10. 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 sou rce 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 wa ter and their location

5 September 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.”)*** E.O. 12866 Review

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Page 47 of 186 in the landscape . This is consistent with the science and existing practice, and effectively meet s the goals of the CWA.
b . In the region Since Justice Kennedy did not define the “region,” t he 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 withi n whose boundaries all precipitation ultimately flows to the nearest single traditional navigable water, interstate water, or the territorial sea. T he agencies determined that because the movement of water from watershed drainage basins to coastal
wat ers, 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 eff ect on the chemical, physical, or biological i ntegrity of a particular traditional navigable water , interstate water, or territorial sea

. The watershed includes all stre ams, 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 analys is 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*** E.O. 12866 Review

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Page 48 of 186 events can have widespread effects within the watershed that collectively impact the integrity and quality of the relevant traditional navigable water, interstate water , or the territorial sea. The functions of the contri buting 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 a t 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 , 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 a ffected 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. T he 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. For example, t he Corps Districts are generally organized based on watersheds

. 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, o r 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 ’ implement ation of the CWA, and the statutory goals underpinning Justice Kennedy’s significant*** E.O. 12866 Review

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Page 49 of 186 nexus framework, the watershed draining to the nearest traditional navigable water, interstate water, or the territorial sea, is the appropriate “region” for a significant nexu s analysis. See the proposed rule preamble and Technical Support Document

.
c. Significantl y affect chemical, physical, or biological integrity The agencies’ definition of the term “significant nexus” in the rule is consistent with language in 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 jurisdictiona l. 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. U nder 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 inte grity 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,” 33 U.S.C. § 1251(a), so if any one is compromised then that is contrary to the statute’s stated ob jective. It would subvert the objective if the CWA only protected waters upon a showing that they had effects on every attribute of the integrity a traditional navigable water, interstate water, or the territorial sea. In the rule ’s definition of “signifi cant nexus , ” the agencies identify the functions that waters provide that can significantly affect the chemical, physical, or biological integrity of*** E.O. 12866 Review

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Page 50 of 186 traditional navigable waters, interstate waters and the territorial seas. Functions to be considered for t he 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, 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 t hese 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 identi fy sediment and nutrients as the primary contaminants in the nation’s
waters. S ediment storage and export via streams to downstream waters is critical for maintaining the river network, including the formation of channel features. Although sediment is ess ential 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*** E.O. 12866 Review

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Page 51 of 186 nutrient loads and associ ated 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 pe sticides 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

ex cessive 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 af fect 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. 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 integri ty 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 integ rity 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.*** E.O. 12866 Review

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Page 52 of 186 Streams, wetlands, and open wate rs 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 res ources 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 navigab le 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 exam ple, headwater streams can provide refuge habitat under adverse conditions, enabling fish to persist and recolonize downstream areas once conditions have improved. These u pstream systems form integral components of downstream food webs, provid ing 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 depende nt aquatic habitat for species located in downstream waters significant ly 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*** E.O. 12866 Review

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Page 53 of 186 wate rs 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 contrib utions 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 func tions 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 downs tream water.

2. Categories of Waters Determined to H ave 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 combinatio n 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 T ributaries The agencies determine based on their scientific and technical expertise that waters meeting the definition of “tributary” in a single point of entry wa tershed are similarly situated and have a significant nexus because they significantly affect the chemic al, physical, and biological integrity of traditional navigable waters, interstate waters, and the territorial seas. As*** E.O. 12866 Review

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Page 54 of 186 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 tradit ional navigable water, interstate w ater, or the territorial seas. Justice Kennedy opined that the requirement of a perceptible ordinary high water mark for tributaries “may well provide a reasonable measure of whether specific minor tributaries bear a suf ficient 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 Justice Kennedy’s perception. 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 a ssert CWA jurisdiction over all such tributaries by rule. Covered t ributaries have a significant impact on the chem ical, p hysical, and biological integrity of waters into which they eventually flow

— for CWA purposes, traditional navigable waters, intersta te 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, a nd organisms to downstream waters

. Covered t ributaries serve to store water, thereby reducing flooding ; provide biogeochemic al functions that help maintain water quality ; trap and transport sediments ; transport, store and modify pollutants ;*** E.O. 12866 Review

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Page 55 of 186 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 t ributaries significantly affect the chemical integrity of traditional navigable waters, interstate waters, and the territorial seas. Covered t ributaries 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 covered tributaries transform, remove, and transport these substances to downstream waters. In turn, these chemical compounds can influence water qualit y, 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 processe s 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 t ributaries 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 t ributaries provide sink functions by trapping chemicals through absorption to sediments in the stream substrate (e.g., phosphorous adsorption to cla y 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.*** E.O. 12866 Review

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Page 56 of 186 Covered t rib utaries 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 sea s 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. Cove red 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 d ownstream waters. Covered t ributaries, 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 tributa ries 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 tributarie s contribute materials to downstream food networks and supporting populations for*** E.O. 12866 Review

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Page 57 of 186 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 covered tributarie s 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 a nd 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 tributar y and a traditional navigable water, interstate water, and the territorial sea is not broken where the tributary flows through a culvert or other structure. The scientific literature recognizes that features that convey water, whether they are natural, mo dified, or constructed, provide substantial connectivity between streams and downstream waters . For example, tributary ditches quickly move water downstream to traditional navigable waters, interstate waters, and the territorial seas d ue to their often st raightened 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 a re 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*** E.O. 12866 Review

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Page 58 of 186 watershed , have a significant nexus with those downstream waters. Thus, in the rule the agencies assert C WA jurisdiction over all covered tributaries as defined. Those covered tributaries are “waters of the United States” without the need for further analysis.
b. Covered A djacent W aters Based on their review of the scien tific literature and the law, the agencies’ determine by rule that covered adjacent waters, as defined, have a significant nexus and are “waters of the United States

. ” T he scien tific 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 e cological connections
to , and interactions with , those waters. Science demonstrates that this functional connectivity is particularly evident where adjacent waters are located with in the floodplain of the traditional navigable water, interstate water, the territorial seas, 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 adjacent waters are effectively and consistently provided to downstream waters. See Technical Support Document. The agencies conclude that all waters meet ing the definition of “adjacent” in the rule are similarly situated for purposes of analyzing whe ther 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 provide similar functions and work together to significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas. Further, because*** E.O. 12866 Review

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Page 59 of 186 the definition of “adjacent” focuses on the proximity of the waters (i.e., those that are located near traditional navigab le 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 reasonable and consistent with the science. The geographic proximity of an “adjacent” water relative to the traditiona l navigab le 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 navigab le waters, interstate waters, the territorial seas , impoundme nts, 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 biologica l 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 adjacent waters can act as water storage areas holding damaging floodwaters or filtering harmful pollutants. These chemi cal, 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 stor age 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*** E.O. 12866 Review

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Page 60 of 186 assimilation, transformation, or sequestration of pollut ants, 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 wat ers 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 rol e 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 ne gatively impact the condition or function of traditional navigable waters, interstate waters, and the territorial seas. Floodplain areas connect aquatic environments through both surface and hyporheic hydrologic flowpaths. Waters in t hese areas are theref ore uniquely situated in watershe ds to receive and process water that pass es 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, ass imilated into wetland plants and animals, transformed into less harmful and/or mobile forms or compounds, or lost to the atmosphere. Wetlands located in
f loodplains store large amounts of sediment and organic matter from upstream and upland areas. In addit ion, 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 oth er pollutants―such as pesticides*** E.O. 12866 Review

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Page 61 of 186 and metals―that can affect downstream water quality. These pollutants enter floodplain wetlands from dry and wet atmospheric deposition, runoff from upland agricultural an d 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 d ownstream 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 connec t 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 rive r 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 larg e - sized 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 wate rs.*** E.O. 12866 Review

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Page 62 of 186 W aters 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 traditi onal navigable waters, interstate waters, or the territorial seas as well as impoundments and covered tributaries , alone or in combination with other covered adjacent wetlands in a watershed have a significant nexus with those downstream waters. Based o n the science and technical expertise and experience, t he agencies determine it is appropriate to protect all adjacent waters as defined in the rule, because those waters are functioning as an integrated system with the downstream traditional navigable wat ers, interstate waters, or the territorial seas and significantly affect such downstream waters. Consequently,
t hese 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 case

- specific basis to determine whether the water is a “water of the*** E.O. 12866 Review

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Page 63 of 186 United States.” First, there are five subcategories of waters

– prairie potholes, Carolina and Delmarva bays, pocosins, western vern al pools in California , and Texas coastal prairie wetlands

– that the agencies conclude must be analyzed “in combination” 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 no more than 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 watersh ed that drains to the nearest (a)(1) through (a)(3) water. 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 sim ilar 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 scientifi c 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 suff iciently close to each other to be reasonably evaluated in combination with regard to their*** E.O. 12866 Review

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Page 64 of 186 effects on the integrity of traditional navigable waters, interstate waters, or the territorial seas. The specified subcategories of waters perform similar function s 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 t he agencies considered to conclude that the subcategories are each similarly situated include the physical capacity of the waters to provi de flood and sediment retention. In determining that the waters in each of the five subcategories were “similarly situ ated,” t he agencies concluded that these subcategories of waters were c o - loca ted to each other or similarly to the tributary system such that the y 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 proposed rule to identify certain subcategories of waters as similarly situated and highlighted these same five subcategories

. It stated, “ [t] here is adequate scientific evidence to support a determination that certain subcategories and types of ‘other waters’ in particular regions of the United State s (e.g., Carolina and Delmarva b ays, Texas coastal prairie wetlands, prairie pothol es, 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 identi fied as ‘simi larly situated.’” SAB 2014b at 3

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Page 65 of 186 The agencies concluded that the specific sub categories of waters listed in paragraph (a)(7) are similarly s ituated for purposes of a case

- specific significant nexus based on the following : (A) 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, 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.

Potholes generally accumulate and retain water effectively due to the low permeability of their underlying soil, which can modulat e 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 potholes is via evapotranspiration, potholes can become water sinks, preventing flow to downstream
waters. Potholes also can accumulate chemicals in overland flow, thereby reducing chemical loading to other bodies of water. When potholes are artificially connected to streams and lakes through drainage, isolation is eliminated and they beco me sources of water and chemicals. Potholes also support a community of highly mobile organisms, from plants to invertebrates that move among potholes and that can biologically connect the entire complex to the river network.*** E.O. 12866 Review

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Page 66 of 1 86 Potholes can be highly connected to other portholes 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 h igh cumulative precipitation over one or more seasons can result in temporary hydrologic connectivity between potholes and from potholes to the tributary system via “fill

- and

- spill” events.

Their density across the landscape varies from region to region a s 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.

P rairie potholes have been determined to be similarly situated b ased on the characteristics of prairie pothole wetlands, including their density on the landscape, their interacti on 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 th eir 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.*** E.O. 12866 Review

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Page 67 of 186 (B) Carolina and Delmarva bays are p onded 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 A tlantic 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
t o 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 cha nneling 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 ultima tely, to streams.

The hydrology in bays allow for denitrification, which could 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*** E.O. 12866 Review

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Page 68 of 186 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 surfici al 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 insect s 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 conclu de 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 functi ons.

(C) The word pocosin comes from the Algonquin Native American word for “swamp on a hill,” and these evergreen shrub and tree

- dominated landscapes are found from*** E.O. 12866 Review

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Page 69 of 186 Virginia to northern Florida, but mainly in North Carolina. Typically , there is no standing w ater 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 contiguous with other wetlands draining into pe rennial streams or estuaries. Other pocosins have been ditched and are directly connected to streams. The draining of pocosins and decreased salinity in estuaries may be having a negative effect on brown shrimp in North Carolina.

The agencies conclude th at 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.*** E.O. 12866 Review

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Page 70 of 186 (D) Western v ernal po ols are shallow, seasonal wetlands that accumulate water during colder, wetter months and gradually dry up during warmer, drier months. Western

v ernal pools are seasonal wetlands from the Pacific Northwest to northern Baja California, Mexico associated wit h topographic depressions, soils with poor drainage, mild, w et winters and hot, dry summers

. The agencies have determined that western vernal California pools in California 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. Despit e differences in geology, climate, and biological communities, some common findings about the hydrologic connectivity of vernal pools in different regions, including w estern vernal pools, contain evidence for temporary or permanent outlets, frequent fillin g 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 biodiversi ty 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*** E.O. 12866 Review

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Page 71 of 186 ver nal pools into streams and other waterbodies during periods of overflow, carried by animal vectors (including humans), or dispersed by wind.

The agencies conclude that western vernal pools are similarly situated based on their close proximity to each oth er 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 landsca pe, and their similar functions.

(E) Along the Gulf of Mexico from western Louisiana to south Texas, freshwater wetlands occur as a mosaic 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 wet lands 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 togeth er 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
f low to those downstream waters. Cumulatively, these wet lands can control nutrient*** E.O. 12866 Review

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Page 72 of 186 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.

I V. Def inition 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 cases. The final rul e 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 Unit ed 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 pro visions 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 longs tanding 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),*** E.O. 12866 Review

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Page 73 of 186 the territorial seas (a)(3), impoundments of jurisdictional waters (a)(4), and covered tributaries (a)(5) and covered adjacent waters (a)(6) as defined. 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 tri butaries or for covered adjacent waters because the agencies determined that these waters have a significant nexus and thus are “waters of the United States.” The agencies emphasize that the finding of jurisdiction for these covered tributaries and adjacen t 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 adjacent waters in the watershed, is significant. The agencie s 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

a nd makes no change to the existing exclusion fo r prior converted cropland

. The rule excludes certain waters and features over which the agencies have generall y not asserted CWA jurisdiction , as well as groundwater , which the agencies have never interprete d 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 cl ear and practical. The final rule provides clear exclusions for certain types of ditches. The final rule also expressly excludes stormwater control features created in dry land and certain wastewater recycling struc tures 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).*** E.O. 12866 Review

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Page 74 of 186 In addition to waters that are categorically “waters of the United States” or categorically excluded under paragraphs (a) and (b), the rule identifies that 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 agenc ies have deter mined to be “similarly situated , ” and thus are to be considered in combination in a significant nexus analysis. Second, the rule specifies in paragraph (a)(8) that waters located no more than 4,000 feet from the high tide line or the ordinar y 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 wate rs are “similarly situated.” As a result, a significant nexus analysis for these waters will include a case

- s pecific assessment of whether there are any similarly situated waters, as well as whether the water , alone or in combination with any waters deter mined to be similarly situated, has a significant nexus to a traditional navigable water, interstate water, or territorial sea. The rule outlines at (c)(5)(A)

- (I) functions relevant to these

case - specific significant nexus analyses. Paragraph (c) of t he r ule 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. 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).*** E.O. 12866 Review

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Page 75 of 186 This rule is effective on [60 days after Federal Register publication]. Unde r existing Corp s’ regulations and guidance , Corps’ approved j urisdictional determinations generally are valid for five years. The agencies do not intend to reopen ex isting approved jurisdictional determinations unless requested to do so by the applicant. All jurisdictional determinations made after [60 days after Federal Register publication] will be made consistent with this 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 n ot 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 b een determined by a Federal court to be navigable

- in

- fact under Federal law;

• are waters currently being used for commercial navigation, including commercial

wa terborne recreation (for example, boat rentals, guided fishing trips, or water ski tournaments);

• have historically been used for commercial navigation, including commercial waterborne recreation; or*** E.O. 12866 Review

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Page 76 of 186 • are susceptible to being used in the future for comm ercial 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_n avigable_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. The agencies note that the Supreme Court concluded that Congre ss en acted the CWA to protect “traditional navigable waters

. ” 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 a gencies have not revised the regulation to address susceptibility, but observe that caselaw has provided a number of considerations and examples that are described further in the Technical Support Document and are reflected in longstanding agencies’ practi ce. A number of commenters expressed concern that the revised definition of “waters of the United States” would alter the scope of waters subject to state and tribal permitting upon assumption of the section 404 permitting program under CWA section 404(g) . The rule does not affect the scope of waters subject to assumption under section 404(g) of the CWA. See CWA section 404(g).

C. Interstate Waters*** E.O. 12866 Review

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Page 77 of 186 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, i nterstate 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 wate rs. Moreover, because interstate waters are covered by the CWA, 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 be cause they have a significant nexus to 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 precurs or 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 navigabl e 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.
T he 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
l egislative 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 int erstate waters or to impose additional*** E.O. 12866 Review

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Page 78 of 186 jurisdictional requirements on interstate waters. 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 wetlands , and waters that have a significant nexus to interstate waters consistent with the framework established by Justice Kennedy in Rapanos for establishing jurisdiction over waters with a significant nexus to traditional navigable waters . Justice Kennedy’s standard seeks to ensure that waters that Congress intended to subject to Federal jurisdiction are indeed covered , both by recognizing that waters and wetlands with a sign ificant 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. As Congress
i ntended to protect interstate waters, the rule also protect s interstate waters by defining “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 orde r to be jurisdictional after Rapanos

. The agencies disagree for the reasons described above and in Appendix B to the proposed rule and the Technical Support Document.

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Page 79 of 186 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 “navigabl e waters” to include the territorial seas at section 502(7). The CWA goes on to define the “territorial seas” 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 se a 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.” As the territorial seas are clearly covered by the CWA (they a re also traditional navigable waters), it is reasonable to use Justice Kennedy’s significant nexus framework to protect t he integrity of the te rritorial seas. The rule reflects this by protecting the tributaries and adjacent waters that flow into the territorial seas

. 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 , t he agencies do not have authority to revise statutory langua ge.

E. Impoundments The existing regulations provide that impoundments of “ waters of the United States ”

rem ain “ waters of the United States ” and the rule does not make any changes to the existing regulatory language

. I mpoundments 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. The Supreme*** E.O. 12866 Review

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Page 80 of 186 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 flow s only about two months per year because of an irrigation diversion structure installed upstream, the Ninth Circuit opined “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 (9 th Cir. 2007), cert. denied , 554 U.S. 918 (2008). As a matter of policy and law, impoundments do not de

- federalize a water, even where there is no longer flow below the impou ndment. The agencies will analyze the stream network, above and below the impoundment, for connection to downstream traditional navigable waters, interstate waters, or the territorial seas. Scientific literature, as well as the agencies’ scientific and t echnical 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
Sta tes” can become jurisdictional if, for example, the impounded waters become navigable

- in

fact and covered under paragraph (a)(1) of the rule.
I mpoundments 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 tributary to a downstream traditional navigable waters, interstate waters, or the territorial seas even where the flow of water might be*** E.O. 12866 Review

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Page 81 of 186 impeded due to the impoundment. See (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

Previous definitions of “waters of the United States” regulated 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 all waters meeting the definition of tributary , unless a water is excluded under paragraph (b), are “waters of the United States” without the need for a separate case

- specific significant nexus evaluation. As explained in Section III. above, c overed tributaries and the functions they provide, alone or in combination with other tributaries in the

wa tershed, 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. 1. What Are the Provisions in the Rule? The rule defines “tributary” by emphasizing the physical characteristics created by sufficient volume, frequency and du ra tion of flow , and that the water contributes flow, either directly or through another water, to a traditional navigable water, interstate water, or the*** E.O. 12866 Review

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Page 82 of 186 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, t o meet th e rule ’s definition of “tributary , ” a water must flow directly or to another water or waters which eventually flow into 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. 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 e xists 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 phot ography or other reliable remote sensing information, or other appropriate information. Under the rule, flow in the tributary may be perennial, intermittent, or ephemeral. Longstanding agencies’ practice considers perennial streams as those with flowing w ater 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*** E.O. 12866 Review

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Page 83 of 186 have both precipitation and groundwater providing p art 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 show s that tributaries regardless of flow permanence 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 territori al seas.
See Technical Support Document. Second, the rule requires two physical indicators of flow: there must be a bed and banks and an additional indicator of ordinary high water mark. This definition of “tributary” includes only those waters the agenc ies 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 t he territorial seas. Thus, the agencies are not defining “waters of the United States” to include all streams that might be considered “tributaries” in the g eneral scientific literature. To provide additional clarity and for ease of use for the public, t he 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 c haracteristics, 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 physic al 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*** E.O. 12866 Review

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Page 84 of 186 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. E xisti ng 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 soi l, 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 regulatio ns. Bed and banks are themselves an indicator of ordinary high water mark , and the definition of “tributary” also requires another indicator of ordinary high water mark

. In many tributaries, the bed is that part of the channel below the ordinary high wa ter 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 serves 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, s everal reliable, well

- established remote sensing sources of informatio n or mapping can assist to establish the presence of water that contributes flow to an (a)(1) through (a)(3) water and provide evidence*** E.O. 12866 Review

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Page 85 of 186 regarding the presence of a bed and bank s 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 US GS topographic 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 l ight detection and ranging (also known as LIDAR) data, and d esktop tools that provide for the hydrologic estimation of a discharge sufficient to c reate 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 bank s and another indicator of ordinary high water mark , or where they correlate, can be used to reasonably conclude the pr esence of a bed and bank s and ordinary high water mark

. Both the USGS topographic data and the NHD data assist to delineate tributaries to (a)(1) through (a)(3) waters. Where one or both of these sources have indicated a “blue line stream” there is an indi cation that the tributary could exhibit a bed and bank s and an other indicator of ordinary high water mark . Where this information is combined with stream order, 6 more

ce rtainty can result. For example, a water that is a second

- o rder stream will be more li kely to

e xhibit a bed and bank s and another indicator of ordinary high water mark as compared to a first

order stream. This informat i on will vary in validity in different parts of the country, so care must be taken to evaluate additional information prior to reasonably conclud ing a bed and bank s or

6 Stream 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 juncti on 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.*** E.O. 12866 Review

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Page 86 of 186 other indicators of ordinary high water mark are associated with the stream. This will be
p articularly 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 bank s and another indicator of ordinary high water mark would be the presence of USGS stream data on the NRCS

c ounty Soil Survey or local stream maps which are mapped independently of the USGS, aerial photography interpr etation, or digital terrain depictions created from LIDAR. See Technical Support Document. Tributaries are observ able 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 photograph ic 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 de position, 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 bank s and other indicators of ordinary high water mark . Visible indicators of run ning water such as rapids, riffles, and pools all indicate the presence of a bed and bank s 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 absen ce of vegetation in a channel. T hese indicators gleaned from aerial photography interp retation can be correlate d with the presence of
USGS streams data in reasonably concluding that a bed and bank s and another indicator of ordinary high water mark are present

. See Technical Support Document.*** E.O. 12866 Review

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Page 87 of 186 Additional desktop tools can assist in the identi fication 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 o f water flow, and statistical evidence. Some desktop tools , such as a regional regression analysis and t he 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 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. W here 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 an d can clearly show a tributary’s bed and bank s and channel morphology. In many cas es LIDAR can help delineate tributaries that would exhibit a bed and bank s and another indicator of an ordinary high water mark in greater detail than aerial photogr aphy interpretation alone can. Visible linear and curvilinear incisions on a bare earth mod el are strong evidence that a tributary with a bed and bank s and another indicator of an ordinary high water mark is present

. L IDAR

- indicated tributaries can be correlate d with aerial photography interpretation and USGS stream data , to reasonable conclude the presence of a bed and bank s 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*** E.O. 12866 Review

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Page 88 of 186 desktop tools to delineate tri butaries 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 m ay be determine d by using other appropriat e 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, h istoric water flow records, flood predictions, statistical evidence , the use of reference conditions, or through the re mote sensing and desktop tools described above. The upper limit of the tributary is the point where a b ed and banks and another indicator of ordinary high water mark cease to be identifiable. The ordinary high water mark establishes the lateral lim its of a water, and its absence generally determines when a tributary’s channel or bed and banks has ended , rep resenting 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
wat er mark can be found farther upstream. Note that waters, including wetlands , which are adjacent to a tributary at the upp er 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 (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*** E.O. 12866 Review

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Page 89 of 186 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 o r in combination with other covered tributaries in the watershed, to the downstream traditional navigable water, interstate water, or the territorial seas.
W aters that meet the rule definition of tributary remain tributaries even if there is a manmade or n atural 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 mar k 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 adja cent wetlands are cont iguous 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 ord inary 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 ma rk 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 s uch as debris piles,*** E.O. 12866 Review

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Page 90 of 186 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. The rule also clarifies that a water meets the definition of tributary if the wate r contributes flow through an excluded fe ature such as an ephemeral ditch. 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 c ontinues 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 agenc ies’ l ongstanding interpretation of the CWA has i nclude d tributaries that are natural, modified, or constructed water s . While this rule at paragraph (b) excludes specific types of constructed waters from jurisdiction, it continues to interpret constructed tributaries as jurisdictional unless expressly exclude d 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. S ee discussion in section III.C. above and the Technical Support Document . Gi ven 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, tributari es 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, inte rstate water, or the territorial seas , and are not excluded under paragraph (b)

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Page 91 of 186 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 are not excluded under paragraph (b)(3) in t he 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

. J urisdictional ditches may include ditches such as the following:

• Ditches that have perennial flo w , including roadside ditches,

• Ditches with intermittent flow, not including roadside ditches (unless they are a relocated tributary or excavated in a tributary ),

• 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, natural streams and rivers that are altered or modified for purposes as flood control, erosio n 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 stabiliz ed 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*** E.O. 12866 Review

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Page 92 of 186 States” and is not a exclud ed under paragraph (b)(3) even where it has been ditched, channelized, concreted and runs alongside a road. Where an excluded roadside or ephemeral ditch is excavated in or relocates a covered tributary, only the segment of the ditch actually excavated in or relocating the covered tributary would be considered jurisdictional. For example, an entire roadside ditch does not become subject to jurisdiction because a portion of it is excavated in or relocates a tributary. The opposite is also true though

- a tributary does not lose its jurisdictional status for its entire length simply because a portion of it is excluded under paragraph (b)(3). This approach reasonably balances the exclusion with the need to ensure that covered tributaries, and the significa nt 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 i ts 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 may be 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 maintenance data, wetlands and conservation programs and plans, as well as functional assessments and monitoring efforts. Evidence , such as current or historic photographs, prior delineations, or USGS and state and local topographic maps, may be us ed 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*** E.O. 12866 Review

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Page 93 of 186 fas hion with little sinuosity and may not connect to another “water of the United States.” Ditches created by relocating natural waters would be considered “waters of the United States,” so long as they contribute flow to another jurisdictional water. Furth er, these ditches are jurisdictional from the point of natural water modification to their downstream intersection with another water.

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.
T he rule defines “tributary” by emphasizing physical characteristics creat ed 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 “adjacen t” but not 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 consider ed a jurisdictional tributary. T he r ule definition of “tributary” requires that flow must be of sufficient volume, frequency, and duration to create the physical characteristics of bed and banks and an ordinary high water mark . If a water lacks sufficient flow to create such characteristics , it is not considered “tributary” under this rule. While some commenters*** E.O. 12866 Review

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Page 94 of 186 expressed conce rn that a feature that flowed very inf requently 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 definition s of “ ordinary high water mark ” and “ tributary. ” To further emphasize this point, the rule expressly indicates in paragraph (b) that ephemeral reaches that do no t meet the definition of tributary are not “ waters of the United States

. ” 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 tributarie s 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, physica l, 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 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 effe cts 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 st ored*** E.O. 12866 Review

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Page 95 of 186 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’ Nati onwide 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 lan guage. 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 hig h 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

wa ter 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 indic ated where a*** E.O. 12866 Review

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Page 96 of 186 tributary had 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.
Sev eral 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 tributarie s as jurisdictional unless expressly excluded in paragraph (b) for the r easons described in section
IV.I . and the Technical Support Document. The agencies received extensive comments on ditches, addressing circumstances where commenters thought ditches sho uld be jurisdictional and where they should not. Many comments asserted that some, if not all, roadside ditches should be non

- jurisdictional in light of their importance to highway safety and the need to not discourage maintenance of roadside ditches. In light of those comments, the rule includes perennial roadside ditches and roadside ditches that are a relocated tributary or excavated in a tributary as “waters of the United States,” while paragraph (b) of the rule expressly excludes from jurisdiction in termittent and ephemeral roadside ditches that are not a relocated tributary or excavated in a tributary where they drain Federal, state, tribal, county, or municipal roads. See Section I for additional discussion of excluded ditches. Many comments rec ommended 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 tributary, 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*** E.O. 12866 Review

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Page 97 of 186 but may lack banks. The proposed rule expressly sought comment on w hether such waters should be considered tributary or as adjacent waters, recognizing that it might add an element of uncertainty to the definition of “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 adjacent waters inste ad of tributaries. SAB 2014b at 2. In
response, the rule does not consider these waters to be tributaries, but defines 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 t he best available science, intent of the CWA, and caselaw, 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 scienc e suppor ts [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 commen ts 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 ?*** E.O. 12866 Review

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Page 98 of 186 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 U nited States.” For purposes of determining adjacency, a water that includes wetlands within or abutti ng its ordinary high water mark is considered a single water. Adjacency is not limited to waters located laterally to a traditional navigable water, int erstate 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 tradition al navigable water, interstate water, the territorial seas, an impo undment, 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 “adja cent” in the final rule. Specifically , waters that connect segments of, or are at the head of, a traditional navigable water, inters tate water, the territorial seas , an impoundment, or a tributary are adjacent to that water . For example, a pond*** E.O. 12866 Review

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Page 99 of 186 that is the source water to a tributary and borders the tributary at its uppermost reach is jurisdictional as an adjacent water. Further, 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 purpos es 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 defini tion of “adjacent” in the rule does not include those waters that are subject to established, normal farming, silviculture, and ranching activities. Wetlands and farm ponds being used for normal farming activities, as those terms are used in the Clean Wate r Act and its implementing regulations, are not jurisdictional under the Act as an “adjacent” water. Waters subject to normal farming, silviculture, and ranching activities instead will continue to be subject
to case

- specific review, as they are today. R ecognizing the vital role of farmers in providing the nation with food and fiber, the Clean Water Act in Section 404(f)(1) (33 U.S.C. § 1344(f)(1)) exempts many normal farming activities such as seeding, harvesting, cultivating, planting, soil and water co nservation practices, and other activities from the Section 404 permitting requirement. “Normal” farming, silviculture, and ranching is clarified in the agencies’ implementing regulations (40 C.F.R § 232.3(c)(1)) to mean established and ongoing activities to*** E.O. 12866 Review

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Page 100 of 186 distinguish from activities needed to convert an area to farming, silviculture, or ranching and activities that convert a water to a non

- water. The rule reflects this framework by clarifying the waters subject to the activities Congress exempted under Section 404(f)(1) are not jurisdictional by rule 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 interpret s 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 subject to normal farming, silviculture, or ranching practices may be determined to significantly affect the chemical, physical, or biological integrity of downstream navigable waters, the agencies believe that such determination shoul d be made based on a case

- specific basis instead of by rule. The agencies also recognize that waters subject to normal farming, silviculture, or ranching practices are often associated with modifications and alterations including drainage, changes to vege tation, 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 agencies ident ify 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 (i.e., the area with a one percent annual chance of floodin g ) of a traditional navigable water, interstate*** E.O. 12866 Review

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Page 101 of 186 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

. If the 100

- year floodpl ain is greater than 1 , 500 feet from the ordinary high water ma rk, only those waters that are located in whole or in part within 1 , 500 feet of the ordinary high water mark meet this provision. In addition, if the 100

- year floodplain is less than 1 , 500 feet from the ordinary high water mark, only those wa ters 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 tradit ional navigable water, interstate water, or the territorial seas, and 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, inte rstate w ater or the territorial seas as “waters of the United States.” To provide clarity for this aspect of the definition, t he agencies incorporated the Corps’ existing definition of high tide line into EPA’s regulations at paragraph (c)(7) in the rule. T he Great Lakes are tidally influenced but the Corps in practice uses the ordinary high water mark to define their lateral limits. The refore, this provision includes waters within 1,500 feet of the ordinary high water mark of the Great Lakes. As noted a bove , t he rul e provides that with resp ect to the distance limitations for adjacent
waters the entire water is jurisdictional as long as the water is at least partially located within the distance th reshold, and the agencies interpret the rule to apply to any single waterbody or wetland that may st raddle 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 t heir small, intermingled wetland and non

- wetland components are physically and functionally integrated . These areas often have complex micro

-*** E.O. 12866 Review

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Page 102 of 186 to pography 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 wetl and 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 (a)(8), wetlands of these types constitute a single water when making a significant nex us 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 neighbor ing,” 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 limits under the CWA for adjacent waters, the agencies will rely on published Federal Emergency Management Agency (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 loc a ting 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, such as streams or rivers moving out of their channels with associated changes in the*** E.O. 12866 Review

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Page 103 of 186 location of the floodplain. In the absence of applicable FEMA maps, or in circumstances where an existing FEMA map is clearly out of date, the agencies will rely on othe r avai lable 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., Hyd rologic Engineering Centers River System Analysis System or HEC

- RAS )

. http://websoilsurvey.sc.egov.usda.gov/App/HomePage.htm and HEC

R AS and http://www.hec.usace.army.mil/software/hec

- ras/

. Additional supporting information can include historical evidence, such as photograp hs, 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 improv e tools for identifying the 100

- year floodplain in a consistent, predictable , and scie ntifically valid

manner. When determining the outer threshold of an “adjacent water” the line is drawn perpendicular to the ordinary high water mark or high tide line of the (a)(1) through (a)(5) water 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. Theref ore, waters may meet the definition of neighboring even where, for example, a tributary temporarily flows underground

. Additionally, 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*** E.O. 12866 Review

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Page 104 of 186 be within the Federal interests of the CWA as the agencies have interpreted its scope in this rule. In promulgating the adjacent water limits, the agencies have balanced protection and clarity, scient ific uncertainties and regulatory experience, and established lines 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 case specific

s ignificant nexus evaluation is re quired. 2. What Changes Did the Agencies Make from the Proposed Rule Based on Public Comments? In the proposal, t he agencies sou ght 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 a foundational aspect of adjacency. In light of the comments, the science, the agencies’ experience, and the Supreme Court’s consistent recognition of the agenci es’ discretion to interpret the bounds of CWA jurisdiction, the agencies have made some revisions in the final rule designed to more clearly establish limits 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 sign ificant nexus 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 juri sdictional. 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*** E.O. 12866 Review

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Page 105 of 186 other covered adjacent waters in a watershed have a significant nexus to a traditional navigable water, interstate water or the ter ritorial 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 wate rs, 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 commen ted 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 revis ed 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; wat ers with a shallow subsurface hydrologic connection to a jurisdictional water; and waters with a confined surface hydrologic connection to a jurisdictional*** E.O. 12866 Review

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Page 106 of 186 water. Although the definitions were scientifically

- based for the terms “riparian area” and “floodp lain” to define the lateral reach of the term “neighboring,” some commenters indicated that the proposed definition s to clarify neighboring were not clear . Those commenters requested that a specific floodplain interval or other limitation should be establ ished 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 co mmenters 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 supportiv e 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 sugg ested 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 o f “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 shou ld be based on soil and geologic features, and some suggested the use of the FEMA flood
zone maps. S ome commenters stated that “reasonable proximity” was neither defined nor clarified adjacency , noting that adjacency should not apply to waters separated f rom a “water of the United States” by great distances.*** E.O. 12866 Review

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Page 107 of 186 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 commente rs, including establishing a floodplain interval and providing specific distance limits from traditional navigable waters, interstate waters, the territorial seas, impoundments, and tributaries

. As recommended by the public and based on science, the agenci es defining limits for “neighboring” are primarily based on the relia nce of a 100

- year floodplain. The agencies concl uded that the use of the riparian area was unnecessarily complicated and that a s a general
matter, waters in the riparian area will also b e 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 4,000 feet from the ordinary high water m ark 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 waters, interstate waters, the territorial seas , impoundments, and tributaries

. Second, the rule utilizes a specific floodplain and also establi shes maximum distances for purposes of “neighboring.” S tudies have found that waters within the floodplain are dynamically connected and frequently interact with the downstream traditional navigable water, interstate*** E.O. 12866 Review

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Page 108 of 186 water, territorial sea, impoundment or tributary. Some commenters indicated that a specific floodplain or other designation should be set to define the outer limit of “neighboring.” Further,

some commenters requested that the 100

- year floodplain designation be used to define the outer limit 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 t he
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 i mplementation of the CWA. In drawing lines, the agencies chose the 100

- year floodplain because FEMA and NRCS together have generally covered large portions of the United States, and these maps are publicly available , well

- known and well

- understood

. Beca use the 100

- year f loodplain can be extremely 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 affectin g 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. The rule also establishes a separate bright line for including as jurisdictional those waters that occ ur within 1,500 feet of tidally

- influenced (a)(1) or (a)(3) waters

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Page 109 of 186 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. T he 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 an (a)(1) through (a)(5) water

. 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 4,000 feet of a jurisdictional water , a confi ned surface hydrologic connection may be an important factor in evaluating a case - specific significant nexus under (a)(8) . See H. below. The proposal defined “neighboring” to include waters connected with a shallow subsurface connection, and some commente rs 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 co nnected 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 shall ow 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 connectivi ty 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*** E.O. 12866 Review

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Page 110 of 186 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;” distingu ishing between “shallow” and “deep;” whether there were any distance limits 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 rul e 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 deleted 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 deleted a parenthetical from the existing “adjacent wetlands” regulatory provision. The phrase “other than waters that are themselves wetlands” wa s intended to preclude asserting CWA jurisdiction over wetlands that were simply adjacent to a non

jurisdictional wetland. Such waters do not meet the definition of "adjacent" under the rule since waters must be adjacent to an (a)(1) through (a)(5) water , 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*** E.O. 12866 Review

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Page 111 of 186 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, regardles s of the wetlands’ position relative to each other.

3. How Do Science and Law Support the Rule? Based on a review of the scientific literature and the law, the agencies’ determined that waters that are bordering, contiguous or, within the limits established in the definition of “neighboring,” waters within 100 feet of a jurisdictional water, waters in the 100

- year floodplain within 1,500 feet of a jurisdictional water , and tidally

- influenced waters (such as the territorial seas and the Great Lakes )

. Based on a review of the scientific literature, the agenci es’ expertise and experience, and the law, 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, the proposed rule preamble, and the Technical Support Document for the rule.

a. Waters that are bordering or contigu ous 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 navig able waters, interstate waters, or the territorial seas . Such waters are integrally linked with the jurisdictional waters to*** E.O. 12866 Review

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Page 112 of 186 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 (a)(1) through (a)(5) water 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 significant ly 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 ma tter 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 an (a)(1) through (a)(5) water. The Science Report, the proposed rule preamble, and the Technical Support Document demonstrate that such waters are physically, chemically, a nd 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, na tural river berms, beach dunes and the like Adjacent waters separated from (a)(1) through (a)(5) waters by dikes, levees, berms and the like continue to have a significant effect on downstream traditional navigable waters, interstate waters, or the territ orial seas, either alone or in combina tion with other adjacent waters

. Such waters continue to have a hydrologic connection to downstream waters. This is because berms and similar features typically do not block all water flow. This hydrologic connection c an occur via seepage, or the flow of water through the soil pores, or via over

- topping, where water*** E.O. 12866 Review

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Page 113 of 186 from the nearby (a)(1) through (a)(5) water periodically overtops the berm or other similar feature. Berm

- like landforms known as natural levees occur natur ally 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 man

- made ber m 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 bet ween the adjacent wetlands or waters and the nearby “waters of the United States,” and traditional navigable waters, interstate waters, or the territorial seas. Indeed, Justice Kennedy was clear that the absence of hydrologic connection could establish a significant nexus. For instance, 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
exte nsive, 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. Waters behind berms and the like can significan tly 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*** E.O. 12866 Review

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Page 114 of 186 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 surfa ce 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, d ue to their close proximity to jurisdictional waters, water s 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 downst ream 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 jurisdictiona l 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, ter ritorial 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 Sta tes.” With respect to provision of water quality*** E.O. 12866 Review

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Page 115 of 186 benefits downstream, n on - floodplain waters within close p roximity of the stream network often are able to have more water quality benefits than those located at a distance from the stream. Many studies indi cate 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.) w ill 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 evi dence 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 chemic al, 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 territor ial 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 most clearly significantly affected the integrity of the (a)(1) through (a)(5) waters, and these adjacent waters are “ waters of the United States.”
d. Floodplain waters within 1,5 00 feet*** E.O. 12866 Review

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Page 116 of 186 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 physically, chemically, and biologically connected to downstream traditional navigable waters, interstate waters, or the territorial seas and significantly affect the int egrity 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 storag e and deposition of channeling

- 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 contamin ants 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 an (a)(1) through (a)(5) water, the agencies determine there is a significant nexus with the downstream traditional navigable waters, interstate waters, or the territorial seas and these areas are critical to protect “waters of the United States.” Base d 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 distance limit for floodplain waters to meet the definition of “neighboring” and thus to be “waters of the United States” by rule. This distance limitation was established in order to protect vitally important waters within a watershed while at the same time*** E.O. 12866 Review

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Page 117 of 186 providing a practical and implementable rule. The agencies are not determining th at 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 prote ct 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 limits may have a significant nexus, the rule also establishes areas in which

a case - specif ic significant nexus determination must be made. See section IV.H.

e. Waters within 1,500 feet of tidally
- influenced traditional navigable waters or the territorial seas Many t idally

- influence d waters do not have floodplains, so the agencies include a
sep arate 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. Under Riverside Bayview and Justice Kennedy’s opinion in Rapano s , 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 is so close , the 1 00

- year floodplain is not as relevant to identifying connections to those traditional navigable waters, so the rule defines “neighboring” to include waters within 1,500 feet of the high tide line or the ordinary high water mark of an (a)(1) or (a)(3) water. Wetlands, ponds, lakes , oxbows, impoundments, and similar water features within 1,500 feet of an (a)(1) or (a)(3) water are physically

- connected to such wa ters by surface and shallow subsurface flow. As demonstrated in section III above, these waters perform a myriad of critic al chemical and biological functions associated with the nearby (a)(1) and (a)(3) waters to which they are adjacent.*** E.O. 12866 Review

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Page 118 of 186 These waters in combination significantly affect the integrity of the connected (a)(1) and (a)(3) waters ( for example, the Great Lakes or territorial seas, respectively) 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 literatu re 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 other tidal ly

- influenced waters such as 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 supp ort 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 wat ers 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 i nteractions 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*** E.O. 12866 Review

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Page 119 of 186 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 downstream (a)(1) and (a)(3) waters and are more likely to impact water quality due to their close distance. Waters mo re closely located to (a)(1) and (a)(3) 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 traditional navigable waters are generally much lar ger 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 the (a)(1) and (a)(3) 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 these waters, even when located outside the floodplain, perform critical processes and functions discussed i n 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

e xperience 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 (a)(1) or (a)(3) waters, and these adjacent waters are “waters of the United States.” Waters located more than 1,500 feet and less than 4,000 feet from the lateral limit of an (a)(1) or (a)(3) water may still be determined to have a significant nexus on a case

specific basis under paragrap h (a)(8) of the rule and a “water of the United States.” See section
IV.H.*** E.O. 12866 Review

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Page 120 of 186 H. Case
- Specific Waters of the United States

T he rule establishes two exclusive circumstances under which case

- specific 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 jurisdicti onal 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 cou ntry. The rule provides for case

- specific 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 wetland s) that the agencies have determined are “ similarly situated ” for purposes of a significant nexus determination. Second, the rule identifies at paragraph (a)(8) a specific circumstance under which waters will be subject to a case

- specific significant nexu s determination but for which the agencies have not made a “ similarly situated ” determination: 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, impoundm ents, or tributaries, as defined. If any water meets the definition of “ adjacent waters ” it is jurisdictional under (a)(6) and no case

specific significant nexus is required

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Page 121 of 186 waters, or within 4,000 fe et of an (a)(1) through (a)(5) water

. Waters that do not fall within the six categorically jurisdictional waters identified in paragraph (a)(1) through (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 si gnificant nexus determination; second, the 4,000

- foot distance limitation under which waters will be subject to a case

- sp ecific 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 provi sions; and, finally, the revisions made to the rule with respect to case

- specific determinations and major comments.

1. W aters D etermined to B e “ S imilarly S ituated ” by Rule for which a Case
S pecific S ignificant N exus Determinations is Required

a. Waters that have been determined to be “similarly situated” by rule

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 wetland s) that, if they are not otherwise jurisdictional under (a)(1) through (a)(6) , the agencies determine to be “similarly situated” by rule. The rationale for this determination is discussed above in Section III. Under paragraph (a)(7), prairie potholes, Caro lina and Delmarva bays, pocosins, western vernal pools in California , and Texas coastal prairie wetlands are*** E.O. 12866 Review

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Page 122 of 186 jurisdictional when they have a significant nexus to a traditional navigable water, interstate water, or the territorial seas

. Waters in these subc ategories are not jurisdictional as a class under the rule

. However, because the a g encies determined that these subcategories of waters are “similarly situated,” the waters within the specified subcategories that are not otherwise jurisdictional under (a) (6) of the rule must be assessed in combination with all waters of a 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 (point of entry watershed)

. When performing a case

- specific significant nexus evaluation for a water in the (a)(7) subcategories, the rule establishes which waters must, and must not, be considered in combination. The similarly situated waters identified in the subparag raphs will be combined with other waters in the same subparagraph located in a single point of entry watershed. For example, under (a)(7) only western vernal pools can be analyzed with other western vernal pools in the same point of entry watershed. W aters iden tified in the subparagraphs that are otherwise jurisdictional under the rule can not be considered in combination with (a)(7) waters for purposes of a case

- specific significant nexus determination under (a)(7) . I ndividual waters of the specified subca tegories 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 (a)(2) or a western vernal pool that meets the definition of adjacent under (a)(6 ). Where those individual waters are jurisdictional under (a)(1) through (a)(6) by rule , no case - specific signifi cant nexus analysis is required

. The rule also states that waters in (a)(7) shall not be combined with waters jurisdictional under (a)(6). Essentially, while prairie po tholes are an identified subcategory under (a)(7), that identification does not affect a prairie pothole that borders a covered tributary and is jurisdictional as an adjacent water under (a)(6). Additionally, a prairie pothole that is jurisdictional under (a)(6)*** E.O. 12866 Review

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Page 123 of 186 cannot be combined with prairie potholes that require a case

- specific jurisdictional analysis under (a)(7) since adjacent waters have already been determined to have a significant nexus by rule. Finally, wa ters within the specified subcategories i n (a)(7) are assessed under (a)(7) not under (a)(8); waters within the specified subcategories that are within the 4,000

- foot distance limitation established for case

- specific determinations under (a)(8) remain “similarly situated” waters under (a)(7). Th ese 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 case - specific significa nt nexus analysis are found in section 4 below

.

2. Waters Within 4,000 Foot Distance Limitation for which a Case
- Specific Significant Nexus is Required

a. Waters within 4,000 F oot Distance Limitation

P aragraph (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 4,000 feet of the high tide line or ordinary high water mark of an (a)(1) through ( a) (5) wa ter. 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 significant nexus determination for any water, anywhere in the landscape. Under the rule, t he waters specified in*** E.O. 12866 Review

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Page 124 of 186 (a)(7) and waters that meet the distance limitation i n (a)(8) are the only waters for which a case specific significant nexus determination may be made

. Only waters that are within the 4,000 foot distance limitation estab lished in paragraph (a)(8) 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 wate r is located with 4,000 of the ordinary high water mark of an (a)(1) through (a)(5) water, the entire water will be considered to be within the distance threshold for (a)(8) and will undergo a case

- specific significant nexus determination. W aters within th e distance limitation must be evaluated on a case

- specific basis for not only a significant nexus but also for a determination of whether such waters are similarly situated. Waters identified in paragraph (a)(8) may not be combined with waters identified in (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 (a)(8) also meet the definit ion of adjacency u nder paragraph (a)(6), they are jurisdictional as adjacent waters and do not need a case

- specif ic significant nexus analysis. W aters identified in the subcategories in (a)(7) are evaluated under (a)(7) only ; the provisions of (a)(8), inc luding the distance limitations in (a)(8), do not apply to (a)(7) waters

. The significant nexus analysis for waters under (a)(8) will then consider the waters individually or , if it is determined that there are similarly situated waters, as a group of wat ers 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 .

b. Summary of Rationale for 4,000 Foot Distance Limitation*** E.O. 12866 Review

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Page 125 of 186 The agencies establish a provision in the rule for case

- specific significant nexus determinations because the agencies concluded that waters located within 4,000 feet of the ordinary high water mark of a traditional navigable water, an interstate water, the te rritorial seas, an impoundment, or a covered tributary can have significant chemical, physical, and biological connections to and effects on traditional navigable waters, interstate waters, or the territorial seas. The agencies establish a distance limit on case - specific significant nexus determinations because the Supreme Court has been clear that CWA jurisdiction is not without limit. Based on the agencies’ extensive experience, and applying the best available science, the agencies conclude that the 4,0 00 foot distance limit reasonably identifies the areas in which waters have been determined to have a significant nexus and appropriately establishes the limits of CWA jurisdiction under this case

- specific provision. This approach also supports the goal of providing greater clarity to the public. 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 limits so that the public reasonably u nderstands where CWA jurisdiction ends. 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 interests of th e CWA as the agencies have interpreted its scope in this rule. Indeed, the promulgation of this 4000 foot limit for purposes of a case

- specific 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 limit, 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.*** E.O. 12866 Review

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Page 126 of 186 As noted above, s ince the Rapanos decision, the agencies have developed extensive experience making significant nexus determinations , and that experience and expertis e has inform ed the judgment of the agencies

. The agencies have made determinations in every state in the country, for a wide range of waters in a wide range of conditions. Based on this experience, and informed by the science that acknowledges the connec tivity of waters lies on a continuum, the agencies are confident that the 4,000

- foot limitation will protect the types of waters that have been determined to have a significant nexus on a case

- specific basis

. The agencies conclusion to establish a case

- spe cific significant nexus analysis for waters within 4,000 feet is based on a number of factor s. These waters may be located within the floodplain of waters jurisdictional under (a)(1) through (a)(5). Section IV.G. and the Technical Support Document discus s 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 deci ded to use distance limits with 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. However, due to the many functions that floodplain wetlands and open waters provide to downstream water integrity, and based on the scientific l iterature, agency expertise and experience, and applicable caselaw, the rule calls for waters to be considered on a case

- specific basis, either alone or in combination with other waters, where they are located within 4,000 feet of the high tide line or the ordinary high water mark of a water jurisdictional under (a)(1) through (a)(5), in part because such waters may be located within the floodplain.*** E.O. 12866 Review

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Page 127 of 186 Similarly, due to the many functions that waters located within 4,000 feet of the high tide line of a tradit ional navigable water or the territorial seas provide and their often close connections to the surrounding navigable in fact waters, science supports the agencies’ determination that such waters are rightfully evaluated on a case

- specific basis for signifi cant nexus to a traditional navigable water or the territorial seas. Waters within 4,000 feet of the ordinary high water mark of waters jurisdictional under (a)(1) through (a)(5) may fall within the riparian areas of such waters. As discussed in section I V.G., i n 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 ripari an areas individually and cumulatively can have a significant effect on the chemical, physical, and biological integrity of downstream waters. Thus, the rule allows for a

case - specific determination of significant nexus for waters located within 4,000 feet of the high tide line or the ordinary high water mark of waters jurisdictional under (a)(1) through (a)(5). 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. T he 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 c onnections 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 water jurisdictional under (a)(1) through (a)(5) allows such waters to b e considered*** E.O. 12866 Review

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Page 128 of 186 jurisdictional only where they meet the significant nexus requirements. Even where not within a
100

- year floodplain, waters within 4,000 feet can have significant chemical, physical, and biological connections with traditional navigable waters , interstate waters, or the territorial seas. As noted previously , in response to co mments concerned that there were no bounds in the proposed rule on how far a surface hydrologic connection could be, 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 (a)(8). For example, waters located within 4,00 0 feet of the high tide line or the ordinary high water mark of a water jurisdictional under (a)(1) through (a)(5) 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 (a)(8), including the distance limitation, was also informed by the knowledge that w aters located within 4,000 feet of the high tide line or the ordinary high water mark of a water jurisdictional under (a)(1) through (a)(5) can have a shallow subsurface connection to such a water . In order to provide the clarity and certainty that many c ommenters requested regarding adjacent waters, the rule does not define “neighboring” to include all waters with shallow subsurface connections. However, the agencies recognize that the science demonstrates that waters with a shallow subsurface connectio n to jurisdictional 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 restricti ng layer in the top soi l horizons , or a shallow water table which fluctuates within the soil profile, sometimes rising to or near the*** E.O. 12866 Review

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Page 129 of 186 ground surface. In addition, water can move within confined man

- made subsurface conveyance systems such as drain tiles and storm sewers, and in k arst typography

. Confined subsurface systems can move water, and potential contaminants, directly to surface waters directly and rapidly without the opportunity for nutrient or sediment reduction along the pathway

. Shallow subsurface connections are disti nct from deeper , regional groundwater connections , in that 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 Tech nical 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 4,000 feet 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 situate d waters. However , neither shallow subsurface connections nor any type of groundwater, shallow or deep, are themselves “waters of the United States.” While the proposed rule did not set a distance threshold for case

- specific waters to be evaluated for a s ignificant nexus, the final rule does set a distance limit of 4,000 feet for waters that do not otherwise meet the requirements of (a)(1) through (a)(7). The agencies set this limit in order to provide clarity, predictability, and consistency, and in order to respond to comments requesting that case

- specific evaluations be bounded. The Supreme Court decisions have been clear that the agencies have the authority, and responsibility, to determine the limits of CWA jurisdiction, and the agencies do so recogn izing as noted above that s patial proximity is a key component of connectivity. Science Report at ES

- 11. Based on the agencies’ extensive*** E.O. 12866 Review

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Page 130 of 186 experience making case

- specific significant nexus determinations across the country, it is the judgment of the agenci es that the 4,000 foot distance limit reasonably identifies the areas in which waters have been determined to have a significant nexus and appropriately establishes the limits of CWA jurisdiction under this case

- specific provision. For these reasons, the agencies decided to allow case

- specific determinations 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, an interstate water, the territorial seas, an impoundme nt, 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, interst ate 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.

3. Case
- Specific Significant Nexus Determination s

Only waters identified in paragraphs (a)(7) or (a)(8) of the rule require a case

- specific determination of significant nexus. This section discusses the definition of significant nexus in the rule and how the agencies will make case

- specific significan t nexus determinations under the rule.

a. Definition of Significant Nexus Paragraph (c)(5) of t he 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,*** E.O. 12866 Review

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Page 131 of 186 are evaluated either alone, or in combination with other similarly sit uated 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 attenuati on 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, use as a nursery area) for species lo cated 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 ev aluate the functions of the waters in question and the effects of these functions on downstream waters. In order to add clarity to the definition of significant nexus, the agencies have listed in the definition the functions that will be considered in a si gnificant 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 n exus. 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 nav igable water, interstate water, or the territorial seas, that water would have a significant nexus.
Case

- specific determinations of significant nexus require (a)(7) or (a)(8) waters to be evaluated either alone, or in combination with other similarly situ ated waters in the region. In the rule , the agencies interpret the phrase “in the r egion” to mean the watershed that drains to the nearest traditional navigable water, interstate water, or the territorial seas through a single point*** E.O. 12866 Review

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Page 132 of 186 of entry, or a single p oint of entry watershed. See Section III . In circumstances where the single point o f entry watershed includes waters that are identified under (a)(7) and waters that are subject to analysis under (a)(8), those waters will be analyzed separately under the p rovisions 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, phy sical, 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 h as an impact that is more than speculative or insubstantial.
b. Conducting Case
- Specific Significant Nexus Determinations Under (a)(7) and (a)(8) The significant nexus analysis for waters assessed under (a)(7) and (a)(8) is a three

- step process: first, t he 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

– u nder 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. i. “In the Region”

– the Point of Entry Watershed*** E.O. 12866 Review

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Page 133 of 186 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 sea s. The first step of the analysis is to identify the point of entry watershed that the water being evaluated under (a)(7) or (a)(8) drains to. This point of entry approach identifies the nearest (a)(1) through (a)(3) that the water being evaluated and any similarly situated waters flow to and delineates the watershed of that nearest (a)(1) through (a)(3) water. T he point of entry watershed is the area drained by the nearest (a)(1) through (a)(3) water and is typically defined by the topographic divides bet ween one (a)(1) through (a)(3) water 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 I II 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 ma y 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 catchments surrounding the water to be evaluated that, in combination, generally no smaller than a typical
10

- digit hydrologic unit code (HUC

- 10) watershed in the same area . This combination of catchments would be used for conducting a significa nt nexus evaluation under (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.
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Page 134 of 186 Second, the agencies determine if the water or waters to be evaluated are similarly situated. The waters identified in (a)(7) are similarly situated by rule and shall be combined with other waters of the same subparagraph located in the same watershed that drains to t he nearest (a)(1) through (a)(3) water with no need for a case

- specific similarly situated finding. Under (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 b e 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 (a)(7), even where they occur in the same point of entry wate rshed. Unlike waters evaluated under (a)(7), the waters specified at (a)(8) require a determination that they are similarly situated. Under this step, the agencies apply factors in the determination of when waters evaluated under (a)(8) should be consider ed 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 (a)(8) can reas onably 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 ex ample, to consider waters as “similarly situated” under (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*** E.O. 12866 Review

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Page 135 of 186 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 (a)(8) ar e 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 (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 wet lands 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 e ntry watershed. However, under (a)(8), waters do not need to be of the same type (as they do in (a)(7)) to be considered similarly situated. As described above, waters are similarly situated under (a)(8) where they perform similar functions or are located sufficiently close to each other, regardless of type. T he agencies will consider the hydrologic, geomorphic, and ecological characteristics and circumstances of the waters under consideration . Examples include: documentation of chemical, physical, and bio logical 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 jurisdic tional determinations that have been completed in the region.*** E.O. 12866 Review

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Page 136 of 186 O nly those waters that do not meet the requirements in (a)(1) through (a)(6) are to be considered in case

- specific significant nexus determinations; subcategory waters that meet the provisions in (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 case

- specific significant nexus evaluation unde r (a)(7) or (a)(8). Waters evaluated under (a)(7) cannot be combined with waters identified in paragraph (a)(6) or (a)(8), and waters evaluated under (a)(8) cannot be combined with waters identified in (a)(6) or (a)(7). For example, prairie potholes being evaluated under (a)(7) may not be combined with prairie potholes that are per se jurisdictional under (a)(6) that meet the definition of adjacent. When a water meets the specifications at both (a)(7) and (a)(8), it can only be evaluated under (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 an (a)(5) water, it can only be assessed for significant nexus under (a)(7) in combination with other Western vernal pools in the point of entry watershed. Unlike (a)(8), there is no distance threshold for waters evaluate d under (a)(7)

– that is, waters in the (a)(7) subcategories that are more than 4,000 feet from the high tide line or the ordinary high water mark of an (a)(1) through (a)(5) water are to be included in combination in a significant nexus analysis

. iii . Significant Nexus Analysis for (a)(7) and (a)(8) Waters Third, the agencies evaluate waters individually or in combination with any identified similar ly situated waters in the single point of entry watershed to determine if they significantly impact the chemical, physical, or biological integrity of the (a)(1) through (a)(3) water. For purposes of determining significant nexus under (a)(7), all waters o f the specified subcategory are to be considered in combination in the point of entry watershed, as those waters are similarly*** E.O. 12866 Review

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Page 137 of 186 situated. For purposes of determining significant nexus under (a)(8), depending on the results of step two, a water within the di stance limitation 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 (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 sig nificant 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 (a)(1) through (a)(3) water. 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 trans port, 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 a s a nursery area) for species located in a water identified in paragraphs (a)(1) through (3) of this section. For purposes of paragraph (c)(5)(I), a species is located in a water identified in (a)(1) through (a)(3) if such a water is typical type of habita t for at least part of the life cycle of the species. For example, amphibians and many reptiles can use (a)(1) through (a)(3) waters for part of their life cycle needs. When evaluating a water individually or in combination with other similarly situated

wa ters for the presence of a significant nexus to a traditional navigable water, interstate water, or*** E.O. 12866 Review

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Page 138 of 186 the territorial seas, a variety of factors will influence the chemical, physical, or biological connections the water has with the downstream traditional na vigable water, interstate water, or the territorial seas, including distance from a jurisdictional water, the presence of surface or shallow subsurface hydrologic connections, and density o f waters of the same type (if it has been concluded that such water s 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 den sity of the waters for such waters that can b e 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 significa nt 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 relatio nships 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 in terchange of waters prior to the dredge and fill activity that makes protection of the wetlands critical to the statutory scheme”). The Science Report concludes, “Some effects of non

floodplain wetlands on downstream waters are due to their isolation, rath er than their connectivity. Wetland ‘sink’ functions that trap materials and prevent their export to downstream*** E.O. 12866 Review

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Page 139 of 186 waters ( e.g. , sediment and entrained pollutant removal, water storage) result because of the wetland’s ability to isolate material fluxes.” Scie nce 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 Techn ical Support Document. Even when they lack a surface hydrologic connection to downstream (a)(1) through (a)(3) waters, prairie potholes, for instance, cumulatively can store large volumes of water, impacting streamflow and reducing flooding downstream, an d 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 Devil s 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 signifi cant effect on downstream (a)(1) through (a)(3)
waters. 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. Justice Kennedy was clear that w aters with a significant nexus 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. Evidence of chemical con nectivity and the effect on waters can be found by identifying the properties of the water in comparison to the identified traditional navigable water, interstate*** E.O. 12866 Review

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Page 140 of 186 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 inf luencing 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 conn ections 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 co nnection between the (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 semi

- aquatic species present in the case

- specific water and the tributary system (e.g., amphibians, aquatic and semi

- aquatic reptiles, aquatic birds); whether those species show life

- cycle dependency on the ide ntified 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 s ystem 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 case

- specific water*** E.O. 12866 Review

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Page 141 of 186 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

- resi dent 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 (a)(7) or (a)(8) when concluding that those waters have a significant nexus to a traditional navigable water, interstate water, or territoria l 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 locat e 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 an (a)(1) through (a)(3) water, 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 lacki ng 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 clea r that waters that are jurisdictional by rule cannot be combined with waters subject to a case

- specific significant nexus analysis, the analysis may appropriately include the evaluation of functions of (a)(8) waters that reach covered waters through (a)(6) waters without consideration of the functions contributed by those (a)(6) waters. The hydrologic connections between (a)(8) waters and a covered tributary and eventually to a traditional*** E.O. 12866 Review

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Page 142 of 186 navigable water, interstate water, or the territorial seas, can oft en occur through an adjacent water. This hydrologic connection is an appropriate part of the case

- specific analysis as to whether the (a)(8) waters, alone or in combination with any similarly situated (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 (a)(5) water and that has surface or shallow subsurface connections to downstream (a)(1) through (a)(3) waters via a wetland that is adjacent to an (a)( 4 ) water, the existence of those connections is not ignored. However, wh ile a water’s connections to the (a)(1) through (a)(3) water through (a)(5) through (a)(7) waters can be considered in the significant nexus analysis in order to determine whether the functions of the (a)(8) waters are provided downstream, only the functio ns of the water, along with any similarly situated waters, being evaluated under (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 (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 an d 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 t o inform a significant nexus analysis as long as they are applicable to the water being evaluated. In the case of (a)(8) waters, the administrative record will include the*** E.O. 12866 Review

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Page 143 of 186 rationale behind the similarly situated analysis, including an explanation of the da ta 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 case

- specific analysis of signif icant nexus. However, case

- specific factors such as distance to the traditional navigable water, interstate water, or the territorial seas; density and/or number of similarly situated waters; individual and/or cumulative size of the similarly situated wate rs; 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 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 (a)(7) waters, if a case

- specific significant nexus determination has been made in the point of entry watershed, all waters in the s ubcategory in the point of entry watershed are jurisdictional. For (a)(8) waters, the case - specific significant nexus analyses m ust use information used in previous jurisdictional determinations, and if a significant nexus has been established for one wate r 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 signif icant nexus determination would then apply to all similarly situated waters within the point of the watershed. A negative case - specific significant nexus evaluation under (a)(7) or (a)(8) of all similarly situated waters in the point of entry watershed ap plies 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*** E.O. 12866 Review

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Page 144 of 186 significant nexus standard the i nquiry 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 R evisions to C ase - S p ecific D eterminations of “ W aters of the United States” and M ajor C omments

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 suppo rt 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 navigabl e 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 tho ught that because surface and ground

- watershed units may not align, watersheds might be problematic for defining “in the*** E.O. 12866 Review

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Page 145 of 186 region.” These panel members suggested that a more scientifically justified approach would include surface and subsurface waters in a w atershed 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 t han 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 p rairie 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 w aters were regulated to subjectivity in review by Federal regulator(s). Similarly, some commenters were concerned that habitats eligible for protection were based on an individual analyst’s interpretation and wanted to know how the agencies would address c onsistency 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 wil l 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 a 4,000 foot d istance threshold for these waters and have established within the definition of significant nexus at (c)(5) criteria for determining whether waters are similarly situated and should therefore be analyzed in combination. Waters identified under (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

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Page 146 of 186 determinations of whether a particular water has any similarly situated waters on the available information and science. The rule also clarifies that (a)(8 ) waters cannot be considered similarly situated with adjacent waters, which are jurisdictional b y rule, and (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 case

- specific significant nexus analyses, 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 (a)(7) or within the 4,000

- foot threshold cannot be subject to a case

- specific significant nexus analysis under the rule. In addition, own ers with questions regarding jurisdiction of waters on their property may always consult their local Corps District, which is not a change from longstanding practice.
b. Case
- Specific Determinations The rule provides more regulatory certainty by narrowing th e 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 (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 “other waters” category. In addition, the agencies solicited comment on additional scientific research and data that might further inform decisions about “oth er waters.” In particular the*** E.O. 12866 Review

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Page 147 of 186 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 “other waters,” either alone or in co mbination 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 su bcategories 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 “other waters,” included additional references to su pport “other 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 jurisdict ion over “other waters” by rule and provided detailed information in support of their position. Other commenters suggested additional subcategories of “other waters” be considered as jurisdictional or as similarly situated by rule, such as playa lakes, ket tle 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. Some commenters stated that the “other waters” category 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

re source - intensive and to reflect the consideration for the body of science that exists. As noted above, the agenc ies also establish by rule subcategories of waters that are “similarly situated” for the purposes of a significa nt nexus analysis because scien ce supports that the subcategory waters*** E.O. 12866 Review

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Page 148 of 186 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 play a lakes and kettle lakes, the agencies at this time are not able to determine that the available science supports that the suggested additional subcategories of waters as a class have a significant nexus to traditional navigable waters, interstate waters, or the territorial seas. However, to be clear, under the rule, individual waters of the suggested additional subcategories are jurisdictional where they meet the requirements of (a)(1) through (a)(6) or (a)(8) (e.g., a playa lake that is an interstate wate r, a kettle lake that is an adjacent water, or a woodland vernal pool that is 2, 0 00 feet from a j urisdictional tributary and is determined on a

case - specific basis to have a significant nexus to a traditional navigable water, interstate water, or the terri torial 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 (a)(1) through (a)(6) by rule. Instead, the agencies established case

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Page 149 of 186 and waters within a specific distance threshold at (a)(8). This approach strikes a balance between requests f or bright lines 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 State s.” 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 ar e 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 notices by the Corps on November 13, 1986, and by EPA on June 6, 1988 . Th is is the first time these exclusions have been established by rule. In addition, under prior preamble guidance the agencies could determine that a particular feature generally considered nonjurisdictional was a “water of the United States.” The 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 fo r 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 reflect curr ent 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. Under the rule, all waters and features identified in paragraph (b) as excluded will not be*** E.O. 12866 Review

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Page 150 of 186 “waters of the United States,” even if they otherwise fall within one of the categories in paragraphs (a)(1) through (a)(8). The exclusions reflect the a gencies’ long

- standing practice and technical judgment that certain waters and features are no t subject to the CWA. The exclusions are also guided by Supreme Court cases. T he 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 al so 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 juri sdiction 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 conti nuum to find the limit of ‘waters’ is far from obvious.” Riverside Bayview at 132

- 3 3. The exclusions reflect the a gencies’ determinations of the lines of jurisdiction base d 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 addr essing the*** E.O. 12866 Review

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Page 151 of 186 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 trea tment system exclusion, with the exception of deleting the cross

- reference. 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 indicate d concerns that waste treatment systems built before the Clean Water Act or primarily for purposes of other environmental laws could not be exe mpt. 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 comm ents 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 paragraph (b)( 6 ). 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 and these comments are outside the scope of the proposed rule, the final rule does not reflect changes suggested in public
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Page 152 of 186 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 indicated this rulemaking was not making changes to the exclusion for prior converted cropland. As a result, such comments are outside the scope of this rulemaking and the rule does not reflect changes suggested in public comments. The a gencies 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 roadside ditches with ephemeral or intermittent flow that drain a Federal, state, tribal, county or municipal roads, except where the ditch itself either is excavated in or relocates a covered tributary. 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 t han the proposed rule or current policies. The ditch exclusions do not affect the possible status of that 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 t he term “uplands” and did not feel the term had a common understanding. Many expressed*** E.O. 12866 Review

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Page 153 of 186 concerns that all ditches would be jurisdictional under the proposed rule. Many groups especially called for exclusions of roadside ditches. The revised exclusions res pond to these comments. The agencies have deleted the term “uplands” in response to the confusion the term created and have focused instead on flow. The flow regimes as used in the exclusions and described earlier have been used by the a gencies consisten tly and are readily understood by field staff and the public. Deleting the term “uplands,” which was more subject to misinterpretation, from the exclusions will therefore improve clarity and simplify implementation. The agencies have also addressed road side ditches in particular and have clearly identified which roadside ditches are excluded . The a gencies have focused on roadside ditches for several years; in the 2008 Rapanos guidance the a gencies stated they generally would not assert jurisdiction over “ [d]itches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water.” Roadside ditches with ephemeral and intermittent flow that drain a Federal, state, tribal, county or munici pal road are excluded, except where they channelize or relocate a covered tributary. A roadside ditch closely parallels a road and functions as an integral part of the roadway system to convey water away from the roadway, to preserve the structural stabil ity of the roadway, and to enhance public safety. Federal, state, tribal, county and municipal roads are readily identifiable by maps and other public information so the Agencies expect implementation of this exclusion to be clear and straightforward.
A s discussed in Section IV.F.1., t he 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*** E.O. 12866 Review

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Page 154 of 186 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, concreted and runs alongside a road. Where an excluded roadside or ephemeral ditch is excavated in or relocates a covered tributary, only the segment of the ditch actually excavated in or relocating the covered tributary would be considered jurisdictional. For example, an entire roadside ditch does not become subject to jurisdiction because a portion of it is excavated in or relocates a tributary. The opposite is also true though

- a tributary does not lose its jurisdictional status for its entire length simply because a portion of it is excluded under paragraph (b)(3). This approach reasonably balances the exclusion with the need to e nsure 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 may be 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 USGS and state and local maps, his toric aerial photographs, local surface water*** E.O. 12866 Review

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Page 155 of 186 management plans, street maintenance data, wetlands and conservation programs and plans, as well as functional assessments and monitoring efforts. 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 t he 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 case

specific basis to be “waters of the United States.” The rule doe s 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 State s”:

• Artificially irrigated areas that would revert to dry land should application of irrigation water to that area cease

• Artificial lakes or ponds created by excavating and/or diking dry land and used primarily for such purposes as stock watering, irrigat ion, settling basins, or 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*** E.O. 12866 Review

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Page 156 of 186 • 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

• Non

- wetland swales, erosional features, gullies, rills, and grassed waterways

• Puddles

Several of these excl usions use the phrase “dry land.” This phrase appears in the 19 86 and 1988 preambles, and the a gencies 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

c larity, the a gencies clarify that “dry land” refers to areas of the geographic landscape that are not water features such as streams, rivers, wetlands, lakes, ponds and the like. However, it is important to note that a “ water of the United States ” is not considered “dry land” if it lacks water at a given time

. Similarly, an area remains “dry land” even if it is wet after a rainfall event. In the exclusion for artificial lakes or ponds, the a gencies have changed “exclusively” to “primarily” in describing the uses. Artificial lakes and ponds are often not used exclusively for one purpose and can have other beneficial purposes, such as animal habitat, water retention or recreation. The change to the exclusion reflects Agency practi ce and ensures that water s the

a gencies have historically not treated as jurisdictional do not become so because of another
i ncidental beneficial use. The a gencies have also added cooling ponds to the list of uses in the rule. The list of uses has always been illustrative rather than exhaustive, and this addition responds to many requests to clarify that cooling ponds created in dry land are excluded. 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 a gencies have also excluded water

- filled depressions created in dry land incidental to mining activity. This change*** E.O. 12866 Review

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Page 15 7 of 186 is consistent with the a gencies’ 1986 and 1988 preambles, which generally excluded pits excavated fo r obtaining fill, sand or gravel, and there is no need to distinguish between features based on whether they are created by construction or mining activity. A number of commenters indicated that these water

- filled depressions created in dry land are often left on a site after construction or mining activity is complete in order to provide beneficial purposes, such as water
rete ntion , recreation, and animal habitat. The rule does not alter the agencies’ existing practice that these features could be found t o be jurisdictional once the construction or mining activity is completed or abandoned and the water feature remains. The a gencies also here clarify their longstanding view that only the specific land being directly irrigated that would revert dry land sh ould irrigation cease is exempt; it is not the case that all waters within w atersheds where irrigation occurs are exempt.
T he rule identifies all erosional features, including gullies and rills, as non

- jurisdictional features. While the proposed rule spec ifically identified gullies and rills, the agencies intended that all erosional features would be excluded. The final rule makes this clear. Erosional features are not jurisdictional under the terms of paragraph (a) and the definitions in paragraph (c), especially the definition of tributary, and would be non

- jurisdictional in any case. These features are specifically excluded in the rule to avoid confusion, because preceding guidance identified them as non

- jurisdictional and many commenters stated these exclusions were important to maintain in the rule. Tributaries can be distinguished from erosional features by the presence of bed and banks and an ordinary high water mark . Concentrated surface runoff can occur within erosional features without 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*** E.O. 12866 Review

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Page 158 of 186 ephemeral streams are colloquial ly 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 g rassed waterway s . Grassed waterways are lawfully constructed for purposes of this rule either where they are on dry land and replace non

jurisdictional 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,

s uch 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 tr ibutary, which specifically addresses natural or man

- made breaks in bed and banks and ordinary high water mark

. T he final rule adds an exclusion for puddles. The proposed rule did not explicitly exclude puddles because the Agencies have never considered p uddle s to meet the minimum standard for bein g 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 aft er 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 subsurfa ce drainage systems. As discussed in the preamble to the proposed rule, the*** E.O. 12866 Review

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Page 159 of 186 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 request ed, such as where groundwater emerges on the surface and 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 a re created in dry land. This exclusion respond s to numerous commenters who raised concerns that the proposed rule would adversely affect municipalities’ ability to operate and maintain their stormwater systems, and also to address confusion about the state of practice regarding jurisdiction of these features at the time the rule was proposed. The agencies’ longstanding practice is to view stormwater water control measures that are not built in “waters of the United States” as non

- jurisdictional. Conversely , the agencies view some waters, such as channelized or piped streams, as jurisdictional currently even where used as part of a stormwater management system. Nothing in the proposed rule was intended to change that practice. Nonetheless, the agencies recog nize 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 st ormwater 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 measure s

— 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*** E.O. 12866 Review

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Page 160 of 186 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 unintentional ly limiting the exclusion, the a gencies have not included a list of features in the rule. The rule is intended to exclude the diverse ran ge 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 stor e stormwater, using structures such as curbs, gutters, roads, 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 creat ing 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.*** E.O. 12866 Review

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Page 161 of 186 Paragraph (b)(7) of the rule c larifies that wastewater recycling structures created in dry land are excluded. This new exclusion clarifies the agencies’ current practice that such waters and water features used for water reuse and recycling are not jurisdictional when constructed in d ry land. The a gencies recognize the importance of water reuse and recycling, particularly in areas like California where water supplies can be limited and droughts can exacerbate supply issues. This exclusion responds to numerous commenters and encourage s water reuse and conservation while still appropriately protecting the chemical, physical, and biological integrity of the nation’s water under CWA.
T he 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 a n 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 wh ich 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 st ructures 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 d istributa ry 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” w here they serve as tributaries,*** E.O. 12866 Review

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Page 162 of 186 removing water from one part of the tributary network and moving it to another. The a gencies have not in practice asserted jurisdiction over these types of features when created in dry land. The exclusion in paragraph (b)(7 ) codifies long

- standing agency practice and encourages water management practices that the Agencies agree are important and beneficial. It is important to note that while the waters listed in the exclusions are never “waters of the United States,” they can serve as a hydrologic connection that the agencies would consider under a case

- specific significant nexus under paragraphs (a)(7) and (a)(8). For example, a wetland may be directly hydrologically connected to a covered tributary via flow through an

ex cluded non

- wetland swale. While the swale itself will always be excluded from jurisdiction, the connection of the wetland to the tributary is relevant for determining whether the wetland has a significant nexus to downstream traditional navigable waters, interstates 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 U.S.,” 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*** E.O. 12866 Review

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Page 163 of 186 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 prepare d an economic analysis for informational purposes. I n preparing the economic analysis to accompany the final rule, the agencies considered what should be the appropriate baseline for comparison. The existing regulations 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 field practice following the 2008 guidance is also an appropri ate baseline, and the agencies believe that baseline is the most useful for purposes of evaluating the indirect costs and benefits associated with the policies in the final rule. To evaluate and estimate potential costs and benefits associated with this rule , the economic analys i s utilize s 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 S ection 404 jurisdictional determination and pe rmit 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 as a result of this rule, developed using updated data from fiscal years 2013

- 2014 jurisdictional determinations is applied to cost and be nefit 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 sensiti vity analyses reflecting*** E.O. 12866 Review

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Page 164 of 186 different assumptions of jurisdiction

. The agencies’ analysis indicates that indirect incremental benefits exceed indirect incremental costs. The agencies conducted this economic analysis to provide the public with information on the potential indirect costs and benefits associated with this definitional rule. The economic analysis was done for informational purposes only, and the f inal decisions on the scope of “waters of the United States” in this rulemaking are not based on consideration of the information or analysis in the economic analysis

. The economic analysis fulfills the requirements of Executive Orders 13563 and 12866. The economic analysis and an explanation for how indirect cost s and benefits est imates were derived are documented in the Economic Analysis for the Clean Water Rule; Definition of “Waters of the United States” Under the Clean Water Act (Final Rule) and can be found in the accompanying docket.

V I . 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, the EPA and the Corps 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 recommendati ons have been documented in the docket for this action.*** E.O. 12866 Review

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Page 165 of 186 In addition, the EPA and the Corps prepared an analysis of the potential costs and benefits associated with this action. This analysis is contained in Economic Analysis for the Clean Water Rule; Defi nition of “Waters of the United States” Under the Clean Water Act (Final 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 provision s of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). An

a gency 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 N o. 2040

- 0004, EPA ICR No. 0229.19). For the CWA section 404 regulatory program, the current OMB approval number for information requirements is maintained by the Corps of Engineers (OMB approval number 0710

– 0003). However, there are no new approval or ap plication 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 ana lysis 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 entit ies. Small entities include small businesses, small organizations, and small governmental jurisdictions.*** E.O. 12866 Review

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Page 166 of 186 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 indu strial 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 tha n 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 o f 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 102 7 (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 rule on small entities.” 5 U.S.C. 603. The scope of regulatory jurisdiction in this rule is narrower than that under the existing regulations. See 40 CFR 122.2 (defining “waters of the United States”). Because fewer waters will be subject to the CWA under the rule than are subject to regulatio n under the existing regulations, this action will not affect small entities to a greater degree than the existing regulations. As a conseque nce, 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. Today’s 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*** E.O. 12866 Review

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Page 167 of 186 United States, in cluding the territorial seas” (33 U.S.C. 1362(7)), consistent with Supreme Court precedent. This question of CWA jurisdiction is informed by the tools of statutory construction and the geographical and hydrological factors identified in Rapanos v. United S tates, 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 Corps determined to seek wide input from representatives of small entities while formulating the proposed and fina l 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, S mall 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 ap proach this complex question of statutory interpretation, together with related issues that such representatives of small entities may identify for possible consideration in separate proceedings. The agencies have prepared a report summarizing their small entity outreach, the results of this outreach, and how these results have informed the development of this rule. This report, Final Summary of the Discretionary Small Entity Outreach for the Revised Definition of Waters of the United States (Docket Id. No . EPA

- HQ

- OW

- 2011

- 0880

- 1927 ), is available in the docket.

D. Unfunded Mandates Reform Act*** E.O. 12866 Review

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Page 168 of 186 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 regulat ory requirements that might significantly or uniquely aff ect 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 t heir 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 engagin g 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 m eetings and two phone calls in the fall and winter of 2011. Organizations involved include the National Governors Association,*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Page 169 of 186 the National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the National League of Cities, the U.S. Conference of Mayors, the County Executives of America, the National Associations of Towns and Townships, the International City/County Management Association, and the Environmental Council of States. Additionally, the Nationa l 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 par t of this consultation, EPA held a meeting on May 13, 2014 to seek technical input on the proposed rule from the largest national representative organizations for State and local governments. During this process the agencies also extended its focused outr each to include a series of meetings with the Local Government Advisory Committee, and the Environmental Council of States in conjunction with the Association of Clean Water Administrators and the Association of State Wetland Managers. In addition to engaging these key organizations under, the agencies sought additional feedback on the proposed rule through broader public outreach to state and local government organizations during the public comment period. During the consultation process, some participants expressed concern that the proposed changes may impose a resource burden on state and local governments. Some participants urged EPA to ensure that states are not unduly burdened by the regulatory revisions.*** E.O. 12866 Review

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Page 170 of 186 The agencies have prepared a report summarizi ng their voluntary consultation and extensive outreach to S tate , local , and county governments , the results of this outreach , and how these results have informed the development of today’s rule. This report , Final Summary of the Discretionary Consultation and Outreach to State, Local, and County Governments for the Revised Definition of Waters of the United States (Docket Id. No. EPA

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F. Executive Or der 13175: Consultation and Coordination With Indian Tribal Governments Subject to the Executive Order (E.O.) 13175 (65 FR 67249, November 9, 2000) , a gencies may not issue a regulation that has tribal implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred b y tribal governments, or the a gencies 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

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. 13175. In compliance with the EPA Policy on Consultation and Coordination with Indian Tribes (May 4, 2011), the agencies consulted with tribal officials throughout the rulemaking process to gain an understanding of tribal issues and solicited their comments on the p roposed action and on the development of today’s 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 U.S. in October 2011. The consultation and coordination*** E.O. 12866 Review

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Page 171 of 186 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 ye ar 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 o fficials to gain an understanding of, and to address, the tribal implications of 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 nationa l 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 Cau cus d uring 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 affiliatio ns by the completion of the consultation period. The comments indicate that Tribes, overall, support increased clarity of waters protected by the Clean Water Act, but some express concern with the consultation process and the burden of any expanded jurisd iction. The feedback received through consultation and written comments have been incorporated in today’s rule. The agencies have prepared a report summarizing their consultation with tribal nations , and how these results have informed the development of this rule. This report , Final Summary of Tribal Consultation for the Clean Water Rule: Definition of “Waters of the United States” Under the Clean Water Act; Final Rule (Docket Id. No. EPA

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Page 172 of 186 A s required by section 7(a), EPA’s Tribal Consultation Official has certified that the requirements of the executive order have been met in a meaningful and timely manner. A copy of the certification is included in the docket for this action.

G. Executive Order 13045: Protection of Children From Environmental Health

a nd Safety Risks

This action is not subject to E xecutive O rder 13045 (62 FR 19885, April 23, 1997) because t he 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 No. 104

- 113, 12(d) (15 U.S.C. 272 note) directs federal agencies to use volun tary consensus standards in regulatory activities unless to do so would be inconsistent with*** E.O. 12866 Review

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Page 173 of 186 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, thro ugh OMB, explanations when the a gency decides not to use available and applicable voluntary consensus standards. This rule does not involve technical standard s. 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.) 12989 (59 FR 7729, 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 ha ve determined that t he rule will not have disproportionately high and adverse 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 defin es 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,*** E.O. 12866 Review

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Page 174 of 186 stakeholders, and interested parties. In addition, this rule is national in scope and, therefore, is not specific to a particular geographic area(s). In the spirit of E

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. 12898, EPA and the Corps requested input from environmental justice stakeholders during the rule development process, through a series of stakeholder meetings between Apr il

- November 2014. On May 12, 2014, EPA held a focused teleconference with non

- traditional stakeholders , including environmental justice and faith

- based stakeholders, to solicit their individual input on the proposed rule. The agencies have used the feedba ck 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 “w aters of the United States. ” The agencies prepared a report summarizing their outreach to the environmental justice community, analysis of potential impacts, and how these res ults 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

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K. Congressional Review Act (CRA)

This action is subject to the 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 not a “major rule” as defined by 5 U.S.C. 804(2).*** E.O. 12866 Review

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Page 175 of 186 L. Environmental Documentation

The Corps has prepared a final environmental assessment and Findings of No Significant Impact in accordance with the National Environmental Policy Act (NEPA). The Corps has made a determination that the section 404 aspects of the rule do not constitute a major federal action significant ly affecting the quality of the human environment, and thus preparation of an Environmental Impact Statement (EIS) is not required. The rule provides for more efficient protection of the aquatic environment. Additionally, the Corps complies with NEPA
prog rammatically for general permits, and specifically for each and every standard individual permit application before making final permit decisions. The implementation of the procedures prescribed in this proposed regulation would not authorize anyone (e.g., any landowner or permit applicant) to perform any work involving regulated activities in “waters of the United States” without first seeking and obtaining an appropriate CWA authorization, which concurrently documents compliance with all applicable enviro nmental laws.*** E.O. 12866 Review

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Page 176 of 186 Clean Water Rule: Definition of “Waters of the United States”

List of Subjects 33 CFR Part 328.3 Environmental protection, Administrative practice and procedure, Intergovernmental relations, Navigation, Water pollution control, Waterways. 40 CFR Part 110.1 Environmental protection, Water pollution control
40 CFR Part 112.2 Environmental protection, Water pollution control
40 CFR Part 116.3 Environmental protection, Water pollution control
40 CFR Part 117.1 Environmental protection, Water pollution control
40 CFR Part 122.2 Environmental protection, Water pollution control
40 CFR Part 230.3 Environmental protection, Water pollution control
40 CFR Part 232.2 Environmental protection, Water pollution control
40 CFR Part 3 00.5 Environmental protection, Water pollution control*** E.O. 12866 Review

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Page 177 of 186 40 CFR Part 300 App. E Environmental protection, Water pollution control
40 CFR Part 302.3 Environmental protection, Water pollution control
40 CFR Part 401.11 Environmental protection, Water poll ution control

Dated: Dated:

Gina McCarthy, Jo Ellen Darcy, Administrator Assistant Secretary of the Army Environmental Protection Agency. (Civil Works) Department of the Army.*** E.O. 12866 Review

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Page 178 of 186 For the reasons set out in the preamble, ti tle 33, chapter I of the Code of Federal Regulations is proposed to be amended as follows: PART 328

– DEFINITION OF WATERS OF THE UNITED STATES
1. The authority citation for part 328 continues to read as follows: AUTHORITY: The Clean Water Act, 33 U.S.C. 1251 et seq. 2. Section 328.3 is amended by removing the introductory text and revising subsections (a), (b) and (c) 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 comm erce, 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 w etlands, ponds, lakes, oxbows, impoundments, and similar waters;*** E.O. 12866 Review

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Page 179 of 186 (7) All waters in paragraphs (A) through (E) of this paragraph where they are determined,

on a case - specific basis, to have a significant nexus to a water identified in paragraphs (a)(1) thr ough (3) of this section. The waters identified in each paragraph (A) through (E) of this paragraph 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) 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 al so an adjacent water under paragraph (a)(6), 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 l ack permanent natural outlets located in the upper Mid

- west. (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 drainag e, 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 Coa st.*** E.O. 12866 Review

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Page 180 of 186 (8) All waters located within 4000 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. The entire water is a water of the United States if a portion is located within 4000 feet of the high tide line or ordinary high water mark. Waters identified in this paragraph shall not be com bined 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 signifi cant nexus analysis is required. (b) The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (a)(1) through (8) of this section. (1) Waste treatment systems, including treatment ponds or lagoons designed to meet t he 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 Wat er Act jurisdiction remains with
EPA. (3) The following ditches: (A) Ephemeral ditches that are not a relocated tributary or excavated in a tributary. (B) Ephemeral and intermittent roadside ditches that drain a Federal, state, tribal, county, or municipal roa d, and that are not a relocated tributary or excavated in a tributary.*** E.O. 12866 Review

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Page 181 of 186 (C) 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: (A) Artificially irrigated areas that would revert to dry land should application of water to that area cease; (B) Artificial lakes and ponds created in dry land and used primarily for uses such as stock watering, irrigation, settling basins, ric e growing, 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 p its 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 waterw ays; and (G) 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 created in d ry land: detention and retention basins built for wastewater recycling, groundwater recharge basins, and percolation ponds built for wastewater recycling, and water distributary structures built for wastewater recycling.*** E.O. 12866 Review

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Page 182 of 186 (c) Definitions

— In this section, the fo llowing 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, be ach dunes and the like. For purposes of determining adjacency, a water that includes wetlands within or abutting its ordinary high water mark is considered a single water. Adjacency is not limited to waters located laterally to a water identified in parag raphs (a)(1) through (5) of this section. 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, contiguou s, or neighboring such water, are adjacent. Waters subject to established, normal farming , silviculture, and ranching activities (33 USC § 1344(f) (1) ) are not adjacent. (2) Neighboring. The term neighboring means: (A) all waters located within 100 feet of the ordinary high water mark of a water identified in paragraphs (a)(1) through(a)(5) 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 floo dplain of a water identified in paragraphs (a)(1) through (5) of this section and not more than 1500 feet of the ordinary high water mark of such water. The entire water is neighboring if a portion is located within 1500 feet of the ordinary high water mar k and within the 100 year floodplain;*** E.O. 12866 Review

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Page 183 of 186 (C) all waters located within 1500 feet of the high tide line of a water identified in paragraphs (a)(1) or (a)(3) of this section, and all waters within 1500 feet of the ordinary high water mark of the Great Lakes. T he entire water is neighboring if a portion is located with 1500 feet of the high tide line. (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 paragraph s (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 incl udes waters such as rivers,
streams, canals, and ditches not excluded under paragraph (b) 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 m ore 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 water excluded under paragraph (b) of this section, directly or through another water, to a water identified in paragraphs (a)(1) through (3) of this section.*** E.O. 12866 Review

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Page 184 of 186 (4) Wetlands. The term wetlands means those areas that are inundate d 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, physic al, 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 ha s a significant nexus, the water’s effect on downstream (a)(1) through (3) waters shall be assessed by evaluating the aquatic functions identified in paragraphs (A) through (I) of this paragraph. 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: (A) sediment trapping,*** E.O. 12866 Review

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Page 185 of 186 (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, or (I) provision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting, breeding, spawning, or use as a nursery area) for spe cies located in a water identified in paragraphs (a)(1) through (3) of this section. (6) O rdinary 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 characteri stics 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*** E.O. 12866 Review

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Page 186 of 186 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 agains t a coast by strong winds such as those accompanying a hurricane or other intense storm.

***

# Economic Analysis ofthe EPAArmy Clean Water Rule

April 27, 2015 DRAFT FINAL

U.S. Environmental Protection Agency

U.S. Army Corps of EngineersDraft, Internal, Deliberative

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1 Abt Associates provided technical support to U.S. EPA under contract EP

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2 

# Table of Contents Executive Summary

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

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

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

................................ ................................ ............ 3 Section 4: Estimated Changes in Positive Jurisdictional Determin ations

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

................................ ................................ ....... 12 Section 6: Estimate of Potential Clean Water Act Section 311 Oil Spill Prevention Program Costs and Benefits

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

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

..................... 18 Section 402 Stormwater Permitting

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

................................ ........... 24 Section 402 Pesticide General Permitting

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

..................... 28 CWA Section 404 Compliance Costs

................................ ................................ ....................... 28 Permit Application Costs

................................ ................................ ................................ ...... 32 Compensatory Mitigation Costs

................................ ................................ ........................... 34 Wetland Mitigation Costs

................................ ................................ ................................ ..... 35 Stream Mitigation Costs

................................ ................................ ................................ ....... 37 CWA Section 404 Benefits

................................ ................................ ................................ ....... 38 Wetland Mitigation Benefits

................................ ................................ ................................ . 38 Valuation of Wetland Benefits

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

................................ .............. 42 Aggregation of Benefits

................................ ................................ ................................ ........ 44 Sect ion 10: Summary of Estimated Indirect Costs and Benefits

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

................................ ................................ ................ 49 Corps Administrative Costs

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

....................... 52 Paperwork Reduct ion Act

................................ ................................ ................................ ......... 52 Regulatory Flexibility Act

................................ ................................ ................................ ........ 52Draft, Internal, Deliberative

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3 Unfunded Mandates Reform Act

................................ ................................ .............................. 53 Executive Order 13132: Federalism

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

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

................................ ................................ ................................ ................................ ................... 56 Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

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

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

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

.............................. 60 Summary of Wetland Benefits Studies

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

................... 68 Ap pendix C: Sensitivity Analyses

................................ ................................ ................................ 69Draft, Internal, Deliberative

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4 

# Executive Summary

Key Background The Environmental Protection Agency (EPA) and the U.S. Department of the Army (Army) have prepared a final rule revis ing the definition of the regulatory term “waters of the United States.” This term identifies waters which are, and are not, subject to the Clean Water Act (CWA)

. The agencies have worked to develop this rule in lig ht of the Act , science, Supreme Court decisions, public comments, and the agencies’ experience and technical expertise. The final rule includes eight categories of jurisdictional waters, maintains existing ex emptions for certain categories of activities a nd waters, and adds additional exclusions for categories of waters that are never covered under the Act. The final rule does not establish regulatory requirements and , therefore , does not impose direct costs on any entity. Instead, it is a definitional rul e that clarifies the scope of “waters of the United States .” The agencies prepared this economic analysis to better understand the incremental costs and benefits that may result from any change in the number of positive jurisdictional determinations 1 asso ciated with CWA programs relying on the definition of “waters of the U nited States. ” This s ummary describes the overall approach and presents the key results from the economic analysis.

Key Elements of the Analysis Baseline for Comparison When determining which waters are covered by the CWA today, the agencies make jurisdictional determinations consistent with the law, existing regulations and policy, and the Supreme Court rulings in 2001 and 2006. This scope of waters currently covered by the CWA is considerably smaller than the scope of waters historically covered prior to the 2001 and 2006 Supreme Court decisions. Based on the reduction in the scope of CWA jurisdiction, the agencies conclude that the new rule would impose no additional costs when compared to historic application of the regulation it replaces. For purposes of this economic analysis, however, the agencies evaluated costs and benefits associated with the difference in jurisdictional determinations between the new rule and current field practice, which is based on the 2008 EPA and Corps jurisdiction guidance . This

1 A “positive jurisdictional determination” is a decision to assert CWA jurisdiction over a particular water. The alternative is a “negative jurisdictional determination” which is a decision not to assert CWA jurisdiction over a particular water. It is im portant to note that the purpose of the economic analysis is not to estimate the change in the numbers of waters subject to jurisdiction.Draft, Internal, Deliberative

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5 policy guidance has been implemented by the agencies since 2008 and reflects the Supreme Court decisions that limited assertion of CWA jurisdiction for some types of waters. Compared to this baseline, the agencies anticipate the new rule will result in an increase in the number of positive jurisdictional determinations and an associated increase in both costs and benefits that derive from the implementation of CWA programs.

Evaluation of Jurisdictional Determinations To calculate costs and benefits to CWA programs , the agencies first estimated the potential changes to jurisdictional determinations due to the final rule

. The agencies reviewed a sample of negative ju risdictional determinations (JDs) (i.e., determinations of no jurisdiction ) completed by the Corps in fiscal years 2013 and 2014 to assess whether or not the JD would change under the final rule. 2 It is important to emphasize that the economic analysis fo cuses exclusively on the costs and benefits associated with this change in negative to positive JDs , rather than an analysis of how the scope of jurisdiction changes. Nationwide data do not exist on the areal extent of all waters covered by the CWA

- the agencies generally only make jurisdictional determinations on a case

- specific basis at the request of landowners. The agencies updated their economic analysis of the proposed rule , which relied upon data from FY09 and FY10, by r eviewing more recent data from FY13 and FY14 . This not only ensures that the most current data are used, but also responds to concerns raised in public comments that the FY09 and FY10 dataset used in the economic analysis for the proposed rule represented a period of decreased eco nomic activity. JDs covering three categories of waters were reviewed

– streams, wetlands, and other waters. The agencies relied on certain conservative assumptions in their economic analysis that have the effect of consistently increas ing the number of positive JDs that results from the new rule. Key assumptions and JD estimates include the following:

• For purposes of this analysis, the agencies assume that all waters in the stream and wetlands categories of the Corps JD data would be determined to be jur isdictional under the new rule , notwithstanding the limits on jurisdiction in the new rule

. • The agencies estimate that 17 .1 percent of negative jurisdictional determinations for “other waters” will become positive under the new rule because they meet the d efinition of “adjacent.” Prior to the new rule, non - wetland adjacent waters were subject to a case

specific analysis because the definition of “adjacent” applied only to wetlands, not all waters.

• The agencies estimate that a total of 34.5 percent of the “o ther waters” JD category will change from negative to positive under the (a)(7) provision of the new rule.

2 The information available in the Corps ORM2 database does not allow the agencies to evaluate the percent of waters c urrently found to be jurisdictional that will not be under the final rule.Draft, Internal, Deliberative

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6 • The agencies estimate that 5 percent of the remaining determinations in the “other waters” JD category will change from negative to positive under the (a)(8) provision of the new rule.

• Before estimating the overall change from negative to positive JDs, the agencies doubled the number of JDs in the “other waters” category , raising their representation in the total JD data from 6 percent to 11 percent to account for instances where landowners might not currently seek a jurisdictional determination and therefore are not represented in the data system. As a result of these assumptions and the estimates derived for all three categories of JDs in the FY13 and FY14 data, t he agencies estimate that t here will be an approximate 4.65 percent increase in positive jurisdictional determin ations annually due to the new rule when compared with current field practice.

Costs and Benefits It is important to note that a positive jurisdictional determination that a water is subject to the CWA is not equivalent to a new permit. Absent data to correlate positive jurisdiction to a new permit for purposes of estimating the costs and benefits of the rule, the agencies made the conservative assumption that the final rule could affect entities regulated under the CWA programs in direct proportion to this percentage change in positive jurisdictional determinations. To estimate annual costs and benefits , the age ncies uniformly applied the 4.65 percent increment in jurisdiction to the total costs and benefits for the Sections 311, 401, 402 (stormwater, pesticide general permit, Confined Animal Feeding Operation permits) and 404 programs to account for an estimated increase in permitting and activities that would result

. The agencies relied on existing annual administrative and compliance co st information, and updated cost figures to 2014 dollars. A significant focus of the benefits analysis is on an anticipated increase in CWA 404 permits that would result in ecological benefits from those permitted losses being offset through compensatory mitigation. The agencies estimate the potential benefits from CWA 404 compensatory mitigation based upon a benefits transfer analysis using studies measuring willingness to pay for preservation of wetlands similar to the type likely to be protected by thi s rule

. Updates to the final rule benefits analysis from the proposal analysis include making improvements by refining the approach to calculating benefits from S ection 404 compensatory mitigation and differentiating between emergent and forested wetlands

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7 Key Findings Figure ES

- 1 presents a summary of the estimated indirect costs and benefits. There are several costs and benefits that the agencies were unable to monetize , including permitting time and project redesign costs under Section 404, as well as the benefits of Section 404 stream mitigation, benefits of the 402 pesticide general permit, and benefits of the 401 certification program. The agencies believe, however, that costs and benefits associated with each of these would be relatively small. In addition, t he agencies conducted a sensitivity analysis by changing certain assumptions in the initial estimate of increased positive jurisdictional determinations. This analysis may be found in Appendix C.

Key Conclusions

• The agencies’ analysis indicates that for all scenarios, indirect incremental benefits exceed indirect incremental costs by a ratio of up to 2:1

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

• I ndirect costs and benefits may be over

- estimated because each newly jurisdictional water will not be affected by all CWA programs simultaneously, and a particular activity affecting a water may be exempt from permitting under the Clean Water Act.Draft, Internal, Deliberative – Do not cite, circulate, or copy.

8 Figure ES - 1 . Estimated Annual Indirect Costs and Benefits Annual Cost s (FY14$ millions) Annual Benefits (FY14$ millions) Low High Low High CWA 402 CAFO Administration $0.3 $0.3 $6.2 $10.8 CWA 402 CAFO Implementation $9.9 $9.9 CWA 402 Stormwater Administration $0.5 $0.5 $47.5 $60.2 CWA 402 Stormwater Implementation $47.8 $59.6 CWA 404 Permit Application $47.0 $80.3 $501.2 $501.2 CWA 404 Mitigation

– Wetlands $90.1 $232.8
SUBTOTAL $195.7 $383.3 $554.9 $572.3 CWA 311 Compliance $12.7 $12.7 not quantified CWA 401 Administration $1.3 $1.3 not quantified CWA 402 Pesticide General Permit Implementation $5.4 $5.9 not quantified CWA 404 Mitigation

– Streams $22.4 $44.4 not quantified
TOTAL $237.4 $447.6 $554.9 $572.3

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

T he U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (ACOE or Corps ) conducted this economic analysis to provide the public with information on the potential indirect costs and benefits associated with the Final Clean Water Rule: Definition of “Waters of the United St ates” (hereafter referred to as the rule). The rule defines the scope of jurisdiction under the Clean Water Act for streams, wetlands, lakes , and other waters that form the foundation of the nation’s water resources. This rule , modifying the definition o f “waters of the U.S.,” by itself imposes no direct costs. The potential costs and benefits incurred as a result of this rule are considered indirect , because the rule is a definitional change to a term that is used in the implementation of CWA programs ( i.e., sections 303, 305, 311, 401, 402, and 404)

. Entities currently are, and will continue to be, subject to the provisions of these programs. Each of these programs may subsequently impose direct or indirect costs as a result of implementation of their specific provisions

. While all of the costs and benefits associated with this rule are indirect, for readability throughout the rest of this document these indirect costs and indirect benefits are identified simply as costs and benefits. On April 21, 201 4, the EPA and the U.S. Army Corps of Engineers published a proposed rule to reduce uncertainty about the scope of “waters of the United States” covered by Clean Water Act programs, that arose from interpretation of Supreme Court decisions in 2001 and 2006

. During the public comment period, which ran until November 14, 2014 , over one million comments were received. The agencies reviewed those comments in preparing this final rule. [Stock language on rule changes , including discussion of expanded ex clusions

. ]

In preparing this document (the Economic Analysis or EA), the agencies updated and revised the analyses completed for the proposal. The following sections describe Clean Water Act regulatory programs tha t will be affected by this rule, the ap proach used by the agencies to estimate a potential change in jurisdiction al determinations b ased on the final rule, costs and benefits estimates associated with the final rule, and updates and enhancements to the analyses for the final EA. In addition, t he agencies conducted a sensitivity analysis to determine the effects of different assumptions on the scope of jurisdiction and costs and benefits . For the main analysis and the sensitivity analysis, benefits exceed costs.Draft, Internal, Deliberative

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1 

# Section 2 : Clean Water Act Re gulatory Programs

The goal of the Clean Water Act (CWA) is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. To achieve that goal, the CWA establishes a number of regulatory and non

- regulatory programs that are designed to control pollution at its source and improve water quality. As a pollution prevention statute, the CWA extend s beyond waters that are navigable in fact to include the headwater streams, lakes, and wetlands and other waters that contribute significantly to protect the integrity of navigable waters

. The scope of waters that are specifically covered by CWA programs is all waters meeting the definition of “waters of the United States

. ” Any water that does not meet the definition of “water s of the U.S.” is not subject to the CWA

. Figure 1 depicts the various CWA programs that are affected by the definition of “waters of the U.S. ,” along with the government entities that may be responsible for administering the programs. Among its many provisions, the CWA calls for states and tribes to set standards for meeting water quality goals and develop ing plans to restore polluted waters ( section 303); establishes oil spill prevention and clean

- up programs (section 311); establishes state and tribal roles in certifying that federal permits will not violate water quality standards and other CWA requirements, as well as relevant state or tribal laws (section 401) ; requires permits for pollutant discharges (section 402); requires permits for the placement of dredged or fill material, (section 404); and allows the federal government, states, tribes, and communities to enforce the law. The potential effects of this rule on each of these programs is discussed in greater detail in the sections that follow.Draft, Internal, Deliberative – Do not cite, circulate, or copy.

2 Fi gure 1 - Affected Clean Water Act Programs 

## Navigable Waters: Waters of the United States, Including Territorial Seas

303

• Water Quality

Standards and TMDLS

• Involved in

implementation:

• States

• Tribes

• USEPA 311

• Oil Spill

Programs

• Involved in

implementation:

• USEPA

• DHS

• DOI

• DOT 401

• State Certification

• Involved in

implementation:

• States

• Tribes

• USEPA 402

• Pollutant

Discharge Permits

• Involved in

implementation:

• States

• Tribes

• USEPA 404

• Dredge and Fill

Permits

• Involved in

implementation:

• States

• Tribes

• USACE

• USEPA

As shown in Figure 1 , st ates and tribes have a significant role in administering many CWA programs. This economic analysis does not account for the possibility that some states, as a matter of state law, may be considering a broader set of waters to be subject to a state’s implementation of certain CWA programs. Although the extent of a state’s CWA jurisdiction may not be smaller than the definition of waters of the U.S., states and tribes may elect to implement their water quality protection programs more broadly, according to a definition of “waters of the state” or “waters of the tribe

. ” Where individual states have elected to regulate waters more broadly, the estimated costs and benefits of this rule may be smaller than presented here (because states may already be asserting jurisdiction over waters for which this analysis presumed jurisdiction was not generally asserted in practice). The particulars of individual state laws and regulations vary greatly . A 2013 Environmental Law Institute report estimated that approximately two

- thirds of all states place so me legal constraint on the authority of state and local government officials to adopt aquatic resource protections beyond the CWA definition of “waters of the U.S.” These may be straightforward stringency limitations, property -based limitations, or combinations of the two. The provisions may be partial limitations, affecting only some applications . The ELI report estimates that approximately half the states have some provisions that extend protections beyond

“ waters of the U.S. ” Some of these provisions pre- date new stringency limitations and may not b e retroactive. 3

3 Environmental Law Institute. 2013. State Constraints: State

- Imposed Limitation on the Authority of Agencies to Regulate Waters Beyond the Scope of the Federal Clean Water Act. En vironmental Law Institute, Washington, DC.Draft, Internal, Deliberative

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3 

# Section 3 : Approach for the Economic Analysis

For this economic analysis, there are two potential baselines. The first potential baseline would use the EPA and Corps regulations it is written to replace. This rule will reduce the scope of waters subject to protection under the CWA compared to that b aseline, because of changes in law that arise from Supreme Court decisions . T he SWANCC (2001) and Rapanos (2006) Supreme Court decisions that altered the basis for assertion of CWA jurisdiction for some types of waters. T he final rule is narrower in juri sdictional scope than the existing regulations, there would not be potential cost s in comparison to this baseline. However, there is a second baseline founded in current field practice following the 2008 G uidance (see EPA and Corps guidance Clean Water Ac t Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States , issued December 2, 2008) , T he agencies selected this second baseline for purposes of evaluating the costs and benefits associated with the final rule. This is because it is more in line with EPA and OMB guidance on selecting a baseline and reflects the expectations that most stakeholders are likely to hold To evaluate a nd estimate potential costs and benefits associated with this rule , the economic analys i s utilize s available program data and documentation to estimate the extent to which assertion of jurisdiction might change under the final rule . The proposed rule anal ysis , which also estimated potential costs and benefits relative to current field practice, utilized CWA S ection 404 jurisdictional determination and permit data from fiscal years 2009

- 2010, following issuance of program guidance in 2008 by the EPA and the Corps (post SWANCC and Rapanos ). The analysis for the final rule has been updated using data from fiscal years 2013

- 2014, providing a comparison to more recent data , and respond ing to public comments expressing concern that the fiscal year 2009

- 2010 data represented a period of economic downturn

. Using jurisdictional determination data from fiscal years 2013 and 2014, a n estimate of how assertion of jurisdiction may change as a result of this rule is applied to cost and benefit information for affected C WA programs . Additional updates to the economic analysis include updated assumptions about the amount of compensatory mitigation occurring under CWA 404 general permits; a refined approach to calculating benefits from Section 404 compensatory mitigation, differentiating between emergent and forested wetlands ; updated Section 404 wetland mitigation costs ; and sensitivity analyses reflecting different assumptions of jurisdiction al determinations and costs and benefits

. The agencies’ analysis shows that incr emental benefits always exceed incremental costs.

Uncertainties and Limitations T he economic analysis is necessarily based on available information and the resulting cost and bene fit estimates correspondingly reflect available information . In estimating costs andDraft, Internal, Deliberative

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4 benefits from CWA programs under Section 311 and 401, regulator experience necessarily plays an important role, given a lack of complete information. The approach to estimating costs and benefits for each of these programs is pr esented in Sections 6 and 7, respectively. Additionally, costs and benefits estimated from potential increases in permitting in the CWA Section 402 program , presented in Section 8, utilize data from economic analyses from the Section 402 final rule or the final permit that established the program. As a result, cost and benefit figures presented here are subject to the same limitations as those underlying analyses. Estimates of costs and benefits from Section 404 of the CWA are presented in Section 9. Si nce completion of the economic analysis at proposal the Corps of Engineers undertook significant efforts to complete quality assurance on 404 program data. This resulted in improvements in data availability and data quality, which in some instances revise d previously

- reported values

. The estimate of benefits for newly

- mitigated wetland impacts utilizes benefits transfer from stated preference willingness

- to

- pay (WTP) studies. Literature on WTP for wetlands similar to those likely to be protected by this rule is very limited, and was predominately published in the 1990s. Since that time, significant changes have been made in standard practices for this type of study, and thus the results presented here must be viewed accordingly. Recognizing these consi derations , t his analysis utilizes the best available information to assess the effects of the final rule on a variety of CWA programs and provide quantitative estimates for many potential impacts. The agencies took care throughout this document to describ e the strengths and limitations of this analysis and encourage readers to treat the results with an appreciation of their limitations

.Draft, Internal, Deliberative

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5 

# Section 4: Estimated Changes in Positive Jurisdiction al Determinations

To evaluate the extent to which assertion of CWA jurisdiction by EPA and the Corps may change as a result of this rule, EP A examined data records in the Corps’ ORM 2 (Operation and Maintenance Business Information Link, Regulatory Module) database that documents Corps jurisdictional status decisions (jur isdictional determinations) associated with various aquatic resource types. The aquatic resource data records include the following categories: traditional navigable waters, relatively permanent waters, non

- relatively permanent waters, wetlands associate d with these categories; as well as uplands, impoundments, and isolated waters. The isolated waters category is used in the Corps’ ORM2 database to represent intrastate, non

- navigable waters ; including wetlands, lakes, ponds, streams, and ditches, that la ck a direct surfac e connection to other waterways. T hese waters are hereafter referred to as “ ORM2 other waters.” It is important to emphasize that the ORM2 other waters group represents a more inclusive set of waters than would be determined to be subje ct to a case

- specific analysis in the final rule. The ORM2 other waters group includes many wetlands and some non

- wetlands waters that could meet the definition of “adjacent” under the final r ule as well as waters that are actually traditional navigable waters but that inconsistent practices following Rapanos may have incorrectly classified as other waters under current practice

. To examine how assertion of jurisdiction may change, the agencies re viewed negative jurisdictional determinations (JDs) for ORM2 other waters completed by the Corps in fiscal years 2013 and 2014 (i.e. , determinations of no jurisdiction)

. Reviewing a more recent dataset from FY13 and FY14 responds to concerns raised in public comments that the FY09 and FY10 dataset used in the proposal represented a period of decreased economic activity. As the agency that manages day

- to

- day implementation of the CWA section 404 program, the Corps conducts tens of thousands of JDs each year. For other federal CWA programs, EP A or the state (in the case of state

- assumed programs) typically do not conduct JDs, with the exception of enforcement. Thus, most of the nation’s JDs for CWA purposes originate from the Corps

. Under current practice, JDs for waters determined to be “ other waters ” ar e required to be coordinated with EPA and Corps Headquarters, creating an organized set of JD files for review. JD files for positive JDs (i.e. , determinations that waters are jurisdictional) are maintained by Corps District offices, and are not organized according to the regulatory provision under which a water is jurisdictional. As a result, reviewing how current positive JDs may become negative as a result of the final rule was determined to be outside the scope of this analysis. Analyzing only negative JDs allows for an estimation of only the potential increase in assertion of CWA jurisdiction , as viewed through the len s of CWA 404 activity during the baseline period of these fiscal years

. The agencies recognize that the rule may result in some currently

- jurisdictional waters being found to be non

- jurisdictional

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6 ORM2 aquatic resource records from FY13 and FY14 were placed into three groups: streams (ORM2 categories of traditionally navigable waters, relatively permanent waters, and non - relatively permanent waters), wetlands (as sociated with the various categories a b ove of streams), and ORM2 other waters. These cate gories represent categories used in the agencies’ 2008 guidance. Similar to the data from FY 09 to FY 10 that was evaluated in the economic analysis for the proposed rule, streams represented 65 percent of the total number of FY 13 to FY 14 records, wetlands represent 29 percent of the records, and other waters represent 6 percent of the records. 4 I n the FY13 to FY 14 baseline period , 93.2 percent of aquatic resource records were found jurisdictional where applicants sought a determination

. From this baseline level of jurisdiction al determinations , the agencies estimate an overall percent change in positive jurisdiction al determinations . The agencies begin by assuming that 100 percent of the records classified as streams will meet the definition of tributary in the final rule, and 100 percent of the records classified as adjacent wetlands will meet the definition of adjacent in the final rule. In assuming 100 percent jurisdiction of streams and adjacent wetlands the agencies are likely overestimating the numb er of positive jurisdiction al determinations over these waters, because some of these streams and wetlands considered jurisdictional under current practice would not be under the final rule

. Wetlands currently considered “adjacent” may be outside the applicable distance thresholds and non

- jurisdictional. Similarly, all waters presently classified as streams may not meet the required physical characteristics under the final rule to be considered “tributary.” N ote that waters that are currently found to be jurisdictional may also be subject to the expanded set of exclusions included in the final rule. For these and similar reasons, the agencies believe that positive jurisdiction al determinations under the final rule will be less than assumed for the purposes of this economic analysis. The greatest change in current practice of CWA jurisdiction al determinations is expected for waters currently known as “other waters , ” and captured in the ORM2 other waters categ ory. The final rule changes the existing re gulation so that the basis of asserting jurisdiction for such waters is based on a significant nexus to a traditional navigable water, interstate water, or the territorial seas instead of based on a water’s abili ty to affect interstate or foreign commerce. As a result, this analysis reflects three potential ways that waters currently found non - jurisdictional as

“ other waters ” could be determined to be jurisdictional : (1) a revised definition of adjacent waters, that includes physically proximate wetland and non - wetland waters, that under prior regulations were evaluated as “isolated,” (2 ) specific classes of waters determined to be similarly situated by (a)(7) in the final rule that today are subject to a case - sp ecific significant nexus evaluation , and (3) waters that are subject to a case - specific significant nexus analysis under (a)(8) and lie within 4,000 feet from the high tide line or ordinary high water mark of a traditionally navigable water, interstate wa ter, territorial sea, jurisdictional impoundment of waters, or tributaries.

4 This other waters figure is consistent with the general estimate of the total proportion of “other waters” compared to the overall extent of wetlands and lakes (see e.g. Tiner (2003) and EPA (2014)).Draft, Internal, Deliberative

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7 To determine how negative jurisdiction al determinations may change for ORM2 other waters under the final rule , a team of EPA experts from across the country independently examine d a random sample of 188 jurisdictional determination files previously generated with Corps headquarters during FY13 and FY 14

. A file may include more than one water. In total, t hese files represented over 782 individual waters in 32 states and were previously determined non - jurisdictional based on current regulations and guidance

. Of the existing negative determinations for ORM2 other waters:

• 17 .1 percent of negative jurisdictional det erminations for ORM2 other waters were assumed to becom e positive jurisdictional determinations under the final rule because they meet the definition of adj acent waters and are not excluded under paragraph (b) of the rule

. T hese waters fa ll within the 100

- year floodplain and are within 1 , 500 feet of a stream mapped on the USGS’s National Hydrolog y Dataset (NHD). A ll waters within 300 feet of a stream mapped on the NHD are assumed to become adjacent waters

. In the final rule, only waters that are within 100 feet of the ordinary high watermark of a non

- tidall y influenced traditional navigable water, interstate water, or a jurisdictional tributary are adjacent , so this overestimate s waters that could become jurisdictional within this category.
o All of these waters are assumed to result in a positive jurisdiction al determination for the purposes of the economic analysis.

• A total of 21.8 percent of the ORM2 other waters were assumed to fall within section (a)(7) of the final rule and not be excluded under paragraph (b) of the rule . These waters , where they do not meet the provisions of other paragraphs of the rule, are determine d to be similarly situated by rule, though their jurisdiction would still need to be determined on a case

- specific basis

. o To estimate th e likelihood that these waters c ould be found juris dictional, EPA evaluated several factors in the area s where the five categories of waters are commonly found based on Dahl (2014), Moulton (2000), and Tiner (2003)

. 5 Density of waters (i.e. , their co

- location with each other) and their proximity to the tr ibutary system were key factors, with greater density and closer proximity generall y capturing certain watersheds. In addition, chemical, physical, and biological features of each of the categories were factors, as were practical considerations such as th e overall size and continuity of the area in which the category waters were located. EPA used data from the U.S. Fish and Wildlife Service’s National Wetland Inventory to evaluate the density of wetlands in the areas of interest. Given the high density o f wetlands in certain watersheds where the category waters are commonly located, for the purposes of this analysis it is assumed that all of the waters of the selected

5 Dahl, T.E . 2014. Status and trends of prairie wetlands in the United States 1997 to 2009. U.S. Department of the Interior; Fish and Wildlife Service, Ecological Services, Washington, D.C. (67 pages). Moulton, D. W. and J. S. Jacob. 2000. Texas Coastal Wetlands Guid ebook. Texas Sea Grant ( 66 pp). Tiner, R.W. 2003. “ Geographically Isolated Wetlands of the United States. ” Wetlands 23 (3): 494

- 516.Draft, Internal, Deliberative

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8 categories that fall into these high density watersheds will result in a positive determ ination. This is because a significant nexus analysis that considers the aggregation of many similarly situated waters generally is anticipated to be more likely to have a significant nexus than that which considers fewer waters. Nine and a half ( 9.5 ) percent of the total ORM2 other waters are located in these high density watersheds, and were assumed to have a significant nexus and be determined as jurisdictional for the purposes of this analysis. o The remaining 12.4 percent of ORM2 other waters that w ere identified as a special type are located in watersheds with less dense estimated wetland coverage. Given this lower density, for the purposes of the economic analysis it is assumed that half of these waters will be found to be jurisdictional under the rule , a total of 6 .2 percent [= 12.4 %*0.5]

. Using these assumptions, approximately 7 2 percent of the ORM2 other waters that fall under section (a)(7) are assumed to become jurisdictional. In the context of all ORM2 other waters, it is assumed that a total of 1 5 .7 percent of the ORM2 other waters will become jurisdictional under (a)(7) of the final rule [=9.5%+ 6 .2% ].

• The remaining 33.1 percent of ORM2 other waters could be determined to be jurisdictional under paragraph (a)(8) of the final rule as they do not meet the criteria for adjacency, do not fall under paragraph (a)(7), and are not excluded under paragraph (b) of the final rule. Paragraph (a)(8) of the final rule allows for a case

- specific significant nexus analysis for waters within 4,000 feet from the high tide line or ordinary high water mark of a traditionally navigable water, interstate water, territorial sea, jurisdictional impoundment, or water that meets the definition of tr ibutar y . Paragraph (a)(8) also allows waters to be aggregated with waters of the same type that are similarly situated for the purposes of a significant nexus analysis. Some of the waters that will be determined to be jurisdictional under this category a re presently found to be jurisdictional as adjacent waters under current practice, based on their connections to currently jurisdictional waters. For the purposes of this economic analysis, the agencies assumed that 100 percent of wetlands currently consi dered adjacent will be determined to be jurisdictional; some of these currently adjacent waters may be outside the distance limits of adjacency in the final rule and as a result under the final rule will be determined to be jurisdictional under (a)(8), if found in a case - specific analysis to have a significant nexus. Additionally, some waters that are presently determined to be jurisdictional but fall outside of the 4,000 foot limit under (a)(8) or that are determined to be jurisdictional as adjacent water s based on connections via confined surface flow or shallow subsurface flows will no longer be found jurisdictional under the final rule. These potential reductions in positive jurisdiction al determinations are not quantified as part of this analysis. To calculate the percentage of ORM2 other waters that could found to be jurisdictional under paragraph (a)(8) , the agencies used the procedure described in Section 11 of the econ omic analysis that accompanied the proposal, examining information on the extent of isolated wetlands in a watershed and the likelihood of aggregation and a positive significant nexus analysis. This approach estimated that 5 percent of waters may be located in watersheds where a positive significant nexus evaluation with aggregation is likely ( and estimatesDraft, Internal, Deliberative

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9 beyond 10 percent of waters being found to have a significant nexus after aggregation do not represent realistic assumptions. ) For the purposes of this analysis, the agencies assume that 5 percent of the remaining ORM2 other water s not meeting an exclusion under paragraph (b) of the final rule will be found to be jurisdictional under (a)(8). This represents 1.7 percent of the total number of ORM2 other waters [33.1%*.05]

. In total , the agencies estimate that 34.5 percent of the ORM2 other waters will be found to be jurisdictional under this final rule. This estimate is the sum of the 17 .1 percent (adjacent waters), 1 5 .7 percent ((a)(7) ) , and 1.7 percent ( (a)(8) ) subsets of the ORM2 other waters category. To estimate an overall potential change in positive jurisdiction al determinations from current practice , an increase in assertion of jurisdiction in any category of waters (streams, wetlands, and ORM2 other waters) must be applied proportionally based on the size of that catego ry relative to the total number of waters. Figure 2 presents the results of applying the assumptions above to the baseline set of ORM2 other waters. Figure 2 . Projected Change in Positive Jurisdiction al Determinations , Using Original Number of ORM2 Other Waters Records. 6 Number of ORM2 Records (FY13
- 14) Percent of Total ORM2 Records Positive Jurisdictional Records (FY13
- 14) Percent Positive Jurisdiction (FY13
- 14) Projected Percent Positive Jurisdiction Relative Contribution to Overall Change in Jurisdictional Waters Streams 103,591 65% 102,894 99.3% 100.0% 0.44% Wetlands 46,781 29% 46,273 98.9% 100.0% 0.32% ORM2 Other Waters 9,715 6% 0 0.0% 34.5 % 2.0 9 %

Total 160,087 100% 149,166 93.2% 96. 0 % 2.8 4 %
Label A B C D E F Formula A/Total(A) C/A (E

- D)*B
The agencies also account for waters where landowners may have assumed their waters to be non - jurisdiction al in the FY13

- 14 baseline period, and thus are not represented in the dataset. To do this, the agencies doubled the number of ORM2 other waters over the baseline period

. In the analysis accompanying the proposed rule, this doubling was only applied to wat ers not meeting the definition of adjacency. This assumption reflects the belief that waters found to be adjacent are located on the landscape such that their current jurisdictional status is likely to be ambiguous and so a landowner would have sought a jurisdictional determination prior to any water disturbance activity. Public comments expressed concern with this

6 Calculations reflect rounding.Draft, Internal, Deliberative

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10 assumption, and as a result in this analysis the agencies doubled the number of ORM2 other waters for all calculations. As a result of this doubling, ORM2 other waters represent 11 percent of the total number of ORM2 records. Figure 3 below shows how doubling the number of ORM2 other waters affects the estimated increase positive jurisdictional determinations. Figure 3

- Projected Change in J urisdictional Determinations, using 2x the Number of ORM2 Other Waters Records 7 Number of ORM2 Records (FY13
- 14) Percent of Total ORM2 Records Positive Jurisdictional Records (FY13
- 14) Percent Positive Jurisdiction (FY13
- 14) Projected Percent Positive Jurisdiction Relative Contribution to Overall Change in Jurisdictional Waters Streams 103,591 61 % 102,894 99.3% 100.0% 0.41 % Wetlands 46,781 2 8 % 46,273 98.9% 100.0% 0.30 % ORM2 Other Waters 19,430 11 % 0 0.0% 34.5 % 3.94 %

Total 169,802 100% 149,166 87.8 % 91.4% 4.65 %
Label A B C D E F Formula A/Total(A) C/A (E

- D)*B
Based on these assumpti ons, the agencies estimate a 4.65 percent overall increase in positive jurisdictional determinations based on the final rule , utilizing the FY13 and FY14 jurisdictional determination dataset

. The agencies believe this represents the best estimate of the change in jurisdictional assertion under this rule and use this number as the primary estimated change in jurisdiction al determinations to calculate potential incremental costs and benefits when applied to Clean Water Act programs . To the extent that the 4.65 percent is an overestimate of the increase in positive jurisdictional determinations, the costs and benefits are likewise overestim ates. The costs and benefits of other jurisdictional determination scenarios are presented in Appendix C

. It is important to note that by using this estimated increase in positive jurisdiction al determinations as a proxy for increases in permitting acro ss the various Clean Water Act programs the agencies are assuming that permits (or water quality certifications) will be requested for every water that is determined to be jurisdictional. This assumption is conservative because multiple CWA permits are no t likely to be issued for every water projected to be determined jurisdictional

. However, because the agencies do not know which entities will

7 Calculations reflect rounding.Draft, Internal, Deliberative

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11 require CWA permits each year and for which newly

- jurisdic t ional wate rs, the agencies apply this 4.65 percent un iversally.Draft, Internal, Deliberative

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12 

# Section 5: Clean Water Act Sections 303 and 305

CWA Section 303 includes development of state water quality standards, monitoring and assessment of water quality, and development of total maximum daily loads (TMDLs) for waters that are determ ined by the state to not meet applicable water quality standards. States typically develop water quality standards for general categories of waters, including wetlands; in addition to creating site

- specific standards and more generic standards that can apply broadly. State water quality standards have been in effect prior to and continuing after the SWANCC and Rapanos decisions. Therefore, requirements for state water quality standards to be consistent with the CWA (designate d uses, criteria to protect those uses, antidegradation policies) will likely not require any changes as a result of this rule . What could change is whether or not those standards apply to a specific water . To the extent a state believes there are needs for water quality standards development for specific types of waters, those needs would exist with or without this rule. For example, several states have distinct designated use categories for different types of streams, such as New Mexico which has categ ories for ephemeral waters, intermittent waters, and perennial waters. Other states have expressed interest in, or are in the process of, further refining the designated use categories in their water quality standards, or making other modifications. Thes e are ongoing practices for water quality standards development and revision that have occurred and will continue to regardless of changes to the Federal definition of waters of the U.S. The agencies do not project any additional costs relating to develop ment or revision of water quality standards as a consequence of this rule. CWA 305(b) requires a report from states that includes (among other items) a description of the water quality of all navigable waters in the state and an analysis of the extent to w hich they meet the 101(a)(2) goals of the Act. In practice, states typically have a set budget for these activities and make plans accordingly. Many states strive to be as comprehensive as possible and balance the needs to identify all impaired waters wi th probabilistic surveys designed to track general status and trends. To the extent that this rule may increase the coverage where a state would wish to apply its monitoring resources, states are likely to adjust sampling locations or sampling frequency w ithout a net cost increase. If a state chooses to monitor a water whose jurisdictional status has been affected as a result of this rule in lieu of a monitoring site currently in use, there may be opportunity costs associated with this change as there wou ld no longer be monitoring data from the old site

. States conduct assessments ba sed on all existing and readily

- available monitoring data. States are required to list waters that are impaired, but have discretion to prioritize this list for TMDL development, which may proceed over a period of several years under EPA policy. Monitoring, assessment, and TMDL develop ment tend to occur in water segments where theDraft, Internal, Deliberative

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13 agencies assert ion of jurisdiction is unlikely to change

. Therefore, additional cost burdens for TMDL development are not anticipated from this action. 8

8 It is also worth noting that the development and appli cation of a TMDL in a watershed setting is likely to reduce the need for additional controls in downstream waters. In watersheds where this rule clarifies jurisdiction it may reduce the cost of returning an impaired water to a condition of meeting water q uality standards by allowing more efficient control of upstream and other watershed sources of pollution.Draft, Internal, Deliberative

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# Section 6: Estimate of Potential Clean Water Act Section 311 Oil Spill Prevention Program Costs and Benefits

CWA Section 311 addresses oil spill prevention and preparedness, reporting obligations, and response planning. These requirements apply to facilities that produce or store oil products based on total volume. In particular, inland non

- transportation oil facilities of a certain size that have potential to discharge to navigable waters must prepare and implement Spill Prevention, Control, and Countermeasure (SPCC) p lans. Potential costs of this ru le associated with CWA Section 311 include SPCC plan development and implementation for oil storage and production facilities. In its 2009 Regulatory Impact Analysis for the Final Amendments to the Oil Pollution Prevention Regulations , EPA developed compl iance unit costs for SPCC

- regulated facilities, including plan preparation and maintenance, secondary containment, integrity testing, drainage, monthly inspections, security, and training. There are four categories of production and storage facilities, wi th the great majority (more than 80 percent) comprising the lowest two categories in terms of capacity, and the lowest unit costs for compliance. The weighted average annual facility cost is $9,910 for production facilities (about 35% of total facilities) and $14,155 for storage facilities (values adjusted to 2014$ using CPI

- U ). I nformation from EPA Regional Office program managers and enforcement specialists reveal that some potentially

- regulated facilities believe that they are not covered by the applic able SPCC regulations because they do not have the potential to discharge to a water of the U.S. Although there is not corresponding jurisdictional determination information as available for the CWA 404 permit program, it is reasonable to assume that a br oader assertion of CWA jurisdiction may affect some of these facilities. Each EPA Region has historically inspect ed approximately 100 facilities per year for compliance, totaling about 1,000 inspections nationwide per year, although in the past 5 years, the number of inspections has averaged about 700 per year. Upon closer inspection, some of these facilities that asserted non

- jurisdiction conclude they do need to comply. Generally, less arid EPA Regions report that their facilities do not question CWA jurisdiction, whereas EPA Regions that include more arid (western) areas more frequently encounter this claim. Some EPA Regions report that a handful (one to five) facilities claim non

- jurisdiction and that some of these facilities report there are a doz en others like them . One EPA Region reports that at least 20 entities have asserted non

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

- jurisdiction, i t is estimated that there could be ten times more facilities na ti onwide that could successfully make this claim , resulting in a total of 1,000 facilities each year . Assuming that none of these 1,000 facilities have incurred compliance costs (either for the SPCC rule or to meet self

- imposed industry standards) and wou ld now have to come into compliance given their proximity to a water determined to be jurisdictional under the final rule, these facilities are assumed to incur weighted average compliance costs described above. TheDraft, Internal, Deliberative

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15 estimated 1 , 000 affected facilities are divided into 350 production facilities and 650 storage facilities, consisted with the breakdown of the regulated facilities from the 2009 SPCC rule. Applying w eighted average unit costs of $9,910 for production facilities and $14,155 for storage faciliti es results in approximately $12.7 million per year in incremental compliance costs

. Benefits associated with a reduction in spills associated with compliance with the SPCC rule include avoided costs to regulated entities to respond to the event, fines and penalties and market loss. The public will benefit from avoided environmental impacts that can be measured through willingness to pay to prevent environmental damages from oil spills. Other benefits can include avoided impacts to commercial fishing, avoid ed closures of recreational sites, and shutting down of drinking water intakes. EPA assumes that the risk of a spill declines through compliance with the SPCC by these facilities that will now be subject to CWA jurisdiction, but is unable to quantify thes e benefit for this analysis.Draft, Internal, Deliberative

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

Under Section 401 of the CWA , states, tribes, and interstate agencies have the authority to review federal permits or licenses that may result in a discharge to waters of the United States, and certify if t hey will meet applicable water quality standards , certain other provisions of CWA requirements, and appropriate state or tribal laws

. States, tribes, and interstate ag encies may also condition federal permits or licenses to ensure they will not violate those laws and requirements. Section 401 certification is commonly used to review CWA section 404 permits issued by the U.S. Army Corps of Engineers, CWA section 402 per mits in the four states where EPA issues N ational P ollution D ischarge E limination S ystem permits, Rivers and Harbors Act section 10 permits, and Federal Energy Regulatory Commission licenses for non

- federal hydroelectric dams. Because there is no t a consi stent level of effort across states to implement the 401 certification program, based on program experience EPA estimates that a representative distribution of effort would be 25 states dedicating 0.5 FTE (full time employees) equivalent, 20 states dedicat ing 10 FTE, and 5 states dedicating 20 FTE for CWA 401 implementation. This tallies to 312.5 FTE nationally. Section 401 certification program implementation involves prioritizing and review ing permits and generally require s expertise in science, engine ering, and economics along with the associated support staff, legal support, and management. To estimate potential costs to states, Bureau of Labor Statistics occupational employment and wage estimates from May 2013 were used , adjusted to reflect fully

- lo aded labor costs , and updated to 2014 values using the Employment Cost for Employee Compensation Index (See Figure 17 , Appendix A) . Using this data, and assuming an even mix of scientists, engineers, economists, and managers employed by state government, the average fully

- loaded hourly wage is $43.21 per hour. Assuming an eight

hour work day, 5 days a week, and 52 weeks a year, thi s corresponds to an annual cost of $89,868 per employee. Multiplying this by a total of 312.5 FTE, this yields an annual estimate of current expenditures of approximately $28.1 million to implement this program f or all federal permits. In order to estima te the incremental costs associ ated with the final rule, a 4.6 5 percent increase in Clean Water Act Section 404 permits is estimated to result in projected incremental costs to states of approximately $ 1. 3 million annually. Figure 4 summarize s Section 401 additional administrative cost information. As the vast majority of states have assumed implementation of Section 402 of the Clean Water Act, addit ional costs associated with potential growth in those programs is discussed in the following sections. States that have not assumed the Section 402 program have the opportunity to complete Section 401 certifications on these permits. However, the Section 402 programs most likely to be affected by this rule and thus examined in this analysis are typically implemented via existing statewide general permits, where a Section 401 certification already exists andDraft, Internal, Deliberative

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17 permittees simply submit a Notice o f Intent. Th erefore, while these permits may see increased usage, there will not be an y additional Section 401 review burden for states that have not assumed the NPDES program, as these general permits already exist, with state Section 401 certification.

Figure 4

- Estimated Additional CWA Section 401 Administrative Costs to States FTE Amount for 401 Number of States Total FTE Total Costs (2014$) 0.5 25 12.5 $ 1,123,351 10 20 200 $17,973,613 20 5 100 $8,986,807 Total: 312.5 $ 28,083,771 4.6 5 % Incremental Increase: 14. 5 $ 1, 305,895
States may place additional restrictions on permits through their Section 401 authority, adding costs to permittees and environmental benefits. States can require permit conditions to protect water quality reg ardless of the scope of Clean Water Act jurisdiction. The costs and benefits associated with the conditions a state may place on a permit via Section 401 certification do not need to be added to the costs and benefits of this rule. States impose conditions on permits in watersheds where there are water quality concerns, which exist independently of this rule. Even in the absence of this rule, in watersheds where a state has water quality concerns it may impose additional permit conditions on perm its issued within that watershed.Draft, Internal, Deliberative

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

Section 402 of the CWA establishes the National Pollutant Discharge Elimination System (NPDES) program to provide for permits to point sources, with applicable requirements and conditions, to discharge pollutants to waters of the U.S. NPDES permits address the discharge of a pollutant, yet may reflect different statutory and regulatory requirements dependi ng on the type of point source and volume of discharge , and state water quality standards

. When evaluating potential impacts to NPDES permit costs associated with the final rule, EPA assume s that the decrease in waters that are jurisdictional associated w ith implementation of the 2008 Guidance has not greatly affected the number of entities requiring individual CWA Section 402 permits , such as those issued for municipal wastewater treatment plants or industrial facilities. The EPA has not witnessed a large number of permit holders asserting they no longer required such a permit because of the non

- jurisdictional status of a receiving water. While EPA is aware of occasional inquiries on this matter, no such inquiries have resulted in a permitting authority determining that a discharger no longer needed a permit. There are several potential explanations for this

. First, the nature of a traditional discharge permit where a facility is seeking to have wastewater dispersed and carried away is different than a Section 404 permit where an entity is, for example, seeking to fill a portion of a natural water way for development. As such, i t is possible that a CWA 402

- permitted discharger may have the effect of creating a permanent water where there once was an intermittent or ephemeral water because of continuous discharge (i.e., an “effluent

- dependen t” or “effluent

- dominated” water). In these cases, jurisdiction may not come under question. Second, EPA ha s authorized most (46) states to operate the CWA Section 402 permitting program , and states assert jurisdiction over “waters of the state” which must be as inclusive as “waters of th e U.S” but may be more expansive

. In contrast, only two states (Michigan and New Jersey) have assumed the Section 404 program (to the extent it can be assumed for “non

navigable” waters). Additionally, facilities may have invested the capital in treatment and simply be willing to continue operating under their permit and see n o need to challenge jurisdiction al status

. Permitting for construction and development stormwater, concentrated animal feeding operations (CAFOs), and pesticide application are three areas of CWA Section 402 implementation where it is assumed there may be potential new costs associated with a change in the definition of “waters of the U.S.” This is because these activities relate to collection of stormwater runoff rather than disposal of domestic or industrial wastewater, and EPA and statesDraft, Internal, Deliberative

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19 typically regu late them through CWA Section 402 general permits rather than individual permits. Entities engaged in actions requiring general permit coverage can submit a Notice of Intent (NOI) to the permitting authority to obtain coverage. Under the existing impleme ntation of the scope of “waters of the U.S.” , many of these entities may not believe their discharge affects a protected water and may not have applied for permit coverage. Under the rule, a portion of these entities may be subject to an assertion of jur i sdiction to a similar extent as those seeking Section 404 permits. Construction

- related stormwater discharges, CAFO discharges, and application of pesticides are more likely occur in similar locations as CWA Section 404 dredge and fill discharge with resp ect to proximity to “isolated waters,” small streams, and their adjacent wetlands. Thus there may be costs from this rule under these programs include implementing best management practices (BMPs) for regulated entities and administering permitting programs for government. The analysis here is derived from the estimates of direct costs for those rules. The stormwater, CAFO, and p esticide general permit were finali zed over a time period from 2003 to 2011. As such, these rules incorporated d iffering baselines of Clean Water Act jurisdiction in their analysis depending on if they were completed before or after the 2008 Rapanos decis ion and corresponding 2008 Guidance. These differences are discussed in the sections that follow. All analyses going forward will include the new definition of “w aters of the U. S. ” established in this final rule as part of the baseline.Draft, Internal, Deliberative

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## Section 402 Stormwater Permitting Stormwater runoff is generated when precipitation from rain and snowmelt events flows over land or impervious surfaces and does not percolate into the ground. As the runoff flows over impervious surfaces (paved streets, parking lots, and building rooftops), it accumulates debris, chemicals, sediment or other pollutants that could adversely affect water quality if the runoff is discharged untreated. The primary method to control stormwater discharges is the use of best management pract ices (BMPs). In addition, most stormwater discharges have been designated as point sources by statute, regulations, or on a case

- by

- case basis and require coverage under a NPDES permit. The Stormwater program was implemented in two phases, with Phase I ru le issued in 1990 and Phase II issued in 1999. The Stormwater program regulates construction sites, specific industrial sectors specified in the Phase I rule, and discharges from Municipal Separate Storm Sewer Systems (MS4s).
Stormwater runoff in cities a nd towns is commonly transported through MS4s , from which it is often discharged , untreated , into local waters

. To prevent harmful pollutants from being washed or dumped into an MS4, operators must obtain a NPDES permit and develop a stormwater management program. The Stormwater Phase I rule , issued in 1990, requires medium and large cities or certain counties with populations of 100,000 or more to obtain NPDES permit coverage for their stormwater discharges. The Stormwater Phase II rule , issu ed in 1999, requires regulated small MS4s in urbanized areas , as well as small MS4s outside the urbanized areas that are designated by the permitting authority, to obtain NPDES permit coverage for their stormwater discharges. Generally, Phase I MS4s are c overed by individual permits and Phase II MS4s are covered by a general permit. Each regulated MS4 is required to develop and implement a stormwater management program (SWMP) to reduce pollutant discharge from stormwater to the “maximum extent practicable” (MEP) and eliminate non

stormwater discharges. A MS4 may have several different outflows within its service area, and some may be to waters where CWA jurisdiction may not apply. However, in implementing a SWMP, operators likely implement BMPs uniformly across their area without regard to the specific location of a specific outfall, and thus the jurisdictional status of a portion of the receiving water would not matter in terms of costs. In addition, MS4 outfalls tend not to be in wetlands, which represe nt a large portion of the CWA Section 404 program aquatic resource records , and the waters where the greatest changes in assertion of CWA jurisdiction is expected under this rule. Thus, the true cost of the project impact is likely to be low. Any potential costs to MS4s resulting from 404 permit requirements are captured in Section 9. With regard to 404 permits for MS4s, the agencies’ longstanding practice is to view stormwater control measures that are not b uilt in “waters of the United Sta tes” as non

- jurisdictional. Conversely, the agencies view some waters, such as channelized or piped streams, as jurisdictional currently even where used as part of a stormwater management system. The proposed rule brought to light confusion about whichDraft, Internal, Deliberative

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21 s tormwater control features are jurisdictional waters and which are not, and this confusion is addressed in the final rule via a specific exclusion for stormwater control features that are created in dry land. Economic impacts to industrial facilities regul ated under the EPA Phase I stormwater rule are also expected to be minimal. Most industrial sectors regulated under the Phase I stormwater rule are located in urbanized areas where newly

- designated jurisdictional waters are not expected to exist

. If any entities are currently discharging to a non

- jurisdictional water, they are currently required to have a NPD ES permit if their discharge later reaches a jurisdictional water. Regulated industrial sectors that could occur in areas where newly

- designated j urisdictional waters may occur (i.e., timber product facilities in SIC code 24; mining and oil and gas extraction and refining facilities in SIC codes 10

- 14; landfills; and air transportation facilities in SIC code 45) represent a minority of the regulated industrial stormwater universe (less than 30 percent of facilities authorized to discharge under the EPA

- issued Multi

- Sector General Permit (MSGP) are in one of these sectors). Additionally, these types of facilities are generally large (the average acre age of facilities authorized to discharge under the EPA MSGP in these sectors is 262 acres), and due to their scale it is expected that industrial facilities affected by the Phase I rule likely already discharge to, or their discharge reaches, a water of t he U.S. Consequently, the majority of facilities in these sectors are presently covered under an existing NPDE S permit and would not be newly

- regulated under this rulemaking. Furthermore, nearly all oil and gas facilities qualify for an exemption from NP DES permitting and would not be affected by the rule. Section 402(l)(2) of the Clean Water Act (CWA) exempts from NPDES permitting “discharges of stormwater runoff from, oil and gas exploration, production, processing, or treatment operations or transmissi on facilities, composed entirely of flows which are from conveyances or systems of conveyances... which are not contaminated by contact with, or do not come into contact with, any... raw material, intermediate products, finished product, byproduct, or waste products located on the site of such operations. ” Stormwater runoff from construction activities can have a significant impact on water quality. As stormwater flows over a construction site, it can pick up pollutants like sediment, debris, and chemicals a nd transport these to a nearby storm sewer system or directly to a river, lake, or coastal water. Polluted stormwater runoff can harm or kill fish and other wildlife. Sedimentation can destroy aquatic habitat, and high volumes of runoff can cause stream bank erosion. Debris can clog waterways and potentially reach the ocean where it can kill marine wildlife and impact habitat. The NPDES stormwater program requires certain construction site operators to ob tain coverage under a NPDES permit for their storm water discharges. The construction site operators subject to NPDES requirements are those engaged in clearing, grading, and excavating activities that disturb one acre or more; including smaller sites in a larger common plan of development or sale

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22 To est imate potential incremental costs and benefits from the construction stormwater permitting program EPA used information from the Economic Analysis of Final Phase II Storm Water Rule

. 9 The Stormwater Phase II rule was promulgated prior to the two Supreme Court cases addressing CWA jurisdiction and nearly all waters that may have a change in their jurisdictional status as a result of implementation of the final Clean Water Rule were jurisdictional at t hat time. All costs associated with the Phase II Stormwater Rule were fully accounted for in the economic analysis that accompanied the Phase II rule and it would not be wrong to not explicitly include them here. However, this analysis identifies the com ponent of the original stormwater costs and benefits that may be attributed to changing jurisdictional assertion s . This is done by taking a 4.6 5 percent of the total costs and benefits calculated in the 1999 Stormwater economic analysis. Since the issuance of the stormwater Phase II rule there has also been growth in the industry either through changes in the construction industry or changes in permitting levels resulting from the SWANCC and Rapanos decisions affecting CWA jurisdictional a ssertion. T he 1999 Economic analysis cites to 130 ,000 construction starts in 1994. EPA tracks NPDES permit numbers for reporting program performance under EPA’s Strategic Plan pursuant to the Government Performance and Results Act (GPRA). 10 EPA’s 2011 rep orting cites 169,000 construction sites with permit coverage; in 2014 164 ,000 covered construction sites were reported. For the purposes of this analysis growth is calculated from the higher level of permitting in 2011 , which corresponds to 30 percent gro wth in the program. Figure 5 summarizes costs and benefits for construction and development stormwater permitting , with costs and benefits figures updated from 1998 to 2014 dollars using the CPI

- U

. Increases in administrative costs are estimated to total $3 6 0 ,000 annually. EPA has authoriz ed most states to implement the NPDES stormwater permitting program, so these administrative costs accrue to st ates implementing the program. Costs to new permit

- holders are estimated to range from $47.8 to $59.6 million annually. This cost estimate includes the costs of implementation of erosion and sediment controls and post

- construction controls. Similarly, benefits are estimated to range from $47.5 to $60.2 million , which reflect public willingness

- to

pay for water quality improvements achieved by the stormwater rule

.

9 U.S. Environmental Protection Agency. 1999. Economic Analysis of Final Phase II Stormwater Rule. U.S. Environmental Protection Agency, Washington, D.C. 10 http://water.epa.gov/resource_performance/planning/index.cfm

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23 Figure 5

- Estimated Annual CWA 402 Stormwater Permitting Impact s ($ millions)

Administrative Costs Compliance Costs (low estimate) Compliance Costs (high estimate) Monetized Benefits (low estimate) Monetized Benefits

(high estimate) Original Rule Analysis (1998$) $ 5.3 $ 545.0 $ 678.7 $ 540.5 $ 686.0 4.6 5 % Component of Stormwater Program affected by CWR $ 0.2 $ 25. 3 $ 31. 6 $ 25. 1 $ 31.9 30% Program Growth $ 0. 3 $ 32.9 $ 41. 0 $ 32. 7 $ 41.5 Total Incremental Change (2014$) $ 0. 5 $ 47.8 $ 59.6 $ 47. 5 $ 60.2Draft, Internal, Deliberative

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24 

## Section 402 Concentrated Animal Feeding Operation Permitting

Facilities that meet the definition of Concentrated Animal Feeding Operations (CAFOs) under CWA regulations are point sources under the CWA and are regulated under the NPDES permitting program. Most current permit holders are covered under state

- issued ge neral permits , and thus administrative costs for implementing the program fall to states and CAFO operators

. EPA promulgated regulations for Concentrated Animal Feeding Operations (CAFOs) in 2003 that expanded the num ber of operations covered by CAFO regu lations and included requirements for nutrient management plans for land application of manure from CAFOs

. EPA revised this regulation in 2008 to reflect changes based on a Second Circuit Court decision

. However, the basic cost and benefit information fr om t he original economic analysis is useful for estimating potential impacts in a similar manner as above for stormwater. 11 In the Economic Analysis to support the 2003 CAFO rule EPA estimated a potential universe of 15,000 affected entities

. The CAFO rule wa s finalized in February 2003, after issuance of the SWANCC Supreme Court decision in 2001. Therefore, estimates of the affected universe of CAFOs would reflect changes in jurisdictional assertion as a result of SWANCC. More recent permit data indic ate that in 2011 7,318 entities held CAFO permits, and in 2014 6,946 entities were permitted. These changes in permitting numbers may be the result of changes i n size of the CAFO industry, or changes in jurisdictional assertion following the implementatio n of the agencies’ 2008 G uidance interpreting the Rapanos decision

. These recent permit numbers remain significant ly below the 15,000 entities projected to be affected in the 2003 analysis, and so for this analysis the CAFO program size is decreased by 49 percent, to more accurately reflect the current universe. From this current program size, a 4.6 5 percent increment of the total costs and benefits is taken to account for an estimated increase in permitting resulting from changes in positive jurisdiction al assertion from this rule. Lastly, costs presented in the 2003 analysis are updated from 2001 dollars to 2014 using the CPI

- U , which accounts for inflation over this time period. Figure 6 summarizes the estimated costs and benefits associated with increased permit activity in the CAFO program due to an increase in Clean Water Act jurisdiction . Incremental costs to CAFO operators are estimated to t otal $9.9 million annually. Administrative costs, which accrue to states that have assumed the NPDES program, are estimated to total $2 7 0,000 annually . Using the benefits figures monetized in the original analysis provides estimated benefits ranging from $6.2 to $10.8 million annually. These benefits were calculated for large CAFOs only, which account for 85% of the implementation costs and 66% of adm inistrative costs. Benefits for smaller CAFO operations were not calculated in the 2003 analysis. Monetized benefits are primarily from improved surface water quality (measured in terms of

11 National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitation Guidelines and Standards for Concentrated Animal Feeding Operations (CAFOs), Final Rule. Feder al Register 68 (12 February 2003): 7176

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25 enhanced recreational value), reduced nitrates in private wells, reduced shellfish bed closures from pathogen contamination, and reduced fish kills from episodic events. EPA was not able to monetize a number of benefits categories, including human health and ecological benefits of reduced exposure to pollutants associa ted with CAFO manure; reduced eutrophication of coastal and estuarine waters due to both nutrients and runoff and deposition of ammonia volatized from CAFOs; reduced human illness due to pathogen exposure during recreational activities in estuaries and coa stal waters; improvements in soil properties due to reduced over - application of manure, together with an increased acreage receiving manure applications at agronomic rates; reduced pathogen contamination in private drinking water wells, and reduced cost of commercial fertilizers for non

- CAFO operations. Figure 6

- Estimated Annual CWA 402 CAFO Permitting Impacts ($ millions)

Administrative Costs Compliance Costs Monetized Benefits (low estimate) Monetized Benefits (high estimate) 2003 Rule Analysis (2001$) $ 9.0 $ 326.0 $ 204.0 $ 355.0 49% Program Size Decrease $ 4.4 $ 159.7 $ 100.0 $ 174.0
4.6 5 % Increment $ 0.2 $ 7. 4 $ 4. 6 $ 8.1 Total Incremental Change (2014$) $ 0. 3 $ 9.9 $ 6. 2 $ 10. 8Draft, Internal, Deliberative

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26 

## Section 402 Pesticide General Permit ting
On October 31, 2011, EPA issued the final NPDES general permit for point source discharges to waters of the United States from the application of (1) biological pesticides, or (2) chemical pesticides that leave a residue. This permit, also known as the Pesticide General Permit (PGP), was developed in response to a decision by the Sixth Circuit Court of Appeals ( National Cotton Council, et al. v. EPA ). The Agency’s final PGP covers o perators that apply pesticides that result in discharges from the follow ing use patterns: (1) mosquito and other flying insect pest control; (2) weed and algae control; (3) animal pest control; and (4) forest canopy pest control. The permit requires the minimization of pesticide discharges through the use of pest management m easures and monitor ing for and report ing of any adverse incidents. The general permit provides coverage for discharges in the areas where EPA is the NPDES permitting authority. In the remaining areas (44 states and the U.S. Virgin Islands), which are not included in the PGP analysis, states are authorized to develop and issue the NPDES pesticide permits. To estimate potential costs associated with an increase in CWA jurisdiction from pesticide general permits , EPA utilized the economic analysis completed to support the pesticide general permit. 12 This analysis was completed in 2011, and so the baseline for the analysis incorporated any effects on jurisdiction resulting from SWANCC and Rapanos. The economic analysis focused on the 35,376 entities where EPA is the permitting authority. In other documentation EPA estimated approximately 365,000 entities could be affected nationwide once states developed and issued their own general permits for these discharges. The cost figures estimated in the original PGP analysis are scaled up to reflect this larger, nationwide universe, which inherently assumes that the costs of compliance will be similar in areas where EPA is not the permitting authority. States use the EPA PGP as a model, but they may deviate from the EPA permit and in those circumstances the cost estimates presented here may not be representative. T he estimated 4.65 percent increase in jurisdiction is applied to the cost figures from the original PGP analysis and then the number is scaled up to the e ntire potential universe size to estimate potential new costs and benefits resulting from this rule. After adjusting for inflation, costs range from $ 5.4 to $ 5.9 million. Figure 7 summarizes the process and estimated costs. The original PGP economic analysis did not estimate administrative costs to government entities nor did it quantify benefits, and these values are not estimated here.

12 U.S. Environmental Protection Agency. 2011. Economic Analysis of the Pesticide General Permit (PGP) for Point Source Discharges from the Application of Pesticides. U.S. Environmental Protection Agency, Wash ington, D.C.Draft, Internal, Deliberative

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27 Figure 7
- Estimated Annual CWA 402 PGP Impacts ($ millions) Compliance Costs (low estimate) Compliance Costs (high estimate) Original PGP Estimates (2009$) $ 10. 2 $ 11.2 4.6 5 % Increment $ 0.5 $ 0.5 Scale Up to Total Potential Universe $ 4.9 $ 5.4 Total Incremental Change (2014$) $ 5.4 $ 5.9Draft, Internal, Deliberative

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28 

# Section 9 : Estimate of Potential C lean Water Act Section 404 Costs and Benefits

Section 404 of the CWA establishes a program to regulate the discharge of dredged or fill material into waters of the United States, including wetlands. Activities in waters of the United States regulated under this program include fill for development, water resource projects (such as dams and levees), infrastructure development (such as highways and airports) , and minin g projects. Section 404 requires a permit before dredged or fill material may be discharged into waters of the United States, unless the activity is exempt from Section 404 regulation. Proposed activities are regulated through a permit review process. An individual permit is required where impacts are more than minimal

. Individual permit applications are reviewed by the U.S. Army Corps of Engineers, which evaluates applications under a public interest review, as well as the environmental criteria set fort h in the CWA Section 404(b)(1) Guidelines. However, for most discharges that will have only minimal adverse effects, a general permit may be suitable. General permits are issued on a nationwide, regional, or State basis for particular categories of activit ies. The general permit process eliminates individual review and allows certain activities to proceed with little or no delay, provided that the general or specific conditions for the general permit are met. The great majority of discharges are authorized under a general permit. An increase in assertion of CWA jurisdiction could produce costs of implementation of the Section 404 program as well as increased benefits. Regulated entities may face costs resulting from this rule through permit application cos ts, and associated compliance costs such as wetlands mitigation, stream mitigation, and project re

- design and relocation expenses. There may also be program management costs and efficiencies associated with administering the Section 404 program. These co sts are described in Section 1 1

. Through clarifying jurisdiction, this rule may result in an increase in Section 404 permits with associated costs. E cological benefits will accrue from those permitted losses being offset through compensatory mitigation. These benefits are also presented in this section, based upon a benefits transfer analysis using studies measuring willingness to pay for preservation of wetlands similar to the type likely to be protected by this rule.


## CWA Section 404 Compliance Costs

A n increase in assertion of CWA jurisdiction could result in costs of implemen tation of the CWA 404 program: a greater number of development projects would impact jurisdictionalDraft, Internal, Deliberative

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29 waters, thus requiring the sponsors of those additional projects to obtain and comply with CWA Section 404 permits. Figure 8 provides a descriptive overview of four types of CWA Section 404 permitting costs the regulated communi ty could fac e

– permit application costs, permitting time costs, impact avoidance and minimization costs , and compensatory mitigation costs

.
Figure 8

- Conceptual Overview of CWA Section 404 Permit Compliance Costs

Cost Category Description (costs vary considerably by permit type and by geographic region) Permit Application Costs Financial costs to finalize a permit application to a point that the Corps deems the application complete . Includes costs for delineation and survey of jurisdictional waters; preparing project area and impact drawings and maps; alternatives analysis that investigates opportunities to avoid and minimize project impacts (on

- site alternatives in the case of general permits, both on

- and off

- site alternatives in the case of individual permits); developing a Corps

- approved compensatory mitigation plan; submitting a completed application that includes all notification and other requirements. In general, permit application costs increase with the size of the proj ect area, size of impacts to jurisdictional waters, the number of separate impact locations, and any actions needed to comply with other Federal laws before a permit can be issued (e.g., Endangered Species Act, National Historic Preservation Act). The cos t of the alternatives analysis often dominates application costs for individual permits in the case of projects involving relatively large impacts to jurisdictional waters. Permitting Time Costs Potential financial and opportunity costs associated with an y delay in project implementation resulting from the time it takes to secure a permit. In the case of private sector, for

- profit development projects, time costs could include financial or opportunity costs of carrying development capital for longer perio ds of time. In the case of public sector projects, time costs could include opportunity costs of forgone public services and benefits from not proceeding with the project sooner rather than later. Impact Avoidance and Minimization Costs Potential financia l and opportunity costs associated with project redesign that may be required in order to avoid and minimize impacts on jurisdictional waters. Opportunity costs could include foregone net returns to development in the case of private sector, for

- profit dev elopment projects, or lower levels of public service provision and benefits in the case of public sector projects (e.g., road construction and maintenance, repair of flood control infrastructure, etc.). Compensatory Mitigation Costs Financial and opportun ity costs to implement the Corps

- approved compensatory mitigation plan that is written into the permit as a special condition. In the case of a mitigation plan that involves third

- party mitigation providers (commercial mitigation banks or in

- lieu fee prog rams), cost is driven by credit prices and the number of credits required. In the case of a permittee

- responsible mitigation plan, this may include opportunity costs of reserving a portion of development projectDraft, Internal, Deliberative

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30 lands for mitigation, and the financial cost s of mitigation project implementation as well as mitigation monitoring, maintenance, and reporting until success criteria have been achieved. This c ould also include financial and opportunity costs of posting any required financial assurances for mitigati on project success and/or providing any required endowment for long

- term site management after mitigation success has been achieved.
The sponsors of projects subject to CWA Section 404 regulation incur costs to finalize a permit application (or a pre - construction notification in the case of general permits) that the Corps deems to be complete. Similarly, the sponsors of permitted projects also incur costs to implement compensatory mitigation actions required by permits to offset permitted impacts to jurisdictional waters. The analysis of incremental costs to the regulated community focused on the estimation of these two categories of compliance costs. Depending on circumstances, the sponsors of many private sector as well as public sector project s that are subject to Section 404 permitting can also incur permitting time costs and/or impact avoidance and minimization costs. Permitting time costs include potential financial and opportunity costs associated with delays in project implementation resu lting from the time it takes to secure a permit. Impact avoidance and minimization costs include potential financial and opportunity costs associated with permit requirements to redesign projects so as to avoid and minimize project impacts on jurisdiction al waters to the extent practicable. The permit costs presented here include estimation of the costs of preparing a complete CWA Section 404 permit package, which includes an analysis of alternative to avoid and minimize impacts. However, the agencies recognize that there may be circumstance s where specific individual permit applicants may be asked to do additional analyses or project redesign. The agencies recognize that these costs can be significant for affected permit applicants; however, these are very case

- specific costs and lacking da ta to support a credible approach to estimating these costs, they are excluded from this analysis. The agencies utilize estimates of the number of additional permits and the average impact per permit to produce an estimate of additional acres of permitte d impacts and associated costs that could result from this rule. In order to estimate the number of additional permits, a baseline level of activity must be established. The agencies examined data from ORM2 on the number of individual permits and general permit authorizations issued each fiscal year, from FY2009 to FY2014. For the purposes of this analysis individual permits include standard permits and letters of permission while general permits include nationwide permits, programmatic general permits, and regional general permits. Permitting data records considered include permits issued under Clean Water Act Section 404

. D ata associated with permits issued under Section s 9 and 10 of the Rivers and Harbors Act of 1899; and Marine Protection, Research, and Sanctuaries Act Section 103 authority were excluded

. Figure 9 shows a graph of the number of individual and general permits issued each year. In dividual permit levels fluctuate between a low of 3,292 permits issued in fiscal year 2014 and a high of 4,672 permits issued in fiscal year 2009. GeneralDraft, Internal, Deliberative

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31 permit levels peak in fiscal year 2014 with 60,020 permits issued, while the minimum number of 52,28 7 general permits were issued in fiscal year 2009.

Figure 9
– Individual 404 Permits (IP) and General 404 Permits (GP) Issued per Fiscal Year

In the proposed rule analysis, the agencies used a level of permitting based on permit numbers from FY2010. Commenters expressed concern that this level of permitting activity was from a time of depressed economic activity. T o be responsive to these comments , in this analysis the agencies formed the baseline level of permitting activity by independently selecting the maximum number of individual permits issued in a year (4,672 from fiscal year 2009) and the maximum number of general permits issued in a year (60,020 from fiscal year 2013). Figure 10 provides a summary of this baseline level of activity. Separately selecting maximum numbers of issued general and individual p ermits creates a baseline level of permitting that actually has larger total permit numbers than ever actually occurred in an individual fiscal year from FY2009 to FY2014. This results in a potential over

- estimate of impacts associated with an increase in positive jurisdiction al determinations , but addresses concerns that the analysis used a baseline level of economic activity more reflective of an economic downturn

. In order to estimate the potential additional impacted a creage of jurisdictional waters i t is necessary to develop an estimate of the average impact per permit type. To develop this estimate, permanent impact s from FY 20 13 were considered, while excluding temporary 0 10,000 20,000 30,000 40,000 50,000 60,000 70,000

FY09 FY10 FY11 FY12 FY13 FY14Number of Permits

Fiscal Year 

### 404 Permits Issued per Fiscal Year

IP GPDraft, Internal, Deliberative

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32 impacts 13 as well as restoration and conversion activities. R ecords with non - ze ro values in the authorized area field were included (entries that contained just a linear feet impact value or null values were excluded). By dividing the total number of non

- restoration permanent impacts by the total number of FY 20 13 permits of this typ e, we are able to calculate an average impact per permit, presented in Figure 10 . This average impact per permit is then multiplied by the estimated increase in permits to produce an estimate of the total additional impacted acreage. Since issuance of the proposed rule, a data quality assurance effort was undertaken by the Corps. As a result , the average impact per permit reported here has been more thoroughly vetted than the value previously reported in the proposal analysis. Figure 10
– Estimated Additional CWA Section 404 Permits and Impacts to Jurisdictional Waters

Permit Type Maximum Number Permits Issues (FY09
- 14) E stimated Additi onal Permits w/ Rule ( Assuming 4.6 5 % increase in jurisdiction) FY13 Average Impact Per Permit (Acres) Total Additional

Impacts (Acres) Individual 4 ,672 21 7 5.94 1,290 General 60 , 020 2,791 0.43 1,200 Total 64,692 3,008 2,491


## Permit Application Costs The agencies use two sets of estimates for permit application costs to calculate a range of incremental permit application costs associated with the estimated increase in permitting resulting from the final rule. These estimates of perm itting costs were developed to calculate incremental permit application costs associated with the replacement of Nati onwide Permit 26 (NWP 26) with a suite of new and modified nationwide permits in the year 2000 (hereafter referred to as the “NWP replaceme nt package”). The Corps developed an estimate of permit costs as part of its analysis of the incremental costs of the NWP replacement package. This estimate relied on data and information obtained through informal phone interviews with Corps District sta ff and consulting firms from around the country that assist the regulated community in navigating the permitting process. The Corps asked interviewees to identify major components and component and total costs for finalizing a NWP 26 pre

- construction noti fication and an individual permit application associated with a “typical” project involving up to three acres of impacts to jurisdictional waters.

13 For example, the Corps’ 2012 Nationwide Permit 33 provides that temporary structures, work, and discharges, including cofferdams; necessary for construction activities or access fills or dewatering of construction sites can be authorized if the fill is removed in its entirety and will have no more than minimal adverse effects on aquatic resources.Draft, Internal, Deliberative

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33 The Corps analysis of unit permit application for the NWP replacement package explicitly note s that the cost estimates were developed for a “typical” project, and that individual permit ( IP ) application costs for some projects could be much higher than the estimates produced for the NWP replacement package (e.g., it noted that in the case of large projects, the costs for the alternatives analysis alone could be several times the Corps estimates of IP application costs for a typical project). Further, permit application costs can vary considerably by region, so the cost for a typical project in one region can be considerably different than the cost for a typical project in another region. Also, the Corps analysis of individual permit application costs for the NWP replacement package was limited to projects affecting up to three acres of jurisdictional waters , whe reas this final rule could involve new permit application costs for projects involving significantly greater impacts to waters now determined to be jurisdictional (which is relevant since permit application costs generally increase as the impact size incre ases). For these reasons, in this analysis the agencies use the highest Corps estimates of unit permit application costs as a lower bound of estimated permit application costs associated with the final rule. The NWP replacement analysis from the Corps est imated permit application costs for a pre - construction notification under NWP 26 could range from $3,000

- $10,000 and permit application costs for a standard or individual permit could range from $10,000 to $24,000. As discussed above, the high range of each of these costs was selected as a lower

- bound permit application cost. The dollar figures were also adjusted for inflation from 1999$ to 2014$ using the CPI

- U. An estimate of NWP replacement costs was also commissioned by the National Association of C ounties and the Foundation for Environmental and Economic Progress, whose members include large real estate development companies. This study, completed by David Sunding and David Zilberman, is hereafter referred to as the SZ study. The SZ study relied o n a survey of 103 NWP and IP applications for which the project sponsors were asked to report the costs they incurred in preparing and finalizing the applications. Two

- thirds of the applications in the survey sample involved projects in western states and the remainder involved applications in eastern or mid western states. The sample involved a roughly equal mix of public sector and private sector development projects, including school construction, quarry expansion, sediment containment, home building, r oad improvements, and flood control. 14 The analysis of the survey data fo und a statistically

- significant positive relationship between the amount of permitted impacts on jurisdictional waters an d the cost of preparing a NWP or an IP. The authors used the survey data to develop a relationship between impacts to jurisdictional waters (measured in acres) and the cost of preparing a NWP and an IP. For each permit type, the SZ study produced

14 These details on the projects included in the survey sample are reported in: D. Sunding and D. Zilberman. 2002. “The economics of environmental r egulation by licensing: An assessment of recent changes in the wetland permitting process.” Natural Resources Journal . V. 42, Winter.Draft, Internal, Deliberative

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34 an estimate of a fixed cost component p lus another cost component that varied based on the amount of impact acres. 15 Figure 11 shows the unit application costs obtained from the two source s discussed above, and the estimated range of additional permit applications costs for individual and general permits based on the estimated increase in permits data from Figure 10 . All cost figures are adjusted from 1999$ to 2014$ using the CPI

- U.

Figure 11

- Estimated Annual Additional CWA Section 404 Permit Application Costs

Permit

Type Add ’ l Permits

with Rule FY13 Avg. Impact

per Permit (acres) Unit Costs from Corps NWP Analysis (2014$) Unit Costs from SZ Study (2014$) Estimated Add ’ l Annual Permitting Cost (2014$ millions) Low Estimated Ad d’l Annual

Permitting Cost (2014$ millions)

High

Individual 21 7 5.94 $34,100 $62,000 plus $16,800 per acre of impact $ 7.5 $ 13.7

General 2,791 0.43 $14,200 $23,900 plus $13,200 per acre of impact $ 39.9 $ 67.1 Total 3,008 $ 47.3 $ 80.8 

## Compensatory Mitigation Costs A portion of costs to applicants will result from compensatory mitigation of wetlands and streams. The cost of compensatory mitigation depends upon land prices and the complexity of the work and varies substantially across and within states. Additionally, the scale of a project will affect costs as the amount of com pensatory mitigation required is typically calculated as a multiple of acreage of wetlands or linear feet of streams to be filled. To estimate state

- specific per

- acre costs of wetland mitigation and per linear foot estimates of stream mitigation, the Corps examined published studies and survey results, made phone inquiries to Corps Districts and mitigation banks, and researched web si tes. A team of Corps experts developed a range of values for each state. These costs have been updated by the Corps since the proposal, where new data have become available. Costs for mitigation in estuarine environments, whose jurisdictional status likely will not be affected by this rule, are not

15 The range of NWP application costs in the survey was between $2,000 and $140,076; the median cost was $11,800, and the m ean cost was $28,915. The range of IP application costs in the survey was between $7,000 and $1,530,000; the median cost was $155,000 and the mean cost was $271,596. (All estimates are presumed to reflect 1999$)Draft, Internal, Deliberative

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35 included where explicitly identified by mitigation bank and in

- lieu fee program fee schedules. Mitigation banks and in

- lieu

- fee programs almost always offer wetland mitigation credits for sale; however, st ream mitigation markets are less robust. In reviewing in

- lieu

- fee program fee schedules, stream mitigation costs could be identified for ten in

- lieu fee programs across the country. Stream mitigation continues to be a growing area of practice in the miti gation community, and an area where Corps Districts are also continuing to develop familiarity. Where new data were availa ble, these were utilized. Where no new data were available, steam mitigation cost estimates from the proposed rule analysis were upd ated to 2014 dollars

. Mitigation costs vary widely, with nationwide average unit costs ranging from $ 41,572 to $ 111,985 per acre of wetlands mitigated and from $ 95 to $ 1,000 per linear foot of stream mitigation. There is more variation in u nit costs per s tate , see Figure 18 , Appendix A

. Costs vary based on land acquisition costs, the nature of the work being done, demand for mitigation in the state, as well as other f actors. The unit costs identified here, based on mitigation bank and in

- lieu

- fee program fee schedules represent fully

- loaded unit costs and include the costs of land acquisition, construction work completed on site, monitoring for mitigation success, and long

term stewardship. In some cases, permittees may not purchase credits from a mitigation bank but rather complete a permittee

- responsible mitigation project. The costs of this permi t tee

responsible mitigation project may be lower than the purchase of credits, particularly in circumstances where a mitigation project is constructed on the same tract of land as the permitted impacts. In this circumstance new land would not have to be acquired, lowering the costs of the project. Therefore, the mitigatio n costs estimated here may be an overestimate. 

## Wetland Mitigation Costs To estimate wetlands mitigation costs the agencies assumed that all of the estimated additional acreage of impacts authorized under individual permits would require mitigation at a 2:1 ratio, with two acres of mitigation required for every acre of impact. This ratio represents the reported average amount of mitigation required per acre of authorized impact from FY09 to FY13. In the analysis prepared for the proposed rule, the percentage of ORM2 other waters determined to be jurisdictional was embedded in the calculation for the amount of mitigation required, resulting in a ratio of 1.5 acres of mitigation per acre of impact. Directly applying the 2:1 ratio uses a clearer approach utilizing existing permitting data

. For the additional acreage of impacts authorized under general permits, the agencies first assume that o nly half of these permits would require mitigation. As part of the analysis to support the most recent set of nationwide permits issued in 2012, the Corps estimated that only 30,000 nationwide permit authorizations would require a pre

- construction notific ation (PCN) 16 , as compared to 60,000 authorizations actually issued in 2012. A PCN is not required for activities that, in general, do not result in more than minimal adverse effects on the aquatic environment and mitigation is not required for these autho rizations. As it was estimated in the

16 Reissuance of Nationwide Permits, 77 Fede ral Register 34 (February 21, 2012), pp 10184

- 10290.Draft, Internal, Deliberative

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36 last nationwide permit package that only half of all permits would require a PCN, the agencies assume this half of the general permits would also require mitigation, assuming 2 acres of mitigation is required per acre of additional impact. Given an estimated incr ease in permitted losses of 1,290 acres authorized under individual permits, and 1,200 acres authorized under general permits from Figure 10 , these assumptions can be used to calculate the total acreage of mitigation required, corresponding to 3,781 new acres of mitigation. NNNNNN MMMMMMMMMMMMMMMMMMMM TTTTTTTTTT

= ( 2 ∗ 1 , 290 aaaa aa aa h oo oo IIII )
+ ( 0

. 5 ∗ 2 ∗ 1 , 200 aaaa aa aa h oo oo GG ) This new level of required mitigation will compensate for newly

- permitted wetland losses, resulting from a n increase in assertion of CWA jurisdiction. This i ncreased acreage of mitigation i s assigned by state based on the percentage of negative FY13

- 14 jurisdictional determinations for wetland s and “other water s ” in that state:

NNNNNN MMMMMMMMMMMMMMMMMMMM SS SS

= 3 , 781 aaaa aa ∗ SS # NNNN NNNN WW WW OO h WW JJJJ NN NN NN # NNNN NNNN WW WW OO h WW JJJJ This approach results in more mitigation acres being assigned to state s with many negative wetland or ORM2 other waters JDs, and thus likely to experience positive changes in jurisdictiona l assertion

. Over the baseline period of FY13

- 14 Connecticut, Delaware, Maine, Michigan, New Hampshire, and Rhode Island had no negative JDs for wetlands or ORM2 other waters

. However, the Agencies did not want to presume that the actual number of negative jurisdictional determinations in these states, and therefore requirements for mitigation acres, would be zero. As a result, these states were assumed to have one negative JD.

. The estimated new mitigation on a state

- by

- state basis was then applied to state

- specific low and high wetland mitigation costs to calculate an estimated increase in mitigation costs by state. Wetland mitigation costs have been updated from the propo sal where additional data were available and all costs reflect 2014 dollars. Mitigation unit cost estimates are reported in Appendix B . Estimated increases in mitigation costs by state are added to form a nationwide estimated increase in wetland mitigati on costs of $ 90.1 to $ 232.8 million. State

- specific values appear in Appendix B. TT WW WW MMMMMMMMMMMMMMMMMMMM CC = ∑ MMMMMMMMMMMMMMMMMMMM AA SS SS ∗ CC pp AA SS SSDraft, Internal, Deliberative

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37 

## Stream Mitigation Costs To calculate the costs of stream mitigation, the Corps provided data on jurisdictional determinations for streams by state over FY13

- 14. The Corps also provided an estimate of 590 miles of stream mitigation from fiscal year 2013 to represent mitigation ac tivity in th e baseline period. T he agencies believe it is a close approximation of required mitigation for FY 1 3 , and that it is consistent with the level of mitigation the Corps has estimated for the past 10 to 15 years. From this data on baseline levels of mitigati on and positive and negative jurisdictional determinations over FY13

- 14 the agencies are first able to calculate, in the baseline period, linear feet of mitigation per positive stream jurisdictional determination. Then, using the data from Corps on the ne gative stream jurisdictional determinations, the agencies can calculate the state

specific increase in mitigation if all negative stream jurisdictional determinations became positive: II SS SS MMMMMMMMMMMMMMMMMMMM SS SS = MMMMMMMMMMMMMMMMMMMM pp JJJJ SS SS ∗ NNNN NNNN SS SS JJJJ SS SS This gives an increase in linear feet of stream mitigation by state, which is multiplied by state

- specific data on mitigation costs per linear foot. The nationwide inc rease in stream mitigation is estimated to total 111,916 linear feet. Where data are available, state

- specific unit cost estimates have been updated from the proposal. Unit cost estimates appear in Appendix B; a ll costs reflect 2014 dollars

. Summing st ate

- specific increases in stream mitigation costs across all states gives an overall estimated increase in stream mitigation costs of $22.4 to $44.4 million. TT SS SS MMMMMMMMMMMMMMMMMMMM CC

= ∑ LL FF oo MMMMMMMMMMMM SS SS ∗ CC pp LL FF SS SSDraft, Internal, Deliberative

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38 

## CWA Section 404 Benefits
In the absence of this rule and under current practices, these waters were found non

jurisdictional and impacts to these waters were not required to undergo the Section 404 permitting process. The increase in Section 404 permits estimated to result from this rule represents impacts that will now be required to undergo the Section 404 mitigation sequence of avoiding and minimizing impacts to jurisdictional waters, and finally offsetting unavoidable impacts through compensatory mitigation. The permitting process may result in a lower acreage of wetlands being impacted through avoidance of the wetlands in the project design . Remaini ng unavoidable losses will be offset via compensatory mitigation, and ecological benefits will accrue from the replacement of lost functions and services through compensatory mitigation. Benefits are calculated from the estimated new impacted acreage fro m all individual permits (1,290 acres) and half of general permits (0.5*1,200 acres), as mitigation is only assumed for half of general permits. In total, benefits are calculated from 1,890 acres of newly

permitted losses, now offset via mitigation. M it igation is typically required to be “in

- kind” (i.e. , of the same wetland type) as the impact site. Benefits from stream mitigation are not quantified due to a lack of available data to allow for quantification or monetization of the ecosystem services per formed by the small streams that may be affected by this rule. As only wetland benefits are monetized, t he benefits figures reported here are likely to be an underestimate. 

## Wetland Mitigation Benefits The agencies estimate the potential benefits from CWA Section 404 compensatory mitigation using a benefits transfer approach. Benefits transfer involves selecting study cases relevant to the policy case under consideration, and transferring values using a unit value or function

- based approach. The major challenge with benefits transfer is that economic values for ecosystem services are context (resource/region/user) specific. Thus, it is best suited for transferring estimates between comparable contexts. For example, there is uncertainty involved in completing a benefits transfer where waters vary greatly in their functionality and relative value based on the relative scarcity, location within a watershed, and the degree of human impacts in their vicinit y, as do the waters under consideration in this analysis. Inherent in this benefits transfer analysis is also the assumption that the wetlands whose functions are to be replaced by compensatory mitigation are of the same quality of functionality as the we tlands valued in the willingness

- to

- pay ( WTP ) studies. Also, the users of the services in the original valuation studies may not be comparable to users in other areas; that is, the WTP among service users in different areas could differ significantly. Ho wever, without knowing specifically where impacts will occur in the future, benefits transfer remains the only feasible option for quantifying potential benefits. Given these challenges, and the uncertainty as to specific sites that may beDraft, Internal, Deliberative

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39 affected by thi s proposed regulatory action, the benefits values presented in this analysis are most relevant for a national

- level analysis. To produce a site

- specific analysis there is ample opportunity for the methodology to be tailored to account for site

- specific in formation. The type of analysis here would not be directly applicable to a site

- specific evaluation. The specific benefits transfer approach used in this analysis also relies on stat ed preference and aggregation of household level estimates of WTP

. State d preference studies elicit “stated preferences” rather than revealed (or actual) preferences from observed behavior . Stated preference methods rely on surveys that assess respondents stated WTP for goods or services, such as ecosystem services provided b y a natural landscape feature. In using the household

- level WTP information, there are no t always clear rules for aggregation (i.e., determining which households pay). For this analysis, the agencies attempt to make reasonable and credible choices, but i t is important to recognize that there is uncertainty and limitations associated with the results. 

## Valuation of Wetland Benefits For this economic analysis and the analysis supporting the proposed rule, the agencies sought out studies from the literature t hat provide value estimates for a suite of ecosystem services provided by a particular wetland or wetland complex as a whole (i.e., total resource values , including both use and nonuse values ). Wetlands under consideration for their value may provide vary ing degrees of particular services, or may not provide a particular service at all. A strength of this approach is the values elicited implicitly account for the varying degree and interrelationships among of services provided , 17 assuming respondents are s ufficiently informed. In conducting the literature search, the agencies focused on studies that assess wetlands similar to those expected to be incrementally protected under the final rule. The economic valuation literature includes a large volume of st udies that estimate the value of preserving, protecting, restoring, replacing (mitigation), and increasing the size of wetlands, including several meta

- analysis studies (e.g., Moeltner and Woodward 2007)

. 18 Many of these studies provide values for overseas, tidal, or coastal wetlands that do not well represent waters likely be incrementally protected by this rule. For example, tidal wetlands are valued highly for fishery habitat, which is typically not pro vided to the same degree by wetlands adjacent to small

17 The value of a bundle of services is generally not the same as the sum of values for individual services that comprise the bundle estimated separately. The independent valuation and then aggregation of multiple service values can introduce systemic bias in total value estimates because independent valuation does not account for the potential interdependence (e.g., complementarily) among services. Use of stated preference studies to estimate total values for all services collectively avoids this problem by estimating values for resource changes while considering the potential interdependence among individual resource services.
18 Moeltner , K. and R. Woodward. 2007. Meta

- Functional Benefit Transfer for Wetland Valuation: Making Most of Small Samples. UNR Joint Economics Working Paper 07

- 012. Paper presented at the W1133 Annual Meetings, Richmond, VA, March 28

- 30, 2007.Draft, Internal, Deliberative

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40 tributaries or more isolated wetlands. Jurisdiction of tidal wetlands is not likely to change due to this rule. Seeking only studies that value resources likely to be incrementally protected by this r ule, the agencies identified 10 studies that provide 22 estimates of WTP to preserve wetlands that provide a suite of services expected to be similar to those provided by waters incrementally protected under the final rule. Given the limited scope of stud ies of interest, and the limited universe of wetlands valuation work generally, the relevant studies identified by the agencies are predominately from the late 1980s and early 1990s. Since this time there have been methodological advances for studies of t his kind, but as there are not more recent studies available, the effect of those advances are not reflected in these numbers. Some of these methodological improvements, such as techniques to remove hypothetical biases, have lowered WTP values. However, since the early 1990s there may also have also been other changes such as awareness of wetland services and changes in income that could increase WTP

. T herefore, there is uncertain ty as to whether the overall effect of these methodological improvements an d other changes would result in an underestimate or overestimate of WTP. Clearly, it would be preferable to include more recent studies reflecting the current state of the art in stated preference analysis, but this was not possible as there are not relev ant, more recent studies in the published literature

. These studies represent riverine or floodplain, forested, emergent, and depression or isolated wetlands in 12 states across the country. These studies are summarized in Appendix B of this report. In p reparing the benefits analysis for the final rule, the agencies reviewed the benefits studies and the WTP estimates utilized from those studies and have made a number of changes in application of the study results. These changes are described below. Loomi s et al. (1991) calculate d willingness to pay for preservation of vernal pools in the San Joaquin Valley of California, presenting WTP figures for residents of CA within the San Joaquin Valley and outside the San Joaquin Valley, as well as an estimated statewide WTP. The study als o presents WTP values for several different management scenarios (maintena nce of current wetland levels, expansion of current levels, different management for contamination, and management to improve salmon populations). In the proposal, separate WTPs for the San Joaquin valley and outside the San Joaquin valley were used; in addition the WTP represented a program broader than just wetlands. For this analysis the agencies have chosen WTP values from this study that more closely match the policy context, u tilizing only the statewide WTP value for maintenance of current wetland levels and the statewide WTP for expansion of wetland acreage. This ensures that benefits only for wetlands programs are captured, and also utilizes the lower, statewide WTP, capturi ng changes in WTP based on distance from the resource. Azevedo et al. (2000) calculated household ( HH ) WTP for two projects in Iowa, one of which is a prairie pothole preservation program that would seek so acquire and preserve a total of 40,000 acres of p rairie potholes, acquired at a rate of 2,500 acres per year for 15 years. TheDraft, Internal, Deliberative

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41 proposal benefits analysis attributed the WTP value for this program to a wetland size of 2,500 acres, resulting in an erroneously high WTP per acre. For the final, we have tak en the total size of the program (40,000 acres) and discounted those acres to the present at a 3% discount rate, assuming they are acquired over 15 years at a rate of 2 , 500 acres per year , thus describing the 40,000 acres preserved over a 15 year period in terms of the amount of acres preserved at once that would result in a socially discounted equivalent level of services . This results in a present value project size of 32,345 acres. Poor (1999) conducted a study of WTP for preservation of Nebraska’s flyw ay wetlands. The survey generating the WTP figures was completed in 1996. This was erroneously attr ibuted to 1995$ in the proposal and has been corrected. Whitehead and Blomquist (1991) presented six different figures of WTP for preservation of wetlands in Kentucky. Respondents were asked about three different wetland features, and asked their WTP given two different sets of information. The proposal used only three of these values, the final will incorporate all six val ues into the benefits analysis, c apturing how different information affects WTP. Mullarky and Bishop (1999) asked respondents their WTP to preserve 110 acres of wetlands in Wisconsin via re

- routing of a highway . Respondents were offered a polychotomous

choice format and indicated if the y would “definitely yes”, “probably yes”, “not sure”, “probably no”, or “definitely no” be willing to pay the amount offered. In the proposal, only the mean of the “definitely yes” responses was utilized as a WTP figure. In the final, the mean of the “de finitely yes” and “probably yes” responses will be used. When utilizing only the “definitely yes” responses, the inherent assumption is that all other respon dents had zero WTP. By including the probably yes respondents, we are ascribing greater than zero WTP to respondents where we are relatively certain their WTP is not zero, because respondents had the option to indicate they were not willing to pay the proffered amount, and did not select this option. We are unable to adjust WTP based on the degree of certainty, so it is possible the WTP value associated with the “probably yes” responses is an over - estimate, but it is certainly not zero. Lant and Tobin (1989) asked respondents their WTP for water quality improvements for rivers in Illinois and Iowa, an d estimated the increase in wetland acreage in the floodplain necessary to achieve a higher level of water quality. In the final analysis, the WTP per acre will utilize the estimated necessary increased acreage of wetlands and the proportion of WTP for th e water quality improvement being contemplated (i.e. an increase of 2,100 acres of wetlands would improve river quality by 0.55 points to “fair” (based on how respondents rated river quality). This represents 55 percent of the respondents’ WTP for water q uality improvements from “poor” to “fair”. This study also reported WTP on a per person basis, but also provided statewide average household size at the time the study was completed. The individual WTP was adjusted to reflect household WTP based on these average household sizes.Draft, Internal, Deliberative

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42 For this analysis , it is necessary to express WTP values on a “per acre” basis rather than a “per acre per year” basis to be comparable to the mitigation cost fi gures presented in this section

. The cost figures for compensatory m itigation reflect the total one

- time cost per acre to protect and maintain the services provided by a mitigation site into perpetuity. Thus benefits should be calculated as the total per acre value, not just the one

- year per acre value. The agencies sta ndardized WTP estimates across all studies in three ways: 1) household basis, 2) per acre basis, and 3) annual basis. For estimates reported as annual WTP for wetland preservation, the agencies derived the total present value over a period of 50 years us ing 3 percent and 7 percent discount rates. The agencies calculated WTP on a per household per acre basis by dividing the per household WTP value by the size of valued wetlands reported in a particular study. Additional detail on the standardization pr ocess is available in Appendix B. 

## National Wetlands Inventory Approach to Benefits Transfer Different types of wetlands perform different functions and may not be valued the same

. In an effort to account for these differing values, a benefits transfer exer cise was completing utilizing data from the National Wetlands Inventory (NWI)

. 19 NWI is the leading source for geospatial information on the potential and approximate extent of wetlands across the United States. Using data from the NWI, a GIS analysis was completed examining the acreage of digitally mapped wetland habitats on a county and state basis (NWI current as of February 4, 2011). This analysis resulted in an estimate of the acreage of different categories of wetlands mapped in the NWI on a state level throughout the United States, where digital data are available. Note that this is likely an underestimate of actual wetland acreage, as at the time of the analysis digital NWI data were not available for portions of the United States and the NWI wa s not complete for other portions of the country. Additionally, a t the time of the analysis, l imited data we re available in Alaska, Arkansas, Colorado, Kansas, Texas, and Utah, as approxi mately 75 percent or more of the wetlands in these stat es we re not digitally mapped in the NWI. D igitization of the NWI is now complete for the conterminous United States, but parts of Alaska continue to have no NWI data. Additionally, the NWI does not capture all wetlands, as the data are derived from aerial photo

- interpretation with varying limitations due to scale (NWI is at the 1:24,000 scale), photo quality, inventory techniques, vintage of the aerial photographs, and other factors. Consequently, the maps tend to show wetlands that are readily photo

inter preted given consideration of photo and map scale , while missing certain forested wetlands that are not as easy to detect

. Wetland features may also have changed since the date of the imagery and/or field work. There may be occasional differences in wetl and boundaries or classifications between the information depicted on the map and the actual conditions on site. Note that the definition of wetland the NWI uses is broader than the C lean Water Act regulatory definition.

19 U. S. Fish and Wil dlife Service. Data current as of February 4, 2011. National Wetlands Inventory. U.S. Department of the Interior, Fish and Wildlife Service, Washington, D.C. http://www.fws.gov/wetlands/

.Draft, Internal, Deliberative

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43 The NWI classifies wetland and deepwater habitats by types, utilizing the U.S. Fish and Wildlife Cowardin Classification System as defined by Cowardin et al

. , 20 as well as categorizing wetlands in groups of similar classifications : Freshwater Forested and Shrub wetland, Freshwater Emerge nt wetland, Freshwater pond, Estuarine and Marine wetland, Riverine, Lakes, Estuarine and Marine Deepwater, and Other Freshwater wetland. In reviewing the projected jurisdictional changes associated with the policies in the final rule, EPA determined that the vast majority of wetlands that would become jurisdictional would fall into the NWI categories of Freshwater Forested/Shrub and Freshwater Emergent. Remaining incremental wetlands would be negligible. As described by the NWI section of the U.S. Fish an d Wildlife Service website, a Freshwater Forested/Shrub wetland is a forested swamp wetland or shrub bog wetland . A Freshwater Emergent wetland is a n herbaceous marsh, fen, swale, or wet meadow

. 21 The state

- level wetland acreage by NWI category from the GI S analysis was used to estimate the proportion of acres in each state that fall under Forested or Emergent wetlands. This proportion was then multiplied by the projected increase in impacted acreage of Forested and Emergent wetlands, now to be off

- set via mitigation (see equation below). State

- specific estimates of newly

- impacted acres in each state was calculated using the same approach described above to estimate the state

- specific increase in mitigation acreage. NNNNNN AA FF SS SS

= TT NNNNNN AA SS SS ∗ ( AA FF SS SS AA FF SS SS + EE SS SS )
NNNNNN AA EE SS SS

= TT NNNNNN AA SS SS ∗ ( AA EE SS SS AA FF SS SS + EE SS SS )

The benefits studies can also be divided into the NWI categories of Freshwater Forested or Freshwater Emergent. After examining the wetlands described or specified in each case study from the original literature search, it was determined that four studies, generating thirteen WTP values assess Freshwater Forested wetlands and six studies , generating nine WTP values assess Freshwater Emergent Wetlands. WTP was calculat e d separately for each category by taking a geometric mean of the per

- acre WTP values, weighted by the number of respondents in each study. As shown in Figure 12 , WTP for Freshwater Forested/Shrub wetlands is approximately $0.0 4 per household per acre at a 7 percent discount rate and $0.06 per household pe r acre at 3

20 Cowardin, L.M., V. Carter V., F.C. Golet, E.T. LaRoe. 1979. Classi fication of Wetlands and Deepwater Habitats of the United States. U.S. Fish and Wildlife Service Report No. FWS/OBS/

- 79/31.Washington, D.C. 21 U. S. Fish and Wildlife Service. May 22, 2013. Wetlands Mapper Legend Categories. National Wetlands Inventory. U.S . Department of the Interior, Fish and Wildlife Service. Retrieved August 5, 2013, from http://www.fws.gov/wetlands/Data/Mapper

- Wetlands

- Legend.html.Draft, Internal, Deliberative

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44 percent . WTP for Freshwater Emerg ent wetlands is $0.004 per household per acre at 7 per cent and $0. 005 per household per acre at 3 percent

. Figure 12 . WTP per Household per acre ($/HH/acre) (2014$) Freshwater Forested/Shrub Freshwater Emergent 7% Discount Rate $0.04 $0.00 4 3% Discount Rate $0.06 $0.00 5 

## Aggregation of Benefits The next step in a benefits analysis is to determine to whom benefits accrue. In the proposed rule analysis, benefits were determined to accrue across eight wetland regions in the contiguous United States identified by the USDA Eco nomic Research service: Central Plains, Delta and Gulf, Mountain, Midwest, Northeast, Pacific, Prairie Potholes, and Southeast. 22 Alaska is not part of a wetland region and is treated separately. Accruing benefits on a regional scale assumes that all resi dents within that wetland region benefit from wetland losses within that region now being offset via compensatory mitigation. Three of the WTP studies used here surveyed respondents in multiple states. Thus, i t may be appropriate to consider benefits at a regional level as wetlands provide services that affect downstream water quality and uses , including beyond state borders

. However, aggregating benefits using the wetland regions requires ascribing benefits over a large geographic area and there are not data available to allow for examination of the effect distance from the resource being valued has on HH WTP for wetlands. Benefits from wetland losses now being compensated for via compensatory mitigation may also be assumed to accrue at the state level

. This approach assumes that only residents within a state’s boundaries receive benefits from wetland losses offset within that state. This calculation for benefits may be overly conservative as wetlands can provide services and benefits to downstream wa ters beyond a state’s boundaries, but it serves as a useful point of comparison. Additionally, six of the WTP studies utilized in this analysis completed WTP surveys with a statewide geographic scope. For these studies, ascribing benefits only within sta te boundaries may represent the most appropriate benefits transfer exercise There are no clear boundaries determining to whom benefits should accrue. Though both approaches are describe d above as appropriate, e stimating mitigation benefits using both and presenting the results as a range would introduce more varia tion to the analysis than is warranted. That is, the WTP values are from studies that represent largely a mix of the state and regional approaches. A pplying the values at only the state level or only the regional level would ascribe

22 Heimlich, R.E., R. Claassen, K.D. Wiebe, D. Gadsby, and R.M. House. 1998. Wetlands and Agriculture: Priv ate Interests and Public Benefits . AER

- 765, U.S. Department of Agriculture Economic Research Service, Washington, D.C.Draft, Internal, Deliberative

– Do not cite, circulate, or copy.

45 some values at the scale that would be less appropriate, and thus introduce additional varia tion into the analysis. An additional reason that it is preferable to use a blended approach for the WTP estimates is that t he WTP values from the studies represent both use and nonuse values. While we would expect the use values for a given household to be largely contained within the state where it is located, there is no reasonable justification for presuming that non

- use va lues would only apply to wetlands contained within state boundaries. Instead, on a region by region basis, EPA has taken a blended approach, using the simple average of the WTP applied at the regional level and the weighted average WTP applied at the state level for the states in that region, and applied this blended WTP to the acreage estimated for that region. Regional benefits for each wetland type were calculated using the following formula: RR FF / EE bb

= ( NN NN oo HH h oo )

∗ ( BB WW pp HHHH ) where Blended WTP per HH is the average of the WTPs per HH as applied at the state and regional levels , which also accounts for acreage of each wetland type in the region

. The breakdown by region appears in Figure 13

. In Figure 13 , multiplying the number of households by the household willingness to pay for each wetland type ($/HH), yields the total WTP. Given that the WTP per HH per acre is an order of magnitude lower for emergent wetlands than forested wetlands, while there are roughly double the acres of emergent wetlands relative to forested wetlands, the household WTP for emergent wetlands in each region is smaller than the household WTP for forested wetlands. The agencies observe the largest differences in HH WTP by wetland type in regions such as the Midwest and Northeast, where there are significantly more forested acres than emergent acres expected to be found jurisdictional

. Assuming a 3 percent discount rate, this ble nded approach produces a primary benefits estimate of $501.2 million.Draft, Internal, Deliberative

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46 Figure 13 . Estimated Annual Compensatory Mitigation Benefits

- Blended Approach (2014$). Blended Approach
- 3% Discount Rate

Region # Households Acres Emergent Acres Forested HH WTP Emergent ($/HH) HH WTP Forested ($/HH) Total WTP AK 258,058 1.0 0.7 0.005 0.041 $11,696 Central Plains 3,293,676 24.4 10.0 0.076 0.367 $1,458,757 Delta and Gulf 15,407,697 66.0 78.1 0.253 3.128 $52,086,199 Midwest 24,277,640 59.5 230.7 0.170 7.548 $187,371,142 Mountain 7,835,482 101.7 42.2 0.283 1.406 $13,241,121 Northeast 24,477,954 36.9 127.6 0.103 4.255 $106,679,257 Pacific 16,716,512 52.1 20.3 0.210 0.941 $19,236,590 Prairie Potholes 2,234,657 830.8 21.7 2.297 0.712 $6,723,890 Southeast 21,492,571 24.2 162.6 0.074 5.249 $114,405,313 Total $501,213,964 Blended Approach
- 7%
Region # HH Acres Emergent Acres Forested HH WTP Emergent ($/HH) HH WTP Forested ($/HH) Total WTP AK 258,058 1.0 0.7 0.004 0.029 $8,393 Central Plains 3,293,676 24.4 10.0 0.072 0.342 $1,363,351 Delta and Gulf 15,407,697 66.0 78.1 0.233 2.853 $47,540,032 Midwest 24,277,640 59.5 230.7 0.165 7.225 $179,403,398 Mountain 7,835,482 101.7 42.2 0.276 1.340 $12,663,495 Northeast 24,477,954 36.9 127.6 0.100 4.053 $101,667,758 Pacific 16,716,512 52.1 20.3 0.192 0.832 $17,121,843 Prairie Potholes 2,234,657 830.8 21.7 2.239 0.681 $6,525,753 Southeast 21,492,571 24.2 162.6 0.071 5.042 $109,887,086 Total $476,181,110Draft, Internal, Deliberative

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47 

# Section 10 : Summary of Estimated Indirect Costs and Benefits
This rule is estimated to r esult in approximately a 4.6 5 percent increase in waters found jurisdictional under the Clean Water Act, when compared to a baseline of current practice over FY13 and FY 14. Jurisdictional waters must not always be preserved in their natural state and never receive discharges of pollutants, but rather jurisdiction requires those seeking to discharge pollutants to receive a CWA permit and t ake required steps to ensure protection of water quality. This analysis estimates potential increases in costs and benefits from CWA programs that may see increased permitting activity as a result of this rule, including CWA Sections 311; 401; 402 CAFO, stormwater, and pesticide permits; and 404. Figure 14 displays a summary of these monetized costs and benefits. There are several costs and benefits that are unable to be monetized, including permitting time and project redesign costs under Section 404, as well as the benefits of Section 404 stream mitigation, benefits of the 402 pesticide general permit, and benefits of the 401 certification program. A comparison o f the monetized costs and benefits indicates that the benefits outweigh the costs.Draft, Internal, Deliberative

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48 Figure 14 . Estimated Annual Indirect Costs and Benefits. Annual Cost s (FY14$ millions) Annual Benefits (FY14$ millions) Low High Low High CWA 402 CAFO Administration $0.3 $0.3 $6.2 $10.8 CWA 402 CAFO Implementation $9.9 $9.9 CWA 402 Stormwater Administration $0.5 $0.5 $47.5 $60.2 CWA 402 Stormwater Implementation $47.8 $59.6 CWA 404 Permit Application $47.0 $80.3 $501.2 $501.2 CWA 404 Mitigation

– Wetlands $90.1 $232.8
SUBTOTAL $195.7 $383.3 $554.9 $572.3 CWA 311 Compliance $12.7 $12.7 not quantified CWA 401 Administration $1.3 $1.3 not quantified CWA 402 Pesticide General Permit Implementation $5.4 $5.9 not quantified CWA 404 Mitigation

– Streams $22.4 $44.4 not quantified
TOTAL $237.4 $447.6 $554.9 $572.3Draft, Internal, Deliberative

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49 

# Section 1 1 : Other Social Costs and Benefits

The changes in the definition of “Waters of the U.S.” under the Clean Water Act as a result of this rule will also affect federal government operations. In general, the agencies believe that the final rule will expedite the permit review process in the long

- term by clarifying jurisdictional matters that have been time

- consuming and cumbersome for field staff and the regulated community

. However, with a projected increase in waters that will be jurisdi ctional when compared to the baseline, the agencies anticipate that there will be an increase in permit applications to be managed. The estimated incremental administrative costs to the Corps are described below. 

## Corps Administrative Costs
The Corps anti cipates that it will incur additional administrative costs under the rule associated with the increased permitting workload. The Corps is typically, but not always, the permitting authority for CWA 404 permits. Sources of administrative costs include: re sponding to additional requests for jurisdictional determinations; an overall increase in workload

- related tasks such as permit actions, consultations, and compliance and enforcement actions; and additional time to conduct significant nexus analyses. The Corps will also likely face additional costs to provide program management, training, and compliance oversight associated with administering the program , especially in the near term

. Figure 15 briefly summarizes the principal cost categories for administering the CWA 404 program.

Figure 15

- Overview of CWA 404 Administrative Costs

Cost Category Description (costs vary conside rably by permit type and often by district ) Permitting Costs Costs associated with the time needed to review additional permits (which may be more complex due to a larger scope of review, reduction in the ability to avoid and minimize impacts, requiring m ore project modifications and additional mitigation) additional compliance and enforcement costs, additional mitigation plan reviews, effort to conduct additional agency consultations and coordination and possible increase in permit appeal requests and lit igation costs. JD Review and Coordination Costs Additional time needed to review additional JD requests, more coordination with Corps Headquarters for “other” (isolated) waters, additional time for District staff to prepare a significant nexus evaluation for “other” waters. More appeals of approved JDs may occur.Draft, Internal, Deliberative

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50 Automation Costs Additional costs for automating new JD forms, updating the permit tracking system (ORM2) to reflect needed data elements, updating user documentation. Training Costs Additional costs for Corps districts to implement the new guidance/rule, includes webinars, field training, and outreach activities for the regulated public. 23
The increase in waters that the agencies conside r jurisdictional from the 2008 G uidance may result in an increase in requests for JDs. Some changes contained in the final rule, such as providing a definition of tributaries that are categorically jurisdictional, should reduce the administrative costs of establishing jurisdiction. If such changes balance the expected increase in JD requests, there would be no incremental change administrative costs related to jurisdictional determinations. Because the agencies expect that most non

- isolated waters will be jurisdictional under the p olicies under the proposed rule, applicants may find “preliminary JDs” (PJDs) more appealing. In a PJD a permit applicant elects to set aside the question of jurisdiction and voluntarily “opts in” to the permitting process and avoids a longer “approved JD ” (AJD) process. In FY2010, 58 percent of JDs were PJDs (42 percent were AJDs). PJDs are less time

- consuming to document than AJDs, but permit application processing may require more information describing jurisdictional waters (e.g., to assess impacts a nd formulate compensatory mitigation requirements). Alternatively, some applicants may request an AJD as a means to potentially reduce mitigation requirements and associated costs. If more landowners elect to request AJDs, the workload and administrative costs will increase. The agencies expect that permit applications will increase as the Corps determine s that more waters are jurisdictional. This increase in permit activity may increase required consultations under the Endangered Species Act (ESA) and S ection 106 of the National Historic Preservation Act. This could increase costs for other agencies, such as the Fish and Wildlife Service, NOAA Fisheries , Advisory Council on Historic Preservation, and Tribal and State Historic Preservation Officers. Figure 16 depicts the broad categories and specific tasks related to Corps administration of the CWA 404 program. To derive an estimate of the increment al administrative costs, the Corps identified how many hours per year are devoted to each task at the headquarters and district office level and translated this into dollars using average fully loaded salary rates for the needed personnel. Applying the in cremental percentage increase in CWA 404 permits of 4.65 percent, the Corps estimates that their additional administrative costs will range from $ XX to $ XX million annually.

23 As the day

- to

- day permitting authority, the Corps will have primary responsibility for conducting outreach and training for industry an d entities seeking permits.Draft, Internal, Deliberative

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51 Figure 16

- Categories of Cops CWA 404 Administrative T asks Category Tasks
Wetland Delineation and Jurisdictional Determination (JD) Preliminary JD Office/Desk JD Field JD

Permit Related Tasks Pre

- Application Meetings Standard Permit (SP) Processing Base Letter of Permissions (LOP) Nationwide (NWP) Processing without a Pre

Construction Notification (PCN) NWP Processing with PCN Regional/Programmatic (RGP/PGP) Processing without PCN (issued by Regulatory) RGP/PGP Processing with PCN (issued by Regulatory)

Consultation Endangered Species A ct (ESA) Formal Consultation Process ESA Informal Consultation Process Historic Properties Tribal Environmental Impact Statement (EIS) EIS as Lead EIS as Cooperating Agency Compliance Compliance Resolution of Non

- Compliance Enforcement Unauthorized ActivityDraft, Internal, Deliberative

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5 2 

# Section 1 2 : Related Acts of Congress, Executive Orders, and Agency Initiatives Paperwork Reduction Act
This action does not impose any information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). An a gency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the CWA section 402 program may be found at 40 CFR 9.1. (OMB Control No. 2040

- 0004, EPA ICR No. 0229.19). For the CWA section 404 regulatory program, the current OMB approval number for information requirements is maintained by the Corps of Engineers (OMB approv al number 0710

– 0003). However, there are no new approval or application processes required as a result of this rulemaking that necessitate a new Information Collection Request (ICR). 

## Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) genera lly 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 sign ificant 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 an d operated and is not dominant in its field. After considering the economic impacts o f this rule on small entities, I certify that this final rule will not have a significant economic impact on a substantial number of small entities. See, e.g., Cement Ki ln 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).Draft, Internal, Deliberative

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53 Under the RFA, the impact of concern is any significant adverse economic impact on small entities, because the primary purpose of the initial regulatory flexibility analysis is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603. The scope of regulatory jurisdiction in this rule is narrower than that under the existing regulations. See 40 CFR 122.2 (defining “waters of the United States”). Because fewer waters will be subject to the CWA under the rule than are subject to regulation under the existing regulations, this action will not affect small entities to a greater degree than the existing regulations. As a consequence, this action will not have a significant advers e economic impact on a substantial number of small entities, and therefore no regulatory flexibility analysis is required. Today’s rule is not designed to “subject” any entities of any size to any specific regulatory burden. Rather, it is designed to cla rify the statutory scope of “the waters of the United States, including the territorial seas” (33 U.S.C. 1362(7)), consistent with Supreme Court precedent. This question of CWA jurisdiction is informed by the tools of statutory construction and the geograp hical 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 s ubstantial 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 Corps determined to seek wide input from representative s of small entities while formulating the proposed and final definition of this term that reflects the intent of Congress consistent with the mandate of the Supreme Court’s decisions. Such outreach, although voluntary, is also consistent with the President ’s January 18, 2011 Memorandum on Regulatory Flexibility, Small Business, and Job Creation, which emphasizes the important role small businesses play in the American economy. This process has enabled the agencies to hear directly from these representatives , throughout the rule development, about how they should approach this complex question of statutory interpretation, together with related issues that such representatives of small entities may identify for possible consideration in separate proceedings. The agencies have prepared a report summarizing their small entity outreach, the results of this outreach, and how these results have informed the development of this rule. This report, Final Summary of the Discretionary Small Entity Outreach for the Revis ed Definition of Waters of the United States (Docket Id. No. EPA

- HQ

- OW

- 2011

- 0880

- 1927), is available in the docket.


## Unfunded Mandates Reform Act

This action does not contain any unfunded mandate under the regulatory provisions of Title II of the Unfund ed 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 dutyDraft, Internal, Deliberative

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54 on any state, local, or tribal governments, or the private sector , and does not contain regu lat ory requirements that might significantly or uniquely affect small governments

. The definition of “waters of the United States” applies broadly to CWA programs

.


## Executive Order 13132: Federalism

This rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Keeping with the spirit of Executive Order 13132 and consistent with the agencies’ policy to promote communications with state and local governments, the agencies consulted with state and local officials throughout the process and solicited their comments on the proposed action and on the developm ent 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 sough t 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 20 11. Organizations involved include the National Governors Association, the National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the National League of Cities, the U.S. Conference of Mayors, the County Executives of America, the National Associations of Towns and Townships, the International City/County Management Association, and the Environmental Council of States. Additionally, the National Association of Clean Water Agencies and the Associatio n of Clean Water Administrators were invited to participate. The agencies held many additional calls and meetings with state and local governments and their associations, in preparation for the development of a proposed rule. Similarly to the outreach conducted prior to the development of the rule, the agencies committed themselves to providing a transparent, comprehensive, and effective process for taking public comment on the proposed rule. As part of this consultation, EPA held a meeting on May 13, 2014 to seek technical input on the proposed rule from the largest national representative organizations for State and local governments. During this process the agencies also extended its focused outreach to include a series of meetings with the Local Government Advisory Committee, and the Environmental Council of the States in conjunction with the Association of Clean Water Administrators and the Association of State Wetland Managers. InDraft, Internal, Deliberative

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55 addition to engaging these key organizat ions under, the agencies sought additional feedback on the proposed rule through broader public outreach to state and local government organizations during the public comment period. During the consultation process, some participants expressed concern that the proposed changes may impose a resource burden on state and local governments. Some participants urged EPA to ensure that states are not unduly burdened by the regulatory revisions. The agencies have prepared a report summarizing their voluntary consul tation and extensive outreach to S tate , local , and county governments , the results of this outreach , and how these results have informed the development of today’s rule. This report , Final Summary of the Discretionary Consultation and Outreach to State, L ocal, and County Governments for the Revised Definition of Waters of the United States ( Docket Id. No. EPA

- HQ

- OW

- 2011

- 0880

- XXXX) is available in the docket for this rule.


## Executive Order 13175: Consultation and Coordination with Indian Tribal Governments
Subject to the Executive Order (E.O.) 13175 (65 FR 67249, November 9, 2000) , a gencies may not issue a regulation that has tribal implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal govern ment provides the funds necessary to pay the direct compliance costs incurred by tribal governments, or the a gencies consult with tribal officials early in the process of developing the proposed regulation and develops a tribal summary impact statement. This action does not have tribal implications as specified in E

. O

. 13175. In compliance with the EPA Policy on Consultation and Coordination with Indian Tribes (May 4, 2011), the agencies consulted with tribal officials throughout the rulemaking process to gain an understanding of tribal issues and solicited their comments on the proposed action and on the development of today’s rule. In the course of this consultation , 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 U.S. in October 2011. The consultation and coordination process, including providing information on the development of an accompanying science report on the connectivity of streams and wetlands, continued, in stages, over a four year period, until the close of the public comment period on November 14, 2014. EPA invited tribes to provide written input on the rulemaking throughout both the tribal consultati on process and public comment period.Draft, Internal, Deliberative

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56 EPA specifically consulted with tribal officials to gain an understanding of, and to address, the tribal implications of the proposed rule. In 2011, close to 200 tribal representatives and more than 40 tribes particip ated 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 Cau cus 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. U ltimately, EPA received an additional 23 letters from tribes/tribal affiliations by the completion of the consultation period. The comments indicate that Tribes, overall, support increased clarity of waters protected by the Clean Water Act, but some expre ss concern with the consultation process and the burden of any expanded jurisdiction. The feedback received through consultation and written comments have been incorporated in today’s rule. The agencies have prepared a report summarizing their consultatio n 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 I d. No. EPA

- HQ

- OW

- 2011

- 0880

- XXXX ) , is available in the docket for this rule. As required by section 7(a), EPA’s Tribal Consultation Official has certified that the requirements of the executive order have been met in a meaningful and timely manner. A copy of the certification is included in the docket for this action. 

## Executive Order 13045: Protection of Children from Environmental Health and Safety Risks
This action is not subject to E.O. 13045 because the environmental health or safety risks addressed b y this action do not present a disproportionate risk to children. 

## Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use
This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.Draft, Internal, Deliberative

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57 

# Appendix A : Supplemental Cost Analysis Information Figure 17 . Occupational Emp loyment and Wage Estimates.

Position Occupational Code 1 Mean Hourly Wage 1 Benefits Adjustment Factor 3 Year Adjustment 4 Total Hourly Adjusted Wage Private Industry Environmental Scientist 19

- 2041 $35.89
1. 30 1.03 $47.96 Environmental Engineer 17

- 2081 $41.74 $55.77 Administrative Assistant 43

- 6011 $ 27.32 $36.51 Lawyer 23

- 1011 $ 66.41 $88.74 Economist 19

- 3011 $ 50.54 $67.53 Local Government Environmental Scientist 19

- 2041 $30.27
1.35 1.02 $41.88 Environmental Engineer 17

- 2081 $ 37.58 $51.99 Administrative Assistant 43

- 6011 $ 25.09 $34.71 Lawyer 23

- 1011 $ 46.13 $63.82 Economist 19

- 3011 $ 36.35 $50.29 State Government Environmental Scientist 19

- 2041 $28.50
1.35 1.02 $39.43 Environmental Engineer 17

- 2081 $35.26 $48.78 Administrative Assistant 43

- 6011 $21.42 $29.63 Lawyer 23

- 1011 $40.19 $55.60 Economist 19

- 3011 $30.78 $42.58 Federal Government Environmental Scientist 19

- 2041 $46.93

1.3 1 1.03 $63.18 Environmental Engineer 17

- 2081 $46.91 $63.16 Administrative Assistant 43

- 6011 $27.32 2 $36.79 Lawyer 23

- 1011 $62.87 $84.65 Economist 19

- 3011 $53.54 $72.08 1. Occupational codes and mean hourly wage from BLS (2014 ). Bureau of Labor Statistics (BLS), United States Department of Labor. 2014 . Occupational Employment and Wages, May 2013

. http://www.bls.gov/oes/current/oes_nat.htm 2. Hourly mean wage for administrative assistants working in the federal government not calculated in the May 2013 dataset. Hourly mean wage for private industry used for federal government rate. 3. Adjusted for benefits according to the Employment Cost for Employee Compensation Index for professional and related for private industry, local and state employees, and civilian workers. Average value across all three quarters of 2013. http://www.bls.gov/ncs/ect/ 4 . Escalated to 2014 dollars using the seasonally

- adjusted Employment Cost Index for private industr y ( May 2013 (Q2) =118.4, 2014 Q3=121.7), state and local employees (May 2013 (Q2) =121.0, 2014 Q3=124.0), and civilian workers (May 2013 (Q2) =118.9, 2014 Q3=122.2)Draft, Internal, Deliberative

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58 Figure 18 . State

- Level Unit Cost Data and Incremental Increases in Wetland and Stream Mitigation. State Increase in Wetland Mitigation (Acres) Per Acre Unit Cost of Wetlands Mitigation Increase in Stream Mitigation (Linear Feet) Per Linear Foot Unit Cost of Stream Mitigation
Low High Low High AK 3.4 $5,500 $55,000 23 $1,000 $1,000 AL 23.7 $10,524 $21,049 2,259 $380 $964 AR 23.7 $2,105 $5,262 54,862 $185 $343 AZ 36.3 $9,000 $23,000 1,000 $185 $343 CA 122.1 $18,500 $350,000 723 $185 $343 CO 25.2 $33,678 $105,245 14 $185 $343 CT 0.5 $124,000 $470,448 $185 $343 DE 0.5 $41,244 $41,244 $185 $343 FL 93.5 $35,000 $217,800 47 $185 $343 GA 13.6 $12,000 $136,000 $878 $975 IA 6.8 $15,787 $15,787 162 $185 $343 ID 1.9 $41,244 $41,244 348 $185 $343 IL 170.1 $41,244 $206,221 3,920 $185 $343 IN 55.7 $45,671 $91,341 11,316 $185 $343 KS 33.9 $52,622 $52,622 714 $185 $343 KY 14.5 $30,000 $30,000 7,916 $170 $396 LA 6.3 $15,787 $64,600 44 $185 $343 MA 1.9 $124,000 $621,166 $100 $343 MD 7.3 $12,917 $68,109 $294 $688 ME 0.5 $254,390 $377,230 $185 $343 MI 0.5 $40,000 $80,000 $185 $343 MN 34.9 $9,294 $76,443 33 $185 $343 MO 4.4 $15,787 $26,311 62 $95 $387 MS 2.9 $3,157 $26,311 86 $185 $343 MT 89.6 $41,244 $41,244 793 $185 $343 NC 22.8 $25,874 $69,736 25 $289 $381 ND 1441.9 $15,787 $15,787 201 $185 $343 NE 32.5 $15,787 $15,787 148 $185 $343 NH 0.5 $92,042 $128,330 $185 $343 NJ 4.8 $82,489 $412,443 $185 $343 NM 0.5 $42,098 $63,147 $185 $343 NV 179.7 $56,711 $67,022 98 $185 $343 NY 145.3 $50,000 $94,000 249 $310 $420 OH 289.7 $15,787 $15,787 8,247 $185 $343Draft, Internal, Deliberative

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59 State Increase in Wetland Mitigation (Acres) Per Acre Unit Cost of Wetlands Mitigation Increase in Stream Mitigation (Linear Feet) Per Linear Foot Unit Cost of Stream Mitigation
Low High Low High OK 2.4 $12,000 $72,000 1,038 $240 $450 OR 18.9 $54,500 $125,170 $185 $343 PA 57.7 $12,000 $15,000 1,039 $185 $343 RI 0.5 $124,000 $160,000 $185 $343 SC 144.9 $26,311 $105,245 972 $79 $217 SD 166.7 $15,787 $15,787 331 $185 $343 TN 18.9 $25,000 $25,000 69 $54 $240 TX 236.4 $15,000 $45,000 5,837 $80 $220 UT 37.3 $56,711 $67,022 $185 $343 VA 75.1 $16,000 $140,000 $300 $977 VT 1.5 $110,000 $132,000 $185 $343 WA 3.9 $34,677 $318,546 48 $185 $343 WI 10.7 $58,000 $61,000 10 $185 $343 WV 108.0 $30,000 $64,000 9,279 $400 $869 WY 6.8 $15,787 $15,787 $185 $343 Total 3,781 111,916Draft, Internal, Deliberative

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60 

# Appendix B: Supplemental Benefit Estimate Information Summary of Wetland Benefits Studies Used to Generate WTP Estimates
Study Location NWI Category Study Area (acres) Survey Population Response Rate WTP Value from Study (2014$) 1 WTP Description Standardized One
- Time WTP per

Acre 2
Azevedo et al (2000) IA Emergent 7,000 and 32,345 3 Random sample of Iowa residents statewide, additional random sample of a targeted group of hunters/anglers 58.1% 4 $13.75

- $34.37 Iowa residents' one - time WTP to preserve and restore wetlands through the Prairie Pothole Joint Venture and Iowa River Corridor Project $0.0011

- $0.0020

Blomquist and Whitehead (1998) KY, IN, TN, IL,

MO Forested /Shrub 500 Random dialing of households in Western Kentucky and nearby areas of Indiana, Tennessee, Illinois and Missouri from phone directories 66.7% $3.06

- $20.30 Household annual WTP for four wetlands with differing characteristics in western Kentucky $0.1575

- $1.0447Draft, Internal, Deliberative

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61 Study Location NWI Category Study Area (acres) Survey Population Response Rate WTP Value from Study (2014$) 1 WTP Description Standardized One
- Time WTP per

Acre 2
Dillman et al (1993) SC Forested/Shrub 2,500 Random sample of South Carolina households statewide 21% $28.25 South Carolina households’ one

time WTP for preservation of o n e of three 2,500 acre wetlands in the Francis Biedler forest of South Carolina $0.0113

Johnson and Linder (1986) SD Emergent 1,307,187 One percent random sample of a targeted group, South Dakota anglers and hunters state w ide 61% $626.18 South Dakota hunters’ one

time WTP for wetlands statewide for hunting. Majority of hunting wetlands are located in the eastern part of the state. $0.0005

Lant and Tobin (1989) IA, IL Forested/Shrub 2,109 and 1,108 5 In

- person interviews with residents of towns near the three rivers examined. Not reported. $46.30

- $104.22 Annual WTP to improve water quality in two different river basins. $0.3029

- $2.4203Draft, Internal, Deliberative

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62 Study Location NWI Category Study Area (acres) Survey Population Response Rate WTP Value from Study (2014$) 1 WTP Description Standardized One
- Time WTP per

Acre 2
Loomis et al. (1991) CA Emergent 85,000 and 125,000 6 Random sample of households in San Joaquin Valley and throughout California 51% $267.68

- $441.49 Annual California statewide household WTP to protect and restore San Joaquin Valley wetlands. $0.0435

- $0.0909

Mullarky and Bishop (1999) WI Emergent 110 Random sample of Wisconsin residents statewide 43.5% $19.44

- $34.20 Annual WTP for a hypothetical rerouting of a highway expansion that would preserve 1 1 0 acres of wetlands in Wisconsin $2.4389

- $8.0003

Poor (1999) NE Emergent 41,000 Random statewide sample of Nebraska households 46% $31.76 Annual WTP to incr ease the area of wetlands in Nebraska’s rainwater basin wetland region by an average of 41.000 acres $0.0107

- $0.0199Draft, Internal, Deliberative

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63 Study Location NWI Category Study Area (acres) Survey Population Response Rate WTP Value from Study (2014$) 1 WTP Description Standardized One
- Time WTP per

Acre 2
Roberts and Leitch (1997) MN, SD Emergent 5,000 Minnesota and South Dakota households within a 30

- mile radius of Mud Lake 62% $9.34 Annual value to households to households of Mud Lake, a managed lacustrine wetland on the border of Minnesota and South Dakota $0.0258

- $0.0480

Whitehead and Blomquist (1991) KY Forested 5,000 Random cluster sample of Western Kentucky households from phone directories 31% $9.72

- $31.71 Kentucky households’ annual WTP for preservation of Clear Creek wetland, a large natural wetland with hardwood trees, standing water, and non

woody vegetation. $0.0268

- $0.1632Draft, Internal, Deliberative

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64 Study Location NWI Category Study Area (acres) Survey Population Response Rate WTP Value from Study (2014$) 1 WTP Description Standardized One
- Time WTP per

Acre 2
1. If frequency of payment not specified, EPA assume d WTP is in terms of a one

- time payment. Figures updated to 2014$ using CPI

- U. 2. For estimates reported as annual WTP, the agencies derived the total present value over a period of 50 years using 3 percent and 7 percent discount rates. 3. Azevedo et all present WTP for two different study areas, sized 7,000 acres and a project to preserve a total of 40,000 acres of prairie potholes over 15 years, at a rate of 2,500 acres per year. This figure was discounted at a 3% rate, to develop a project size of 32,345 4. 58.1% represents average overall response rate for Azevedo et al. The response rate for Iowa River Corridor survey (study area 7,000 acres) was 56.5%. The response rate for the Prairie Pothole version of the survey (study area 32,345 acres) was 58.9%

. 5. Lant and Tobin (1989) estimate the increase in wetland acreage in the riparian corridor to achieve water quality improvements in two different river basins. It is estimated an increase of 2,109 acres of wetlands would achieve the valued water qual ity improvements in the Edwards River basin and 1,108 new acres of wetlands would achieve the valued water quality improvements in the South Skunk River. 6. Loomis et al. present statewide WTP values to preserve existing wetlands of 85,000 acres and also for a program with a total size of 125,000 acres that would preserve the original 85,000 acres plus restore an additional 40,000 acres.Draft, Internal, Deliberative

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65 

## Summary of Wetland Benefits Studies
Azevedo, C., J.A. Herriges, and C.L. Kling. 2000. Iowa Wetlands: Perceptions and Values. Center for Agricultural and Rural Development. Staff Report 00

- SR 91. Azevedo et al. (2000) conducted a survey to understand how residents of Iowa value wetlands, specifically with regard to the following functions: wildlife viewing , fishing, biking, hiking, waterfowl and upland hunting. The 5

- part survey collected information regarding wetland visitation patterns, perceived benefits and costs associated with wetlands, socioeconomic characteristics of respondents, and their WTP for p reservation of existing wetlands and restoration of additional wetlands via two specific programs: the Prairie Pothole Joint Venture (PP) and the Iowa River Corridor Project (IRCP). The authors used contingent valuation to evaluate WTP for restoring additi onal wetlands through PP and ICRP. Results indicated that approximately 50% of Iowans would pay $25 in support of PP and less than $10 for ICRP (2000 dollars).

Blomquist, G.C. and J.C. Whitehead. 1998. Resource Quality Information and Validity of Willingn ess to Pay in Contingent Valuation. Resource and Energy Economics 20: 179

- 196. Blomquist and Whitehead (1998) conducted a contingent valuation study to estimate the value of four wetlands in Western Kentucky with differing characteristics. One was a freshw ater marsh, one was a temporarily flooded bottomland hardwood forest, one was a seasonally flooded bottomland hardwood forest, and one was a bald cypress swamp. Wetland functions included flood control, water quality improvements, and wildlife production/h abitat. WTP ranged from $1.69 (1990 dollars) for Flat Creek, a freshwater marsh, to $11.21 (1990 dollars) for Cypress Creek, a cypress swamp.

Dillman, B., L.J. Beran, and D.D. Hook. 1993. Nonmarket Valuation of Freshwater Wetlands: The Francis Beidler For est. South Carolina Water Resources Research Institute, Clemson University. Dillman et al. (1993) estimated the WTP for preservation of 2,500 acres of wetlands in the Francis Biedler forest of South Carolina using dichotomous choice contingent valuation me thod. The study examined three types of wetland: frequently flooded bottomland (cypress

- tupelo swamp), infrequently flooded bottomland hardwood forest, and non

- bottomland pine plantation with hardwood runners. These wetlands served the following functions: flood control, wildlife habitat, recreational activities, water supply, and aesthetic value. The mean WTP estimated was $16.74 (1993 dollars) per household (ranging from $6.82 for infrequently flooded bottomland hardwood forests to $19.57 for pine plantat ions with scattered hardwood runners).Draft, Internal, Deliberative

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66 Johnson, C.W. and R.L. Linder. 1986. An Economic Valuation of South Dakota Wetlands as a Recreation Resource for Resident Hunters. Landscape Journal 5(1): 33

- 38. Johnson and Linder (1986) conducted a contingent valuat ion study to estimate the value of wetlands in South Dakota as a recreational resource for resident hunters. The study examined wetlands statewide, the majority of which are located in the eastern part of the state. Their results indicated that the total v alue for waterfowl, upland, big game, and predator hunting in South Dakota wetlands in 1986 dollars was $34 million, and that the average total per user value of wetlands was $289.90 for a single hunting season.

Lant, C.L. and G.A. Tobin. 1989. "The Econ omic Value of Riparian Corridors in Cornbelt Floodplains: A Research Framework". Professional Geographer 41(3): 337

- 49. Lant and Tobin (1989) studied willingness to pay higher state sales tax to improve water quality of riparian corridors in Iowa and Illin ois. The study examined three river corridors utilizing face

to

- face interviews: the Edwards River in Illinois, the South Skunk River in Iowa, and the Wapsipinicon River in Iowa. A necessary increase in wetland acreage in the Riparian corridor to achieve w ater quality improvements was estimated. WTP per person for improvement of quality in the Edwards River to that in the South Skunk was $8.85 per year (1989$) , and value per person for improvement of quality in the South Skunk River to that in the Wapsipini con was $20.37 per year (1989$)

. The study also reported a state mean average household size of 2.74 and 2.68 individuals per household in Illinois and Iowa respectively. This study had a very small sample size.

Loomis, J., M. Hanemann, B. Kanninen and T. Wegge. 1991. "Willingness to Pay to Protect Wetlands and Reduce Wildlife Contamination from Agricultural Drainage." In A. Dinar and D. Zilberman (eds.), The Economics and management of Water and Drainage in Agriculture. Boston, Massachusetts: Kluwer Academic Publishers, pp. 411

- 445. Loomis et al. (1991) studied California residents’ willingness to pay additional taxes to preserve and restore wetlands in California’s San Joaquin Valley. The study’s focus was wetlands as a habitat for migratory birds. The study found that average statewide annual household willingness to pay for a program to prevent further destruction of an existing 85,000 acres of wetlands was $154, and the mean statewide willingness to pay for a program including both maintena nce of existing acreage plus the restoration of an additional 40,000 acres was $254 (1990 dollars). The study also examined a program to reduce and prevent further pollution of wildlife habitat in the region, and to increase Chinook salmon populations.Draft, Internal, Deliberative

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67 Mu llarkey, D.J. and R.C. Bishop. 1999. Sensitivity to Scope: Evidence from a CVM Study of Wetlands. Presented at the Annual Meeting of the American Agricultural Economics Association, Nashville, TN, August 8

- 11, 1999. Mullarkey and Bishop (1999) conducted a study of WTP for a hypothetical rerouting of a highway expansion that would preserve 110 acres of wetlands in Wisconsin. The wetlands in question provide a range of services including flood control, water purification, bird/wildlife habitat, and for a port ion of the affected wetlands, fish habitat. The study reported six estimates of WTP ranging from $13.68 to $57.83 (1999 dollars) depending upon whether respondents were informed that mitigation would be taking place if the wetland were destroyed and the de gree of certainty respondents expressed in their answers.

Poor, P.J. 1999. The Value of Additional Central Flyway Wetlands: The Case of Nebraska’s Rainwater Basin Wetlands. Journal of Agricultural and Resource Economics 24: 253

- 265. Poor (1999) examined WTP to increase the area of wetlands in Nebraska’s rainwater basin by an average of 41,000 acres across multiple survey versions. The basin is a large complex of 34,000 wetland acres, and a plan is already in place to create an additional 25,000 wetland ac res. Wetland services in this study included flood control, water quality improvement, wildlife production and habitat, and bird watching/hiking. Median and mean household WTP were $4.17 and $21.05 (1996 dollars), respectively.

Roberts, L.A. and J.A. Leit ch. 1997. Economic Valuation of Some Wetland Outputs of Mud Lake, Minnesota

- South Dakota. North Dakota Agricultural Experiment Station. Agricultural Economics Report No. 381. Roberts and Leitch (1997) conducted a contingent valuation study of the value of Mud Lake, a managed lacustrine wetland on the border of Minnesota and South Dakota. This study used a discrete choice survey to determine use, option/bequest, and existence values for Mud Lake. Use values, defined as WTP for management for water related re creation and fish/wildlife habitat ranged from $22,699 to more than $44,736 (1997 dollars) for all respondents in the sample. Option/bequest values ranged from $25,795 to more than $52,750 (1997 dollars) for all respondents in the sample. Existence values ranged from $18,508 to more than $40,451 (1997 dollars) for all respondents in the sample. Total overall median willingness to pay for the sample was estimated to be $102,000 (1997 dollars).

Whitehead, J.C. and G.C. Blomquist. 1991. Measuring Contingent V alues for Wetlands: Effects of Information about Related Environmental Goods. Water Resources Research 27: 2523

- 2531.Draft, Internal, Deliberative

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68 Whitehead and Blomquist (1991) utilized contingent valuation to examine Kentucky residents’ WTP for preservation of the Clear Creek wetlan d, a large natural wetland with hardwood trees, standing water, and non

- woody vegetation. The wetland provides a range of services including water quality maintenance, fish and wildlife habitat, flood and sediment control, groundwater recharge, biological productivity and outdoor recreation. The study used three different survey versions consisting of two WTP questions each, with the difference in each case reflecting a difference in information presented about the wetland quality that would result if Clear Creek is not preserved. WTP values ranged from $5.09 to $16.61 (1991 dollars) under the scenario discussing preservation and reclamation of Clear Creek itself, and from $3.75 to $8.13 (1991 dollars) under scenarios discussing preservation of other wetland s concurrent with reclamation of Clear Creek. 

## Procedure for Standardizing and Weighting WTP Values from Benefits Studies

WTP estimates were standardized across studies as follows: 1. For WTP values reported as an annual value, the agencies derived the tota l present value over a period of 50 years using 3 percent and 7 percent discount rates.
2. In a few studies WTP values were reported for individuals as opposed to per household. In such cases, the agencies applied the individual value as if it were represen tative of the household value , with the exception of Lant and Tobin (1989), which explicitly stated the average household size at the time the study was completed. Where an individual was assumed to represent the household value, for studies where the ave rage household size was actually greater than one, this leads to an underestimate of benefits.
3. WTP per household per acre was calculated using the reported size of the wetlands valued in the studies. Standardized WTP values were sorted by NWI Category, and an overall WTP value was calculated using a geometric mean, weighted by the number of respondents per survey (a study may have more than one survey). In circumstances where multiple WTP values were extracted from a one survey, the total weight assigne d to that survey was divided amongst the observations utilized.Draft, Internal, Deliberative

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69 

# Appendix C: Sensitivity Analyses This sensitivity analyses examines how overall costs and benefits are affected by changes in the jurisdictional assumptions that drive calculations throughout the analysis. The results of the different scenarios examined are presented below in Figure 19 . The figure first presents the primary jurisdictional scenario used throughout the document and described in detail in Section 4 , and briefly discussed here . In the primary s cenario, it is assumed that 100 percent of wetlands and 100 percent of streams are jurisdictional. Waters currently classified as other waters can become jurisdictional as adjacent waters, an (a)(7) special type of water found jurisdictional thro ugh a case

- specific analysis, or an (a)(8) water within 4,000 feet of an ordinary high water mark of a traditionally navigable water, interstate water, territorial sea, tributary, or impoundment of waters. An analysis of jurisdictional determination files for currently non

- jurisdictional ORM2 other waters found that:

• 17 .1 percent would be determined to be jurisdictional as adjacent waters.

• 21.8 percent are the special categories of waters identified in (a)(7) of the final rule. Nine and a half ( 9.5 ) perce nt of these special categories are located in watersheds with a high density of wetlands, and all of these waters were assumed to become jurisdictional. The remaining 12.4 percent of these special types of waters are located in less dense watersheds , and half were assumed to be determined as jurisdictional. Overall, 1 5 .7 of other waters are estimated to change from negative determinations to positive jurisdictional determinations under (a)(7) in the final rule [9.5%+(1 2 .4%*0.5)].

• The remaining 33.1 percent of ORM2 other waters may be determined to be jurisdictional under paragraph (a)(8) of the final rule. Five percent of these waters are assumed to be determined jurisdictional, which represents 1.7 percent of the total number of ORM2 other waters [33.1%*.05]. In total, these assumptions result in an estimate that 34.5 percent of the ORM2 other waters would receive a positive jurisdiction al determination under this rule. Additionally, in the primary jurisdictional scenario, the nu mber of other waters records are doubled for all calculations. To estimate the overall percent change in positive jurisdiction al determinations , an increase in positive determinations in any category of waters (wetland, streams, or ORM2 other waters) must be applied proportionally based on the size of that category relative to the total number of other waters. Figure 3 shows this calculation in the p rimary scenario, resulting in a 4.65 percent change in positive jurisdiction al determinations

. This corresponds to costs ranging from $237.4 to $447.6 million and benefits ranging from $554.9 to $572.3 million, as calculated throughout the document. Thes e cost and benefits figures are presented below in Figure 19 , as the primary scenario

.Draft, Internal, Deliberative

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70 Section 4 also presents a scenario where the number of “other waters” is not d oubled at all , corresponding to an overall 2.8 4 percent change in positive jurisdiction al determinations , as calculated in Figure 2

. Using these assumptions, costs ra nge from $158.6 to $295.6 million, with benefits of $338.9 to $349.5 million

. This jurisdictional scenario is presented in Figure 19 as scenario A. Another scenario to consider is if the number of ORM2 other waters records was doubled only for the purposes of calcu lating waters that would be determined to be jurisdictional under (a)(7) and (a)(8) provisions . This approach to doubling is similar to th e approach used in the economic analysis accompanying the proposed rule, where doubling was only utilized for the calculations for ORM2 other waters not becoming jurisdictional as adjacent. This scenario corresponds to an overall increase in positive juri sdiction al determinations of 3.67 percent, presented in scenario B below. Corresponding costs range from $194.8 to $365.3 million with benefits of $437.9 to $451.7 million. It is also useful to examine how jurisdiction is affected if it is assumed that a ll waters identified in our random sample as a special type of water under (a)(7) would be determined to be jurisdictional, rather than adjusting for the likelihood of a positive case

- specific jurisdictional determination based on density. Assuming that a ll 21.8 percent of (a)(7) waters are determined to be jurisdictional and returning to the approach to doubling ORM2 other waters for all calculations as done in the primary scenario, we calculate a project ed increase in percent positive jurisdiction al dete rminations for ORM2 other waters of 40.7 percent [= 17.1%+21.8%+1.7%]. As summarized in scenario C below, w hen weighted appropriately, this corresponds to an overall increase of positive determinations of 5.36 percent and costs range from $268.3 to $507.2 million. Benefits range from $639.6 to $659.6 million. Changes in assumptions regarding (a)(8) waters can also be considered. Returning to the same assumptions about (a)(7) waters as in the primary scenario, scenario D below examines how the calculations are affected if it is assumed that 10 percent of the waters under (a)(7) are assumed to be determined jurisdictional. This corresponds to a 36.1 increase in projected percent of positive jurisdictional determinations for ORM2 other waters, corresponding t o an overall increase in positive determinations of 4.84 percent. This is presented as scenario D below, and costs and benefits range from $245.7 to $463.6 million and $ 593.0 to $611.1 million respectively. Scenario E combines the assumptions from scena rios C and D. In scenario E, all (a)(7) and 10 percent of (a)(8) waters are assumed to be determined jurisdictional. In this scenario, 42.3 percent of all ORM2 other waters are projected to be determined jurisdictional, corresponding to an overall 5.55 p ercent increase in jurisdictional determinations

. Associated costs range from $ 276.6 million to $ 523.2 million, with benefits ranging from $ 662.3

- to $683.0 million.Draft, Internal, Deliberative

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71 It is important to recognize that in all scenarios benefits outweigh the costs because, as the number of waters that are protected under the Clean Water Act increases, benefits rise along with costs. Some scenarios show higher costs and benefits than the primary scenario, while others result in lower costs and benefits; however, the agencies believe that the primary scenario repres ents the most likely change in jurisdictional assertion as a result of this rule. Figure 19 . Sensiti vity Analysis

Scenario Change in Jurisdictional Assumptions from Primary Scenario Overall Percent Change in Jurisdictional Waters Costs (2014$ millions) Benefits (2014$ millions) Primary 4.65% $237.4

- $447.6 $554.9

- $572.3 A No doubling of ORM2 other waters records. 2.84% $ 158.6

- $295.6 $338.9

- $349.5
B Doubling of ORM2 other waters only applied to waters becoming jurisdictional under (a)(7) and (a)(8), similar to proposal analysis 3.67% $ 194.8

- $365.3 $ 437.9

- $451.7

C All (a)(7) waters jurisdictional 5.36% $ 268.3

- $507.2 $ 639.6

- $659.6
D 10% of (a)(8) waters jurisdictional 4.84% $ 245.7

- $463.6 $ 577.6

- $595.6
E All (a)(7) waters become jurisdictional, 1 0% of (a)(8) waters jurisdictional 5.55 % $ 276.6

- $523.2 $ 662.3

- $683.0