Clean Water Rule Response to Comments – Topic 1: General Comments 

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Clean Water Rule Comment Compendium

Topic 1: General Comments

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

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

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

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

issues raised in the public comments.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rule rulemaking record.

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

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

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

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

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

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

comments that were submitted on the proposed rule.

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

the technical comments about general matters including state and tribal authorities submitted by 

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

summarizing. Footnotes in regular font are taken directly from the comments.

In this compendium, where otherwise not marked, responses by the Agencies are in bold text.
Clean Water Rule Response to Comments – Topic 1: General Comments 

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TOPIC 1. GENERAL COMMENTS ............................................................................................... 13

AGENCY SUMMARY RESPONSE.................................................................................... 13

SPECIFIC COMMENTS ................................................................................................... 23

Committee on Space, Science and Technology (Doc. #16386)............................ 23

Kansas House of Representatives Committee on Energy & Environment (Doc. 

#4903) ................................................................................................................... 24

Kansas Senate Committee on Natural Resources (Doc. #4904)........................... 25

Attorney General of Texas (Doc. #5143.2) .......................................................... 25

Rural County Representatives of California (Doc. #5537)................................... 25

Johnson County and Eastern Sheridan County, Wyoming (Doc. #6191)............. 26

Tennessee Department of Environment and Conservation (Doc. #15135) .......... 26

State of Alaska (Doc. #19465).............................................................................. 26

Travis County, Texas (Doc. #4876)...................................................................... 26

Damascus Township Board of Supervisors (Doc. #5481).................................... 27

County of El Dorado, California (Doc. #5483) .................................................... 27

St. Johns County Board of County Commissioners (Doc. #5598) ....................... 27

New Hanover County, North Carolina (Doc. #5609)........................................... 28

City of Thornton (Doc. #7328.2).......................................................................... 28

Murray County Board of Commissioners (Doc. #7528.1) ................................... 28

Iowa Department of Agriculture and Land Stewardship - State Soil Conservation 

Committee (Doc. #7642) ...................................................................................... 29

Beaver County Commission (Doc. #9667)........................................................... 30

White Pine County, Board of County Commissioners (Doc. #9975)................... 30

Office of the City Attorneys, City of Newport News, Virginia (Doc. #10956) ... 31

Board of Commissioners of Carbon County, Utah (Doc. #12738)....................... 31

Elko County Board of Commissioners, Nevada (Doc. #12755)........................... 31

Big Horn County Commission (Doc. #13599) ..................................................... 31

Campbell County Conservation District (Doc. #13630)....................................... 32

Florida League of Cities, Inc. (Doc. #14466)....................................................... 32

Marion County Board of County Commissioners (Doc. #14979)........................ 32

Sierra Club Iowa Chapter (Doc. #15446) ............................................................. 33

Terrebonne Levee and Conservation District (Doc. #16365)............................... 33

Meeteetse Conservation District (Doc. #16383)................................................... 34

Amador County Board of Supervisors (Doc. #17450) ......................................... 34

California State Association of Counties (Doc. #9692)........................................ 35

Florida Association of Counties (Doc. #10193..................................................... 35

Colorado Stormwater Council (Doc. #12981)...................................................... 35

Golf Course Superintendents Association of America et al. (Doc. #14902)........ 36

American Foundry Society (Doc. #15148)........................................................... 37

Automotive Recyclers Association (Doc. #15343) .............................................. 37

Dow Chemical Company (Doc. #15408).............................................................. 38

Association of Nebraska Ethanol Producers (Doc. #15512) ................................ 39

Federal Water Quality Coalition (Doc. #15822.1)................................................ 39

Louisiana Landowners Association (Doc. #16490).............................................. 40

Water Advocacy Coalition (Doc. #17921.1) ........................................................ 41

American Society of Civil Engineers (Doc. #19572)........................................... 43
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Minnkota Power Cooperative, Inc. (Doc. #19607)............................................... 43

Houma-Terrebonne Chamber of Commerce (Doc. #19624)................................ 44

Shiels Engineering, Inc. (Doc. #13558)................................................................ 45

O'Neil LLP (Doc. #14651).................................................................................... 45

Home Builders Association of Tennessee (Doc. #16849).................................... 45

CEMEX (Doc. #19470) ........................................................................................ 46

South Carolina Forest Association (Doc. #6855) ................................................. 46

American Petroleum Institute (Doc. #15115)....................................................... 46

American Gas Association (Doc. #16173) ........................................................... 47

Georgetown Sand & Gravel (Doc. #19566) ......................................................... 47

D. Warnock (Doc. #0984)..................................................................................... 47

Washington Cattlemen’s Association (Doc. #3723)............................................. 48

Montana Wool Growers Association (Doc. #5843) ............................................. 48

Cattle Empire (Doc. #8416).................................................................................. 49

Alameda County Cattlewomen (Doc. #8674)....................................................... 49

Bayless and Berkalew Co. (Doc. #12967)............................................................ 51

Indiana State Poultry Association (Doc. #13028.1).............................................. 52

Iowa Corn Growers Association (Doc. #13269)................................................... 52

Delaware Council of Farm Organizations (Doc. #12345).................................... 53

Western Growers Association (Doc. #14130) ...................................................... 54

Kansas Agriculture Alliance (Doc. #14424)......................................................... 55

Missouri Soybean Association (Doc. #14986) ..................................................... 56

Jefferson Mining District (Doc. #15706).............................................................. 56

Loup Basin Reclamation District, Farwell Irrigation District, Sargent Irrigation 

District, Nebraska (Doc. #16474)......................................................................... 57

Wilkin County Farm Bureau (Doc. #19489) ........................................................ 57

Ohio Pork Council (Doc. #19554)........................................................................ 58

Chicken & Egg Association of Minnesota (Doc. #19584) ................................... 59

Iowa Poultry Association (Doc. #19589).............................................................. 59

Clearwater Watershed District; et al. (Doc. #9560.1)........................................... 60

Westlands Water District (Doc. #14414).............................................................. 60

Santa Clara Valley Water District (Doc. #14476) ................................................ 61

The Fertilizer Institute (Doc. #14915) .................................................................. 62

Utility Water Act Group (Doc. #15016)............................................................... 62

Colorado River Water Conservation District (Doc. #15070) ............................... 62

San Diego County Water Authority, California (Doc. #15089)........................... 62

Association of Metropolitan Water Agencies et al. (Doc. #15157)...................... 64

Pennsylvania Independent Oil and Gas Association (Doc. #15167).................... 64

Interstate Council on Water Policy (Doc. #15397)............................................... 64

Association of Fish and Wildlife Agencies (Doc. #15399).................................. 66

Eastern Municipal Water District (Doc. #15409)................................................. 66

Oregon Water Resources Congress (Doc. #15488) .............................................. 66

Lower Arkansas Valley Water Conservancy District (Doc. #15767)................... 66

Association of Electronic Companies of Texas, Inc. (Doc. #16433).................... 67

Texas Water Development Board (Doc. #16563)................................................. 67

Alliant Energy Corporate Services, Inc. (Doc. #18791)....................................... 68
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Associated Industries of Florida (Doc. #19325)................................................... 68

Texas Conservative Coalition (Doc. #14528)....................................................... 68

Black Hills Regional Multiple Use Coalition (Doc. #14920)............................... 69

Guardians of the Range (Doc. #14960) ................................................................ 70

Black Warrior Riverkeeper, Inc. (Doc. #15090)................................................... 70

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

Baykeeper and Raritan Riverkeeper (Doc. #15360)............................................. 71

Green Dining Alliance (Doc. #15700).................................................................. 71

Red River Valley Association (Doc. #16432) ...................................................... 72

Connecticut River Watershed Council (Doc. #16456) ......................................... 72

Save the Illinois River, Inc. (Doc. #16462) .......................................................... 72

Arkansas Wildlife Federation (Doc. #16493)....................................................... 73

Greater Fort Bend Economic Development Council (Doc. #18009).................... 73

Coalition for the Delaware River Watershed (Doc. #18832) ............................... 73

Cache La Poudre Water Users Association (Doc. #18904).................................. 74

Upper Mississippi, Illinois, & Missouri Rivers Association (Doc. #19563)........ 76

The Property Which Water Occupies (Doc. #8610)............................................. 76

K. Mantay (Doc. #15192.1).................................................................................. 78

O'NEIL LLP (Doc. #16559) ................................................................................. 78

1.1. COMMENTS ON STATE/TRIBAL AUTHORITY .................................................................... 79

AGENCY SUMMARY RESPONSE.................................................................................... 79

SPECIFIC COMMENTS ................................................................................................... 88

Committee on Space, Science and Technology (Doc. #16386)............................ 88

Secretary of Energy & Environment, State of Oklahoma (Doc. #2038) .............. 90

Barona Band of Mission Indians (Doc. #2476) .................................................... 91

Attorney General of Texas (Doc. #5143.2) .......................................................... 92

North Dakota Water Resource Districts Association (Doc. #5596) ..................... 94

Pennsylvania Department of Transportation (Doc. #6258.1)............................... 94

Illinois House of Representatives (Doc. #7978)................................................... 94

Pennsylvania Department of Environmental Protection, Office of Water 

Management (Doc. #7985) ................................................................................... 95

West Virginia Attorney General, et al. (Doc. #7988)........................................... 98

State of Iowa (Doc. #8377)................................................................................... 98

Navajo Nation Environmental Protection Agency (Doc. #10117) ..................... 103

Washington State Senate (Doc. #10871) ............................................................ 104

New York State Attorney General (Doc. #10940).............................................. 104

Illinois State Senate, Jacksonville, IL (Doc. #11995)......................................... 105

Utah State Senate et al. (Doc. #12338)............................................................... 107

Kansas Water Authority (Doc. #12350) ............................................................. 108

Department of Justice, State of Montana (Doc. #13625).................................... 109

Wyoming Association of Conservation Districts (Doc. #14068) ....................... 109

Commonwealth Pennsylvania Department of Agriculture (Doc. #14465)......... 113

State of Wyoming (Doc. #14584)....................................................................... 113

Maine Department of Environmental Protection (Doc. #14624)........................ 116

State of Oklahoma (Doc. #14625) ...................................................................... 117

Western Governors Association (Doc. #14645)................................................. 117
Clean Water Rule Response to Comments – Topic 1: General Comments 

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Arizona State Land Department (Doc. #14973) ................................................. 122

San Carlos Apache Tribe (Doc. #15067)............................................................ 123

Arizona Department of Environmental Quality, et al. (Doc. #15096)................ 124

Wisconsin Department of Natural Resource (Doc. #15141) .............................. 126

Louisiana Department of Environmental Quality (Doc. #15164) ...................... 127

Sealaska Corporation (Doc. #15356).................................................................. 127

North Dakota Office of the Governor, et al. (Doc. #15365)............................... 128

State of Florida (Doc. #15429) ........................................................................... 129

New Mexico Environment Department (Doc. #16552)...................................... 130

Office of the Governor, State of Montana (Doc. #16694).................................. 131

Arizona State Senate (Doc. #16895)................................................................... 131

State of South Dakota (Doc. #16925)................................................................. 132

Arizona House of Representative (Doc. #17041)............................................... 132

Nebraska State Legislature (Doc. #19315)......................................................... 133

State of Alaska (Doc. #19465)............................................................................ 133

Western Governors Association (Doc. #19654)................................................. 134

Kittson County Board of Commissioners (Doc. #1022.1).................................. 135

Catawba County Board of Commissioners, North Carolina (Doc. #1763) ........ 135

Board of County Commissioners, Huerfano County (Doc. #1771).................... 136

County of Elk (Doc. #2727)................................................................................ 136

Sheridan County Commission (Doc. #3271)...................................................... 136

Sweet Grass Conservation District (Doc. #3310)............................................... 137

Wayne County Commissioners (Doc. #4226) .................................................... 137

Lincoln County Conservation District, Washington (Doc. #4236.2) ................. 138

Bonner County Board of Commissioners (Doc. #4879)..................................... 138

Consolidated Drainage District #1, Mississippi County, MO (Doc. #6254)...... 138

Texas Soil and Water Conservation District #343 (Doc. #6793) ....................... 139

White Pine County Board of County Commissioners, White Pine County, Nevada 

(Doc. #6936.1) .................................................................................................... 139

Murray County Board of Commissioners (Doc. #7528.1) ................................. 140

Kosciusko County (Doc. #7623)......................................................................... 140

Upper Colorado River Authority (Doc. #7966).................................................. 140

Southeast Texas Groundwater Conservation District (Doc. #8142)................... 141

Southeast Texas Groundwater Conservation District (Doc. #8419.1)................ 142

City of Portland, Maine (Doc. #8659) ................................................................ 142

Beaver County Commission (Doc. #9667)......................................................... 142

Pike Peak Area Council of Governments (Doc. #9732)..................................... 145

Custer County Commission (Doc. #10186)........................................................ 146

Dayton Valley Conservation District (Doc. #10198) ......................................... 146

Elk County Commissioners (Doc. #10941)........................................................ 147

Sanpete County, Manti, Utah (Doc. #11978) ..................................................... 147

Board of County Commissioners, Churchill County, Nevada (Doc. #12260) ... 147

Mesa County, Colorado Board of County Commissioners (Doc. #12713)........ 148

City of Palo Alto, California (Doc. #12714)....................................................... 148

Uintah County, Utah (Doc. #12720)................................................................... 149

Wibaux County Commissioners, Wibaux, Montana (Doc. #12732).................. 149
Clean Water Rule Response to Comments – Topic 1: General Comments 

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Whitman County Commissioners, Colfax, WA (Doc. #12860)......................... 150

Flathead County Board of Commissioners (Doc. #13072)................................. 150

Mille Lacs County Board of Commissioners (Doc. #13198) ............................. 151

Carson Water Subconservancy District, Carson City, NV (Doc. #13573)......... 152

Big Horn County Commission (Doc. #13599) ................................................... 152

Brown County (Doc. #13603)............................................................................. 153

Lipan-Kickapoo Water Conservation District, Vancourt, Texas (Doc. #13617) 153

Maricopa County Board of Supervisors (Doc. #14132.1).................................. 154

The Board of County Commissioners of Otero County New Mexico (Doc. 

#14321) ............................................................................................................... 155

Natural Resources, Clearwater, FL (Doc. #14426.1).......................................... 155

Cassia County, Idaho Board of Commissioners (Doc. #14972)......................... 156

National Association of Counties (Doc. #15081)............................................... 156

Board of County Commissioners, Richardson, Nebraska (Doc. #15082).......... 157

Central Platte Natural Resources District (Doc. #15477)................................... 157

City of Portland, Maine (Doc. #15582) .............................................................. 159

Beaverhead County Commissioners (Doc. #16892)........................................... 159

Board of Supervisors, Broadwater Conservation District, Montana (Doc. #18819)

............................................................................................................................. 159

Quay County, New Mexico (Doc. #19558)........................................................ 160

Central Flyway Council (Doc. #5578)................................................................ 163

Pike County (IL) Republican Central Committee, Pike County Republican Party, 

Illinois (Doc. #7984)........................................................................................... 163

Washington State Association of Counties (Doc. #9976) .................................. 163

Nebraska Association of Resources Districts (Doc. #11855)............................. 164

National Association of Conservation Districts (Doc. #12349) ......................... 165

California Central Valley Flood Control Association (Doc. #12858) ................ 166

County Commissioners Association of Pennsylvania (Doc. #14579)................ 167

North Carolina Department of Environment and Natural Resources (Doc. #14984)

............................................................................................................................. 168

Kansas Natural Resource Coalition (Doc. #15009)............................................ 169

Oklahoma Municipal League (Doc. #16526) ..................................................... 169

Michigan Association of Conservation Districts (Doc. #16583)........................ 170

Montana Association of Conservation Districts (Doc. #18628)......................... 171

U.S. Chamber of Commerce (Doc. #14115)....................................................... 171

Indiana Farm Bureau et al. (Doc. #14119) ......................................................... 173

Georgia Chamber of Commerce (Doc. #14430)................................................. 174

California Building Industry Association et al. (Doc. #14523).......................... 175

Resource Development Council for Alaska, Inc. (Doc. #14649) ....................... 179

National Association of Convenience Stores, et al. (Doc. #15242).................... 180

Atlantic Legal Foundation (Doc. #15253).......................................................... 180

Landmark Legal Foundation (Doc. #15364) ...................................................... 181

National Association for Surface Finishing (Doc. #15398)................................ 181

National Association of Manufacturers (Doc. #15410)...................................... 181

Texas Chemical Council (Doc. #15433)............................................................. 182

United States Steel Corporation (Doc. #15450) ................................................. 182
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CLUB 20 (Doc. #15519)..................................................................................... 183

FMC Corporation (Doc. #15533) ....................................................................... 184

Business Council of Alabama (Doc. #15538)..................................................... 185

Minnesota Chamber of Commerce (Doc. #16473)............................................. 185

Water Advocacy Coalition (Doc. #17921.1) ...................................................... 186

Virginia Manufacturers Association (Doc. #18821)........................................... 188

Georgia Association of Manufacturers (Doc. #18896)....................................... 189

Western States Land Commissioners Association (Doc. #19453) ..................... 190

Minnkota Power Cooperative, Inc. (Doc. #19607)............................................. 192

Houma-Terrebonne Chamber of Commerce (Doc. #19624).............................. 193

Volusia County Association for Responsible Development (Doc. #1440) ........ 193

Southern Nevada Home Builders Association (Doc. #3251) ............................. 194

Coalition of Real Estate Associations (Doc. #5058.2) ....................................... 195

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

#7938.1) .............................................................................................................. 197

Home Builders Association of Michigan (Doc. #7994) ..................................... 198

Webber Land & Development Corporation (Doc. #10944) ............................... 198

DreamTech Homes, Ltd. (Doc. #11012) ............................................................ 199

Scott County Development Corporation (Doc. #11542) .................................... 199

Building Industry Association of Washington (Doc. #13622) ........................... 200

El Dorado Holdings, Inc. (Doc. #14285)............................................................ 201

Associated General Contractors of America (Doc. #14602) .............................. 202

Commercial Real Estate Development Association (Doc. #14621)................... 202

Vulcan Materials Company (Doc. #14642)........................................................ 203

Maryland Chapters of NAIOP (Doc. #15837).................................................... 204

Building Industry Association of Greater Louisville (Doc. #16449) ................. 205

Texas Association of Builders (Doc. #16516).................................................... 205

Home Builders Association of Tennessee (Doc. #16849).................................. 205

Maryland State Builders Association (Doc. #17021) ......................................... 207

Home Builders Association of Mississippi (Doc. #19504) ................................ 208

National Association of Home Builders (Doc. #19540)..................................... 209

Home Builders Association of Tennessee (Doc. #19581).................................. 212

National Stone, Sand and Gravel Association (Doc. #14412)............................ 214

Lyman-Richey Corporation (Doc. #14420)........................................................ 215

Railroad Commission of Texas (Doc. #14547) .................................................. 217

Tennessee Mining Association (Doc. #14582)................................................... 217

Waterton Global Mining Company (Doc. #14784)............................................ 219

Alaska Miners Association (Doc. #15027)......................................................... 220

Corporate Communications and Sustainability, Domtar Corporation (Doc. 

#15228) ............................................................................................................... 221

Halliburton Energy Services, Inc. (Doc. #15509)............................................... 222

American Gas Association (Doc. #16173) ......................................................... 222

ConocoPhillips (Doc. #16346)............................................................................ 222

Pennsylvania Aggregates and Concrete Association (Doc. #16353).................. 223

Interstate Mining Compact Commission (Doc. #16514).................................... 224

Iron County Commission, Iron County (Doc. #17033)...................................... 225
Clean Water Rule Response to Comments – Topic 1: General Comments 

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Petroleum Association of Wyoming (Doc. #18815)........................................... 226

Snyder Associated Companies, Inc (Doc. #18825) ............................................ 228

Greybull Valley Irrigation District (Doc. #1438) ............................................... 229

Washington Cattlemen’s Association (Doc. #3723)........................................... 229

Wheatland Irrigation District (Doc. #5176)........................................................ 230

Oregon Cattlemen’s Association (Doc. #5273.1)............................................... 231

Pike and Scott County Farm Bureaus (Doc. #5519)........................................... 232

Colorado Livestock Association (Doc. #7930)................................................... 232

Coon Run Levee and Drainage District (Doc. #8366)........................................ 233

Cattle Empire (Doc. #8416)................................................................................ 233

Ventura County Coalition of Labor Agriculture and Business (Doc. #8662) .... 234

Michigan Farm Bureau, Lansing, Michigan (Doc. #10196)............................... 234

Montana Farm Bureau Federation (Doc. #12715).............................................. 236

Nebraska Cattlemen (Doc. #13018.1)................................................................. 236

Iowa Corn Growers Association (Doc. #13269)................................................. 237

PennAg Industries Association (Doc. #13594)................................................... 239

Sugar Cane Growers Cooperative of Florida (Doc. #14283) ............................. 239

Kansas Agriculture Alliance (Doc. #14424)....................................................... 240

Mississippi Farm Bureau Federation (Doc. #14464).......................................... 240

North Dakota Soybean Growers Association (Doc. #14594)............................. 241

The Mosiac Company (Doc. #14640)................................................................. 242

Chilton Ranch, LLC (Doc. #14724) ................................................................... 243

Great Plains Canola Association (Doc. #14725) ................................................ 243

Farm Credit Illinois (Doc. #14767) .................................................................... 244

Washington Farm Bureau (Doc. #14783)........................................................... 244

Monarch-Chesterfield Levee District, St. Louis, Missouri (Doc. #14904) ........ 245

Kansas Cooperative Council (Doc. #14938) ...................................................... 246

Tennessee Farm Bureau Federation (Doc. #14978) ........................................... 247

Oregon Forest Industries Council (Doc. #15028)............................................... 248

Colorado Cattlemen's Association (Doc. #15068).............................................. 248

Florida Fruit & Vegetable Association (Doc. #15069)....................................... 249

Oklahoma Cattlemen's Association (Doc. #15176)............................................ 249

Great Lakes Timber Professionals Association (Doc. #15219).......................... 250

Missouri Farm Bureau Federation (Doc. #15224).............................................. 250

Beet Sugar Development Foundation (Doc. #15368)......................................... 251

Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America (Doc. 

#15440) ............................................................................................................... 251

Iberia Parish Farm Bureau (Doc. #15585).......................................................... 252

Riverport Levee District (Doc. #15655)............................................................. 253

Wisconsin Farm Bureau Federation (Doc. #16166) ........................................... 253

Wisconsin County Forests Association (Doc. #16341)...................................... 254

Kansas Corn Growers Association (Doc. #16398)............................................. 254

Lake DeSmet Conservation District (Doc. #16441)........................................... 255

Western Landowners Alliance (Doc. #16553).................................................... 255

Ohio Farm Bureau Federation (Doc. #16609).................................................... 256

Montana Water Resources Association, (Doc. #16889)..................................... 257
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Montana Stockgrowers Association (Doc. #16937)........................................... 257

Greenfields Irrigation District (Doc. #17022) .................................................... 257

Iowa Soybean Association (Doc. #17175).......................................................... 258

Earth City Levee District (Doc. #18910)............................................................ 258

Iowa Poultry Association (Doc. #19589)............................................................ 259

New Mexico Cattle Growers Association et al. (Doc. #19595) ......................... 259

Clearwater County Highway Department, Minnesota (Doc. #1762) ................. 260

Minnesota County Engineers Association (Doc. #6996.2)................................. 261

New Salem Township (Doc. #8365)................................................................... 261

North Dakota Soybean Growers Association (Doc. #14121)............................. 261

Texas Farm Bureau (Doc. #14129)..................................................................... 262

Union Pacific Railroad Company (Doc. #15254)............................................... 262

Southern Illinois Power Cooperative (Doc. #15486).......................................... 263

National Association of Clean Water Agencies (Doc. #15505) ......................... 263

Western States Water Council (Doc. #9842)...................................................... 264

Duke Energy (Doc. #13029)............................................................................... 264

San Juan Water Commission (Doc. #13057)...................................................... 265

Florida Power & Light Company (Doc. #13615)............................................... 265

Nebraska Public Power District (Doc. #15126).................................................. 268

Association of Fish and Wildlife Agencies (Doc. #15399)................................ 268

Wisconsin Electric Power Company and Wisconsin Gas LLC (Doc. #15407).. 269

Washington County Water Conservancy District (Doc. #15536) ...................... 269

Massachusetts Water Resources Authority (Doc. #15546) ................................ 271

Irrigation & Electrical Districts' Association (Doc. #15832) ............................. 271

Association of Electronic Companies of Texas, Inc. (Doc. #16433).................. 272

Battelle Energy Alliance, LLC (Doc. #16448)................................................... 273

American Public Gas Association (Doc. #18862).............................................. 274

Hickory Underground Water District 1, Texas (Doc. #18928) .......................... 274

National Agricultural Aviation Association (Doc. #19497)............................... 275

Environmental Council of the States (Doc. #15543).......................................... 276

The Nature Conservancy (Doc. #17453) ............................................................ 277

Association of State Floodplain Managers, Inc. (Doc. #19452)......................... 278

Southeastern Legal Foundation (Doc. #16592) .................................................. 279

Protect Americans Now, Board of Directors (Doc. #12726).............................. 280

Colorado Wastewater Utility Council (Doc. #13614) ........................................ 281

Edison Electric Institute (Doc. #15032).............................................................. 282

Texas Agricultural Land Trust (Doc. #15188.1) ................................................ 283

Texas Agricultural Land Trust (Doc. #15188.2) ................................................ 283

Delaware Riverkeeper Network (Doc #15383) .................................................. 284

Sierra Club, Cumberland Chapter (Doc. #15466) .............................................. 285

Citizen's Advisory Commission on Federal Areas, State of Alaska (Doc. #16414)

............................................................................................................................. 286

Ruby Valley Conservation District, Montana (Doc. #16477) ............................ 287

Montana Land and Water Alliance, Inc. (Doc. #18890)..................................... 287

New Mexico State University, The Linebery Policy Center for Natural Resource 

Management (Doc. #7336.2) .............................................................................. 287
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University of Missouri (Doc. #7942.1)............................................................... 288

John Wood Community College (Doc. #11770) ................................................ 289

Water Environment Federation Member Association Governmental Affairs (GA) 

Committees Representing EPA Region 7 (Doc. #15185)................................... 289

Water Environment Federation (Doc. #16584) .................................................. 290

American Legislative Exchange Council (Doc. #19468) ................................... 290

John Barrasso et al., Congress of the United States (Doc. #4901) ..................... 291

Patrick E. Murphy, Member of Congress, Congress of the United States, House of 

Representatives (Doc. #15371.1)........................................................................ 291

United States Senate (Doc. #19301)................................................................... 292

Wetland Science Applications, Inc. (Doc. #4958.2)........................................... 292

The Property Which Water Occupies (Doc. #8610)........................................... 293

1.1.1. 404 Assumption......................................................................................................... 294

AGENCY SUMMARY RESPONSE.................................................................................. 294

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

Michigan Department of Environmental Quality (Doc. #5462)......................... 295

New Mexico Department of Agriculture (Doc. #13024).................................... 297

Board of Commissioners of Carbon County, Utah (Doc. #12738)..................... 297

Landmark Legal Foundation (Doc. #15364) ...................................................... 298

USA Rice Federation (Doc. #13998).................................................................. 299

Tennessee Farm Bureau Federation (Doc. #14978) ........................................... 299

Environmental Council of the States (Doc. #15543).......................................... 300

Association of State Floodplain Managers, Inc. (Doc. #19452)......................... 300

The Association of State Wetland Managers (Doc. #14131) ............................. 302

Florida Department of Agriculture and Consumer Services (Doc. #10260) ...... 302

Association of Clean Water Administrators (Doc. #13069)............................... 303

1.1.2. Water Supply and Allocation .................................................................................... 304

AGENCY SUMMARY RESPONSE.................................................................................. 304

SPECIFIC COMMENTS ................................................................................................. 305

Arizona Game and Fish Department (Doc. #15197) .......................................... 305

City of Palo Alto, California (Doc. #12714)....................................................... 306

Energy Producing States Coalition (Doc. #11552)............................................. 306

Western Urban Water Coalition (Doc. #15178) ................................................. 306

Washington State Water Resources Association (Doc. #16543)........................ 307

Alameda County Cattlewomen (Doc. #8674)..................................................... 307

Relief Ditch Company (Doc. #11977)................................................................ 308

Kentucky Farm Bureau (Doc. #14567.1)............................................................ 308

Western Governors Association (Doc. #14645)................................................. 308

Association of Metropolitan Water Agencies et al. (Doc. #15157).................... 308

Western Resource Advocates (Doc. #16460)..................................................... 309

Ducks Unlimited (Doc. #11014)......................................................................... 309

1.1.3. Property Rights......................................................................................................... 310

AGENCY SUMMARY RESPONSE.................................................................................. 310

SPECIFIC COMMENTS ................................................................................................. 310

Mike Holmes, Representative, Alabama State House D-31 (Doc. #1151)......... 310

Richard F. Colburn, The Senate of Maryland (Doc. #4870) .............................. 310
Clean Water Rule Response to Comments – Topic 1: General Comments 

11

Attorney General of Texas (Doc. #5143.2) ........................................................ 310

State of Tennessee, House of Representatives (Doc. #5597) ............................. 311

Wyoming House of Representatives (Doc. #14308) .......................................... 311

Anonymous (Doc. #1371)................................................................................... 311

Kimble County Commissioners' Court, Kimble County, Texas (Doc. #4534) .. 311

Warrick County Board of Commissioners, Boonville, IN (Doc. #5145) ........... 311

Sierra Soil and Water Conservation District (Doc. #5593) ................................ 312

Owyhee County Board of Commissioners (Doc. #12725)................................. 312

Board of Commissioners of Carbon County, Utah (Doc. #12738)..................... 312

Pocahontas County, IA (Doc. #13666)............................................................... 312

Chaves Soil & Water Conservation District, New Mexico (Doc. #13953)........ 313

Pima Natural Resource Conservation District (Doc. #14720)............................ 313

Republican River Water Conservation District (Doc. #15621).......................... 313

Pike County Economic Development Corporation (Doc. #5460) ...................... 313

Landmark Legal Foundation (Doc. #15364) ...................................................... 314

Louisiana Landowners Association (Doc. #16490)............................................ 314

Western States Land Commissioners Association (Doc. #19453) ..................... 314

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

#7938.1) .............................................................................................................. 314

Home Builders Association of Michigan (Doc. #7994) ..................................... 315

DreamTech Homes, Ltd. (Doc. #11012) ............................................................ 315

Building Industry Association of Washington (Doc. #13622) ........................... 315

Washington Cattlemen’s Association (Doc. #3723)........................................... 315

Alameda County Cattlewomen (Doc. #8674)..................................................... 316

Michigan Farm Bureau, Lansing, Michigan (Doc. #10196)............................... 316

Missouri Soybean Association (Doc. #14986) ................................................... 317

Oklahoma Cattlemen's Association (Doc. #15176)............................................ 317

Jensen Livestock and Land LLC (Doc. #15540) ................................................ 317

Top O' The Mount Farm (Doc. #15833)............................................................. 317

Mohave Livestock Association & Mohave County Farm Bureau (Doc. #15859)

............................................................................................................................. 318

Florida Crystals Corporation (Doc. #16652) ...................................................... 318

The 9-12 Association, Inc. (Doc. #5556)............................................................ 318

Nebraska Water Resources Association (Doc. #13565)..................................... 318

Citizen's Advisory Commission on Federal Areas, State of Alaska (Doc. #16414)

............................................................................................................................. 319

U. S. House of Representatives (Doc. #3097) .................................................... 319

United States Senate (Doc. #3536)..................................................................... 320

Congress of the United States, Senate Committee on Environment and Public 

Works et al. (Doc. #16564)................................................................................. 320

United States Senator (Doc. #18022).................................................................. 320

The Property Which Water Occupies (Doc. #8610)........................................... 320

1.2. SUPPLEMENTAL GENERAL COMMENTS .......................................................................... 323

AGENCY SUMMARY RESPONSE.................................................................................. 323

SPECIFIC COMMENTS ................................................................................................. 324

Eric W. Nagle (Doc. #0009.1) ........................................................................... 324
Clean Water Rule Response to Comments – Topic 1: General Comments 

12

John Ford Ranch (Doc. #9512).......................................................................... 325

Spring-Green Lawn Care Corp. (Doc. #10544)................................................. 326

J. Courtwright (Doc. #11652)............................................................................ 327

Weld County (Doc. #12343).............................................................................. 327

M. Seelinger (Doc. #12879)............................................................................... 327

Todd Wilkinson (Doc. #13443)......................................................................... 328

Tamara Choat (Doc. #13701) ............................................................................ 328

M. Smith (Doc. #14022).................................................................................... 329

Plumas County Board of Supervisors (Doc. #14071)........................................ 329

Patti Buck (Doc. #14825) .................................................................................. 330

Erika Brotzman (Doc. #15010).......................................................................... 330

The Heritage Foundation (Doc. #15055)........................................................... 332

SD1 (Doc. #15139)............................................................................................. 334

William Schock (Doc. #15394) ......................................................................... 335

Vulcan Materials Company (Doc. #16566)....................................................... 336

San Luis & Delta-Mendota Water Authority (Doc. #15645) ............................. 336

B. Price (Doc. #16381) ...................................................................................... 336

L. L. Hughes (Doc. #16687).............................................................................. 336

Cook County, Minnesota, Board of Commissioners (Doc. #17004)................. 336

K. G. Oertel (Doc. #17317) ................................................................................ 338

W. Stevens (Doc. #17663).................................................................................. 339

John Whittingham (Doc. #18426)...................................................................... 339

R.D. Primrose (Doc. #18799) ............................................................................ 340

J. Dillard (Doc. #18907) .................................................................................... 341

Anonymous (Doc. #18947)................................................................................ 342

Kevin and Nicole Keegan (Doc. #19128).......................................................... 343

K. Miles (Doc. #19129) ..................................................................................... 343

Alcona Conservation District (Doc. #19345) .................................................... 344

City of Morgan City, Louisiana (Doc. #19346)................................................. 344

United States House of Representatives (Doc. #19348).................................... 345

Western States Water Council (Doc. #19349)................................................... 346

Jil Tracy, State Representative 94th District (Doc. #19518) .............................. 346

M. Sedlock (Doc. #19524)................................................................................. 347

Chairman, Broadwater County Commissioner, Broadwater County 

Commissioners, Broadwater County, Montana (Doc. #20489)......................... 352

Flood Control Water Agency, Santa Barbara County Public Works Department, 

Santa Barbara County, California (Doc. #20491).............................................. 352

Empire District Electric Company (Doc. #20501) ............................................ 353

Michigan House of Representatives (Doc. #20504).......................................... 353

ATTACHMENTS AND REFERENCES............................................................................................. 353
Clean Water Rule Response to Comments – Topic 1: General Comments 

13

Topic 1. GENERAL COMMENTS

Agency Summary Response

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), based upon 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 identifying 

waters1protected under the CWA easier to understand, more predictable, and consistent with the 

law and peer-reviewed science, while protecting the streams and wetlands that form the 

foundation of our nation’s water resources. 

Congress enacted the CWA “to restore and maintain the chemical, physical, and 

biological integrity of the Nation’s waters,” 33 U.S.C. 1251(a), and to complement statutes that 

protect the navigability of waters, such as the Rivers and Harbors Act. 33 U.S.C. The CWA is 

the nation’s single most important statute for protecting America’s clean water against pollution, 

degradation, and destruction. To provide that protection, the Supreme Court has consistently 

agreed that the geographic scope of the CWA reaches beyond waters that are navigable in fact. 

Peer-reviewed science and practical experience demonstrate that upstream waters, including 

headwaters and wetlands, significantly affect the chemical, physical, and biological integrity of 

downstream waters by playing a crucial role in controlling sediment, filtering pollutants, 

reducing flooding, providing habitat for fish and other aquatic wildlife, and many other vital 

chemical, physical, and biological processes. 

This final rule interprets the CWA to cover those waters that require protection in order 

to restore and maintain the chemical, physical, or biological integrity of traditional navigable 

waters, interstate waters, and the territorial seas. This interpretation is based not only on legal 

precedent and the best available peer-reviewed science, but also on the agencies’ technical 

expertise and extensive experience in implementing the CWA over the past four decades. The 

rule will clarify and simplify implementation of the CWA consistent with its purposes through 

clearer definitions and increased use of bright-line boundaries to establish waters that are 

jurisdictional by rule and limit the need for case-specific analysis. The agencies emphasize that, 

while the CWA establishes permitting requirements for covered waters to ensure protection of 

water quality, these requirements only apply with respect to discharges of pollutants to the 

covered water. In the absence of a discharge of a pollutant, the CWA does not impose 

permitting restrictions on the use of such water. 

Additionally, Congress has exempted (certain discharges, and the rule does not affect any 

of the exemptions from CWA section 404 permitting requirements provided by CWA section 

404(f), including those for normal farming, ranching, and silviculture activities. CWA section 

404(f); 40 CFR 232.3; 33 CFR 323.4. This rule not only maintains current statutory exemptions, 

it expands regulatory exclusions from the definition of “waters of the United States” to make it 

clear that this rule does not add any additional permitting requirements on agriculture. The rule 

 

1

 The agencies use the term “water” and “waters” in categorical reference to rivers, streams, ditches, wetlands, 

ponds, lakes, oxbows, and other types of natural or man-made aquatic systems, identifiable by the water contained in 

these aquatic systems or by their chemical, physical, and biological indicators. The agencies use the terms “waters” 

and “water bodies” interchangeably in the preamble. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

14

also does not regulate shallow subsurface connections nor any type of groundwater, erosional 

features, or land use, nor does it affect either the existing statutory or regulatory exemptions from 

NPDES permitting requirements, such as for agricultural stormwater discharges and return flows 

from irrigated agriculture, or the status of water transfers. CWA section 402(l)(1); CWA section 

402(l)(2); CWA section 502(14); 40 CFR 122.3(f); 40 CFR 122.2.

Finally, even where waters are covered by the CWA, the agencies have adopted many 

streamlined regulatory requirements to simplify and expedite compliance through the use of 

measures such as general permits and standardized mitigation measures. The agencies will 

continue to develop general permits and simplified procedures, particularly as they affect 

crossings of covered ephemeral and intermittent tributaries jurisdictional under this rule to ensure 

that projects that offer significant social benefits, such as renewable energy development, can 

proceed with the necessary environmental safeguards while minimizing permitting delays. 

The jurisdictional scope of the CWA is “navigable waters,” defined in section 502(7) of 

the statute as “waters of the United States, including the territorial seas.” The term “navigable 

waters” is used in a number of provisions of the CWA, including the section 402 National

Pollutant Discharge Elimination System (NPDES) permit program, the section 404 permit 

program, the section 311 oil spill prevention and response program,2the water quality standards 

and total maximum daily load programs under section 303, and the section 401 state water 

quality certification process. However, while there is only one CWA definition of “waters of the 

United States,” there may be other statutory factors that define the reach of a particular CWA 

program or provision.3

 

Existing regulations (last codified in 1986) define “waters of the United 

States” as traditional navigable waters, interstate waters, all other waters that could affect 

interstate or foreign commerce, impoundments of waters of the United States, tributaries, the 

territorial seas, and adjacent wetlands. 33 CFR 328.3; 40 CFR 122.2.4 

However, the Supreme Court has issued three decisions that provide critical context and 

guidance in determining the appropriate scope of “waters of the United States” covered by the 

 

2 While section 311 uses the phrase “navigable waters of the United States,” EPA has interpreted it to have the same 

breadth as the phrase “navigable waters” used elsewhere in section 311, and in other sections of the CWA. See 

United States v. Texas Pipe Line Co., 611 F.2d 345, 347 (10th Cir. 1979); United States v. Ashland Oil & Transp. 

Co., 504 F.2d 1317, 1324-25 (6th Cir. 1974). In 2002, EPA revised its regulatory definition of “waters of the United 

States” in 40 CFR part 112 to ensure that the language of the rule was consistent with the regulatory language of 

other CWA programs. Oil Pollution & Response; Non –Transportation-Related Onshore & Offshore Facilities, 67 

FR 47042, July 17, 2002. A district court vacated the rule for failure to comply with the Administrative Procedure 

Act, and reinstated the prior regulatory language. American Petroleum Ins. v. Johnson, 541 F.Supp. 2d 165 (D. D.C. 

2008). However, EPA interprets “navigable waters of the United States” in CWA section 311(b), in the pre-2002 

regulations, and in the 2002 rule to have the same meaning as “navigable waters” in CWA section 502(7).

3

For example, the CWA section 402 (33 U.S.C. § 1342) program regulates discharges of pollutants from “point 

sources” to “waters of the United States,” whether these pollutants reach jurisdictional waters directly or indirectly. 

The plurality opinion in Rapanos noted that “there is no reason to suppose that our construction today significantly 

affects the enforcement of §1342. . . . The Act does not forbid the ‘addition of any pollutant directly to navigable 

waters from any point source,’ but rather the ‘addition of any pollutant to navigable waters.’” 547 U.S. at 743.

4 There are numerous regulations that utilize the definition of “waters of the United States” and each is codified 

consistent with its place in a particular section of the Code of Federal Regulations. For simplicity, throughout the 

preamble the agencies refer to the rule as organized into (a), (b), (c) provisions and intend the reference to 

encompass the appropriate cites in each section of the Code of Federal Regulations. For example, a reference to 

(a)(1) is a reference to all instances in the CFR identified as subject to this rule that state “All waters which are 

currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all 

waters which are subject to the ebb and flow of the tide.” 
Clean Water Rule Response to Comments – Topic 1: General Comments 

15

CWA. In United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) (Riverside), the 

Court, in a unanimous opinion, deferred to the Corps’ ecological judgment that adjacent 

wetlands are “inseparably bound up” with the waters to which they are adjacent, and upheld the 

inclusion of adjacent wetlands in the regulatory definition of “waters of the United States.” Id. at 

134. The Court observed that the broad objective of the CWA to restore and maintain the 

integrity of the Nation’s waters “incorporated a broad, systemic view of the goal of maintaining 

and improving water quality .... Protection of aquatic ecosystems, Congress recognized, 

demanded broad federal authority to control pollution, for ‘[w]ater moves in hydrologic cycles 

and it is essential that discharge of pollutants be controlled at the source.’ In keeping with these 

views, Congress chose to define the waters covered by the Act broadly.” Id. at 132-33 (citing

Senate Report 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 decisions upholding the CWA’s coverage of wetlands or other waters “adjacent” to 

traditional navigable waters, it created uncertainty with regard to the jurisdiction of other waters 

and wetlands that, in many instances, may play an important role in protecting the integrity of the 

nation’s waters. The majority opinion in SWANCC introduced the concept that it was a 

“significant nexus” that informed the Court’s reading of CWA jurisdiction over waters that are 

not navigable in fact. 

Five years later, in Rapanos v. United States, 547 U.S. 715 (2006) (Rapanos), all 

Members of the Court agreed that the term “waters of the United States” encompasses some 

waters that are not navigable in the traditional sense. In addition, Justice Kennedy’s opinion 

indicated that the critical factor in determining the CWA’s coverage is whether a water has a 

“significant nexus” to downstream traditional navigable waters such that the water is important 

to protecting the chemical, physical, or biological integrity of the navigable water, referring back 

to the Court’s decision in SWANCC. Justice Kennedy’s concurrence in Rapanos stated that to 

constitute a “water of the United States” covered by the CWA, “a water or wetland must possess 

a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so 

made.” Id. at 759 (Kennedy, J., concurring in the judgment) (citing SWANCC, 531 U.S. at 167, 

172). Justice Kennedy concluded that wetlands possess the requisite significant nexus if the 

wetlands “either alone or in combination with similarly situated [wet]lands in the region, 

significantly affect the chemical, physical, and biological integrity of other covered waters more 

readily understood as ‘navigable.’” 547 U.S. at 780.

The agencies’ determination of what constitutes a “significant nexus” is grounded in 

Justice Kennedy’s opinion and applicable science. The agencies assess the significance of the 

nexus in terms of the CWA’s objective to “restore and maintain the chemical, physical, and 

biological integrity of the Nation’s waters.” When the effects are speculative or insubstantial, 

the “significant nexus” would not be present. The science demonstrates that the protection of 

upstream waters is critical to maintaining the integrity of the downstream waters. The upstream 

waters identified in the rule as jurisdictional function as integral parts of the aquatic 

environment, and if these waters are polluted or destroyed, there is a significant effect 

downstream. 

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 
Clean Water Rule Response to Comments – Topic 1: General Comments 

16

to these opinions, the agencies issued guidance in 2003 (post-SWANCC) and 2008 (postRapanos). However, these two guidance documents did not provide the public or agency staff 

with the kind of information needed to ensure timely, consistent, and predictable jurisdictional 

determinations. Many waters are currently subject to 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, almost all waters and wetlands across the country theoretically 

could be subject to a case-specific jurisdictional determination. 

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

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

protected under the CWA clearer, simpler, and faster. Chief Justice Roberts’ concurrence in 

Rapanos underscores the importance of this rulemaking effort.5In this final rule, the agencies are 

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

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

law and peer-reviewed science. 

The agencies proposed a rule clarifying the scope of waters of the United States in April, 

2014, and solicited comments for over 200 days. This final rule reflects the over 1 million public 

comments on the proposal, the substantial majority of which supported the proposed rule, as well 

as input provided through the agencies’ extensive public outreach effort, which included over 

400 meetings nationwide with states, small businesses, farmers, academics, miners, energy 

companies, counties, municipalities, environmental organizations, other federal agencies, and 

many others. The agencies sought comment on a number of approaches to specific jurisdictional 

questions, and many of these commenters and stakeholders urged EPA to improve upon the 

April 2014 proposal, by providing more bright line boundaries simplifying definitions that 

identify waters that are protected under the CWA, all for the purpose of minimizing delays and 

costs, making protection of clean water more effective, and improving predictability and 

consistency for landowners and regulated entities. 

The agencies’ interpretation of the CWA’s scope in this final rule is guided by the best 

available peer-reviewed science – particularly as that science informs the determinations as to 

which waters have a “significant nexus” with traditional navigable waters, interstate waters, or 

the territorial seas. 

The relevant science on the relationship and downstream effects of waters has advanced 

considerably in recent years. A comprehensive report prepared by the EPA’s Office of Research 

and Development entitled “Connectivity of Streams and Wetlands to Downstream Waters: A 

Review and Synthesis of the Scientific Evidence”6(hereafter the Science Report) synthesizes the 

peer-reviewed science. 

 

5

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.

6 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)). http://www.epa.gov/ncea
Clean Water Rule Response to Comments – Topic 1: General Comments 

17

The Science Report provides much of the technical basis for this rule. The Science 

Report is based on a review of more than 1,200 peer-reviewed publications. EPA’s Science 

Advisory Board (SAB) conducted a comprehensive technical review of the Science Report and 

reviewed the adequacy of the scientific and technical basis of the proposed rule. The Science 

Report and the SAB review confirmed that:

 Waters are connected in myriad ways, including physical connections and the hydrologic 

cycle; however, connections occur on a continuum or gradient from highly connected to 

highly isolated.

 These variations in the degree of connectivity are a critical consideration to the ecological 

integrity and sustainability of downstream waters.

 The critical contribution of upstream waters to the chemical, physical, and biological 

integrity of downstream waters results from the accumulative contribution of similar 

waters in the same watershed and in the context of their functions considered over time.

The Science Report and the SAB review also confirmed that:

 Tributary streams, including perennial, intermittent, and ephemeral streams, are 

chemically, physically, and biologically connected to downstream waters, and influence 

the integrity of downstream waters. 

 Wetlands and open waters in floodplains and riparian areas are chemically, physically, 

and biologically connected with downstream waters and influence the ecological integrity 

of such waters. 

 Non-floodplain wetlands and open waters provide many functions that benefit 

downstream water quality and ecological integrity, but their effects on downstream 

waters are difficult to assess based solely on the available science.

Although these conclusions play a critical role in informing the agencies’ interpretation 

of the CWA’s scope, the agencies’ interpretive task in this rule – determining which waters have 

a “significant nexus” – requires scientific and policy judgment, as well as legal interpretation. 

The science demonstrates that waters fall along a gradient of chemical, physical, and biological 

connection to traditional navigable waters, and it is the agencies’ task to determine where along 

that gradient to draw lines of jurisdiction under the CWA. In making this determination, the 

agencies must rely, not only on the science, but also on their technical expertise and practical 

experience in implementing the CWA during a period of over 40 years. In addition, the agencies 

are guided, in part, by the compelling need for clearer, more consistent, and easily 

implementable standards to govern administration of the Act, including brighter line boundaries 

where feasible and appropriate.

Major Rule Provisions

In this final rule, the agencies define “waters of the United States” to include eight 

categories of jurisdictional waters. The rule maintains existing exclusions for certain categories 

of waters, and adds additional categorical exclusions that are regularly applied in practice. The 

rule reflects the agencies’ goal of providing simpler, clearer, and more consistent approaches for 

identifying the geographic scope of the CWA. The rule recognizes jurisdiction for three basic 

categories: waters that are jurisdictional in all instances, waters that are excluded from 
Clean Water Rule Response to Comments – Topic 1: General Comments 

18

jurisdiction, and a narrow category of waters subject to case-specific analysis to determine 

whether they are jurisdictional. 

Decisions about waters in each of these categories are based on the law, peer-reviewed 

science, and the agencies’ technical expertise, and were informed by public comments. This rule 

replaces existing procedures that often depend on individual, time-consuming, and inconsistent 

analyses of the relationship between a particular stream, wetland, lake, or other water with 

downstream waters. The agencies have greatly reduced the extent of waters subject to this 

individual review by carefully incorporating the scientific literature and by utilizing agency 

expertise and experience to characterize the nature and strength of the chemical, physical, and 

biological connections between upstream and downstream waters. The result of applying this 

scientific analysis is that the agencies can more effectively focus the rule on identifying waters 

that are clearly covered by the CWA and those that are clearly not covered, making the rule 

easier to understand, consistent, and environmentally more protective.

The jurisdictional categories reflect the current state of the best available science, and are 

based upon the law and Supreme Court decisions. The agencies will continue a transparent 

review of the science, and learn from on-going experience and expertise as the agencies 

implement the rule. If evolving science and the agencies’ experience lead to a need for action to 

alter the jurisdictional categories, any such action will be conducted as part of a rule-making 

process.

The first three types of jurisdictional waters, traditional navigable waters, interstate 

waters, and the territorial seas, are jurisdictional by rule in all cases. The fourth type of water, 

impoundments of jurisdictional waters, is also jurisdictional by rule in all cases. The next two 

types of waters, “tributaries” and “adjacent” waters, are jurisdictional by rule, as defined, 

because the science confirms that they have a significant nexus to traditional navigable waters, 

interstate waters, or territorial seas. For waters that are jurisdictional by rule, no additional 

analysis is required. 

The final two types of jurisdictional waters are those waters found after a case-specific 

analysis to have a significant nexus to traditional navigable waters, interstate waters, or the 

territorial seas, either alone or in combination with similarly situated waters in the region. 

Justice Kennedy acknowledged the agencies could establish more specific regulations or 

establish a significant nexus on a case-by-case basis, Rapanos at 782, and for these waters the 

agencies will continue to assess significant nexus on a case-specific basis.

The major elements of the final rule are briefly summarized here.

Traditional Navigable Waters, Interstate Waters, Territorial Seas, and Impoundments of 

Jurisdictional Waters

Consistent with existing regulations and the April 2014 proposed rule, the final rule 

includes traditional navigable waters, interstate waters, territorial seas, and impoundments of 

jurisdictional waters in the definition of “waters of the United States.” These waters are 

jurisdictional by rule.

Tributaries

Previous definitions of “waters of the United States” regulated all tributaries without 

qualification. This final rule more precisely defines “tributaries” as waters that are characterized 
Clean Water Rule Response to Comments – Topic 1: General Comments 

19

by the presence of physical indicators of flow – bed and banks and ordinary high water mark –

and that contribute flow directly or indirectly to a traditional navigable water, an interstate water, 

or the territorial seas. The rule concludes that such tributaries are “waters of the United States.” 

The great majority of tributaries as defined by the rule are headwater streams that play an 

important role in the transport of water, sediments, organic matter, nutrients, and organisms to 

downstream waters. The physical indicators of bed and banks and ordinary high water mark 

demonstrate that there is sufficient volume, frequency and flow in such tributaries to a traditional 

navigable water, interstate water, or the territorial seas to establish a significant nexus. 

“Tributaries,” as defined, are jurisdictional by rule.

The rule 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. The agencies 

identify functions in the definition of “significant nexus” at paragraph (c)(5) characteristic of a 

water functioning as a tributary. Features not meeting this legal and scientific test are not 

jurisdictional under this rule. The rule continues the current policy of regulating ditches that are 

constructed in tributaries or are relocated tributaries or, in certain circumstances drain wetlands, 

or that science clearly demonstrates are functioning as a tributary. These jurisdictional by rule 

waters affect the chemical, physical, and biological integrity of downstream waters. The rule 

further reduces existing confusion and inconsistency regarding the regulation of ditches by 

explicitly excluding certain categories of ditches, such as ditches that flow only after 

precipitation. Further, the rule explicitly excludes erosional features, including gullies, rills, and 

ephemeral features such as ephemeral streams that do not have a bed and banks and ordinary 

high water mark.

Adjacent Waters

The agencies determined that “adjacent” waters, as defined in the rule, have a significant 

nexus to traditional navigable waters, interstate waters, and the territorial seas based upon their 

hydrological and ecological connections to, and interactions with, those waters. Under this final 

rule, “adjacent” means bordering, contiguous, or neighboring, including waters separated from 

other “waters of the United States” by constructed dikes or barriers, natural river berms, beach 

dunes and the like. Further, waters that connect segments of, or are at the head of, a stream or 

river are “adjacent” to that stream or river. “Adjacent” waters include wetlands, ponds, lakes, 

oxbows, impoundments, and similar water features. However, it is important to note that 

“adjacent” waters do not include waters that are subject to established normal farming, 

silviculture, and ranching activities under Section 404(f).

The final rule establishes a definition of “neighboring” for purposes of determining 

adjacency. In the rule, the agencies identify three circumstances under which waters would be 

“neighboring” and therefore “waters of the United States”:

(1) Waters located in whole or in part within 100 feet of the ordinary high water mark of a 

traditional navigable water, interstate water, the territorial seas, an impoundment of a 

jurisdictional water, or a tributary, as defined in the rule.

(2) Waters located in whole or in part in the 100-year floodplain that are within 1,500 feet of 

the ordinary high water mark of a traditional navigable water, interstate water, the 

territorial seas, an impoundment, or a tributary, as defined in the rule (“floodplain 

waters”).
Clean Water Rule Response to Comments – Topic 1: General Comments 

20

(3) Waters located in whole or in part within 1,500 feet of the high tide line of a traditional 

navigable water or the territorial seas and waters located within 1,500 feet of the ordinary 

high water mark of the Great Lakes. 

The agencies emphasize that the rule has defined as adjacent waters those waters that 

currently available science demonstrates possess the requisite connection to downstream waters 

and function as a system to protect the chemical, physical or biological integrity of those waters.

The agencies also emphasize that the rule does not cover “adjacent waters” that are otherwise 

excluded. Further, the agencies recognize the establishment of “bright line” boundaries in the 

rule for adjacency does not in any way restrict states from considering state specific information 

and concerns, as well as emerging science to evaluate the need to more broadly protect their 

waters under state law. The CWA establishes both national and state roles to ensure that states 

specific-circumstances are properly considered to complement and reinforce actions taken at the 

national level.

“Adjacent” waters as defined are jurisdictional by rule. The agencies recognize that there are 

individual waters outside of the “neighboring” boundaries stated above where the science may 

demonstrate through a case-specific analysis that there exists a significant nexus to a downstream 

traditional navigable water, interstate water, or the territorial seas. However, these waters are not 

determined jurisdictional by rule and will be evaluated through a case-specific analysis. The 

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

basis as described below. 

Case-Specific Significant Nexus

The rule identifies particular waters that are not jurisdictional by rule but are subject to 

case-specific analysis to determine if a significant nexus exists and the water is a “water of the 

United States.” This category of case-specific waters is based upon available science and the 

law, and in response to public comments that encouraged the agencies to ensure more consistent 

determinations and reduce the complexity of conducting jurisdictional determinations. Consistent 

with the significant nexus standard articulated in the Supreme Court opinions, waters are “waters 

of the United States” if they significantly affect the chemical, physical, or biological integrity of 

traditional navigable waters, interstate waters, or the territorial seas. This determination will 

most typically be made on a water individually, but can, when warranted, be made in 

combination with other waters where waters function together. 

In this final rule, the agencies have identified by rule, five specific types of waters in 

specific regions that science demonstrates should be subject to a significant nexus analysis and 

are considered similarly situated by rule because they function alike and are sufficiently close to 

function together in affecting downstream waters. These five types of waters are Prairie potholes, 

Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal 

prairie wetlands. Consistent with Justice Kennedy’s opinion in Rapanos, the agencies 

determined that such waters should be analyzed “in combination” (as a group, rather than 

individually) in the watershed that drains to the nearest traditional navigable water, interstate 

water, or the territorial seas when making a case-specific analysis of whether these waters have a 

significant nexus to traditional navigable waters, interstate waters, or territorial seas. 

The final rule also provides that waters within the 100-year floodplain of a traditional 

navigable water, interstate water, or the territorial seas and waters within 4,000 feet of the high 
Clean Water Rule Response to Comments – Topic 1: General Comments 

21

tide line or the ordinary high water mark of a traditional navigable water, interstate water, the 

territorial seas, impoundments, or covered tributary are subject to case-specific significant nexus 

determinations, unless the water is excluded under paragraph (b) of the rule. The science 

available today does not establish that waters beyond those defined as “adjacent” should be 

jurisdictional as a category under the CWA, but the agencies’ experience and expertise indicate 

that there are many waters within the 100-year floodplain of a traditional navigable water, 

interstate water, or the territorial seas or out to 4,000 feet where the science demonstrates that 

they have a significant effect on downstream waters. 

In circumstances where waters within the 100-year floodplain of a traditional navigable 

water, interstate water, or the territorial seas or within 4,000 feet of the high tide line or ordinary 

high water mark are subject to a case-specific significant nexus analysis and such waters may be 

evaluated as “similarly situated,” it must be first demonstrated that these waters function alike 

and are sufficiently close to function together in affecting downstream waters. The significant 

nexus analysis must then be conducted based on consideration of the functions provided by those 

waters in combination in the point of entry watershed. A “similarly situated” analysis is 

conducted where it is determined that there is a likelihood that there are waters that function 

together to affect downstream water integrity. To provide greater clarity and transparency in 

determining what functions will be considered in determining what constitutes a significant 

nexus, the final rule lists specific functions that the agencies will consider. 

In establishing both the 100-year floodplain and the 4,000 foot “bright line” boundaries 

for these case-specific significant nexus determinations in the rule, the agencies are carefully 

applying the available science. Consistent with the CWA, the agencies will work with the states 

in connection with the prevention, reduction and elimination of pollution from state waters. The 

agencies will work with states to more closely evaluate state-specific circumstances that may be 

present within their borders and, as appropriate, encourage states to develop rules that reflect 

their circumstances and emerging science to ensure consistent and effective protection for waters 

in the states. As is the case today, nothing in this rule restricts the ability of states to more 

broadly protect state waters. 

Exclusions 

All existing exclusions from the definition of “waters of the United States” are retained, 

and several exclusions reflecting longstanding agency practice are added to the regulation for the 

first time. 

Prior converted cropland and waste treatment systems have been excluded from the 

definition of “waters of the United States” definition since 1992 and 1979 respectively, and 

continue to be excluded. Ministerial changes are made for purposes of clarity, but these two 

exclusions remain substantively and operationally unchanged. The agencies add exclusions for 

waters and features previously identified as generally exempt (e.g., exclusion for certain ditches 

that are not located in or drain wetlands) in preamble language from Federal Register 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 ditches that are not a 

relocated tributary or excavated in a tributary, and intermittent ditches that are not a relocated 

tributary or excavated in a tributary or drain wetlands. The agencies add exclusions for 

groundwater and erosional features, as well as exclusions for some waters that were identified in 
Clean Water Rule Response to Comments – Topic 1: General Comments 

22

public comments as possibly being found jurisdictional under proposed rule language where this 

was never the agencies’ intent, such as stormwater control features constructed in dry land to 

convey, treat, or store stormwater, and cooling ponds that are created in dry land. These 

exclusions reflect the agencies’ current practice, and their inclusion in the rule as specifically 

excluded furthers the agencies’ goal of providing greater clarity over what waters are and are not 

protected under the CWA.

Role of States and Tribes Under the Clean Water Act

States and tribes play a vital role in the implementation and enforcement of the CWA.

Section 101(b) of the CWA states that it is Congressional policy to preserve the primary 

responsibilities and rights of states to prevent, reduce, and eliminate pollution, to plan the 

development and use of land and water resources, and to consult with the Administrator with 

respect to the exercise of the Administrator’s authority under the CWA. 

Of particular importance, states and tribes may be authorized by the EPA to administer the 

permitting programs of CWA sections 402 and 404. Forty-six states and the U.S. Virgin Islands 

are authorized to administer the NPDES program under section 402, while two states administer 

the section 404 program. The CWA identifies the waters over which states may assume 

permitting jurisdiction. See CWA section 404(g)(1). The scope of waters that are subject to state 

and tribal permitting is a separate inquiry and must be based on the statutory language in CWA 

section 404. States administer approved CWA section 404 programs for “waters of the United 

States” within the state, except those waters remaining under Corps jurisdiction pursuant to 

CWA section 404(g)(1) as identified in a Memorandum of Agreement between the state and the 

Corps. 40 CFR 233.14; 40 CFR 233.70(c)(2); 40 CFR 233.71(d)(2). EPA has initiated a separate 

process to address how the EPA can best clarify assumable waters for dredge and fill permit 

programs pursuant to the Clean Water Act section 404(g)(1). 80 FR 13439 (Mar. 16, 2015). 

Additional CWA programs that utilize the definition of “waters of the United States” and are of 

importance to the states and tribes include the section 311 oil spill prevention and response 

program, the water quality standards and total maximum daily load (TMDL) programs under 

section 303, and the section 401 state water quality certification process. 

States and federally-recognized tribes, consistent with the CWA, retain full authority to 

implement their own programs to more broadly and more fully protect the waters in 

their jurisdiction. Under section 510 of the CWA, unless expressly stated, nothing in the CWA 

precludes or denies the right of any state to establish more protective standards or limits than the 

Federal CWA. Congress has also provided roles for eligible Indian tribes to administer CWA 

programs over their reservations and expressed a preference for tribal regulation of surface water 

quality on Indian reservations to assure compliance with the goals of the CWA. See CWA 

section 518; 56 FR 64876, 64878-79 (Dec. 12, 1991)). Tribes also have inherent sovereign 

authority to establish more protective standards or limits than the Federal CWA. Where 

appropriate, references to states in this document may also include eligible tribes. Many states 

and tribes, for example, regulate groundwater, and some others protect wetlands that are vital to 

their environment and economy but outside the jurisdiction of the CWA. Nothing in this rule 

limits or impedes any existing or future state or tribal efforts to further protect their waters. In 

fact, providing greater clarity regarding what waters are subject to CWA jurisdiction will reduce 

the need for permitting authorities, including the states and tribes with authorized section 402 
Clean Water Rule Response to Comments – Topic 1: General Comments 

23

and 404 CWA permitting programs, to make jurisdictional determinations on a case-specific 

basis.

Specific Comments

Committee on Space, Science and Technology (Doc. #16386)

1.1 Provide documentation of all tribes that have spoken out in support of this rule. (p. 13)

Agency Response: 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 consultation process and public comment 

period. 

EPA specifically consulted with tribal officials to gain an understanding of, and to 

address, the tribal implications of the proposed rule. In 2011, close to 200 tribal 

representatives and more than 40 tribes participated in the consultation process, 

which included multiple webinars and national teleconferences and face-to-face 

meetings. In addition, EPA received written comments from three tribes during the 

initial consultation period. 

EPA continued to provide status updates to the National Tribal Water Council and 

the National Tribal Caucus during 2012 through 2014. The final consultation event 

was completed on October 23, 2014 as a national teleconference with the Office of 

Water’s Deputy Assistant Administrator. Ultimately, EPA received an additional 23 

letters from tribes/tribal affiliations by the completion of the consultation period. 

The comments indicate that Tribes, overall, support increased clarity of waters 

protected by the Clean Water Act, but some express concern with the consultation 

process and the burden of any expanded jurisdiction. The feedback received 

through consultation and written comments have been incorporated in today’s rule. 

The agencies have prepared a report summarizing their consultation with tribal 

nations, and how these results have informed the development of this rule. This 

report, Final Summary of Tribal Consultation for the Clean Water Rule: Definition 

of “Waters of the United States” Under the Clean Water Act; Final Rule (Docket Id. 

No. EPA-HQ-OW-2011-0880), is available in the docket for this rule. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

24

1.2 EPA claims this new Waters of the US rule only brings an additional three percent of 

waters under its authority and that existing exemptions will remain in place. Can you 

commit to me that EPA will not eventually attempt to use the rulemaking process to once 

again expand your authority, up to and including eliminating current exemptions for 

common agriculture practices? (p. 17)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I and II. 

1.3 In an op-ed in the Huffington Post, Administrator McCarthy states that "some may think 

that this rule will broaden the reach of EPA regulations - but that's simply not the case." 

At the same time, EPA has also tried to dissuade fears about any overreach by claiming 

this expands the scope of covered waters by "only" 3.2 percent. Does the rule expand 

what the EPA will regulate or not? (p. 17)

Agency Response: The scope of regulatory jurisdiction in this rule is narrower 

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations, in part 

because the rule puts important qualifiers on some existing categories such as 

tributaries. In addition, the rule provides greater clarity regarding which waters are 

subject to CWA jurisdiction, reducing the instances in which permitting authorities, 

including the states and tribes with authorized section 402 and 404 CWA permitting 

programs, would need to make jurisdictional determinations on a case-specific 

basis.

1.4 It seems like EPA wants to have it both ways. On one hand you are saying that no new 

waters are being regulated. On the other hand you are saying these changes are going to 

have huge benefits to the environment. 

a. Which is it? 

b. What in the current guidance do you feel is not sufficiently protective of water 

compared with the proposed rule? 

c. If you are not really changing anything why are we all here today? Why go to all the 

expense of this rulemaking? (p. 19) 

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I and II.

Kansas House of Representatives Committee on Energy & Environment (Doc. #4903)

1.5 Perhaps your Agency has forgotten its place as an Agency under the Executive branch of

government, which is to carry out - that is, Execute - Congressional actions that should 

yield net benefit for the American people. (p. 1)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I and II.
Clean Water Rule Response to Comments – Topic 1: General Comments 

25

Kansas Senate Committee on Natural Resources (Doc. #4904)

1.6 Beyond the shrill tone and defensive nature of the Q&A document, I observe it does not 

contain references, citations, or associated documentation supportive of the expansive 

claims it purports. (p. 1)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I and II.

Attorney General of Texas (Doc. #5143.2)

1.7 The State of Texas urges that the proposed rulemaking "Definition of 'Waters of the 

United States ' Under the Clean Water Act" be withdrawn, as it unlawfully seeks to 

convey a potentially boundless amount of water and landscape jurisdiction to the federal 

government. The proposed rule is contrary to Congress's objective in passing the Clean 

Water Act, inconsistent with U.S. Supreme Court precedent, and devoid of the 

cooperative federalism that is a hallmark of our federal pollution control laws. Further, 

the proposed rule is without adequate scientific and economic justification and, if 

finalized, would erode private property rights and have devastating effects on the 

landowners of Texas. (p. 1)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I and II.

Rural County Representatives of California (Doc. #5537)

1.8 The CWA identifies state and local governments as partners in enforcing and 

implementing the Act, yet your agencies have proposed a rule that imposes all costs and 

responsibilities on these other partners. In Congressional testimony, the U.S. 

Environmental Protection Agency (EPA) representatives have been unable to name any 

public interests your agencies engaged with during development of the rule, which not 

only violates the spirit of the CWA, but also underscores the inadequate analysis of local 

impacts that will result from this rule. If your agencies decide to move forward with a 

change to the definition of “Waters of the U.S.,” we strongly urge you to redraft the 

proposed rule and fully engage local and state governments in a meaningful process to 

draft the new rule. (p. 4)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. In keeping with the spirit of Executive Order 13132 

and consistent with the agencies’ policy to promote communications with state and 

local governments, the agencies consulted with state and local officials throughout 

the process and solicited their comments on the proposed action and on the 

development of the rule. For this rule state and local governments were consulted at 

the onset of rule development in 2011, and following the publication of the proposed 

rule in 2014. In addition to engaging key organizations under federalism, the 

agencies sought feedback on this rule from a broad audience of stakeholders 

through extensive outreach to numerous state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

26

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-HQ-OW-2011-0880) is available in the docket for 

this rule.

Johnson County and Eastern Sheridan County, Wyoming (Doc. #6191)

1.9 The definition, as proposed is, in my estimate, violative of the commerce clause of the 

United States Constitution, as well as the framework and goals of the CWA, 

congressional intent in passage of the CWA, and Supreme Court Rulings. Each of the 

foregoing places a limit on federal jurisdiction over the nation’s water. The rule as 

proposed is violative of that limit. (p. 1)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I and II. 

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

1.10 In the proposed rule, news releases, fact sheets, public speeches and public service 

announcements, the agencies have emphasized that the proposal will serve to protect 

vitally important waters. First, this assumes the fact that those waters may not already be 

adequately protected by the states. EPA and the Corps should explain why they believe 

these waters need additional protection by the federal government. (p. 31)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. 

State of Alaska (Doc. #19465)

1.11 Because the proposed rule would sweep up nearly all waters and wetlands located 

throughout the United States under a variety of CWA provisions, not just the Section 404 

program, it is likely to lead to a significant increase in citizen suits against the federal 

agencies, states, and public and private entities. EPA and the Corps fail to address this 

potential. If anything about the rule is certain, it is that it will result in an enormous 

proliferation of citizen suits, facilitating litigation that will likely be driven in large part 

by political agendas, rather than supported by any credible science. (p. 6)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document.

Travis County, Texas (Doc. #4876)

1.12 Travis county supports this rule making because it more explicitly defines the scope of 

"waters of the United States'' and establishes dearer and more transparent standards in 

federal rules, rather than maintaining an overreliance on staff interpretation and judgment 

during the permitting processes. (p. 1)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document.
Clean Water Rule Response to Comments – Topic 1: General Comments 

27

Damascus Township Board of Supervisors (Doc. #5481)

1.13 Under current Federal, State, and Local land use policies, there has been a large increase 

in water bodies classed as having high value or exceptional value in terms of water 

quality. Wayne County leads the state of Pennsylvania exceptional value waters quite 

frankly, we have more than met our responsibility to protect water quality. Additional 

rules and regulation are not needed. (p. 1)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document.

County of El Dorado, California (Doc. #5483)

1.14 We echo the Western Governors' Association and Western States Water Council 

concerns regarding the minimal amount of state consultation that has taken place as this 

proposed rule change has been developed. This is of particular importance since states are 

responsible for enforcing provisions of the Clean Water Act. A proactive dialogue should 

take place between the Agencies and states related to the extent of regulation within the 

'Other Waters' category of Waters of the United States. This consultation would provide a 

more robust review of the regulatory options than the one-sided submission of comment 

letters, engaging stakeholders in a more meaningful way. It would also assist with 

ensuring that the eventual regulatory framework adopted for 'Other Waters' is better 

understood and accepted by the states. (p. 1) 

Agency Response: In keeping with the spirit of Executive Order 13132 and 

consistent with the agencies’ policy to promote communications with state and local 

governments, the agencies consulted with state and local officials throughout the 

process and solicited their comments on the proposed action and on the 

development of the rule. For this rule state and local governments were consulted at 

the onset of rule development in 2011, and following the publication of the proposed 

rule in 2014. In addition to engaging key organizations under federalism, the 

agencies sought feedback on this rule from a broad audience of stakeholders 

through extensive outreach to numerous state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule.

St. Johns County Board of County Commissioners (Doc. #5598)

1.15 Key terms used by the "waters of the U.S." definition including, tributary, adjacent 

waters, riparian areas, flood plains, uplands and the exemptions listed are inadequately 

explained. (p. 2)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document.
Clean Water Rule Response to Comments – Topic 1: General Comments 

28

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

1.16 New Hanover County is an urbanized, coastal county in North Carolina that is regulated 

by local, state and federal stormwater management ordinances. These ordinances need to 

work in harmony to promote the health, safety and general welfare and to safeguard the 

natural and man-made resources of New Hanover County by regulating the quality and 

quantity of stormwater runoff. Due to the location of New Hanover County within the 

relatively flat topography of the Cape Fear River Basin, proper management of 

stormwater is required. New Hanover County mitigates drainage issues to the greatest 

extent practicable and ensures the overall drainage system continues to be able to handle 

stormwater runoff. (p. 2)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document.

City of Thornton (Doc. #7328.2)

1.17 The proposed rule purports not to broaden coverage of the CWA or cover any new types 

of waters. Instead of simplifying CWA application, the proposed rule will increase the 

regulatory burden on water providers. Under the current rule, the burden of proof on 

jurisdictional determination falls on the USEPA and the Corps. Under the proposed new 

definitions, the burden of proof will be shifted to the local entity. (p. 3)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. The scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

part because the rule puts important qualifiers on some existing categories such as 

tributaries. The rule does not shift the burden of proof; the federal government 

must demonstrate that a water is a "water of the United States" under the CWA 

and its implementing regulations. The rule, promulgated under authority of Section 

501 of the CWA, does establish a binding definition of "waters of the United 

States."

Murray County Board of Commissioners (Doc. #7528.1)

1.18 We support a unified approach by all of federal agencies in recognition of each agency's 

wetland delineations, determinations, and mitigation requirements. 

One of the greatest generators of distrust within the regulated community is failure of 

each agency of the federal government to recognize and support each other's wetland 

determinations and mitigation requirements. In Minnesota, local government units and 

landowners often deal with the Natural Resources Conservation Service under the 

provisions of the Food Security Act of 1985, the U.S. Fish and Wildlife Service under the 

National Wildlife Refuge System Administration and Duck Stamp Acts, and the U.S. 

EPA and Army Corps under the Clean Water Act. While the laws administered by each 

agency are different and have different objectives, I each agency uses the Corps of 
Clean Water Rule Response to Comments – Topic 1: General Comments 

29

Engineers Wetlands Delineation Manual of 1987.7The lack of communication, 

understanding, and agreement between the federal agencies on wetland delineation 

determinations adds time, cost, and undue burdens to the permitting process of each 

project. In Minnesota, it is common practice for the Army Corps to be the last agency to 

issue its wetland determination. It is evident that the internal policy of the office in our 

state is to "wait and see" what the other agencies do before issuing its own determination 

and delineation. In addition, projects that require wetland mitigation and replacement are 

often delayed by years due to lack of communication and agreement between the 

agencies on mitigation ratios and requirements. Each agency issues a different mitigation 

requirement which makes it difficult for proponents of public drainage and water quality 

enhancement projects to plan and keep projects on schedule. Projects are often delayed 

years by this process and many projects which would improve the quality of water 

flowing through Minnesota's lakes, streams, and wetlands are abandoned. 

A unified approach by all agencies of the federal government to wetland identification, 

delineation, and mitigation would decrease the burden on the regulatory agencies, save 

administrative costs to the agencies and the regulated community, and help bring clarity 

and trust back to the process. (p. 5)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document.

Iowa Department of Agriculture and Land Stewardship - State Soil Conservation Committee 

(Doc. #7642)

1.19 Conservation in Iowa is the result of federal, state, and private initiatives that rely on 

landowners who match public dollars or who take on projects on their own. Private 

investment far outweighs the public. Continued efforts and investments are desirable as 

landowner's voluntary efforts to protect the land from devastating weather events and for 

agricultural production using programs such as P.L. 566, P.L. 534 and state based cost 

share, have had a positive effect on water quality. In order to not discourage the 

partnerships needed to attain CWA goals, we request consideration be given to this 

valuable public/private and government interface in the application of rules. (p. 1)

The final rule recognizes and reflects the work of farmers and landowners to protect and 

conserve natural resources and water quality on agricultural lands. The agencies do not 

believe the rule will affect the partnerships the commenter mentions.

 

7

Prior to 1986, no manual existed for government agency reference to delineate wetlands. In 1987, the U.S. Army 

Corps of Engineers and in 1988, the U.S. Environmental Protection Agency, released their own versions of 

delineation manuals, each relying on the presently used parameters of (1) vegetation, (2) soils, and (3) hydrology to 

establish wetland boundaries. After several years of field-testing, a 1989 revised manual was released and agreed to 

by all four federal agencies: the NRCS, the Corps, the EPA, and the U.S. Fish and Wildlife Service. In 1991, public 

concerns that that 1989 manual resulted in over-delineation of wetlands led to review of the 1989 manual, with 

revisions proposed in August of 1991. In response to comments received during the public comment period, the 

EPA responded by withdrawing the proposed manual. In 1992, Congress appropriated funds to

commission the National Academy of Science to study wetland delineation. Congress prohibited the Corps from 

using the 1989 manual during the interim study period. The Corps returned to use of the 1987 manual.
Clean Water Rule Response to Comments – Topic 1: General Comments 

30

Beaver County Commission (Doc. #9667)

1.20 Reference: Page 22189, column 3: This proposal does not affect Congressional policy to 

preserve the primary responsibilities and rights of states to prevent, reduce, and eliminate 

pollution, to plan the development and use of land and water resources and to consult 

with the Administrator with respect to the exercise of the Administrator's authority under 

the CWA. CWA section 101(b). This proposal also does not affect Congressional policy 

not to supersede, abrogate or otherwise impair the authority of each State to allocate 

quantities of water within its jurisdiction and / neither does it affect the policy of 

Congress that nothing in the CWA shall be construed to supersede or abrogate rights to 

quantities of water which have been established by any state. CWA section 101(g). 

Discussion: The above two statements are misleading because they are presented in the 

proposed rule in a way that tends to create the impression the Agencies are dealing with 

solely Congressional policy and not requirements of the CWA. The above two statements 

are in fact a clearly stated objective of the CWA. (p. 8-9)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document.

1.21 In the midst of all the confusion, it is difficult to understand precisely how the alleged 

purpose of clarification of scope actually would be achieved by complying with the 

proposed rules requests for comments. In fact, these many requests (only some of which 

are cited above are actually extremely loaded questions based on undisclosed 

presumptions meant to limit direct replies to only those that serve the Agencies' agenda. 

Nowhere in the proposed document is it stated, in plain and direct language, that the 

result of defining the terms for the various waters would be that all waters so defined 

would automatically fall within the scope of jurisdictional authority of the Agencies. As 

has been mentioned in several comments prior to this one, this amounts to "mission 

creep", which is enabled by not complying with the Executive Orders directives on 

regulatory planning. (p. 11)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document.

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

1.22 The proposed rule was developed to enhance protection for the nation's public health and 

aquatic resources, and increase CWA program predictability and consistency by 

increasing clarity as to the scope of "waters of the United States" protected under the Act. 

Developing a final rule to provide the Intended level of certainty and predictability, and 

minimizing the number of case - specific determinations, will require significant public 

involvement and engagement. Such involvement and engagement will allow the agencies 

to make categorical determinations of jurisdiction, in a manner that is consistent with the 

scientific body of information before the agencies - particularly on the category of waters 

known as "other waters." (p. 1)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. See also Response to Comments Compendium Topic 

3 – Adjacent Waters Topic 4 – Other Waters, Topic 5 – Significant Nexus and Topic 

8 – Tributaries.
Clean Water Rule Response to Comments – Topic 1: General Comments 

31

Office of the City Attorneys, City of Newport News, Virginia (Doc. #10956)

1.23 According to the statement made on Page 22195, "the CWA leaves it to the agencies to 

define the term "waters of the United States" and "the final authority regarding Clean 

Water Act jurisdiction remain with EPA". While regulations can be written, the CWA 

does not give the agencies authority to develop definitions that are contrary to law and 

published judicial determinations limiting the extent of such authority. (p.5)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document.

Board of Commissioners of Carbon County, Utah (Doc. #12738)

1.24 We also submit that any determinations leading to non-Congressionally approved federal 

agency actions that contravene consistency with our county and local plans will be 

viewed as an agency fiat without Congressional over site and thus an unconstitutional 

action. (p. 1)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document.

Elko County Board of Commissioners, Nevada (Doc. #12755)

1.25 Elko County will continue to strive to work with the federal government to ensure that 

we have clean, safe water for generations to come. We hope the federal government will 

work closely with our county and Nevada leaders to define and implement commonsense environmental regulations that strengthen, not hinder, public safety and growth in 

our communities. (p. 3)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document.

Big Horn County Commission (Doc. #13599)

1.26 We are a high desert valley that depends on irrigation for our survival. We believe our 

state DEQ and State Engineers Office do an adequate job of regulating and protecting 

Wyoming's water. Given the expansive interpretation of federal jurisdiction, the failure to 

adequately involve state and local governments in regulatory development, the potential 

for significant impact on Big Horn County and our social economic and cultural way of 

life, we respectfully request the agencies immediate withdrawal of the proposed rule. We 

also request the agency to collaboratively establish a clear line of jurisdiction with state 

and local governments at the table as co-regulators. (p. 4)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. In keeping with the spirit of Executive Order 13132 

and consistent with the agencies’ policy to promote communications with state and 

local governments, the agencies consulted with state and local officials throughout 

the process and solicited their comments on the proposed action and on the 

development of the rule. For this rule state and local governments were consulted at 

the onset of rule development in 2011, and following the publication of the proposed 

rule in 2014. In addition to engaging key organizations under federalism, the 
Clean Water Rule Response to Comments – Topic 1: General Comments 

32

agencies sought feedback on this rule from a broad audience of stakeholders 

through extensive outreach to numerous state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule. See Response to Comments Compendium Topic 13 – Process Concerns 

and Administrative Procedures.

Campbell County Conservation District (Doc. #13630)

1.27 Further, the District suggests that a more appropriate approach to determining jurisdiction 

is for the EPA to consult with each state to review existing readily available data 

including hydrology, geology, flow, etc., and develop a concurrence process in which the 

state and federal agencies jointly determine jurisdictional/non-jurisdictional waters. (p. 2)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document.

Florida League of Cities, Inc. (Doc. #14466)

1.28 Numerous stormwater treatment ponds and collection areas have been toured by EPA 

officials in South Florida, in particular the West Palm Beach area. The purpose of these 

visits was to show Stormwater Treatment Areas, which would likely be considered 

jurisdictional under the proposed rule, that were not jurisdictional prior to the 

introduction of the new language. The site visits that EPA and ACOE are conducting are 

admirable, however, a rule as expansive as the one proposed should allow for each state 

to highlight the areas that are potentially affected, or the 32% of "new" waters that wi11 

be considered jurisdictional by EPA's own prognostication.'`' To that light, EPA should 

delay enactment of the rule to meet with individuals and adopt a state by state framework 

for jurisdictional waters. (p. 5)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document.

Marion County Board of County Commissioners (Doc. #14979)

1.29 Before moving forward on the proposed rulemaking, Marion County recommends that 

both agencies evaluate further the consequences of this rule and work with states 

individually to further quantify the impacts, economically and jurisdictionally. (p. 2)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. In particular, regarding economic analysis, see 

Preamble to Final Rule Section V.

In keeping with the spirit of Executive Order 13132 and consistent with the 

agencies’ policy to promote communications with state and local governments, the 

agencies consulted with state and local officials throughout the process and solicited 

their comments on the proposed action and on the development of the rule. For this 
Clean Water Rule Response to Comments – Topic 1: General Comments 

33

rule state and local governments were consulted at the onset of rule development in 

2011, and following the publication of the proposed rule in 2014. In addition to 

engaging key organizations under federalism, the agencies sought feedback on this 

rule from a broad audience of stakeholders through extensive outreach to numerous 

state and local government organizations. The agencies have prepared a report 

summarizing their voluntary consultation and extensive outreach to state, local and 

county governments, the results of this outreach, and how these results have 

informed the development of today’s rule. This report, Final Summary of the 

Discretionary Consultation and Outreach to State, Local, and County Governments for 

the Revised Definition of Waters of the United States (Docket Id. No. EPA-HQ-OW2011-0880) is available in the docket for this rule. 

Sierra Club Iowa Chapter (Doc. #15446)

1.30 We do have one suggestion to improve the proposed rule. The rule itself as proposed says 

very little. The real meat of the rule is in the preamble, which legally is not part of the 

rule. The preamble should be incorporated as part of the actual rule. Or at least, the 

preamble should be adopted as official guidance in implementing the rule. (p. 2)

Agency Response: The agencies have made every attempt to make the regulatory 

text complete and as clear as possible. The commenter did not provide specific 

detail as to what preamble text would be necessary to introduce into the regulation 

to make it clearer to the public. The supporting scientific, policy and legal 

rationales are contained in the preamble and the technical support document. 

Preamble language is published in the Federal Register providing additional 

background and detail regarding the associated rule text. 

Terrebonne Levee and Conservation District (Doc. #16365)

1.31 WHEREAS, the proposed rule change referred to as WOTUS will significantly broaden 

the jurisdiction of the USEPA to include nearly all connections to navigable streams in 

the Terrebonne Basin and coastal region of Louisiana including ditches, canals, ponds, 

and floodplains via the Clean Water Act, and 

WHEREAS, this proposed rule change challenges the sovereignty of the state of 

Louisiana to regulate waters under its control, and significantly impacts all agencies 

responsible for providing services for the health and protection of the citizens of 

Louisiana, and 

WHEREAS, this broadening of jurisdiction will include actions previously completed 

without the necessity of "Section I0 and 404 permits" including maintenance of drainage 

systems, agricultural activities, common commercial and industrial actions etc., and 

WHEREAS, the additional burden to the existing "Section 10 and 404 permit" process by 

addition of new perm it applications shall severely overload and burden the currently 

regulatory system (p. 1)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document.
Clean Water Rule Response to Comments – Topic 1: General Comments 

34

Meeteetse Conservation District (Doc. #16383)

1.32 It would behoove the EPA and ACOE and their purpose to not move forward with a 

strong-arm approach to regulation as it pertains to the quality of the nations water 

resources. Appropriate consultation with local and state governmental entities that 

oversee state natural resource programs would go a long way in achieving a WOTUS 

definition that allows enforcement of the CWA without undue pressures on the farming 

and ranching communities as well as others. For this proposal to be successful and 

reasonable, ongoing coordination among local, state and federal agencies is imperative. 

(p. 3)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. In keeping with the spirit of Executive Order 13132 

and consistent with the agencies’ policy to promote communications with state and 

local governments, the agencies consulted with state and local officials throughout 

the process and solicited their comments on the proposed action and on the 

development of the rule. For this rule state and local governments were consulted at 

the onset of rule development in 2011, and following the publication of the proposed 

rule in 2014. In addition to engaging key organizations under federalism, the 

agencies sought feedback on this rule from a broad audience of stakeholders 

through extensive outreach to numerous state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule. 

Amador County Board of Supervisors (Doc. #17450)

1.33 The CWA also requires the agencies to "co-operate with state and local agencies to 

develop comprehensive solutions to prevent, reduce and eliminate pollution in concert 

with programs for managing water resources" (Sec 101g). As noted earlier, we 

understand the agencies worked with some local governments previous to this 

rulemaking in the form of a guidance paper. We appreciate that cooperative approach and 

request that the agencies again establish such an approach for defining the "waters of the 

United States" for the purposes of the CWA. (p. 4)

Agency Response: In keeping with the spirit of Executive Order 13132 and 

consistent with the agencies’ policy to promote communications with state and local 

governments, the agencies consulted with state and local officials throughout the 

process and solicited their comments on the proposed action and on the 

development of the rule. For this rule state and local governments were consulted at 

the onset of rule development in 2011, and following the publication of the proposed 

rule in 2014. In addition to engaging key organizations under federalism, the 

agencies sought feedback on this rule from a broad audience of stakeholders 

through extensive outreach to numerous state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 
Clean Water Rule Response to Comments – Topic 1: General Comments 

35

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule.

California State Association of Counties (Doc. #9692)

1.34 CSAC believes the proposed rule arguably sweeps into its scope not only lands that are 

wet and, in many cases, without bed and banks, but also associated lowlands and 

transitional zones between open waters and upland areas. New definitions including the 

new concept of "a single landscape unit" leave ambiguity about what portion of each 

watershed is beyond the reach of federal regulators under the CWA. (p. 1)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. See also Response to Comments Compendium Topic 

4 – Other Waters, Topic 5 – Significant Nexus, Topic 8 – Tributaries.

Florida Association of Counties (Doc. #10193

1.35 The Agencies contend both through the proposed rule and in presentations since its 

publication, that the scope of jurisdiction is narrower than that under existing 

regulations.8 We believe, conversely, that revising the definition of "waters of the United 

States'' by substituting the phrase "wetlands adjacent to waters" with "other waters, 

including wetlands, provided that those waters alone, or in combination with similarly 

situated water, including wetlands, located in the same region, have a significant nexus to 

a water identified.. . " significantly expands the scope of federal jurisdiction. (p. 3)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. The scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

part because the rule puts important qualifiers on some existing categories such as 

tributaries. 

Colorado Stormwater Council (Doc. #12981)

1.36 Rules drafted by negotiation have been found to be more pragmatic and more easily 

implemented at an earlier date, thus providing the public with the benefits of the rule 

while minimizing the negative impact of a poorly conceived or drafted regulation. Refer 

to Environmental Protection Agency's Policy 011 Alternative Dispute Resolution, 65 FR 

81858 December 18, 2000. 

CSC asks that the Agencies consider conducting a negotiated rulemaking process for the 

next revised draft of the Proposed Rule. This process will allow representatives of all 

 

8

See 79 Fed. Reg. 76, 22189 (Apr. 21, 2014) (citing 40 CFR 122.2. defining "waters of the United States). Present 

actions include EPA' s Local Government Advisory Committee meeting, July 10, 2014 in Atlanta , GA. and 

EPA/NACo (National Association of Counties) teleconference. September 4, 2014.
Clean Water Rule Response to Comments – Topic 1: General Comments 

36

interests that will be affected by the rule, including, but not limited to, the rulemaking 

agency, the regulated entities, public-interest groups, and concerned individuals to sit at a 

table and craft creative solutions to the problem that led to the Agencies determination 

that a rule is needed. (p. 7)

Agency Response: EPA chose notice and comment rulemaking with an extensive 

public process in order to balance the value of extensive public involvement with an 

efficient process. See Response to Comments Compendium Topic 13 – Process 

Concerns and Administrative Procedures. In keeping with the spirit of Executive 

Order 13132 and consistent with the agencies’ policy to promote communications 

with state and local governments, the agencies consulted with state and local 

officials throughout the process and solicited their comments on the proposed action 

and on the development of the rule. 

For this rule state and local governments were consulted at the onset of rule 

development in 2011, and following the publication of the proposed rule in 2014. In 

addition to engaging key organizations under federalism, the agencies sought 

feedback on this rule from a broad audience of stakeholders through extensive 

outreach to numerous state and local government organizations.

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule.

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

1.37 The definition of WOTUS is utilized by multiple federal and state agencies for regulatory 

activities. The EPA should meet with stakeholders including associations and federal and 

state regulatory agencies to fully understand the implications on their programs and 

revise the rule to avoid unnecessary and costly burdens on landowners, operators and 

other regulatory entities. (p. 13)

Agency Response: In keeping with the spirit of Executive Order 13132 and 

consistent with the agencies’ policy to promote communications with state and local 

governments, the agencies consulted with state and local officials throughout the 

process and solicited their comments on the proposed action and on the 

development of the rule.

For this rule state and local governments were consulted at the onset of rule 

development in 2011, and following the publication of the proposed rule in 2014. In 

addition to engaging key organizations under federalism, the agencies sought 

feedback on this rule from a broad audience of stakeholders through extensive 

outreach to numerous state and local government organizations.

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

37

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-HQ-OW-2011-0880) is available in the docket for 

this rule.

American Foundry Society (Doc. #15148)

1.38 Despite the assurances from EPA and the Corps that the proposed rule would have no 

substantive regulatory impact and would reduce the areas that are subject to CWA 

jurisdiction, maps developed by EPA and the U.S. Geological Survey identify 8.1 million 

miles of rivers and streams that would be subject to CWA jurisdiction under the revised 

definition of waters of the U.S. in the proposed rule. This represents a significant increase 

of more than 130 percent over the 2009 estimate of 3.5 million miles subject to CWA 

jurisdiction that EPA provided in a previous report to Congress. Furthermore, some states 

have reported an even greater increase of areas that would be subject to CWA jurisdiction 

under the proposed definition of waters of the U.S. This increase is a direct result of the 

expanded definition that includes ephemeral streams and the land areas that are adjacent 

to them as “waters of the U.S.” subject to CWA jurisdiction.

The proposed rule would assert jurisdictional authority over countless dry creeks, ditches, 

swales and low spots that are wet only occasionally because it rains. Even worse, the 

proposed rule attempts to claim authority over remote “wetlands” and other drainage 

features solely because they are near an ephemeral drainage feature or ditch that are now 

defined as a water of the U.S. subject to CWA jurisdiction. Such unnecessary expansion 

of CWA jurisdiction significantly burdens metalcasting operations without providing any 

meaningful human health or environmental benefits. (p. 3-4)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. The scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

part because the rule puts important qualifiers on some existing categories such as 

tributaries. 

Automotive Recyclers Association (Doc. #15343)

1.39 The rule fails to recognize that the CWA addresses only water quality and attempts to 

regulate the movement of animals and the storage or flow of water. (p. 2)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document.

1.40 ARA is very concerned with the agencies proposed replacement of the term "navigable 

waters" with the phrase "all waters used in commerce..." and with the proposal to codify a 

definition of "tributary." Rather than streamlining the program and making it easier to 

understand, these new definitions increase the opportunities for differing interpretations. 

ARA urges EPA to adopt as its guiding principle the concept that less is more and that 

simplicity will yield the most compliance. Also, the more complex a program is, the more 

difficult it is to enforce its provisions. As noted above, enforcement of the current 

program is far from sufficient. The agencies need to focus their attention on enforcement 
Clean Water Rule Response to Comments – Topic 1: General Comments 

38

of the permits required now, rather than add layers of more requirements that will be 

difficult to understand and hard to follow. (p. 4)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document.

1.41 Earlier in the rule, it was noted that the regulation of groundwater fell under the purview 

of the state permitting authority so how can the agencies also exempt this water type? (p. 

4)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. While groundwater is excluded from jurisdiction, the 

agencies recognize that the science demonstrates that waters with a shallow 

subsurface connection to jurisdictional waters can have important effects on 

downstream waters. When assessing whether a water evaluated in (a)(7) or (a)(8)

performs any of the functions identified in the rule’s definition of significant nexus, 

the significant nexus determination can consider whether shallow subsurface 

connections contribute to the type and strength of functions provided by a water or 

similarly situated waters. However, neither shallow subsurface connections nor any 

type of groundwater are themselves “waters of the United States.” The agencies 

understand that there is a continuum of water beneath the ground surface, from wet 

soils to shallow subsurface lenses to shallow aquifers to deep groundwaters, all of 

which can have impacts to surface waters, but for significant nexus purposes under 

this rule, the agencies have chosen to focus on shallow subsurface connections 

because those are likely to both have significant and near-term impacts on 

downstream surface waters and are reasonably identifiable for purposes of rule 

implementation.

Dow Chemical Company (Doc. #15408)

1.42 If EPA/USACE indeed intended to clarify jurisdiction in this proposal, the Agencies 

could have proposed narrowly tailored ancillary definitions that clarify issues such as 

what represents a true “tributary” or a “significant nexus.” Instead, EPA chose to use an 

approach of writing extremely broad definitions of these and other terms, and then 

requesting comments on possible exceptions to these definitions. This approach to the 

proposed rule effectively shifts the burden of proof to the regulated community (relying 

on a list of exemptions which couldn’t possibly address all potential scenarios) to assert 

and prove that any waters ARE NOT jurisdictional rather than providing regulatory 

clarification on what waters are jurisdictional. (p. 3)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. The rule does not shift the burden of proof; the 

federal government must demonstrate that a water is a "water of the United States" 

under the CWA and its implementing regulations. The rule, promulgated under 

authority of Section 501 of the CWA, does establish a binding definition of "waters 

of the United States."
Clean Water Rule Response to Comments – Topic 1: General Comments 

39

Association of Nebraska Ethanol Producers (Doc. #15512)

1.43 Assuming that USEPA’s assertions are in fact true, it begs the question as to why a 

regulatory change to the WOTUS definition is even needed and what would be 

accomplished by the rule change that is not already authorized by the existing WOTUS 

rule.

Presumably, USEPA and those state/local agencies which implement the Clean Water 

Act are already authorized to carry out the requirements of the Act under the existing 

regulatory definition at 40 CFR 230.3. In the proposed rulemaking, USEPA and the 

Corps have not sufficiently documented why or how the current regulatory definition for 

WOTUS is inadequate for the purpose of completing the Clean Water Act obligations of 

the Agency.

Because the proposed rule is not needed and by USEPA’s own admission, will not alter 

the scope of coverage for jurisdictional waters under the Clean Water Act, the proposed 

rule should be withdrawn. In short, unless it’s broken, there is no compelling reason to 

“fix” it. (p. 2)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. Members of Congress, developers, farmers, state and 

local governments, energy companies, and many others requested new regulations 

to make the process of identifying waters protected under the CWA clearer, 

simpler, and faster. Chief Justice Roberts’ concurrence in Rapanos underscores the 

importance of this rulemaking effort.9In this final rule, the agencies are responding 

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

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

consistent with the law and peer-reviewed science.

Federal Water Quality Coalition (Doc. #15822.1)

1.44 As demonstrated above, the proposed rule lacks statutory, judicial, and record support 

and the agencies’ have failed to meet the requirements of the APA, the Regulatory 

Flexibility Act, the Unfunded Mandates Reform Act, and Executive Orders. We therefore 

urge the agencies to withdraw the proposed rule and develop a new proposal that 

articulates legitimate legal and technical rationales for regulating water under the Clean 

Water Act that are consistent with the text, structure, and purpose of the Clean Water Act 

and Supreme Court precedent, and that reflect reasonable, constrained exercises of 

federal jurisdiction with deference to state control over land and water resources. The 

agencies should develop this replacement proposal in dialogue with states and the 

regulated community, in a search for focused, reasonable positions on what is and is not 

jurisdictional. One or more workshops for this purpose could be helpful. The agencies 

 

9

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.
Clean Water Rule Response to Comments – Topic 1: General Comments 

40

must then make the revised proposal and improved rationales available for public 

comment. 

A reproposal must meet the following principles. First, it must focus on water quality 

impacts to navigable waters. Second, it must focus on natural water bodies, not water that 

is in municipal, agricultural or industrial use. Third, it must apply the combined 

constraints of the agencies’ constitutional authority, Congress’ expression of limits in the 

CWA, and the Supreme Court’s opinions including the plurality and Justice Kennedy 

opinions take together in Rapanos. Fourth, it must focus on water bodies where a federal 

presence is truly warranted, allowing states to retain primary jurisdiction over other 

waters. Fifth, the agencies must follow proper administrative procedures in issuing the 

proposal and taking public comment, including accurate cost-benefit analysis, 

consultation with affected stakeholders, and a focus on minimizing regulatory burden. By 

following these principles, the agencies would be able to promulgate a rule that is both 

lawful and clear. (p. 63)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. The agencies have finalized the rule. See Response 

to Comments Compendium Topic 13 – Process Concerns and Administrative 

Procedures.

1.45 The agencies claim the authority to identify what waters are “the focus of the CWA.” 79 

Fed. Reg. at 22218. However, they do not explain what that focus is. We urge the 

agencies to recognize that the CWA is focused on the protection of the quality of 

navigable waters and is not focused on the use of land or water. Further, not all water is a 

water of the United States even if it can convey pollutants to navigable water. To 

facilitate future decision-making and promote certainty regarding when the CWA does 

and does not apply, the agencies should articulate the legal and policy rationales for 

identifying water that is not a “water of the U.S.” (p. 66-67)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. 

Louisiana Landowners Association (Doc. #16490)

1.46 The proposed Definition has been uniformly rejected by individual citizens, large and 

small business owners, and numerous farm and agricultural groups, both at the national 

and state levels. Indeed, over 260 Members of the U.S. House of Representatives recently 

passed a bill that would require the EPA and Corps to withdraw the proposed Definition 

and to work with "relevant state and local officials" to develop a state and federal 

consensus for the definition of "waters" jurisdictional to the Act. See H.R.5078, 113th 

Cong. (2014). On this basis alone, the proposed Definition should be rejected in its 

current form. Any further expansion of the jurisdictional limits of the EPA and Corps 

under the Act should be undertaken only pursuant to express congressional authority with 

consensual participation of pertinent state and local authorities. (p. 3)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. In 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 
Clean Water Rule Response to Comments – Topic 1: General Comments 

41

the process and solicited their comments on the proposed action and on the 

development of the rule. 

For this rule state and local governments were consulted at the onset of rule 

development in 2011, and following the publication of the proposed rule in 2014. In 

addition to engaging key organizations under federalism, the agencies sought 

feedback on this rule from a broad audience of stakeholders through extensive 

outreach to numerous state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule.

Water Advocacy Coalition (Doc. #17921.1)

1.47 The Coalition recommends that the agencies withdraw the proposed rule; engage in 

meaningful dialogue with the regulated community and States about more reasonable, 

focused, and clear changes to existing regulations; and initiate a replacement advanced 

notice of proposed rulemaking or notice of proposed rulemaking that reflects those 

consultations and is supported by science and case law. (p. 13)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. This rule reflects significant consultation with many 

stakeholders. The EPA held over 400 meetings with interested stakeholders, 

including representatives from states, tribes, counties, industry, agriculture, 

environmental and conservation groups, and others during the public comment 

period. See Response to Comments Compendium Topic 13 – Process Concerns and 

Administrative Procedures.

In keeping with the spirit of Executive Order 13132 and consistent with the 

agencies’ policy to promote communications with state and local governments, the 

agencies consulted with state and local officials throughout the process and solicited 

their comments on the proposed action and on the development of the rule. 

For this rule state and local governments were consulted at the onset of rule 

development in 2011, and following the publication of the proposed rule in 2014. In 

addition to engaging key organizations under federalism, the agencies sought 

feedback on this rule from a broad audience of stakeholders through extensive 

outreach to numerous state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to State, 

Local, and County Governments for the Revised Definition of Waters of the United 

States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for this 

rule. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

42

1.48 The proposed rule effectively shifts the burden of the proof to the public to prove that the 

water or feature at issue does not meet the proposed rule’s broad “tributary” or “adjacent 

water” definitions. For example, a landowner who believes a ditch on his property is not 

a jurisdictional tributary will have to try to prove to the agencies that the ditch qualifies 

for one of the narrow ditch exemptions. He or she will have to show, through “[h]istorical 

evidence, such as photographs, prior delineations, or topographic maps,” that his or her 

ditch was excavated wholly in uplands for its entire length, drains only uplands, and has 

less than perennial flow, or that the ditch does not contribute flow to a jurisdictional 

water. See 79 Fed. Reg. at 22,203. Making such a showing will require significant cost 

and resources, and, in many cases, the necessary records or documents may not be 

available. The agencies do not acknowledge the burden this imposes on applicants. 

Indeed, the agencies have not provided any explanation or legal basis for shifting the 

burden of proof onto the public. (p. 38)

Agency Response: The rule does not shift the burden of proof; the federal 

government must demonstrate that a water is a "water of the United States" under 

the CWA and its implementing regulations. The rule, promulgated under authority 

of Section 501 of the CWA, does establish a binding definition of "waters of the 

United States."

1.49 Beyond the many legal infirmities addressed above, the proposed rule’s categories of 

“waters of the United States” and associated definitions are overbroad, ambiguous, and 

not supported by the science. Contrary to the agencies’ assertions, the proposed rule will 

lead to more confusion for regulators and the regulated community, and by no means 

establish the certainty or predictability the agencies claim. Rather, the rule is deliberately 

left vague and would still allow sweeping and subjective jurisdictional determinations 

and the continuation of the case-by-case analysis.10 For example, even with ditches which 

are jurisdictional by rule, the agencies will have to do a case-by-case examination of each 

ditch feature to determine whether it qualifies for one of the two ditch exemptions. Caseby-case analysis of minor, insignificant channels and wetlands is what takes so long 

under the current rule and agency practice under the 2008 Rapanos Guidance, and this 

appears likely to continue and become worse under the proposed rule. If the agencies 

truly want to create consistency and a reasonable final rule, they must revise these 

definitions, meet with stakeholders to understand their concerns, gather further scientific 

evidence, and provide notice and an opportunity for public comment on a more 

reasonable replacement proposed rule. (p. 38-39)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. See also Response to Comments Compendium Topic 

5 – Significant Nexus, Topic 6 – Ditches and Topic 8 – Tributaries. The agencies 

have finalized the rule. See Response to Comments Compendium Topic 13 –

Process Concerns and Administrative Procedures.

 

10 See Rapanos, 547 U.S. at 727 (“The Corps’ enforcement practices vary somewhat from district to district because 

‘the definitions used to make jurisdictional determinations’ are deliberately left ‘vague.’”) (citing GAO Report 04-

297 at 26).
Clean Water Rule Response to Comments – Topic 1: General Comments 

43

American Society of Civil Engineers (Doc. #19572)

1.50 The Society’s diverse members are directly and materially affected by the proposed 

changes to federal water jurisdiction under the Clean Water Act in their professional 

practice areas, particularly in the fields of environmental engineering, water resources 

engineering and water resources planning and management. While ASCE supports a 

rulemaking by the agencies, we cannot support the proposed rule in its current form. In 

our comments, we urge review on four major issues; 1) significantly clarify several 

proposed definitions critical to the rulemaking, 2) exclude or provide guidance on the 

effect of the proposed rule on municipal separate storm sewer systems, 3) reexamine the 

rule with a particular eye towards circumstances in the arid West, and 4) consider the 

impact of the proposed rule on green infrastructure development. (p. 1)

ASCE urges the agencies to go back to the drawing board to clarify many of the proposed 

definitions, delineate jurisdiction over municipal separate storm sewer systems, dedicate 

particular attention in the rule to special circumstances in arid regions of the country, and 

finally, consider the potential impacts to green infrastructure development and recycled 

water infrastructure. (p. 6)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. In addition, see Topic 7: Features and Waters Not 

Jurisdictional.

1.51 Clarify state jurisdiction under section 404 of the Clean Water Act over isolated, nonnavigable intrastate waters and their adjacent wetlands, including vernal pools, playas, 

and prairie potholes, considering recent Supreme Court decisions and other jurisdiction 

based on environmental and wildlife considerations under regulations promulgated by the 

Department of the Interior or the Environmental Protection Agency (EPA) (p. 6)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. See also Response to Comments Compendium 5 –

Significant Nexus.

Minnkota Power Cooperative, Inc. (Doc. #19607)

1.52 In its place, the Agencies should enlist input from the States and regulated community 

(including the public comments submitted for this Proposed Rule) to develop a clear and 

reasonable Proposed Rule. (p. 4)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. This rule reflects significant consultation with many 

stakeholders. The EPA held over 400 meetings with interested stakeholders, 

including representatives from states, tribes, counties, industry, agriculture, 

environmental and conservation groups, and others during the public comment 

period. See Response to Comments Compendium Topic 13 – Process Concerns and 

Administrative Procedures.

In keeping with the spirit of Executive Order 13132 and consistent with the 

agencies’ policy to promote communications with state and local governments, the 
Clean Water Rule Response to Comments – Topic 1: General Comments 

44

agencies consulted with state and local officials throughout the process and solicited 

their comments on the proposed action and on the development of the rule. 

For this rule state and local governments were consulted at the onset of rule 

development in 2011, and following the publication of the proposed rule in 2014. In 

addition to engaging key organizations under federalism, the agencies sought 

feedback on this rule from a broad audience of stakeholders through extensive 

outreach to numerous state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to State, 

Local, and County Governments for the Revised Definition of Waters of the United 

States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for this 

rule. 

Houma-Terrebonne Chamber of Commerce (Doc. #19624)

1.53 We respectfully request that you withdraw the proposed rule and then, with sufficient 

local and state involvement to determine appropriate jurisdictional boundaries, re-propose 

a more solicitous and carefully tailored approach to protection of these water resources. 

(p. 2)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. This rule reflects significant consultation with many 

stakeholders. The EPA held over 400 meetings with interested stakeholders, 

including representatives from states, tribes, counties, industry, agriculture, 

environmental and conservation groups, and others during the public comment 

period. See Response to Comments Compendium Topic 13 – Process Concerns and 

Administrative Procedures.

In keeping with the spirit of Executive Order 13132 and consistent with the 

agencies’ policy to promote communications with state and local governments, the 

agencies consulted with state and local officials throughout the process and solicited 

their comments on the proposed action and on the development of the rule. 

For this rule state and local governments were consulted at the onset of rule 

development in 2011, and following the publication of the proposed rule in 2014. In 

addition to engaging key organizations under federalism, the agencies sought 

feedback on this rule from a broad audience of stakeholders through extensive 

outreach to numerous state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to State, 

Local, and County Governments for the Revised Definition of Waters of the United 

States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for this 

rule. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

45

Shiels Engineering, Inc. (Doc. #13558)

1.54 I recommend that you withdraw this proposed rule and simply leave the evaluation 

process up to a licensed and certified professional such as myself and others in my firm. 

As Texas Attorney General and Governor-Elect Greg Abbott stated in his August 11, 

2014 letter, “The proposed rule is contrary to Congress’s objective in passing the Clean 

Water Act, inconsistent with U.S. Supreme Court precedent, and devoid of the 

cooperative federalism that is a hallmark of our federal pollution control laws. Further, 

the proposed rule is without adequate scientific and economic justification and, if 

finalized, would erode private property rights and have devastating effects on the 

landowners of Texas.” (p. 1)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document.

O'Neil LLP (Doc. #14651)

1.55 The Proposed Rule fails substantially in achieving its stated goal of providing significant 

additional clarity as to which "waters" are subject the regulation by the EPA and ACOE 

under the CWA. On almost every level, the Proposed Rule would expand (or could be 

argued by the EPA or ACOE later as justifying an expansion of) the set of "waters" 

viewed as jurisdictional, as compared to the most recent agency guidance. 

The Proposed Rule should not expand the definition of "waters of the U.S." any further 

than the limits recognized by the Supreme Court under SWANCC - - unless and until 

Congress decides to amend the Clean Water Act to more expansively define the 

categories of areas containing water (on either a continuous, ephemeral, or intermittent 

basis), compared to the definition currently set forth by Congress under the CWA. The 

Proposed Rule fails to adhere to this restraint, and thus should be rejected or re-written 

and re-circulated for public comment after narrowing the categories of "waters" which 

can be regulated under Section 404 by the Proposed Rule. (p. 1-2)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. The agencies have finalized the rule. See Response to 

Comments Compendium Topic 13 – Process Concerns and Administrative 

Procedures. The scope of regulatory jurisdiction in this rule is narrower than that 

under the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries.

Home Builders Association of Tennessee (Doc. #16849)

1.56 Many of the defined terms need additional clarification in the regulatory process to better 

understand the implications of the Propose Rule. In addition to the definition of 

"tributary," other newly defined terms such as "neighboring," "riparian area," and 

"floodplain," appear to expand the universe of wetlands. The definition of "adjacent" 

waters or wetlands must be read in the same context as that described in United States v. 

Riverside Bayview Homes, 474 U.S. 121 (1985) which determined that adjacent wetlands 

are "inseparably bound up" with the waters to which they are adjacent. Since the wetlands 

themselves are not navigable, the Court took the occasion in that case to read the CWA 
Clean Water Rule Response to Comments – Topic 1: General Comments 

46

broadly to cover such adjacent wetlands physically adjacent to the traditional navigable 

waters of Saginaw Bay. However, the newly defined terms appear to go much further 

than that permitted under any of the Supreme Court decisions. (p. 10-11)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. 

CEMEX (Doc. #19470)

1.57 The proposed rule would expand their jurisdiction far beyond the scope of the authority 

given EPA and Corps under the Clean Water Act. (p. 2)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. The scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

part because the rule puts important qualifiers on some existing categories such as 

tributaries.

South Carolina Forest Association (Doc. #6855) 

1.58 It also appears that EPA outreach on the proposed rule has crossed the line from public 

education into advocacy which mischaracterizes the rule in an attempt to defend the rule 

and gain support. This calls into question EPA’s ability to objectively review and respond 

to stakeholder input and consider revisions. (p. 1) 

Agency Response: The Agencies have given careful and objective consideration to 

all comments received on the proposed rule, and the final rule has been modified in 

several ways in response to public input.

American Petroleum Institute (Doc. #15115)

1.59 The Proposed Rule seeks to assert federal regulatory authority over waters for which the 

Agencies can find a “significant nexus” with a navigable or interstate water or territorial 

sea. It would expand federal Clean Water Act jurisdictional requirements to ephemeral 

drainages, ditches (including roadside, flood control, irrigation, storm water, and 

agricultural ditches), water bodies in riparian areas or across broad watersheds, industrial 

ponds, and isolated waters and wetlands not previously regulated as “Waters of the 

United States” (WOTUS). Beyond the statement that this is a significant expansion of 

jurisdiction, it is possible to say little more with reasonable accuracy. Within the confines 

of the Proposed Rule, key terms are either missing or defined so ambiguously that they 

leave open the possibility for sweeping jurisdictional determinations. If finalized in its 

current form, the Proposed Rule would leave both regulators and the regulated 

community vulnerable to significant variations in interpretation and enforcement 

throughout the country. (p. 50-51)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I, II, VII, VIII and IX. See 

also Response to Comments Compendium Topic 5 – Significant Nexus. The scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 
Clean Water Rule Response to Comments – Topic 1: General Comments 

47

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries.

American Gas Association (Doc. #16173)

1.60 AGA contends that the Proposed Rule should be withdrawn because its implementation 

would increase regulatory uncertainty, and increase costs and timelines, for our member 

natural gas utilities’ projects – without providing clarity on CWA implementation. 

Several definitions in the Proposed Rule broadly assign categorical jurisdiction to water 

features, such as “tributary” and “adjacent waters”, leaving the door open to arbitrary, 

subjective interpretations and jurisdictional determinations by regulatory field inspectors 

and agency staff. This inconsistency and uncertainty among regulators and regulated 

entities will lead to confusion about when state or federal jurisdiction applies, and 

increase agency resources and costs devoted to CWA program reviews at the state and 

federal level, delay consultation decisions and permit approvals, and increase permitting 

documentation costs. Permittees would bear the burden of demonstrating, on a case-bycase basis, that the Proposed Rule’s definitions do not apply to a diverse range of 

ubiquitous upland features on their project sites. (p. 3)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. The scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

part because the rule puts important qualifiers on some existing categories such as 

tributaries. See Response to Comments Compendium Topic 3, Adjacent Waters, 

Topic 4 Other Waters, Topic 5 Significant Nexus, Topic 8 Tributaries.

Georgetown Sand & Gravel (Doc. #19566)

1.61 The added definitions for many terms including ''tributary", "significant nexus", 

"neighboring", "riparian", etc. cause more confusion than provide clarification. (p. 2)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections II, VII, VIII and IX. See also 

Response to Comments Compendium Topic 3, Adjacent Waters, Topic 4 Other 

Waters, Topic 5 Significant Nexus, Topic 8 Tributaries.

D. Warnock (Doc. #0984)

1.62 First, the definition as proposed is illegal based on the Commerce Clause of the U.S. 

Constitution, the framework and goals of the CWA, Congressional intent and Supreme 

Court rulings. Each places a limit on federal jurisdiction over the nation's waters. 

Currently, your proposed rule has practically no limit whatsoever. As an example, you 

now have included my agricultural ditches into the category of "tributaries?" This is 

inappropriate. (p. 1)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I, II, VII, VIII and IX. See 

also Response to Comments Compendium Topic 5 – Significant Nexus, Introduction 

and summary response to comments 1, 2, 3, 4, and 5. See also Compendium Topic 6 
Clean Water Rule Response to Comments – Topic 1: General Comments 

48

– Ditches, Topic 7 – Features and Waters Not Jurisdictional, and Topic 8 –

Tributaries.

Washington Cattlemen’s Association (Doc. #3723)

1.63 The WCA adamantly disagrees with the EPA's interpretation that congressional intent is 

clear that the agencies have a longstanding interpretation that interstate waters fall within 

the scope of the CWA. The congressional intent was to keep the scope of the CWA 

narrow and therefore remain in-line with the limited Commerce Clause authority under 

the U.S. Constitution. Expanding the CWA to every ditch and puddle across the country 

is not in-line with Congressional intent, or the Constitution. (p. 3-4)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I, II, VII, VIII and IX. See 

also Response to Comments Compendium Topic 5 – Significant Nexus, Introduction 

and summary response to comments 1, 2, 3, 4, and 5. See also Response to 

Comments Compendium Topic 2 – Traditional Navigable Waters, Interstate 

Waters, Territorial Seas, Impoundments, Topic 7 – Features and Waters Not 

Jurisdictional, and Topic 8 – Tributaries.

Montana Wool Growers Association (Doc. #5843)

1.64 The Code of Federal Regulations defines "waters of the United States" for purposes of 

the Clean Water Act (CWA) in twelve locations: 33 C.F.R. § 328.3; 40 C.F.R. § 110.1; 

40 C.F.R. § 112.2; 40 C.F.R. § 116.3; 40 C.F.R. § 117.1; 40 C.F.R. § 122.2; 40 C.F.R. § 

230.3(s); 40 C.F.R. § 232.2; 40 C.F.R. § 300.S; 40 C.F.R. Part 300, App. 3; 40 C.F.R. § 

302.3; 40 C.F.R. § 401.1 1. These definitions are both redundant and inconsistent among 

themselves. MWGA asserts that the twelve definitions should be replaced with one 

definition and appreciates the Agencies' willingness to do so, but MWGA does not agree 

the Proposed Rule provides the desired clarity. (p. 1)

Agency Response: The agencies agree it is helpful that all programs incorporating 

the definition of “waters of the United States” use the same definition, and the final 

rule does so. However, the agencies believe it is clearer to replace existing 

definitions with the updated uniform definition where a definition currently appears 

in various programmatic contexts. Regarding the substance of the Final Rule, see 

Summary Response, Preamble to the Final Rule Sections III and IV and Technical 

Support Document.

1.65 The Proposed Rule is difficult to access. The Preamble and Proposed Rule occupy 88 

pages in the Federal Register. The Preamble has a Table of Contents, but the Proposed 

Rule is not listed. In the print version of t he Federal Register, the Proposed Rule appears 

at the end of Appendix B "Legal Analysis"; in the online version, a reader must look 

under "List of Subjects" after Appendix B. Even to a reader who is familiar with agency 

rulemaking, these headings are inadequate. 

The Agencies should provide descriptive headings in the Table of Contents and either 

publish the Preamble and Proposed Rule as separate documents (referencing t he 

Preamble in a brief introduction to the Proposed Rule)or publish the Propose Rule with 

the Preamble included as supporting text in an appendix. (p. 11-12)
Clean Water Rule Response to Comments – Topic 1: General Comments 

49

Agency Response: The agencies follow formatting conventions established by the 

Office of the Federal Register. The agencies made every attempt to make the 

documents accessible by placing the rulemaking docket available at regs.gov and by 

providing contact information to assist people in finding the relevant documents. 

See Response to Comments Compendium Topic 13 – Process Concerns and 

Administrative Procedures.

1.66 The Code of Federal Regulations should include only one definition of WOTUS and 

specify that the definition applies to the entire CWA. (p.12)

Agency Response: The agencies agree it is helpful that all programs incorporating 

the definition of “waters of the United States” use the same definition, and the final 

rule does so. The existing definitions will be replaced by the updated uniform 

definition where a definition currently appears in various programmatic contexts. 

Cattle Empire (Doc. #8416)

1.67 Justice Kennedy's concurring opinion has been used by EPA and USACE to determine on 

a case-by-case basis what "other waters" fall under each agency's jurisdiction since that 

time. Based on this information in the preamble, we fail to understand to begin with, how 

or why the agency's decided to use the concurring opinion of a single justice instead of 

the interpretation by the plurality! The use of this concurring opinion and the "significant 

nexus" test narrowed the scope of the intended definition of WOTUS as written by 

Congress in the Clean Water Act. (p. 2)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I, II, and IX. See also 

Response to Comments Compendium Topic 5 – Significant Nexus, Introduction and 

summary response to comments 1, 2 and 3.

Alameda County Cattlewomen (Doc. #8674)

1.68 The CWA begins by saying it is the "policy of the Congress to recognize, preserve, and 

protect the primary responsibilities and rights of States to prevent, reduce, and eliminate 

pollution, to plan the development and use (including restoration, preservation, and 

enhancement) of land and water resources, and to consult with the [EPA] Administrator 

in the exercise of his authority under this Act.”11 This important statement of policy by 

Congress when it passed the CWA indicates the important role that the states are to play 

in protecting the quality of our nation's water. Unfortunately, the agencies' proposal 

completely and utterly obliterates this federal-state partnership by declaring that all 

waters are federal. 

For all the reasons described in these comments above, EPA and the Corps have made it 

clear that the federal government has jurisdiction over any and all waters. There are no 

clear limits to their jurisdiction articulated in the proposed rule, violating the words and 

spirit of the CWA itself. If all waters are now under the jurisdiction of the federal 

government, what is left for the states? And if nothing is left then why would Congress 

 

11 33 U.S.C. § 1251.
Clean Water Rule Response to Comments – Topic 1: General Comments 

50

take it upon themselves to include language specifically reserving "primary 

responsibilities" for protecting water quality to the states? 

While ACCW assert that the absence of a limit to federal jurisdiction under the proposed 

rule usurps the federalism principle that underpins the entirety of the CWA, we are 

extremely concerned about the lack of outreach and involvement of the states, as coregulators, prior to the proposed rule being published. The agencies have failed to 

articulate why the proposed rule needed to be proposed in such a rush that the states and 

the regulated community had zero involvement in its development. ACCW assert that the 

agencies should withdraw the proposed rule and begin anew with crafting a rule that 

begins with heavy stakeholder engagement. ACCW further assert that any rule proposed 

by the agency should recognize and respect the important role that state agencies play in 

regulating our nation's water quality. That recognition is woefully lacking in this 

proposed rule. (p. 29)

Agency Response: State, tribal, and local governments have well-defined and 

longstanding relationships with the Federal government in implementing CWA 

programs and these relationships are not altered by the final rule. Forty-six states 

and the U.S. Virgin Islands have been authorized by EPA to administer the NPDES 

program under section 402, and two states have been authorized by the EPA to

administer the section 404 program. All states and forty tribes have developed 

water quality standards under the CWA for waters within their boundaries. A 

federal advisory committee has recently been announced to assist states in 

identifying the scope of waters assumable under the section 404 program.

The scope of jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. In addition, the rule 

provides greater clarity regarding which waters are subject to CWA jurisdiction, 

reducing the instances in which permitting authorities, including the states and 

tribes with authorized section 402 and 404 CWA permitting programs, would need 

to make jurisdictional determinations on a case-specific basis.

In keeping with the spirit of Executive Order 13132 and consistent with the 

agencies’ policy to promote communications with state and local governments, the 

agencies consulted with state and local officials throughout the process and solicited 

their comments on the proposed action and on the development of the rule. For this 

rule state and local governments were consulted at the onset of rule development in 

2011, and following the publication of the proposed rule in 2014. In addition to 

engaging key organizations under federalism, the agencies sought feedback on this 

rule from a broad audience of stakeholders through extensive outreach to numerous 

state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 
Clean Water Rule Response to Comments – Topic 1: General Comments 

51

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule. Additional, the agencies have finalized the rule. See Summary Response, 

Preamble to the Final Rule Sections III and IV and Technical Support Document 

Sections I, II, VII, VIII and IX. See also Response to Comments Compendium 

Topic 5 – Significant Nexus, Introduction and summary response to comments 1, 2, 

3, 4, and 5. See also Response to Comments Compendium Topic 5 Significant 

Nexus, Topic 7 – Features and Waters Not Jurisdictional, and Topic 13 – Process 

Concerns and Administrative Procedures.

1.69 The proposed rule places no discernible limit on the federal government's authority over 

water, violating the CWA as articulated by the Supreme Court in SWANCC and Rapanos. 

The exclusions and exemptions in the proposal are unclear and provide the livestock 

industry with zero certainty, making the proposed rule a real threat to our industry's 

continued viability. ACCW strongly urge the agencies to reconsider their proposed rule 

redefining "waters of the U.S." ACCW strongly urge the agencies to withdraw the 

proposed rule. (p. 30)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I and II. See also Response to 

Comments Compendium Topic 5 – Significant Nexus, Introduction and summary 

response to comments. See also Response to Comments Compendium Topic 7 –

Features and Waters Not Jurisdictional, and Topic 13 – Process Concerns and 

Administrative Procedures.

Bayless and Berkalew Co. (Doc. #12967)

1.70 Total lack of State and Local Government involvement in the proposed rule. In Arizona, 

both state and local agencies have stated publicly that they had no involvement in the 

proposed rule, nor did agricultural producers as has been stated by the EPA in recent 

documents. (p. 5)

Agency Response: The EPA held over 400 meetings with interested stakeholders, 

including representatives from states, tribes, counties, industry, agriculture, 

environmental and conservation groups, and others during the public comment 

period. See Response to Comments Compendium Topic 13 – Process Concerns and 

Administrative Procedures.

In keeping with the spirit of Executive Order 13132 and consistent with the 

agencies’ policy to promote communications with state and local governments, the 

agencies consulted with state and local officials throughout the process and solicited 

their comments on the proposed action and on the development of the rule. 

For this rule state and local governments were consulted at the onset of rule 

development in 2011, and following the publication of the proposed rule in 2014. In 

addition to engaging key organizations under federalism, the agencies sought 

feedback on this rule from a broad audience of stakeholders through extensive 

outreach to numerous state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

52

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-HQ-OW-2011-0880) is available in the docket for this 

rule. 

Indiana State Poultry Association (Doc. #13028.1)

1.71 Both the regulators and the regulated would benefit from discussions among the federal 

and state agencies as well as the industries and agriculture community. We all want a 

clean environment. The government needs to work with us to achieve it. (p. 2)

Agency Response: The EPA held over 400 meetings with interested stakeholders, 

including representatives from states, tribes, counties, industry, agriculture, 

environmental and conservation groups, and others during the public comment 

period. See Response to Comments Compendium Topic 13 – Process Concerns and 

Administrative Procedures.

In keeping with the spirit of Executive Order 13132 and consistent with the 

agencies’ policy to promote communications with state and local governments, the 

agencies consulted with state and local officials throughout the process and solicited 

their comments on the proposed action and on the development of the rule. 

For this rule state and local governments were consulted at the onset of rule 

development in 2011, and following the publication of the proposed rule in 2014. In 

addition to engaging key organizations under federalism, the agencies sought 

feedback on this rule from a broad audience of stakeholders through extensive 

outreach to numerous state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to State, 

Local, and County Governments for the Revised Definition of Waters of the United 

States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for this 

rule. 

Iowa Corn Growers Association (Doc. #13269)

1.72 The potential scope of this expansion is much greater than the 3% that EPA estimates. 

Drainage features found on almost every piece of farm ground in America could now be 

considered categorically WOTUS, as they all generally contain a bed, bank, and ordinary 

high water mark even if they are dry a majority of the year. This is a clear increase in 

jurisdiction and is not acceptable. (p. 3)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I, II, VII, VIII and IX. See 

also Response to Comments Compendium Topic 5 – Significant Nexus, Introduction 

and summary response to comments 1, 2, 3, 4, and 5. See also Topic 7 – Features 

and Waters Not Jurisdictional.
Clean Water Rule Response to Comments – Topic 1: General Comments 

53

Delaware Council of Farm Organizations (Doc. #12345)

1.73 The board of the Delaware Council of Farm Organizations does not feel that this provides 

clarity or certainty, and we ask that you withdraw the proposed rule. It will only make 

farming and managing our land more difficult. We urge you to partner more closely with 

the local and state agencies that are already working every day to ensure good water 

quality within our own back yards. (p. 1)

Agency Response: State, tribal, and local governments have well-defined and 

longstanding relationships with the Federal government in implementing CWA 

programs and these relationships are not altered by the final rule. Forty-six states 

and the U.S. Virgin Islands have been authorized by EPA to administer the NPDES 

program under section 402, and two states have been authorized by the EPA to

administer the section 404 program. All states and forty tribes have developed 

water quality standards under the CWA for waters within their boundaries. A 

federal advisory committee has recently been announced to assist states in 

identifying the scope of waters assumable under the section 404 program.

The scope of jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. In addition, the rule 

provides greater clarity regarding which waters are subject to CWA jurisdiction, 

reducing the instances in which permitting authorities, including the states and 

tribes with authorized section 402 and 404 CWA permitting programs, would need 

to make jurisdictional determinations on a case-specific basis.

In keeping with the spirit of Executive Order 13132 and consistent with the 

agencies’ policy to promote communications with state and local governments, the 

agencies consulted with state and local officials throughout the process and solicited 

their comments on the proposed action and on the development of the rule. For this 

rule state and local governments were consulted at the onset of rule development in 

2011, and following the publication of the proposed rule in 2014. In addition to 

engaging key organizations under federalism, the agencies sought feedback on this 

rule from a broad audience of stakeholders through extensive outreach to numerous 

state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule. Additional, the agencies have finalized the rule. See Summary Response, 

Preamble to the Final Rule Sections III and IV and Technical Support Document 

Sections I, II, VII, VIII and IX. See also Response to Comments Compendium 

Topic 5 – Significant Nexus, Introduction and summary response to comments 1, 2, 

3, 4, and 5. See also Response to Comments Compendium Topic 7 – Features and 
Clean Water Rule Response to Comments – Topic 1: General Comments 

54

Waters Not Jurisdictional, and Topic 13 – Process Concerns and Administrative 

Procedures.

Western Growers Association (Doc. #14130)

1.74 Western Growers also believes that the proposed rule should be withdrawn since the EPA 

and Corps have failed to properly engage and consult with state and local authorities in 

constructing this proposal. When Congress passed the Clean Water Act in the early 

1970’s, they clearly envisioned an active cooperation between the states and the federal 

government.12 (p. 7)

Agency Response: State, tribal, and local governments have well-defined and 

longstanding relationships with the Federal government in implementing CWA 

programs and these relationships are not altered by the final rule. Forty-six states 

and the U.S. Virgin Islands have been authorized by EPA to administer the NPDES 

program under section 402, and two states have been authorized by the EPA to

administer the section 404 program. All states and forty tribes have developed 

water quality standards under the CWA for waters within their boundaries. A 

federal advisory committee has recently been announced to assist states in 

identifying the scope of waters assumable under the section 404 program.

The scope of jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important

qualifiers on some existing categories such as tributaries. In addition, the rule 

provides greater clarity regarding which waters are subject to CWA jurisdiction, 

reducing the instances in which permitting authorities, including the states and 

tribes with authorized section 402 and 404 CWA permitting programs, would need 

to make jurisdictional determinations on a case-specific basis.

In keeping with the spirit of Executive Order 13132 and consistent with the 

agencies’ policy to promote communications with state and local governments, the 

agencies consulted with state and local officials throughout the process and solicited 

their comments on the proposed action and on the development of the rule. For this 

rule state and local governments were consulted at the onset of rule development in 

2011, and following the publication of the proposed rule in 2014. In addition to 

engaging key organizations under federalism, the agencies sought feedback on this 

rule from a broad audience of stakeholders through extensive outreach to numerous 

state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

 

12 33 U.S.C. § 1251(b). “It is the policy of Congress to recognize, preserve, and protect the primary responsibilities 

and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including 

restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the 

exercise of his authority under this chapter."
Clean Water Rule Response to Comments – Topic 1: General Comments 

55

State, Local, and County Governments for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule. Additional, the agencies have finalized the rule. See Summary Response, 

Preamble to the Final Rule Sections III and IV and Technical Support Document 

Sections I, II, VII, VIII and IX. See also Response to Comments Compendium 

Topic 5 – Significant Nexus, Introduction and summary response to comments 1, 2, 

3, 4, and 5. See also Response to Comments Compendium Topic 7 – Features and 

Waters Not Jurisdictional, and Topic 13 – Process Concerns and Administrative 

Procedures.

Kansas Agriculture Alliance (Doc. #14424)

1.75 Kansas landowners, by working with dedicated state officials with jurisdiction over water 

and conservation efforts, have developed a level of trust that has transcended 

gubernatorial administrations and lead to significant improvements in water quality. This 

has been accomplished through solid state legislation and regulation, applied in a 

common sense manner under the state’s water quality frameworks, which has received 

EPA approval. The top-down approach outlined in the proposed WOTUS rule will inhibit 

development of additional partnership activities by interjecting much uncertainty into 

determining where EPA/Corps jurisdiction ends and state authority begins. (p. 8)

Agency Response: State, tribal, and local governments have well-defined and 

longstanding relationships with the Federal government in implementing CWA 

programs and these relationships are not altered by the final rule. Forty-six states 

and the U.S. Virgin Islands have been authorized by EPA to administer the NPDES 

program under section 402, and two states have been authorized by the EPA to

administer the section 404 program. All states and forty tribes have developed 

water quality standards under the CWA for waters within their boundaries. A 

federal advisory committee has recently been announced to assist states in 

identifying the scope of waters assumable under the section 404 program.

The scope of jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. In addition, the rule 

provides greater clarity regarding which waters are subject to CWA jurisdiction, 

reducing the instances in which permitting authorities, including the states and 

tribes with authorized section 402 and 404 CWA permitting programs, would need 

to make jurisdictional determinations on a case-specific basis.

In keeping with the spirit of Executive Order 13132 and consistent with the 

agencies’ policy to promote communications with state and local governments, the 

agencies consulted with state and local officials throughout the process and solicited 

their comments on the proposed action and on the development of the rule. For this 

rule state and local governments were consulted at the onset of rule development in 

2011, and following the publication of the proposed rule in 2014. In addition to 

engaging key organizations under federalism, the agencies sought feedback on this 

rule from a broad audience of stakeholders through extensive outreach to numerous 

state and local government organizations. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

56

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule. Additional, the agencies have finalized the rule. See Summary Response, 

Preamble to the Final Rule Sections III and IV and Technical Support Document 

Sections I, II, VII, VIII and IX. See also Response to Comments Compendium 

Topic 5 – Significant Nexus, Introduction and summary response to comments 1, 2, 

3, 4, and 5. See also Response to Comments Compendium Topic 7 – Features and 

Waters Not Jurisdictional, and Topic 13 – Process Concerns and Administrative 

Procedures.

Missouri Soybean Association (Doc. #14986)

1.76 The proposed rule was a joint effort of the US EPA and the US Army Corp of Engineers 

(USACE). It’s important to note, that USACE staff do the vast majority jurisdictional 

determinations under this rule and are an integral part of this process. Of the meetings 

and outreach events conducted by the EPA, we are unaware of any event in which the 

USACE was present and engaged. They were certainly not present at any event involving 

Missouri agricultural stakeholders. It was often stated by EPA and the Corps was invited, 

but clearly little attempt was made at bringing them to the table. USACE’s absence is 

both puzzling and disappointing, especially considering that most interactions between 

property owners and regulators will be with the USACE staff as they implement the 

federal 404 dredge and fill program. The USACE must play a more active and engaged 

role in the public participation process. (p. 3)

Agency Response: This rule is a joint effort and reflects the conclusions of both 

agencies. The rule reflects significant input from stakeholders. The agencies are 

committed to continue working with stakeholders going forward. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule.

Jefferson Mining District (Doc. #15706)

1.77 Nothing relevant to the rule definition; however now clear as mud, regarding the 

jurisdiction and subsequent authority of Agency is unrelated directly to a commerce use 

of a water body the identification of which is said to have been established through tests 

asking whether the water body (1) is subject to the ebb and flow of the tide, (2) connects 

with a continuous interstate waterway, (3) has navigable capacity, and (4) is actually 

navigable, and then as determined pursuant to state law and proceedings; not any federal 

agency. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

57

It should be enough to say here, Agency lacks authority to enlarge this subject matter, 

notwithstanding that, by this the rule-making effort Agency is exposed in the settled 

commerce limitation as fabricating confusion, committing fraud and a misappropriation 

of federal funds. (p. 2)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I and II. See also Response to 

Comments Compendium Topic 5 – Significant Nexus, Introduction and summary 

response to comments 1, 2, 3, 4, and 5. 

Loup Basin Reclamation District, Farwell Irrigation District, Sargent Irrigation District, 

Nebraska (Doc. #16474)

1.78 The rule proposed by the agencies would expand federal jurisdiction over waters 

traditionally governed by individuals, localities, or the states. The agencies propose to 

categorically enlarge the definition of "waters of the United States" to include all 

tributaries—perennial, intermittent, and ephemeral—of those waters; all waters adjacent 

to traditionally navigable waters, including floodplains, riparian areas, and groundwater 

("waters with a shallow subsurface hydrologic connection . . . to a jurisdictional water"); 

and other waters with a significant nexus to navigable waters. The effect of this 

interpretation would potentially place natural features not traditionally considered waters 

under the purview of the CWA and federal regulators. (p. 1)

Agency Response: The scope of regulatory jurisdiction in this rule is narrower 

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations, in part 

because the rule puts important qualifiers on some existing categories such as 

tributaries. See Summary Response, Preamble to the Final Rule Sections III and IV 

and Technical Support Document Sections I, II, VII, VIII and IX. See also 

Response to Comments Compendium Topic 3 – Adjacent Waters, Topic 4 – Other 

Waters, Topic 5 – Significant Nexus, Introduction and summary response to 

comments 1, 2, 3, 4, and 5, Topic 7 – Features and Waters Not Jurisdictional and 

Topic 8 – Tributaries.

Wilkin County Farm Bureau (Doc. #19489)

1.79 The proposed regulation significantly broadens the scope of CWA jurisdiction beyond 

Congressional intent and Supreme Court decisions. The proposed rule fails to provide 

clarity or predictability, and raises practical concerns with how the rule will be 

implemented. On behalf of Wilkin County Farm Bureau members, these comments 

request that the agencies withdraw the proposed rule, consult with stakeholders, including 

Farm Bureau, and work to revise the proposed rule to make it workable and practical. (p. 

1)

Agency Response: The agencies have finalized the rule. The scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. See Summary Response, Preamble to the 

Final Rule Sections III and IV and Technical Support Document Sections I, II, VII, 
Clean Water Rule Response to Comments – Topic 1: General Comments 

58

VIII and IX. See also Response to Comments Compendium Topic 5 – Significant 

Nexus, Introduction and summary response to comments 1, 2, 3, 4, and 5. See also 

Response to Comments Compendium Topic 7 – Features and Waters Not 

Jurisdictional, and Topic 13 – Process Concerns and Administrative Procedures.

Ohio Pork Council (Doc. #19554)

1.80 We also request13 that EPA and the Corps withdraw the proposed rule on the Waters of 

the United States and begin to work closely with all affected stakeholders in a meaningful 

fashion to craft a narrowly tailored proposal that addresses actual verified CWA problems 

while minimizing its overreach and impact on farms. (p. 2)

Agency Response: The Agency has finalized the rule. The scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. The EPA held over 400 meetings with 

interested stakeholders, including representatives from states, tribes, counties, 

industry, agriculture, environmental and conservation groups, and others during 

the public comment period. 

In keeping with the spirit of Executive Order 13132 and consistent with the 

agencies’ policy to promote communications with state and local governments, the 

agencies consulted with state and local officials throughout the process and solicited 

their comments on the proposed action and on the development of the rule. 

For this rule state and local governments were consulted at the onset of rule 

development in 2011, and following the publication of the proposed rule in 2014. In 

addition to engaging key organizations under federalism, the agencies sought 

feedback on this rule from a broad audience of stakeholders through extensive 

outreach to numerous state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule.

See Summary Response, Preamble to the Final Rule Sections III and IV and 

Technical Support Document Sections I, II, VII, VIII and IX. See also Response to 

Comments Compendium Topic 5 – Significant Nexus, Introduction and summary 

 

13 In addition to these comments, we also urge EPA and the Corps to review and consider the numerous

points raised in the various comments that have also been submitted by pork producers and other agricultural groups

including the National Pork Producers Council’s direct comments, the comments of the large agricultural coalition

led by the American Farm Bureau Federation, the comments of the Waters Advocacy Coalition, and the US

Chamber of Commerce.
Clean Water Rule Response to Comments – Topic 1: General Comments 

59

response to comments 1, 2, 3, 4, and 5, Topic 7 – Features and Waters Not 

Jurisdictional, and Topic 13 – Process Concerns and Administrative Procedures.

Chicken & Egg Association of Minnesota (Doc. #19584)

1.81 In seeking comments, the agencies note that “significant resources are being allocated” to 

determinations by regulators as a result of confusion and uncertainty to the regulated 

public, and that “significant public involvement and engagement” will be required to 

provide the intended level of certainty and predictability. We have significant concerns 

about the agencies expectations relative to these issues. (p. 2)

Agency Response: In the final rule, the agencies are responding to requests from 

across the country to make the process of identifying waters protected under the 

CWA easier to understand, more predictable, and more consistent with the law and 

peer-reviewed science. In fact, providing greater clarity regarding what waters are 

subject to CWA jurisdiction will reduce the need for permitting authorities, 

including states with authorized section 402 and 404 CWA permitting programs, to 

make jurisdictional determinations on a case-specific basis. 

The EPA held over 400 meetings with interested stakeholders, including 

representatives from states, tribes, counties, industry, agriculture, environmental 

and conservation groups, and others during the public comment period. 

In keeping with the spirit of Executive Order 13132 and consistent with the 

agencies’ policy to promote communications with state and local governments, the 

agencies consulted with state and local officials throughout the process and solicited 

their comments on the proposed action and on the development of the rule. 

For this rule state and local governments were consulted at the onset of rule 

development in 2011, and following the publication of the proposed rule in 2014. In 

addition to engaging key organizations under federalism, the agencies sought 

feedback on this rule from a broad audience of stakeholders through extensive 

outreach to numerous state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule.

Iowa Poultry Association (Doc. #19589)

1.82 The Courts have been called upon in the past to restrict the federal agencies from painting 

the jurisdiction of the CWA with too broad a stroke, this proposed rule that is unclear, 

ambiguous and ignores all previously court imposed limitations and underlying 

congressional intent of the CWA is an invitation for additional and massive litigation to 

determine the applicable scope of the CWA and the agencies authority. (p. 3)
Clean Water Rule Response to Comments – Topic 1: General Comments 

60

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I, II, VII, VIII and IX. See 

also Response to Comments Compendium Topic 5 – Significant Nexus, Introduction 

and summary response to comments 1, 2, 3, 4, and 5. 

Clearwater Watershed District; et al. (Doc. #9560.1)

1.83 We feel that the agencies continue to consistently release rules on what the agencies want 

the Clean Water Act to say, but not what Congress intended or what Congress has 

demonstrated it is not willing to expand the Act to say.14 (p. 2)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I, II, VII, VIII and IX. See 

also Response to Comments Compendium Topic 5 – Significant Nexus, Introduction 

and summary response to comments 1, 2, 3, 4, and 5. 

Westlands Water District (Doc. #14414)

1.84 The Clean Water Act regulates the “discharge of a pollutant” into waters subject to 

federal jurisdiction, and the phrase “discharge of a pollutant” is defined as the discharge 

of a pollutant into waters of the United States from any “point source.” 33 U.S.C.§§ 

402(a), 404, 1362(12), -(16). The Act defines “point source” as including ditches and 

other conveyances that are part of the nation’s water supply, waste treatment, 

transportation and flood control systems. Thus, the Act regulates these sources at the 

point of discharge into the waters of the United States, rather than after the discharge into 

such waters. The Proposed Rule in its current form conflicts with the plain text of the 

Clean Water Act by providing for federal regulation of point sources even after the 

discharges. (p. 12)

Agency Response: The final rule does not establish any new 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. Previous definitions of “waters of the United States” 

regulated all tributaries without qualification. This final rule more precisely defines 

“tributaries” as waters that are characterized by the presence of physical indicators 

of flow – bed and banks and ordinary high water mark – and that contribute flow 

directly or indirectly to a traditional navigable water, an interstate water, or the 

territorial seas. The rule concludes that such tributaries are “waters of the United 

States.” The great majority of tributaries as defined by the rule are headwater 

streams that play an important role in the transport of water, sediments, organic 

matter, nutrients, and organisms to downstream waters. The physical indicators of 

bed and banks and ordinary high water mark demonstrate that there is sufficient 

volume, frequency and flow in such tributaries to a traditional navigable water, 

 

14 As an example of the lack of support for this current proposed rule, in 2007 Representative Oberstar introduced 

the Clean Water Restoration Act of 2007 (H .R. 2421) to the Transportation and Infrastructure Committee, 

proposing to define "navigable waters" similar to the U.S. EPA and Army Corps proposed rule here. The proposed 

bill failed to find enough support to make it out of the Committee.
Clean Water Rule Response to Comments – Topic 1: General Comments 

61

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. 

The agencies identify functions in the definition of “significant nexus” at paragraph 

(c)(5) characteristic of a water functioning as a tributary. Features not meeting 

this legal and scientific test are not jurisdictional under this rule. The rule continues 

the current policy of regulating ditches that are constructed in tributaries or are 

relocated tributaries or, in certain circumstances drain wetlands, or that science 

clearly demonstrates are functioning as a tributary. These jurisdictional by rule 

waters affect the chemical, physical, and biological integrity of downstream waters. 

The rule further reduces existing confusion and inconsistency regarding the 

regulation of ditches by explicitly excluding certain categories of ditches, such as 

ditches that flow only after precipitation. Further, the rule explicitly excludes 

erosional features, including gullies, rills, and ephemeral features such as ephemeral 

streams that do not have a bed and banks and ordinary high water mark.

Santa Clara Valley Water District (Doc. #14476)

1.85 The Proposed Rule should not be internally inconsistent, and should not be inconsistent 

with the regulations and actions applied to wastewater discharges. For example, the 

Proposed Rule excludes groundwater in many sections (as it should), but groundwater is 

not excluded when jurisdiction is defined by shallow subsurface hydrologic connections. 

Neighboring and riparian areas use subsurface hydrologic connections to determine 

adjacent waters. Erosion features (e.g., gullies, rills, swales, ditches) are excluded, but yet 

considered connections in different sections of the Proposed Rule. There should not be 

contradictions in a final rule. (p. 2)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I and II. The rule expressly 

indicates in paragraph (b) that groundwater, including groundwater drained 

through subsurface drainage systems is excluded from the definition of “waters of 

the United States.” While groundwater is excluded from jurisdiction, the agencies 

recognize that the science demonstrates that waters with a shallow subsurface 

connection to jurisdictional waters can have important effects on downstream 

waters. When assessing whether a water evaluated in (a)(7) or (a)(8) performs any 

of the functions identified in the rule’s definition of significant nexus, the significant 

nexus determination can consider whether shallow subsurface connections 

contribute to the type and strength of functions provided by a water or similarly 

situated waters. However, neither shallow subsurface connections nor any type of 

groundwater are themselves “waters of the United States.” The agencies understand 

that there is a continuum of water beneath the ground surface, from wet soils to 

shallow subsurface lenses to shallow aquifers to deep groundwaters, all of which can 

have impacts to surface waters, but for significant nexus purposes under this 

rule, the agencies have chosen to focus on shallow subsurface connections because 

those are likely to both have significant and near-term impacts on downstream 

surface waters and are reasonably identifiable for purposes of rule implementation.
Clean Water Rule Response to Comments – Topic 1: General Comments 

62

The Fertilizer Institute (Doc. #14915)

1.86 If these new WOTUS do not have viable aquatic life habitats that support fish or shellfish 

used for consumption, the exposure route upon which the human health criteria are based 

does not exist for these waters, and these criteria should not apply to such waters. Finally, 

carcinogenic human health criteria should not apply in these waters because the duration 

of exposure does not apply to ephemeral waters. (p. 10)

Agency Response: The final rule does not establish water quality criteria for 

specific water bodies. 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. 

Utility Water Act Group (Doc. #15016)

1.87 None of the three categories of Congress’ commerce power supports the breadth of the 

Proposed Rule. The Proposed Rule would reach numerous features that are not (1) 

“channels of interstate commerce” or (2) “instrumentalities of interstate commerce,” and, 

indeed, that (3) do not involve substantial effects on interstate commerce. See United 

States v. Lopez, 514 U.S. 549, 558-59 (1995). Most of the ditches and ponds the proposal 

would convert to WOTUS have nothing to do with Congress’ regulation of interstate, 

tribal, or foreign commerce. (p. 44)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I, II, VII, VIII and IX. See 

also Response to Comments Compendium Topic 5 – Significant Nexus, Introduction 

and summary response to comments 1, 2, 3, 4, and 5. See also Compendium Topic 6 

– Ditches, Topic 7 – Features and Waters Not Jurisdictional, and Topic 8 –

Tributaries.

Colorado River Water Conservation District (Doc. #15070)

1.88 Text and tables comparing the current jurisdictional status of waters and wetlands with 

how would change under the proposed rule would help the reader better understand the 

proposed rule changes. (p. 3)

Agency Response: Thank you for your suggestion. The scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. In preparing responses to the comments 

received, the agencies have addressed specific categories of water in greater depth 

through narratives in individual compendiums. 

San Diego County Water Authority, California (Doc. #15089)

1.89 It is important to draw a distinction of which water should be regulated at the Federal 

level and where it is more appropriate to regulate at the State level. It was not the intent 

of Congress to bring all planning and development of land and water in the United States 

under Federal control. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

63

The Clean Water Act Section 102(g) states: 

“It is the policy of Congress that the authority of each State to allocate quantities 

of water within its jurisdiction shall not be superseded, abrogated or otherwise 

impaired by this Act. It is the further policy of Congress that nothing in this Act 

shall be construed to supersede or abrogate rights to quantities of water which 

have been established by any State. Federal agencies shall co-operate with State 

and local agencies to develop comprehensive solutions to prevent, reduce and 

eliminate pollution in concert with programs for managing water resources.” 

There are four key areas of concern to us where the proposed new definition of waters of 

the United States includes jurisdiction over water supply in a manner that: expands the 

Federal authority into areas that should be regulated by the States; interferes with the 

ability of water suppliers to develop, manage and operate water system facilities and 

water supplies; and impairs the state and local entities’ ability to ensure adequate quality 

and quantity of water to meet water demands for a healthy environment and economy. 

These areas of concern include: operation and management of local man-made reservoirs 

that are isolated or lack a significant nexus to waters of the United States within the 

watershed where they are located; the development of recycled water supplies; 

development of groundwater storage; the ability to encourage comprehensive watershed 

management through the use of wetlands treatment systems and green infrastructure to 

protect water quality in local reservoirs; and the expansion of the definition to include 

aqueducts, canals, channels and pipelines. (p. 2-3)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I, II, VII, VIII and IX. See 

also Response to Comments Compendium Topic 5 – Significant Nexus, Introduction 

and summary response to comments 1, 2, 3, 4, and 5. See also Compendium Topic 6 

– Ditches, Topic 7 – Features and Waters Not Jurisdictional, and Topic 8 –

Tributaries. Section 101(g) of the CWA states, “It is the policy of Congress that the 

authority of each State to allocate quantities of its water within its jurisdiction shall 

not be superseded, abrogated or otherwise impaired by [the CWA and] that nothing 

in [the CWA] shall be construed to supersede or abrogate rights to quantities of 

water which have been established by any State.” Similarly, Section 510(2) provides 

that nothing in the Act shall “be construed as impairing or in any manner affecting 

any right or jurisdiction of the States with respect to the waters . . . of such States.” 

The rule is entirely consistent with these policies. The rule does not impact or 

diminish State authorities to allocate water rights or to manage their water 

resources. Nor does the rule alter the CWA’s underlying regulatory process. 

Having been enacted with the objective of restoring and maintaining the chemical, 

physical, and biological integrity of our nation’s waters, the CWA serves to protect 

water quality. Neither the CWA nor the rule impairs the authorities of States to 

allocate quantities of water. Instead, the CWA and the rule serve to enhance the 

quality of the water that the States allocate. See Technical Support Document 

Section I for further discussion including regarding Jefferson County v. Washington 

Dept. of Ecology, 511 U.S. 700 (1994).
Clean Water Rule Response to Comments – Topic 1: General Comments 

64

Association of Metropolitan Water Agencies et al. (Doc. #15157)

1.90 Contemporaneously with publication of the final rule, the EPA and Corps should issue 

guidance incorporating photographs to illustrate definitions and thereby provide clarity 

for regulatory staff, regulated entities, and the public. Such guidance can also provide 

additional clarity to the regulatory text by conveying generally understood conventions 

for delineating WOTUS. Such conventions can speed and provide nationwide 

consistency in implementation. (p. 3)

Agency Response: The agencies may later decide that guidance for making casespecific significant nexus determinations would be useful for agency staff and the 

public. While the agencies may choose to seek public comment on any such 

guidance, that is not required by the Administrative Procedure Act.

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

1.91 The Proposed Rule would create confusion and uncertainty among the regulated 

community in Pennsylvania because the terminology and activities regulated under the 

Proposed Rule would differ from those regulated under Pennsylvania law: For example, 

since in the 1980's, the PADEP and the Pennsylvania Fish and Boat Commission have 

defined a stream as having a defined bed, bank and substrate with at least two biotic taxa 

that require an aquatic habitat for at least part of their life cycle. This definition serves to 

regulate both perennial and intermittent streams in Pennsylvania. Under the Proposed 

Rule, the definition of a tributary is broader than the accepted state definition of a stream. 

Therefore, ephemeral waters would be jurisdictional under federal, but not state 

regulations. As a further example, Pennsylvania defines both floodways and floodplains 

and has enacted regulatory requirements for each.15 Unlike the subjective definition of a 

floodplain set forth in the Proposed Rule, these Pennsylvania definitions provide "bright 

line" tests for the boundaries of these features that are ~tied to FEMA mapping, 100-year 

flood events and/or a specified distance from a stream bank. Therefore, it is possible that 

an area may be considered to be a floodplain under one regulatory program, but not the 

other. (p. 12)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I, II, VII, VIII and IX. See 

also Response to Comments Compendium Topic 3 – Adjacent Waters, Topic 4 

Other Waters, Topic 5 – Significant Nexus, and Topic 8 Tributaries.

Interstate Council on Water Policy (Doc. #15397)

1.92 We believe your agencies need to establish an alternative rulemaking procedure that 

respects the sovereign and co-regulator status of the states.

 

15 Under 25 Pa. Code ~ 166.1, a floodplain is defined as "the 100-year floodway and [hat maximum area of land that 

is likely to be flooded by a 100-year flood as shown on the floodplain maps approved or promulgated by FEMA," 

and a floodway is defined as "the channel of the watercourse and those portions of the adjoining floodplains which 

are reasonably required to carry and discharge the 100-year flood. The boundary of the 100-year floodway is as 

indicated on the maps and flood insurance studies provided by FEMA. In an area where no FEMA maps or studies 

have defined the boundary of the floodway, it is assumed, absent evidence to the contrary, that the floodway extends 

from the stream to 50 feet landward from the top of the bank of the stream."
Clean Water Rule Response to Comments – Topic 1: General Comments 

65

We don’t presume that such an alternative will be simple or straight-forward, but we are 

willing to help design and refine a procedure for any such federal rulemaking that so 

clearly affects the sovereign authorities, compact and delegated responsibilities, budgets 

and executive functions of the states. (p. 1)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I and II. Thank you for your 

suggestion. For the reasons explained in the preamble, the agencies consider the rule 

to be consistent with the agencies’ authority and have finalized the rule. See 

Response to Comments Compendium Topic 13 – Process Concerns and 

Administrative Procedures.

State, tribal, and local governments have well-defined and longstanding 

relationships with the Federal government in implementing CWA programs and 

these relationships are not altered by the final rule. Forty-six states and the U.S. 

Virgin Islands have been authorized by EPA to administer the NPDES program 

under section 402, and two states have been authorized by the EPA to administer 

the section 404 program. All states and forty tribes have developed water quality 

standards under the CWA for waters within their boundaries. A federal advisory 

committee has recently been announced to assist states in identifying the scope of 

waters assumable under the section 404 program.

The scope of jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. In addition, the rule 

provides greater clarity regarding which waters are subject to CWA jurisdiction, 

reducing the instances in which permitting authorities, including the states and 

tribes with authorized section 402 and 404 CWA permitting programs, would need 

to make jurisdictional determinations on a case-specific basis.

The EPA held over 400 meetings with interested stakeholders, including 

representatives from states, tribes, counties, industry, agriculture, environmental 

and conservation groups, and others during the public comment period. In keeping 

with the spirit of Executive Order 13132 and consistent with the agencies’ policy to 

promote communications with state and local governments, the agencies consulted 

with state and local officials throughout the process and solicited their comments on 

the proposed action and on the development of the rule. 

For this rule state and local governments were consulted at the onset of rule 

development in 2011, and following the publication of the proposed rule in 2014. In 

addition to engaging key organizations under federalism, the agencies sought 

feedback on this rule from a broad audience of stakeholders through extensive 

outreach to numerous state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 
Clean Water Rule Response to Comments – Topic 1: General Comments 

66

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule. 

Association of Fish and Wildlife Agencies (Doc. #15399)

1.93 Sufficient amounts of clean water and natural flows are needed to sustain healthy and 

abundant fish and wildlife populations as well as to support habitat integrity. Indeed, 

clean water is foundational to species abundance, recovery (if threatened or listed under 

federal or state endangered species laws) and sustainable, regulated use. Therefore, it is 

important that your agencies consider and integrate fish and wildlife considerations into 

the proposed rule, and we encourage you to reach out to state fish and wildlife agencies 

directly to minimize adverse, unintended consequences. (p. 1)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I and II. See also Response to 

Comments Topic 5 – Significant Nexus and Topic 9 – Science for a discussion of the 

consideration of biological connectivity in a significant nexus analysis.

Eastern Municipal Water District (Doc. #15409)

1.94 It is absolutely critical and a fundamental responsibility of the Agencies to clarify in the 

rule the full regulatory implications of water being designated as waters of the U.S. (p. 6)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I and II. 

Oregon Water Resources Congress (Doc. #15488)

1.95 If the intent of the agencies is to keep intact current CWA definitions and practices, while 

providing more clarity, we would like to reiterate our request that RGL 07-02 be fully 

integrated into the current proposed rulemaking, and preclude it from somehow being 

superseded by adoption of the proposed rule. This guidance was the subject of many 

years of input and consideration, and provides clarity for our members in regard to 

permitting, which the rule as currently proposed does not. It is critical for our members 

that definitions and guidance provided within RGL 07-02 remain effective and intact. (p. 

3)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I and II. Regulatory 

Guidance Letter (RGL) 07-02 provides guidance intended to clarify certain 

statutory permitting exemptions under CWA § 404(f). The rule does not make any 

changes to these statutory exemptions.

Lower Arkansas Valley Water Conservancy District (Doc. #15767)

1.96 The statement that "The agencies propose ... no change to the regulatory status of water 

transfers" appears multiple times in the Preamble of the proposed rule. EPA's Water 

Transfers Rule exclude s any "activity that conveys or connects waters of the United 

States without subjecting the transferred water to intervening industrial, municipal , or 

commercial use" from the National Pollutant Discharge Elimination System ("NPDES") 

created by CWA. The Water Transfers Rule does not define "waters of the United 
Clean Water Rule Response to Comments – Topic 1: General Comments 

67

States," although EPA relied on one of the definitions the agencies propose to change in 

the proposed rule. In addition to the statements in the Preamble, the final rule should 

expressly state in the text of the Code of Federal Regulations that it does not change the 

regulatory status of water transfers. (p. 3)

Agency Response: The final rule does not change the status of water transfers. 

See Preamble to the Final Rule.

Association of Electronic Companies of Texas, Inc. (Doc. #16433)

1.97 AECT requests that the EPA explain whether it has considered the ramifications that the 

Proposed Rule would have in cases where compliance with any of the EPA' s new, more 

stringent air emission limitations would impact a land or water feature that would be a 

WOTUS under the Proposed Rule but not under existing rules. (p. 3)

Agency Response: This comment is outside the scope of the rule because it relates 

to air regulation rather than the definition of “waters of the United States” The final 

rule does not establish any new programmatic 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. 

Texas Water Development Board (Doc. #16563)

1.98 The proposed rule will affect every state differently given the considerable differences in 

the hydrology, geography, and legal frameworks of the various states. In turn, each state 

has its own, unique perspective about the substance of the proposed rule, and the degree 

to which each state may support or oppose the rule and its specific provisions will vary. 

These differences underscore the need for the EPA and the Corps to conduct substantive 

consultation with each of the individual states in the development and implementation of 

this or any other proposed rule regarding CWA jurisdiction. (p. 2)

Agency Response: In keeping with the spirit of Executive Order 13132 and 

consistent with the agencies’ policy to promote communications with state and local 

governments, the agencies consulted with state and local officials throughout the 

process and solicited their comments on the proposed action and on the 

development of the rule. For this rule state and local governments were consulted at 

the onset of rule development in 2011, and following the publication of the proposed 

rule in 2014. In addition to engaging key organizations under federalism, the 

agencies sought feedback on this rule from a broad audience of stakeholders 

through extensive outreach to numerous state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

68

Alliant Energy Corporate Services, Inc. (Doc. #18791)

1.99 Clarify what "designed to meet Clean Water Act requirements" means. (p. 4)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I and II.

Associated Industries of Florida (Doc. #19325)

1.100 Before the close of the comment period, the Agencies should work nationally with each 

interested state to develop a "before and after" comparison of jurisdictional coverage 

under the rule and explore potential alternatives to the one-size-fits-all approach in the 

existing rule. If, as the Agencies suggest, there will only be a 3.2% increase in 

jurisdictional waters, the opportunity provided by this comparison should be welcomed. 

(p. 3)

Agency Response: During the public comment period, the agencies met multiple 

times with many state groups to discuss implications of the proposal, including such 

organizations as the Association of Clean Water Administrators (ACWA), 

Association of State Wetlands Managers (ASWM), and the Environmental Council 

of the States (ECOS), among others. We also participated in over 400 meetings with 

interested stakeholders, which often included representatives of the states. These 

discussions typically explored potential effects on the scope of jurisdiction, and ways 

in which the definitional approach could incorporate regionalized elements. The 

scope of jurisdiction in this rule is narrower than that under the existing regulation. 

Fewer waters will be defined as “waters of the United States” under the rule than 

under the existing regulations, in part because the rule puts important qualifiers on 

some existing categories such as tributaries. See Summary Response, Preamble to 

the Final Rule Sections III and IV and Technical Support Document Sections I and 

II.

Texas Conservative Coalition (Doc. #14528)

1.101 The current proposal would expand the EPA’s authority to regulate almost any body of 

water of any kind. For instance, it includes artificial ponds created to water livestock, 

swimming pools created by excavating dry land, ornamental waters created for aesthetic 

purposes, water--‐filled depressions created incidental to construction activity, and many 

others. 

Despite the EPA’s public statements that the proposed rule does not drastically expand its 

authority, there is evidence to the contrary. If the text of the rule is not evidence enough, 

the maps uncovered by the Science, Space, and Technology Committee in July are 

particularly revealing. Committee investigations uncovered EPA maps of waters and 

wetlands in all 50 states. Committee Chairman Lamar Smith expressed his alarm in an 

August 27, 2014 letter to your office: 

These maps show the EPA’s plan: to control a huge amount of private property across the 

country. Given the astonishing picture they paint, I understand the EPA’s desire to 

minimize the importance of these maps. But the EPA’s posturing cannot explain away the 

alarming content of these documents.
Clean Water Rule Response to Comments – Topic 1: General Comments 

69

...

You claim that the EPA has not yet used these maps to regulate. . . . While the agency 

marches forward with a rule that could fundamentally re--‐define Americans’ private 

property rights, the EPA kept these maps hidden.

...

Serious questions remain regarding the EPA’s underlying motivations for creating such 

highly detailed maps. The maps were created just days after the EPA announced the rule 

and show its sweeping scope. The EPA’s job is to regulate. The maps must have been 

created with this purpose in mind. (p. 2)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I and II. Because the agencies 

generally only conduct jurisdictional determinations at the request of individual 

landowners, we do not have maps depicting the geographic scope of the CWA. Such 

maps do not exist and the costs associated with a national effort to develop them are 

cost prohibitive and would require access to private property across the country.

The U.S. Geological Survey and the U.S. Fish and Wildlife Service collect 

information on the extent and location of water resources across the country and 

use this information for many non-regulatory purposes, including characterizing the 

national status and trends of wetlands losses. This data is publicly available and 

EPA has relied on USGS and USFWS information to characterize qualitatively the 

location and types of national water resources. This information is depicted on 

maps but not for purposes of quantifying the extent of waters covered under CWA 

regulatory programs.

Black Hills Regional Multiple Use Coalition (Doc. #14920)

1.102 The proposed rule goes far beyond “clarifying” the scope of the Clean Water Act (CWA), 

and would, in fact, broadly expand the types of waters that would be subject to federal 

permitting requirements and limits to their use. The proposed rule includes a complicated 

set of regulatory definitions, including new and poorly defined terms, based on 

ambiguous and untested legal theories and regulatory exclusions. The result is a proposal 

that expands the scope of waters protected under the CWA to include intermittent and 

ephemeral streams that do not even run year-round, ponds, and road ditches. This would 

trigger additional permitting and regulatory requirements for private and federal lands, 

increase costs for all landowners, and reduce the ability of federal agencies to manage 

federal lands under their jurisdiction.

The proposed rule asserts jurisdiction over waters, including many ditches, conveyances, 

isolated waters, and other waters, that were previously under the jurisdiction of the states. 

The rule asserts that most waters categorically have a “significant nexus” to traditional 

navigable waters and then provides a catch-all category to sweep in any remaining waters 

by allowing the EPA or the Corps to establish a “significant nexus” on a case by case 

basis. The criteria for establishing a significant nexus is very low and equally 

ambiguous—“more than speculative or insubstantial effect...”. The result will increase 

federal control over water and land, subjecting activities that might impact these areas to 

more complicated and layered reviews and potential citizen suits. (p. 1-2)
Clean Water Rule Response to Comments – Topic 1: General Comments 

70

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I, II, VII, VIII and IX. See 

also Response to Comments Compendium Topic 5 – Significant Nexus, Introduction 

and summary response to comments. See also Compendium Topic 6 – Ditches, 

Topic 7 – Features and Waters Not Jurisdictional, and Topic 8 – Tributaries.

1.103 Many questions remain about the definitions used in the proposal and the impacts to most 

CWA programs, leaving these to become known only after the proposed rule is finalized 

and implementation begins. (p. 2)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document.

Guardians of the Range (Doc. #14960)

1.104 Its intended federal jurisdiction extends to cover every water in the Nation. There are so 

few exemptions to this rule that it is clear its adoption and implementation would have 

transformative impacts on the nation. The Supreme Court has already spoken to such 

actions by federal agencies. Utility Air Regulatory Group v. Environmental Protection 

Agency, 573 U.S.____2014. The court held that the EPA's interpretation of its reach 

was unreasonable because it would bring about an enormous and transformative 

expansion in EPA's regulatory authority without clear congressional authorization. This is 

the same intent and purpose of this proposed rulemaking. (p. 1)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I and II. The scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries.

The final rule does not establish any new 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.

Black Warrior Riverkeeper, Inc. (Doc. #15090)

1.105 We believe the proposed rule largely succeeds in its goal of clarifying language aimed at 

protection of the nation’s public health and aquatic resources. By defining what are 

“waters of the United States” protected by the Act, the rule promotes sorely needed CWA 

program predictability and consistency. The proposal also reflects the Supreme Court’s 

reading of jurisdiction under the CWA and is based on sound science that recognizes the 

important role played by headwaters, wetlands, and seasonal streams in maintaining 

water quality.16 For all stakeholders, the proposed rule clearly identifies which bodies of 

 

16 In conjunction with the developed of the proposed rule, EPA’s Office of Research and Development (ORD) 

prepared a peer-reviewed synthesis of published peer-reviewed scientific literature discussing the nature of 

connectivity and effects of streams and wetlands on downstream waters. See generally Connectivity of Streams and 

Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence. According to the ORD 

Report, the scientific literature “clearly demonstrates” that streams, regardless of their size or how frequently they 
Clean Water Rule Response to Comments – Topic 1: General Comments 

71

water are subject to the CWA’s jurisdiction. Finally, the rule is appropriately drawn to 

reflect the intent of Congress in enacting the Clean Water Act to restore and maintain the 

biological, chemical, and physical integrity of our water resources. (p. 1)

Agency Response: The final rule reflects the judgment of the agencies in 

balancing the science, the agencies’ expertise, and the regulatory goals of providing 

clarity to the public while protecting the environment and public health, consistent 

with the law. See Summary Response, Preamble to the Final Rule Sections III and 

IV and Technical Support Document Sections I and II regarding the provisions of 

the final rule.

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

Raritan Riverkeeper (Doc. #15360)

1.106 Finally, it is important that the Agencies make clear to the Regions and Districts that the 

plain language of the Waters of the United States rule is meant to apply broadly. Water 

quality ought not continue to degrade because Regions and Districts are afraid to exert 

jurisdiction over clearly jurisdictional waters such as the above referenced wetland in 

Carteret. The Agencies must continually reinforce to the Regions and Districts that their 

primary mission is to restore and maintain the chemical, physical, and biological integrity 

of the Nation’s waters. It is the Agencies’ duty to protect these waters as far as the law 

will allow. (p. 15-16)

Agency Response: The final rule reflects the judgment of the agencies in 

balancing the science, the agencies’ expertise, and the regulatory goals of providing 

clarity to the public while protecting the environment and public health, consistent 

with the law. See Summary Response, Preamble to the Final Rule Sections III and 

IV and Technical Support Document Sections I and II regarding the provisions of 

the final rule.

Green Dining Alliance (Doc. #15700)

1.107 Senator Blunt and other conservatives have painted the proposed Clean Water Protection 

Rule as “egregious government overreach” that threatens the livelihoods of Missouri 

businesses and farmers. Representing a collection of businesses in the St. Louis Metro 

area that are responsible for employing over 1000 Missourians and sourcing thousands of 

pounds of local farmers’ products per week, the GDA can definitively say that this is 

untrue. In fact, we find the opposite to be true. Clean water not only protects our families, 

but our businesses as well. The food service industry must have access to reliable, safe, 

clean water. (p. 1)

Agency Response: The final rule reflects the judgment of the agencies in 

balancing the science, the agencies’ expertise, and the regulatory goals of providing 

clarity to the public while protecting the environment and public health, consistent 

with the law. See Summary Response, Preamble to the Final Rule Sections III and 

 

flow, strongly influence how downstream waters function and that streams and wetlands “act as the most effective 

buffer to protect downstream waters from pollution, provide habitat for aquatic life, and retain floodwaters, 

sediment, nutrients, and contaminants that could otherwise influence downstream waters.”
Clean Water Rule Response to Comments – Topic 1: General Comments 

72

IV and Technical Support Document Sections I and II regarding the provisions of 

the final rule.

Red River Valley Association (Doc. #16432)

1.108 In May 2014 a bipartisan group of 231 House members signed a letter for the agencies to 

withdraw this Proposed Rule. On May 2013, after issuance of the draft guidance, 52 

Senators voted on an amendment to prohibit the agencies from implementing the 

guidance as a basis for any proposed rule. On September 9, 2014, the House passed (262-

152) H.R. 5078, the Waters of the United States Regulatory Overreach Protection Act of 

2014, a bipartisan bill to prohibit the Corps and EPA from finalizing the Proposed Rule. 

The obvious intent of both Houses of Congress is in opposition to this Proposed Rule. (p. 

3)

Agency Response: The agencies have finalized the rule. The scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. See Summary Response, Preamble to the 

Final Rule Sections III and IV and Technical Support Document Sections I and II 

regarding the provisions of the final rule.

Connecticut River Watershed Council (Doc. #16456)

1.109 Overall we find the rule to be a rightful restoration of protection to many of the public’s 

waters. The rule is presented in way that improves clarity and reduces opportunities for 

misunderstanding the extent of jurisdiction. This regulation fairly interprets existing law 

and provides ample scientific basis for proposed wording of both “waters of the U.S.” as 

well as “other waters.” We harbor no illusions that this rule will set to rest debates about 

what is or is not jurisdictional, however it significantly improves the current definition by 

carefully building on the various and sometimes confounding Supreme Court decisions. 

(p. 1)

Agency Response: The final rule reflects the judgment of the agencies in 

balancing the science, the agencies’ expertise, and the regulatory goals of providing 

clarity to the public while protecting the environment and public health, consistent 

with the law. See Summary Response, Preamble to the Final Rule Sections III and 

IV and Technical Support Document Sections I and II regarding the provisions of 

the final rule.

Save the Illinois River, Inc. (Doc. #16462)

1.110 While the proposal is pending, and afterwards, we ask you to increase your efforts on 

TMDLs and non-point source pollution because these two elements greatly affect our 

waters today. (p. 1)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 
Clean Water Rule Response to Comments – Topic 1: General Comments 

73

the United States” consistent with the Clean Water Act (CWA), Supreme Court 

precedent, and science. While TMDLs and non-point sources of pollution are 

outside the scope of this rule, EPA continues to work to restore and maintain the 

chemical, physical, and biological integrity of the Nation’s waters through these two 

programs.

Arkansas Wildlife Federation (Doc. #16493)

1.111 AR sportsmen have long realized need to clarify "Waters of the United States" through 

Rulemaking. And this Process is a remarkable opportunity to do so to the benefit of all. It 

substantially reduces the current nightmare of CWA implementing uncertainty and 

annual Court challenges among Federal, State, Counties, riverside communities, private 

landowners, Levee Districts and recreational users of navigable waters... [ ] Moreover 

COE, EPA staff, State Agencies, water users and sportsmen deserve legal certainty of our 

current jurisdictional mix of authorities and navigational boundaries, which are largely 

inconsistently interpreted among local, state and federal agencies. The Rule corrects this 

uncertainty. (p. 1)

Agency Response: The final rule reflects the judgment of the agencies in 

balancing the science, the agencies’ expertise, and the regulatory goals of providing 

clarity to the public while protecting the environment and public health, consistent 

with the law. See Summary Response, Preamble to the Final Rule Sections III and 

IV and Technical Support Document Sections I and II regarding the provisions of 

the final rule.

Greater Fort Bend Economic Development Council (Doc. #18009)

1.112 We believe the proposed rulemaking is an unnecessary and an unjustified attempt to 

extend federal government oversight over every form of water in the United States and 

every piece of land development in the United States with very few exceptions; (2) We 

believe this effort is an end run of the past two Supreme Court decisions concerning the 

Clean Water Act that curtailed the jurisdiction of federal oversight in this matter and 

contravenes the intent of those decisions; (3) This rulemaking makes no mention or even 

reference to the constitutional basis under which such federal regulatory power exists. 

Such matters remains in question as prior rulings before the Supreme Court have 

seemingly only dealt with the statutory, not the constitutional basis for federal regulation. 

(p. 2)

Agency Response: The scope of regulatory jurisdiction in this rule is narrower 

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations, in part 

because the rule puts important qualifiers on some existing categories such as 

tributaries. See Summary Response, Preamble to the Final Rule Sections III and IV 

and Technical Support Document Sections I and II. See also Response to 

Comments Compendium Topic 5 – Significant Nexus, Introduction and summary 

response to comments 1, 2, 3, 4, and 5. 

Coalition for the Delaware River Watershed (Doc. #18832)

1.113 The proposed rule contains many important clarifications that we support, including:
Clean Water Rule Response to Comments – Topic 1: General Comments 

74

• Defining the term "tributary,"

• Affirming that waters of the U.S. categorically include all tributaries to traditionally 

navigable Waters and interstate waters

• Defining "neighboring" as it relates to "adjacency" for wetlands and other waterbodies 

such as lakes or ponds. (p. 2)

Agency Response: The final rule reflects the judgment of the agencies in 

balancing the science, the agencies’ expertise, and the regulatory goals of providing 

clarity to the public while protecting the environment and public health, consistent 

with the law. See Summary Response, Preamble to the Final Rule Sections III and 

IV and Technical Support Document Sections I, II, VII and VIII regarding the 

provisions of the final rule.

Cache La Poudre Water Users Association (Doc. #18904)

1.114 As enacted, the EPA's jurisdiction under the CWA was intended to be tied to the concept 

of "navigable waters." Over time, the EPA has pressed the jurisdiction under the CWA to 

the point that it has nearly been cast off entirely from its "navigable waters" mooring. The 

Proposed Rule is yet another example of this. Through the Proposed Rule, the EPA is 

seeking again to extend its jurisdiction, despite the Supreme Court's admonitions in 

Rapanos v. US., 547 U.S. 715 (2006) and, US. v. Riverside Bayview Homes, 474 U.S. 121 

(1985), and other cases where the Court reined-in the EPA's jurisdiction. This Proposed 

Rule will serve only to invite a similar judicial response, but only after another colossal 

waste of time and taxpayers' money is spent defending this ill-conceived rule. (p. 2)

Agency Response: The scope of regulatory jurisdiction in this rule is narrower 

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations, in part 

because the rule puts important qualifiers on some existing categories such as 

tributaries. See Summary Response, Preamble to the Final Rule Sections III and IV 

and Technical Support Document Sections I and II. See also Response to 

Comments Compendium Topic 5 – Significant Nexus, Introduction and summary 

response to comments 1, 2, 3, 4, and 5. In particular, see Technical Support 

Document Section I for a discussion for case law regarding CWA jurisdiction.

1.115 Accordingly, the Association endorses the more detailed comments of others in the West 

in opposition to the Proposed Rule, including the National Water Resources Association, 

the Western Coalition of Arid States and the Colorado Water Congress, to name a few, 

describing the concerns, errors and deficiencies in the Proposed Rule, and urging that it 

be withdrawn and reconsidered. 

Despite the EPA's assertions to the contrary, it is clear that the Proposed Rule expands 

federal jurisdiction in certain critical areas. The Proposed Rule would: 

1) Categorize all "tributaries" as jurisdiction, thereby removing the opportunity to rebut 

federal jurisdiction on a case -by-case basis depending upon the characteristics of the 

tributary; 

2) Categorize all adjacent "waters" (as opposed to adjacent "wetlands") as jurisdictional; 

and 
Clean Water Rule Response to Comments – Topic 1: General Comments 

75

3) Categorize all ditches as jurisdictional unless specifically exempted.17

Though seemingly innocuous to those not immersed in CWA nuances, and easily 

overwhelmed in the 86 pages the Proposed Rule occupies in the Federal Register, these 

changes amount to a significant jurisdictional expansion and intrusion into matters of 

State and local concern. (p. 2)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I, II, VII, VIII and IX. See 

also Response to Comments Compendium Topic 5 – Significant Nexus, Introduction 

and summary response to comments 1, 2, 3, 4, and 5, Topic 3 – Adjacent Waters, 

Topic 4 – Other Waters, Topic 8 – Tributaries. State, tribal, and local governments 

have well-defined and longstanding relationships with the Federal government in 

implementing CWA programs and these relationships are not altered by the final 

rule. Forty-six states and the U.S. Virgin Islands have been authorized by EPA to 

administer the NPDES program under section 402, and two states have been 

authorized by the EPA to administer the section 404 program. All states and forty 

tribes have developed water quality standards under the CWA for waters within 

their boundaries. A federal advisory committee has recently been announced to 

assist states in identifying the scope of waters assumable under the section 404 

program.

The scope of jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. In addition, the rule 

provides greater clarity regarding which waters are subject to CWA jurisdiction, 

reducing the instances in which permitting authorities, including the states and 

tribes with authorized section 402 and 404 CWA permitting programs, would need 

to make jurisdictional determinations on a case-specific basis.

The EPA held over 400 meetings with interested stakeholders, including 

representatives from states, tribes, counties, industry, agriculture, environmental 

and conservation groups, and others during the public comment period. In keeping 

with the spirit of Executive Order 13132 and consistent with the agencies’ policy to 

promote communications with state and local governments, the agencies consulted 

with state and local officials throughout the process and solicited their comments on 

the proposed action and on the development of the rule. 

For this rule state and local governments were consulted at the onset of rule 

development in 2011, and following the publication of the proposed rule in 2014. In 

addition to engaging key organizations under federalism, the agencies sought 

feedback on this rule from a broad audience of stakeholders through extensive 

outreach to numerous state and local government organizations. 

 

17 Exempted ditches are those in upland areas, that drain only upland area, or do not contribute to traditional 

navigable waters.
Clean Water Rule Response to Comments – Topic 1: General Comments 

76

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule. 

Upper Mississippi, Illinois, & Missouri Rivers Association (Doc. #19563)

1.116 Majorities of the House of Representatives and the Senate, including members from both 

parties, are on record as opposing the agencies ' current efforts to expand CWA 

jurisdiction. On May I, 2014, a bipartisan group of 231 Members of Congress wrote EPA 

and the Department of the Army to request "that this rule be withdrawn and returned to 

your agencies." On May 14, 2013, after the agencies had issued the draft guidance but 

before publishing the Proposed Rule, 52 Senators voted in favor of a Barrasso 

Amendment to prohibit the agencies from implementing the guidance and using it "or any 

substantially similar guidance, as the basis for any rule." The agencies should refrain 

from acting in a manner so clearly contrary to the will of the majority of our nation's 

elected lawmakers. (p. 5)

Agency Response: The scope of regulatory jurisdiction in this rule is narrower 

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations, in part 

because the rule puts important qualifiers on some existing categories such as 

tributaries. See Summary Response, Preamble to the Final Rule Sections III and IV 

and Technical Support Document Sections I and II. 

1.117 The proposed rule also fails to provide states with ample clarity or predictability. As 

mentioned earlier, the rule would identify waters having a “significant nexus” to 

traditional navigable waters as being a part of the “waters of the United States.” Nowhere 

in the proposed rule, however, is a precise metric or criteria offered for evaluating the 

significance of any potential nexus. Ambiguity and uncertainty is further exacerbated by 

the proposed rule neglecting to define “interstate waters,” by relying on vague and 

undefined concepts (such as “floodplain,” “riparian area,” and “shallow subsurface 

hydrologic connection”) to identify “adjacent waters,” and by creating exemptions for 

certain ditches that are so narrow that, in reality, few ditches would actually meet the 

criteria. (p. 2-3)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I, II, IV, VII, VIII and IX. 

See also Response to Comments Compendium Topic 5 – Significant Nexus, 

Introduction and summary response to comments 4, 5, 7 and 8, Topic 3 – Adjacent 

Waters, Topic 4 – Other Waters, Topic 6 – Ditches, Topic 7 – Features and Waters 

Not Jurisdictional, Topic 8 – Tributaries.

The Property Which Water Occupies (Doc. #8610)

1.118 The Rules disregard the congressional intent of the CWA: the protection of navigable 

waters, (i.e. public waters over public lands). The US Supreme Court has already held 
Clean Water Rule Response to Comments – Topic 1: General Comments 

77

that the Federal agencies cannot disregard the word 'navigable' when invoking 

jurisdiction under the CWA18. Under the Necessity Clause of the constitution, the 

judiciary also recognizes a more limited scope of jurisdiction over non-navigable 

tributaries and adjacent wetlands, but only when necessary to protect downstream 

navigable waters.19 This, while holding that such claimed jurisdiction away from 

navigable waters may still constitute a regulatory taking.20 The scope of CWA 

jurisdiction beyond 'traditional navigable waters' is limited to what is necessary to 

prevent degradation of downstream public waters. However, the Rules presume 

ubiquitous authority across any space where water is present, regardless of property 

ownership. Such a presumptive and pervasive authority to control land use disregards the 

congressional intent of the Act and a basic element of the property right. (p. 9)

Agency Response: The scope of regulatory jurisdiction in this rule is narrower 

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations, in part 

because the rule puts important qualifiers on some existing categories such as 

tributaries. See Summary Response, Preamble to the Final Rule Sections III and IV 

and Technical Support Document Sections I and II. In particular regarding taking, 

see Technical Support Document Section I.

1.119 Any CWA jurisdiction beyond navigable waters must be limited to that which is 

necessary to protect the quality of downstream public/navigable waterways; the presence 

of water alone does not and cannot invoke CWA jurisdiction. Outside of navigable water, 

CWA jurisdiction does not exist without a real threat to navigable waters; even then, only 

those land uses necessary to prevent real threats to downstream waters could invoke 

jurisdiction. The parameters for when jurisdiction could be invoked over private lands -

which may be covered at times by water- remain ambiguous and as written establishes 

and arbitrary and capricious standard for invoking the CWA. The Rules fail to clarify this 

standard and instead create an arbitrary standard for a Federal Agency or Private Citizen 

to invoke CWA jurisdiction. 

The parameters of Jurisdiction could be defined in conjunction with the Toxic Substances 

Control Act by defining reasonable use or acceptable levels for various types of 

materials, (possibly measured in an acceptable parts per million) . Pollutants should be 

classified based on the threats imposed raging from inert materials up to toxins, thereby 

defining reasonable use of private lands while recognizing riparian rights. Stratification 

as to the scope of jurisdiction based on the remoteness of waters to a navigable/public 

waters should also set clear limits to CWA jurisdiction. Acceptable standards should be 

established for acceptable water quality exiting private property toward public waters, 

rather than which private lands activities are 'exempted' from CWA jurisdiction. 

Clarifying the limitations to CWA jurisdiction over nonnavigable waters' is essential in 

order to establish CWA beyond the clearly defined intent of the Act to protect navigable 

waters. The Rules fail to define such limits. Invoking CWA jurisdictional over lands near 

non-navigable tributaries or even lands forming temporary streams after floods should 

 

18 SWANCC v. U.S. Army Corps of Engineers, 531 U.S.159, 172, (2001).

19 United States v. Riverside Bayview Homes, lnc., 474 US 121 - Supreme Court 1985.

20 Id .
Clean Water Rule Response to Comments – Topic 1: General Comments 

78

not prevent reasonable use of private lands. The congressional intent of the CWA cannot 

be interpreted to foreclose upon an individual's reasonable use under riparian law. The 

mere presence of water provides no basis for interference with these vested property 

rights. 

Any new CWA rules applied to non-navigable waters should classify pollutants and base 

jurisdiction on actual threats to the public water supply. Any ambiguity in the Rules 

which suggest domain over private property based on water alone should be removed. 

Limits to CWA jurisdiction based upon the scope of federal authority over private 

property and vested riparian rights should be recognized in the Rules; specifically 

defining reasonable use of those lands covered by non-navigable waters rather than 

presuming complete domain under the CWA, whenever water may be present. (p. 15-16)

Agency Response: The scope of regulatory jurisdiction in this rule is narrower 

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations, in part 

because the rule puts important qualifiers on some existing categories such as 

tributaries. See Summary Response, Preamble to the Final Rule Sections III and IV 

and Technical Support Document Sections I and II. 

K. Mantay (Doc. #15192.1)

1.120 Strike any reference to the New Rule being "scientifically derived" or "science based," 

since EPA readily admits that the single greatest unregulated threat to federal waterway 

integrity will in fact not be regulated under this proposed Rule. (p. 2)

Agency Response: The final rule reflects the judgment of the agencies in 

balancing the science, the agencies’ expertise, and the regulatory goals of providing 

clarity to the public while protecting the environment and public health, consistent 

with the law. See Summary Response, Preamble to the Final Rule Sections III and 

IV and Technical Support Document Sections I and II regarding the provisions of 

the final rule.

O'NEIL LLP (Doc. #16559)

1.121 Please explain specifically how, as stated in the Executive Summary of the Proposed 

Rule, the new rule would "make the process of identifying 'waters of the United States' 

less complicated and more efficient" as compared with: (1) the current policies and 

procedures used by the two Agencies, and (2) the definition of "waters" actually 

contained in the CWA. A careful reading of the Proposed Rule demonstrates that, as 

currently proposed, it will not accomplish this stated goal. The level of complexity within 

the Proposed Rule (including Appendix A) runs completely counter to this expressed 

goal. (p. 8-9)

Agency Response: The final rule reflects the judgment of the agencies in 

balancing the science, the agencies’ expertise, and the regulatory goals of providing 

clarity to the public while protecting the environment and public health, consistent 

with the law. See Summary Response, Preamble to the Final Rule Sections III and 

IV and Technical Support Document regarding the provisions of the final rule.
Clean Water Rule Response to Comments – Topic 1: General Comments 

79

1.122 If the Agencies decide to adopt the Proposed Rule in anything close to its current 

proposed form, all Corps and EPA guidance documents or manuals issued with the 

objective of guiding jurisdictional determinations or implementing this opaque and 

extremely confusing rule (and its vague and largely unbounded new definitions) must be 

required by this Rule to be subjected to formal "notice and comment" rulemaking, prior 

to their adoption for use by either agency. (p. 9)

Agency Response: The final rule reflects the judgment of the agencies in 

balancing the science, the agencies’ expertise, and the regulatory goals of providing 

clarity to the public while protecting the environment and public health, consistent 

with the law. See Summary Response, Preamble to the Final Rule Sections III and 

IV and Technical Support Document regarding the provisions of the final rule. The 

agencies may later decide that guidance for making case-specific significant nexus 

determinations would be useful for agency staff and the public. While the agencies 

may choose to seek public comment on any such guidance, that is not required by 

the Administrative Procedure Act.

1.1. COMMENTS ON STATE/TRIBAL AUTHORITY

Agency Summary Response

The comments in this section of the compendium focus on the rights of states and tribes to 

manage the land and water within their jurisdiction. Comments include concerns that the 

proposed rule infringes upon the sovereign rights of states, tribes, and local governments by 

expanding CWA jurisdiction to regulate waters and activities not previously covered under the 

CWA and interfering with their ability to make land use decisions. This rule does not affect land 

use and does not limit a state or tribes ability to regulate discharges of pollution to waters within 

their jurisdiction. Several commenters stated waters are best regulated by individual states, with 

the exception of those (as established in court decisions) that are interstate, are navigable-in-fact, 

or are consistently and directly connected to navigable/interstate waters. The agencies respect 

states’ critical roles in protecting water quality and this rule does not supplant that role or their 

authorities. The federal interest in protecting waters, as shown by the CWA, nonetheless is 

strong, and the rule is a reasonable, considered, legally sound and scientifically based delineation 

of waters subject to the CWA. States retain their authorities but the CWA is premised on the 

need for a federal role in water quality protection. State laws vary across the country, and the 

federal role under the CWA was designed to ensure a floor or adequate protection is maintained 

nationwide; the rule is consistent with that intent. The rule is consistent with sections 101(b), 

101(g), 402(b), 404(g) and 510 of the CWA which preserves their rights to regulate these waters.

The agencies received many requests to clarify terms in the proposed rule and to provide brighter 

lines of which waters are covered under the CWA. The final rule includes several changes to 

provide the additional clarity requested. The changes include refining existing definitions, 

adding new definitions, and identifying the specific functions to be accessed in a significant 

nexus evaluation. The rule has further clarified the section on waters that are not considered 

waters of the United States, including many of the features listed in the comments, such as 

artificial lakes and ponds created in dry land, water-filled depressions incidental to mining or 

construction, and stormwater and wastewater detention basins constructed in dry land.
Clean Water Rule Response to Comments – Topic 1: General Comments 

80

In addition to clarifying terms, there were many calls for the agencies’ to provide bright lines 

with respect to CWA jurisdiction wherever possible. With this final rule, the agencies are 

responding to those requests from across the country by providing clear distinctions wherever 

possible consistent with the CWA, Court determinations, science and years of experience 

implementing the CWA programs. In fact, providing greater clarity regarding what waters are 

subject to CWA jurisdiction will reduce the need for permitting authorities, including states with 

authorized section 402 and 404 CWA permitting programs, to make jurisdictional determinations 

on a case-specific basis. The preamble, Technical Support Document and other compendiums 

provide full explanations of the provisions of the rule and their bases. 

In the paragraphs below, the agencies have summarized responses to the comments received 

regarding infringement upon state and tribal rights, roles, and responsibilities. Responses to 

individual comments received on this topic follow the summary and reference changes made to 

the rule as a result of stakeholder input received during public outreach events in combination 

with the written comments received during the public comment period. 

Primary responsibility and rights of states and tribes to prevent, reduce and eliminate pollution:

A number of comments raised concerns that this rule would usurp, limit or preempt state and 

tribal rights to manage waters within their jurisdiction. Several commenters assert that the rule is 

unnecessary because states are adequately regulating waters under their jurisdiction and some 

manage a broader scope of waters with more protective standards and programs than the Federal 

CWA. Commenters from states such as California and Pennsylvania were particularly vocal 

about the rule’s insinuation that the scope of state’s protection is lacking and thus these waters 

need the protections of the CWA and federal oversight. Others advocate that CWA should not 

supersede ongoing federal, state and local programs such as those addressing nonpoint source 

pollution. 

The agencies support efforts of states and tribes to regulate waters within their jurisdiction; 

however the intent of this rule is not to change or establish standards or criteria for discharges to 

“waters of the United States,” it is to provide clarity with respect to which waters are afforded 

protection under the CWA. Therefore, consistent with the CWA, and as is the case today, 

nothing in this rule limits or impedes any existing or future state or tribal efforts to protect their 

waters. The rule is consistent with Congressional policy to preserve the primary responsibilities 

and rights of states to prevent, reduce, and eliminate pollution, to plan the development and use 

of water resources, and to consult with the Administrator with respect to the exercise of the 

Administrator’s authority under the CWA (see section 101(b) of the CWA). 

States and federally-recognized tribes, consistent with the CWA, retain full authority to 

implement their own programs to more broadly and more fully protect the waters in 

their jurisdiction. Under section 510 of the CWA, unless expressly stated, nothing in the CWA 

precludes or denies the right of any state to establish more protective standards or limits than the 

Federal CWA. Congress has also provided roles for eligible Indian tribes to administer CWA 

programs over their reservations and expressed a preference for tribal regulation of surface water 

quality on Indian reservations to assure compliance with the goals of the CWA. See CWA 

section 518; 56 FR 64876, 64878-79 (Dec. 12, 1991)). Tribes also have inherent sovereign 
Clean Water Rule Response to Comments – Topic 1: General Comments 

81

authority to establish more protective standards or limits than the Federal CWA. Where 

appropriate, references to states in this document may also include eligible tribes. Many states 

and tribes, for example, regulate groundwater, and some others protect wetlands that are vital to 

their environment and economy but outside the jurisdiction of the CWA. Nothing in this rule 

limits or impedes any existing or future state or tribal efforts to further protect their waters. In 

fact, providing greater clarity regarding what waters are subject to CWA jurisdiction will reduce 

the need for permitting authorities, including the states and tribes with authorized section 402 

and 404 CWA permitting programs, to make jurisdictional determinations on a case-specific 

basis.

States and tribes are co-implementors: Several comments expressed concern over the rule’s 

impact on the ability of the federal and state governments to work together as co-implementors 

of the CWA. Other comments expressed a need for the agencies and this rule to take into 

account state and local needs, differences in geography, and ecosystem diversity. For example, 

some commenters stated that nonpoint source pollution requires state watershed-oriented water 

quality management plans, and emphasized that federal agencies should collaborate with states 

to carry out the objectives of these plans. 

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. This rule 

recognizes the unique role of states and tribes. As stated in the preamble, 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 

emerging science to ensure consistent and effective protection for waters in the states. As is the 

case today, nothing in this rule restricts the ability of states to more broadly protect state waters. 

States and tribes may assume permitting responsibility for section 402 and 404 of the CWA. As 

co-implementers of these permitting programs, the agencies’ commit to continue to work 

collaboratively with states and tribes with approved 402 and 404 programs. The rule is consistent 

with sections 101(b), 402(b), 404(g), and 510 of the CWA. 

How the rule applies within states and tribes with approved CWA programs: Several comments 

were received requesting that the agencies clarify how various approved state and tribal 

programs are affected by the rule. Some commenters raised concerns that an expansion in CWA 

jurisdiction will either usurp or duplicate efforts at the state and local level to manage these 

aquatic resources. Others echoed this concern of usurping or duplicating their efforts by adding 

that their state, tribe or local government currently regulates more waters with more protective 

standards and limits than the CWA. Some comments assert such duplication is unnecessary, 

serving only to add an additional level of bureaucracy, delaying permits and increasing costs to 

permittees. Others raised concern that this rule would adversely affect the ability of states and 

tribes to assume administration of and continue implementation of sections 402 and 404 of the 

CWA. 

The final rule does not establish any new regulatory requirements. Instead, it is a definitional 

rule that clarifies the scope of “waters of the United States” consistent with the CWA, Supreme 

Court precedent, and science. As such, there are no changes in the relationship between federal, 

state, tribal and local implementors of CWA programs or to other state or tribal programs 
Clean Water Rule Response to Comments – Topic 1: General Comments 

82

managing these resources. States and tribes retain full authority to implement their own programs 

to more broadly and more fully protect the waters under their jurisdiction. Therefore, consistent 

with the CWA, and as is the case today, nothing in this rule limits or impedes any existing or 

future state or tribal efforts to protect their waters. Additionally, by providing greater clarity 

regarding what waters are subject to CWA jurisdiction, the frequency with which states and 

tribes with authorized section 402 and 404 CWA permitting programs will need to make 

jurisdictional determinations on a case-specific basis is reduced.

The intent of this rule is to provide clarity with respect to which waters are afforded protection 

under the CWA. The agencies recognize that the establishment of clear boundaries in the rule for 

jurisdiction does not in any way restrict states from considering state specific information and 

concerns, or consider emerging science to evaluate the need to more broadly protect their waters 

under state law. Of particular importance, states and tribes authorized by the administrator of the 

EPA to administer the CWA section 402 and 404 permitting programs continue to do so per their 

Memoranda of Agreements with the EPA and consistent with the CWA and their state or tribal 

laws and regulations. 

Two comments (1.16 and 1.17) pointed out that the rule provides CWA protection to waters 

where the state or tribe has not taken on such responsibility providing national consistency. The 

Agencies agree the federal role under the CWA was designed to ensure adequate protection is 

maintained nationwide; while the rule is consistent with that intent, it does not limit or prevent 

any state or tribe from managing waters within their jurisdiction.

Rights of states and tribes to regulate water quantity and use: Some commenters raised concerns 

the rule infringes upon or in some cases usurps the rights of states and tribes to regulate water 

quantity and use. This rule recognizes the unique role of states related to water quantity and as 

confirmed by section 101(g) of the CWA. The rule is consistent with Congressional policy not 

to supersede, abrogate, or otherwise impair the authority of each state to allocate quantities of 

water within its jurisdiction, and neither does it affect the policy of Congress that nothing in the 

CWA shall be construed to supersede or abrogate rights to quantities of water which have been 

established by any state.

Rule alters the relationship between federal, state, tribal and local governments: Several 

comments were received voicing concern that this rule upsets the balance of federalism set out 

by the constitution and has a negative impact, infringing upon the sovereign rights of states and 

tribes to manage their waters by ‘federalizing’ all of these waters. The intent of this rule is not to 

change or establish standards or criteria for discharges to “waters of the United States,” it is to 

provide clarity with respect to which waters are afforded protection under the CWA. The 

agencies respect states’ critical roles in protecting water quality and this rule does not supplant 

that role or their authorities. The federal interest in protecting waters, as shown by the CWA, 

nonetheless is strong, and the rule is a reasonable, considered, legally sound and scientifically 

based delineation of waters subject to the CWA. States retain their authorities but the CWA is 

premised on the need for a federal role in water quality protection. State laws vary across the 

country, and the federal role under the CWA was designed to ensure a floor or adequate 

protection is maintained nationwide; the rule is consistent with that intent. The agencies will 
Clean Water Rule Response to Comments – Topic 1: General Comments 

83

continue to work collaboratively with states, tribes and local governments in the implementation 

of CWA programs, many of whom are co-implementors of the CWA’s provisions. 

Jurisdictional scope of the rule: Many comments were received raising concerns the rule expands 

jurisdiction of the CWA beyond what is allowable pursuant to the Commerce Clause of the 

Constitution. Several commenters stated the rule does not preserve the primary responsibilities 

and rights of states and tribes provided for under section 101(b) of the CWA. Concerns raised in 

this section assert that the proposed rule would expand CWA jurisdiction to regulate ditches, 

ephemeral streams, seeps, prairie pot holes agricultural practices, groundwater, subsurface flow, 

MS4s, and even isolated waters via subsurface flow connections. The commenters claim the 

agencies are asserting jurisdiction over waters, water features and systems that have traditionally 

been the responsibilities of states, tribes, and local governments and suggest these and all other 

waters that are intrastate with only minimal or temporary hydraulic conductivity to traditional 

waters of the United States are best regulated by individual states and tribes. Only those waters 

that are interstate, are navigable-in-fact, or are consistently and directly connected to 

navigable/interstate waters (as established in court decisions) should be covered by the CWA. 

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 Acts. The CWA is the nation’s single 

most important statute for protecting America’s clean water against pollution, degradation, and 

destruction. To provide that protection, the Supreme Court has consistently agreed that the 

geographic scope of the CWA reaches beyond waters that are navigable in fact. 

This final rule interprets the CWA to cover those waters that require protection in order to restore 

and maintain the chemical, physical, or biological integrity of traditional navigable waters, 

interstate waters, and the territorial seas. This interpretation is based not only on legal precedent 

and the best available peer-reviewed science, but also on the agencies’ technical expertise and 

extensive experience in implementing the CWA over the past four decades. See Technical 

Support Document. 

The rule will clarify and simplify implementation of the CWA consistent with its purposes 

through clearer definitions and increased use of clear boundaries of jurisdiction. 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 discharges a 

pollutant to the covered water. In the absence of a pollutant discharge that could pollute, 

degrade, or destroy a covered water, the CWA does not impose permitting restrictions on the use 

of such water. 

In order to improve clarity, the final rule also expands the discussion of excluded waters and 

other features not regulated. When a water is excluded by rule, it is not a “water of the United 

States” even where it meets the definition of a paragraph in (a)(4) through (a)(8).

The scope of regulatory jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the rule than 
Clean Water Rule Response to Comments – Topic 1: General Comments 

84

under the existing regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries and clarifies other features such as ditches. 

Ditches: Some commenters expressed concern that the rule expands CWA jurisdiction over 

ditches which have traditionally been regulated by states, tribes and local governments and 

should remain regulated by these entities and not the federal government. While a more robust 

discussion of which ditches are covered by the CWA and which are not can be found in the 

preamble as well as the Ditch Compendium, the agencies note that the rule does not expand 

current CWA jurisdiction. Ditches have been regulated under the CWA as “waters of the United 

States.” In 1977, the United States Congress acknowledged that ditches could be covered under 

the CWA when it amended the Federal Water Pollution Control Act to exempt specific activities 

in ditches from the need to obtain a CWA section 404 permit, including “construction or 

maintenance of...irrigation ditches, or the maintenance of drainage ditches” (33 U.S.C. §1344). 

By these actions, Congress did not eliminate CWA jurisdiction of these ditches, but rather 

exempted specified activities taking place in them from the need for a CWA section 404 permit. 

In response to comments, the agencies have revised the exclusions for ditches to provide greater 

clarity and consistency. The agencies recognize that the term “upland” in the rule created 

confusion, and that the term has been removed. The revised ditch exclusion language states: “(A) 

ephemeral ditches that are not a relocated tributary or excavated in a tributary; (B) intermittent 

ditches that are not a relocated tributary or excavated in a tributary or drain wetlands; (C) Ditches 

that do not flow, either directly or through another water, into a water identified in paragraphs 

(a)(1) through (a)(3) of this [rule].” A ditch that meets any one of these three conditions is not a 

water of the United States. Further, the rule also clearly states that these exclusions apply even if 

the ditch otherwise meets the terms describing jurisdictional waters of the United States at 

paragraphs (a)(4) through (a)(8) of the rule. For example, an excluded ditch would not become a 

jurisdictional water of the United States if wetland characteristics (e.g. hydric soils, hydrophytic 

plant communities, etc.) developed in the bottom of the ditch. 

Section 404(f)(1)(B) exempts dredge and fill activities “for the purpose of maintenance, 

including emergency reconstruction of recently damaged parts, of currently serviceable 

structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge 

abutments or approaches, and transportation structures.” Additionally, the construction or 

maintenance of irrigation ditches, as well as the maintenance, but not construction, of drainage 

ditches are exempt activities under CWA 404(f)(1)(C). This rule has not changed these 

exemptions. Other ditch maintenance work may be covered by non-reporting Nationwide Permit 

3. See Corps Regulatory Guidance Letter (RGL) 07-02: "Exemptions for Construction or 

Maintenance of Irrigation Ditches and Maintenance of Drainage Ditches Under Section 404 of 

the Clean Water Act" for more information. 

The rule also does not affect or modify existing statutory and regulatory exemptions from 

NPDES permitting requirements, such as those for return flows from irrigated agriculture (CWA 

402(l)(1); 502(14)), stormwater runoff from oil, gas and mining operations (CWA 402(l)(2)), or 

agricultural stormwater discharges (CWA 502(14)). However, consistent with longstanding 

practice, these exempt activities do not change the jurisdictional status of the water body as a 
Clean Water Rule Response to Comments – Topic 1: General Comments 

85

whole, or the potential need for CWA permits for non-exempted activities in these waters or nonexempted discharges to these waters. 

 Agriculture – Several commenters state that farmers are better stewards of the lands and 

Federal control of their private property and water rights is unnecessary. Other 

comments raised concerns that the rule regulates agricultural activities exempt under 

CWA. The agencies do not believe this rule will have a negative effect on agriculture. 

The final rule interprets the intent of Congress and reflects the intent of the agencies to 

minimize potential regulatory burdens on the nation’s agriculture community, and 

recognizes the work of farmers to protect and conserve natural resources and water 

quality on agricultural lands. While waters subject to normal farming, silviculture, or 

ranching practices may be determined to significantly affect the chemical, physical, or 

biological integrity of downstream navigable waters, the agencies believe that such 

determination should be made based on a case-specific basis instead of by rule. See 

discussion of adjacent in preamble.

 Stormwater and MS4s – Several comments below raise concerns that the agencies are 

expanding jurisdiction of the CWA to include MS4s as “waters of the United States.” 

They object to inclusion of these systems under the protections of the CWA citing they 

are constructed treatment systems and not “waters of the United States.” The rule 

includes a specific exemption for stormwater control features constructed to convey, 

treat, or store stormwater that are created in dry land. The preamble and compendium on 

Exclusions provides a full discussion of this exclusion. 

 Ground water and subsurface flow to regulate isolated waters – Several concerns were 

raised in comments that the agencies’ are trying to exert regulatory authority over 

shallow subsurface groundwater. The rule makes clear that neither shallow subsurface 

connections nor any type of groundwater, shallow or deep, are “waters of the United 

States.” This is discussed more fully in the preamble and compendium on Exclusions.

 Seeps, prairie potholes and other similarly situated waters in aggregate - Many 

commenters expressed concern that the rule places features such as isolated waters under 

federal jurisdiction contrary to Congressional intent and as confirmed in Solid Waste 

Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) 

(SWANCC). Others raised concerns that such a broad opportunity for case-specific 

“waters of the United States” determinations would lead to too much uncertainty about 

the jurisdictional status of waters in broad areas throughout the country. 

The rule provides for case-specific determinations under more narrowly targeted circumstances 

than the proposed rule 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. The preamble and Technical Support Document

provide a comprehensive discussion of the legal basis for this rule.

 Regularly intermittent seasonal and ephemeral streams – Several commenters claim that 

the rule’s expansion of the CWA’s jurisdiction to cover regularly intermittent seasonal 
Clean Water Rule Response to Comments – Topic 1: General Comments 

86

and ephemeral streams is not consistent with Congressional intent or the commerce 

clause and is an overreach by the agencies. The agencies respectfully disagree. The 

Supreme Court has consistently agreed that the geographic scope of the CWA reaches 

beyond waters that are navigable in fact. 

Please see the preamble, Technical Support Document, and the Tributary Compendium, the 

Exclusion Compendium for a discussion on the definition of tributaries, the relevance of flow 

regime, and the exclusions.

Burden on states and tribes: Several comments raised concern that the rule, requires states and 

tribes to take on management of a significant number of waters. Some comments see the increase 

in their responsibilities as a result of waters losing CWA protections while others contend the 

increase is due to the rule’s expansion of the CWA’s jurisdiction which would require states and 

tribes with approved CWA programs to manage these additional water resources. Concern 

focused on the burden this places on states and tribes and in particular how this unfunded 

mandate was not taken into account by the agencies when assessing the cost implications of the 

rule. Others requested the agencies do more work to more accurately cost out the cost 

implications on states, tribes and local governments. 

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 programs that protect “waters of the United States” from 

pollution and destruction. Each of these programs may subsequently impose direct or indirect 

costs as a result of implementation of their specific regulations. While the rule imposes no direct 

costs, the agencies prepared an economic analysis for informational purposes and the final 

decisions on the scope of “waters of the United States” in this rulemaking are not based on 

consideration of the information or analysis in the economic analysis.

The Economic analysis and an explanation for how indirect costs and benefits estimates 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 

docket. 

Need to clarify terms: Several comments requested that the agencies provide simpler definitions, 

define terms introduced in the proposed rule or even the existing regulations and provide more 

bright lines with respect to which waters are protected under the CWA. Others commented that 

the proposed rule introduced vague concepts and undefined terms creating more confusion.

With this final rule, the agencies are responding to those requests from across the country to 

make the process of identifying waters protected under the CWA easier to understand, more 

predictable, and more consistent with the law and peer-reviewed science. The agencies have 

defined terms such as neighboring and tributary. Each of the definitions included in the final 

rule, have been included ultimately with the goal of providing increased clarity for regulators, 
Clean Water Rule Response to Comments – Topic 1: General Comments 

87

stakeholders, and the regulated public to assist them in identifying waters as “waters of the 

United States.”

In the final rule, the agencies added 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. This is the first time these exclusions have been established 

by rule. For the first time, the agencies also establish by rule that certain ditches are excluded 

from jurisdiction. In addition to these exclusions, 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 the proposed rule language where this 

was never the agencies’ intent. 

The final rule includes several changes to provide the additional clarity requested. The changes 

include identifying the specific functions to be accessed in a significant nexus evaluation. The 

final rule also significantly reduces the uncertainty and number of case-specific determinations 

that will be required, reducing state and federal workload associated with jurisdictional 

determinations. 

Science supporting the rule: There were several comments that the agencies are basing this rule 

upon on several studies and sets of data which contain inadequate and inaccurate information 

regarding the breadth and scope of state laws and programs. In particular, several commenters 

raised concerns that the 2013 Environmental Law Institute ("ELI'') study titled: State Constraints 

- State-Imposed Limitations on the Authority of Agencies to Regulate Waters Beyond the Scope 

of the Federal Clean Water Act does not accurately capture the authorities of or programs 

implemented by state and local governments. 

The agencies’ interpretation of the CWA’s scope in this final rule is informed by the best 

available peer-reviewed science. Particularly as that science informed the policy judgments and 

legal interpretations as to which waters have a “significant nexus” with traditional navigable 

waters, interstate waters, and the territorial 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 Scientific Evidence” (hereafter the Science Report) synthesizes the peerreviewed science. A copy of which can be found in the docket. 

Based on a review of more than 1,200 publications from the peer-reviewed literature, the Science 

Report provides much of the technical basis for the rule. 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 SAB’s review confirmed many of 

the findings of the Science Report. 

Although these conclusions play a critical role in informing the agencies’ interpretation of the 

CWA’s scope, the agencies’ interpretive task in this rule – determining which waters have a 

“significant nexus” – requires 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 
Clean Water Rule Response to Comments – Topic 1: General Comments 

88

determination, the agencies must rely, not only on the science, but also on their technical 

expertise and practical experience in implementing the CWA during a period of over 40 years. 

In addition, the agencies are guided, in part, by the compelling need for clearer, and more 

consistent, and easily implementable standards to govern administration of the Act, including 

brighter lines where feasible and appropriate. The agencies did not base their significant nexus 

conclusions on the ELI report.

More input needed: Several comments were received suggesting the agencies need to seek input 

from states and local governments and to consult with states and tribes prior to issuing this rule. 

Some comments requested the agencies consult with states regarding the economic impact the 

rule will have on states and tribes (see above response on burden on states and tribes). 

This rule reflects significant consultation with many stakeholders. In 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 and 

solicited their comments on the proposed action and on the development of the rule. 

Specifically, state and local governments were consulted at the onset of rule development in 

2011, and following the publication of the proposed rule in 2014. In addition to engaging key 

organizations under federalism, the agencies sought feedback on this rule from a broad audience 

of stakeholders through extensive outreach to numerous state and local government 

organizations. The EPA held over 400 meetings with interested stakeholders, including 

representatives from states, tribes, counties, industry, agriculture, environmental and 

conservation groups, and others during the public comment period.

A detailed narrative of intergovernmental concerns raised during the course of the rule’s 

development and a description of the agencies’ efforts to address them with the final rule can be 

found in the docket for this rule. [See Final Summary of the Discretionary Consultation and 

Outreach to State, Local, and County Governments for the Revised Definition of Waters of the 

United States.] The agencies will continue to work closely with the states to implement the final 

rule.

Specific Comments

Committee on Space, Science and Technology (Doc. #16386)

1.123 Discuss in detail how the proposed rule will impact tribes and tribal sovereignty. (p. 13)

Agency Response: See Summary Response and Preamble to the Final Rule. 

Federally-recognized tribes, consistent with the CWA, retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

in their jurisdiction. Congress has also provided roles for eligible Indian tribes to 

administer CWA programs over their reservations and expressed a preference for 

tribal regulation of surface water quality on Indian reservations to assure 

compliance with the goals of the CWA. See CWA section 518; 56 FR 64876, 64878-

79 (Dec. 12, 1991)). Tribes also have inherent sovereign authority to establish more 

protective standards or limits than the Federal CWA. Where appropriate, 

references to states in this document may also include eligible tribes. Many tribes, 

for example, regulate groundwater, and some others protect wetlands that are vital 
Clean Water Rule Response to Comments – Topic 1: General Comments 

89

to their environment and economy but outside the jurisdiction of the CWA. Nothing 

in this rule limits or impedes any existing or future tribal efforts to further protect 

their waters. In fact, providing greater clarity regarding what waters are subject to 

CWA jurisdiction will reduce the need for permitting authorities, including the 

tribes with authorized section 402 and 404 CWA permitting programs, to make 

jurisdictional determinations on a case-specific basis. Subject to the Executive 

Order (E.O.) 13175 (65 FR 67249, November 9, 2000), agencies generally may not 

issue a regulation that has tribal implications, (1) that imposes substantial direct 

compliance costs, and that is not required by statute, unless the Federal government 

provides the funds necessary to pay the direct compliance costs incurred by tribal 

governments, or the agencies consult with tribal officials early in the process of 

developing the proposed regulation and develop a tribal summary impact statement, 

or (2) that preempts tribal law unless the agencies consult with tribal officials early 

in the process of developing the proposed regulation and develops a tribal summary 

impact statement. 

This action does not have tribal implications as specified in E.O. 13175. In 

compliance with the EPA Policy on Consultation and Coordination with Indian 

Tribes (May 4, 2011), the agencies consulted with tribal officials throughout the 

rulemaking process to gain an understanding of tribal views and solicited their 

comments on the proposed action and on the development of 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 United States” in October 2011. The 

consultation and coordination process, including providing information on the 

development of an accompanying science report on the connectivity of streams and 

wetlands, continued, in stages, over a four year period, until the close of the public 

comment period on November 14, 2014. EPA invited tribes to provide written input 

on the rulemaking throughout both the tribal consultation process and public 

comment period.

EPA specifically consulted with tribal officials to gain an understanding of, and to 

address, the tribal views on the proposed rule. In 2011, close to 200 tribal 

representatives and more than 40 tribes participated in the consultation process, 

which included multiple webinars and national teleconferences and face-to-face 

meetings. In addition, EPA received written comments from three tribes during the 

initial consultation period.

EPA continued to provide status updates to the National Tribal Water Council and 

the National Tribal Caucus during 2012 through 2014. The final consultation event 

was completed on October 23, 2014 as a national teleconference with the Office of 

Water’s Deputy Assistant Administrator. Ultimately, EPA received an additional 23 

letters from tribes/tribal organizations by the completion of the consultation period.

The comments indicated that Tribes, overall, support increased clarity of waters 

protected by the Clean Water Act, but some expressed concern with the 

consultation process and the burden of any expanded jurisdiction. The agencies 
Clean Water Rule Response to Comments – Topic 1: General Comments 

90

considered the feedback received through consultation and written comments in 

developing the rule. 

The agencies have prepared a report summarizing their consultation with tribal 

nations, and how these results have informed the development of this rule. This 

report, Final Summary of Tribal Consultation for the Clean Water Rule: Definition of 

“Waters of the United States” Under the Clean Water Act; Final Rule (Docket Id. No. 

EPA-HQ-OW-2011-0880), is available in the docket for this rule. 

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. 

Secretary of Energy & Environment, State of Oklahoma (Doc. #2038)

1.124 As co-regulators of the Clean Water Act (CWA), States will be significantly impacted by 

the proposed rule. The rule as written will affect multiple programs that are implemented

through the CWA, as well as State programs that complement the jurisdiction of the 

CWA. The proposed rule also includes multiple changes that significantly blur the 

definition and scope of CWA regulated waters, and several portions of the proposed rule 

create new jurisdictional classifications and terminology. Additionally, the State of 

Oklahoma would benefit greatly from an analysis of recently "exempted" practices under 

the proposed rule that may trigger additional state and/or federal regulations, create the 

potential for exempt activities resulting in State water quality violations, and/or lead to 

other unforeseen consequences. (p. 1)

Agency Response: See Summary Responses for Sections 1.0 and 1.1. The scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. See Summary Response, 

Preamble to the Final Rule Sections III and IV and Technical Support Document 

Sections I and II. See also Response to Comments Compendium Topic 3 – Adjacent 

Waters, Topic 7 – Features and Waters Not Jurisdictional, and Topic 8 –

Tributaries. State, tribal, and local governments have well-defined and longstanding 

relationships with the Federal government in implementing CWA programs and 

these relationships are not altered by the final rule. Forty-six states and the U.S. 

Virgin Islands have been authorized by EPA to administer the NPDES program 

under section 402, and two states have been authorized by the EPA to administer 

the section 404 program. All states and forty tribes have developed water quality 

standards under the CWA for waters within their boundaries. A federal advisory 

committee has recently been announced to assist states in identifying the scope of 

waters assumable under the section 404 program.

The scope of jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. In addition, the rule 

provides greater clarity regarding which waters are subject to CWA jurisdiction, 
Clean Water Rule Response to Comments – Topic 1: General Comments 

91

reducing the instances in which permitting authorities, including the states and 

tribes with authorized section 402 and 404 CWA permitting programs, would need 

to make jurisdictional determinations on a case-specific basis.

The EPA held over 400 meetings with interested stakeholders, including 

representatives from states, tribes, counties, industry, agriculture, environmental 

and conservation groups, and others during the public comment period. In keeping 

with the spirit of Executive Order 13132 and consistent with the agencies’ policy to 

promote communications with state and local governments, the agencies consulted 

with state and local officials throughout the process and solicited their comments on 

the proposed action and on the development of the rule. 

For this rule state and local governments were consulted at the onset of rule 

development in 2011, and following the publication of the proposed rule in 2014. In 

addition to engaging key organizations under federalism, the agencies sought 

feedback on this rule from a broad audience of stakeholders through extensive 

outreach to numerous state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule. 

Barona Band of Mission Indians (Doc. #2476)

1.125 The Tribe believes that the proposed rule seeks to extend the scope of the jurisdiction of 

the EPA and the ACE under the Clean Water Act (the "CWA") beyond what the statute 

and federal law allow, thereby harming the sovereign interests of the Tribe, especially its 

sovereign right to control the use and development of the land of its federal Indian 

reservation, and of its natural resources. (p. 1)

Agency Response: See Sections 1.0 and 1.1 Summary Responses and Preamble to 

the Final Rule. Federally-recognized tribes, consistent with the CWA, retain full 

authority to implement their own programs to more broadly and more fully protect 

the waters in their jurisdiction. Congress has also provided roles for eligible Indian 

tribes to administer CWA programs over their reservations and expressed a 

preference for tribal regulation of surface water quality on Indian reservations to 

assure compliance with the goals of the CWA. See CWA section 518; 56 FR 

64876, 64878-79 (Dec. 12, 1991)). Tribes also have inherent sovereign authority to 

establish more protective standards or limits than the Federal CWA. Where 

appropriate, references to states in this document may also include eligible 

tribes. Many tribes, for example, regulate groundwater, and some others protect 

wetlands that are vital to their environment and economy but outside the 

jurisdiction of the CWA. Nothing in this rule limits or impedes any existing or 

future tribal efforts to further protect their waters. In fact, providing greater clarity 

regarding what waters are subject to CWA jurisdiction will reduce the need for 
Clean Water Rule Response to Comments – Topic 1: General Comments 

92

permitting authorities, including the tribes with authorized section 402 and 404 

CWA permitting programs, to make jurisdictional determinations on a case-specific 

basis. 

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 have prepared a report summarizing their consultation with tribal 

nations, and how these results have informed the development of this rule. This 

report, Final Summary of Tribal Consultation for the Clean Water Rule: Definition 

of “Waters of the United States” Under the Clean Water Act; Final Rule (Docket Id. 

No. EPA-HQ-OW-2011-0880), is available in the docket for this rule.

The scope of regulatory jurisdiction in this rule is narrower than that under the 

existing regulation. Fewer waters will be defined as “waters of the United States” 

under the rule than under the existing regulations, in part because the rule puts 

important qualifiers on some existing categories such as tributaries. See Preamble 

to the Final Rule Sections III and IV and Technical Support Document Sections I 

and II.

Attorney General of Texas (Doc. #5143.2)

1.126 The Rulemaking Subrogates the Primary Responsibilities and Rights of States under the 

Act

One of the paramount objectives of the Clean Water Act is "to restore and maintain the 

chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). 

However, that objective does not grant the federal government carte blanche to achieve 

those goals by any means necessary. This "ends justifies the means" mentality has never 

once been accepted as a doctrine of law in the United States. Instead, the federal 

government must consider an equally important objective of the Clean Water Act: 

[T]o recognize, preserve, and protect the primary responsibilities and rights of 

States to prevent, reduce, and eliminate pollution, to plan the development and 

use (including restoration, preservation, and enhancement) of land and water 

resources. 

33 U.S.C. § 1251(b) (emphasis added). 

The Rapanos plurality observed that "the Government's expansive interpretation would ' 

result in a significant impingement of the States' traditional and primary power over land 

and water use."" Rapanos, 547 U.S. at 738 (quoting SWANCC). The Court stated, further, 

that only a "clear and manifest" statement from Congress could authorize an 

unprecedented intrusion into traditional state authority and that "'waters of the United 

States' hardly qualifies. " id (citing BFP v. Resolution Trust Corp., 511 U.S. 531, 544 

(1994)). 
Clean Water Rule Response to Comments – Topic 1: General Comments 

93

The Clean Water Act also states that "the authority of each State to allocate quantities of 

water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by 

this chapter" and that "[f]ederal agencies shall co-operate with State and local agencies to 

develop comprehensive solutions to prevent, reduce and eliminate pollution." 33 U.S.C. § 

1251(g). In granting the "primary responsibilities and rights" of the Clean Water Act to 

the States, and in designating allocation authority to the States, Congress made it clear 

that the goal of pollution prevention must be accomplished though the state. If not 

withdrawn, this rulemaking will significantly impinge on the States' traditional and 

primary power over land and water use. Furthermore, it will effectively read out and 

subrogate any notion of federalism in the Clean Water Act, contradicting the Act's 

objective in 33 U.S.C. § 1251(b) and bringing to fruition the Supreme Court's concerns in 

Rapanos. See id. at 738. (p. 5-6)

Agency Response: See Preamble to the Final Rule, Technical Support Document 

and summary response above. State, tribal, and local governments have welldefined and longstanding relationships with the Federal government in 

implementing CWA programs and these relationships are not altered by the final 

rule. Forty-six states and the U.S. Virgin Islands have been authorized by EPA to 

administer the NPDES program under section 402, and two states have been 

authorized by the EPA to administer the section 404 program. All states and forty 

tribes have developed water quality standards under the CWA for waters within 

their boundaries. A federal advisory committee has recently been announced to 

assist states in identifying the scope of waters assumable under the section 404 

program.

The scope of jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. In addition, the rule 

provides greater clarity regarding which waters are subject to CWA jurisdiction, 

reducing the instances in which permitting authorities, including the states and 

tribes with authorized section 402 and 404 CWA permitting programs, would need 

to make jurisdictional determinations on a case-specific basis. Section 101(g) of the 

CWA states, “It is the policy of Congress that the authority of each State to allocate 

quantities of its water within its jurisdiction shall not be superseded, abrogated or 

otherwise impaired by [the CWA and] that nothing in [the CWA] shall be construed 

to supersede or abrogate rights to quantities of water which have been established 

by any State.” Similarly, Section 510(2) provides that nothing in the Act shall “be 

construed as impairing or in any manner affecting any right or jurisdiction of the 

States with respect to the waters . . . of such States.” The rule is entirely consistent 

with these policies. The rule does not impact or diminish State authorities to 

allocate water rights or to manage their water resources. Nor does the rule alter the 

CWA’s underlying regulatory process. Having been enacted with the objective of 

restoring and maintaining the chemical, physical, and biological integrity of our 

nation’s waters, the CWA serves to protect water quality. Neither the CWA nor the 

rule impairs the authorities of States to allocate quantities of water. Instead, the 

CWA and the rule serve to enhance the quality of the water that the States allocate. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

94

See Technical Support Document Section I for further discussion including 

regarding Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700 (1994).

North Dakota Water Resource Districts Association (Doc. #5596)

1.127 The Association and its member Districts have operated under the Solid Waste Agency of 

Northern Cook County and Rapanos doctrines since 2001 and 2006, when the Supreme 

Court of the United States struck down previous attempts to expand Federal jurisdiction 

over waters. Our Districts have had ample opportunity to adopt and implement an 

effective and efficient system for determining local jurisdiction over waters and 

recognizing what constitutes Federal jurisdiction. Local governments, water users and 

resource districts have competently operated under the current definition, and we feel 

there is no justification for this Federal overreach. (p. 1)

Agency Response: The scope of regulatory jurisdiction in this rule is narrower 

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations, in part 

because the rule puts important qualifiers on some existing categories such as 

tributaries. The final rule reflects the judgment of the agencies in balancing the 

science, the agencies’ expertise, and the regulatory goals of providing clarity to the 

public while protecting the environment and public health, consistent with the law. 

See Summary Response, Preamble to the Final Rule Sections III and IV and 

Technical Support Document Sections I and II regarding the provisions of the final 

rule.

Pennsylvania Department of Transportation (Doc. #6258.1)

1.128 PennDOT believes that every effort should be made to streamline the permitting process 

while still protecting the environment. Operationally the department feels this rule will 

have little impact to Pennsylvania as the state regulations are more robust than the 

currently proposed federal rule. (p. 1)

Agency Response: States retain full authority to implement their own CWA 

programs to more broadly or more fully protect the waters in their state. Under 

section 510 of the Act, unless expressly stated in the CWA, nothing in the Act 

precludes or denies the right of any state to establish more protective standards or 

limits than the Federal CWA. Nothing in this rule limits or impedes any existing or 

future state efforts to further protect their waters. The final rule reflects the 

judgment of the agencies in balancing the science, the agencies’ expertise, and the 

regulatory goals of providing clarity to the public while protecting the environment 

and public health, consistent with the law. See Summary Response, Preamble to the 

Final Rule Sections III and IV and Technical Support Document Sections I and II 

regarding the provisions of the final rule.

Illinois House of Representatives (Doc. #7978)

1.129 The rule would place features such as ditches, ephemeral drainages, ponds (natural or 

man -made), prairie potholes, seeps, flood plains, and other occasionally or seasonally 

wet areas under federal jurisdiction. These areas are the reserved domain of the state 

government not the federal government...[ ] 
Clean Water Rule Response to Comments – Topic 1: General Comments 

95

Illinois municipal units of government and other jurisdictions such as small towns, 

counties, drainage districts, water systems, irrigation districts, transportation departments, 

and municipal utilities will be profoundly impacted by the shift from state and local 

control of water-related land uses to federal control. (p. 2)

Agency Response: The rule does not regulate land use. See Preamble to Final 

Rule. The final rule reflects the judgment of the agencies in balancing the science, 

the agencies’ expertise, and the regulatory goals of providing clarity to the public 

while protecting the environment and public health, consistent with the law. See 

Summary Response, Preamble to the Final Rule Sections III and IV and Technical 

Support Document Sections I and II regarding the provisions of the final rule. This 

rule recognizes the unique role of states related to water quantity and as recognized 

by section 101(g) of the CWA. States, consistent with the CWA, retain full authority 

to implement their own CWA programs to more broadly or more fully protect the 

waters in their state. Under section 510 of the Act, unless expressly stated in the 

CWA, nothing in the Act precludes or denies the right of any state to establish more 

protective standards or limits than the Federal CWA. Nothing in this rule limits or 

impedes any existing or future state efforts to further protect their waters.

Pennsylvania Department of Environmental Protection, Office of Water Management (Doc. 

#7985)

1.130 The rule as drafted creates more confusion than it clarifies, and is already subject to 

differing interpretations by EPA and ACOE staff. This confusion will delay permitting 

and could undermine strong state programs. (p. 1)

Agency Response: The EPA and ACOE are issuing this as a joint rule and are 

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

identifying waters protected under the CWA easier to understand, more 

predictable, and more consistent with the law and peer-reviewed science. In fact, 

providing greater clarity regarding what waters are subject to CWA jurisdiction 

will reduce the need for permitting authorities, including states with authorized 

section 402 and 404 CWA permitting programs, to make jurisdictional 

determinations on a case-specific basis. See Preamble to the Final Rule and 

Technical Support Document.

1.131 Pennsylvania was therefore frustrated, disappointed and frankly, alarmed, to discover that 

in formulating this rulemaking, EPA is relying on inadequate and inaccurate information 

regarding the breadth and scope of state law programs. It is of great concern to 

Pennsylvania that, despite delegation agreements referencing existing state laws, and the 

routine interaction with Pennsylvania DEP regarding our obligations and collaboration in 

administering our NPDES duties alone, EPA would nonetheless rely on and cite in public 

forums with Pennsylvania DEP officials, the 2013 Environmental Law Institute ("ELI") 

study titled: State Constraints – State Imposed Limitations on the Authority of Agencies 

to Regulate Waters Beyond the Scope of the Federal Clean Water Act. This assessment is 

named as background information supporting the rulemaking,21 in articles22 and in public 

 

21 http://www2.epa.gov/uswaters/documents-related-proposed-definition-waters-united-states-under-clean-water-act
Clean Water Rule Response to Comments – Topic 1: General Comments 

96

presentations by EPA officials23, although it is not cited in U the rulemaking. One of 

DEP's significant concerns with this rulemaking is EPA's unfamiliarity with existing state 

law programs reflected by its reliance on the ELI study, which is cited for the proposition 

that this rulemaking is needed because state programs to protect water resources are 

lacking, and purporting that the proposed rule will address states' regulatory loopholes. 

EPA has asserted that Pennsylvania is one such state. This characterization and assertion 

by EPA is 13 completely erroneous and reflects a lack of due diligence and coordination 

with states.

The ELI study fails entirely to identify codified statutes and regulations' that have 

provided the foundation for Pennsylvania's regulatory programs for decades - in some 

instances for nearly half a century. Instead, the ELI report only cites a 1996 Executive 

Order and the wetlands provisions under the PA Dam Safety and Encroachments Act 

("DSEA"), and identifies these as loopholes in Pennsylvania. The ELI report does not 

further analyze the Pennsylvania wetlands permitting program (or compare it to the 

ACOE 404 permitting program) and more egregiously, fails to reference or acknowledge 

the regulatory authority under the Pennsylvania Cleans Streams Law and the multiple 

chapters of the Pennsylvania Code which comprise the state's regulatory program. Again, 

these state laws and regulations form the basis for delegation of the Clean Water Act 

NPDES program to Pennsylvania, as well as the foundation for the ACOE Pennsylvania 

SPGP for Clean Water Act Section 404 authorizations.

In 2013 alone, DEP provided approximately 13,066 state law water program 

authorizations 4,914 of which were under the Clean Streams Law for the delegated 

NPDES program. These numbers represent the extensive state law oversight in 

Pennsylvania over projects which affect or have the potential affect waters of the 

Commonwealth. In order to obtain each one of these authorizations, the permittee is 

required to undertake its project in compliance with one or more chapters of Title 25 of 

the Pennsylvania Code. It is particularly noteworthy given the ELI assessment of the 

Pennsylvania program, that the authorizations and oversight undertaken by PA DEP 

pursuant to the delegated NPDES program constitutes only 38% of the water related

permitting in 2013. In other words, 62% of the 2013 water related permitting in 

Pennsylvania was pursuant to state law authority only.

DSEA/CSL – Chapter 105 3,224

CSL/NPDES 4,914

CSL/Sewage Facilities Act24/Non-NPDES 4,928

As these statistics demonstrate, Pennsylvania does in fact have a significant and robust

regulatory program that reaches beyond the federal Clean Water Act. Pennsylvania's 

approach in fact could serve as a model for the cooperative federalism at the heart of the 

 

22http://yosemite.epa.gov/opa/admpress.nsf/3881d73f4d4aaa0b85257359003f5348/ae90dedd9595a02485257ca6005

57e30

23 June 13,2014, Berks County, EPA Official Nancy Stoner

24 Pennsylvania Sewage Facilities Act, 35 P.S. §§ 750.1 et seq.
Clean Water Rule Response to Comments – Topic 1: General Comments 

97

Clean Water Act, which envisions a federal-state partnership in the oversight and 

protection of the nation's waters with the federal law providing a broad general regulatory 

framework that relies on and supports strong state programs specifically tailored to the 

unique attributes of each states. (p. 2-4)

Agency Response: See summary response, Preamble to the Final Rule and 

Technical Support Document. The agencies’ interpretation of the CWA’s scope in 

this final rule is informed by the best available peer-reviewed science. The agencies

consulted with state and local officials throughout the process and solicited their 

comments on the proposed action and on the development of the rule. The agencies 

have included a detailed narrative of intergovernmental concerns raised during the 

course of the rule’s development and a description of the agencies’ efforts to address 

them with the final rule. [See 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-HQ-OW-2011-0880) is available in 

the docket for this rule.] The agencies will continue to work closely with the states to 

implement the final rule. State, tribal, and local governments have well-defined and 

longstanding relationships with the Federal government in implementing CWA 

programs and these relationships are not altered by the final rule. Forty-six states 

and the U.S. Virgin Islands have been authorized by EPA to administer the NPDES 

program under section 402, and two states have been authorized by the EPA to

administer the section 404 program. All states and forty tribes have developed 

water quality standards under the CWA for waters within their boundaries. A 

federal advisory committee has recently been announced to assist states in 

identifying the scope of waters assumable under the section 404 program.

The scope of jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. In addition, the rule 

provides greater clarity regarding which waters are subject to CWA jurisdiction, 

reducing the instances in which permitting authorities, including the states and 

tribes with authorized section 402 and 404 CWA permitting programs, would need 

to make jurisdictional determinations on a case-specific basis. Section 101(g) of the 

CWA states, “It is the policy of Congress that the authority of each State to allocate 

quantities of its water within its jurisdiction shall not be superseded, abrogated or 

otherwise impaired by [the CWA and] that nothing in [the CWA] shall be construed 

to supersede or abrogate rights to quantities of water which have been established 

by any State.” Similarly, Section 510(2) provides that nothing in the Act shall “be 

construed as impairing or in any manner affecting any right or jurisdiction of the 

States with respect to the waters . . . of such States.” The rule is entirely consistent 

with these policies. The rule does not impact or diminish State authorities to 

allocate water rights or to manage their water resources. Nor does the rule alter the 

CWA’s underlying regulatory process. Having been enacted with the objective of 

restoring and maintaining the chemical, physical, and biological integrity of our 

nation’s waters, the CWA serves to protect water quality. Neither the CWA nor the 

rule impairs the authorities of States to allocate quantities of water. Instead, the 

CWA and the rule serve to enhance the quality of the water that the States allocate. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

98

See Technical Support Document Section I for further discussion including 

regarding Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700 (1994).

West Virginia Attorney General, et al. (Doc. #7988)

1.132 The Proposed Rule disregards the statutory requirement mandating respect for State 

primacy in the area of land and water preservation and instead makes the Federal 

Government the primary regulator of much of intrastate waters and sometimes wet land 

in the United States. The Agencies may not arrogate to themselves traditional state 

prerogatives over intrastate water and land use; after all, there is no federal interest in 

regulating water activities on dry land and any activities not connected to interstate 

commerce. Instead, States by virtue of being closer to communities are in the best 

position to provide effective, fair, and responsive oversight of water and land use and 

have consistently and conscientiously done so. (p. 6)

Agency Response: See Preamble to the Final Rule and Technical Support 

Document Section I. The rule does not regulate land use. The agencies respect 

states’ critical roles in protecting water quality and this rule does not supplant that 

role or their authorities. The federal interest in protecting waters, as shown by the 

CWA, nonetheless is strong, and the rule is a reasonable, considered, legally sound 

and scientifically based delineation of waters subject to the CWA. 

The scope of regulatory jurisdiction in this rule is narrower than that under the 

existing regulation. Fewer waters will be defined as “waters of the United States” 

under the rule than under the existing regulations, in part because the rule puts 

important qualifiers on some existing categories such as tributaries. 

States, consistent with the CWA, retain full authority to implement their own 

programs to more broadly and more fully protect the waters in their jurisdiction. 

Under section 510 of the CWA, unless expressly stated, nothing in the CWA 

precludes or denies the right of any state to establish more protective standards or 

limits than the Federal CWA. Many states, for example, regulate groundwater, and 

some others protect wetlands that are vital to their 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 what waters are subject to CWA 

jurisdiction will reduce the need for permitting authorities, including the states and 

tribes with authorized section 402 and 404 CWA permitting programs, to make 

jurisdictional determinations on a case-specific basis.

State of Iowa (Doc. #8377)

1.133 The overriding concern of a diverse group of impacted stakeholders, including state 

leaders, is that the proposed rule will impose significant barriers to the advancement of 

innovative, state- and local -driven conservation and environmental practices that would 

actually advance our common goal of water quality. (p. 1)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. States, consistent with the CWA, retain full authority 

to implement their own programs to more broadly and more fully protect the 
Clean Water Rule Response to Comments – Topic 1: General Comments 

99

waters in their jurisdiction. Under section 510 of the CWA, unless expressly stated, 

nothing in the CWA precludes or denies the right of any state to establish more 

protective standards or limits than the Federal CWA. Many states, for example, 

regulate groundwater, and some others protect wetlands that are vital to their 

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 

what waters are subject to CWA jurisdiction will reduce the need for permitting 

authorities, including the states and tribes with authorized section 402 and 404 

CWA permitting programs, to make jurisdictional determinations on a case-specific 

basis.

State, tribal, and local governments have well-defined and longstanding 

relationships with the Federal government in implementing CWA programs and

these relationships are not altered by the final rule. Forty-six states and the U.S. 

Virgin Islands have been authorized by EPA to administer the NPDES program 

under section 402, and two states have been authorized by the EPA to administer 

the section 404 program. All states and forty tribes have developed water quality 

standards under the CWA for waters within their boundaries. A federal advisory 

committee has recently been announced to assist states in identifying the scope of 

waters assumable under the section 404 program.

The scope of jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. In addition, the rule 

provides greater clarity regarding which waters are subject to CWA jurisdiction, 

reducing the instances in which permitting authorities, including the states and 

tribes with authorized section 402 and 404 CWA permitting programs, would need 

to make jurisdictional determinations on a case-specific basis. Section 101(g) of the 

CWA states, “It is the policy of Congress that the authority of each State to allocate 

quantities of its water within its jurisdiction shall not be superseded, abrogated or 

otherwise impaired by [the CWA and] that nothing in [the CWA] shall be construed 

to supersede or abrogate rights to quantities of water which have been established 

by any State.” Similarly, Section 510(2) provides that nothing in the Act shall “be 

construed as impairing or in any manner affecting any right or jurisdiction of the 

States with respect to the waters . . . of such States.” The rule is entirely consistent 

with these policies. The rule does not impact or diminish State authorities to 

allocate water rights or to manage their water resources. Nor does the rule alter the 

CWA’s underlying regulatory process. Having been enacted with the objective of 

restoring and maintaining the chemical, physical, and biological integrity of our 

nation’s waters, the CWA serves to protect water quality. Neither the CWA nor the 

rule impairs the authorities of States to allocate quantities of water. Instead, the 

CWA and the rule serve to enhance the quality of the water that the States allocate. 

See Technical Support Document Section I for further discussion including 

regarding Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700 (1994). 
Clean Water Rule Response to Comments – Topic 1: General Comments 

100

1.134 Abandonment of Cooperative Federalism: States, not the Federal government, have the 

lead for advancing water quality through the CWA and more importantly through state -

local-private sector partnerships. Section 101(b) of t he CWA clearly states that, "it is the 

policy of the Congress to recognize, / preserve, and protect the primary responsibilities 

and rights of States to prevent, reduce, and eliminate pollution, to plan the development 

and use (including restoration, preservation and enhancement) of land and water 

resources...” Successful water quality efforts are driven by engaged stakeholders who 

have close relationships with state and local officials, not by Federally-prescribed 

directives. Given that state officials were not involved in the drafting of the proposed rule 

over the last few years, it is no surprise that the proposed rule will actually impede effort 

s to advancing innovative, state-based water quality initiatives, such as the State of Iowa 

Nutrient Reduction Strategy. As currently written, this rule is nothing more than Federal 

encroachment on the states. Many stakeholders believe the proposed rule is the most 

egregious example of Federal overreach in the last few decades - we unfortunately agree. 

The proposed rule confuses Federal control with environmental protect ion. The State of 

Iowa believes that environmental protection is best driven locally. Nobody cares more 

about local water quality than those of us who drink it, fish it, boat it, and swim it . 

Farmers, ranchers and even water quality advocates have noted that the proposed rule is 

likely to curtail many voluntary water quality improvement projects if such projects 

would trigger the cost and delay of seeking Federal permits. Such unintended 

consequences are precisely why the Federal government needs to better engage state 

governments, local communities, and affected industries. The EPA itself has recently 

done a better job engaging state and local stakeholders as part of its Clean Air Act 

implementation and that proactive outreach stands in stark contrast to the approach taken 

on this CWA rule. The EPA Headquarters' approach on this rule also starkly differs from 

the very good relationship that State of Iowa leaders have had in advancing state-led and 

public-private partnerships with EPA Regional Administrator Karl Brooks. (p. 1-2)

Agency Response: See Preamble to the Final Rule, Technical Support Document 

and Summary Response. States, consistent with the CWA, retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

in their jurisdiction. Under section 510 of the CWA, unless expressly stated, nothing 

in the CWA precludes or denies the right of any state to establish more protective 

standards or limits than the Federal CWA. Many states, for example, regulate 

groundwater, and some others protect wetlands that are vital to their 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 what waters are 

subject to CWA jurisdiction will reduce the need for permitting authorities, 

including the states and tribes with authorized section 402 and 404 CWA permitting 

programs, to make jurisdictional determinations on a case-specific basis. State, 

tribal, and local governments have well-defined and longstanding relationships with 

the Federal government in implementing CWA programs and these relationships 

are not altered by the final rule. Forty-six states and the U.S. Virgin Islands have 

been authorized by EPA to administer the NPDES program under section 402, and 

two states have been authorized by the EPA to administer the section 404 program. 

All states and forty tribes have developed water quality standards under the CWA 
Clean Water Rule Response to Comments – Topic 1: General Comments 

101

for waters within their boundaries. A federal advisory committee has recently been 

announced to assist states in identifying the scope of waters assumable under the 

section 404 program.

The scope of jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. In addition, the rule 

provides greater clarity regarding which waters are subject to CWA jurisdiction, 

reducing the instances in which permitting authorities, including the states and 

tribes with authorized section 402 and 404 CWA permitting programs, would need 

to make jurisdictional determinations on a case-specific basis. Section 101(g) of the 

CWA states, “It is the policy of Congress that the authority of each State to allocate 

quantities of its water within its jurisdiction shall not be superseded, abrogated or 

otherwise impaired by [the CWA and] that nothing in [the CWA] shall be construed 

to supersede or abrogate rights to quantities of water which have been established 

by any State.” Similarly, Section 510(2) provides that nothing in the Act shall “be 

construed as impairing or in any manner affecting any right or jurisdiction of the 

States with respect to the waters . . . of such States.” The rule is entirely consistent 

with these policies. The rule does not impact or diminish State authorities to 

allocate water rights or to manage their water resources. Nor does the rule alter the 

CWA’s underlying regulatory process. Having been enacted with the objective of 

restoring and maintaining the chemical, physical, and biological integrity of our 

nation’s waters, the CWA serves to protect water quality. Neither the CWA nor the 

rule impairs the authorities of States to allocate quantities of water. Instead, the 

CWA and the rule serve to enhance the quality of the water that the States allocate. 

See Technical Support Document Section I for further discussion including 

regarding Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700 (1994).

The EPA held over 400 meetings with interested stakeholders, including 

representatives from states, tribes, counties, industry, agriculture, environmental 

and conservation groups, and others during the public comment period. In keeping 

with the spirit of Executive Order 13132 and consistent with the agencies’ policy to 

promote communications with state and local governments, the agencies consulted 

with state and local officials throughout the process and solicited their comments on 

the proposed action and on the development of the rule. For this rule state and local 

governments were consulted at the onset of rule development in 2011, and following 

the publication of the proposed rule in 2014. In addition to engaging key 

organizations under federalism, the agencies sought feedback on this rule from a 

broad audience of stakeholders through extensive outreach to numerous state and 

local government organizations. The agencies have prepared a report summarizing 

their voluntary consultation and extensive outreach to state, local and county 

governments, the results of this outreach, and how these results have informed the 

development of today’s rule. This report, Final Summary of the Discretionary 

Consultation and Outreach to State, Local, and County Governments for the 

Revised Definition of Waters of the United States (Docket Id. No. EPA-HQ-OW2011-0880) is available in the docket for this rule.
Clean Water Rule Response to Comments – Topic 1: General Comments 

102

Agency Response: The proposed rule focuses heavily on the clean water purposes 

of the CWA statute by relying on the assumption that whatever affects waters is 

waters. This approach ignores another primary purpose of the CWA statute, which 

is the preservation of primary state responsibility for ordinary land-use decisions. 

Maintaining the primacy role of states is critical to the protection of water resources 

at the State level, but this rule proposes to remove that role and replace it with 

Federal control. Given the rule's nationwide scope, it provides inadequate clarity to 

address the unique situations and geographic features found within individual states 

and regions. Any rule proposed must provide a clear extent of Federal jurisdiction 

focused on perennial and navigable waters while preserving a role for states to 

address their unique situations for waters beyond these areas. (p. 5)

Agency Response: States, consistent with the CWA, retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

in their jurisdiction. Under section 510 of the CWA, unless expressly stated, nothing 

in the CWA precludes or denies the right of any state to establish more protective 

standards or limits than the Federal CWA. Many states, for example, regulate 

groundwater, and some others protect wetlands that are vital to their 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 what waters are 

subject to CWA jurisdiction will reduce the need for permitting authorities, 

including the states and tribes with authorized section 402 and 404 CWA permitting 

programs, to make jurisdictional determinations on a case-specific basis. The final 

rule reflects the judgment of the agencies in balancing the science, the agencies’ 

expertise, and the regulatory goals of providing clarity to the public while protecting 

the environment and public health, consistent with the law. See Summary 

Response, Preamble to the Final Rule Sections III and IV and Technical Support 

Document Sections I and II regarding the provisions of the final rule.

The scope of jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. In addition, the rule 

provides greater clarity regarding which waters are subject to CWA jurisdiction, 

reducing the instances in which permitting authorities, including the states and 

tribes with authorized section 402 and 404 CWA permitting programs, would need 

to make jurisdictional determinations on a case-specific basis. Section 101(g) of the 

CWA states, “It is the policy of Congress that the authority of each State to allocate 

quantities of its water within its jurisdiction shall not be superseded, abrogated or 

otherwise impaired by [the CWA and] that nothing in [the CWA] shall be construed 

to supersede or abrogate rights to quantities of water which have been established 

by any State.” Similarly, Section 510(2) provides that nothing in the Act shall “be 

construed as impairing or in any manner affecting any right or jurisdiction of the 

States with respect to the waters . . . of such States.” The rule is entirely consistent 

with these policies. The rule does not impact or diminish State authorities to 

allocate water rights or to manage their water resources. Nor does the rule alter the 

CWA’s underlying regulatory process. Having been enacted with the objective of 
Clean Water Rule Response to Comments – Topic 1: General Comments 

103

restoring and maintaining the chemical, physical, and biological integrity of our 

nation’s waters, the CWA serves to protect water quality. Neither the CWA nor the 

rule impairs the authorities of States to allocate quantities of water. Instead, the 

CWA and the rule serve to enhance the quality of the water that the States allocate. 

See Technical Support Document Section I for further discussion including 

regarding Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700 (1994).

 Navajo Nation Environmental Protection Agency (Doc. #10117)

1.135 Finally, the proposal recognize s that "States and tribes, consistent with the CWA, retain 

full authority to implement their own programs to more broadly or more fully protect the 

waters in their state [and on I" their lands]. Under Section 510 of the [Clean Water] Act, 

unless expressly stated in the CWA, nothing in the Act precludes or denies the right of 

any state or tribe to establish more protective standards or limit s than the Federal CWA." 

79 Fed. Reg. at 22 194. The Navajo Nation EPA Water Quality Program fully supports 

this statement. 

The Navajo Nation has its own Clean Water Act which protects various categories of 

"other waters') without the requirement to demonstrate a significant nexus to waters of 

the United States. The Navajo Nation EPA Water Quality Program appreciates that the 

proposed "waters of the United States" definition in no way limits the Navajo Nation's 

authority to protect the water quality of Navajo Nation surface waters. (p. 3)

Agency Response: Federally-recognized tribes, consistent with the CWA, retain 

full authority to implement their own programs to more broadly and more fully 

protect the waters in their jurisdiction. Congress has also provided roles for 

eligible Indian tribes to administer CWA programs over their reservations and 

expressed a preference for tribal regulation of surface water quality on Indian 

reservations to assure compliance with the goals of the CWA. See CWA section 

518; 56 FR 64876, 64878-79 (Dec. 12, 1991)). Tribes also have inherent sovereign 

authority to establish more protective standards or limits than the Federal 

CWA. Where appropriate, references to states in this document may also include 

eligible tribes. Many tribes, for example, regulate groundwater, and some others 

protect wetlands that are vital to their environment and economy but outside the 

jurisdiction of the CWA. Nothing in this rule limits or impedes any existing or 

future tribal efforts to further protect their waters. In fact, providing greater clarity 

regarding what waters are subject to CWA jurisdiction will reduce the need for 

permitting authorities, including the tribes with authorized section 402 and 404 

CWA permitting programs, to make jurisdictional determinations on a case-specific 

basis. 

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.
Clean Water Rule Response to Comments – Topic 1: General Comments 

104

The agencies have prepared a report summarizing their consultation with tribal 

nations, and how these results have informed the development of this rule. This 

report, Final Summary of Tribal Consultation for the Clean Water Rule: Definition 

of “Waters of the United States” Under the Clean Water Act; Final Rule (Docket Id. 

No. EPA-HQ-OW-2011-0880), is available in the docket for this rule.

Washington State Senate (Doc. #10871)

1.136 We are indeed proud of our state and local water quality programs, but we also support 

continuation of a strong federal and state partnership in the protection of our waters. As a 

coastal state and one sharing the downstream waters of two major interstate rivers (one of 

which is international), we strongly appreciate the "connectivity" of all of the waters in 

our region, and the strong role which federal water pollution control laws and programs 

must play in protecting and restoring our water resources. 

Furthermore, it would be an incorrect premise to argue that these federal regulations 

would undermine state laws. "Exhibit A" is the fact that Washington State has enacted no 

provisions that provide pollution control protections comparable to the dredge and fill 

permitting well as water quality standards provisions of the federal Clean Water Act. (p. 

3)

Agency Response: See Preamble to the Final Rule. States consistent with the 

CWA, retain full authority to implement their own programs to more broadly and 

more fully protect the waters in their jurisdiction. Under section 510 of the CWA, 

unless expressly stated, nothing in the CWA precludes or denies the right of any 

state to establish more protective standards or limits than the Federal CWA. Many 

states, for example, regulate groundwater, and some others protect wetlands that 

are vital to their 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 efforts to further protect their waters. In fact, providing greater clarity 

regarding what waters are subject to CWA jurisdiction will reduce the need for 

permitting authorities, including the states and tribes with authorized section 402 

and 404 CWA permitting programs, to make jurisdictional determinations on a 

case-specific basis.

New York State Attorney General (Doc. #10940)

1.137 It promotes the consistent and efficient implementation of State water pollution programs 

across the country in accordance with the principles of "cooperative federalism" on which 

this landmark statute is based. (p. 1-2)

Agency Response: See Preamble to the Final Rule, Technical Support Document 

and Summary Response. State, tribal, and local governments have well-defined and 

longstanding relationships with the Federal government in implementing CWA 

programs and these relationships are not altered by the final rule. Forty-six states 

and the U.S. Virgin Islands have been authorized by EPA to administer the NPDES 

program under section 402, and two states have been authorized by the EPA to

administer the section 404 program. All states and forty tribes have developed 

water quality standards under the CWA for waters within their boundaries. A 
Clean Water Rule Response to Comments – Topic 1: General Comments 

105

federal advisory committee has recently been announced to assist states in 

identifying the scope of waters assumable under the section 404 program.

The scope of jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. In addition, the rule 

provides greater clarity regarding which waters are subject to CWA jurisdiction, 

reducing the instances in which permitting authorities, including the states and 

tribes with authorized section 402 and 404 CWA permitting programs, would need 

to make jurisdictional determinations on a case-specific basis. This rule recognizes 

the unique role of states as confirmed by section 101(b) of the CWA which clearly 

states that it is Congressional policy to preserve the primary responsibilities and 

rights of states to prevent, reduce and eliminate pollution to plan the development 

and use of land and water resources, and to consult with the Administrator with 

respect to the exercise of the Administrator’s authority under the CWA. Under 

section 510 of the CWA, unless expressly stated, nothing in the CWA precludes or 

denies the right of any state to establish more protective standards or limits than the 

Federal CWA. Consistent with the CWA, and as is the case today, nothing in this 

rule limits or impedes any existing or future state efforts to protect their waters. 

States retain full authority to implement their own programs. The rule is consistent 

with Congress’ intent not to supersede, abrogate, or otherwise impair the authority 

of each state or tribe to manage the waters within its jurisdiction or to more broadly 

protect their waters.

Illinois State Senate, Jacksonville, IL (Doc. #11995)

1.138 Your rule expands federal authority under the CWA while bypassing Congress and 

creating unnecessary ambiguity, and the rule is flawed in a number of ways, which are 

highlighted below. 

... [ ]

 The rule would place features such as ditches, ephemeral drainages, ponds 

(natural or manmade), prairie pot holes, seeps, flood plains, and other 

occasionally or seasonally wet areas under federal jurisdiction. These areas are the 

reserved domain of the state government not the federal government.

 Rather than providing clarity and certainty in identifying covered waters, the rule 

instead creates more confusion and will inevitably cause unnecessary litigation. 

The rule relies heavily on undefined and vague concepts.

 The rule throws into confusion extensive state regulation under various CWA 

programs. Implementation of this rule will have significant implications on most 

if not all of the fourteen (14) statewide permits under the purview of the Illinois 

Department of Natural Resources. 

 Illinois municipal units of government and other jurisdictions will be profoundly 

impacted by the shift from state and local control of water-related land uses to

federal control. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

106

 There is concern that additional federal revenue or assistance in the future to help 

meet the cost of this rule will not be forthcoming. Expansion of federal 

jurisdiction under the Clean Water Act will in fact be an unfunded mandate on the 

public and private sectors. (p. 1-2)

Agency Response: See Preamble to the Final Rule, Technical Support Document 

and Summary Response. The rule does not regulate land use. State, tribal, and 

local governments have well-defined and longstanding relationships with the 

Federal government in implementing CWA programs and these relationships are 

not altered by the final rule. Forty-six states and the U.S. Virgin Islands have been 

authorized by EPA to administer the NPDES program under section 402, and two 

states have been authorized by the EPA to administer the section 404 program. All 

states and forty tribes have developed water quality standards under the CWA for 

waters within their boundaries. A federal advisory committee has recently been 

announced to assist states in identifying the scope of waters assumable under the 

section 404 program.

The scope of jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. In addition, the rule 

provides greater clarity regarding which waters are subject to CWA jurisdiction, 

reducing the instances in which permitting authorities, including the states and 

tribes with authorized section 402 and 404 CWA permitting programs, would need 

to make jurisdictional determinations on a case-specific basis. This rule recognizes 

the unique role of states as confirmed by section 101(b) of the CWA which clearly 

states that it is Congressional policy to preserve the primary responsibilities and 

rights of states to prevent, reduce and eliminate pollution to plan the development 

and use of land and water resources, and to consult with the Administrator with 

respect to the exercise of the Administrator’s authority under the CWA. Under 

section 510 of the CWA, unless expressly stated, nothing in the CWA precludes or 

denies the right of any state to establish more protective standards or limits than the 

Federal CWA. Consistent with the CWA, and as is the case today, nothing in this 

rule limits or impedes any existing or future state efforts to protect their waters. 

States retain full authority to implement their own programs. The rule is consistent 

with Congress’ intent not to supersede, abrogate, or otherwise impair the authority 

of each state to manage the waters within its jurisdiction or to more broadly protect 

their waters. This action does not contain any unfunded mandate under the 

regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995 

(UMRA) (2 U.S.C. 1531-1538), and does not significantly or uniquely affect small 

governments. The action imposes no enforceable duty on any state, local, or tribal 

governments, or the private sector, and does not contain regulatory requirements 

that might significantly or uniquely affect small governments. The definition of 

“waters of the United States” applies broadly to CWA programs.
Clean Water Rule Response to Comments – Topic 1: General Comments 

107

Utah State Senate et al. (Doc. #12338)

1.139 Currently, there are many waters that are subject to state regulations only. This proposed 

rule will significantly expand the scope of federal regulation, stripping the States of any 

governing authority. Given this expansion, we would ask if you can identify any water 

that would not be subject to federal jurisdiction unless specifically exempted. Such an 

expansion in federal jurisdiction would fundamentally alter our ability to make decisions 

regarding the use of land within our borders. Due to the fact that States often regulate 

more waters than are encompassed by the current definition of waters of the United States 

it is not clear what benefit the expansion of federal authority is designed to achieve. It 

appears that the Agencies did not even consider existing State authorities when 

developing its proposed rule. (p. 2)

Agency Response: See Preamble to the Final Rule, Technical Support Document 

and Summary Response. In keeping with the spirit of Executive Order 13132 and 

consistent with the agencies’ policy to promote communications with state and local 

governments, the agencies consulted with state and local officials throughout the 

process and solicited their comments on the proposed action and on the 

development of the rule. For this rule state and local governments were consulted at 

the onset of rule development in 2011, and following the publication of the proposed 

rule in 2014. In addition to engaging key organizations under federalism, the 

agencies sought feedback on this rule from a broad audience of stakeholders 

through extensive outreach to numerous state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule. 

State, tribal, and local governments have well-defined and longstanding 

relationships with the Federal government in implementing CWA programs and 

these relationships are not altered by the final rule. Forty-six states and the U.S. 

Virgin Islands have been authorized by EPA to administer the NPDES program 

under section 402, and two states have been authorized by the EPA to administer 

the section 404 program. All states and forty tribes have developed water quality 

standards under the CWA for waters within their boundaries. A federal advisory 

committee has recently been announced to assist states in identifying the scope of 

waters assumable under the section 404 program.

The scope of jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. In addition, the rule 

provides greater clarity regarding which waters are subject to CWA jurisdiction, 

reducing the instances in which permitting authorities, including the states and 

tribes with authorized section 402 and 404 CWA permitting programs, would need 

to make jurisdictional determinations on a case-specific basis. This rule recognizes 
Clean Water Rule Response to Comments – Topic 1: General Comments 

108

the unique role of states as confirmed by section 101(b) of the CWA which clearly 

states that it is Congressional policy to preserve the primary responsibilities and 

rights of states to prevent, reduce and eliminate pollution to plan the development 

and use of land and water resources, and to consult with the Administrator with 

respect to the exercise of the Administrator’s authority under the CWA. Under 

section 510 of the CWA, unless expressly stated, nothing in the CWA precludes or 

denies the right of any state to establish more protective standards or limits than the 

Federal CWA. Consistent with the CWA, and as is the case today, nothing in this 

rule limits or impedes any existing or future state efforts to protect their waters. 

States retain full authority to implement their own programs. The rule is consistent 

with Congress’ intent not to supersede, abrogate, or otherwise impair the authority 

of each state to manage the waters within its jurisdiction or to more broadly protect 

their waters.

Kansas Water Authority (Doc. #12350)

1.140 The KWA concurs with the letter sent by Governor Sam Brownback, on behalf of the 

state of Kansas, conveying concerns over the rule. The rule, as proposed, not only has 

significant impact on Kansas landowners and land managers in their ability to make land 

use decisions, but also places a burden upon, and impacts the state's ability to manage and 

regulate the water resources under Kansas jurisdiction. 

The KWA is very concerned about the following items in particular:

 The KWA is responsible for prioritizing the funding of the Kansas Water Plan 

which is used to implement water quality improvement projects. This proposed 

rule and the associated costs with it could cause redirection of priority water 

improvements the state has worked so hard to address over the past several years. 

Kansas consistently ranks in the top of the nation in reported sediment, phosphorous and 

nitrogen load reduction. Kansas has seen improvements in water quality in recent years 

and corresponding removal of streams from the impaired 303d list. In the past five years 

in many water bodies have removed in our efforts. These improvements are the result of 

appropriate positive coordination of federal and state agencies with individual 

landowners. The proposed rule changes that balance to lessen the burden on the federal 

government marginally, while creating significant additional unnecessary requirements 

for both state agencies and individual landowners. The net effect rule will be additional 

expenditures at the state level without a corresponding improvement in water quality. (p. 

1-2)

Agency Response: The rule does not regulate land use. See Preamble to Final 

Rule. The final rule does not establish any new regulatory requirements. Instead, it 

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

consistent with the CWA, Supreme Court precedent, and science. As such, there 

are no changes in the relationship between federal, state, tribal and local 

implementors of CWA programs or to other state or tribal programs managing 

these resources. States retain full authority to implement their own programs to 

more broadly and more fully protect the waters under their jurisdiction. Therefore, 

consistent with the CWA nothing in this rule limits or impedes any existing or 
Clean Water Rule Response to Comments – Topic 1: General Comments 

109

future state efforts to protect their waters. Additionally, by providing greater clarity 

regarding what waters are subject to CWA jurisdiction, the frequency with which 

states and tribes with authorized section 402 and 404 CWA permitting programs 

will need to make jurisdictional determinations on a case-specific basis is reduced.

Department of Justice, State of Montana (Doc. #13625)

1.141 The overreach of your proposal is objectionable not for the protections your agencies 

seek to extend. Montanans long ago decided our waters are worth protecting and acted 

accordingly. The problem is that your overreach impinges directly on our state 

sovereignty. It offends Congress's stated intention in the Clean Water Act to recognize, 

protect and preserve the primary rights of the States to manage their lands and water 

resources. It violates, in my opinion, the admonitions of the U.S. Supreme Court that the 

Act's jurisdiction is and must be limited to waters that have a significant nexus to core 

waters. In short, the proposal seeks to extend the reach of the Act beyond what is allowed 

by the Commerce Clause. (p. 3)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I, II, VII, VIII and IX. See 

also Response to Comments Compendium Topic 5 – Significant Nexus, Introduction 

and summary response to comments 1, 2, 3, 4, and 5. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. The scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. States and tribes retain 

full authority to implement their own programs to more broadly and more fully 

protect the waters under their jurisdiction. Therefore, consistent with the CWA, 

nothing in this rule limits or impedes any existing or future state or tribal efforts to 

protect their waters. Additionally, by providing greater clarity regarding what 

waters are subject to CWA jurisdiction, the frequency with which states and tribes 

with authorized section 402 and 404 CWA permitting programs will need to make 

jurisdictional determinations on a case-specific basis is reduced.

Wyoming Association of Conservation Districts (Doc. #14068)

1.142 The Wyoming State Engineer articulated the Association’s concerns succinctly in 

testimony he provided to the United States House of Representatives Committee on 

Natural Resources; Subcommittee on Water and Power Hearing:

‘The Clean Water Act limits the federal jurisdiction over state waters recognizing that the 

states are better situated to make decisions regarding water, including water quality in 

minor waters that are not of national significance. The Wyoming Department of 

Environmental Quality, Water Quality Division is the agency responsible for establishing 

water quality standards and TMDLs, administering the NPDES discharge permitting 
Clean Water Rule Response to Comments – Topic 1: General Comments 

110

program and providing section 401 water quality certifications for federally permitted 

projects on waters in Wyoming. The proposed rule attempts to erode Wyoming’s primary 

authority over low flow, remote, headwater stream channels and isolated ponds and 

wetlands by expanding the concept of national significance.”

The Association incorporates by reference herein, attached hereto, the testimony provided 

by Mr. Pat Tyrrell, Wyoming State Engineer to the above referenced Committee. Mr. 

Tyrell’s testimony substantively addresses the legal issues and concerns held by the 

Association with the proposed rule.25 (p. 2)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document. See also Response to Comments 

Compendium Topic 5 – Significant Nexus, Introduction and summary response to 

comments 1, 2, 3, 4, and 5. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

part because the rule puts important qualifiers on some existing categories such as 

tributaries. States and tribes retain full authority to implement their own programs 

to more broadly and more fully protect the waters under their jurisdiction. 

Therefore, consistent with the CWA, nothing in this rule limits or impedes any 

existing or future state or tribal efforts to protect their waters. Additionally, by 

providing greater clarity regarding what waters are subject to CWA jurisdiction, 

the frequency with which states and tribes with authorized section 402 and 404 

CWA permitting programs will need to make jurisdictional determinations on a 

case-specific basis is reduced. Section 101(g) of the CWA states, “It is the policy of 

Congress that the authority of each State to allocate quantities of its water within its 

jurisdiction shall not be superseded, abrogated or otherwise impaired by [the CWA 

and] that nothing in [the CWA] shall be construed to supersede or abrogate rights 

to quantities of water which have been established by any State.” Similarly, Section 

510(2) provides that nothing in the Act shall “be construed as impairing or in any 

manner affecting any right or jurisdiction of the States with respect to the waters . . 

. of such States.” The rule is entirely consistent with these policies. The rule does 

not impact or diminish State authorities to allocate water rights or to manage their 

water resources. Nor does the rule alter the CWA’s underlying regulatory process. 

Having been enacted with the objective of restoring and maintaining the chemical, 

physical, and biological integrity of our nation’s waters, the CWA serves to protect 

water quality. Neither the CWA nor the rule impairs the authorities of States to 

allocate quantities of water. Instead, the CWA and the rule serve to enhance the 

 

25 United States House of Representatives Committee on Natural Resources Subcommittee on Water and Power 

Hearing: “New Federal Schemes to Soak Up Water Authority: Impacts on States, Water Users, Recreation, and 

Jobs.” Testimony of Patrick Tyrrell, P.E. Wyoming State Engineer; June 24, 2014
Clean Water Rule Response to Comments – Topic 1: General Comments 

111

quality of the water that the States allocate. See Technical Support Document 

Section I for further discussion including regarding Jefferson County v. Washington 

Dept. of Ecology, 511 U.S. 700 (1994).

1.143 EPA presents the following additional rationale for exerting jurisdiction:

According to a study by the Environmental Law Institute, 36 states have legal limitations 

on their ability to fully protect waters that are not covered by the Clean Water Act.26

EPA relies on the above referenced report as the basis for arguing that waters are 

unprotected, and subsequently justify broadly defining those waters to be considered 

jurisdiction. There are a number of reasons why reliance on the lack of state authority and 

the referenced report is problematic.

1) State Authorities – The Supreme Court, to the Association understanding, did not 

condition federal jurisdiction based on whether EPA or a Law Institute felt a state did or 

didn’t have adequate regulatory authorities. The jurisdiction issue is unrelated to a state’s 

current regulatory scheme and should be based on whether a specific water has a 

“significant nexus” or impact to a “traditionally navigable water”. Not on whether the 

agency felt that regulatory controls in the state are adequate or not. How to regulate and 

protect non-jurisdictional waters is an authority retained by the respective state.

2) The above referenced report, repeatedly referenced throughout the extensive materials 

published by EPA advocating the rule, cannot be accepted as unbiased nor accurate 

evaluation of state authorities. Especially given that the Institute filed an Amicus in the 

Rapanos case arguing for federal jurisdiction27 and EPA provided the funding for the 

referenced report.

3) The Association also believes the report contains inaccuracies as it pertains to whether 

a state had authorities in place for non-jurisdictional waters to protect water quality and 

also their analysis of limitations placed on the authority. As an example, the report claims 

that Wyoming does not have state coverage of non-jurisdictional waters and that the state 

has limitations placed on it, however a review of Wyoming Chapter 1 Surface Water 

quality regulations defines waters of the state as follows:

(xlvii) “Surface waters of the state” means all perennial, intermittent and ephemeral 

defined drainages, lakes, reservoirs and wetlands which are not man-made retention 

ponds used for the treatment of municipal, agricultural or industrial waste; and all other 

bodies of surface water, either public or private which are wholly or partially within the 

boundaries of the state. Nothing in this definition is intended to expand the scope of the 

Environmental Quality Act, as limited in W.S. 35-11-1104.28

The Environmental Quality Act limitations are described as follows:

 

26 http://www.epa.gov/uswaters

27 Brief of Environmental Law Institute as Amicus Curiae (co author), Rapanos v. United States and Carabell v. U.S. 

Army Corps of Engineers, Nos. 04-1043, -1384 (U.S. filed Jan. 2006).

“ELI has concluded from its long-standing involvement in wetlands law and policy that the current comprehensive 

federal program is absolutely essential to the health of our Nations waters.”

28 http://deq.state.wy.us/wqd/WQDrules/Chapter_01.pdf
Clean Water Rule Response to Comments – Topic 1: General Comments 

112

§ 35-11-1104. Limitation of scope of provisions.29

(a) Nothing in this act:

(i) Grants to the department or any division thereof any jurisdiction or authority with 

respect to pollution existing solely within commercial and industrial plants, works or 

shops;

(ii) Affects the relations between employers and employees with respect to or arising out 

of any condition of pollution;

(iii) Limits or interferes with the jurisdiction, duties or authority of the state engineer, the 

state board of control, the director of the Wyoming game and fish department, the state 

mine inspector, the oil and gas supervisor or the oil and gas conservation commission, or 

the occupational health and safety commission.

The above limitations have little to nothing to do with limiting the state of Wyoming, 

Department of Environmental Quality’s authorities to protect water quality.

Specific to the examples provided by EPA where enforcement actions were abandoned 

due to the difficulty of demonstrating jurisdiction based on a search of water quality 

enforcement authorities in the respective states, it appears that all three states have water 

quality protection and enforcement authorities and subsequently could have addressed the 

alleged discharges described by EPA.30 (p. 8-9)

Agency Response: See Summary Response. The final rule reflects the judgment 

of the agencies in balancing the science, the agencies’ expertise, and the regulatory 

goals of providing clarity to the public while protecting the environment and public 

health, consistent with the law. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document Sections I and II regarding 

the provisions of the final rule.

The agencies’ interpretation of the CWA’s scope in this final rule is informed by the 

best available peer-reviewed science. The agencies consulted with state and local 

officials throughout the process and solicited their comments on the proposed action 

and on the development of the rule. The agencies have included a detailed narrative 

of intergovernmental concerns raised during the course of the rule’s development 

and a description of the agencies’ efforts to address them with the final rule. [See 

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-HQ-OW-2011-0880) is available in the docket for this rule.] 

The agencies will continue to work closely with the states to implement the final 

rule.

 

29 http://legisweb.state.wy.us/LSOWEB/StatutesDownload.aspx

30 Texas Commission of Environmental Quality; Enforcement Initiation Criteria (EIC); 

https://www.tceq.texas.gov/assets/public/agency/eic-a4-tpdes-rev-14.pdf Environmental Protection Division; A 

Division of the Georgia Department of Natural Resources http://epd.georgia.gov/watershed-protection-branch 

http://epd.georgia.gov/enforcement Arizona Department of Environmental Quality; 

http://www.azdeq.gov/function/forms/docs.html#hand
Clean Water Rule Response to Comments – Topic 1: General Comments 

113

Commonwealth Pennsylvania Department of Agriculture (Doc. #14465)

1.144 The Pennsylvania Department of Agriculture (PDA) is frustrated and disappointed to 

discover that in formulating this rulemaking, EPA is relying on inadequate and inaccurate 

information regarding the breadth and scope of state law programs. It is of great concern 

to PDA that, despite delegation agreements referencing existing state laws, and the 

routine interaction with the state Department of Environmental Protection (DEP), EPA 

would rely on the 2013 Environmental Law Institute ("ELI'') study titled: State 

Constraints - State-Imposed Limitations on the Authority of Agencies to Regulate Waters 

Beyond the Scope of the Federal Clean Water Act. This assessment is named as 

background information supporting the rulemaking,31 in articles32 and in public 

presentations by EPA officials,33 although it is not cited in the rulemaking. One of PDA's 

main concerns with this rulemaking is EPA's unfamiliarity with existing state law 

programs reflected by its reliance on the ELI study, which is cited for the proposition that 

this rulemaking is needed because state programs to protect water resources are lacking, 

and purporting that the proposed rule will address states' regulatory loopholes. EPA has 

asserted that Pennsylvania is one such state. This characterization and assertion by EPA 

is completely erroneous and reflects a lack of due diligence and coordination with states. 

(p. 2)

Agency Response: See Summary Response. The final rule reflects the judgment of 

the agencies in balancing the science, the agencies’ expertise, and the regulatory 

goals of providing clarity to the public while protecting the environment and public 

health, consistent with the law. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document Sections I and II regarding 

the provisions of the final rule. The agencies’ interpretation of the CWA’s scope in 

this final rule is informed by the best available peer-reviewed science. The agencies 

consulted with state and local officials throughout the process and solicited their 

comments on the proposed action and on the development of the rule. The agencies 

have included a detailed narrative of intergovernmental concerns raised during the 

course of the rule’s development and a description of the agencies’ efforts to address 

them with the final rule. [See 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-HQ-OW-2011-0880) is available in 

the docket for this rule.] The agencies will continue to work closely with the states to 

implement the final rule.

State of Wyoming (Doc. #14584)

1.145 Most waters, with the exception of those that are interstate, navigable, or consistently and 

directly connected to navigable/interstate waters (as established in court decisions) are 

best regulated by the individual states. This important principle is consistent with the Act, 

and the proposed rule runs counter to it. 

 

31 http://www.epa.gov/uswaters/documents-re1ated-proposed-definition-waters-united-states-under-clean-water-act

32 http://yosemite.epa.gov/opal admpress.nsf/3881 d73 f4d4aaa0b8 5257359003 f5348/ae90dedd9595 a0248 5257 

ca600557 e3 0

33 June 13,2014, Berks County, EPA Official Nancy Stoner
Clean Water Rule Response to Comments – Topic 1: General Comments 

114

The proposed rule relies on only one purpose of the Act, "to restore and maintain the 

chemical, physical, and biological integrity of the Nation's waters" and ignores the

equally important purpose "to recognize, preserve, and protect the primary 

responsibilities and rights of states to prevent, reduce, and eliminate pollution, to plan the 

development and use ... of land and water resources." Compare Definition of the "Waters 

of the United States" Under the Clean Water Act, 79 Fed. Reg. 22187,22194-95 

(proposed April21, 2014) with 33 U.S.C. § 1251(a)-(b). The proposed rule overrides the 

jurisdictional responsibilities of states for waters within their boundaries and places 

almost every body of water in the country under the control of federal agencies. It takes 

away the primary rights of the states recognized in the Act. 

States should be consulted for any proposed change in regulation under the Act and 

certainly should have been consulted early and continuously for a drastic proposal like 

this one. Yet state governments were not appropriately consulted. 

On September 12, 2014, Administrator McCarthy hosted a meeting in Washington, D.C. 

During that meeting, EPA staff acknowledged that little was done to solicit input from 

policy makers in state government on the proposed rule. The EPA indicated it viewed 

public comments related to previously proposed and withdrawn guidance documents as 

sufficient input to move forward. The EPA has been visiting stakeholders to provide 

"information" during an extended comment period. At least one of these sessions 

occurred in Wyoming. The EPA announced the discussions were "not recorded, not for 

official comment, and only to provide information." 

Public information presentations are an inadequate alternative to the consultation process 

that should have occurred specific to the proposed rule. Using comments received in 

2011 on withdrawn guidance in lieu of new consultation for this rulemaking, is 

unacceptable and falls short of the requirements of Executive Order 13132. See 64 Fed. 

Reg. 43255 (August 10, 1999). (p. 1-2)

Agency Response: The final rule reflects the judgment of the agencies in 

balancing the science, the agencies’ expertise, and the regulatory goals of providing 

clarity to the public while protecting the environment and public health, consistent 

with the law. See Summary Response, Preamble to the Final Rule Sections III and 

IV and Technical Support Document Sections I and II regarding the provisions of 

the final rule. The final rule does not establish any new regulatory requirements. 

Instead, it is a definitional rule that clarifies the scope of “waters of the United 

States” consistent with the CWA, Supreme Court precedent, and science. As such, 

there are no changes in the relationship between federal, state, tribal and local 

implementers of CWA programs or to other state or tribal programs managing 

these resources. The scope of regulatory jurisdiction in this rule is narrower than 

that under the existing regulation. Fewer waters will be defined as “waters of the 

United States” under the rule than under the existing regulations, in part because 

the rule puts important qualifiers on some existing categories such as tributaries. 

States and tribes retain full authority to implement their own programs to more 

broadly and more fully protect the waters under their jurisdiction. The agencies’ 

interpretation of the CWA’s scope in this final rule is informed by the best available 

peer-reviewed science. The EPA held over 400 meetings with interested 

stakeholders, including representatives from states, tribes, counties, industry, 
Clean Water Rule Response to Comments – Topic 1: General Comments 

115

agriculture, environmental and conservation groups, and others during the public 

comment period. In keeping with the spirit of Executive Order 13132 and consistent 

with the agencies’ policy to promote communications with state and local 

governments, the agencies consulted with state and local officials throughout the 

process and solicited their comments on the proposed action and on the 

development of the rule. For this rule state and local governments were consulted at 

the onset of rule development in 2011, and following the publication of the proposed 

rule in 2014. In addition to engaging key organizations under federalism, the 

agencies sought feedback on this rule from a broad audience of stakeholders 

through extensive outreach to numerous state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule.

1.146 The Agencies should start over with respect to the proposed rule. They should not try to 

exert regulatory authority over shallow subsurface groundwater, irrigation ditches, small, 

intermittent or ephemeral streams, or other small water bodies. They should defer to the 

states for the regulation of these and all other waters that are intrastate with only minimal 

or temporary hydraulic conductivity to traditional waters of the United States. (p. 3)

Agency Response: The final rule reflects the judgment of the agencies in 

balancing the science, the agencies’ expertise, and the regulatory goals of providing 

clarity to the public while protecting the environment and public health, consistent 

with the law. See Summary Response, Preamble to the Final Rule Sections III and 

IV and Technical Support Document Sections I and II regarding the provisions of 

the final rule. The rule expressly indicates in paragraph (b) that groundwater, 

including groundwater drained through subsurface drainage systems is excluded 

from the definition of “waters of the United States.” While groundwater is excluded 

from jurisdiction, the agencies recognize that the science demonstrates that waters 

with a shallow subsurface connection to jurisdictional waters can have important 

effects on downstream waters. When assessing whether a water evaluated in (a)(7) 

or (a)(8) performs any of the functions identified in the rule’s definition of 

significant nexus, the significant nexus determination can consider whether shallow 

subsurface connections contribute to the type and strength of functions provided by 

a water or similarly situated waters. However, neither shallow subsurface 

connections nor any type of groundwater are themselves “waters of the United 

States.” The agencies understand that there is a continuum of water beneath the 

ground surface, from wet soils to shallow subsurface lenses to shallow aquifers to 

deep groundwaters, all of which can have impacts to surface waters, but for 

significant nexus purposes under this rule, the agencies have chosen to focus on 

shallow subsurface connections because those are likely to both have significant and 

near-term impacts on downstream surface waters and are reasonably identifiable 

for purposes of rule implementation. The scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 
Clean Water Rule Response to Comments – Topic 1: General Comments 

116

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. See also Preamble to the Final Rule III and IV and 

Technical Support Document Sections I, II, VII, VIII and IX.

Maine Department of Environmental Protection (Doc. #14624)

1.147 Maine DEP plays the lead role in the regulation of impacts to water quality in Maine, 

through delegated authority under the Clean Water Act and through regulatory powers 

reserved to the state. Protection of the waters of the state of Maine is essential to Maine's 

identity and its rich environmental and natural resource heritage. Much of Maine's 

economy directly depends upon the continued high quality of all waters of the state, 

including those waters regulated by the Clean Water Act ("CWA"). EPA has delegated to 

Maine the authority to administer many sections of the CWA, including those which rely 

upon the definition of WOTUS: Sections 303, 401 and 402. In addition to administration 

of the CWA, DEP administers several other laws which regulate the land and water use 

of the state, including by not limited to the Natural Resources Protection Act (38 

M.R.S.A §480-A et seq.), stormwater management law (38 M.R.S.A §420-D), Site 

Location of Development laws (38 M.R.S.A §481 et seq.), and shoreland zoning laws (38 

M.R.S.A §435 et seq.). 

Given Maine's rich environmental heritage as well as Maine's dependence on the high 

standard of environmental quality to ensure a prosperous economy, DEP regulates 

activities which impact waters of the state. Waters of the state regulated by the State of 

Maine include surface and subsurface waters. (38 M.R.S.A. §361-A(7)) Although the 

Rapanos34 opinions sought to clarify what is and is not considered jurisdictional under the 

CWA, neither the plurality opinion written by Justice Scalia nor the concurrence written 

by Justice Kennedy overturned the premise described in SWANCC35 that the states have 

the traditional and primary power of land and water use (see SWANCC at 174). Pursuant 

to the 10t h Amendment of the U.S. Constitution, the Agencies' jurisdiction under the 

CWA is limited to the powers delegated to the United States by the Constitution (in this 

instance, by the Commerce Clause in Article I, Section 8), and all remaining powers are 

reserved to the States. (p. 1-2)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document Section I. This rule recognizes the unique role of 

states as confirmed by section 101(b) of the CWA which clearly states that it is 

Congressional policy to preserve the primary responsibilities and rights of states to 

prevent, reduce and eliminate pollution to plan the development and use of land and 

water resources, and to consult with the Administrator with respect to the exercise 

of the Administrator’s authority under the CWA. Under section 510 of the CWA, 

unless expressly stated, nothing in the CWA precludes or denies the right of any 

state to establish more protective standards or limits than the Federal CWA. 

Consistent with the CWA, and as is the case today, nothing in this rule limits or 

 

34 Rapanos v. United States, 547 U.S. 715 (2006).

35 Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 

(2001).
Clean Water Rule Response to Comments – Topic 1: General Comments 

117

impedes any existing or future state efforts to protect their waters. States retain full 

authority to implement their own programs. In fact, providing greater clarity 

regarding what waters are subject to CWA jurisdiction will reduce the need for 

permitting authorities, including the states and tribes with authorized section 402 

and 404 CWA permitting programs, to make jurisdictional determinations on a 

case-specific basis. The rule is consistent with Congress’ intent not to supersede, 

abrogate, or otherwise impair the authority of each state or tribe to manage the 

waters within its jurisdiction or to more broadly protect their waters.

State of Oklahoma (Doc. #14625)

1.148 While not stated explicitly in the proposed rule, expansion of EPA and Corps jurisdiction 

over any waters not previously considered WOTUS must be predicated on a belief that 

states are incapable of protecting and managing such waters - an assertion that simply is 

not supported by science or facts. The OWRB and other state agencies in Oklahoma have 

been responsible and effective stewards of water quality and quantity management both 

before and since enactment of the CWA. In fact, many of Oklahoma's success stories are 

highlighted in EPA's own publications and webpages and are due to state and local 

voluntary conservation programs, effective water management strategies, and superior 

water quality monitoring networks. (p. 11)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document Section. This rule recognizes the unique role of states 

as confirmed by section 101(b) of the CWA which clearly states that it is 

Congressional policy to preserve the primary responsibilities and rights of states to 

prevent, reduce and eliminate pollution to plan the development and use of land and 

water resources, and to consult with the Administrator with respect to the exercise 

of the Administrator’s authority under the CWA. Under section 510 of the CWA, 

unless expressly stated, nothing in the CWA precludes or denies the right of any 

state to establish more protective standards or limits than the Federal CWA. 

Consistent with the CWA, and as is the case today, nothing in this rule limits or 

impedes any existing or future state efforts to protect their waters. States retain full 

authority to implement their own programs. In fact, providing greater clarity 

regarding what waters are subject to CWA jurisdiction will reduce the need for 

permitting authorities, including the states and tribes with authorized section 402 

and 404 CWA permitting programs, to make jurisdictional determinations on a 

case-specific basis. The rule is consistent with Congress’ intent not to supersede, 

abrogate, or otherwise impair the authority of each state or tribe to manage the 

waters within its jurisdiction or to more broadly protect their waters.

Western Governors Association (Doc. #14645)

1.149 The Western Governors appreciate the proposed rule’s objective to clarify the meaning of 

“Waters of the United States” in the CWA. Any changes within the proposed rule must 
Clean Water Rule Response to Comments – Topic 1: General Comments 

118

stay within the limits set by Congress and the Supreme Court,36 recognizing the authority 

of states to manage water within their boundaries. 

The Governors appreciate that the SAB’s connectivity study was released prior to the 

close of the proposed rule’s comment period. We note with concern, however, that the 

Board has indicated its support for utilizing connectivity of water as a scientific basis for 

even broader federal agency jurisdiction under the CWA than what is now suggested 

under the proposed rule.37 We urge you to remember that legal authority and precedent 

are at the core of the question of the agencies’ jurisdiction under the Act. Both hydrology 

and laws vary from state to state. The best policy when considering the intersection of 

science and law is one that allows for regional flexibility and acknowledges the role of 

state experts who live with — and intimately understand — the issue at hand. (p. 1-2)

Agency Response: The final rule reflects the judgment of the agencies in 

balancing the science, the agencies’ expertise, and the regulatory goals of providing 

clarity to the public while protecting the environment and public health, consistent 

with the law. See Summary Response, Preamble to the Final Rule Sections III and 

IV and Technical Support Document Sections I and II regarding the provisions of 

the final rule.

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

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

identifying waters protected under the CWA clearer, simpler, and faster. In this 

final rule, the agencies are responding to those requests from across the country to 

make the process of identifying waters protected under the CWA easier to 

understand, more predictable, and more consistent with the law and peer-reviewed 

science.

The science demonstrates that waters fall along a gradient of chemical, physical, and 

biological connection to traditional navigable waters, and it is the agencies’ task to 

determine where along that gradient to draw lines of jurisdiction under the CWA. 

In making this determination, the agencies must rely, not only on the science, but 

also on their technical expertise and practical experience in implementing the CWA 

during a period of over 40 years. In addition, the agencies are guided, in part, by 

the compelling need for clearer, and more consistent, and easily implementable 

standards to govern administration of the Act, including brighter lines where 

feasible and appropriate. 

This rule recognizes the unique role of states as confirmed by section 101(b) of the 

CWA which clearly states that it is Congressional policy to preserve the primary 

responsibilities and rights of states to prevent, reduce and eliminate pollution to 

plan the development and use of land and water resources, and to consult with the 

Administrator with respect to the exercise of the Administrator’s authority under

 

36 See Supreme Court rulings in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers 

(SWANCC), 531 U.S. 159 (2001) and in Rapanos v. United States, 547 U.S. 715 (2006).

37 Letter from David T. Allen, Chair of the EPA Science Advisory Board, to EPA Administrator Gina McCarthy. 

Science Advisory Board (SAB) Consideration of the Adequacy of the Scientific and Technical Basis of the EPA’s 

Proposed Rule titled “Definition of Waters of the United States under the Clean Water Act,” September 30, 2014.
Clean Water Rule Response to Comments – Topic 1: General Comments 

119

the CWA. 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. Consistent with the CWA, and as is the 

case today, nothing in this rule limits or impedes any existing or future state or 

tribal efforts to protect their waters. States and tribes retain full authority to 

implement their own programs. In fact, providing greater clarity regarding what 

waters are subject to CWA jurisdiction will reduce the need for permitting 

authorities, including the states and tribes with authorized section 402 and 404 

CWA permitting programs, to make jurisdictional determinations on a case-specific 

basis. The rule is consistent with Congress’ intent not to supersede, abrogate, or 

otherwise impair the authority of each state or tribe to manage the waters within its 

jurisdiction or to more broadly protect their waters. 

1.150 States have jurisdiction over water resource allocation decisions and are responsible for 

how to balance state water resource needs within CWA objectives. New regulations, 

rulemaking, and guidance should recognize this authority. 

a. CWA Jurisdiction: Western Governors urge EPA and the Corps to engage the states 

as co-regulators and ensure that state water managers have a robust and meaningful voice 

in the development of any rule regarding CWA jurisdiction, particularly in the early 

stages of development before irreversible momentum precludes effective state 

participation.

b. Total Maximum Daily Loads (TMDLs)/Adaptive Management: States should have 

the flexibility to adopt water quality standards and set total maximum daily loads 

(TMDLs) that are tailored to the specific characteristics of Western water bodies, 

including variances for unique state and local conditions.

c. Anti-degradation: CWA Section 303 gives states the primary responsibility to 

establish water quality standards (WQS) subject to EPA oversight. Given the states’ 

primary role in establishing WQS, EPA should directly involve the states in the 

rulemaking process for any proposed changes to its existing regulations. Before imposing 

new anti-degradation policies or implementation requirements, EPA should document the 

need for new requirements and strive to ensure that new requirements do not interfere 

with sound existing practices.

d. Groundwater: States have exclusive authority over the allocation and administration 

of rights to use groundwater located within their borders and are primarily responsible for 

allocating, protecting, managing, and otherwise controlling the resource. The regulatory 

reach of the CWA was not intended to, and should not, be applied to the management and 

protection of groundwater resources. The federal government should not develop a 

groundwater quality strategy; instead, it must recognize and respect state primacy, reflect 

a true state-federal partnership, and comply with current federal statutory authorities. (p. 

5-6)

Agency Response: The comments concerning Total Maximum Daily Loads 

(TMDLs)/Adaptive Management, Antidegradation are outside the scope of the rule. 

The final rule does not establish any new regulatory requirements. Instead, it is a 

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

with the CWA, Supreme Court precedent, and science. As such, there are no 
Clean Water Rule Response to Comments – Topic 1: General Comments 

120

changes in the relationship between federal, state, tribal and local implementors of 

CWA programs or to other state or tribal programs managing these resources. The 

scope of regulatory jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. States and tribes retain 

full authority to implement their own programs to more broadly and more fully 

protect the waters under their jurisdiction. The agencies’ interpretation of the 

CWA’s scope in this final rule is informed by the best available peer-reviewed 

science. The EPA held over 400 meetings with interested stakeholders, including 

representatives from states, tribes, counties, industry, agriculture, environmental 

and conservation groups, and others during the public comment period. In keeping 

with the spirit of Executive Order 13132 and consistent with the agencies’ policy to 

promote communications with state and local governments, the agencies consulted 

with state and local officials throughout the process and solicited their comments on 

the proposed action and on the development of the rule. For this rule state and local 

governments were consulted at the onset of rule development in 2011, and following 

the publication of the proposed rule in 2014. In addition to engaging key

organizations under federalism, the agencies sought feedback on this rule from a 

broad audience of stakeholders through extensive outreach to numerous state and 

local government organizations. The agencies have prepared a report summarizing 

their voluntary consultation and extensive outreach to state, local and county 

governments, the results of this outreach, and how these results have informed the 

development of today’s rule. This report, Final Summary of the Discretionary 

Consultation and Outreach to State, Local, and County Governments for the 

Revised Definition of Waters of the United States (Docket Id. No. EPA-HQ-OW2011-0880) is available in the docket for this rule.

The rule expressly indicates in paragraph (b) that groundwater, including 

groundwater drained through subsurface drainage systems is excluded from the 

definition of “waters of the United States.” While groundwater is excluded from 

jurisdiction, the agencies recognize that the science demonstrates that waters with a 

shallow subsurface connection to jurisdictional waters can have important effects on 

downstream waters. When assessing whether a water evaluated in (a)(7) or (a)(8) 

performs any of the functions identified in the rule’s definition of significant nexus, 

the significant nexus determination can consider whether shallow subsurface 

connections contribute to the type and strength of functions provided by a water or 

similarly situated waters. However, neither shallow subsurface connections nor any 

type of groundwater are themselves “waters of the United States.” The agencies 

understand that there is a continuum of water beneath the ground surface, from wet 

soils to shallow subsurface lenses to shallow aquifers to deep groundwaters, all of 

which can have impacts to surface waters, but for significant nexus purposes under 

this rule, the agencies have chosen to focus on shallow subsurface connections 

because those are likely to both have significant and near-term impacts on 

downstream surface waters and are reasonably identifiable for purposes of rule 

implementation. The scope of regulatory jurisdiction in this rule is narrower than 

that under the existing regulation. Fewer waters will be defined as “waters of the 
Clean Water Rule Response to Comments – Topic 1: General Comments 

121

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. 

See also Preamble to the Final Rule III and IV and Technical Support Document 

Sections I, II, VII, VIII and IX.

1.151 Permitting: Actions taken by EPA in its CWA permitting processes should not impinge 

upon state authority over water management or the states’ responsibility to implement 

CWA provisions.

a. State Water Quality Certification: Section 401 of the CWA requires applicants for a 

federal license to secure state certification that potential discharges from their activities 

will not violate state water quality standards. Section 401 of the CWA is operating as it 

should and states’ mandatory conditioning authority should be retained without 

amendment.

b. General Permits: Reauthorization of the CWA must reconcile the continuing 

administrative need for general permits with the site-specific permitting requirements 

under the CWA. EPA should promulgate rules and guidance thatbetter support the use of 

general permits where it is more effective to permit groups of dischargers rather than 

individual dischargers.

c. Water Transfers: Water transfers that do not involve the addition of a pollutant have 

not been subject to the permitting requirements of the CWA’s National Pollutant 

Discharge Elimination System (NPDES). States already have authority to address the 

water quality issues associated with transfers. Western Governors believe that 

transporting water through constructed conveyances to supply beneficial uses should not 

trigger NPDES permit requirements simply because the source and receiving water 

contain different chemical concentrations and physical constituents. Western Governors 

generally support EPA’s current water transfers rule, which exempts water transfers 

between waters of the United States from NPDES permitting requirements.

d. Pesticides: Western Governors generally support the primary role of the Federal 

Insecticide, Fungicide, and Rodenticide Act (FIFRA) in regulating agriculture and public 

health related pesticide applications to waters of the U.S. and will seek state-based 

solutions that complement rather than duplicate FIFRA in protecting water supplies. (p. 

6-7)

Agency Response: See Summary Response and Preamble to the Final Rule. The 

final rule does not establish any new regulatory requirements. Instead, it is a 

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

with the CWA, Supreme Court precedent, and science. As such, there are no 

changes in the relationship between federal, state, tribal and local implementors of 

CWA programs or to other state or tribal programs managing these resources. The 

scope of regulatory jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. States and tribes retain 

full authority to implement their own programs to more broadly and more fully 

protect the waters under their jurisdiction.
Clean Water Rule Response to Comments – Topic 1: General Comments 

122

1.152 Nonpoint Source Pollution: Nonpoint source pollution requires state watershed-oriented 

water quality management plans, and federal agencies should collaborate with states to 

carry out the objectives of these plans. The CWA should not supersede other ongoing 

federal, state and local nonpoint source programs. Federal water policies must recognize 

that state programs enhanced by federal efforts could provide a firm foundation for a 

national nonpoint source policy that maintain the non-regulatory and voluntary nature of 

the program. In general, the use of point source solutions to control nonpoint source 

pollution is also ill-advised.

Forest Roads: Stormwater runoff from forest roads has been managed as a nonpoint 

source of pollution under EPA regulation and state law since enactment of the CWA. 

Western Governors are concerned about efforts to treat forest roads as point sources 

under the NPDES program and support solutions that are consistent with the longestablished treatment of forest roads as nonpoint sources, provided that forest roads are 

treated equally across ownership within each state.

Nutrient Pollution: Nitrogen and phosphorus (nutrient) pollution is a significant cause of 

water quality impairment across the nation, and continued cooperation between states and 

EPA is needed. However, nutrients produced by non-point sources fall outside of NPDES 

jurisdiction and should not be treated like other pollutants that have clear and consistent 

thresholds over a broad range of aquatic systems and conditions.

States should be allowed sufficient flexibility to utilize their own incentives and 

authorities to establish standards and control strategies to address nutrient pollution, 

rather than being forced to abide by one-size-fits-all federal numeric criteria. Successful 

tools currently in use by states include best management practices, nutrient trading, 

controlling other water quality parameters, and other innovative approaches. (p. 7-8)

Agency Response: See Summary Response and Preamble to the Final Rule. The 

final rule does not establish any new regulatory requirements. Instead, it is a 

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

with the CWA, Supreme Court precedent, and science. As such, there are no 

changes in the relationship between federal, state, tribal and local implementors of 

CWA programs or to other state or tribal programs managing these resources. The 

scope of regulatory jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. States and tribes retain 

full authority to implement their own programs to more broadly and more fully 

protect the waters under their jurisdiction. 

Arizona State Land Department (Doc. #14973)

1.153 The Proposed Change purports to solve the problem of a lack of a definitional framework 

within which to consistently understand the meaning of "waters of the United States." 

While clarification is a laudable goal, the doctrine of the separation of powers mandates 

that the judiciary take responsibility for interpreting this phrase. 

Adherence to the separation of powers is a foundational principle upon which this 

country's system of governance was built. The Founders foresaw the necessity of 
Clean Water Rule Response to Comments – Topic 1: General Comments 

123

respecting the specific roles of the executive, legislative, and judicial branches in an 

effort to ensure a system of checks and balances to protect citizens from abuses of power. 

This foundational requirement must be respected and cannot be avoided simply because 

the decisions made by one branch within its own purview may not reflect a different 

branch's ideal situation. 

With respect to the issue under discussion, the judicial branch has both the authority and 

responsibility to interpret and apply the law. In fact, the judiciary has already passed upon 

this issue; the fact that it has chosen not to draw a bright line settling the meaning at this 

particular juncture does not mean that an administrative agency can now step in to usurp 

judicial authority and prevent the courts from either drawing a bright line in the future or 

continuing to interpret the meaning of "waters of the United States" on a case by case 

basis. 

The Proposed Change should not be misused as a means of circumventing a fundamental 

principle of governance. The judiciary is tasked with the authority to interpret and apply 

laws, and this duty cannot be breached. To allow such a flagrant violation of the 

separation of powers would be to chip away at the foundation that has served this country 

from its inception. (p. 4)

Agency Response: See Preamble to the Final Rule and Technical Support

Document Section I.

San Carlos Apache Tribe (Doc. #15067)

1.154 The proposed rule seeks to regulate land, not navigable waters. The proposed rule 

violates existing federal law and circumvents Congressional intent. The proposed rule 

seeks to regulate commerce beyond the limits of the Commerce Clause as interpreted by 

the Supreme Court. The adoption of the proposed rule, as currently drafted, would result 

in an infringement upon and usurpation of the Tribe’s sovereignty, self-governance and 

self-determination. (p. 6)

Agency Response: Federally-recognized tribes, consistent with the CWA, retain 

full authority to implement their own programs to more broadly and more fully 

protect the waters in their jurisdiction. Congress has also provided roles for 

eligible Indian tribes to administer CWA programs over their reservations and 

expressed a preference for tribal regulation of surface water quality on Indian 

reservations to assure compliance with the goals of the CWA. See CWA section 

518; 56 FR 64876, 64878-79 (Dec. 12, 1991)). Tribes also have inherent sovereign 

authority to establish more protective standards or limits than the Federal 

CWA. Where appropriate, references to states in this document may also include 

eligible tribes. Many tribes, for example, regulate groundwater, and some others 

protect wetlands that are vital to their environment and economy but outside the 

jurisdiction of the CWA. Nothing in this rule limits or impedes any existing or 

future tribal efforts to further protect their waters. In fact, providing greater clarity 

regarding what waters are subject to CWA jurisdiction will reduce the need for 

permitting authorities, including the tribes with authorized section 402 and 404 

CWA permitting programs, to make jurisdictional determinations on a case-specific 

basis. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

124

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 have prepared a report summarizing their consultation with tribal 

nations, and how these results have informed the development of this rule. This 

report, Final Summary of Tribal Consultation for the Clean Water Rule: Definition 

of “Waters of the United States” Under the Clean Water Act; Final Rule (Docket Id. 

No. EPA-HQ-OW-2011-0880), is available in the docket for this rule.

See Summary Response, Preamble to the Final Rule Sections III and IV and 

Technical Support Document Section I. See also Response to Comments 

Compendium Topic 5 – Significant Nexus, Introduction and summary response to 

comments 1, 2, 3, 4, and 5.

Arizona Department of Environmental Quality, et al. (Doc. #15096)

1.155 The Agencies propose to assert jurisdiction over water based on retention and flood 

control functions; however, the Clean Water Act expressly reserves that authority to 

states: 

It is the policy of Congress that the authority of each State to allocate quantities of water 

within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this 

Act. It is the further policy of Congress that nothing in this Act shall be construed to 

supersede or abrogate rights to quantities of water which have been established by any 

State. 

CWA § 101(g). 

Section 101(g) was added to the Act in the 1977 amendments. According to its sponsor: 

This amendment came immediately after the release of the Issue and Option Papers for 

the Water Resource Policy Study now being conducted by the Water Resources Council. 

Several of the options contained in that paper called for the use of Federal water quality 

legislation to effect Federal purposes that were not strictly related to water quality. Those 

other purposes might include, but were not limited to Federal land use planning, plant 

siting and production planning purposes. This State's jurisdiction amendment reaffirms 

that it is the policy of Congress that this act is to be used for water quality purposes only. 

123 Cong. Rec. &. S19677-78, (daily ed., Dec. 15, 1977) (emphasis added) (floor 

statement of Senator Wallop). 

EPA’s role in the allocation of water is specified in Section 102(b) of the Act. That role is 

limited to recommendations for storage of water for water quality control in federal

projects and federal licenses issued by the Federal Power Commission. In addition, 

Section 102(d) directed EPA to consult with States and river basin commissions and 

submit a report to Congress that analyzes the relationship between Clean Water Act 
Clean Water Rule Response to Comments – Topic 1: General Comments 

125

programs (on the one hand) and programs by which of other federal agencies and States 

that allocate quantities of water (on the other hand).38

The statute and its legislative history are clear. The allocation of water is not within the 

purview of the Clean Water Act. Accordingly, jurisdiction cannot be based on water 

supply and water retention functions. (p. 3-4)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. Section 101(g) of the CWA states, “It is the policy of 

Congress that the authority of each State to allocate quantities of its water within its 

jurisdiction shall not be superseded, abrogated or otherwise impaired by [the CWA 

and] that nothing in [the CWA] shall be construed to supersede or abrogate rights 

to quantities of water which have been established by any State.” Similarly, Section 

510(2) provides that nothing in the Act shall “be construed as impairing or in any 

manner affecting any right or jurisdiction of the States with respect to the waters . . 

. of such States.” The rule is entirely consistent with these policies. The rule does 

not impact or diminish State authorities to allocate water rights or to manage their 

water resources. Nor does the rule alter the CWA’s underlying regulatory process. 

Having been enacted with the objective of restoring and maintaining the chemical, 

physical, and biological integrity of our nation’s waters, the CWA serves to protect 

water quality. Neither the CWA nor the rule impairs the authorities of States to 

allocate quantities of water. Instead, the CWA and the rule serve to enhance the 

quality of the water that the States allocate. See Technical Support Document 

Section I for further discussion including regarding Jefferson County v. Washington 

Dept. of Ecology, 511 U.S. 700 (1994).

1.156 In addition, assertion of jurisdiction based on groundwater impacts directly affects States’ 

authority to allocate water resources. The implications of this rationale became very clear 

in a recent draft directive issued by the National Forest Service, titled: “Proposed 

Directive on Groundwater Resources Management” (“Directive”), 79 Fed. Reg. 25,815 

(May 6, 2014). Under this Directive, the Forest Service claims the authority to evaluate 

all applications for groundwater withdrawals not only on Forest Service lands, but also on 

adjacent lands, due to “hydraulic continuity.” As in the proposed rule, the Directive has 

no clear definition of “adjacent.” If, like EPA and the Corps, the Forest Service believes 

all waters are connected, it could likely claim that all state water rights applications must 

be evaluated by the Forest Service regardless of the distance from federal lands. Thus, the 

theory of federal jurisdiction espoused by EPA and the Corps has implications even 

beyond the Clean Water Act. (p. 6-7)

Agency Response: The draft directive issued by the National Forest Service, 

titled: “Proposed Directive on Groundwater Resources Management” (“Directive”), 

79 Fed. Reg. 25,815 (May 6, 2014) is outside the scope of this rule. This final rule 

interprets the CWA to cover those waters that require protection in order to restore 

and maintain the chemical, physical, or biological integrity of traditional navigable 

waters, interstate waters, and the territorial seas. The rule expressly indicates in 

paragraph (b) that groundwater, including groundwater drained through 

 

38 EPA developed a draft report in 1979. Section 102(d) was repealed by P.L. 104-66.
Clean Water Rule Response to Comments – Topic 1: General Comments 

126

subsurface drainage systems is excluded from the definition of “waters of the United 

States.” While groundwater is excluded from jurisdiction, the agencies recognize 

that the science demonstrates that waters with a shallow subsurface connection to 

jurisdictional waters can have important effects on downstream waters. When 

assessing whether a water evaluated in (a)(7) or (a)(8) performs any of the functions 

identified in the rule’s definition of significant nexus, the significant nexus 

determination can consider whether shallow subsurface connections contribute to 

the type and strength of functions provided by a water or similarly situated waters. 

However, neither shallow subsurface connections nor any type of groundwater are 

themselves “waters of the United States.” The agencies understand that there is a 

continuum of water beneath the ground surface, from wet soils to shallow 

subsurface lenses to shallow aquifers to deep groundwaters, all of which can have 

impacts to surface waters, but for significant nexus purposes under this rule, the 

agencies have chosen to focus on shallow subsurface connections because those are

likely to both have significant and near-term impacts on downstream surface waters 

and are reasonably identifiable for purposes of rule implementation. The scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. See also Preamble to the 

Final Rule III and IV and Technical Support Document Sections I, II, VII, VIII and 

IX.

Wisconsin Department of Natural Resource (Doc. #15141)

1.157 It remains unclear what benefit this new rule would have for the State of Wisconsin, its 

citizens, or even water quality because the new rule ignores existing state regulations and 

authorities. The State of Wisconsin more broadly defines "Waters of the State," so we 

would be remiss if we did not object to another instance of the federal government 

encroaching upon powers and responsibilities previously delegated to the states. As coregulators of our state's water resources, we believe that a thorough and robust 

consultation is both warranted and imperative for any rule package to move forward. In 

Wisconsin, there are many waters that are subject only to state regulations; however, this 

rule aims to vastly expand the reach of federal regulations while Wisconsin's regulatory 

authority would be duplicative, at best, if not outright eliminated. For example, the State 

of Wisconsin remains one of the few states that currently regulate isolated, non-federal 

wetlands following the decision in Solid Waste Agency of Northern Cook County 

(SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001). This illustrates that 

environmental protections are best when driven locally by those who are directly

impacted. (p. 1)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. However, states and tribes retain full 

authority to implement their own programs to more broadly and more fully protect 
Clean Water Rule Response to Comments – Topic 1: General Comments 

127

the waters under their jurisdiction. See Summary Response, Preamble to the Final 

Rule and Technical Support Document.

Louisiana Department of Environmental Quality (Doc. #15164)

1.158 As noted in the letter accompanying these comments, the LDEQ recognizes the desire by 

U.S. Army Corps of Engineers and the Environmental Protection Agency to provide 

regulatory clarity following the Supreme Court decisions addressing the CWA. However, 

the LDEQ believes an attempt to bring clarity should not incorporate language that may 

improperly expand federal authority under the CWA. The broad exercise offederal 

authority embodied by the proposal is not supported by the CWA, and only Congress, 

through new legislation, can expand the authority currently contained in the proposed 

rule. Accordingly, the rule should be re-drafted to recognize both the limitations on 

federal authority and the primary responsibilities of the states under the CWA. (p. 2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. However, states and tribes retain full 

authority to implement their own programs to more broadly and more fully protect 

the waters under their jurisdiction. See Summary Response, Preamble to the Final 

Rule and Technical Support Document.

Sealaska Corporation (Doc. #15356)

1.159 Finally, the proposed rule is also inconsistent with the CWA policy to preserve the 

primary responsibilities and rights of states over land and water resources. The rule 

asserts that it “does not affect” this policy because states “retain full authority to 

implement their own programs to more broadly or more fully protect the waters in their 

state.”39 This statement ignores the scope of Congress’ policy statement, which applies 

not only to the rights of states “to prevent, reduce, and eliminate pollution,” but also to 

state’s rights “to plan the development and use . . . of land and water resources.”40 While 

the proposed rule may preserve states’ rights to address pollution by adopting more 

stringent regulations than the Agencies, it does not preserve the primary authority of 

states to plan the development and use . . . of land and water resources,” as Congress 

intended when it adopted the CWA. On the contrary, the proposed rule asserts authority 

over isolated, non-navigable water bodies and land areas that Congress never intended to 

be regulated under the CWA. By eliminating the discretion of states to leave such areas 

unregulated, the proposed rule would invade the primary authority of states to plan for 

the development and use of these resources. As such, the rule is contrary to CWA as well 

as the state consultation criteria set forth in Executive Order 13132. As explained by the 

Western States Water Council and many other parties,41 the statement in the proposed 

rule that Executive Order 13132 “does not apply” is simply incorrect, and the Agencies’ 

 

39 79 Fed. Reg. 22,189, 22,194.

40 § 1251(b).

41 See, e.g., http://transportation.house.gov/uploadedfiles/2014-06-11-strong.pdf.
Clean Water Rule Response to Comments – Topic 1: General Comments 

128

“voluntary federalism consultation” regarding the proposed rule was clearly inadequate, 

as reflected in the surprise and concern being expressed by states across the country.42 (p. 

9-10)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. However, states and tribes retain full 

authority to implement their own programs to more broadly and more fully protect 

the waters under their jurisdiction. See Summary Response, Preamble to the Final 

Rule and Technical Support Document. In keeping with the spirit of Executive 

Order 13132 and consistent with the agencies’ policy to promote communications 

with state and local governments, the agencies consulted with state and local 

officials throughout the process and solicited their comments on the proposed action 

and on the development of the rule. For this rule state and local governments were 

consulted at the onset of rule development in 2011, and following the publication of 

the proposed rule in 2014. In addition to engaging key organizations under 

federalism, the agencies sought feedback on this rule from a broad audience of 

stakeholders through extensive outreach to numerous state and local government 

organizations. The agencies have prepared a report summarizing their voluntary 

consultation and extensive outreach to state, local and county governments, the 

results of this outreach, and how these results have informed the development of 

today’s rule. This report, Final Summary of the Discretionary Consultation and 

Outreach to State, Local, and County Governments for the Revised Definition of 

Waters of the United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in 

the docket for this rule. See Preamble to the Final Rule.

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

1.160 The fact that some waters that are not included within the CWA’s current definition of 

WOTUS does not mean they are left unprotected. These state-only waters have 

traditionally been under state control. States have historically exhibited the ability to 

appropriately regulate them and address statewide and local concerns. 

In North Dakota, the Legislature established a policy to protect all waters of the state, 

regardless of whether they fall within federal jurisdiction. N.D.C.C. § 61-28-01. Waters 

of the state is defined broadly and includes all surface and groundwater in the state. 

N.D.C.C. § 61-28-02(15). 

North Dakota law not only protects more types of waters than the CWA, it also places 

greater protections on those waters. For instance, it is unlawful in North Dakota to pollute 

or place wastes where they are likely to pollute any of these waters. N.D.C.C. § 61-28-06. 

And protections are included for waters involved in water transfers. N.D.C.C. § 61-28-09. 

The NDDH goes above and beyond merely implementing the federal CWA programs 

delegated to it by EPA. NDDH also implements a comprehensive state program to protect 

 

42 79 Fed. Reg. 22220-21.
Clean Water Rule Response to Comments – Topic 1: General Comments 

129

all waters of the state, addressing the protection of beneficial uses as defined in state law. 

As part of this program, NDDH has adopted extensive regulations to prevent and control 

water pollution. See N.D. Admin. Code art. 33-16. A person violating the state’s water 

pollution control laws and rules is subject to an NDDH enforcement action, including the 

potential of substantial penalties. N.D.C.C. § 61-28-08. (p. 4)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. However, states and tribes retain full 

authority to implement their own programs to more broadly and more fully protect 

the waters under their jurisdiction. See Summary Response, Preamble to the Final 

Rule and Technical Support Document.

State of Florida (Doc. #15429)

1.161 Congress specifically explained that the CWA was designed to “recognize, preserve, and 

protect the primary responsibilities and rights of States . . . to plan the development and 

use . . . of land and water resources . . . .” 33 U.S.C. § 1251(b). The CWA also requires 

the federal agencies to cooperate with State and local authorities “to develop 

comprehensive solutions to prevent, reduce, and eliminate pollution.” Id. § 1251(g). As 

noted above, the Proposed Rule does more than define “waters of the United States” as 

Congress never intended; it undermines the cooperative federalism that Congress did 

intend. Congress’s goal, unlike the Proposed Rule, was consistent with the limitation the 

Commerce Clause imposes on Congress. 

This unprecedented expansion of federal power runs the “real risk” that “the diffusion of 

power between State and Nation on which the Framers based their faith in the efficiency 

and vitality of our Republic” will be erased. Garcia v. San Antonio Metro. Transit Auth., 

469 U.S. 528, 583-84 (1985) (O’Connor, J., dissenting). It also represents a 

transformation of what was supposed to be a cooperative federal-state endeavor into the 

raw exercise of a general federal police power. (p. 3)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. However, states and tribes retain full 

authority to implement their own programs to more broadly and more fully protect 

the waters under their jurisdiction. The final rule does not establish any new 

regulatory requirements. Instead, it is a definitional rule that clarifies the scope of 

“waters of the United States” consistent with the CWA, Supreme Court precedent, 

and science. As such, there are no changes in the relationship between federal, state, 

tribal and local implementors of CWA programs or to other state or tribal 

programs managing these resources. See Summary Response, Preamble to the Final 

Rule Sections III and IV and Technical Support Document Sections I, II, VII, VIII 

and IX. See also Response to Comments Compendium Topic 5 – Significant Nexus, 

Introduction and summary response to comments 1, 2, 3, 4, and 5. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

130

New Mexico Environment Department (Doc. #16552)

1.162 The proposed definition of "tributary," as including non-seasonal intermittent and 

ephemeral streams, far exceeds Congressional authority in enactment of the CWA under 

the commerce clause powers as well as the Court's findings in Rapanos (plurality and 

concurring opinions), SWANCC, and Riverside Bayview. See Rapanos, 547 U.S. at 733-

734 ("The plain language of the statute simply does not authorize this 'Land Is Waters' 

approach to federal jurisdiction."); see also 547 U.S. at 715 and 768 (Congress intended 

to regulate at least some waters that are not traditionally navigable). 

As applied in New Mexico, such an expansive definition of "tributary" to include 

nonseasonal intermittent43 and ephemeral streams will greatly enlarge federal jurisdiction 

and authority over almost all State waters. The proposed definition could easily find any 

tributary to tributary to tributary, ad infinitum, a federal jurisdictional water. This would 

in effect engulf all streams, drainage systems, and watersheds within the State. The 

question would then be on what waters, outside closed basins, would remain "state 

waters"?

Based on EPA Figures 1 and 2 above, the proposed definition of "tributary" will result in 

federal authority over almost all state waters that are not within closed basins. Thus, of 

the State's non-perennial streams, most, under the proposed rule, would in some manner 

drain to a tributary of a jurisdictional water and therefore be found a jurisdictional water. 

See Figure 1 and 2 above indicating the States intermittent and ephemeral streams. It is 

disconcerting how the Agencies can claim, in light of Rapanos, SWANCC, and Riverside 

Bayview, that all waters that simply touch or connect through a tributary system to 

jurisdictional waters, no matter the lack of permanence, visible hydrologic connection, 

distance, or finding of a "substantial nexus," can be found a federal jurisdictional water. 

The Department agrees with Michael Campbell's assessment that the Rapanos decision 

would reject "that the CWA protects every discernible water that contributes flow, 

directly or indirectly, to a traditionally navigable water, no matter how remote or 

insignificant the contribution--such as an ephemeral stream that might be 100 miles or 

more upstream of a traditionally navigable water. Michael Campbell, Waters Protected 

by the Clean Water Act: Cutting Through the Rhetoric on the Proposed Rule, 44 Envtl. L. 

Rep. News & Analysis 10559, 10561 (2014) (emphasis added); citing Rapanos, 547 U.S. 

at 781 (Kennedy, J., concurring). (p. 13-14)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. However, states and tribes retain full 

authority to implement their own programs to more broadly and more fully protect 

the waters under their jurisdiction. See Summary Response, Preamble to the Final 

Rule and Technical Support Document. See Summary Response, Preamble to the 

 

43 Permanency requirement for intermittent waters under the Rapanos test requires at least three months of flow; this 

is often termed "seasonal intermittent flows ." Deerfield Plantation Phase II-B Prop. Owners Ass 'n, Inc. v. U.S. 

Army Corps ofEng'rs, 501 Fed. Appx. 268, 271 n.1 (4th Cir. 2012) .
Clean Water Rule Response to Comments – Topic 1: General Comments 

131

Final Rule Sections III and IV and Technical Support Document Sections I, II, VII, 

VIII and IX. See also Response to Comments Compendium Topic 5 – Significant 

Nexus, Introduction and summary response to comments 1, 2, 3, 4, and 5. 

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

1.163 Additionally, the State of Montana urges the EPA and USACE to ensure that the rule 

does not in any way diminish the intent and purpose of CWA Section 101(g) which 

states: "(g) It is the policy of Congress that the authority of each State to allocate 

quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise 

impaired by this Act. It is the further policy of Congress that nothing in this Act shall be 

construed to supersede or abrogate rights to quantities of water which have been 

established by any State. Federal agencies shall co-operate with State and local agencies 

to develop comprehensive solutions to prevent, reduce and eliminate pollution in concert 

with programs for managing water resources." (p. 5-6)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. Section 101(g) of the CWA states, “It is the policy of 

Congress that the authority of each State to allocate quantities of its water within its 

jurisdiction shall not be superseded, abrogated or otherwise impaired by [the CWA 

and] that nothing in [the CWA] shall be construed to supersede or abrogate rights 

to quantities of water which have been established by any State.” Similarly, Section 

510(2) provides that nothing in the Act shall “be construed as impairing or in any 

manner affecting any right or jurisdiction of the States with respect to the waters . . 

. of such States.” The rule is entirely consistent with these policies. The rule does 

not impact or diminish State authorities to allocate water rights or to manage their 

water resources. Nor does the rule alter the CWA’s underlying regulatory process. 

Having been enacted with the objective of restoring and maintaining the chemical, 

physical, and biological integrity of our nation’s waters, the CWA serves to protect 

water quality. Neither the CWA nor the rule impairs the authorities of States to 

allocate quantities of water. Instead, the CWA and the rule serve to enhance the 

quality of the water that the States allocate. See Technical Support Document 

Section I for further discussion including regarding Jefferson County v. Washington 

Dept. of Ecology, 511 U.S. 700 (1994).

Arizona State Senate (Doc. #16895)

1.164 This action is not supported by the Clean Water Act or the Commerce Clause of the U.S. 

Constitution. Congress memorialized State primacy over the management and regulation 

of intrastate water and land by declaring that "it is the policy of Congress to recognize, 

preserve, and protect the primary responsibilities and rights of States . . . to plan the 

development and use ... of land and water resources .. . (33 U .S. C. § 1251(b))." States, 

not the federal government, are in the best position to provide effective, fair and 

responsive oversight of water and land use and have carried out the obligations of 

protecting these resources consistent with local customs, cultures and the economic 

wellbeing of the local communities. (p. 1)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 
Clean Water Rule Response to Comments – Topic 1: General Comments 

132

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. However, 

states and tribes retain full authority to implement their own programs to more 

broadly and more fully protect the waters under their jurisdiction. See Summary 

Response, Preamble to the Final Rule Sections III and IV and Technical Support 

Document Sections I and II. See also Response to Comments Compendium Topic 5 

– Significant Nexus, Introduction and summary response to comments 1, 2, 3, 4, and 

5. 

State of South Dakota (Doc. #16925)

1.165 EPA and the Corps , by way of this rulemaking, are infringing on state's rights to define 

and regulate their own waters. This right is guaranteed and protected by 101 (b) and 

101(g) of the federal Clean Water Act. (p. 3)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. Section 101(g) of the CWA states, “It is the policy of 

Congress that the authority of each State to allocate quantities of its water within its 

jurisdiction shall not be superseded, abrogated or otherwise impaired by [the CWA 

and] that nothing in [the CWA] shall be construed to supersede or abrogate rights 

to quantities of water which have been established by any State.” Similarly, Section 

510(2) provides that nothing in the Act shall “be construed as impairing or in any 

manner affecting any right or jurisdiction of the States with respect to the waters . . 

. of such States.” The rule is entirely consistent with these policies. The rule does 

not impact or diminish State authorities to allocate water rights or to manage their 

water resources. Nor does the rule alter the CWA’s underlying regulatory process. 

Having been enacted with the objective of restoring and maintaining the chemical, 

physical, and biological integrity of our nation’s waters, the CWA serves to protect 

water quality. Neither the CWA nor the rule impairs the authorities of States to 

allocate quantities of water. Instead, the CWA and the rule serve to enhance the 

quality of the water that the States allocate. See Technical Support Document 

Section I for further discussion including regarding Jefferson County v. Washington 

Dept. of Ecology, 511 U.S. 700 (1994).

Arizona House of Representative (Doc. #17041)

1.166 The CWA was intended to serve as a mechanism for states and federal agencies to work 

jointly to protect water resources. However, this proposed rule grants virtually all 

oversight of water resources to federal administrative agencies. States have been effective 

managers of water quality and water resources, and this rule fails to acknowledge the 

partnerships between states and the federal government that have been in place for 

decades. This is an unacceptable restriction on states right to self-govern. (p. 2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. However, states and tribes retain full 
Clean Water Rule Response to Comments – Topic 1: General Comments 

133

authority to implement their own programs to more broadly and more fully protect 

the waters under their jurisdiction. See Summary Response, Preamble to the Final 

Rule and Technical Support Document. The final rule does not establish any new 

regulatory requirements. Instead, it is a definitional rule that clarifies the scope of 

“waters of the United States” consistent with the CWA, Supreme Court precedent, 

and science. As such, there are no changes in the relationship between federal, state, 

tribal and local implementors of CWA programs or to other state or tribal 

programs managing these resources. 

Nebraska State Legislature (Doc. #19315)

1.167 The authority of the individual states to manage the water located within their boundaries 

is unambiguously recognized in the CWA. Section 101(g) of the Act establishes this right 

and the duty of federal agencies to work cooperatively with state and local agencies: 

It is the policy of Congress that the authority of each State to allocate quantities of 

water within its jurisdiction shall not be superseded, abrogated or otherwise 

impaired by this Act. It is the further policy of Congress that nothing in this Act 

shall be construed to supersede or abrogate rights to quantities of water which 

have been established by any State. Federal agencies shall co-operate with State 

and local agencies to develop comprehensive solutions to prevent, reduce and 

eliminate pollution in concert with programs for managing water resources. 

The proposed rule undermines this specific, express charge by Congress because it does 

not allow states to maintain their sovereignty with regard to water management, opting 

instead for a onesize- fits-all determination by federal agencies. (p. 2)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. Section 101(g) of the CWA states, “It is the policy of 

Congress that the authority of each State to allocate quantities of its water within its 

jurisdiction shall not be superseded, abrogated or otherwise impaired by [the CWA 

and] that nothing in [the CWA] shall be construed to supersede or abrogate rights 

to quantities of water which have been established by any State.” Similarly, Section 

510(2) provides that nothing in the Act shall “be construed as impairing or in any 

manner affecting any right or jurisdiction of the States with respect to the waters . . 

. of such States.” The rule is entirely consistent with these policies. The rule does 

not impact or diminish State authorities to allocate water rights or to manage their 

water resources. Nor does the rule alter the CWA’s underlying regulatory process. 

Having been enacted with the objective of restoring and maintaining the chemical, 

physical, and biological integrity of our nation’s waters, the CWA serves to protect 

water quality. Neither the CWA nor the rule impairs the authorities of States to 

allocate quantities of water. Instead, the CWA and the rule serve to enhance the 

quality of the water that the States allocate. See Technical Support Document 

Section I for further discussion including regarding Jefferson County v. Washington 

Dept. of Ecology, 511 U.S. 700 (1994).

State of Alaska (Doc. #19465)

1.168 Not only would application of this new term “adjacent waters” vastly expand the waters 

and wetlands subject to federal control, it would likely leave nothing for a state to assume 
Clean Water Rule Response to Comments – Topic 1: General Comments 

134

control over. Congress clearly did not intend either of these results. The agencies’ legal 

analysis is a reckless construction of discrete terms and different sections of the CWA, 

undermining Congressional intent and creating further confusion about what waters or 

wetlands are jurisdictional under the CWA, versus what waters and wetlands are 

assumable under a state program, two distinctly different concepts. (p. 27)

Agency Response: The CWA identifies the waters over which states may assume 

permitting jurisdiction. See CWA section 404(g)(1). The scope of waters that are 

subject to state and tribal permitting is a separate inquiry and must be based on the 

statutory language in CWA section 404. States administer approved CWA section 

404 programs for “waters of the United States” within the state, except those waters 

remaining under Corps jurisdiction pursuant to CWA section 404(g)(1) as identified

in a Memorandum of Agreement between the state and the Corps. 40 CFR 233.14; 

40 CFR 233.70(c)(2); 40 CFR 233.71(d)(2). 

At the request of the Association of Clean Water Administrators, the Environmental 

Council of States, the Association of State Wetlands Managers (letter April 30, 2014) 

and several states, EPA has initiated a separate process to address how the EPA can 

best clarify assumable waters for dredge and fill permit programs pursuant to the 

Clean Water Act section 404(g)(1), and has invited nominations from a diverse 

range of qualified candidates for serving on a new subcommittee under the National 

Advisory Council for Environmental Policy and Technology (NACEPT) to provide 

advice and recommendations. 80 FR 13439 (Mar. 16, 2015). The agencies welcome 

the participation of Alaska and others in this effort.

Western Governors Association (Doc. #19654)

1.169 We are writing with respect to the pending rulemaking regarding the jurisdiction of the 

Clean Water Act. As Governors of Western states, we are concerned that this rulemaking 

was developed without sufficient consultation with the states and that the rulemaking 

could impinge upon state authority in water management. (p. 1)

Agency Response: Section 101(g) of the CWA states, “It is the policy of Congress 

that the authority of each State to allocate quantities of its water within its 

jurisdiction shall not be superseded, abrogated or otherwise impaired by [the CWA 

and] that nothing in [the CWA] shall be construed to supersede or abrogate rights 

to quantities of water which have been established by any State.” Similarly, Section 

510(2) provides that nothing in the Act shall “be construed as impairing or in any 

manner affecting any right or jurisdiction of the States with respect to the waters . . 

. of such States.” The rule is entirely consistent with these policies. The rule does 

not impact or diminish State authorities to allocate water rights or to manage their 

water resources. Nor does the rule alter the CWA’s underlying regulatory process. 

Having been enacted with the objective of restoring and maintaining the chemical, 

physical, and biological integrity of our nation’s waters, the CWA serves to protect 

water quality. Neither the CWA nor the rule impairs the authorities of States to 

allocate quantities of water. Instead, the CWA and the rule serve to enhance the 

quality of the water that the States allocate. See Summary Response, Preamble to 

the Final Rule, and Technical Support Document Section I for further discussion
Clean Water Rule Response to Comments – Topic 1: General Comments 

135

including regarding Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700 

(1994).

In 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 and solicited their comments on the 

proposed action and on the development of the rule. Specifically, state and local 

governments were consulted at the onset of rule development in 2011, and following 

the publication of the proposed rule in 2014. In addition to engaging key 

organizations under federalism, the agencies sought feedback on this rule from a 

broad audience of stakeholders through extensive outreach to numerous state and 

local government organizations. The EPA held over 400 meetings with interested 

stakeholders, including representatives from states, tribes, counties, industry, 

agriculture, environmental and conservation groups, and others during the public 

comment period.

A detailed narrative of intergovernmental concerns raised during the course of the 

rule’s development and a description of the agencies’ efforts to address them with 

the final rule can be found in the docket for this rule. [See Final Summary of the 

Discretionary Consultation and Outreach to State, Local, and County Governments 

for the Revised Definition of Waters of the United States.] 

Kittson County Board of Commissioners (Doc. #1022.1)

1.170 WHEREAS, these agencies are currently using interpretive guidelines established by the 

EPA in 2011 and these guidelines do not grant them final authority. (p. 1)

Agency Response: The joint EPA-Corps 2011 guidance was never finalized. 

Thus, the agencies do not and have not relied on the unissued 2011 guidance

referenced in this comment. To the extent the agencies have relied on guidance to 

determine if a water is jurisdictional under the CWA, they refer to guidance issued 

jointly by the two agencies in 2003 (post SWANCC) and 2008 (post-Rapanos). 

The EPA and the Corps clarify the scope of "waters of the United States" in this 

final rule using the text of the CWA, Supreme Court Decisions, the best available 

peer-reviewed science, public input, and the agencies' technical expertise and 

experience in implementing the statute. See Section 1.0 Summary Response, 

Preamble to the Final Rule and Technical Support Document.

Catawba County Board of Commissioners, North Carolina (Doc. #1763)

1.171 The rule creates significant unfunded mandates and preempts state and local authority. (p. 

1)

Agency Response: This action does not contain any unfunded mandate under the 

regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995 

(UMRA) (2 U.S.C. 1531-1538), and does not significantly or uniquely affect small 

governments. The action imposes no enforceable duty on any state, local, or tribal 

governments, or the private sector, and does not contain regulatory requirements 

that might significantly or uniquely affect small governments. The definition of 

“waters of the United States” applies broadly to CWA programs. The scope of 
Clean Water Rule Response to Comments – Topic 1: General Comments 

136

regulatory jurisdiction for Clean Water Act purposes in this rule is narrower than 

that under the existing regulation. Fewer waters will be defined as “waters of the 

United States” under the rule than under the existing regulations, in part because 

the rule puts important qualifiers on some existing categories such as tributaries. 

However, states and tribes retain full authority to implement their own programs to 

more broadly and more fully protect the waters under their jurisdiction. See 

Summary Response, Preamble to the Final Rule and Technical Support Document.

Board of County Commissioners, Huerfano County (Doc. #1771)

1.172 The imposition of this rule will in fact, duplicate the regulations of the Colorado 

Department of Public Health and Environment and usurp their enforcement authority. 

This proposed rule is yet another example of an overgrown federal agency trying to 

recover after losing a court case. (p. 1)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Preamble to the Final Rule and Summary Response.

County of Elk (Doc. #2727)

1.173 "Waters of the United States" have been clearly defined by two Supreme Court decisions 

over the past decade. Redefining these waters does not change the fact that they should be 

under states, and not federal, regulation. This is considered an overreach by the EPA and 

has raised dissent among our area residents, especially our farmers. This change would 

also give the EPA the ability to bypass the authority of Congress, which· was not the 

intent of the Clean Water Act, enacted in 1972, nor of the Founding Fathers in 1776. (p. 

1)

Agency Response: The EPA and the Corps clarify the scope of "waters of the 

United States" in this final rule using the text of the CWA, Supreme Court 

Decisions, the best available peer-reviewed science, public input, and the agencies' 

technical expertise and experience in implementing the statute. See Section 1.0 

Summary Response, Preamble to the Final Rule and Technical Support Document 

Section I.

Sheridan County Commission (Doc. #3271)

1.174 I feel this proposed rule would expand the scope of CWA jurisdiction and would place 

local governments in difficult situations as they deal with local water issues in the future. 

The federal government needs to regulate the navigable waters of the United States and 

let the States and local governments deal with the local water issues. (p. 1)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 
Clean Water Rule Response to Comments – Topic 1: General Comments 

137

existing categories such as tributaries. However, states and tribes retain full 

authority to implement their own programs to more broadly and more fully protect 

the waters under their jurisdiction. See Summary Response, Preamble to the Final 

Rule and Technical Support Document. The final rule does not establish any new 

regulatory requirements. Instead, it is a definitional rule that clarifies the scope of 

“waters of the United States” consistent with the CWA, Supreme Court precedent, 

and science. As such, there are no changes in the relationship between federal, state, 

tribal and local implementors of CWA programs or to other state or tribal 

programs managing these resources. 

Sweet Grass Conservation District (Doc. #3310)

1.175 We oppose attempts to expand the jurisdictional control of the Army Corps of Engineers 

and EPA over water resources. The management of non-navigable waters should be left 

in the hands of landowners and local governments. (p. 1)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. However, states and tribes retain full 

authority to implement their own programs to more broadly and more fully protect 

the waters under their jurisdiction. See Summary Response, Preamble to the Final 

Rule and Technical Support Document. The final rule does not establish any new 

regulatory requirements. Instead, it is a definitional rule that clarifies the scope of 

“waters of the United States” consistent with the CWA, Supreme Court precedent, 

and science. As such, there are no changes in the relationship between federal, state, 

tribal and local implementors of CWA programs or to other state or tribal 

programs managing these resources. 

Wayne County Commissioners (Doc. #4226)

1.176 We feel this proposal is redundant to State wetland regulations that are already in place 

and mitigate wetland impacts from a prepaid wetland bank of credits for road projects. (p. 

1)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. However, states and tribes retain full 

authority to implement their own programs to more broadly and more fully protect 

the waters under their jurisdiction. See Summary Response, Preamble to the Final 

Rule and Technical Support Document. The final rule does not establish any new 

regulatory requirements. Instead, it is a definitional rule that clarifies the scope of 

“waters of the United States” consistent with the CWA, Supreme Court precedent, 

and science. As such, there are no changes in the relationship between federal, state, 

tribal and local implementors of CWA programs or to other state or tribal 

programs managing these resources. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

138

Lincoln County Conservation District, Washington (Doc. #4236.2)

1.177 Most states, including the state of Washington, have even broader definitions for "Waters 

of the States," which also specifically include ponds, lakes and groundwater that the 

current and proposed Waters of the United States Rule do not. The State of Washington, 

like all other states, has the option of requiring more regulations on the Waters of the 

State than what are required by the federal government. (p. 5)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. However, states and tribes retain full 

authority to implement their own programs to more broadly and more fully protect 

the waters under their jurisdiction. See Summary Response, Preamble to the Final 

Rule and Technical Support Document.

Bonner County Board of Commissioners (Doc. #4879)

1.178 Local government needs the ability to manage all "seasonally wet properties" local 

taxpayers expect them to manage for unpredictable weather, vegetation and safety issues. 

Continuously wet waterways that cross multiple property owners or state boundaries may 

benefit from currently defined ''Navigable Waters". Wetlands, drainage ditches and 

seasonal waterways should all be managed by local taxpayers' dollars without the need 

for permitting from federal agencies. (p. 3)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. However, states and tribes retain full 

authority to implement their own programs to more broadly and more fully protect 

the waters under their jurisdiction. See Summary Response, Preamble to the Final 

Rule and Technical Support Document. The final rule does not establish any new 

regulatory requirements. Instead, it is a definitional rule that clarifies the scope of 

“waters of the United States” consistent with the CWA, Supreme Court precedent, 

and science. As such, there are no changes in the relationship between federal, state, 

tribal and local implementors of CWA programs or to other state or tribal 

programs managing these resources. 

Consolidated Drainage District #1, Mississippi County, MO (Doc. #6254)

1.179 Consolidated is responsible for facilitating drainage and reclamation for agricultural 

purposes. Drainage districts in Missouri are created in order to reclaim and protect land 

that is swamp, wet and overflowed lands, or subject to periodic overflow. Set up through 

statute (see Missouri Revised Statutes Chapter 242), we develop a reclamation plan, 

which we implement with oversight from the circuit court of the county in which we 

operate. We are a governmental entity tasked with very important responsibilities for the 

farmers in our area. The farmers who own land within our jurisdiction elect our officers. 

(p. 1)
Clean Water Rule Response to Comments – Topic 1: General Comments 

139

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Preamble to the Final Rule and Summary Response.

Texas Soil and Water Conservation District #343 (Doc. #6793)

1.180 Second, the proposed definition annihilates the federalist system that underpins the 

CWA. There is a line at which point the states must be allowed to take over. This 

proposal has obliterated that important and fundament line. By expanding the definition 

of tributary, expanding the definition of "adjacent", and expanding the category of 

"adjacent wetlands" to "adjacent waters," you have delivered a devastating blow to 

landowners. (p. 1)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. However, states and tribes retain full 

authority to implement their own programs to more broadly and more fully protect 

the waters under their jurisdiction. See Summary Response, Preamble to the Final 

Rule Sections III and IV and Technical Support Document Sections I, II, VII, VIII 

and IX. See also Response to Comments Compendium Topic 5 – Significant Nexus, 

Introduction and summary response to comments 1, 2, 3, 4, and 5.

White Pine County Board of County Commissioners, White Pine County, Nevada (Doc. 

#6936.1)

1.181 -Undermines state and local jurisdiction authority and may require draft changes to 

Comprehensive land Use Plans, Floodplain Regulations, Building and/or Special Use 

Permit applications, Watershed/ storm Water Management Plans. 

-Diminishes trust and cooperation. 

-Moves waters from state to federal jurisdiction

-There needs to be agreed clarity as to where the federal government’s regulation of 

waters of the U.S. ends and where the States jurisdiction begins. For example, if the 

tributary crosses state lines, it's a federal and state issue. If the tributary only lies within 

state lines, it's a state and local issue. (p. 2)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. However, 

states and tribes retain full authority to implement their own programs to more 

broadly and more fully protect the waters under their jurisdiction. See Summary 

Response, Preamble to the Final Rule Sections III and IV and Technical Support 
Clean Water Rule Response to Comments – Topic 1: General Comments 

140

Document Sections I, II, VII, VIII and IX. See also Response to Comments 

Compendium Topic 5 – Significant Nexus, Introduction and summary response to 

comments 1, 2, 3, 4, and 5.

Murray County Board of Commissioners (Doc. #7528.1)

1.182 In a theoretical sense, we agree that all water on the ground, in the ground, and in the air 

has a connection. School children are taught about the water-cycle. But the significance 

of that connection to navigable waters within the legal jurisdiction of Congress under the 

Commerce Clause is limited. Use of the word "navigable" expresses that the Clean Water 

Act draws a distinction between "waters of the United States" and "waters of the States."

(p. 3)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. However, states and tribes retain full 

authority to implement their own programs to more broadly and more fully protect 

the waters under their jurisdiction. See Summary Response, Preamble to the Final 

Rule Sections III and IV and Technical Support Document Sections I, II, VII, VIII 

and IX. See also Response to Comments Compendium Topic 5 – Significant Nexus, 

Introduction and summary response to comments 1, 2, 3, 4, and 5.

Kosciusko County (Doc. #7623)

1.183 As County Surveyor, pursuant to statutes contained within Indiana Code, I have the 

responsibility to protect the health, welfare, and safety of our taxpaying citizens, 

including storm water flood protection and water quality. Under the auspices of our 

County Drainage Board I believe that we have done a credible job of achieving both. (p. 

1)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. However, states and tribes retain full 

authority to implement their own programs to more broadly and more fully protect 

the waters under their jurisdiction. See Summary Response, Preamble to the Final 

Rule and Technical Support Document. The final rule does not establish any new 

regulatory requirements. Instead, it is a definitional rule that clarifies the scope of 

“waters of the United States” consistent with the CWA, Supreme Court precedent, 

and science. As such, there are no changes in the relationship between federal, state, 

tribal and local implementors of CWA programs or to other state or tribal 

programs managing these resources. 

Upper Colorado River Authority (Doc. #7966)

1.184 It is also our firm belief and assertion that State, regional and local governmental entities 

are more in touch with local environmental and economic situations, and therefore more
Clean Water Rule Response to Comments – Topic 1: General Comments 

141

accountable to their citizens and better equipped to meet local needs than federal 

agencies. (p. 1)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. However, states and tribes retain full 

authority to implement their own programs to more broadly and more fully protect 

the waters under their jurisdiction. See Summary Response, Preamble to the Final 

Rule and Technical Support Document. The final rule does not establish any new 

regulatory requirements. Instead, it is a definitional rule that clarifies the scope of 

“waters of the United States” consistent with the CWA, Supreme Court precedent, 

and science. As such, there are no changes in the relationship between federal, state, 

tribal and local implementors of CWA programs or to other state or tribal 

programs managing these resources. 

Southeast Texas Groundwater Conservation District (Doc. #8142)

1.185 It is believed that the rule change would result in an infringement on the sovereignty of 

individual States as well as on the rights of private property owners and thus unacceptable. 

(p. 1)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule and 

Technical Support Document. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. 

The rule expressly indicates in paragraph (b) that groundwater, including 

groundwater drained through subsurface drainage systems is excluded from the 

definition of “waters of the United States.” While groundwater is excluded from 

jurisdiction, the agencies recognize that the science demonstrates that waters with a 

shallow subsurface connection to jurisdictional waters can have important effects on 

downstream waters. When assessing whether a water evaluated in (a)(7) or (a)(8) 

performs any of the functions identified in the rule’s definition of significant nexus, 

the significant nexus determination can consider whether shallow subsurface 

connections contribute to the type and strength of functions provided by a water or 

similarly situated waters. However, neither shallow subsurface connections nor any 

type of groundwater are themselves “waters of the United States.” The agencies 

understand that there is a continuum of water beneath the ground surface, from wet 
Clean Water Rule Response to Comments – Topic 1: General Comments 

142

soils to shallow subsurface lenses to shallow aquifers to deep groundwaters, all of 

which can have impacts to surface waters, but for significant nexus purposes under 

this rule, the agencies have chosen to focus on shallow subsurface connections 

because those are likely to both have significant and near-term impacts on 

downstream surface waters and are reasonably identifiable for purposes of rule 

implementation.

Southeast Texas Groundwater Conservation District (Doc. #8419.1)

1.186 It is believed that the rule change would result in an infringement on the sovereignty of 

individual States as well as on the rights of private property owners and thus 

unacceptable. It is not needed and will result in more unnecessary duplication of 

regulations and rules. The most objectionable part is the definition of "Tributaries" which 

could extend agency jurisdiction to almost every square foot of the country. (p. 1)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I, II, and VII.

City of Portland, Maine (Doc. #8659)

1.187 How does the Rule apply in a State with delegated authority like the State of Maine? 

Would this expand EPA's jurisdiction in a delegated state? Which agency would 

administer this proposed Rule, Maine DEP, or EPA? (p. 3)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Preamble to the Final Rule and Summary Response.

Beaver County Commission (Doc. #9667)

1.188 Reference: FR page 22189, column 1: The agencies emphasize that the categorical 

finding of jurisdiction for tributaries and adjacent waters was not based on the mere 

connection of a water body to downstream waters, but rather a determination that the 

nexus, alone or waters in the region, is significant based on data, science, the CWA, and 

case law. 

In addition, the agencies propose that “other waters" (those not fitting in any of the 

above categories could be determined to be "waters of the United States" through a casespecific showing that, either alone or in combination with similarly situated' 'other 

waters" in the region, they have a "significant nexus" to a traditional navigable water, 

interstate water, or the territorial seas. The rule would also offer a definition of 
Clean Water Rule Response to Comments – Topic 1: General Comments 

143

significant nexus and explain how similarly situated' 'other waters" in the region should 

be identified. 

Discussion: The above statements are? not examples of agencies adding clarity to 

existing laws. Instead, these statements are additional examples of “mission creep", i.e. 

self-determined expansion of their mission beyond statutory authority. These statements 

serve to usurp the authority and jurisdiction of state and local governments. Although the 

powers of the federal government are vested by the U.S. Constitution, it is state 

government that tends to have a greater influence over most Americans' daily lives. 

The Tenth Amendment to the United States Constitution prohibits the federal government 

from exercising any power not delegated to it by the states in the U.S. Constitution; thus 

the states, through local governments (county, municipal governments and the elected 

officials of soil and water conservation districts), handle the majority of issues most 

relevant to individuals within their respective jurisdictions...[ ]

By virtue of the Acts of 1866, 1870, and 1877 the federal government divested itself of 

its authority over all non-navigable waters in the West, ceding that authority to the states. 

This action of Congress has only been changed in the past by the exemption of water 

from appropriation under state law. Thus, non-navigable waters of the West are still 

outside of the jurisdictional authority of the Agencies [ ]

Reference: Page 22189, column 3: This proposal does not affect Congressional policy to 

preserve the primary responsibilities and rights of states to prevent, reduce, and eliminate 

pollution, to plan the development and use of land and water resources and to consult 

with the Administrator with respect to the exercise of the Administrator's authority under 

the CWA. CWA section 101(b). 

This proposal also does not affect Congressional policy not to supersede, abrogate or 

otherwise impair the authority of each State to allocate quantities of water within its 

jurisdiction and / neither does it affect the policy of Congress that nothing in the CWA 

shall be construed to supersede or abrogate rights to quantities of water which have been 

established by any state. CWA section 101(g).

Discussion: The above two statements are misleading because they are presented in the 

proposed rule in a way that tends to create the impression the Agencies are dealing with 

solely Congressional policy and not requirements of the CWA. The above two statements 

are in fact a clearly stated objective of the CWA.

The lead-in paragraph for Section 101 of the CWA states: The objective of this Act is to 

restore and maintain the chemical, physical, and biological integrity of the Nation's 

waters. In order to achieve this objective it is hereby declared that, consistent with the 

provisions of this Act---(b) It is the policy of the Congress to recognize, preserve, and 

protect the primary responsibilities and rights of States to ... and(g) It is the policy of 

Congress that the authority of each State to allocate quantities of water within its 

jurisdiction shall not be superseded, abrogated or otherwise impaired by this Act ...

When the above statements are presented in the context that they are found in the CWA it 

becomes much more evident that Congress did intend for Federal actions conducted 

under authority of the CWA to not interfere with state rights and authorities, and state 
Clean Water Rule Response to Comments – Topic 1: General Comments 

144

responsibilities to prevent, reduce, and eliminate pollution and to plan the development 

and use of land and water resources. 

We also have a concern with the statements: "This proposal does not affect 

Congressional policy to preserve the primary responsibilities and rights of states ..." and 

"This proposal also does not affect Congressional policy not to supersede, abrogate or 

otherwise impair the authority of each State... " When considering all of the concerns and 

problems that have occurred with the current implementation of the CWA it is difficult to 

believe that the action called for under the proposed rule would not add an additional 

burden on the states as they work to carry out their rights and responsibilities to manage 

the water and land resources within their jurisdiction. 

Having a federal agency permitting land and water management activities from distant 

and often out-of-state offices with no knowledge of local conditions and no connection

with local citizens can only lead to further complicate matters. It is clear that Congress, 

when it originally enacted and then amended the CWA never intended for the Agencies 

to act as the primary permitting and enforcement agency for land and water use activities 

across the nation. Contrary to what is being presented in the proposed rule it is obvious 

that the Agencies are attempting to set themselves up as the distant and often out-of-state 

permitting authority that will have the ability to greatly influence the land and water uses 

in all States and across the entire nation. 

For over one hundred years the nation's state and local governments have dealt with the 

planning, development and use of land and water resources, including water pollution 

within their jurisdictions. These tasks have been carried out-faithfully at the local level

without having to take extremely punitive measures, which seems to be the norm when 

federal agencies have intervened in the recent past. This heavy-handed approach to gain 

compliance is now a common practice in the way the Agencies conducts their permitting 

activities. This constant fear of harsh fines and threats of being imprisoned by federal 

agencies has greatly affected the states' responsibilities and rights when dealing with 

local efforts to prevent, reduce, and eliminate pollution and to plan the development and 

use of land and water resources. We can only foresee this situation becoming much worse 

if the proposed rule is implemented. 

Congress has over the years been very careful to encourage state and local government 

responsibility for and involvement in the planning, permitting and proper implementation 

of land and water use activities. Only in the last twenty or thirty years has the role of the 

states and local governments been usurped by the mission creep of federal agencies. This 

proposed rule is another example of a mission creep that is being fueled and driven by a 

few select elite environmental organizations that will stop at nothing to impose their will 

on the American public.

Recommendation: Withdraw the current proposed rule. 

Additionally, the Agencies must: 

 End actions that allow mission creep within the federal governmental agencies. 

 Discontinue unconstitutional self-serving efforts to increase the Agencies' 

boundaries of jurisdiction over land use activities across the nation. 

 Work diligently to divest themselves of all permitting authority and rather put 

their efforts towards helping the states and local governments coordinate and 
Clean Water Rule Response to Comments – Topic 1: General Comments 

145

jointly plan for permitting and implementing sound land and water use practices 

across the entire United States, which is the clear intent of the CWA. 

Connect with the American public and not give in to the desires of a select elite group of 

environmental organizations that hope to gain control of the nation's land and water 

resources through the manipulation of the Federal land and resource management 

agencies. (p. 7-10)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. See Summary 

Response, Preamble to the Final Rule and Technical Support Document Sections I 

and II. 

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

1.189 Local agencies can better determine priority needs. Each watershed has unique 

hydrological, geological, and climatological conditions which will make one size- fits all 

federal guidance on determining what is considered a water of the US extremely difficult 

to fairly implement. Most regions in Colorado have a good working relationship with the 

Army Corps of Engineers and the environmental health department in trying to protect 

and improve water quality, so delegating more authority and flexibility to the state and/or 

local government would enable local entities to protect their resources in a more 

economically efficient manner. (p. 2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

146

Custer County Commission (Doc. #10186)

1.190 Another issue at stake is that the Constitution of the State of Montana states that "All 

surface, underground, flood, and atmospheric waters within the boundaries of the state 

are the property of the state for the use of its people and are subject to appropriation for 

beneficial uses as provided by law". (p. 2)

Agency Response: Section 101(g) of the CWA states, “It is the policy of Congress

that the authority of each State to allocate quantities of its water within its 

jurisdiction shall not be superseded, abrogated or otherwise impaired by [the CWA 

and] that nothing in [the CWA] shall be construed to supersede or abrogate rights 

to quantities of water which have been established by any State.” Similarly, Section 

510(2) provides that nothing in the Act shall “be construed as impairing or in any 

manner affecting any right or jurisdiction of the States with respect to the waters . . 

. of such States.” The rule is entirely consistent with these policies. The rule does 

not impact or diminish State authorities to allocate water rights or to manage their 

water resources. Nor does the rule alter the CWA’s underlying regulatory process. 

Having been enacted with the objective of restoring and maintaining the chemical, 

physical, and biological integrity of our nation’s waters, the CWA serves to protect 

water quality. Neither the CWA nor the rule impairs the authorities of States to 

allocate quantities of water. Instead, the CWA and the rule serve to enhance the 

quality of the water that the States allocate. See Summary Response, Preamble to 

the Final Rule, and Technical Support Document Section I for further discussion

including regarding Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700 

(1994).

Dayton Valley Conservation District (Doc. #10198)

1.191 The State of Nevada already has statutes that clearly provide for protection of all waters 

in Nevada. There is no reason for the EPA and Corps to duplicate regulations that the 

State of Nevada currently administers. Although not all states currently regulate runoff, 

the State of Nevada does. Blanket use of the proposed rule change will duplicate efforts, 

complicate administration, and impact state rights. (p. 3)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

147

Elk County Commissioners (Doc. #10941)

1.192 We urge you to abandon this change in definition and allow the states to have jurisdiction 

over their own sources, a much more practical solution. (p. 1)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II. 

Sanpete County, Manti, Utah (Doc. #11978)

1.193 Having a federal agency permitting land and water management activities from distant 

and often out-of-state offices with no knowledge of local conditions and no connection 

with local citizens can only lead to further complicate matters. It is clear that Congress, 

when it originally enacted and then amended the CWA never intended for the EPA and 

the Corp to act as the primary permitting and enforcement agency or land and water use 

activities across the nation. Contrary to what is being presented in the proposed rule, it is 

obvious that these agencies are attempting to set themselves up as the distant and often 

out-of-state permitting authority that will haw the ability to greatly influence the land and 

water uses in all State s and across the entire nation. (p. 3)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II. 

Board of County Commissioners, Churchill County, Nevada (Doc. #12260)

1.194 We urge you to delay any implementation of the proposed rule and request that you 

engage in consultation with each state and local government to formulate 

recommendations for a consensus regulatory proposal that would identify the scope of 
Clean Water Rule Response to Comments – Topic 1: General Comments 

148

waters to be covered under the Clean Water Act and those waters to be reserved for the 

states to determine how to regulate. The resulting proposal should be published in the 

Federal register for public review and comment. (p. 2)

Agency Response: The agencies have finalized the rule. See Response to 

Comments Compendium Topic 13 – Process Concerns and Administrative 

Procedures In 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 and solicited their comments on 

the proposed action and on the development of the rule. Specifically, state and local 

governments were consulted at the onset of rule development in 2011, and following 

the publication of the proposed rule in 2014. In addition to engaging key 

organizations under federalism, the agencies sought feedback on this rule from a 

broad audience of stakeholders through extensive outreach to numerous state and 

local government organizations. The EPA held over 400 meetings with interested 

stakeholders, including representatives from states, tribes, counties, industry, 

agriculture, environmental and conservation groups, and others during the public 

comment period.

A detailed narrative of agencies’ outreach and discretionary consultation efforts can 

be found in the docket for this rule. [See Final Summary of the Discretionary 

Consultation and Outreach to State, Local, and County Governments for the 

Revised Definition of Waters of the United States.] The agencies will continue to 

work closely with the states to implement the final rule.

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

1.195 Counties are already tasked with the responsibility to protect the health, welfare and 

safety of their residents, as well as maintain and improve quality of life. This includes 

protecting valuable water resources to ensure that our waters remain clean. (p. 1)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II. 

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

1.196 The Federal Emergency Management Agency (FEMA) expends over $100 million 

annually identifying floodplains, and recognizes the authority of local government to 

adopt the appropriate ordinances to manage land uses within the designated floodplain. 

This proposed rule grants full discretion to EPA to exercise best professional judgment 

to identify a floodplain and imposes the full force of the Clean Water Act on any land use 

decision that could affect undefined "water" within that floodplain or riparian area. (p. 3)
Clean Water Rule Response to Comments – Topic 1: General Comments 

149

Agency Response: The rule does not regulate land use. See Preamble to the Final 

Rule and Technical Support Document for tools available to assist in jurisdictional 

determinations including FEMA maps.

Uintah County, Utah (Doc. #12720)

1.197 The proposed definition of tributary seems designed to place the COE and EPA in a 

position to intervene in any and all activities on every square foot within the United 

States. The proposed rule is an attempt to circumvent the will of the United States 

Supreme Court. The message from the Court was that the Agencies had intruded beyond 

their authority. It appears the Agencies have interpreted this decision as an invitation to 

replace a bad policy with an even worse policy. (p. 4)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II. 

Wibaux County Commissioners, Wibaux, Montana (Doc. #12732)

1.198 Wibaux County, Montana, contains 890 sq. miles, and the majority of our economy is 

agricultural oriented. The agriculture people of our county rely very heavily on the 

rangeland and farmland. They make their living off of the land and so they are very good 

stewards of their land. The farmers and ranchers of our county should have more interest 

and input of their land then the special interest groups in this country. Federal control of 

our private property and the water rights is unnecessary. The landowners have been the 

caretakers of their land and water as a natural resource for hundreds of years. (p. 1)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule and 

Technical Support Document. Section 101(g) of the CWA states, “It is the policy of 

Congress that the authority of each State to allocate quantities of its water within its 

jurisdiction shall not be superseded, abrogated or otherwise impaired by [the CWA 

and] that nothing in [the CWA] shall be construed to supersede or abrogate rights 

to quantities of water which have been established by any State.” Similarly, Section 
Clean Water Rule Response to Comments – Topic 1: General Comments 

150

510(2) provides that nothing in the Act shall “be construed as impairing or in any 

manner affecting any right or jurisdiction of the States with respect to the waters . . 

. of such States.” The rule is entirely consistent with these policies. The rule does 

not impact or diminish State authorities to allocate water rights or to manage their 

water resources. Nor does the rule alter the CWA’s underlying regulatory process. 

Having been enacted with the objective of restoring and maintaining the chemical, 

physical, and biological integrity of our nation’s waters, the CWA serves to protect 

water quality. Neither the CWA nor the rule impairs the authorities of States to 

allocate quantities of water. Instead, the CWA and the rule serve to enhance the 

quality of the water that the States allocate. See Technical Support Document 

Section I for further discussion including regarding Jefferson County v. Washington 

Dept. of Ecology, 511 U.S. 700 (1994).

Whitman County Commissioners, Colfax, WA (Doc. #12860)

1.199 The proposed rule violates the above premise and exceeds the authority given for federal 

regulation. It steps into trying to regulate areas left by the Constitution and the Congress 

of the United States that should only be properly regulated through State Law and Codes. 

(p. 1)

Agency Response: See Summary Response, Preamble to the Final Rule, and 

Technical Support Document Sections I and II. See also Response to Comments 

Compendium Topic 5 – Significant Nexus, Introduction and summary response to 

comments 1, 2, 3, 4, and 5.

1.200 Our state regulations are adequately protecting the natural resources of Whitman County 

while still allowing our citizens to be productive. Our local towns and businesses are 

small with limited resources. Any holdup of a project due to additional unnecessary 

regulations will produces no measurable benefit yet cost extra money-money that will be 

taken away from other projects of equal importance. This proposal does nothing to 

increase benefits-it simply creates more burdensome regulation and paperwork. (p. 2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II.

Flathead County Board of Commissioners (Doc. #13072)

1.201 The language of the proposed update is confusing, inconsistent and at odds with the 

current language of the Clean Water Act. The Montana Legislature has charged the 
Clean Water Rule Response to Comments – Topic 1: General Comments 

151

Montana Department of Natural Resources and Conservation with implementing and 

administering the exercise of the state's sovereign power and specifically directs that 

attempts to gain control of large quantities of water be resisted, Montana Code Annotated 

(MCA) 85-1-101 Policy considerations. Also, the Montana Legislature has defined 

"public ways", MCA 85-1-111, and "navigable waters", MCA 85-1-112. The proposed 

rules seem to be in conflict with these MCA's. (p. 2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II. Section 101(g) of the CWA states, 

“It is the policy of Congress that the authority of each State to allocate quantities of 

its water within its jurisdiction shall not be superseded, abrogated or otherwise 

impaired by [the CWA and] that nothing in [the CWA] shall be construed to 

supersede or abrogate rights to quantities of water which have been established by 

any State.” Similarly, Section 510(2) provides that nothing in the Act shall “be 

construed as impairing or in any manner affecting any right or jurisdiction of the 

States with respect to the waters . . . of such States.” The rule is entirely consistent 

with these policies. The rule does not impact or diminish State authorities to 

allocate water rights or to manage their water resources. Nor does the rule alter the 

CWA’s underlying regulatory process. Having been enacted with the objective of 

restoring and maintaining the chemical, physical, and biological integrity of our 

nation’s waters, the CWA serves to protect water quality. Neither the CWA nor the 

rule impairs the authorities of States to allocate quantities of water. Instead, the 

CWA and the rule serve to enhance the quality of the water that the States allocate. 

See Technical Support Document Section I for further discussion including 

regarding Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700 (1994).

Mille Lacs County Board of Commissioners (Doc. #13198)

1.202 In addition to our comments highlighted in that joint letter, the Board is additionally 

concerned about the impacts this federal rule will have to the relationship between tribal 

governments, our county, and the public trust responsibilities of the State. The interplay 

between the federal government, the States, tribal governments, and local governments is 

of great concern to Mille Lacs County and other local governments around the state of 

Minnesota. (p. 1)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 
Clean Water Rule Response to Comments – Topic 1: General Comments 

152

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. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II.

Carson Water Subconservancy District, Carson City, NV (Doc. #13573)

1.203 CWSD strongly believes that the best way to achieve water quality improvements in the 

Carson River is by working with local government and landowners along the river to 

more effectively implement projects rather than expanding the jurisdiction of the Corps’

regulatory authority. The State of Nevada already has statutes that clearly provide for 

protection of all waters in Nevada. There is no reason for the EPA and Corps to duplicate 

regulations that the State of Nevada currently administers. Although not all states 

currently regulate runoff, the State of Nevada does. Blanket use of the proposed rule 

change will duplicate efforts, complicate administration, and impact state rights. (p. 3)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II.

Big Horn County Commission (Doc. #13599)

1.204 1) The proposed rule abandons cooperative federalism. The principles of cooperative 

federalism dictate that control of land use decisions properly rests with state and local 

governments. As the Supreme Court recognized, “regulation of land use is perhaps the 

quintessential state activity. 

2) The proposed rule establishes a presumption of federal jurisdiction, confusing 

jurisdiction with water quality. The result is a series of counterproductive regulatory 

hurdles to locally driven water conservation and stewardship practices. (p. 3)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 
Clean Water Rule Response to Comments – Topic 1: General Comments 

153

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. See Summary 

Response, Preamble to the Final Rule and Technical Support Document Sections I 

and II.

Brown County (Doc. #13603)

1.205 Many regulations are already in place to protect water quality, every state has 

construction storm water permits for construction exceeding 1 acre, oil and hazardous 

chemical spill laws and MS-4 storm water quality regulations for urban areas. The idea 

that waters of the US designation is needed for ephemeral streams to protect water quality 

downstream does not take into account other federal and state laws and regulations. (p. 2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II. See also Response to Comments 

Compendium 5 – Significant Nexus and Topic 8 – Tributaries.

Lipan-Kickapoo Water Conservation District, Vancourt, Texas (Doc. #13617)

1.206 The proposed rule would eviscerate planning and allocation in some areas of the State, 

especially where there is a “significant nexus” between groundwater and traditional 

“navigable waters” of the state. (p. 1)

Agency Response: Section 101(g) of the CWA states, “It is the policy of Congress 

that the authority of each State to allocate quantities of its water within its 

jurisdiction shall not be superseded, abrogated or otherwise impaired by [the CWA 

and] that nothing in [the CWA] shall be construed to supersede or abrogate rights 

to quantities of water which have been established by any State.” Similarly, Section 

510(2) provides that nothing in the Act shall “be construed as impairing or in any 

manner affecting any right or jurisdiction of the States with respect to the waters . . 
Clean Water Rule Response to Comments – Topic 1: General Comments 

154

. of such States.” The rule is entirely consistent with these policies. The rule does 

not impact or diminish State authorities to allocate water rights or to manage their 

water resources. Nor does the rule alter the CWA’s underlying regulatory process. 

Having been enacted with the objective of restoring and maintaining the chemical, 

physical, and biological integrity of our nation’s waters, the CWA serves to protect 

water quality. Neither the CWA nor the rule impairs the authorities of States to 

allocate quantities of water. Instead, the CWA and the rule serve to enhance the 

quality of the water that the States allocate. See Summary Response, Preamble to 

the Final Rule, and Technical Support Document Section I for further discussion

including regarding Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700 

(1994).

The rule expressly indicates in paragraph (b) that groundwater, including 

groundwater drained through subsurface drainage systems is excluded from the 

definition of “waters of the United States.” While groundwater is excluded from 

jurisdiction, the agencies recognize that the science demonstrates that waters with a 

shallow subsurface connection to jurisdictional waters can have important effects on 

downstream waters. When assessing whether a water evaluated in (a)(7) or (a)(8) 

performs any of the functions identified in the rule’s definition of significant nexus, 

the significant nexus determination can consider whether shallow subsurface 

connections contribute to the type and strength of functions provided by a water or 

similarly situated waters. However, neither shallow subsurface connections nor any 

type of groundwater are themselves “waters of the United States.” The agencies 

understand that there is a continuum of water beneath the ground surface, from wet 

soils to shallow subsurface lenses to shallow aquifers to deep groundwaters, all of 

which can have impacts to surface waters, but for significant nexus purposes under 

this rule, the agencies have chosen to focus on shallow subsurface connections 

because those are likely to both have significant and near-term impacts on 

downstream surface waters and are reasonably identifiable for purposes of rule 

implementation.

Maricopa County Board of Supervisors (Doc. #14132.1)

1.207 When Congress enacted the CWA, it intended to preserve state and local control over 

land development and water resource management. The proposed rule replaces that local 

control with federal regulation. (p. 2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 
Clean Water Rule Response to Comments – Topic 1: General Comments 

155

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II. See also Response to Comments 

Compendium 5 – Significant Nexus and Topic 8 – Tributaries.

The Board of County Commissioners of Otero County New Mexico (Doc. #14321)

1.208 Under the 1977 Amendments, Congress deemed it appropriate and necessary to 

emphasize the traditional role of the states in the management of land and water 

resources, and specifically noted its intent to:

recognize, preserve, and protect the primary responsibilities and rights of States to 

prevent, reduce, and eliminate pollution, to plan the development and use 

(including restoration, preservation, and enhancement) of land and water 

resources.

33 U.S.C. § 1251(b) (emphasis added). Yet, by drafting a regulatory definition so 

encompassing as to embrace those isolated, unconnected and wholly intrastate wetlands, 

ponds, oxbow lakes, etc. simply because they fall within a “floodplain”—a term not 

found in the statutory text—the agencies’ Proposed Rule is sure to impinge upon the 

states’ traditional land use and water management authority. See SWANCC, 531 U.S. at 

174. (p. 11)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. See Summary Response, 

Preamble to the Final Rule and Technical Support Document.

Natural Resources, Clearwater, FL (Doc. #14426.1)

1.209 State permits in Florida also requires a stormwater pollution prevention plan to address 

erosion and sediment control, even if a discharge is not made to a WOTUS. As a result, 

all of the additional benefits sought by the revisions to the rule will not be realized in 

Florida since this protection is already offered at a state level. With the aforementioned 

federal permitting timeframes and the fact that much of the program is duplicative of 

state efforts, we believe that the proposed rule will result in a significant increase in the 

cost of maintaining the stormwater system and other capital improvement projects. 

Therefore, we recommend that the Federal agencies consider delegating permitting 

authority, where the overlap exists, to the State of Florida’s Department of Environmental 

Protection or Water Management Districts to streamline the permitting process. (p. 8)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 
Clean Water Rule Response to Comments – Topic 1: General Comments 

156

Technical Support Document Sections I and II. The scope of regulatory jurisdiction 

for Clean Water Act purposes in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. States and tribes retain 

full authority to implement their own programs to more broadly and more fully 

protect the waters under their jurisdiction. 

Cassia County, Idaho Board of Commissioners (Doc. #14972)

1.210 Most importantly, this proposed language seems to be a federal takeover of state’s rights 

regarding water and water rights. We oppose this. It is unlawful and unconstitutional. 

State regulation of water within the state borders should remain with the state. (p. 2)

Agency Response: Section 101(g) of the CWA states, “It is the policy of Congress 

that the authority of each State to allocate quantities of its water within its 

jurisdiction shall not be superseded, abrogated or otherwise impaired by [the CWA 

and] that nothing in [the CWA] shall be construed to supersede or abrogate rights 

to quantities of water which have been established by any State.” Similarly, Section 

510(2) provides that nothing in the Act shall “be construed as impairing or in any 

manner affecting any right or jurisdiction of the States with respect to the waters . . 

. of such States.” The rule is entirely consistent with these policies. The rule does 

not impact or diminish State authorities to allocate water rights or to manage their 

water resources. Nor does the rule alter the CWA’s underlying regulatory process. 

Having been enacted with the objective of restoring and maintaining the chemical, 

physical, and biological integrity of our nation’s waters, the CWA serves to protect 

water quality. Neither the CWA nor the rule impairs the authorities of States to 

allocate quantities of water. Instead, the CWA and the rule serve to enhance the 

quality of the water that the States allocate. See Summary Response, Preamble to 

the Final Rule, and Technical Support Document Section I for further discussion

including regarding Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700 

(1994).

National Association of Counties (Doc. #15081)

1.211 Because of vague definitions used in the proposed rule, it is likely that more waters 

within a state will be designated as “waters of the U.S.” As the list of “waters of the U.S.” 

expand, so do state responsibilities for WQS and TMDLS. The effects on state nonpointsource control programs are difficult to determine, but they could be equally dramatic, 

without a significant funding source to pay for the proposed changes.

Recommendation:

NACo recommends that the federal agencies consult with the states to determine more 

accurate costs and implications for the WQS and TMDL programs (p. 16-17)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 
Clean Water Rule Response to Comments – Topic 1: General Comments 

157

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule and 

Technical Support Document.

In 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 and solicited their comments on the 

proposed action and on the development of the rule. Specifically, state and local 

governments were consulted at the onset of rule development in 2011, and following 

the publication of the proposed rule in 2014. In addition to engaging key 

organizations under federalism, the agencies sought feedback on this rule from a 

broad audience of stakeholders through extensive outreach to numerous state and 

local government organizations. The EPA held over 400 meetings with interested 

stakeholders, including representatives from states, tribes, counties, industry, 

agriculture, environmental and conservation groups, and others during the public 

comment period. A detailed narrative of intergovernmental concerns raised during 

the course of the rule’s development and a description of the agencies’ efforts to 

address them with the final rule can be found in the docket for this rule. [See Final 

Summary of the Discretionary Consultation and Outreach to State, Local, and 

County Governments for the Revised Definition of Waters of the United States.] 

Board of County Commissioners, Richardson, Nebraska (Doc. #15082)

1.212 WHEREAS, this expansion of the EPA and the CORP undermines the authority of the 

States. (p. 1)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II. The scope of regulatory jurisdiction 

for Clean Water Act purposes in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. States and tribes retain 

full authority to implement their own programs to more broadly and more fully 

protect the waters under their jurisdiction. 

Central Platte Natural Resources District (Doc. #15477)

1.213 Equally troubling is the Agencies' disregard for all existing layers of state and local 

regulatory measures, which provide protection for groundwater and intrastate surface 

water. These meaningful regulatory measures will only be hampered by another layer of 

federal interference, and will directly impact land use decisions made by state and local 

governmental entities, such as CPNRD, and private entities, who must account for the 

cost and timeframe for the permitting process and the impacts of permit denials on land 
Clean Water Rule Response to Comments – Topic 1: General Comments 

158

values and potential development. The negative impacts to the local tax base for 

governmental entities such as CPNRD, and the stifling effect on development activities 

under the Proposed Rule cannot be discounted. 

Asserting blanket jurisdiction over any and all waters will result in federal control over 

the regulation of land use — a primary responsibility of the States. This infringement on 

State and local responsibilities to control the development of localized natural resources 

and land uses is not supported by the language or history of the CWA. As written, the 

Proposed Rule is not based upon a permissible construction of the CWA and will not 

withstand a challenge. (p. 4)

Agency Response: The rule does not regulate land use. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. See Summary 

Response, Preamble to the Final Rule and Technical Support Document Sections I 

and II. The scope of regulatory jurisdiction for Clean Water Act purposes in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

defined as “waters of the United States” under the rule than under the existing 

regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries. States and tribes retain full authority to implement 

their own programs to more broadly and more fully protect the waters under their 

jurisdiction. 

The rule expressly indicates in paragraph (b) that groundwater, including 

groundwater drained through subsurface drainage systems is excluded from the 

definition of “waters of the United States.” While groundwater is excluded from 

jurisdiction, the agencies recognize that the science demonstrates that waters with a 

shallow subsurface connection to jurisdictional waters can have important effects on 

downstream waters. When assessing whether a water evaluated in (a)(7) or (a)(8) 

performs any of the functions identified in the rule’s definition of significant nexus, 

the significant nexus determination can consider whether shallow subsurface 

connections contribute to the type and strength of functions provided by a water or 

similarly situated waters. However, neither shallow subsurface connections nor any 

type of groundwater are themselves “waters of the United States.” The agencies 

understand that there is a continuum of water beneath the ground surface, from wet 

soils to shallow subsurface lenses to shallow aquifers to deep groundwaters, all of 

which can have impacts to surface waters, but for significant nexus purposes under 

this rule, the agencies have chosen to focus on shallow subsurface connections 

because those are likely to both have significant and near-term impacts on 

downstream surface waters and are reasonably identifiable for purposes of rule 

implementation.
Clean Water Rule Response to Comments – Topic 1: General Comments 

159

City of Portland, Maine (Doc. #15582)

1.214 How does the Rule apply in a State with delegated authority like the State of Maine? 

Would this expand EPA's jurisdiction in a delegated state? Which agency would 

administer this proposed Rule, Maine DEP, or EPA? (p. 3)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II. The scope of regulatory jurisdiction 

for Clean Water Act purposes in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. States and tribes retain 

full authority to implement their own programs to more broadly and more fully 

protect the waters under their jurisdiction. 

Beaverhead County Commissioners (Doc. #16892)

1.215 The State of Montana has jurisdiction over the water in our state; federal agencies lack 

the authority to usurp that power. (p. 5)

Agency Response: Section 101(g) of the CWA states, “It is the policy of Congress 

that the authority of each State to allocate quantities of its water within its 

jurisdiction shall not be superseded, abrogated or otherwise impaired by [the CWA 

and] that nothing in [the CWA] shall be construed to supersede or abrogate rights 

to quantities of water which have been established by any State.” Similarly, Section 

510(2) provides that nothing in the Act shall “be construed as impairing or in any 

manner affecting any right or jurisdiction of the States with respect to the waters . . 

. of such States.” The rule is entirely consistent with these policies. The rule does 

not impact or diminish State authorities to allocate water rights or to manage their 

water resources. Nor does the rule alter the CWA’s underlying regulatory process. 

Having been enacted with the objective of restoring and maintaining the chemical, 

physical, and biological integrity of our nation’s waters, the CWA serves to protect

water quality. Neither the CWA nor the rule impairs the authorities of States to 

allocate quantities of water. Instead, the CWA and the rule serve to enhance the 

quality of the water that the States allocate. See Summary Response, Preamble to 

the Final Rule, and Technical Support Document Section I for further discussion

including regarding Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700 

(1994).

Board of Supervisors, Broadwater Conservation District, Montana (Doc. #18819)

1.216 Broadwater Conservation District feels very strongly that state and local control of 

waters, not already controlled by the federal government, is a much more effective way 

of ensuring water quality concerns are addressed. Local government agencies and groups 

can better address compliance issues and ensure programs and projects are put into place 
Clean Water Rule Response to Comments – Topic 1: General Comments 

160

to effectively address any concerns that should arise. And generally, folks are far more 

willing to comply to local rules and regulations, with effective relationships, than to have 

additional, unclear, and often unrealistic regulations attached to more and more rules and 

federal regulations. Furthermore, if an agency feels a new rule is warranted or a 

clarification to a rule is needed, the legislative process should be used. (p. 2)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I (for legal authority to issue the rule) and II.

The scope of regulatory jurisdiction for Clean Water Act purposes in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

part because the rule puts important qualifiers on some existing categories such as 

tributaries. States and tribes retain full authority to implement their own programs 

to more broadly and more fully protect the waters under their jurisdiction. 

Quay County, New Mexico (Doc. #19558)

1.217 We believe that the Proposed Rule is attempting to establish control over virtually all 

private, state and public property by regulatory action and is circumventing the 

Legislative process and authority of the United States Congress and the sovereign 

authority of the states. It also seeks to disregard the role, authority and majority opinion 

of the United States Supreme Court. 

Although we as Quay County believe the goal of protecting, improving and conserving 

clean water is valid and necessary we believe those activities and authorities are and 

should be under the jurisdiction of the states and local government and must not be 

usurped by federal regulatory excess. Although the statutory authority of the Clean Water 

Act was granted by the United States Congress most of the following expansion of 

definitions and enforcement authority and penalties have come from the regulatory 

process and has been mostly intended to expand the federal authority over private, state 

and other public lands. This proposed regulation is more of the same. It attempts by 

regulation to usurp the legislative process and should be terminated immediately. The 

entire process should be referred back to Congress for a thorough review and rewrite of 

the Clean Water Act and be removed from regulatory rulemaking. (p. 1-2)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I (for legal authority to issue the rule) and II.

The scope of regulatory jurisdiction for Clean Water Act purposes in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 
Clean Water Rule Response to Comments – Topic 1: General Comments 

161

“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. States and tribes retain full authority to implement their own programs 

to more broadly and more fully protect the waters under their jurisdiction. 

1.218 We believe this rule intends to remove the distinction between what is state and local in 

role and authority and what is national and leads to what is a completely centralized 

federal control. We believe that clearly violates and infringes upon the role of county and 

state governments and threatens to destroy all separation of powers, private property 

rights and custom and culture of local communities and counties. (p. 4)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I (for legal authority to issue the rule) and II.

The scope of regulatory jurisdiction for Clean Water Act purposes in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

part because the rule puts important qualifiers on some existing categories such as 

tributaries. States and tribes retain full authority to implement their own programs 

to more broadly and more fully protect the waters under their jurisdiction.

1.219 The establishment of "automatic jurisdiction" or "jurisdiction by rule" despite any water 

specific substantiation runs counter to logic, law. (p. 4)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. See also Response to Comments Compendium Topic 

2 Traditional Navigable Waters, Interstate Waters, Territorial Seas, 

Impoundments, Topic 3 – Adjacent Waters, Topic 5 – Significant Nexus, and Topic 

8 – Tributaries.

1.220 The Proposed Rule improperly usurps "primary responsibilities and rights of States". (p. 

4)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I (for legal authority to issue the rule) and II.

The scope of regulatory jurisdiction for Clean Water Act purposes in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

part because the rule puts important qualifiers on some existing categories such as 

tributaries. States and tribes retain full authority to implement their own programs 

to more broadly and more fully protect the waters under their jurisdiction. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

162

1.221 Under the 1977 Amendments, Congress deemed it appropriate and necessary to 

emphasize the traditional role of the states in the management of land and water 

resources, and specifically noted its intent to: recognize, preserve, and protect the primary 

responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the 

development and use (including restoration, preservation, and enhancement) of land and 

water resources. By proposing and then potentially unilaterally enforcing a regulatory 

definition so encompassing as to embrace those isolated, unconnected and wholly 

intrastate wetlands, ponds, oxbow lakes, etc. simply because they fall within a 

"floodplain"-a term not found in the statutory text-the agencies' Proposed Rule will 

trample upon the states' and counties traditional land use and water management 

authority and roles. (p.4)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. See Summary 

Response, Preamble to the Final Rule and Technical Support Document Sections I 

and II.

1.222 The impingement by the federal government on the regulatory and oversight affairs 

traditionally reserved to the States creates a constitutional concern that must require a 

clear authorization from Congress. The CWA is devoid of any such authorization and, 

therefore, the Proposed Rule's implication of federalism concerns and traditional state 

authority should prompt the withdrawal of the proposed rule/definitions. (p. 4)

Agency Response: Regarding Clean Water Act legal authority, see Technical 

Support Document Section I. The agencies have finalized the rule. See Response to 

Comments Compendium Topic 13 – Process Concerns and Administrative 

Procedures. The scope of regulatory jurisdiction for Clean Water Act purposes in 

this rule is narrower than that under the existing regulation. Fewer waters will be 

defined as “waters of the United States” under the rule than under the existing 

regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries. States and tribes retain full authority to implement 

their own programs to more broadly and more fully protect the waters under their 

jurisdiction. See Summary Response and Preamble to the Final Rule. The final rule 

does not establish any new regulatory requirements. Instead, it is a definitional rule 

that clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 
Clean Water Rule Response to Comments – Topic 1: General Comments 

163

or to other state or tribal programs managing these resources. See Technical 

Support Document Section II.

Central Flyway Council (Doc. #5578)

1.223 Many people in opposition to the proposed rule consider that wetland regulations should 

be controlled and managed by states. State regulation of wetlands would be too variable 

and inconsistent. (p. 2)

Agency Response: The federal interest in protecting waters is strong, and the rule 

is a reasonable, considered, legally sound and scientifically based delineation of 

waters subject to the CWA. However, the agencies recognize the states’ authority as 

well. States and tribes retain full authority to implement their own programs to 

more broadly and more fully protect the waters under their jurisdiction. See 

Summary Response, Preamble to the Final Rule and Technical Support Document.

Pike County (IL) Republican Central Committee, Pike County Republican Party, Illinois (Doc. 

#7984)

1.224 This proposed rule will give primacy to the federal government over local and State land 

use rules. When federal agencies have the power to grant, deny or veto a federally 

enforceable permit to build, plant, fence, apply fertilizer or spray pesticide or disease 

control products on land managed by farmers, businesses, and municipalities, that is 

regulatory authority over land use. If a landowner cannot build a house on, build a fence 

over, or manipulate a jurisdictional wetland or ephemeral drain that runs across his or her 

land without a federal permit, then that is regulating land use. The federal government 

has no business regulating land use. (p. 2)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. See Summary 

Response, Preamble to the Final Rule and Technical Support Document Sections I 

and II.

Washington State Association of Counties (Doc. #9976)

1.225 We are very concerned that the proposed rule would modify current regulatory practices 

which have been in place for 25 years. Washington State is a delegated state water 

pollution control agency responsible for implementing all federal 10water pollution 

control laws and regulations through the state's Department of Ecology (Ecology). The 

proposed Waters of the United States rule could create confusion over interpretation by 
Clean Water Rule Response to Comments – Topic 1: General Comments 

164

federal agencies and Ecology. It is important that Ecology be delegated the ability to 

determine jurisdiction by EPA. (p. 1)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II.

The scope of regulatory jurisdiction for Clean Water Act purposes in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

part because the rule puts important qualifiers on some existing categories such as 

tributaries. States and tribes retain full authority to implement their own programs 

to more broadly and more fully protect the waters under their jurisdiction. 

Additionally, by providing greater clarity regarding what waters are subject to 

CWA jurisdiction, the frequency with which states and tribes with authorized 

section 402 and 404 CWA permitting programs will need to make jurisdictional 

determinations on a case-specific basis is reduced.

Nebraska Association of Resources Districts (Doc. #11855)

1.226 Equally troubling is the Agencies' disregard for all existing layers of state and local 

regulatory measures, which provide protection for groundwater and intrastate surface 

water.44 These meaningful regulatory measures will only be hampered by another layer of 

federal interference, and will directly impact land use decisions made by state and local 

governmental entities, such as NARD's member NRDs, and private entities, who must 

account for the cost and timeframe for the permitting process and the impacts of permit 

denials on land values and potential development. The negative impacts to the local tax 

base for governmental entities such as the NRDs, and the stifling effect on development 

activities under the Proposed Rule cannot be discounted. 

Asserting blanket jurisdiction over any and all waters will result in federal control over 

the regulation of land use - a primary responsibility of the States.45 This infringement on 

State and local responsibilities to control the development of localized natural resources 

and land uses is not supported by the language or history of the CWA.46 As written, the 

 

44 NEB. REV. STAT. §§ 2-320 1 et seq.; Nebraska Groundwater Management and Protection Act, NEB. REV. 

STAT. §§ 46-701 el seq., NEB. REV. STAT. § 2-32, 115, NEB. REV. STAT. § 25-1064; NEB. REV. STAT. § 25-2 

159; NEB. REV. STAT. § 25-2 160; NEB. REV. STAT. § 37-807; NEB.REV. STAT. § 28- 106; Nebraska 

Environmental Protection Act. Neb. Rev. Stat. § 81-1501, et seq.

45 Hess v Port Authority Trans-Hudson Corporation. 513 U.S. 30, 44, 115 S.C!. 394, 130 L.Ed.2d 245 (1994) (" 

[R]egulation of land use [is] a function traditionally performed by local governments"); FERC v. Mississippi, 456 

U.S. 742, 767-768, n. 30, 102 S.C!. 2 126, 72 L.Ed.2d 532 (1982) (Regulation of land use, as through the issuance 

of the development permits, is a quintessential state and local power.)

46 SWANCC. v. U.S. Army Corps of Engineers, 53 J U.S. 159, 174, 121 S. CI. 675, 683-84, 148 L. Ed. 2d 576 (200 

1) ("Rather than expressing a desire to readjust the federal-state balance in this manner, Congress chose to 
Clean Water Rule Response to Comments – Topic 1: General Comments 

165

Proposed Rule is not based upon a permissible construction of the CWA and will not 

withstand a challenge.47 (p. 8-9)

Agency Response: The rule does not regulate land use. Regarding Clean Water 

Act legal authority, see Technical Support Document Section I. The scope of 

regulatory jurisdiction for Clean Water Act purposes in this rule is narrower than 

that under the existing regulation. Fewer waters will be defined as “waters of the 

United States” under the rule than under the existing regulations, in part because 

the rule puts important qualifiers on some existing categories such as tributaries. 

States and tribes retain full authority to implement their own programs to more 

broadly and more fully protect the waters under their jurisdiction. The final rule 

does not establish any new regulatory requirements. Instead, it is a definitional rule 

that clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. See Summary 

Response, Preamble to the Final Rule and Technical Support Document Sections I 

and II.

The rule expressly indicates in paragraph (b) that groundwater, including 

groundwater drained through subsurface drainage systems is excluded from the 

definition of “waters of the United States.” While groundwater is excluded from 

jurisdiction, the agencies recognize that the science demonstrates that waters with a 

shallow subsurface connection to jurisdictional waters can have important effects on 

downstream waters. When assessing whether a water evaluated in (a)(7) or (a)(8) 

performs any of the functions identified in the rule’s definition of significant nexus, 

the significant nexus determination can consider whether shallow subsurface 

connections contribute to the type and strength of functions provided by a water or 

similarly situated waters. However, neither shallow subsurface connections nor any 

type of groundwater are themselves “waters of the United States.” The agencies 

understand that there is a continuum of water beneath the ground surface, from wet 

soils to shallow subsurface lenses to shallow aquifers to deep groundwaters, all of 

which can have impacts to surface waters, but for significant nexus purposes under 

this rule, the agencies have chosen to focus on shallow subsurface connections 

because those are likely to both have significant and near-term impacts on 

downstream surface waters and are reasonably identifiable for purposes of rule 

implementation.

National Association of Conservation Districts (Doc. #12349)

1.227 The language of the CWA, as ruled by the United States Supreme Court, states that 

waters subject to CWA jurisdiction are navigable waters, relatively permanent tributaries 

 

recognize, preserve, and protect the primary responsibilities and rights of States ... to plan the development and use 

... of land and water resources[.]")

47 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778 (1984); Solid 

Waste Agency of N. Cook Cnty. v. U.S Army Corps of Engineers, 531 U.S. 159, 174, 121 S. CI. 675, 684, 148 L. Ed. 

2d 576 (2001).
Clean Water Rule Response to Comments – Topic 1: General Comments 

166

of navigable waters, and certain other waters with a significant nexus to navigable waters. 

All other waters are left to the jurisdiction of states. Therefore, isolated waters48 and even 

those with a minor connection49 are not, classified as WOTUS. Because many isolated 

waters and many classes of wetlands are legally excluded from the CWA, NACD 

supports the decisions of the Supreme Court to leave the management of non-navigable 

waters in the hands of landowners and local governments; we oppose attempts to expand 

federal jurisdiction of water resources beyond these decisions. (p. 4)

Agency Response: Regarding Clean Water Act legal authority, see Technical 

Support Document Section I. The scope of regulatory jurisdiction for Clean Water 

Act purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule and 

Technical Support Document

California Central Valley Flood Control Association (Doc. #12858)

1.228 The rules fail to appreciate existing State of California constraints upon the flood control 

system. It is important to note that all waterways in California are already regulated and 

Central Valley reclamation districts already monitor and report their discharges to the 

Central Valley Regional Water Quality Control Board. For any projects that require a 

Central Valley Flood Protection Board permit, California’s Title 23 regulations already 

allow the U.S. Army Corps of Engineers (Corps) to add its own requirements to the 

Board’s permits. Combined, this means that: 1) Discharges affecting California’s waters 

already are regulated and activities related to those waters are already reported; and 2) 

The Corps already has the authority to add discharge conditions to projects that take place 

on or near levees if appropriate.

Instead of preserving this adequately functioning system, the proposed regulatory 

guidance package would add redundant, occasionally arbitrary, and inflexible regulations 

that would burden public safety projects and Corps permitting staff. (p. 3)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

 

48 Supreme Court finding that § 404 authority over discharges into "isolated waters" (including isolated wetlands), 

exceeded the authority granted by that section. Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. 

Army Corps of Engineers, 531 U.S. 159(2001).

49 Supreme Court finding that "significant nexus" remains open to judicial interpretation but that isolated wetlands 

could not be WOTUS. Rapanos v. United States, 547 U.S.715 (2006).
Clean Water Rule Response to Comments – Topic 1: General Comments 

167

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II.

County Commissioners Association of Pennsylvania (Doc. #14579)

1.229 In Pennsylvania, there are more than 86,000 miles of waterways, from major rivers to 

local streams and creeks, to large lakes and small ponds. This commonwealth has a long 

history of taking our duty to protect water quality seriously. Our state Clean Streams 

Law, which is older than the federal Clean Water Act, clearly protects all waters of the 

commonwealth from pollution or potential pollution. Over the years, we have developed 

a strong set of regulations and permitting programs that are specific to Pennsylvania’s 

needs. In addition, counties and conservation districts make critical front-line decisions 

related to many aspects of waterway planning and management, including storm water 

management, flood mitigation and maintenance of dams and levees. We are familiar with 

the local environmental issues because we are on the ground in our counties every day, 

providing local response and oversight. (p. 1)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II.

1.230 With expanded federal jurisdiction under this proposed rule, the permitting and decision 

making processes will be removed several levels. The benefits of local county and state 

knowledge working on the ground will be lost, sowing distrust between communities and 

regulators they never see and with whom they lack a similar relationship. (p. 11)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 
Clean Water Rule Response to Comments – Topic 1: General Comments 

168

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II.

North Carolina Department of Environment and Natural Resources (Doc. #14984)

1.231 The proposed rule extends federal intrusion deeply into matters congressionally mandated 

to be left to the states. Congress expressly provided in Section 101(b) of the Clean Water 

Act that: 

"It is the policy of the Congress to recognize, preserve, and protect the primary 

responsibilities and rights of States to prevent, reduce, and eliminate pollution, to 

plan the development and use (including restoration, preservation, and 

enhancement) of land and water resources ...." 

33 U.S.C. § 1251(b). Section 101(b) was written contemporaneously with the definition 

of "navigable waters." A fair reading of that purpose, and its explicit reservation of the 

responsibilities and rights of the states, underscores the limitations on the meaning of the 

terms "navigable waters" and "waters of the United States." 

Section 101(b) places the primary responsibility of managing land and water resources on 

the states, so that the federal agencies continued intrusion and expansion of the reach of 

"waters of the United States" is unjustified and unlawful. The State of North Carolina has 

implemented in an orderly and lawful manner its "primary responsibilities and rights . . . 

to prevent, reduce, and eliminate pollution, to plan the development and use (including 

restoration, preservation, and enhancement) of land and water resources," without need 

for further intervention by the Federal Agencies. North Carolina, like many other states, 

has a program for protection of water quality that is comprehensive and sophisticated. 

NCDENR developed, in cooperation with the Wilmington District of the Corps of 

Engineers, a methodology for wetlands functional valuation. NCDENR staff have also 

developed a protocol for stream identification. These methods precisely identify and 

evaluate the connection of lower order waters, including tributaries and wetlands, and 

their significance to water quality. (p. 2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II.
Clean Water Rule Response to Comments – Topic 1: General Comments 

169

Kansas Natural Resource Coalition (Doc. #15009)

1.232 Kansas State Standards render sufficient protection over tributaries, wetlands and 

connectivity zones to Navigable Waterways, making WOTUS intrusive, invasive and 

unnecessary, as the attached Kansas Water Appropriation Act and Kansas Water 

Appropriation Act Rules and Regulations documents illuminate. 

US Environmental Protection Agency (EPA) and US Army Corp of Engineers (USACE) 

must attempt to achieve consistency with Kansas Water Law; failure to attempt 

consistency with the WOTUS Rule is a 10th Amendment violation. (p. 1)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II.

Section 101(g) of the CWA states, “It is the policy of Congress that the authority of 

each State to allocate quantities of its water within its jurisdiction shall not be 

superseded, abrogated or otherwise impaired by [the CWA and] that nothing in [the 

CWA] shall be construed to supersede or abrogate rights to quantities of water 

which have been established by any State.” Similarly, Section 510(2) provides that 

nothing in the Act shall “be construed as impairing or in any manner affecting any 

right or jurisdiction of the States with respect to the waters . . . of such States.” The 

rule is entirely consistent with these policies. The rule does not impact or diminish 

State authorities to allocate water rights or to manage their water resources. Nor 

does the rule alter the CWA’s underlying regulatory process. Having been enacted 

with the objective of restoring and maintaining the chemical, physical, and 

biological integrity of our nation’s waters, the CWA serves to protect water quality. 

Neither the CWA nor the rule impairs the authorities of States to allocate quantities 

of water. Instead, the CWA and the rule serve to enhance the quality of the water 

that the States allocate. See Technical Support Document Section I for further 

discussion including regarding Jefferson County v. Washington Dept. of Ecology, 511 

U.S. 700 (1994).

Oklahoma Municipal League (Doc. #16526)

1.233 The sweep of the rule's jurisdictional reach ignores Congress' expressly stated policy to 

preserve states' primary responsibilities over land use and water resources. Rapanos, at 

p.18. It simply won't matter whether an activity is allowed or a governmental function is 
Clean Water Rule Response to Comments – Topic 1: General Comments 

170

required under state law or local ordinance if the Agencies can deny a permit for that 

activity. (p. 3)

Agency Response: The rule does not regulate land use. Regarding CWA legal 

authority see Technical Support Document at Section I. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. See Summary 

Response, Preamble to the Final Rule and Technical Support Document Sections I 

and II. The scope of regulatory jurisdiction for Clean Water Act purposes in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

defined as “waters of the United States” under the rule than under the existing 

regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries. States and tribes retain full authority to implement 

their own programs to more broadly and more fully protect the waters under their 

jurisdiction. 

Michigan Association of Conservation Districts (Doc. #16583)

1.234 Regarding the Proposed Rule defining Waters of the United States (WOTUS). The 

language of the CWA, as ruled by the United States Supreme Court, states that waters 

subject lo CWA jurisdiction are navigable waters, relatively permanent tributaries of 

navigable waters, and certain other waters with a significant nexus to navigable waters. 

All other waters are left to the states to regulate. Therefore, isolated waters and even 

those with a minor connection are not WOTUS. Because many isolated waters and many 

classes of wetlands are legally excluded from the CWA, we support the decisions of the 

Supreme Court to leave the management of non-navigable waters in the hands of 

landowners and local governments. We oppose attempts to expand federal jurisdiction of 

water resources beyond these decisions. (p. 2)

Agency Response: Regarding CWA legal authority see Technical Support 

Document at Section I. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II. The scope of regulatory jurisdiction 

for Clean Water Act purposes in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. States and tribes retain 

full authority to implement their own programs to more broadly and more fully 

protect the waters under their jurisdiction. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

171

Montana Association of Conservation Districts (Doc. #18628)

1.235 Confusion abounds in water cases as can be seen by the fact that these cases have been 

brought before the Supreme Court. This continues to be an issue at the federal level. 

Individual states, however, continue to address these concerns at the local level and have 

resulted in significant improvements in many states. The rules need to include more about 

the role of state and local governments in the management and conservation of WOTUS. 

(p. 1)

Agency Response: Regarding CWA legal authority see Technical Support 

Document at Section I. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II. The scope of regulatory jurisdiction 

for Clean Water Act purposes in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. States and tribes retain 

full authority to implement their own programs to more broadly and more fully 

protect the waters under their jurisdiction. 

In 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 and solicited their comments on the 

proposed action and on the development of the rule. Specifically, state and local 

governments were consulted at the onset of rule development in 2011, and following 

the publication of the proposed rule in 2014. In addition to engaging key 

organizations under federalism, the agencies sought feedback on this rule from a 

broad audience of stakeholders through extensive outreach to numerous state and 

local government organizations. The EPA held over 400 meetings with interested 

stakeholders, including representatives from states, tribes, counties, industry, 

agriculture, environmental and conservation groups, and others during the public 

comment period. A detailed narrative of intergovernmental concerns raised during 

the course of the rule’s development and a description of the agencies’ efforts to 

address them with the final rule can be found in the docket for this rule. [See Final 

Summary of the Discretionary Consultation and Outreach to State, Local, and County 

Governments for the Revised Definition of Waters of the United States.]

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

1.236 At the most fundamental level, the proposal as written represents an unjustified 

expansion of Clean Water Act jurisdiction far beyond the limits of federal regulation 

explicitly established by Congress and affirmed by the courts. The proposal would, for 

the first time, give federal agencies direct authority over land use decisions that Congress 

has intentionally reserved to the States. It would intrude so far into traditional State and 
Clean Water Rule Response to Comments – Topic 1: General Comments 

172

local land use authority that it is difficult to imagine that any discretion would be left to 

State, county and municipal governments. (p. 1-2)

Agency Response: The rule does not regulate land use. Regarding CWA legal 

authority see Technical Support Document at Section I. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. See Summary 

Response, Preamble to the Final Rule and Technical Support Document Sections I 

and II. The scope of regulatory jurisdiction for Clean Water Act purposes in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

defined as “waters of the United States” under the rule than under the existing 

regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries. States and tribes retain full authority to implement 

their own programs to more broadly and more fully protect the waters under their 

jurisdiction. 

1.237 We believe that the Agencies have not demonstrated that this proposal—as written—is 

either necessary or desirable, particularly because such a sweeping expansion of federal 

authority would not actually result in new environmental benefits or increased regulatory 

certainty. While this revised definition is ostensibly intended merely to clarify the scope 

of federal jurisdiction, the proposal essentially rewrites the Clean Water Act to make 

EPA and the Corps a central authority that makes the key decisions on many kinds of 

land and water uses. Cooperative federalism, which has worked well in the water quality 

context for over 40 years, would be set aside as the Agencies commandeer State and local 

agencies to carry out federal directives. (p. 2)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II. The scope of regulatory jurisdiction 

for Clean Water Act purposes in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. States and tribes retain 

full authority to implement their own programs to more broadly and more fully 

protect the waters under their jurisdiction. See Technical Support Document

Section I regarding CWA legal authority

1.238 The proposed rule is not really about addressing threats to clean water, however. The 

proposed rule is really about the Agencies’ overreaching attempt to replace longstanding 

state and local control of land uses near water with centralized federal control. (p. 3)
Clean Water Rule Response to Comments – Topic 1: General Comments 

173

Agency Response: The rule does not regulate land use. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. See Summary 

Response, Preamble to the Final Rule and Technical Support Document Sections I 

and II. The scope of regulatory jurisdiction for Clean Water Act purposes in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

defined as “waters of the United States” under the rule than under the existing 

regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries. States and tribes retain full authority to implement 

their own programs to more broadly and more fully protect the waters under their 

jurisdiction. 

1.239 Thus, the Agencies’ assertion that the change in the WOTUS definition has no 

substantive effect is clearly erroneous. The revised definition will have the immediate 

impact of greatly expanding federal jurisdiction over waters that are currently regulated 

by the States. In National Association of Home Builders v. Army Corps of Engineers,17 

the D.C. Circuit Court of Appeals found that a revised Clean Water Act definition had the 

effect of restricting developers’ eligibility for general wetland permits, forcing them to 

apply for more burdensome and costly individual permits in many more situations. The 

court found that the developers had suffered a substantive injury from the definition 

change. The proposed WOTUS definition rule would have precisely the same kind of 

immediate adverse effect on a wide variety of business activities, as described below. (p. 

7-8)

Agency Response: Regarding CWA legal authority see Technical Support 

Document Section I. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II. The scope of regulatory jurisdiction 

for Clean Water Act purposes in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. States and tribes retain 

full authority to implement their own programs to more broadly and more fully 

protect the waters under their jurisdiction. 

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

1.240 We do not support the expansion of federal regulatory authority for the sheer purpose of 

control in areas that state and local government are better positioned to administer. The 

problems to be addressed by this rule are not well defined. (p. 3)
Clean Water Rule Response to Comments – Topic 1: General Comments 

174

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II. The scope of regulatory jurisdiction 

for Clean Water Act purposes in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. States and tribes retain 

full authority to implement their own programs to more broadly and more fully 

protect the waters under their jurisdiction. 

Georgia Chamber of Commerce (Doc. #14430)

1.241 The Chamber believes that the scope and reach of this proposed regulation goes well 

beyond the statutory scope of CWA jurisdiction as contemplated by Congress and 

recognized by the Supreme Court. As currently drafted, this proposal would drastically 

curtail the rights of the states to regulate waters within state boundaries and have a 

significant direct impact on Georgia’s agricultural sector and small businesses. (p. 3)

Agency Response: Regarding CWA legal authority see Technical Support 

Document Section I. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II. The scope of regulatory jurisdiction 

for Clean Water Act purposes in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. States and tribes retain 

full authority to implement their own programs to more broadly and more fully 

protect the waters under their jurisdiction. 

1.242 When Congress passed the CWA, states weren’t an afterthought in the regulation of 

waters, they were seen as being critical to the law’s success and implementation. 

Preliminary analysis indicates that states could be facing many thousands of additional 

regulated stream miles as a result of this rulemaking proposed by the agencies. (p. 8)

Agency Response: Regarding CWA legal authority see Technical Support 

Document Section I. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 
Clean Water Rule Response to Comments – Topic 1: General Comments 

175

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II. The scope of regulatory jurisdiction 

for Clean Water Act purposes in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. States and tribes retain 

full authority to implement their own programs to more broadly and more fully 

protect the waters under their jurisdiction. 

1.243 Under current regulation, states have primary responsibility for regulating waters within 

their boundaries and twice the Unites States Supreme Court has reaffirmed this authority. 

The proposed rule strips this balance and can be interpreted to expand federal jurisdiction 

to nearly every water in the country. The Chamber fully supports the positions espoused 

by Georgia’s Attorney General, Sam Olens and Georgia’s Commissioner of Agriculture, 

Gary Black in their submissions to this rulemaking proposal. See Attachment 1 and 

Attachment 2. 

These officials have articulated the overreach, impact and transgression on the rights of 

the state of Georgia and its agencies, businesses and communities. We urge you to fully 

consider the serious issues each of these elected officials have each raised in their 

submissions. (p. 8)

Agency Response: Regarding CWA legal authority see Technical Support 

Document Section I. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II. The scope of regulatory jurisdiction 

for Clean Water Act purposes in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. States and tribes retain 

full authority to implement their own programs to more broadly and more fully 

protect the waters under their jurisdiction. 

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

1.244 The failure of the Proposed Rule to respect Congress’ mandate the primary responsibility 

for oversight and regulation of land and water resources remain primarily with the states. 

(p. 4)

Agency Response: The rule does not regulate land use. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 
Clean Water Rule Response to Comments – Topic 1: General Comments 

176

or to other state or tribal programs managing these resources. See Summary 

Response, Preamble to the Final Rule and Technical Support Document Sections I

and II. The scope of regulatory jurisdiction for Clean Water Act purposes in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

defined as “waters of the United States” under the rule than under the existing 

regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries. States and tribes retain full authority to implement 

their own programs to more broadly and more fully protect the waters under their 

jurisdiction. 

1.245 A. Overview

In the midst of the debate regarding the Proposed Rule and the need for more rigorous 

federal exertion of jurisdiction and regulation, some have contended that lax or 

inadequate regulation at the state level necessitates the heightened federal involvement. 

In particular, reference is made to a study by the Environmental Law Institute’s State 

Constraints: State-Imposed Limitations on the Authority of Agencies to Regulate Water 

Bodies Beyond the Scope of the Federal Clean Water Act (May 2013) (ELI Study).50

Commenters view the ELI Study’s claims faulty and misleading as to many states, but 

will specifically address their concerns as to California (see ELI Study at 52) here. 

California has some of the most comprehensive and rigorous water quality and water 

resource protective regimes in the nation. And any suggestion that California’s scope of 

protection is lacking, leaves resources unregulated relative to the federal regime, or in 

any way needs oversight and expansion at the federal level knows little or nothing of the 

multiple layers of protection in California.

B. The Porter Cologne Water Quality Control Act and the Water Boards

California’s own “Clean Water Act” is the Porter Cologne Water Quality Control Act, 

Cal. Water Code § 13000 et seq. (Porter Cologne). It is the primary water quality and 

resource protective law in the state. It defines “waters of the state” as “any surface water 

or groundwater, including saline waters, within the boundaries of the state.” Cal. Water 

Code § 13050(e). This definition alone, when compared with the federal definition of 

“waters of the United States” shows that the scope of resource protection in California is 

broader and more inclusive. Compare id. with 33 C.F.R. § 328.3.

The regulatory regime enforcing Porter Cologne in California is overseen at the state 

level by the State Water Resources Control Board, composed of five members appointed 

by the Governor (State Board). Below the State Board, nine separate and largely 

autonomous Regional Water Quality Control Boards implement Porter Cologne’s 

provisions at the local and regional levels (each a Regional Board). Under the oversight 

of the respective Regional Boards, and ultimately the State Board, Porter Cologne 

mandates that any “person discharging waste, or proposing to discharge waste, within any 

region that could affect the quality of the waters of the state” must file a report of waste 

discharge (WDR) or waiver therefrom. Cal. Water Code §§ 13260(a)(1), 13263(a) (“The 

 

50 The ELI Study is available at: http://www.eli.org/research-report/state-constraints-state-imposed-limitationsauthority-agencies-regulate-waters
Clean Water Rule Response to Comments – Topic 1: General Comments 

177

regional board, after any necessary hearing, shall prescribe requirements as to the nature 

of any proposed discharge, existing discharge, or material change in an existing discharge 

. . . with relation to the conditions existing in the disposal area or receiving waters upon, 

or into which the discharge is made or proposed. The requirements shall implement any 

relevant water quality control plans that have been adopted, and shall take into 

consideration the beneficial uses to be protected, the water quality objectives reasonably 

required for that purpose . . . .”), 13264(a).

California WDRs issued by a Regional Board to an applicant may include effluent 

limitations or other requirements designed to implement applicable water quality control 

plans known as “Basin Plans” that specify beneficial uses and water quality objectives in 

the region. State Board and California Environmental Protection Agency, Policy for 

Implementation and Enforcement of the Nonpoint Source Pollution Control Program

(May 20, 2004) at 4. The State and Regional Boards do not limit the use of WDRs to 

discharges into statutory “waters of the state,” but require them for any discharge, 

including discharges to uplands, that may affect water quality. Id. at 2 (“The Porter 

Cologne Act applies broadly to all State waters, including surface waters, wetlands, and 

ground water; it covers waste discharges to land as well as to surface and groundwater, 

and applies to both point and nonpoint sources of pollution”).

As to enforcement, the State and Regional Boards are empowered to oversee 

implementation of and compliance with the terms of WDRs including the issuance of 

Cleanup and Abatement Orders, Cease and Desist Orders, assessment of administrative 

civil liability fines, and pursuit of court-ordered civil and/or criminal liability and 

injunctive relief. Id.

Basin Plans are the regional blueprints for regulation and protections of water resources 

protected under Porter Cologne. Regional-Board-issued WDRs must be consistent with 

the applicable Basin Plan for the respective region. Id. at 5. Regional Boards use Basin 

Plans’ proscriptions to direct conditions under which and areas within which discharges 

may or may not be permitted and on what terms and conditions. Id. at 5-6.

C. California Environmental Quality Act (CEQA)

CEQA, California Public Resources Code § 21000 et seq., is arguably the most 

comprehensive and protective environmental review statutory regime in the country. 

Under CEQA, any “project” must undergo specified analysis to identify impacts to the 

environment and incorporate any feasible alternatives or mitigation that will avoid any 

“significant” impacts.51

Importantly, CEQA analysis and mitigation of significant impacts applies to “projects” in 

California above and beyond discipline-specific statutory regimes such as Porter 

Cologne’s regulation of water resources. Said another way, even though a project will 

have to comply with Porter Cologne, additionally, CEQA will examine that same project 

to determine if feasible alternatives or mitigation exist to reduce any significant impacts 

 

51 Presentation of the full breadth and implementation of CEQA is beyond the scope of this comment letter. But 

illustrative resources are readily available, including: http://resources.ca.gov/ceqa/.
Clean Water Rule Response to Comments – Topic 1: General Comments 

178

to a level of insignificance. Full compliance with Porter Cologne’s provisions in any 

given instance may or may not prove sufficient compliance under CEQA.

D. California’s Response to SWANCC and Rapanos

It took the Office of Chief Counsel of the State Board less than three weeks to respond to 

the Supreme Courts’ ruling in SWANCC. Memorandum from Craig M. Wilson, Chief 

Counsel, Office of Chief Counsel, State Water Resources Control Board, to State Board 

Members and Regional Board Executive Officers, Effect of SWANCC v. United States on 

the 401 Certification Program (Jan. 25, 2001), available at 

http://www.swrcb.ca.gov/water_issues/programs/cwa401/docs/stateregulation_memorand

um.pdf. The memo stated the SWANCC had no effect on California’s authority to 

regulate water resources under Porter Cologne or any other state law. It went on to state 

explicitly that “waters of the state” are broader than “waters of the United States,” not 

being subject to federal constitutional restrictions. “While all waters of the United States 

that are within the borders of California are also waters of the state, the converse is not 

true – waters of the United States is a subset of waters of the state.” Id. at 3. States versus 

waters of the state, the State Board went further in 2004, issuing guidance directing 

Regional Boards to prioritize regulation of state resources susceptible of being deemed 

non-jurisdictional under federal law. State Board, Water Quality Order No. 2004-0004-

DWQ, available at 

http://www.waterboards.ca.gov/board_decisions/adopted_orders/water_quality/2004/wqo

/wqo2004- 0004.pdf.

More recently, the State Board has launched an ambitious and comprehensive regulatory 

proposal to overhaul and expand the state’s regulation of wetland and riparian areas. State 

Water Resources Control Board, Resolution No. 2008-0026, Development of a Policy to 

Protect Wetlands and Riparian Areas in Order to Restore and Maintain the Water 

Quality and Beneficial Uses of the Waters of the State (Apr. 15, 2008), available at 

http://www.waterboards.ca.gov/board_decisions/adopted_orders/resolutions/2008/rs2008

_0026.pdf; State Water Resources Control Board, Preliminary Draft: Water Quality 

Control Policy for Wetland Area Protection and Dredged or Fill Permitting (Jan. 28, 

2013), available at 

http://www.swrcb.ca.gov/water_issues/programs/cwa401/docs/wrapp/policy_draft.pdf .

Suffice it to say that there is no so-called “SWANCC gap” in California, the state’s 

myriad and overlapping protective statutory regimes providing more than adequate 

authority to regulate any resource that may be beyond the federal Agencies’ 

constitutionally legitimate reach.

E. Streambed Alteration Agreements

Independent of the above noted protective regimes, the California Department of Fish 

and Wildlife (recently renamed from “Department of Fish and Game”) has separate 

authority under the California Fish & Game Code to require notification and, under some 

circumstances, an agreement specifying protections, by any person or entity that proposes 

an activity that will (1) substantially divert or obstruct the natural flow of any river, 

stream, or lake; (2) substantially change or use any material from the bed, channel, or 

bank; or (3) deposit debris containing pavement that may pass into any river, stream, or 
Clean Water Rule Response to Comments – Topic 1: General Comments 

179

lake. Cal. Fish & Game Code § 1600 et seq.; see also Ca. Dept. Fish and Wildlife, Lake 

and Streambed Alteration Program, http://www.dfg.ca.gov/habcon/1600/ . 

F. Protection of California Pacific Ocean and San Francisco Bay Shoreline

Although nothing limits or curtails application of all of the above specified regulatory 

and protective regimes along California’s coastline, two additional statutory regimes pile 

on in those locations. Along the majority of California’s coastline, more specifically and 

legally defined as a “Coastal Zone,” the California Coastal Act, overseen by the 

California Coastal Commission, protects resources in the Coastal Zone. See Cal. Pub. 

Res. Code § 30000 et seq.

In for the San Francisco Bay Region, individual protections were put in place in the 

McAteer Petris Act, which Act is implemented and overseen by the Bay Conservation 

and Development Commission. See Cal. Gov’t Code § 66601 et seq.

G. California Affords Overlapping and Comprehensive Protection for Water Quality and 

Resources in the State

To any degree the Agencies’ argue the Proposed Rule’s expansive reach is necessitated 

by inadequate regulatory oversight at the state level, the ELI Study notwithstanding, such 

an argument is wholly without merit as to California and many other states. Accordingly, 

a lowest-common-denominator, one-size-fits-all approach that would effectively 

federalize the landscape when adequate state-based regulatory controls are in place and 

operating actually works to thwart the Proposed Rule’s proffered motive of increased 

clarity and efficiency. Further, forcing such a regime in the face of adequate and rigorous 

state controls would trample on Congress’ mandate that the CWA first and foremost 

“recognize, preserve, and protect the primary responsibilities and rights of the States . . . 

to plan the development and use . . . land and water resources.” 33 U.S.C. § 1251(b). (p. 

29-33)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I and II. The scope of regulatory jurisdiction 

for Clean Water Act purposes in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. States and tribes retain 

full authority to implement their own programs to more broadly and more fully 

protect the waters under their jurisdiction. 

Resource Development Council for Alaska, Inc. (Doc. #14649)

1.246 The State of Alaska should continue to have existing jurisdiction of waters without a 

new, additional level of bureaucracy such as this proposed rule. In the CWA, Congress 

granted the Corps and the EPA jurisdiction over “navigable waters,” defined in the Act as 

“waters of the United States” without further clarification. The Act grants that all waters 
Clean Water Rule Response to Comments – Topic 1: General Comments 

180

not regulated by the federal government fall under the jurisdiction of state and local 

governments for protection. Maps prepared by the EPA show that the rule will expand 

federal jurisdiction over waters from 3.5 million river and stream miles to well over eight 

million river and stream miles, much of which is in Alaska. (p. 3)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule and 

Technical Support Document. Regarding CWA legal authority see Technical 

Support Document Section I.

National Association of Convenience Stores, et al. (Doc. #15242)

The Proposed Rule would assert jurisdiction over waters, including many impoundments, 

isolated waters, ditches, conveyances, and “other waters” that currently are under state 

jurisdiction. In fact, the expansive definition in the Proposed Rule would alter the 

jurisdictional balance between the federal government and the states that is delineated in

the Clean Water Act, ultimately impacting state permitting requirements and costs. (p. 4)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document Sections I, II, VII, VIII and 

IX. 

Atlantic Legal Foundation (Doc. #15253)

1.247 The proposed rule would bring vast amounts of land under federal control adding 

unnecessary and redundant regulatory burdens to areas currently adequately regulated by 

state and local governments. (p. 2)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 
Clean Water Rule Response to Comments – Topic 1: General Comments 

181

more fully protect the waters under their jurisdiction. See Summary Response, 

Preamble to the Final Rule and Technical Support Document. 

Landmark Legal Foundation (Doc. #15364)

1.248 The regulation violates the constitutional principle of federalism. It runs counter to the 

Congressional admonition that authority to regulate waterways is a joint power to be 

shared between the federal government and the states. In short, the Agencies will have 

jurisdiction over any conceivable area of land that holds water (unless that water falls into 

the "upland" safe harbor provisions. The sweeping authority runs directly counter to 

Congressional intent elucidated in the Act 33 U.S.c. § l251(b). (p. 9)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule and 

Technical Support Document. Regarding CWA legal authority, see Technical 

Support Document Section I.

National Association for Surface Finishing (Doc. #15398)

1.249 The agencies can take the necessary time to redraft the rule consistent with federal 

statutory authority, state rights, and local land use provisions. In addition, the extra time 

would allow the agencies to develop a rule that is protective of human health and the 

environment, does not impose unnecessary burdens on law-abiding landowners, and that 

is clear and understandable. (p. 11)

Agency Response: The agencies have finalized the rule. See Response to 

Comments Compendium Topic 13 - Process Concerns and Administrative 

Procedures. The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. See Summary Response, 

Preamble to the Final Rule and Technical Support Document. 

National Association of Manufacturers (Doc. #15410)

1.250 The proposed rule flips Congress’s explicit intent in the Clean Water Act on its head by 

turning the Clean Water Act into a federal-centric program, where primary responsibility 

for protecting water resources is found with federal agencies, rather than with the States. 

Congress explicitly recognized that States have the primary role in regulating land and 

water resources when enacting the Clean Water Act. Not only do the agencies lack the 

necessary “clear statement” that they can divest the States as the lead regulatory of water 

resources, United States v. Bass, 404 U. S. 336, 349 (1971), but Congress has said 
Clean Water Rule Response to Comments – Topic 1: General Comments 

182

exactly the opposite, see 33 U.S.C. § 1251(b) (Clean Water Act seeks to “recognize, 

preserve, and protect the primary responsibilities and rights of States ... to plan the 

development and use ... of land and water resources ....”). The proposed rule should be 

withdrawn, substantially revised, and re-proposed to be consistent with Congress’ intent 

and the Tenth Amendment. (p. 2)

Agency Response: See Preamble to the Final Rule and Technical Support 

Document Section I.

1.251 Nowhere in the Clean Water Act did Congress contradict this express statutory policy 

and provide that waters in the United States should be primarily regulated by the federal 

government to the exclusion of any state responsibility. But when the proposed rule is 

taken to its logical conclusion, this is the outcome, as there are few “waters” left for the 

States to protect. (p. 4)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule and 

Technical Support Document. Regarding CWA legal authority, see Technical 

Support Document Section I.

Texas Chemical Council (Doc. #15433)

1.252 The Proposed Rule would grant the federal agencies an inexorable amount of control 

over both water and land resources that the CWA expressly intended to reserve to the 

states. These natural resources, and the types of development and uses that could be 

applied to them, should be left to the states. Not only is this recognized by the U.S. 

Supreme Court, but it is also iterated in the CWA itself16, and of course strengthened by 

the commerce clause limitation. (p. 7)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. See Summary Response, 

Preamble to the Final Rule and Technical Support Document. Regarding CWA 

legal authority, see Technical Support Document Section I.

United States Steel Corporation (Doc. #15450)

1.253 The proposed rule federalizes waters (and "aquatic systems") not intended to be covered 

by CWA, thereby impinging on the states' traditional and primary power over land and 

water use. (p. 2)
Clean Water Rule Response to Comments – Topic 1: General Comments 

183

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. See Summary Response, 

Preamble to the Final Rule and Technical Support Document. Regarding CWA 

legal authority, see Technical Support Document Section I.

1.254 The proposed rule improperly removes jurisdictional authority of local regulatory 

authorities over their local land and waters. (p. 2)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. See Summary Response, 

Preamble to the Final Rule and Technical Support Document. Regarding CWA 

legal authority, see Technical Support Document Section I.

CLUB 20 (Doc. #15519)

1.255 Our members strongly support clean water as well as states’ authority over lands and 

waters within their borders. The proposed rule appears to attempt to supersede the states’ 

primary responsibility in these areas and replace it with vague rules to be implemented 

and managed from a top-down federal bureaucracy. The rules defining the “Waters of the 

United States” appear to be yet another attempt to regulate private land use decisions 

outside the purview of the states’ and our members take exception to efforts usurping the 

states’ authority. (p. 2)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. See Summary Response, 

Preamble to the Final Rule and Technical Support Document. 

1.256 There are significant concerns that Colorado’s stringent water quality standards and 

permitting will be undermined by federal regulations as a result of the rule, particularly in 

addressing ditches, reservoirs and other “non-navigable” water. (p. 2)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 
Clean Water Rule Response to Comments – Topic 1: General Comments 

184

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document.

FMC Corporation (Doc. #15533)

1.257 It appears that EPA desires to implement new rules that mirror what is already in place in 

Wyoming. We are very concerned that the proposed rulemaking will unnecessarily add 

confusion and cost to what is an established program that has operated for years with the 

approval of EPA. (p. 1)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document.

1.258 The proposed rule will drive EPA to add extra layers of analyses simply to satisfy a 

perceived need to clarify jurisdiction, when in the case of Wyoming, such clarification 

would be redundant, An un-intended consequence might be that jurisdiction in Wyoming 

would be reduced under this new rule, an outcome that clearly would not serve to 

advance the goals of the Clean Water Act (CWA). (p. 1)

Agency Response: Members of Congress, developers, farmers, state and local 

governments, energy companies, and many others requested new regulations to 

make the process of identifying waters protected under the CWA clearer, simpler, 

and faster. In the final rule, the agencies are responding to those requests from 

across the country to make the process of identifying waters protected under the 

CWA easier to understand, more predictable, and more consistent with the law and 

peer-reviewed science. In fact, providing greater clarity regarding what waters are 

subject to CWA jurisdiction will reduce the need for permitting authorities, 

including states with authorized section 402 and 404 CWA permitting programs, to 

make jurisdictional determinations on a case-specific basis. See Summary 

Response, Preamble to the Final Rule, and Technical Support Document.

1.259 We also suggest that the rule include a provision for states with regulatory programs that 

ensure CWA protection above and beyond what is contemplated in this new rule be given 

an exemption. Specifically, in Wyoming where all waters are covered by established 

water quality protection programs, any additional interference that might result from this 

new WOTUS definitional process would be very costly and redundant with little or no 

environmental gain. (p. 2)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 
Clean Water Rule Response to Comments – Topic 1: General Comments 

185

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document.

Business Council of Alabama (Doc. #15538)

1.260 We write to express our serious concerns regarding the Proposed Rule issued by the 

Army Corps of Engineers ("the Corps") and the Environmental Protection Agency 

("EPA") (collectively "the Agencies"), which seeks to broaden federal authority under the 

Clean Water Act ("CWA") and which we believe will impose unnecessary barriers to 

advancing water quality initiatives nationwide. In enacting the CWA, Congress 

specifically explained that the CWA was designed to "recognize, preserve, and protect 

the primary responsibilities and rights of States . . . to plan the development and use ... of 

land and water resources . . . ." 33 U.S.C. § l25l(b). Yet, the Proposed Rule violates these 

mandatory principles, and seeks to place the lions' share of intrastate water and land 

management in the hands of the Federal Government. (p. 1)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document I (CWA legal authority) and 

II. 

Minnesota Chamber of Commerce (Doc. #16473)

1.261 As written, the Proposed Rule is likely to have the effect of expanding federal regulatory 

jurisdiction over many waters that are currently unregulated at the federal level but are or 

effectively regulated at the state level, including but not limited to ephemeral drainages, 

ditches (e.g., roadside, flood control, irrigation, stormwater, right s of way, and 

agricultural ditches), waters in riparian and floodplain areas, industrial ponds, MS4S, 

water supply and flood control structures, and isolated waters. (p. 2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

186

1.262 The Proposed Rule Improperly Impinges on State Authority. The Proposed Rule's 

jurisdictional expansion extends to many waters not intended to be covered by CWA, the 

thereby improperly impinging on the states' traditional and primary power over land and 

water use. (p. 2)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. See Summary Response, 

Preamble to the Final Rule Sections III and IV and Technical Support Document.

Water Advocacy Coalition (Doc. #17921.1)

1.263 Despite this history, the agencies’ proposed rule ignores the limits and structure that 

Congress put in place, as well as the limits recognized by the Supreme Court, and 

continues the agencies’ practice of overreaching in their assertions of CWA jurisdiction 

and impinging on the traditional power of the States to regulate land and water. (p. 10)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. See Summary Response, 

Preamble to the Final Rule Sections III and IV and Technical Support Document. 

Regarding CWA legal authority, see Technical Support Document Section I.

1.264 The proposed rule federalizes waters (and “aquatic systems”) not intended to be covered 

by the CWA, thereby impinging on the states’ traditional and primary power over land 

and water use. (p. 14)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. See Summary Response, 

Preamble to the Final Rule Sections III and IV and Technical Support Document.

1.265 The proposed rule improperly removes authority of local regulatory authorities over their 

local land and waters. (p. 14)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 
Clean Water Rule Response to Comments – Topic 1: General Comments 

187

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. See Summary Response, 

Preamble to the Final Rule Sections III and IV and Technical Support Document

Sections I and II. The final rule does not establish any new regulatory requirements. 

Instead, it is a definitional rule that clarifies the scope of “waters of the United 

States” consistent with the CWA, Supreme Court precedent, and science. As such, 

there are no changes in the relationship between federal, state, tribal and local 

implementors of CWA programs or to other state or tribal programs managing 

these resources. 

1.266 In addition to exceeding the limits of Congress’s authority under the Commerce Clause, 

the proposed rule also runs afoul of the Constitution by encroaching on the traditional 

power of the States to regulate land and water. “Where an administrative interpretation of 

a statute invokes the outer limits of Congress’s power,” the SWANCC Court reminded, 

“we expect a clear indication that Congress intended that result.” SWANCC, 531 U.S. at 

172. This is especially true “where the administrative interpretation alters the federalstate framework by permitting federal encroachment upon a traditional state power.” Id. 

at 173. 

The regulation of land and water use within a State’s borders is a “quintessential” State 

and local function. Rapanos, 547 U.S. at 738. The CWA contains no such clear statement 

that Congress intended to alter that scheme. To the contrary, Congress chose to expressly 

“recognize, preserve, and protect the primary responsibilities and rights of States . . . to 

plan the development and use . . . of land and water resources.” 33 U.S.C. § 1251(b); see 

also id. § 1251(g). There was “nothing approaching a clear statement from Congress” that 

it intended CWA jurisdiction to extend to features like the abandoned sand and gravel 

pits at issue in SWANCC. SWANCC, 531 U.S. at 174. Accordingly, the SWANCC Court 

found that permitting the agencies to assert jurisdiction over isolated ponds and mudflats 

based on their migratory bird theory “would result in a significant impingement of the 

States’ traditional and primary power over land and water use.” Id. The Rapanos plurality 

similarly found that the agencies’ “any connection” theory of jurisdiction would bring 

“virtually all planning and development and use of land and water resources by the States 

under federal control,” and therefore could not be a lawful interpretation of “waters of the 

United States.” Rapanos, 547 U.S. at 737. 

Likewise, the proposed rule’s sweeping assertions of jurisdiction over features with little 

or no relationship to navigable waters (e.g., channels that infrequently host ephemeral 

flows, non-navigable ditches, and isolated waters) raise serious federalism concerns. As 

was the case with SWANCC and Rapanos, the proposed rule would result in authorization 

for the federal government to take control of land use and planning by extending 

jurisdiction to essentially all wet and potentially wet areas. Most of these areas are 

already regulated by States as “waters of the State.” Contrary to agency statements that 

States will continue to be the primary regulators of water,52 many types of waters and 

 

52 Bryan Schutt, McCarthy outlines EPA methane emissions plans, notes delay in fracking study, SNL

(Sept. 2, 2014) (EPA Administrator McCarthy stated, “The states are the primary regulator of water in this country.

They will remain so.”).
Clean Water Rule Response to Comments – Topic 1: General Comments 

188

features that were previously regulated as “waters of the State” or that States purposely 

chose not to regulate (e.g., roadside ditches, channels with ephemeral flow, arroyos, 

industrial ponds) would now be subject to federal regulation as “waters of the United 

States” under the proposed rule. Accordingly, the proposed rule’s interpretation of 

“waters of the United States” is unlawful because it would result in a “significant 

impingement” on the States’ traditional authority over land and water use. (p. 16-17)

Agency Response: See Summary Response, Preamble to the Final Rule, and 

Technical Support Document.

1.267 With the proposed rule’s treatment of ditches, the federal government encroaches on

purely local matters and local decision-making authority in contravention of Congress’s 

clear intent that local governments regulate local land use.53 Ditches are usually 

constructed, operated, maintained, and managed at the local level for various beneficial 

public purposes, including transportation, flood control, and agricultural purposes. State 

and local regulations require that such ditches be maintained by local authorities, such as 

water management districts, flood control entities, and drain and road commissions, to 

assure protection of natural resources and prevent water pollution into such 

conveyances.

54 Local governments have the most immediate knowledge of the 

geographic, hydrologic, and geomorphic conditions of the waterbodies within their 

jurisdictions, and should be given the right to decide how best to regulate their local land 

and water resources. Because State and local governments are already charged with 

controlling stormwater volume and reducing pollution from urban runoff through the 

NPDES program, there is no benefit to be gained by treating the same drainage systems 

as jurisdictional “waters of the United States,” and in many cases it will lead to 

duplicative regulation. Moreover, defining ditches as “waters of the United States” 

redirects scarce federal and State funding away from more environmentally sensitive and 

important resources. By asserting jurisdiction by rule over inherently local conveyances 

such as ditches, the agencies impermissibly intrude on local land use. (p. 56-57)

Agency Response: The rule does not regulate land use. See Preamble to the Final 

Rule. Regarding ditches, see Technical Support Document and Response to 

Comments Compendium Topic 6 – Ditches.

Virginia Manufacturers Association (Doc. #18821)

1.268 VMA is equally concerned with the Agencies' apparent disregard for longstanding 

Supreme Court precedent and federalism principles. Federalism concerns are at their 

highest where, as here, "the administrative interpretation [would] alter[] the federal-state 

framework by permitting federal encroachment upon a traditional state power." Solid 

 

53 When it enacted the CWA, Congress sought to “recognize, preserve, and protect” the States’ primary authority 

and responsibility over land and water resources. 33 U.S.C. § 1251(b). Accordingly, the Supreme Court recognized 

in SWANCC that the CWA should not be interpreted so as to “result in a significant impingement” on these 

traditional State powers. SWANCC, 231 U.S. at 174; see also Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 

44 (1994) (“regulation of land use [is] a function traditionally performed by local governments”).

54 In some States, there is an existing regulatory program to regulate ditches. If, in addition to States and local drain 

and road commissions, EPA and the Corps have jurisdiction over activities in ditches, there would be three tiers of 

regulatory permitting.
Clean Water Rule Response to Comments – Topic 1: General Comments 

189

Waste Agency of N. Cook County v. U.S. Army Corps of Engr's, 531 U.S. 159, 173 

(2001) ("SWANCC") citing United States v. Bass, 404 U. S. 336, 349 (1971). The 

Proposal raises significant concerns about federal encroachment on state authority. At a 

minimum, the Agencies should have sought state input and allowed for state involvement 

in the development of the Proposal. (p. 2)

Agency Response: Regarding CWA legal authority see Technical Support 

Document Section I. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

In keeping with the spirit of Executive Order 13132 and consistent with the 

agencies’ policy to promote communications with state and local governments, the 

agencies consulted with state and local officials throughout the process and solicited 

their comments on the proposed action and on the development of the rule. For this 

rule state and local governments were consulted at the onset of rule development in 

2011, and following the publication of the proposed rule in 2014. In addition to 

engaging key organizations under federalism, the agencies sought feedback on this 

rule from a broad audience of stakeholders through extensive outreach to numerous 

state and local government organizations. The agencies have prepared a report 

summarizing their voluntary consultation and extensive outreach to state, local and 

county governments, the results of this outreach, and how these results have 

informed the development of today’s rule. This report, Final Summary of the 

Discretionary Consultation and Outreach to State, Local, and County Governments 

for the Revised Definition of Waters of the United States (Docket Id. No. EPA-HQOW-2011-0880) is available in the docket for this rule.

Georgia Association of Manufacturers (Doc. #18896)

1.269 Despite the insistence that the proposed rule is merely an attempt to clarify confusion 

created by recent U.S. Supreme Court precedent, the result would be additional layers of 

federal regulation for commercial and industrial interests across a vast swath of newly 

jurisdictional areas all around the country. This would usurp the authority of states and 

local governments, infringe on private property rights and potentially slow economic 

growth due to confusion, increased permitting costs and the resulting barriers to 

development. (p. 1)

Agency Response: Regarding CWA legal authority see Technical Support 

Document Section I. The scope of regulatory jurisdiction for Clean Water Act 
Clean Water Rule Response to Comments – Topic 1: General Comments 

190

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Western States Land Commissioners Association (Doc. #19453)

1.270 WSLCA joins with the leaders of other western states in urging the EPA give due regard 

to the core principles of federalism embodied in the Clean Water Act, which states in 

relevant part: "[i]t is the policy of Congress to recognize, preserve, and protect the 

primary responsibilities and rights of States . .. to plan the development and use . . . of

land and water resources." 33 U.S.C. § 1251(b). In conflict with this core principle, the 

EPA's rulemaking has proceeded without adequate state consultation and without 

appropriate consideration of local plans and priorities for land and water resources. As a 

result, the proposed rule is marked by regulatory uncertainty and overreach. If adopted, 

the rule will significantly interfere with the rights, duties, and economic interests of 

western states and landowners. (p. 1)

Agency Response: Regarding CWA legal authority see Technical Support 

Document Section I. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

In keeping with the spirit of Executive Order 13132 and consistent with the 

agencies’ policy to promote communications with state and local governments, the 

agencies consulted with state and local officials throughout the process and solicited 

their comments on the proposed action and on the development of the rule. For this 

rule state and local governments were consulted at the onset of rule development in

2011, and following the publication of the proposed rule in 2014. In addition to 

engaging key organizations under federalism, the agencies sought feedback on this 
Clean Water Rule Response to Comments – Topic 1: General Comments 

191

rule from a broad audience of stakeholders through extensive outreach to numerous 

state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule.

1.271 Whereas, the EPA's proposed rule significantly broadens federal jurisdiction over state 

lands, waterways, and water resources in a manner that disregards sound science, 

contravenes Supreme Court precedent, and infringes on the constitutional and economic 

rights of western states and citizens. (p. 3)

Agency Response: Regarding CWA legal authority see Technical Support 

Document Section I. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

1.272 Whereas, many of the provisions of the proposed rule did not receive adequate state or 

local input, are vaguely written, and leave the regulated community without any clarity as 

to their regulatory status, thus exposing the regulated community to citizen suits and 

shifting the burden of proof to landowners to disprove federal jurisdiction. (p. 4)

Agency Response: In keeping with the spirit of Executive Order 13132 and 

consistent with the agencies’ policy to promote communications with state and local 

governments, the agencies consulted with state and local officials throughout the 

process and solicited their comments on the proposed action and on the 

development of the rule. For this rule state and local governments were consulted at 

the onset of rule development in 2011, and following the publication of the proposed 

rule in 2014. In addition to engaging key organizations under federalism, the 

agencies sought feedback on this rule from a broad audience of stakeholders 

through extensive outreach to numerous state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 
Clean Water Rule Response to Comments – Topic 1: General Comments 

192

State, Local, and County Governments for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule.

The rule does not shift the burden of proof; the federal government must 

demonstrate that a water is a "water of the United States" under the CWA and its 

implementing regulations. The rule, promulgated under authority of Section 501 of 

the CWA, does establish a binding definition of "waters of the United States."

See Summary Response, Preamble to the Final Rule and Technical Support 

Document.

1.273 Whereas, states have primary jurisdiction for the management of bodies of water within 

their own borders, and several states have crafted, or are in the process of crafting, their 

own water management plans based on sound science and local information to conserve 

and preserve water and waterways while allowing for responsible economic growth 

within their state. (p. 4)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

1.274 WSLCA urges Congress to take federal legislative action to preserve the primary 

responsibilities and rights of states to prevent, reduce, and eliminate pollution of waters 

wholly within a state while allowing responsible economic development of state and 

private lands and water resources. (p. 4)

Agency Response: This comment is beyond the scope of the rulemaking.

Minnkota Power Cooperative, Inc. (Doc. #19607)

1.275 This proposed expansion of jurisdiction goes beyond what Congress intended with the 

CWA and beyond the Supreme Court's decisions in Rapanos and SWANCC. It seems to 

ignore the long running control of States to regulate their own land and water 

(Federalism). In a similar fashion, proposed jurisdiction over features with little or no 

relationship to traditional navigable waters (such as ephemeral channels, non-navigable 

ditches, isolated waters, etc.) raises Federalism concerns. Until this Proposed Rule, States 

have had primary authority to regulate their own water resources. That regulation has 

included their choice not to regulate what they consider to be non CWA waters. (p. 3)
Clean Water Rule Response to Comments – Topic 1: General Comments 

193

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. See Summary Response, 

Preamble to the Final Rule Sections III and IV and Technical Support Document. 

The final rule does not establish any new regulatory requirements. Instead, it is a 

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

with the CWA, Supreme Court precedent, and science. As such, there are no 

changes in the relationship between federal, state, tribal and local implementors of 

CWA programs or to other state or tribal programs managing these resources. 

Houma-Terrebonne Chamber of Commerce (Doc. #19624)

1.276 The proposed rule undermines the historically successful federal-state cooperation in the 

administration of the Clean Water Act. The waters this proposed rule seeks to cover 

through federal jurisdiction are currently protected as state waters. A more reasonable 

and less costly approach to ensuring these isolated and intrastate waters are adequately 

protected would be for EPA and the Corps to work with states to improve their water 

quality programs. (p. 1)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Volusia County Association for Responsible Development (Doc. #1440)

1.277 We add our voice to the many comments you are receiving from national, state, and local 

associations, corporations, organizations and governmental entities in requesting an 

extension of the public comment period on your proposed rule. We agree that this is a 

lengthy and complex rule that will require detailed review and analysis by affected 

interests nationwide. Furthermore, we believe that the impacts of the change in definition 

of Waters of the United States (WOTUS) are unknown and unclear, but such impacts 

could have major consequences in terms of extending federal regulatory authority to 

extensive amounts of land and water which are presently regulated by state and local 

governments. This broadening of federal jurisdiction will surely result in increased costs,
Clean Water Rule Response to Comments – Topic 1: General Comments 

194

confusing or duplicative regulatory oversight and the likelihood of extensive litigation.

(p. 1)

Agency Response: The agencies heard the request to extend the comment period 

on the proposed rule. The proposed rule was published on April 21, 2014, with a 90-

day comment period which was expected to close on July 21, 2014. Numerous 

requests to extend the comment period were received and on June 24, 2014 the 

agencies issued an extension of the comment period through October 20, 2014. And, 

again, on October 14, 2014, an additional extension was issued, through when the 

comment period closed on November 14, 2014. See Response to Comment 

Compendium Topic 13 - Process Concerns and Administrative Procedures. The 

scope of regulatory jurisdiction for Clean Water Act purposes in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

part because the rule puts important qualifiers on some existing categories such as 

tributaries. States and tribes retain full authority to implement their own programs 

to more broadly and more fully protect the waters under their jurisdiction. See 

Summary Response, Preamble to the Final Rule Sections III and IV and Technical 

Support Document. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. 

Southern Nevada Home Builders Association (Doc. #3251)

1.278 In adopting these proposed rule changes under the CWA, which will almost certainly 

result in the expansion of jurisdiction, it appears that the EPA has completely ignored the 

numerous state regulations that are in place to protect and regulate the lakes, rivers, 

streams, wetlands and water systems of the individual states. We are particularly 

concerned that the EPA has not adequately consulted with or sought input from the 

governors and agencies of the individual states in preparing and promulgating the new 

CWA regulations. Most states, especially arid states like Nevada, understand very well 

the need to preserve and protect their water resources and already have extensive laws 

and regulations in place which adequately manage and protect its streams, rivers, lakes 

and water systems. Nevada in particular has a very comprehensive regulatory process in 

place to manage and protect its critical and limited water resources. 

The proposed CWA regulations also illustrate the fact that the individual states are often 

in a much better position than the federal government to analyze and evaluate the various 

regional and site-specific conditions of the state and adopt appropriate environmental 

regulations that are tailored to effectively protect its natural resources. In other words, a 

"one-size fits all" type of regulation, without any analysis or consideration of the unique 

conditions of the particular state or region impacted, is not reasonable nor does it 

effectively advance the legitimate purposes that such regulation is intended to protect. 

Rather, the effect of such a rule is that it disparately impacts certain regions (which in this 

case is the Southwest) without any justifiable basis therefore. (p. 2-3)
Clean Water Rule Response to Comments – Topic 1: General Comments 

195

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

In keeping with the spirit of Executive Order 13132 and consistent with the 

agencies’ policy to promote communications with state and local governments, the 

agencies consulted with state and local officials throughout the process and solicited 

their comments on the proposed action and on the development of the rule. For this 

rule state and local governments were consulted at the onset of rule development in 

2011, and following the publication of the proposed rule in 2014. In addition to 

engaging key organizations under federalism, the agencies sought feedback on this 

rule from a broad audience of stakeholders through extensive outreach to numerous 

state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule.

Coalition of Real Estate Associations (Doc. #5058.2)

1.279 A contrary interpretation – that MS4s are somehow considered jurisdictional WOTUS –

would upset the federal-state balance envisioned by Congress to vest in States and 

localities the “primary responsibilities and rights” to control water pollution, and the use 

of land and water resources, within their borders.55 (p. 3)

Agency Response: See Preamble to the Final Rule and Technical Support 

Document. The rule excludes from jurisdiction stormwater control features 

constructed to convey, treat, or store stormwater that are created in dry land.

1.280 CWA section 101(b) places the “primary responsibilities” on States to address water 

pollution, and develop plans to preserve and protect land and water resources, within 

their borders.56 As the Supreme Court emphasized in one of its seminal cases interpreting 

 

55 Id. § 1251(b).

56 33 U.S.C. § 1251(b).
Clean Water Rule Response to Comments – Topic 1: General Comments 

196

WOTUS jurisdiction, through section 101(b) Congress preserved the “federal-state 

balance” in the CWA when it “chose to ‘recognize, preserve and protect the primary 

responsibilities and rights of States to ... plan the development and use ... of land and 

water resources ....”57 Regulation of water and land use has always been a state 

function.58 However, any agency interpretation or field determination that somehow 

deems MS4s as WOTUS would enormously disrupt State and local government programs 

and responsibilities to maintain, manage, and treat stormwater discharges under section 

402(p). 

MS4s are owned and operated by public entities, including states, local governments, and 

other bodies created under state law, such as sewer districts, flood control districts, or 

drainage districts. “Rather than regulate individual sources of runoff, such as churches, 

schools and residential property (which one Congressman described as a potential 

‘nightmare’), ... Congress put the NPDES permitting requirement at the municipal level 

to ease the burden of administering the program.”59 States and local government are thus 

charged with reducing pollution through the NPDES program. No added benefit would 

be gained by treating MS4 systems permitted under NPDES requirements as federal 

jurisdictional waters. 

Under the Phase 2 stormwater rules, all municipal separate storm sewer systems in 

"urbanized areas" (as defined by the U.S. Census Bureau)60 must develop and implement 

controls to prevent polluted runoff from entering rivers, lakes and coastal waters. Census 

maps (most recently released in 2010) are used to assist EPA and states to determine 

which new MS4s are located in urbanized areas and thus require NPDES permit 

coverage. Municipalities also use these maps to determine which locations within their 

jurisdiction are located in the urbanized area where the MS4 program would apply. As 

the U.S. population grows and becomes more concentrated in the nation’s urban and 

suburban growth centers, EPA recognizes that “the universe of the regulated small MS4 

program expands every ten years based on the decennial Census definition of urbanized 

area.”61 Any interpretation that subjects MS4s and the conveyances within them to 

WOTUS jurisdiction would federalize a vast network of storm sewer systems within 

 

57 Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S. 151, 166-67 (2001) (“SWANCC”) 

(citing 33 U.S.C. § 1251(b)).

58 See SWANCC, 531 U.S. at 174 (citing Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 44 (1994)).

59 Nat. Res. Def. Council, Inc. v. Cnty. of Los Angeles, 636 F.3d 1235, 1247(9th Cir. 2011). The statement 

referenced by the Ninth Circuit was made by Senator Wallop: “[T]he regulations can be interpreted to require 

everyone who has a device to divert, gather, or collect stormwater runoff and snowmelt to get a permit from EPA as 

a point source .... Requiring a permit for these kinds of stormwater runoff conveyance systems would be an 

administrative nightmare.” Id. (citing 131 Cong. Rec. 15616, 15657 (Jun. 13, 1985)).

60 In its FAQs for the NPDES program, EPA explains that Urbanized Areas (UAs) “constitute the largest and most 

dense areas of settlement. UA calculations delineate boundaries around these dense areas of settlement and, in doing 

so, identify the areas of concentrated development. UA designations are used for several purposes in both the public 

and private sectors. For example, the federal government has used UAs to calculate allocations for transportation 

funding, and planning Agencies and developers use UA boundaries to help ascertain current, and predict future, 

growth areas. The Bureau of the Census determines UAs by applying a detailed set of published UA criteria (see 55 

FR 42592, October 22, 1990) to the latest decennial Census data.” See “MS4: What is an Urbanized Area,” at 

http://cfpub.epa.gov/npdes/faqs.cfm?program_id=6#174.

61 See “Urbanized Area Maps,” at http://cfpub.epa.gov/npdes/stormwater/urbanmaps.cfm.
Clean Water Rule Response to Comments – Topic 1: General Comments 

197

State and local control – plainly upsetting the goal and policy of federal-state balance that 

Congress announced in CWA section 101(b). That result can be easily avoided, and the 

careful balance of authorities maintained, though a simple but important clarification that 

MS4s are excluded from the scope of WOTUS. 

Professor Tribe has explained that the “most important” rule of statutory construction “is 

the clear statement rule.”62 Where a statutory interpretation “invokes the outer limits of 

Congress’s power” or “overrides ... [the] usual constitutional balance of federal and state 

powers,” Supreme Court cases “expect a clear indication that Congress intended that 

result.”63 The clear statement requirement is “heightened” where an agency interprets a 

statute in a manner that would “alter[] the federal-state framework by permitting federal 

encroachment upon a traditional state power.”64 There is no statement in the CWA –

“clear” or otherwise – that Congress intended WOTUS to reach MS4s (and their roads, 

pipes, ditches and drains) covered by NPDES permits. Respectfully, EPA and the Corps 

should thus make it clear in any final rule that MS4s are categorically excluded from 

WOTUS jurisdiction. (p. 13-15)

Agency Response: See Preamble to the Final Rule and Technical Support 

Document. The rule excludes from jurisdiction stormwater control features 

constructed to convey, treat, or store stormwater that are created in dry land. The 

rule makes no changes to NPDES permitting requirements. The rule recognizes and 

is consistent with CWA section 101(b). 

1.281 MS4s and their components are typically owned and controlled by municipalities and 

other government or tribal bodies. Thus, excluding MS4s from WOTUS jurisdiction 

furthers the CWA’s objectives to vest States (and localities) with the primary 

responsibilities to control water pollution within their borders. (p. 20)

Agency Response: See Preamble to the Final Rule and Technical Support 

Document. The rule excludes from jurisdiction stormwater control features 

constructed to convey, treat, or store stormwater that are created in dry land.

Kolter Land Partners and Manatee-Sarasota Building Industry Association (Doc. #7938.1)

1.282 It is clear that Congress intended to create a partnership between the federal agencies and 

state governments to jointly protect the nation's water resources. Under this notion, there 

must be a point where federal authority ends and State authority begins. The Agencies, 

however, have fashioned a rule so expansive that it all but abandons this precept in favor 

of a federal government over all approach. (p. 2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

 

62 Laurence Tribe, Constitutional Law vol. I, § 5-9 at 853.

63 SWANCC, 531 U.S. at 172-73; Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (citing Atascadero State Hosp. v. 

Scanlon, 473 U.S. 234, 242-43 (1985)).

64 SWANCC, 531 U.S. at 173.
Clean Water Rule Response to Comments – Topic 1: General Comments 

198

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Home Builders Association of Michigan (Doc. #7994)

1.283 The CWA and its associated permitting process must be consistent, predictable, timely, 

and focused on protecting true aquatic resources. It must also honor Congressional intent 

to provide a cooperative federal and state program where the Corps' and EPA's efforts are 

complemented by states' efforts and heed the limits of federal jurisdiction recognized by 

the Supreme Court in both SWANCC and Rapanos. Unfortunately, the proposal fails to 

adhere to these tenets and rulings. For these reasons, and the numerous additional 

shortcomings associated with the proposed rule, the Agencies should withdraw the rule 

and resubmit it only after its many Constitutional, judicial, legal, economic, scientific, 

practical, and procedural infirmities have been addressed and rectified. (p. 4)

Agency Response: Regarding CWA legal authority see Technical Support 

Document Section I. The agencies have finalized the rule consistent with the CWA, 

case law, and science. See Response to Comments Compendium Topic 13 - Process 

Concerns and Administrative Procedures.

Webber Land & Development Corporation (Doc. #10944)

1.284 As a local real estate developer, I am concerned that this rulemaking was developed 

without sufficient consultation with the states and that the rulemaking could impinge 

upon state authority in water management. As co-regulators of water resources, states 

should be fully consulted and engaged in any process that may affect the management of 

their waters. (p. 1)

Agency Response: In keeping with the spirit of Executive Order 13132 and 

consistent with the agencies’ policy to promote communications with state and local 

governments, the agencies consulted with state and local officials throughout the 

process and solicited their comments on the proposed action and on the 

development of the rule. For this rule state and local governments were consulted at 

the onset of rule development in 2011, and following the publication of the proposed 

rule in 2014. In addition to engaging key organizations under federalism, the 

agencies sought feedback on this rule from a broad audience of stakeholders 

through extensive outreach to numerous state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 
Clean Water Rule Response to Comments – Topic 1: General Comments 

199

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule.

See Summary Response, Preamble to the Final Rule and Technical Support 

Document.

DreamTech Homes, Ltd. (Doc. #11012)

1.285 Continues to Blur the Line Between State- and Federally-Controlled Waters. It is clear 

that Congress intended to create a partnership between the federal agencies and state 

governments to jointly protect the nation’s water resources. Under this notion, there must 

be a point where federal authority ends and State authority begins. The Agencies, 

however, have fashioned a rule so expansive that it all but abandons this precept in favor 

of a federal government over all approach. (p. 2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Scott County Development Corporation (Doc. #11542)

1.286 This proposed rule will give primacy to the federal government over local and State land 

use rules. When federal agencies have the power to grant, deny or veto a federally 

enforceable permit to build, plant, fence, apply fertilizer or spray pesticide or disease 

control products on land managed by businesses and municipalities, that is regulatory 

authority over land use. If a landowner cannot erect a building on, improve drainage, 

build a fence over, or manipulate a jurisdiction al wetland or ephemeral drain that runs 

across his or her land without a federal permit, then that is regulating land use. 

The shift from state and local control of water-related land uses to federal control will 

impact our small towns, townships, road districts, water districts, highway departments, 

drainage districts, municipal utilities and the county as a whole. (p. 2)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. See Summary Response, 
Clean Water Rule Response to Comments – Topic 1: General Comments 

200

Preamble to the Final Rule Sections III and IV and Technical Support Document. 

The final rule does not establish any new regulatory requirements. Instead, it is a 

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

with the CWA, Supreme Court precedent, and science. As such, there are no 

changes in the relationship between federal, state, tribal and local implementors of 

CWA programs or to other state or tribal programs managing these resources. 

Building Industry Association of Washington (Doc. #13622)

1.287 BIAW favors the continued ability to protect the water and environmental resources in 

this state through private, local, and state means as Washingtonians have done in 

cooperation with the federal government since the passage of the Clean Water Act 

(CWA). This is because individual Washingtonians believe in a clean environment and 

we hold polluters accountable under the law as well. On the legislative side, Washington 

has proactively protected waterways and wetlands with the passage of protective 

measures such as the Growth Management Act (GMA), Critical Areas Ordinances 

(CAO), and the State Environmental Policy Act (SEPA); adopted stringent forestry 

practices to protect lakes, rivers, and streams; prevented water pollution with 

comprehensive regulatory controls; and protected fragile shorelines and aquatic life with 

the Shoreline Management Act. Private industry Private industry has continued to work 

to promote environmentally friendly practices as well. BIAW’s own education programs 

to teach homebuilders state of the art environmental building and water infiltration 

techniques that exceed industry regulation. 

Consequently, expanding federal jurisdiction with duplicative regulation simply brings 

with it unintended harm to state and local economies without providing any measurable 

level of increased environmental protection. In fact, the proposed expansive definition of 

navigable waters undercuts state laws tailored for local circumstances and deter 

responsible economic growth and affordable housing with unnecessary confusion over 

jurisdiction; those wishing to navigate the permitting process and provide jobs, 

responsible economic activity, and affordable housing will be fearful of investing in 

geographic areas that before the rule change were not risky ventures. What this means to 

Washingtonians is less ability to protect the environment because of a stagnant economy 

less able to adequately support (1) private entities that operate with regulations. 

For example, homebuilders in Washington have an interest is ensuring that the GMA is 

properly applied by jurisdictions and the courts of this state, and ambiguously expanding 

the definition of navigable waters both conflicts with and unnecessarily complicates 

enforcement of the state and local protections such as GMA because it was designed to 

lessen state administrative approval so that local governments may provide bottom up 

economic and environmental planning. Top down federal regulation is in direct conflict 

with such grass roots orientated law and can hinder actual protection of environmental 

sensitive areas. This proposal is undoubtedly a result Congress never meant by the term 

“cooperative federalism” when it passed the CWA. Worse yet, the EPA has not even 

consulted with Washington State as required by Executive Order 13132 before proposing 

this rule change. If the rule goes into effect, Washington State will have to endeavor to 

rework its laws and policies that were designed to complement a CWA with limited 

jurisdiction. Such work will be difficult, time consuming, and costly because these laws 
Clean Water Rule Response to Comments – Topic 1: General Comments 

201

were not designed with an administratively amended CWA with near limitless federal 

jurisdiction in mind. Such reworking will harm the environment not help it and add to the 

continued uncertainty for residential construction, an industry hard hit by the recession 

and just beginning to see slow recovery. (p. 1-2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

In keeping with the spirit of Executive Order 13132 and consistent with the 

agencies’ policy to promote communications with state and local governments, the 

agencies consulted with state and local officials throughout the process and solicited 

their comments on the proposed action and on the development of the rule. For this 

rule state and local governments were consulted at the onset of rule development in 

2011, and following the publication of the proposed rule in 2014. In addition to 

engaging key organizations under federalism, the agencies sought feedback on this 

rule from a broad audience of stakeholders through extensive outreach to numerous 

state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule.

El Dorado Holdings, Inc. (Doc. #14285)

1.288 General Comments on the Environmental Law Institute’s State Constraints: StateImposed Limitations on the Authority of Agencies to Regulate Waters Beyond the Scope 

of the Federal Clean Water Act (May 2013) (“ELI Study” or “Study”) 

The joint commenters would also like to provide comment on the ELI Study referenced 

above, specifically focusing on its characterization of Arizona law and regulation. We 

would like to initially commend ELI for undertaking a study of this sort and for adding to 

the necessary dialogue on what the appropriate limits of federal jurisdiction should be 

under the Clean Water Act. Because the purpose of the ELI Study appears to be to show 
Clean Water Rule Response to Comments – Topic 1: General Comments 

202

that waters not regulated under the CWA are vulnerable, an accurate description of state 

law protections is important. To that end, the Study would have benefited from a broader 

approach to evaluating state-based protection of waters. For example, the Study missed 

the fact that Arizona’s chief environmental regulatory agency, the Arizona Department of 

Environmental Quality, has the authority to set enforceable standards for protecting 

“waters of the State,” a much broader category than waters of the U.S., and that a waterbased regulatory program with no federal involvement or oversight, the Aquifer 

Protection Permit Program, places substantial limitations on the ability to discharge 

pollutants into waters left unprotected by federal law. In short, there are significant 

limitations in State law on the ability of a landowner to “discharge pollutants . . . at 

will”65 into waters unprotected by federal law. Attachment 2 to these comments is a 

memorandum outlining these concerns in more detail. (p. 54)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document.

Associated General Contractors of America (Doc. #14602)

1.289 AGC members are committed to the protection and restoration of America’s 

water/wetlands resources. AGC does not believe, however, that it is in the nation’s 

interest to have federal agencies regulate ditches, culverts and pipes, desert washes, sheet 

flow, erosional features, and stormwater treatment ponds as “waters of the United 

States,” subjecting such waters to all of the federal regulatory requirements of the CWA. 

In that regard, the proposal is not really about clean water, it is about replacing 

longstanding state and local control of land uses near wet areas with centralized federal 

control. (p. 4)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. See Summary Response, 

Preamble to the Final Rule Sections III and IV and Technical Support Document. 

The final rule does not establish any new regulatory requirements. Instead, it is a 

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

with the CWA, Supreme Court precedent, and science. As such, there are no 

changes in the relationship between federal, state, tribal and local implementors of 

CWA programs or to other state or tribal programs managing these resources. 

Commercial Real Estate Development Association (Doc. #14621)

1.290 The rule must also demonstrate the fact that one size cannot fit all, and that the federal 

government must utilize a definition of WOTUS that allows states and tribes to expand 

protection of their waterways through either conditions issued under Section 401 of the 

 

65 ELI Study, at 2
Clean Water Rule Response to Comments – Topic 1: General Comments 

203

Clean Water Act (CWA), or by adding state or tribal regulation of non-federally 

regulated waters by enacting separate legislative protections. (p. 2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Vulcan Materials Company (Doc. #14642)

1.291 The definition of tributary as proposed, specifically the application of “bed and bank and 

ordinary high water mark” criteria, combined with the inclusion of ephemeral waters, 

extends CWA jurisdiction by requiring waters to be traced upstream beyond the range of 

traditional navigable waters (TNW) and historic jurisdiction determinations. These areas 

are normally reserved for state and local governments to determine the extent of 

regulatory coverage. The rule includes exemptions for rills and gullies from being 

considered waters; however, the inclusion of ditches combined with the bed and bank 

criteria creates uncertainty and confusion regarding the upper reach of jurisdiction that 

the agencies may pursue. In the case of aggregate mining operations, this extension is 

unnecessary as the mine sites are subject to National Pollutant Discharge Elimination 

System (NPDES) permitting for process and storm water discharges either under the 

federal program or federally delegated state permitting programs. These NPDES permits 

require aggregate mining sites to employ best management practices to control erosion 

and sediment discharges and to use water treatment systems with settling ponds and/or 

other treatment methods to ensure that discharges to surface waters are in compliance 

with applicable water quality criteria. (p. 1-2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 
Clean Water Rule Response to Comments – Topic 1: General Comments 

204

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Maryland Chapters of NAIOP (Doc. #15837)

1.292 The propose definition of WOTUS will overlap existing EPA and state of Maryland 

water quality regulations that are delivering required results. With the exception of small 

areas in the western and eastern sections of the state Maryland is subject to the 

Chesapeake Bay Total Maximum Daily Load (TMDL). In addition Maryland imposes 

some of the most protective water quality regulations in the country on Waters of the 

State which are defined in ways that extend beyond the proposed definition of WOTUS. 

These activities work in conjunction with water quality restoration requirements that are 

written into the Phase I MS4 stormwater permits of Maryland’s 10 largest jurisdictions. 

By June 2015 Phase II MS4 jurisdictions will also be subject to the same water quality 

restoration requirements. These actions result in state and local regulatory oversight and 

pollutant reductions in local creeks and streams as well as the main stem of the 

Chesapeake Bay. 

Together these and other efforts comprise Maryland’s Watershed Implementation Plan 

(WIP) which was approved by EPA as sufficient to restore Chesapeake Bay water 

quality. As part of the TMDL implementation process Maryland has provided EPA with 

reasonable assurance that planned water quality improvements will be achieved and the 

state and EPA continue to work collaboratively on implementation and measuring 

progress. 

The proposed definition of WOTUS may result in a detrimental shift of jurisdiction from 

Maryland to the EPA. Today projects that are determined to need federal review 

experience significant delays when compared to the review time required for Maryland 

review. Given the strength of protection applied through Maryland’s regulation of Waters 

of the State, we do not see justification for an expanded federal role. This will increase 

uncertainty, undermine predictable permitting and may compromise existing land use 

techniques that are designed to derive environmental benefits through concentrating 

growth. (p. 1-2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

205

Building Industry Association of Greater Louisville (Doc. #16449)

1.293 The proposed rule redefines and expands the reach of the Clean Water Act (CWA) 

jurisdiction in that the rule... [ ] increases USEPA control over the state's water quality 

programs. (p. 1)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Texas Association of Builders (Doc. #16516)

1.294 The proposal continues to blur the line between state- and federally controlled waters. It 

is clear that Congress intended to create a partnership between the federal agencies and 

state governments to jointly protect the nation's water resources. Under this notion, there 

must be a point where federal authority ends and State authority begins. The Agencies, 

however, have fashioned a rule so expansive that it all but abandons this precept in favor 

of a federal government over-all approach. (p. 2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Home Builders Association of Tennessee (Doc. #16849)

1.295 The Proposed Rule Imposes Federal Jurisdiction Over Solely State Waters (e.g., 

Watercourses With No Designated Use) in Contradiction of the Congressional Intent of 

Cooperative Federalism 
Clean Water Rule Response to Comments – Topic 1: General Comments 

206

In The Clean Water Act. The Proposed Rule imposes federal control of state land use 

practices and is contrary to the principle of cooperative federalism inherent in the Clean 

Water Act. The Clean Water Act is based on principles of cooperative federalism. Ohio 

Valley Envtl. Coal. v. Coal-Mac, Inc., 775 F. Supp. 2d 900, 920 (S.D. W. Va. 2011). 

Congress intended for states to develop water quality standards ("WQS") for all waters 

within its jurisdiction. 33 U.S.C.S. § 1313(c)(1). Water quality standards include 

designated uses, criteria to protect the uses, and an antidegradation statement. These 

WQS are evaluated triennially by the states, and EPA is required to review and approve 

them, or it may reject some or all of the WQS. See also Alaska Clean Water Alliance v. 

Clarke, 1997 U.S. Dist. LEXIS 11144,45 ERC (BNA) 1664,27 ELR 21330(W.D. 

Wash.1997). In fact, where EPA is not satisfied that the state has properly developed 

WQS, it may itself issue WQS for such a state. The language of 303(c)(3) clearly and 

unambiguously states that "if" EPA approves state standards, they shall "thereafter" be 

the applicable standards. 40 C.F.R. § 131.21. 

The State of Tennessee's longstanding jurisdictional practice is that if a watercourse, even 

one characterized by a bed, bank and high water mark, does not have established uses, or 

where it has removed the classified uses, then the jurisdiction of such water shifts entirely 

to the state (even if it formerly had federal jurisdiction). As part of its WQS Tennessee 

has designated certain watercourses as wet weather conveyances and has done so since at 

least 1986. Tennessee intentionally removed all CWA required uses from wet weather 

conveyances (fish and aquatic life, recreation, irrigation, livestock watering and wildlife) 

during triennial review of water quality standards in 1986. EPA has approved Tennessee's 

WQS at every opportunity including the designation of wet weather conveyances with no 

established uses. 

The application of the definition of waters of the United States cannot be read in absence 

of the water quality standards set out in Section 303 of the Clean Water Act. Particularly 

where a statute is ambiguous, such as the CWA, rules of statutory construction allow 

courts to read them in pari materia. Where a state, as part of the triennial review of water 

quality standards, has removed all designated uses for a tributary, and EPA has approved 

the Water Quality Standards, as a practical and legal matter, the Agencies' jurisdiction is 

limited to the State's regulation of such tributaries. An interpretation to the contrary reads 

out Section 303(c) of the CWA. Thus, even if the definition of tributaries encompasses 

Tennessee wet weather conveyances, such water courses are regulated as waters of the 

State rather than of the United States. Accordingly, when the Tennessee Board of Water 

Quality, Oil and Gas adopted the wet weather conveyance rule, which was approved by 

the United States Environmental Protection Agency ("EPA") in 1986, it removed any 

established uses for such waters in Tennessee. The Proposed Rule causes confusion with 

this federal/state partnership by painting such a broad brush on all tributaries, including 

wet weather conveyances. 

In 2009, the Tennessee General Assembly enacted legislation to establish a legal 

mechanism for making jurisdictional calls on streams. In doing so, the statute refined the 

regulatory definition of wet weather conveyance to reflect additional biological 

requirements. In Tennessee, a stream is any watercourse that is not a wet weather 

conveyance. A wet weather conveyance has hydrogeological and chemical considerations 

(must be above the groundwater table, flow only in response to precipitation in the 
Clean Water Rule Response to Comments – Topic 1: General Comments 

207

immediate locality, and not suitable for drinking water) as well as hydrological and 

biological aspects (due to naturally occurring ephemeral or low flow there is not 

sufficient water to support fish, or multiple populations of obligate logic aquatic 

organisms whose life cycle includes an aquatic phase of at least two (2) months). The 

Board of Water Quality, Oil and Gas has promulgated rules that set out criteria for 

making the determinations and defining the aquatic organisms that qualify a watercourse 

as a stream. In addition, the Tennessee Department of Environment and Conservation has 

developed guidelines to assist in interpreting the statute and the rules. Finally, TDEC has 

a certification program to train and certify individuals who qualify based on education 

and experience as well as classroom and field testing to make stream determinations. (p. 

5-7)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Maryland State Builders Association (Doc. #17021)

1.296 Thank you for the opportunity to provide comments on the Proposed Rule Definition of 

"Waters of the United States". Maryland is somewhat unique in that most of the state is 

subject to the Chesapeake Bay TMDL that will oversee the reduction of nitrogen, 

phosphorus and sediments within the entire watershed. The latest Chesapeake Bay 

Agreement was signed earlier this year and demonstrates the commitment of all the states 

in the watershed to improve water quality. The 92-segment TMDL impacts both the main 

stem of the Chesapeake Bay and all local waterways that drain into the Bay. The effort to 

establish load reductions has been extensive and recent water quality monitoring and 

modeling show that the reductions are having a positive impact to the health of the Bay. 

In compliance with the EPA TMDL requirements, Maryland submitted and received 

approval for their Watershed Implementation Plan (WIP) that outlines the strategy by 

sector with specific and implementable actions for obtaining pollutant reductions. These 

actions will impact waterways throughout the state, in particular local creeks and streams 

that may have impairments that affect downstream water quality. MDE regulations have 

been established or proposed for the agricultural community, urban point source 

pollution, wastewater treatment plants and non-point sources like septic systems as well. 

Together these regulations provide water quality improvements by reducing pollution 

loads that will improve water quality. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

208

Given the number of regulations already in place in Maryland to implement the TMDL, 

the proposed definitional changes will likely trigger an expansion of EPA's jurisdiction 

and will be problematic because they are unclear and subjective. The proposal for the 

first time defines the terms "neighboring," "riparian area," "floodplain," "tributary," and 

"significant nexus." There is no outlined methodology for determining which areas will 

fall into these new categories and no guidance for how states should be conducting 

assessments to determine applicability. (p. 1-2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. See also Response to 

Comments Compendium Topic 3 – Adjacent Waters, Topic 4 – Other Waters, Topic 

5 – Significant Nexus, Summary Response Introduction and summary response to 

comments 7 and 8 and Topic 8 – Tributaries.

Home Builders Association of Mississippi (Doc. #19504)

1.297 It is clear that Congress intended to create a partnership between the federal agencies and 

state governments to jointly protect the nation's water resources. Under this notion, there 

must be a point where federal authority ends and State authority begins. The Agencies, 

however, have fashioned a rule so expansive that it all but abandons this precept in favor 

of a federal government over all approach. (p. 2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA,

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

209

National Association of Home Builders (Doc. #19540)

1.298 Second, most of the laws characterized as “constraints” in the ELI Study do not prohibit 

or limit regulation. The “qualified” stringency provisions claimed to limit water quality 

laws in 23 states – which ELI admits “stop[] short of creating a bar to state agency 

action,”66 are nothing more than procedural requirements common to administrative 

practice, such as notice-and-comment rulemaking requirements.67 And many of the other 

cited provisions are very narrow, focusing on state-specific concerns. They are not 

across-the-board prohibitions against regulating more broadly than the CWA. For 

example, Oregon focuses on effluent limitations for nonpoint source pollutants from 

forest operations, Virginia addresses treatment levels for sewage treatment works, 

Colorado addresses agricultural irrigation flows, and Minnesota has provisions that 

would come into effect should Minnesota assume Section 404 permitting authority.68

Third, some of the restrictions cited by ELI do not actually restrict state regulation under 

state law, but merely limit what the state can do when it is exercising delegated federal 

authority under the CWA.69 It is hardly surprising that when a state elects to take over the 

NPDES program, it would also decide that its delegated program should not outrun the 

CWA unless certain conditions are met. 

Fourth, ELI’s “property-based” limitations

70 do nothing to limit the ability of state 

agencies to act71– they simply “create additional processes for an agency to follow when 

a proposed regulation is likely to affect private property rights,” and require state 

agencies to compensate property owners in the event that regulation results in a physical 

or regulatory72 taking.73

 

66 ELI Study at 1.

67 These provisions include such things as notice-and-comment rulemaking, written justifications of the need for 

regulation, findings regarding the need to address particular issues, and reports to state legislature. See ELI Study at

13-14. Also, in many instances, these so called “constraints” are irrelevant because expansion of the State program

is not necessary to reach non-CWA waters. See, e.g., Craig P. Wilson, Tad J. Macfarlan, Response to ELI Report on

State Constraints: The Scope of Regulated Waters in Pennsylvania, at 4 (June 4, 2014).

68 ELI Study at 12, n. 27.

69 See, e.g., ELI Study at 169 (The North Dakota Department of Health “is prohibited from adopting a rule for

purposes of administering a program under the federal Clean Water Act that is ‘more stringent than corresponding

federal regulations which address the same circumstances,’ or for which there is no corresponding federal

regulation—unless the [state] satisfies additional requirements.”) (describing N.D. Cent. Code § 23-01-04.1)

(emphasis added), 213 (Utah has a similar law).

70 These limitations “are an outgrowth of ‘takings’ law,” which is “based on the Takings Clause of the Fifth

Amendment of the U.S. Constitution.” See ELI Study at 20.

71 As noted by Charles M. Carvell, “During my 26 years as an Assistant Attorney General for the State of North

Dakota . . . I don’t recall an instance in which a state agency refrained from rule-making due to processes and 

procedures imposed by the legislature . . . I am unaware of any instance in which an agency backed away from 

rulemaking because it was required to conduct a takings assessment.” Charles M. Carvell, Proposed Federal Rule 

Defining “Waters of the United States”—Comments on the Environmental Law Institute’s Interpretation of North

Dakota Law, at 2 (Sept. 2, 2104).

72 As ELI acknowledges, “most regulations do not meet the threshold constitutional standards that would require 

compensation under principles of takings law.” See ELI Study at 20.

73 Id. at 20-21.
Clean Water Rule Response to Comments – Topic 1: General Comments 

210

Fifth, ELI simply misrepresents data from some states. Some states counted in ELI’s 

study as not regulating non-CWA waters actually do regulate non-CWA waters.74

Finally, and most importantly, ELI misunderstands many of the state laws it references. 

State experts who have examined ELI’s “State Profiles” (contained in the ELI Study’s 

Appendix 2) have identified serious errors in ELI’s assessments of their state’s laws. In 

comments submitted to the docket on this proposal, for instance, the Pennsylvania 

Department of Environmental Protection (PA DEP) noted, “One of [PA] DEP’s 

significant concerns with this rulemaking is EPA’s unfamiliarity with existing state law 

programs reflected by its reliance on the ELI study, which is cited for the proposition that 

this rulemaking is needed because state programs to protect water resources are lacking, 

and purporting that the proposed rule will address states’ regulatory loopholes. EPA has 

asserted that Pennsylvania is one such state. This characterization and assertion by EPA 

is completely erroneous and reflects a lack of due diligence and coordination with states. 

The ELI study fails entirely to identify codified statutes and regulations that have 

provided the foundation for Pennsylvania’s regulatory programs for decades – in some 

instances for nearly half a century.”75 The letter goes on to describe Pennsylvania’s 

wetlands permitting program and Clean Streams Law and the multiple chapters of 

Pennsylvania Code that comprise the state’s regulatory program, demonstrating that 

Pennsylvania has a “significant and robust regulatory program that reaches beyond the 

federal Clean Water Act.”76

For all these reasons, the ELI Study cannot be relied upon to draw legitimate conclusions 

about whether states are constrained from regulating non-CWA waters. In fact, states 

have primary authority to regulate water resources. If states have chosen not to regulate 

non-CWA waters, it is not necessarily because they are prevented by law. Rather, in 

many cases, the states have determined that certain non-CWA waters and features do not 

warrant regulation. Doing so would be resource intensive and states have other 

mechanisms in place to promote conservation. In sum, the Agencies cannot rely on false 

claims that states are limited in their ability to protect non-CWA waters to justify their 

expansive interpretation of “waters of the United States.” 

What’s more, a one-size-fits-all federal approach to protect isolated wetlands, ephemeral 

drainages, and other remote waters – many of which vary considerably from state to state 

as a result of diverse geologic, hydrologic, and climatic conditions – is impractical. 

Indeed, state and local governments are far better equipped to determine how best to 

manage their land and water resources than bureaucrats in Washington, D.C. Local 

governments have the most immediate knowledge of the conditions of the water bodies 

within their jurisdictions, and should be given the right to decide how best to regulate 

 

74 ELI lists 26 states as having “no” coverage of non-CWA waters, but acknowledges in a footnote that “[e]ven for 

states [categorized as not regulating non-CWA waters], the state may still provide protection in coastal areas that 

could be construed as regulating waters more broadly than the federal [CWA].” Id. at 8-9, Table 1 & Note 3. Thus, 

by ELI’s own admission, at least, nine of the states in ELI’s “no” columns may, in fact, cover non-CWA waters 

(Alabama, Alaska, Delaware, Georgia, Hawaii, Louisiana, Mississippi, South Carolina, and Texas).

75 Pennsylvania Department of Environmental Protection, Comments on Proposed Rulemaking: Definition of 

“Waters of the United States” Under the Clean Water Act, Docket No. EPA-HQ-OW-2011-0880, at 2 (Oct. 8, 2014) 

(original emphasis).

76 Id. at 3.
Clean Water Rule Response to Comments – Topic 1: General Comments 

211

their local land and water resources. Moreover, because state and local governments are 

already charged with controlling stormwater volume and reducing pollution from urban 

runoff through the NPDES program, there is no benefit to be gained by treating the same 

drainage systems as jurisdictional “waters of the United States” and, in many cases, it 

will lead to duplicative regulation.

Importantly, the proposed rule’s interpretation of “waters of the United States” is 

unlawful because it would result in a significant impingement on the states’ traditional 

authority over land and water use. (p. 29-31)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. See Summary Response, 

Preamble to the Final Rule Sections III and IV and Technical Support Document. 

The final rule does not establish any new regulatory requirements. Instead, it is a 

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

with the CWA, Supreme Court precedent, and science. As such, there are no 

changes in the relationship between federal, state, tribal and local implementors of 

CWA programs or to other state or tribal programs managing these resources. 

1.299 With new and overbroad definitions of “tributary,” “adjacent,” and “neighboring,” the 

Agencies arguably have impinged on states’ rights to manage their land and water 

resources (see Section X. d.). By claiming jurisdiction over “other waters” on a so-called 

“case-by-case” basis, there is absolutely no question that the Agencies are seeking to 

redefine “waters of the states” as “waters of the United States.” After asserting 

categorical federal jurisdiction over (a)(1) through (6) waters and, on a case-by-case 

basis, federal jurisdiction over “other waters,” what waters are left to the states? As is 

clearly indicated by the plain text reading of the goals and polices enumerated in the 

CWA, Congress intended “to recognize, preserve, and protect the primary responsibilities 

and rights of States to prevent, reduce, and eliminate pollution, to plan the development 

and use . . . of land and water resources.”77 Arguably, under this construct, there must be 

a point at which federal authority ends and state authority begins. Can the Agencies point 

to any waters (aside from those explicitly excluded in the proposed rule) that would be a 

water of the state and not a water of the United States? (p. 99-100)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

 

77 33 U.S.C § 1251(b).
Clean Water Rule Response to Comments – Topic 1: General Comments 

212

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Home Builders Association of Tennessee (Doc. #19581)

1.300 The Proposed Rule imposes federal control of state land use practices and is contrary to 

the principle of cooperative federalism inherent in the Clean Water Act. The Clean Water 

Act is based on principles of cooperative federalism. Ohio Valley Envtl. Coal. v. CoalMac, Inc., 775 F. Supp. 2d 900, 920 (S.D. W. Va. 2011). Congress intended for states to 

develop water quality standards ("WQS") for all waters within its jurisdiction. 33 

U.S.C.S. § 1313(c)(1). Water quality standards include designated uses, criteria to protect 

the uses, and an antidegradation statement. These WQS are evaluated triennially by the 

states, and EPA is required to review and approve them, or it may reject some or all of 

the WQS. See also Alaska Clean Water Alliance v. Clarke, 1997 U.S. Dist. LEXIS 

11144,45 ERC (BNA) 1664,27 ELR 21330(W.D. Wash.1997). In fact, where EPA is not 

satisfied that the state has properly developed WQS, it may itself issue WQS for such a 

state. The language of 303(c)(3) clearly and unambiguously states that "if' EPA approves 

state standards, they shall "thereafter" be the applicable standards. 40 C.F.R. § 131.21. 

The State of Tennessee's longstanding jurisdictional practice is that if a watercourse, even 

one characterized by a bed, bank and high water mark, does not have established uses, or 

where it has removed the classified uses, then the jurisdiction of such water shifts entirely 

to the state (even if it formerly had federal jurisdiction). As part of its WQS Tennessee 

has designated certain watercourses as wet weather conveyances and has done so since at 

least 1986. Tennessee intentionally removed all CWA required uses from wet weather 

conveyances (fish and aquatic life, recreation, irrigation, livestock watering and wildlife) 

during triennial review of water quality standards in 1986. EPA has approved Tennessee's 

WQS at every opportunity including the designation of wet weather conveyances with no 

established uses. 

The application of the definition of waters of the United States cannot be read in absence 

of the water quality standards set out in Section 303 of the Clean Water Act. Particularly 

where a statute is ambiguous, such as the CWA, rules of statutory construction allow 

courts to read them in pari materia. Where a state, as part of the triennial review of water 

quality standards, has removed all designated uses for a tributary, and EPA has approved 

the Water Quality Standards, as a practical and legal matter, the Agencies' jurisdiction is 

limited to the State's regulation of such tributaries. An interpretation to the contrary reads 

out Section 303(c) of the CWA. Thus, even if the definition of tributaries encompasses 

Tennessee wet weather conveyances, such water courses are regulated as waters of the 

State rather than of the United States. Accordingly, when the Tennessee Board of Water 

Quality, Oil and Gas adopted the wet weather conveyance rule, which was approved by 

the United States Environmental Protection Agency ("EPA") in 1986, it removed any 

established uses for such waters in Tennessee. The Proposed Rule causes confusion with 
Clean Water Rule Response to Comments – Topic 1: General Comments 

213

this federal/state partnership by painting such a broad brush on all tributaries, including 

wet weather conveyances. 

In 2009, the Tennessee General Assembly enacted legislation to establish a legal 

mechanism for making jurisdictional calls on streams. In doing so, the statute refined the 

regulatory definition of wet weather conveyance to reflect additional biological 

requirements. In Tennessee, a stream is any watercourse that is not a wet weather 

conveyance. A wet weather conveyance has hydrogeological and chemical considerations 

(must be above the groundwater table, flow only in response to precipitation in the 

immediate locality, and not suitable for drinking water) as well as hydrological and 

biological aspects (due to naturally occurring ephemeral or low flow there is not 

sufficient water to support fish, or multiple populations of obligate logic aquatic 

organisms whose life cycle includes an aquatic phase of at least two (2) months). The 

Board of Water Quality, Oil and Gas has promulgated rules that set out criteria for 

making the determinations and defining the aquatic organisms that qualify a watercourse 

as a stream. In addition, the Tennessee Department of Environment and Conservation has 

developed guidelines to assist in interpreting the statute and the rules. Finally, TDEC has 

a certification program to train and certify individuals who qualify based on education 

and experience as well as classroom and field testing to make stream determinations. 

When EPA Region IV approved Tennessee's water quality standards, those standards 

took effect for CWA purposes within the State of Tennessee. Those standards included 

the Wet Weather Conveyance rule which, pursuant to the Tennessee's classification of 

surface waters, are not assigned any designated uses, including CWA § 101(a)(2) uses 

required for all "waters of the U.S." Therefore, while wet weather conveyances are waters 

of the State, by definition they are not "waters of the United States" because they do not 

support the CWA § 101(a)(2) uses, a statutory requirement for all waters of the U.S. 

Based on the foregoing it is clear that designated wet weather conveyances in Tennessee 

should not be subject to federal jurisdiction. However, the expansive definition of 

tributary usurps Tennessee's classification of wet weather conveyances and ascribes 

federal jurisdiction in its place. This usurpation creates substantial uncertainty in the 

regulated community as to jurisdictional limitations of projects under both Section 404 

and Section 402. The action by the Agencies relegates states to merely contract 

administrators of a federal program rather than a full partner in how our nation's waters 

will be protected, which contradicts Congressional intent of the Clean Water Act. 

We request that the Agencies address the basis for their jurisdiction, if any, over wet 

weather conveyances in Tennessee. If the Agencies believe such jurisdiction exists, then 

please state the basis of authority to impose compensatory mitigation on watercourses 

with no uses. (p. 5-7)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 
Clean Water Rule Response to Comments – Topic 1: General Comments 

214

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

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

1.301 NSSGA recognizes the legitimate objective of the CWA to protect the nation's waters. 

However, the CWA does not extend federal authority to all wetlands and waters in the 

nation. Section 101 of the Act specifically limits the authority of federal agencies to 

intrude into state and local matters.78 Congress explicitly stated that nothing in the CWA 

is to "be construed as impairing or in any manner affecting any right or jurisdiction of the 

States with respect to the waters...of such States." 33 U.S.C. 1370(2). Fundamental 

principles of federalism dictate that control of land use decisions are properly within the 

purview of State and local governments, indeed, the Supreme Court has recognized that 

"regulation of land use is perhaps the quintessential state activity." FERC v. Miss., 456 

U.S. 742, 767 n.30 (1980).79 Congress directed the federal agencies to "cooperate with 

State and local agencies to develop comprehensive solutions to prevent, reduce and 

eliminate pollution in concert with programs for managing water resources." 33 USC 

1251(g).80 The Court has been very skeptical of EPA’s expansion of its long-standing 

authority. As the Court recently stated, "when an agency claims to discover in a long 

extant statute an unheralded power to regulate a significant portion of the American 

economy, we typically greet its announcement with a measure of skepticism." Utility Air 

Reg. Gp. v. EPA, 134 S.Ct. 2427, 2444 (2014). (p. 31-32)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

 

78 Section 101(b) of the Act states that "It is the policy of the Congress to recognize, preserve, and protect the 

primary responsibilities and rights of States to prevent, reduce and eliminate pollution to plan the development and 

use (including restoration, preservation and enhancement) of land and water resources and to consult with the 

Administrator in the exercise of his authority under the Act."

79 See Hess v. Port Auth. Trans Hudson Corp., 513 U.S. 30, 44 (1994). The Supreme Court has long recognized "the 

authority of state and local governments to engage in land use planning. Dolan v. City of Tigaard, 512 U.S. 374, 384 

(1994) (citing Village of Euclid v. Amber Realty Co., 272 U.S. 365 ( 1926).

80 The proposed rule would severely undermine the federal /state balance inherent in the CWA. The Supreme Court 

has long held that "unless congress conveys a purpose clearly, it will not be deemed to have significantly changed 

the federal/state balance " United States v. Bass, 404 U.S. 336, 349 (1971); see also Rice v. Santa Fe Elevator Corp.

331 US 218, 230 ( 1947); Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991), ("Congress should make its intentions 

clear and manifest if it intends to pre-empt the historic powers of the States."). There is nothing in the CWA or its 

legislative history that would allow the Corps and EPA to override state and local land use primacy as the proposed 

rule would do.
Clean Water Rule Response to Comments – Topic 1: General Comments 

215

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Lyman-Richey Corporation (Doc. #14420)

1.302 By relying on shallow subsurface groundwater connections to justify jurisdiction over 

otherwise isolated waters, the Agencies are indirectly regulating groundwater, over which 

the States alone have jurisdiction. The Court has established limits on the scope of the 

Agencies’ authority under the Clean Water Act, holding: 

[C]lean water is not the only purpose of the [CWA]. So is the preservation of 

primary state responsibility for ordinary land-use decisions. ... It would have been 

an easy matter for Congress to give the Corps jurisdiction over all wetlands (or, 

for that matter, all dry lands) that ‘significantly affect the chemical, physical, and 

biological integrity of ‘waters of the United States.’ It did not do that[.]” 

Rapanos v. United States, 547 U.S. 715, 755-56, 126 S. Ct. 2208, 2234 (2006) (bold 

supplied).81 The plain language and legislative history of the CWA reject federal 

jurisdiction over groundwater, and the structure of the CWA indicates that Congress did 

not intend groundwater and navigable waters to be synonymous. As explained by the 

District Court in Washington Wilderness Coal. v. Hecla Min. Co.: 

If the terms were synonymous, it would not be necessary for Congress to make 

distinct references to groundwater and navigable water. ...The legislative history 

of the [CWA] also demonstrates that Congress did not intend that discharges to 

isolated ground water be subject to permit requirements. ... ‘Because the 

jurisdiction regarding groundwater is so complex and varied from State to State, 

the committee did not adopt this recommendation.’82

Moreover, a number of courts have concluded that the possibility of a hydrological 

connection between ground and surface waters is insufficient to justify CWA 

regulation.83

Indeed: “The agencies have never interpreted ‘waters of the United States’ to include 

groundwater and the proposed rule explicitly excludes groundwater, including 

groundwater drained through subsurface drainage systems.”84 Unfortunately, the 

 

81 See also Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Engineers, 531 U.S. 159, 166-67, 121 S. 

Ct. 675, 680 (2001); Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 

568, 575, 108 S.Ct. 1392, 99 (1988); FERC v. Mississippi, 456 U.S. 742, 767–768, n. 30, 102 S.Ct. 2126 (1982); 

Hess v. Port Authority Trans–Hudson Corporation, 513 U.S. 30, 44, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994); and 

S.Rep. No. 414, 92nd Cong., 1st Sess. 73 (1971), U.S.Code Cong. & Admin.News 1972, pp. 3668, 3739.

82 870 F. Supp. 983, 990 (E.D. Wash. 1994), citing S. Rep. No. 414, 92nd Cong., 1st Sess. 73 (1971), U.S. Code 

Cong. & Admin. News 1972, pp. 3668, 3739.

83 See Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962 (7th Cir.1994); Kelley v. United States, 618 

F.Supp. 1103 (W.D.Mich.1985).

84 79 Fed. Reg. 22218.
Clean Water Rule Response to Comments – Topic 1: General Comments 

216

Proposed Rule does include groundwater, because without groundwater, there is no 

hydrologic link between many isolated waters and traditionally navigable waters.85 Any 

past practice or proposed standard under which the Agencies establish jurisdiction over 

isolated waters by virtue of groundwater, exempt waters, or any other undefined 

connections, must be rejected.86 Simply put, the Agencies should not attempt to assert 

jurisdiction over an otherwise isolated water by piggybacking on non-jurisdictional 

waters. The Agencies are required to establish jurisdiction over each link from 

traditionally navigable water to isolated intrastate waters. 

The Proposed Rule, moreover, disregards all existing layers of state and local regulatory 

measures, which provide protection for groundwater and intrastate surface water.87 These 

meaningful regulatory measures will only be hampered by another layer of federal 

interference, and will directly impact land use decisions made by state, local, and private 

entities, such as LRC, who must account for the application of federal law to every aspect 

of its operations. 

Asserting blanket jurisdiction over any and all waters will result in federal control over 

regulation of land use – a primary responsibility of the States.88 This infringement on 

State responsibilities to control the development of localized natural resources and land 

uses is not supported by the language or history of the CWA.89 As written, the Proposed 

Rule is not based upon a permissible construction of the CWA and will not withstand a 

challenge.90 (p. 6-7)

Agency Response: The rule expressly indicates in paragraph (b) that 

groundwater, including groundwater drained through subsurface drainage systems 

is excluded from the definition of “waters of the United States.” While groundwater 

is excluded from jurisdiction, the agencies recognize that the science demonstrates 

that waters with a shallow subsurface connection to jurisdictional waters can have 

important effects on downstream waters. When assessing whether a water evaluated 

in (a)(7) or (a)(8) performs any of the functions identified in the rule’s definition of 

significant nexus, the significant nexus determination can consider whether shallow 

 

85 Comments to the SAB Report indicate that in some cases, the only connection between water bodies is 

groundwater. See Science Advisory Board (SAB) Draft Report (4/23/14).

86 79 FR 22219; GAO Report – “Waters and Wetlands” (page 23) February, 2004.

87 NEB. REV. STAT. §§ 2-3201 et seq.; Nebraska Groundwater Management and Protection Act, NEB. REV. 

STAT. §§ 46-701 et seq., NEB. REV. STAT. § 2-32,115, NEB. REV. STAT. § 25-1064; NEB. REV. STAT. § 25-

2159; NEB. REV. STAT. § 25-2160; NEB. REV. STAT. § 37-807; NEB. REV. STAT. § 28-106; NEB. REV. 

STAT. § 81-1501, et seq.

88 Hess v. Port Authority Trans–Hudson Corporation, 513 U.S. 30, 44, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994) 

(“[R]egulation of land use [is] a function traditionally performed by local governments”); FERC v. Mississippi, 456 

U.S. 742, 767–768, n. 30, 102 S.Ct. 2126, 72 L.Ed.2d 532 (1982) (Regulation of land use, as through the issuance of 

the development permits, is a quintessential state and local power.)

89 SWANCC. v. U.S. Army Corps of Engineers, 531 U.S. 159, 174, 121 S. Ct. 675, 683-84, 148 L. Ed. 2d 576 

(2001) (“Rather than expressing a desire to readjust the federal-state balance in this manner, Congress chose to 

recognize, preserve, and protect the primary responsibilities and rights of States ... to plan the development and use 

... of land and water resources[.]”)

90 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778 (1984); Solid 

Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Engineers, 531 U.S. 159, 174, 121 S. Ct. 675, 684, 148 L. 

Ed. 2d 576 (2001).
Clean Water Rule Response to Comments – Topic 1: General Comments 

217

subsurface connections contribute to the type and strength of functions provided by 

a water or similarly situated waters. However, neither shallow subsurface 

connections nor any type of groundwater are themselves “waters of the United 

States.” The agencies understand that there is a continuum of water beneath the 

ground surface, from wet soils to shallow subsurface lenses to shallow aquifers to 

deep groundwaters, all of which can have impacts to surface waters, but for 

significant nexus purposes under this rule, the agencies have chosen to focus on 

shallow subsurface connections because those are likely to both have significant and 

near-term impacts on downstream surface waters and are reasonably identifiable 

for purposes of rule implementation. Additionally, the rule does not regulate land 

use. See Summary Response, Preamble to the Final Rule and Technical Support 

Document.

Railroad Commission of Texas (Doc. #14547)

1.303 The RRC is concerned that the proposal greatly expands federal jurisdiction under the 

Clean Water Act and does nothing to clarify the issues with which the courts, the 

Agencies, the States, and the public have been faced over the years concerning such 

jurisdiction. Although the Agencies state in the preamble that federal jurisdiction would 

be limited, the proposed rule, if adopted, would potentially extend the reach of federal 

jurisdiction to surface waters that have generally not been considered "waters of the 

United States" and could result in staff at the Agencies exercising open-ended discretion 

in making such jurisdictional determinations. As such, this expansion of jurisdiction 

significantly threatens private property rights. In addition, the proposal will further 

frustrate and open the public to possible enforcement by further obscuring the boundary 

between what is jurisdictional and what is not. Furthermore, the proposal does not 

demonstrate sufficient deference to State water protection laws or consideration of 

additional burdens to state programs. (p. 2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Tennessee Mining Association (Doc. #14582)

1.304 The Proposed Rule imposes federal control of state land use practices and is contrary to 

the principle of cooperative federalism inherent in the Clean Water Act. The Clean Water 

Act is based on principles of cooperative federalism. Ohio Valley Envtl. Coal. v. Coal-
Clean Water Rule Response to Comments – Topic 1: General Comments 

218

Mac, Inc., 775 F. Supp. 2d 900, 920 (S.D. W. Va. 2011). Congress intended for states to 

develop water quality standards ("WQS") for all waters within its jurisdiction. 33 

U.S.C.S. § 1313(c)(1). Water quality standards include designated uses, criteria to protect 

the uses, and an antidegradation statement. These WQS are evaluated triennially by the 

states, and EPA is required to review and approve them, or it may reject some or all of 

the WQS. See also Alaska Clean Water Alliance v. Clarke, 1997 U.S. Dist. LEXIS 

11144,45 ERC (BNA) 1664,27 ELR 21330(W.D. Wash.1997). In fact, where EPA is not 

satisfied that the state has properly developed WQS, it may itself issue WQS for such a 

state. The language of 303(c)(3) clearly and unambiguously states that "if' EPA approves 

state standards, they shall "thereafter" be the applicable standards. 40 C.F.R. § 131.21. 

The State of Tennessee's longstanding jurisdictional practice is that if a watercourse, even 

one characterized by a bed, bank and high water mark, does not have established uses, or 

where it has removed the classified uses, then the jurisdiction of such water shifts entirely 

to the state (even if it formerly had federal jurisdiction). As part of its WQS Tennessee 

has designated certain watercourses as wet weather conveyances and has done so since at 

least 1986. Tennessee intentionally removed all CWA required uses from wet weather 

conveyances (fish and aquatic life, recreation, irrigation, livestock watering and wildlife) 

during triennial review of water quality standards in 1986. EPA has approved Tennessee's 

WQS at every opportunity including the designation of wet weather conveyances with no 

established uses. 

The application of the definition of waters of the United States cannot be read in absence 

of the water quality standards set out in Section 303 of the Clean Water Act. Particularly 

where a statute is ambiguous, such as the CWA, rules of statutory construction allow 

courts to read them in pari materia. Where a state, as part of the triennial review of water 

quality standards, has removed all designated uses for a tributary, and EPA has approved 

the Water Quality Standards, as a practical and legal matter, the Agencies' jurisdiction is 

limited to the state's regulation of such tributaries. An interpretation to the contrary reads 

out Section 303(c) of the CWA. Thus, even if the definition of tributaries encompasses 

Tennessee wet weather conveyances, such water courses are regulated as waters of the 

State rather than of the United States. Accordingly, when the Tennessee Board of Water 

Quality, Oil and Gas adopted the wet weather conveyance rule, which was approved by 

the United States Environmental Protection Agency ("EPA") in 1986, it removed any 

established uses for such waters in Tennessee. The Proposed Rule causes confusion with 

this federal/state partnership by painting such a broad brush on all tributaries, including 

wet weather conveyances. 

In 2009, the Tennessee General Assembly enacted legislation to establish a legal 

mechanism for, making jurisdictional calls on streams. In doing so, the statute refined the 

regulatory definition of wet weather conveyance to reflect additional biological 

requirements. In Tennessee, a stream is any watercourse that is not a wet weather 

conveyance. A wet weather conveyance has hydrogeological and chemical considerations 

(must be above the groundwater table, flow only in response to precipitation in the 

immediate locality, and not suitable for drinking water) as well as hydrological and 

biological aspects (due to naturally occurring ephemeral or low flow there is not 

sufficient water to support fish, or multiple populations of obligate logic aquatic 

organisms whose life cycle includes an aquatic phase of at least two (2) months). The 
Clean Water Rule Response to Comments – Topic 1: General Comments 

219

Board of Water Quality, Oil and Gas has promulgated rules that set out criteria for 

making the determinations and defining the aquatic organisms that qualify a watercourse 

as a stream. In addition, the Tennessee Department of Environment and Conservation has 

developed guidelines to assist in interpreting the statute and the rules. Finally, TDEC has 

a certification program to train and certify individuals who qualify based on education 

and experience as well as classroom and field testing to make stream determinations. 

When EPA Region IV approved Tennessee's water quality standards, those standards 

took effect for CWA purposes within the State of Tennessee. Those standards included 

the Wet Weather Conveyances rule which, pursuant to the State's classification of surface 

waters rule, are not assigned any designated uses, including CWA § 101(a)(2) uses 

required for all "waters of the U.S." Therefore, while wet weather conveyances are waters 

of the State, by definition they are not "waters of the United States" because they do not 

support the CWA § 101(a)(2) uses, a statutory requirement for all waters of the U.S. 

Based on the foregoing it is clear that designated wet weather conveyances in Tennessee 

should not be subject to federal jurisdiction. However, the expansive definition of 

tributary usurps Tennessee's classification of wet weather conveyances and ascribes 

federal jurisdiction in its place. This usurpation creates substantial uncertainty in the 

regulated community as to jurisdictional limitations of projects under both Section 404 

and Section 402. The action by the Agencies relegates states to merely contract 

administrators of a federal program rather than a full partner in how our nation's waters 

will be protected, which contradicts Congressional intent of the Clean Water Act. 

We request that the Agencies address the basis for their jurisdiction, if any, over wet 

weather conveyances in Tennessee. If the Agencies believe such jurisdiction exists, then 

please state the basis of authority to impose compensatory mitigation on watercourses 

with no uses. (p. 7-8)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Waterton Global Mining Company (Doc. #14784)

1.305 The proposed rule purports to give federal agencies direct authority over land use 

decisions that Congress intentionally reserved to states- and, in doing so, calls into 

question the continuing role and discretion left to state, county and other local 

governments. Such broad expansion of jurisdiction of the CWA is neither contemplated 
Clean Water Rule Response to Comments – Topic 1: General Comments 

220

nor authorized by existing statutes (or interpretive case law) and, therefore, should not be 

implemented through rulemaking in lieu of what lawfully requires statutory amendment. 

(p. 2)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. See Summary Response, 

Preamble to the Final Rule Sections III and IV and Technical Support Document. 

The final rule does not establish any new regulatory requirements. Instead, it is a 

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

with the CWA, Supreme Court precedent, and science. As such, there are no 

changes in the relationship between federal, state, tribal and local implementors of 

CWA programs or to other state or tribal programs managing these resources. 

Alaska Miners Association (Doc. #15027)

1.306 Also troubling to AMA is that two Federal agencies involved have not consulted with 

their state partners on this proposed rule. Likewise, the proposed definition has not 

considered, no consulted with the Alaska Native land owners in Alaska who have been 

granted 44 million acres of land that Congress intended to be a partial settlement of 

outstanding Native claims. It is our strong opinion that the new definitions will have the 

direct result of significantly undermining the intent of Congress for these 44 million acres

be available for responsible resource development, including minerals, now owned in fee 

title by the Alaska Native Corporations established by the Alaska Native Claims 

Settlement Act. Furthermore, the rule encroaches on the traditional power of the states to 

regulate land and water within their borders. Coordination and consistency are crucial for 

any proposed rule defining waters of the U.S., and it is just as vital to ensure states’ rights 

are not being violated. It is statutorily mandated, and affirmed by our legal system, that 

regulation of interior waters is a quintessential state function. 

In the proposed rule, the agencies imply that states lack mechanisms and regulation to 

protect aquatic resources. In fact, the State of Alaska has a regulatory framework that 

meets or exceeds all federal water quality standards and a legal framework to support 

those standards. (p. 2)

Agency Response: In keeping with the spirit of Executive Order 13132 and 

consistent with the agencies’ policy to promote communications with state and local 

governments, the agencies consulted with state and local officials throughout the 

process and solicited their comments on the proposed action and on the 

development of the rule. For this rule state and local governments were consulted at 

the onset of rule development in 2011, and following the publication of the proposed 

rule in 2014. In addition to engaging key organizations under federalism, the 

agencies sought feedback on this rule from a broad audience of stakeholders 

through extensive outreach to numerous state and local government organizations. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

221

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule.

Consistent 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 have prepared a report summarizing their consultation with 

tribal nations,. This report, Final Summary of Tribal Consultation for the Clean 

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

Act; Final Rule (Docket Id No EPA-HQ-OW-2011-0880), is available in the docket 

for this rule. 

The rule does not regulate land use. The scope of regulatory jurisdiction for Clean 

Water Act purposes in this rule is narrower than that under the existing regulation. 

Fewer waters will be defined as “waters of the United States” under the rule than 

under the existing regulations, in part because the rule puts important qualifiers on 

some existing categories such as tributaries. States and tribes retain full authority 

to implement their own programs to more broadly and more fully protect the 

waters under their jurisdiction. See Summary Response, Preamble to the Final 

Rule Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Corporate Communications and Sustainability, Domtar Corporation (Doc. #15228)

1.307 “Federalizing” waters not intended to be covered by the CWA. Local regulatory 

authorizes should retain jurisdictional authority over their local waters. They better 

understand local conditions than the federal government which is why traditionally they 

have had authority over land and water use. (p. 2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 
Clean Water Rule Response to Comments – Topic 1: General Comments 

222

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Halliburton Energy Services, Inc. (Doc. #15509)

1.1 State programs provide substantial environmental benefit that is not appropriately 

acknowledged and respected by this proposal, and land use regulation of the type that 

would occur under the proposed rule belongs at the state level. (p. 2)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. See Summary Response, 

Preamble to the Final Rule Sections III and IV and Technical Support Document. 

The final rule does not establish any new regulatory requirements. Instead, it is a 

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

with the CWA, Supreme Court precedent, and science. As such, there are no 

changes in the relationship between federal, state, tribal and local implementors of 

CWA programs or to other state or tribal programs managing these resources. 

American Gas Association (Doc. #16173)

1.308 The Proposed Rule does not discuss which federal and state-delegated programs might be 

affected, and what those effects would imply for the state-federal relationship that 

currently exists over the permitting of isolated waters, state-regulated features in uplands, 

and the many “adjacent” wetlands and waters that would be regulated federally for the 

first time and require companion water quality certifications under state-administered 

programs. Even where the Agencies propose to exclude or make case-based exclusions 

from jurisdiction for non-categorical “other waters”, this flexibility only exacerbates the 

potential for regulatory staff and field inspectors to arbitrarily, inconsistently, and 

subjectively make jurisdictional findings based on their personal understanding of the 

Agencies’ legal definition of “significant nexus.” (p. 6)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document Sections I, II, VII, VIII and IX.

ConocoPhillips (Doc. #16346)

1.309 The economic analysis assumes that federal jurisdiction is required because streams are 

not being regulated by states. It is our experience that state regulators have the expertise 
Clean Water Rule Response to Comments – Topic 1: General Comments 

223

to address issues related to the geology, hydrology, geography, and cultural conditions 

within a particular state and is already regulating waters of the state. Extending federal 

jurisdiction to these state protected waters would result in regulatory uncertainty 

concerning NPDES permits, including storm water permits; Section 404 permits; Spill 

Prevention, Control, and Countermeasure (SPCC) plans and containment requirements; 

and the jurisdictional status of ephemeral streams, dry ditches and arroyos, and isolated 

ponds. (p. 2)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document. The scope of regulatory jurisdiction 

for Clean Water Act purposes in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. States and tribes retain 

full authority to implement their own programs to more broadly and more fully 

protect the waters under their jurisdiction. The final rule does not establish any

new regulatory requirements. Instead, it is a definitional rule that clarifies the 

scope of “waters of the United States” consistent with the CWA, Supreme Court 

precedent, and science. As such, there are no changes in the relationship between 

federal, state, tribal and local implementors of CWA programs or to other state or 

tribal programs managing these resources. 

Pennsylvania Aggregates and Concrete Association (Doc. #16353)

1.310 EPA is relying on inaccurate and inadequate information regarding Pennsylvania’s 

environmental laws. Pennsylvania has primacy with respect to the NPDES program, as 

well as other water programs. However, EPA has instead chosen to rely upon the 2013 

Environmental Law Institute (ELI) report entitled, “State Constraints: State-Imposed

Limitations on the Authority of Agencies to Regulate Waters Beyond the Scope of the 

Federal Clean Water Act” as support for their actions.

The ELI report mischaracterizes Pennsylvania’s authority to regulate waters, basically 

indicating that Pennsylvania’s program is lacking, which is entirely inaccurate. ELI 

states: “State laws imposing limitations on the authority of state agencies to protect 

aquatic resources are commonplace . . . [and] the prevalence of these state constraints 

across the country, together with the reality that only half of all states already protect 

waters more broadly than is required by federal law, suggest that states are not currently 

‘filling the gap’ left by US Supreme Court rulings . . ., and face significant obstacles in 

doing so.”10 The report belittles not only the existing statutes and laws of Pennsylvania, 

many of which have been on the record for over 50 years, but also the work of the PA 

Department of Environmental Protection.

Agency Response: Additionally, EPA has not taken into consideration the 

significant impact on the states’ available resources to implement the proposed 

requirements, particularly given the lack of clarity and the ambiguousness of the 

proposed rule. (p. 4)

See Summary Response, Preamble to the Final Rule and Technical Support 

Document.
Clean Water Rule Response to Comments – Topic 1: General Comments 

224

Interstate Mining Compact Commission (Doc. #16514)

1.311 EPA states that an important objective of the rule is to protect the 60 percent of the 

Nation's stream miles that flow only seasonally. However, the Commonwealth of 

Pennsylvania is not a state in which the majority of stream miles only flow seasonally. To 

the extent that Pennsylvania streams have seasonal flow, they are protected under state 

law. Administering a detailed and specific "one-size-fits-all" definition applicable 

nationwide in states with distinct surface and groundwater attributes, and extremely 

divergent average annual rainfall and snow melt characteristics, will be difficult. Such a 

rule may in fact undermine existing state law protections. 

We are also concerned that this rulemaking does not take into consideration 

comprehensive state programs that are already in effect, and that EPA and the Corps may 

be relying on inadequate and inaccurate information regarding the breadth and scope of 

some states' laws and programs. Though not cited in the proposed rule itself, EPA 

officials have referred to reliance on a 2013 Environmental Law Institute (ELI) study 

titled, "State Constraints — State-Imposed Limitations on the Authority of Agencies to 

Regulate Waters Beyond the Scope of the Federal Clean Water Act" to defend the 

proposition that this rulemaking is needed because state programs for protecting water 

resources are inadequate. EPA purports that the proposed rule will address states' 

regulatory inadequacies. EPA has asserted that Pennsylvania, for example, is one such 

state. However, in Pennsylvania there are approximately 86,000 miles of streams, 

404,000 acres of wetlands, 161,445 acres of lakes, 17 square miles of the Delaware 

estuary, and 63 miles of Great Lakes shore front that make up the waters of the 

Commonwealth which have long been protected by a network of state laws. The state's 

regulations constitute a robust, comprehensive, and effective regulatory framework for 

protection of the waters of the Commonwealth. The ELI study fails to identify codified 

statutes and regulations that have provided the foundation for Pennsylvania's regulatory 

program for decades, but only cites a 1996 Executive Order and the wetlands provision 

under the Pennsylvania Dam Safety and Encroachments Act. The study fails to reference 

the extensive Pennsylvania Clean Streams Law (CSL) passed in 1937, and the multiple 

chapters of Pennsylvania Code which comprise the state's regulatory program. The CSL 

is clear and comprehensive and the scope of protected waters is not subject to confusion 

or debate, unlike this proposed rulemaking. In 2013, 62% of the water-related permitting 

in Pennsylvania was done pursuant solely to state law authority, while only 38% was 

pursuant to the delegated National Pollutant Discharge Elimination System (NPDES) 

program. The states are in the best position to provide effective, fair, and responsive 

oversight of water and land use within their communities and have consistently and 

conscientiously done so. (p. 4)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 
Clean Water Rule Response to Comments – Topic 1: General Comments 

225

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Iron County Commission, Iron County (Doc. #17033)

1.312 Previous acts of congress (Acts of 1899, 1870, and 1877) divested itself of its authority 

over all non-navigable waters in the West, ceding that authority to the states. The only 

specific exemption from this authority is water appropriation under state law. Therefore, 

non-navigable waters of the West are still under the authority of the States, and are 

beyond the Agencies jurisdiction. Multiple court cases support this authority and define 

clearly what is meant by "waters of the United States". Iron County feels that this rule has 

a specific purpose to expand the Agencies authority beyond that which is provided for by 

Congress. (p. 2-3)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. In particular with respect to CWA legal authority, 

see Technical Support Document Section I.

1.313 The Agencies attempt to minimize the scrutiny of the proposed rule by insinuating in the 

above reference, that the rule does not supersede Congressional policy or direction to 

preserve state authorities to under CWA is misleading. Clearly, the lead-in paragraph in 

Section 101 of the CWA gives direction to federal agencies that their action not interfere 

with States rights and States responsibilities to prevent, reduce, and eliminate pollution 

and to plan the development and use of land and water resources. Iron County believes 

that the true intent of the rule is to do just what it indicates it will not do — provide a new 

rule that does supersede states authorities under CWA in managing land and water 

resources as was intended by Congress. 

Having a federal agency permitting land and water management activities from distant 

and often out-of-state offices with no knowledge of local conditions and no connection 

with local citizens can only lead to further complicate matters. It is clear that Congress, 

when it originally enacted and then amended the CWA never intended of the Agencies to 

act as the primary permitting and enforcement agency for land and water use activities 

across the nation. Contrary to what is being presented in the proposed rule it is obvious 

that the Agencies are attempting to set themselves up as the distant and often out-of-state 

permitting authority that will have the ability to greatly influence the land and water uses 

in all states and across the entire nation. (p. 3)

Agency Response: The Rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 
Clean Water Rule Response to Comments – Topic 1: General Comments 

226

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. See Summary 

Response, Preamble to the Final Rule Sections III and IV and Technical Support 

Document. Regarding CWA legal authority, see Technical Support Document 

Section I.

Petroleum Association of Wyoming (Doc. #18815)

1.314 PAW's concerns discussed above are not exhaustive. Because it is unclear how the 

proposed rule would be specifically implemented, it is likely that other programs under 

the CWA would be affected in ways we cannot immediately foresee. For example, the 

categorical definitions of WOTUS for tributaries and adjacent waters could be read to 

limit the state's flexibility in performing Use Attainability Analysis or exercising its 

authority under CWA § 303 to make site-specific decisions on whether to protect for 

aquatic life or recreational uses in certain waters. Certainly, the states are in a better 

position to make these determinations within their boundaries on a site-specific basis, but 

if the definitions preclude the state from exercising its discretion, such a result would be 

unwarranted. 

Similarly, the proposed definition is problematic with respect to differentiating between 

"state waters" and WOTUS for regulatory purposes. For example, the proposal would 

create uncertainty with respect to oil and gas produced water discharges to non-WOTUS 

waters. The State of Wyoming regulates and permits discharges to both WOTUS and 

non-WOTUS waters. State permitted discharges to non-WOTUS state waters are not 

subject to federal jurisdiction. However, under the proposed definition, it appears some 

permitted discharges to non-WOTUS state waters could become subject to agency 

jurisdiction. While unclear under the proposed rule, it is conceivable that the assertion of 

federal jurisdiction in such a scenario could extend beyond the drainage itself, and subject 

an operator to federal jurisdiction over the process, facility, or even the wellhead 

remotely situated in an otherwise arid and isolated landscape. As discussed above, such 

assertions of jurisdiction, should they occur, would exceed any permissible interpretation 

of CWA jurisdiction or WOTUS. In addition, there would be uncertain and potentially 

conflicting requirements depending on whether a water were determined to be a state 

water or WOTUS, should the proposed rule be interpreted to apply in this manner. (p. 12-

13)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 
Clean Water Rule Response to Comments – Topic 1: General Comments 

227

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

1.315 The expansion of the agencies' authority that would result from adoption of the proposed 

rule is so extensive that it impermissibly impinges on authority granted to the State of 

Wyoming under the CWA and Wyoming's Constitution. By claiming authority that 

appears to expand to the upper reaches of headwater drainages and over remote wetlands 

and ill-defined floodplains, PAW is left wondering what would constitute "waters of the 

state" as opposed to WOTUS. Congress never intended the agencies to regulate every 

drop of water within a state's borders. Wyoming's constitution provides that the waters of 

all natural streams, springs, lakes or other collections of still water within the boundaries 

of the state * * * are declared to be the property of the state." Wyoming Constitution, 

Article 8, § 1. Moreover, in enacting the CWA, Congress was doubtlessly aware of the 

constitutional provisions declaring ownership of water in Wyoming and several other 

states. CWA Sections 101(b) and (g) recognize congressional intent that the primary 

responsibilities for reduction and elimination of pollution and restoration, preservation 

and enhancement of land and water resources should lie primarily with the states. 

The breadth and scope of the proposed rule fails to recognize these constraints on federal 

authority. SWANCC and Rapanos both resulted in a defeat of the agencies' attempts to 

broaden the exercise of federal jurisdiction. In light of this, PAW finds it remarkable that 

the proposed rule actually seeks to enlarge federal jurisdiction well past the point the 

agencies have ever previously regulated. Rather than set the agencies up for protracted 

further litigation over the scope of jurisdiction, PAW urges the agencies to withdraw the 

rule and consult with the states and other stakeholders in a meaningful and honest way, 

prior to moving forward with further attempts to define and expand WOTUS through 

regulations. 

As noted, PAW is concerned with an expansion of federal authority into areas that have 

been traditionally regulated by the state in a predictable and effective manner. From a 

review of comments submitted by various states, it is evident that the states perceive they 

were cut out of the agencies rulemaking process. The CWA was envisioned as a model of 

cooperative federalism, under which states would retain primary authority to regulate 

waters within their boundaries. The lack of state participation in the development of the 

proposed rule is certainly troubling to PAW, as the state is in the best position to regulate 

waters within its boundaries and to interact with the regulated community. 

As a trade organization with members that rely on predictable, consistent regulation, 

PAW finds the process utilized in the development of the proposed rule to be 

problematic. A review of the authors and reviewers of the Connectivity Report reveals 

that members of organizations traditionally associated with the environmental community 

and academia were included in the review of the document as it was developed. 

However, not a single member of any state environmental or water agency is included 

among the reviewers or contributors to the report. Nor are members of any industry or 

related trade association. For a report prepared to further a regulatory program 

implemented ostensibly through Federal-State cooperative federalism, the absence of 

state agency participants in the development and review of the Connectivity Report 

seems wholly inappropriate. PAW urges the agencies to heed the recommendations and 
Clean Water Rule Response to Comments – Topic 1: General Comments 

228

requests of the State of Wyoming and other states to withdraw the rule and start over; this 

time involving the states, as well as relevant stakeholders in a meaningful way. It is only 

by involving the state partners and stakeholders that a WOTUS rule that makes sense for 

the federal government, the states, and the regulated community can be developed. (p. 

14-15)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

In keeping with the spirit of Executive Order 13132 and consistent with the 

agencies’ policy to promote communications with state and local governments, the 

agencies consulted with state and local officials throughout the process and solicited 

their comments on the proposed action and on the development of the rule. For this 

rule state and local governments were consulted at the onset of rule development in 

2011, and following the publication of the proposed rule in 2014. In addition to 

engaging key organizations under federalism, the agencies sought feedback on this 

rule from a broad audience of stakeholders through extensive outreach to numerous 

state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule. Regarding CWA legal authority, See Technical Support Document 

Section I.

Snyder Associated Companies, Inc (Doc. #18825)

1.316 When Congress passed the Clean Water Act in 1972, it let the states protect their own 

waters, and reserved for the federal government the authority to regulate waters used in 

interstate or foreign commerce, i.e., "navigable waters." The proposed rulemaking would 

bring into jurisdiction water features that have no substantial impact on traditional 

"navigable waters." (p. 1)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 
Clean Water Rule Response to Comments – Topic 1: General Comments 

229

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. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Greybull Valley Irrigation District (Doc. #1438)

1.317 GVID urges you to change course by committing to operating under the limits 

established by Congress, recognizing the states' primary role in regulating and protecting 

their streams, ponds, wetlands and other bodies of water. (p. 2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Washington Cattlemen’s Association (Doc. #3723)

1.318 There is no provision for a state to ask to be omitted from the rule. There is nothing in the 

proposed rule to recognize the rights of States in water issues. (p. 4)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. Section 101(g) of the CWA states, “It is the policy of 

Congress that the authority of each State to allocate quantities of its water within its 

jurisdiction shall not be superseded, abrogated or otherwise impaired by [the CWA 

and] that nothing in [the CWA] shall be construed to supersede or abrogate rights 

to quantities of water which have been established by any State.” Similarly, Section 

510(2) provides that nothing in the Act shall “be construed as impairing or in any 

manner affecting any right or jurisdiction of the States with respect to the waters . . 

. of such States.” The rule is entirely consistent with these policies. The rule does 

not impact or diminish State authorities to allocate water rights or to manage their 

water resources. Nor does the rule alter the CWA’s underlying regulatory process. 

Having been enacted with the objective of restoring and maintaining the chemical, 
Clean Water Rule Response to Comments – Topic 1: General Comments 

230

physical, and biological integrity of our nation’s waters, the CWA serves to protect 

water quality. Neither the CWA nor the rule impairs the authorities of States to 

allocate quantities of water. Instead, the CWA and the rule serve to enhance the 

quality of the water that the States allocate. See Technical Support Document 

Section I for further discussion including regarding Jefferson County v. Washington 

Dept. of Ecology, 511 U.S. 700 (1994).

Wheatland Irrigation District (Doc. #5176)

1.319 We respectfully submit that this extensive regulation of water should be left up to the 

states. The Senate and Congressional Western Caucuses have stated that this rule will 

negatively impact farms, small businesses, energy production, commercial development 

and substantially interfere with the ability of individual landowners to use their property 

and urge Congress to "[recognize] the states' primary role in regulating and protecting 

their streams, ponds, wetlands, and other bodies of water. The Supreme Court has 

recognized the states' right in regulating their own bodies of water. The states and local 

communities should have more of a voice in such a matter than can drastically impact 

local economies. The lack of adequate consultation with states and local communities by 

the EPA is disconcerting. Ultimately, the states, not the EPA, should have the final say in 

how their farms and ranches are regulated. (p. 4)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. See Summary Response, 

Preamble to the Final Rule Sections III and IV and Technical Support Document. 

The final rule does not establish any new regulatory requirements. Instead, it is a 

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

with the CWA, Supreme Court precedent, and science. As such, there are no 

changes in the relationship between federal, state, tribal and local implementors of 

CWA programs or to other state or tribal programs managing these resources. 

In keeping with the spirit of Executive Order 13132 and consistent with the 

agencies’ policy to promote communications with state and local governments, the 

agencies consulted with state and local officials throughout the process and solicited 

their comments on the proposed action and on the development of the rule. For this 

rule state and local governments were consulted at the onset of rule development in 

2011, and following the publication of the proposed rule in 2014. In addition to 

engaging key organizations under federalism, the agencies sought feedback on this 

rule from a broad audience of stakeholders through extensive outreach to numerous 

state and local government organizations. The agencies have prepared a report 

summarizing their voluntary consultation and extensive outreach to state, local and 

county governments, the results of this outreach, and how these results have 

informed the development of today’s rule. This report, Final Summary of the 

Discretionary Consultation and Outreach to State, Local, and County Governments 
Clean Water Rule Response to Comments – Topic 1: General Comments 

231

for the Revised Definition of Waters of the United States (Docket Id. No. EPA-HQOW-2011-0880) is available in the docket for this rule.

Oregon Cattlemen’s Association (Doc. #5273.1)

1.320 The proposed rule is also contrary to the text of the CWA and in that it infringes on the 

rights and responsibilities of States to oversee the management and use of lands found 

within their jurisdictions. 

In enacting the CWA, Congress set out to simultaneously achieve two goals. On the one 

hand, the CWA provides the Federal government with tools and resources to promote the 

"[r]estoration and maintenance of chemical, physical, and biological integrity of [the] 

Nation's waters." 33 U.S.C. § 1251(a). On the other hand, the CWA clearly states that 

"[i]t is the policy of Congress to recognize, preserve, and protect the primary 

responsibilities and rights of States to prevent, reduce, and eliminate pollution.. . ." Id. at 

§ 1251(b). 

Under the expansive jurisdictional scope of the proposed rule, the Federal government, 

through the EPA and Corps, would have the "primary responsibility" of carrying out the 

directives of the CWA; the States having only that authority delegated to them by the 

Agencies. 

Justice Scalia notes in the Rapanos plurality that the "[r]egulation of land use, as 

thorough the issuance of ... development permits ... is a quintessential state and local 

power." Rapanos, 547 U.S. at 738 (citing FERC v. Mississippi, 456 U.S. 742, 767-768, n. 

30 (1982); Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30, 44 (1994). 

One primary reason for this is the inherent difficulty that exists in enacting nationwide 

regulations for land use due to the wide variety of geographic features , landscapes, 

climates , etc. that exist within the borders of the United States. State and local 

governments are belter-suited for the task of regulating land use because government 

officials at these levels of governments have a much better, more intimate understanding 

of the landforms found within their jurisdictions. 

The proposed rule should be as narrow as possible to reflect the CWA's intent that States 

retain jurisdiction over local activities that may impact waters within their respective 

boundaries. (p. 3)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. See Summary Response, 

Preamble to the Final Rule Sections III and IV and Technical Support Document. 

The final rule does not establish any new regulatory requirements. Instead, it is a 

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

with the CWA, Supreme Court precedent, and science. As such, there are no 

changes in the relationship between federal, state, tribal and local implementors of 

CWA programs or to other state or tribal programs managing these resources. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

232

Pike and Scott County Farm Bureaus (Doc. #5519)

1.321 Furthermore, this expansion of federal authority will override State authority making null 

and void statewide permits for minor activities in waters of the state. (p. 1)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Colorado Livestock Association (Doc. #7930)

1.322 The Clean Water Act authorizes no jurisdiction for any federal agency over groundwater. 

Within the Proposed Rule, a significant nexus may be defined by “shallow, subsurface 

connections” between wetlands and waters. Whereas alluvial groundwater resources are 

often found in shallow, subsurface locations, the jurisdiction of same becomes unclear 

between state and federal authorities.

Point: Jurisdiction between state and federal agencies should be clarified in the Proposed 

Rule. Including the connectivity of subsurface waters and their flow in the Rule presents 

a challenge to state authority for groundwater regulation and would exceed the intent and 

congressional authority granted to EPA by the Clean Water Act. (p. 3)

Agency Response: The rule expressly indicates in paragraph (b) that 

groundwater, including groundwater drained through subsurface drainage systems 

is excluded from the definition of “waters of the United States.” While groundwater 

is excluded from jurisdiction, the agencies recognize that the science demonstrates 

that waters with a shallow subsurface connection to jurisdictional waters can have 

important effects on downstream waters. When assessing whether a water evaluated 

in (a)(7) or (a)(8) performs any of the functions identified in the rule’s definition of 

significant nexus, the significant nexus determination can consider whether shallow 

subsurface connections contribute to the type and strength of functions provided by 

a water or similarly situated waters. However, neither shallow subsurface 

connections nor any type of groundwater are themselves “waters of the United 

States.” The agencies understand that there is a continuum of water beneath the 

ground surface, from wet soils to shallow subsurface lenses to shallow aquifers to 

deep groundwaters, all of which can have impacts to surface waters, but for 

significant nexus purposes under this rule, the agencies have chosen to focus on 

shallow subsurface connections because those are likely to both have significant and 
Clean Water Rule Response to Comments – Topic 1: General Comments 

233

near-term impacts on downstream surface waters and are reasonably identifiable 

for purposes of rule implementation. 

Coon Run Levee and Drainage District (Doc. #8366)

1.323 Through easements, landowners relinquished "control" of their ditches to local drainage 

districts many years ago. The ditches are privately owned. The drainage district assumes 

general maintenance of the ditch to provide appropriate drainage of the land through a 

formal legal easement. In other words, the local levee and drainage district, a 

municipality duly constituted by the state, comprised of commissioners duly elected by 

local landowners, have jurisdiction over these district ditches. Amending the definition of 

"waters of the United States" would completely undermine the very essence of the local 

levee and drainage districts, Jurisdiction originally entrusted to local officials would be 

usurped by the Federal Government. (p. 2)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. See also Response to Comments Compendium Topic 

6 – Ditches.

Cattle Empire (Doc. #8416)

1.324 We believe that this definition of WOTUS as proposed is illegal based on the Commerce 

Clause of the U.S. Constitution, the framework and goals of the CWA, Congressional 

intent and Supreme Court rulings. Each places a limit on federal jurisdiction over the 

states' waters. Currently, this proposal has practically no limit whatsoever. The inclusion 

of agricultural ditches into the category of "tributaries" is concerning and inappropriate. 

The two exclusions provided in the proposal are not adequate to alleviate the enormous 

burden placed on the entire agriculture community. 

The proposed definition also annihilates the federalist system that underpins the CWA. 

The states must be allowed to regulate the waters within their borders without threat of 

takeover by the federal government. The proposal states that the States may continue to 

more broadly regulate waters within their borders, but under this proposal, there would be 

no other waters that are not under the jurisdiction of the federal government! (p. 5)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. See also Response to 

Comments Compendium Topic 6 Ditches and Topic 8 Tributaries.
Clean Water Rule Response to Comments – Topic 1: General Comments 

234

Ventura County Coalition of Labor Agriculture and Business (Doc. #8662)

1.325 The proposed rule exceeds the EPA's authority under the Clean Water Act as it violates 

the plain language of the statute and impinges on the State's traditional and primary 

authority over land and water use. These waters are already within the jurisdiction of 

state and local Water Quality Control Boards that regulate runoff under a Total 

Maximum Daily Load (TMDL). This duplication and over lap of jurisdictions is 

unnecessary and harmful, causing another layer of regulatory time and expense for no 

apparent gain. (p. 1)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Michigan Farm Bureau, Lansing, Michigan (Doc. #10196)

1.326 While EPA and USACE have stated this rule will offer clarity, simplify the regulatory 

process, and improve protection of water resources in the United States, the proposed rule 

in fact does none of those things . Instead, this rule will hurt the agriculture industry as 

well as many other businesses, and damage the American economy that depends on the 

services agriculture and other industries provide. Further, it will interfere with states' 

efforts to develop successful water protection programs which do not depend on such 

burdensome regulation. (p. 11)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

235

1.327 Congress intended states to have the authority to make their own land use and water 

quality decisions, and for the EPA and USACE to ride roughshod over state programs is a 

gross overreach of the agencies' authority. Further, and specific to Michigan, this 

proposed rule may contradict Michigan's Wetlands Law and cause the EPA to consider 

Michigan's assumption of delegated authority over Section 404 of the CWA to be out of 

compliance. If we lose our delegated authority, we lose the ability to manage a program 

that Michigan has used for 30 years to provide valuable protection of wetlands through 

agencies that have local contact with farmers. (p. 12)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

In the final rule, the agencies are responding to those requests from across the 

country to make the process of identifying waters protected under the CWA easier 

to understand, more predictable, and more consistent with the law and peerreviewed science. In fact, providing greater clarity regarding what waters are 

subject to CWA jurisdiction will reduce the need for permitting authorities, 

including states with authorized section 402 and 404 CWA permitting programs, to 

make jurisdictional determinations on a case-specific basis. See also State 

Assumption Section below.

1.328 (Waters of the U.S.) There is no thing as waters of the U.S., all waters within a State 

belong to the people of that State. (p. 1)

Agency Response: “Waters of United States” is a term describing the waters 

subject to Clean Water Act protections. Congress expressly used this term in the 

Clean Water Act, and the United States Supreme Court and numerous other courts 

have recognized and interpreted the scope of this term. States also have a crucial 

role in protecting state waters. See Preamble to the Final Rule and Technical 

Support Document.

1.329 In conclusion, I am opposed to the EPA and the CORPS of ENGINEERS intrusion upon 

the individual state rights where the states have laws in place to protect the safety and 

wellbeing of the citizens and those adjoining states. (p. 1)

Agency Response: . The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 
Clean Water Rule Response to Comments – Topic 1: General Comments 

236

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Montana Farm Bureau Federation (Doc. #12715)

1.330 MFBF understands that when the Clean Water Act became law in 1972, it set in place a 

system of cooperative federalism which allowed federal agencies jurisdiction of 

navigable waters and left control of smaller waters to the states. In the state of Montana, 

abundant statue, agency resources, and voluntary best management practices employed 

by farmers and ranchers exist to protect state and federal waters. Additionally, there are 

two state agencies tasked with managing state waters. Montana's farmers and ranchers 

pride themselves in keeping and improving water quality and do not believe federal 

management is necessary for further improvement or protection. (p. 8)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Nebraska Cattlemen (Doc. #13018.1)

1.331 Clearly, states have an important and congressionally recognized role to play in water 

quality regulation. Unfortunately, EPA’s proposed rule unlawfully expands their 

authority by obliterating this federal-state partnership and claiming all waters as subject 

to federal agency jurisdiction. As discussed previously, the proposed rule makes federal 

agency jurisdiction over waters for purposes of the CWA limitless. This violates the text 

and spirit of the CWA itself. If Congress intended for the federal government to regulate 

all waters under the CWA why would it have included language such as that above? (p. 

12)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document. The scope of regulatory jurisdiction 

for Clean Water Act purposes in this rule is narrower than that under the existing 
Clean Water Rule Response to Comments – Topic 1: General Comments 

237

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. States and tribes retain 

full authority to implement their own programs to more broadly and more fully 

protect the waters under their jurisdiction. The final rule does not establish any 

new regulatory requirements. Instead, it is a definitional rule that clarifies the 

scope of “waters of the United States” consistent with the CWA, Supreme Court 

precedent, and science. As such, there are no changes in the relationship between 

federal, state, tribal and local implementors of CWA programs or to other state or 

tribal programs managing these resources. 

1.332 The reason that there is a difference in use and application of the same definition in the 

CWA is easily explained. Other than the §404 program and the §311 oil spill program, 

the CWA is essentially administered by the states with delegated programs. All but a 

handful of states have CWA programs delegated to them. In Nebraska, the Nebraska 

Department of Environmental Quality (NDEQ) has been delegated all CWA programs 

other than §404 and §311 since the mid-1970s. In order to have an approved program, 

EPA must determine the state’s laws are consistent with the CWA. That would include an 

evaluation of the state equivalent definition of water bodies covered. In Nebraska, the 

definition of “waters of the state” is found in Neb.Rev.Stat. §81-1502(21) which was 

reviewed and approved by EPA. The wording of that definition is not identical to the 

wording of the definition of “waters of the United States” in the CWA. In fact, the 

wording is quite different. Wisely, Congress allowed states to craft their programs to be 

the most fitting to the state so long as the provisions were at least as stringent as the 

federal counterpart. The concept was one of “cooperative federalism” in which the 

federal government sets the broad goals and individual states reach the goals in a manner 

most appropriate for its citizens and based on its physical characteristics. (p. 12-13)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document. The scope of regulatory jurisdiction 

for Clean Water Act purposes in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. States and tribes retain 

full authority to implement their own programs to more broadly and more fully 

protect the waters under their jurisdiction. The final rule does not establish any 

new regulatory requirements. Instead, it is a definitional rule that clarifies the 

scope of “waters of the United States” consistent with the CWA, Supreme Court 

precedent, and science. As such, there are no changes in the relationship between 

federal, state, tribal and local implementors of CWA programs or to other state or 

tribal programs managing these resources. 

Iowa Corn Growers Association (Doc. #13269)

1.333 This proposed rule does not take into account both the State of Iowa’s responsibilities and 

their input. Instead of building off of the public-private partnerships already in place to 

advance water quality, the Agencies failed to consult any of our state officials at all 

during the development of the proposed rule.
Clean Water Rule Response to Comments – Topic 1: General Comments 

238

A key goal of this proposed rule should be to empower the states to develop and 

implement programs that move water quality efforts forward, not back. But the rule 

dismantles preservation of primary state responsibility for ordinary land use decisions. 

States should have the primary role in protecting their water resources, but this rule 

ignores that and replaces it with Federal oversight. The CWA allows the Agencies the 

ability to clarify their jurisdiction over perennial and navigable waters, but the states 

should be left to address their unique situations for waters beyond these features. 

The State of Iowa is a national leader in water quality as we were the first in the 

Mississippi River Basin to implement a statewide nutrient reduction strategy. The 

Hypoxia Task Force and EPA asked twelve states to write strategies to specifically 

address each state’s unique challenges. Iowa answered that call. However, this rule will 

greatly impact the ability of Iowans to implement the strategy that we have invested 

countless resources into. 

In order to meet the strategy’s ambitious goals, conservation practice implementation will 

need to greatly accelerate. Conservation practice adoption will require more resources 

than state and federal agencies can provide. Farmers, landowners, and private sector 

businesses will all have a hand in contributing these resources for enhanced conservation 

activities, including those that may not improve their farm productivity such as wetlands. 

Iowa State University houses both the Iowa Nutrient Research Center and the science 

assessment team that conducted most of the initial research into the Iowa strategy. These 

two groups continue to research the best practices for water quality, social sciences of 

practice adoption, and ways to make the approved practices work more effectively and 

efficiently. (p. 6)

Agency Response: In keeping with the spirit of Executive Order 13132 and 

consistent with the agencies’ policy to promote communications with state and local 

governments, the agencies consulted with state and local officials throughout the 

process and solicited their comments on the proposed action and on the 

development of the rule. For this rule state and local governments were consulted at 

the onset of rule development in 2011, and following the publication of the proposed 

rule in 2014. In addition to engaging key organizations under federalism, the 

agencies sought feedback on this rule from a broad audience of stakeholders 

through extensive outreach to numerous state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. 

This report, Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 

United States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for 

this rule.

The scope of regulatory jurisdiction for Clean Water Act purposes in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

part because the rule puts important qualifiers on some existing categories such as 

tributaries. States and tribes retain full authority to implement their own programs 

to more broadly and more fully protect the waters under their jurisdiction. See 
Clean Water Rule Response to Comments – Topic 1: General Comments 

239

Summary Response, Preamble to the Final Rule Sections III and IV and Technical 

Support Document. The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. 

PennAg Industries Association (Doc. #13594)

1.334 Pennsylvania has an extensive set of regulatory perimeters to follow related to protecting 

our waters. This may or may not be the case in other states. If it is the intentions of EPA

and the Army Corp of Engineers to craft a general rulemaking applicable across the 

United States without giving necessary attention to existing state programs, that approach 

is flawed. (p. 1)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Sugar Cane Growers Cooperative of Florida (Doc. #14283)

1.335 This “other waters” category reveals that the federal government does not trust the states 

to protect their own resources. But states are more than capable of filling any perceived 

gaps in Clean Water Act jurisdiction. See State Practitioners’ Response to ELI Report 

(Attachment D). Florida, in particular, is well-equipped to regulate waters that might fall 

outside the federal government’s jurisdiction. See id. at 25-34 (discussing protections 

under Chapters 373 and 403 of the Florida Statutes); ELI, State Wetland Program 

Evaluation: Phase II at 30 (praising Florida’s state-specific wetland program for its 

“comprehensive wetland protection strategy”). Federal duplication of these efforts would 

contravene the Clean Water Act’s “national policy . . . to . . . prevent needless duplication 

and unnecessary delays at all levels of government.” 33 U.S.C. § 1251(f). Federal distrust 

– particularly unsubstantiated distrust – would contravene the Congress’s intent to 

“recognize, preserve, and protect the primary responsibilities and rights of the States.” 33 

U.S.C. § 1251(b). (p. 9)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 
Clean Water Rule Response to Comments – Topic 1: General Comments 

240

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Kansas Agriculture Alliance (Doc. #14424)

1.336 In proposing this rule, the agencies ignore statutory directives to respect state rights of 

primacy over intrastate water and even certain wetland regulation. In the process, the 

proposed framework over-reaches into areas historically within the purview of the state 

and effectively interjects the federal government into land use regulation, as well. That is 

detrimental to the economic underpinnings of the state’s economy as it creates 

uncertainly for businesses, developers, and agricultural producers. (p. 8-9)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. See Summary Response, 

Preamble to the Final Rule Sections III and IV and Technical Support Document. 

The final rule does not establish any new regulatory requirements. Instead, it is a 

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

with the CWA, Supreme Court precedent, and science. As such, there are no 

changes in the relationship between federal, state, tribal and local implementors of 

CWA programs or to other state or tribal programs managing these resources. 

Mississippi Farm Bureau Federation (Doc. #14464)

1.337 We are very concerned that the proposed rule significantly expands the scope of EPA's 

jurisdiction under the Clean Water Act (CW A), undermines successful and important 

state water programs, and essentially changes the CW A from a "water protection" bill to 

a "land use" bill. The proposed rule does not clarify, but rather confuses, the boundaries 

of state vs. federal jurisdiction over waters and appears to completely ignore state 

authority over solely isolated state waters. (p. 1)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 
Clean Water Rule Response to Comments – Topic 1: General Comments 

241

more fully protect the waters under their jurisdiction. See Summary Response, 

Preamble to the Final Rule Sections III and IV and Technical Support Document. 

The final rule does not establish any new regulatory requirements. Instead, it is a 

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

with the CWA, Supreme Court precedent, and science. As such, there are no 

changes in the relationship between federal, state, tribal and local implementors of 

CWA programs or to other state or tribal programs managing these resources. 

North Dakota Soybean Growers Association (Doc. #14594)

1.338 The combined agencies proposed actions go far beyond the original scope of the Clean 

Water Act and its amendments, Federal Court decisions, and more-recent Congressional 

action on similar proposals. The revision, for the first time, attempts to give Federal 

agencies direct authority over water and private land use decisions that Congress reserved 

to the States in the Clean Water Act. We find no evidence in the agencies offered 

plausible reasons for, or the public desirability of, the sweeping changes proposed. (p. 2)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. See Summary Response, 

Preamble to the Final Rule Sections III and IV and Technical Support Document. 

The final rule does not establish any new regulatory requirements. Instead, it is a 

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

with the CWA, Supreme Court precedent, and science. As such, there are no 

changes in the relationship between federal, state, tribal and local implementors of 

CWA programs or to other state or tribal programs managing these resources. 

1.339 The ND Soybean Growers Association strongly believe the Agencies proposed rules are 

an unlawful intrusion on the State jurisdictions intended by Congress in the original Act 

and subsequent revisions. Strong evidence exists that Congress has adamantly resisted 

proposed changes to the CWA similar to the Agencies overreaching rulemaking proposal.

More importantly, the proposed rule has already created pushback and raised the ire 

farmers and ranchers Statewide. The proposed centralized and distant control, threatening 

to discard specific local nuance understanding and needs in favor of the typical dreaded 

“one size fits all” - for bureaucratic ease approach - will derail decades of progress and a 

growing acceptance of our individual need to understand and expend precious financial 

resources to successfully employ more complex environmental steward practices moving 

forward. (p. 3)

Agency Response: See Summary Response, Preamble to the Final Rule, and 

Technical Support Document.
Clean Water Rule Response to Comments – Topic 1: General Comments 

242

The Mosiac Company (Doc. #14640)

1.340 The agencies cite a study published by the Environmental Law Institute (ELI) in May 

2013, which concludes that "State laws imposing limitations on the authority of state 

agencies to protect aquatic resources are commonplace ... [and] the prevalence of these 

state constraints across the country, together with the reality that only half of all states 

already protect waters more broadly than is required by federal law, suggest that state s 

are not currently 'filling the gap' left by US Supreme Court ruling s ..., and face 

significant obstacles in doing so.”91

However, reliance on the ELI Report, which fundamentally misunderstands States' 

authority to regulate waters, is misplaced. Based on the ELI Study, EPA expresses 

concern that "36 states have legal limitations on their ability to fully protect waters that 

are not covered by the Clean Water Act.”92 But ELI incorrectly describes the scope of 

States ' regulatory authority. The "constraints" cited by ELI that exist under state law 

have little bearing on whether the state regulates waters that are not regulated by the 

CWA.93 Indeed , roughly half of the states in each category (constraint or no constraint) 

regulate non-CWA waters. Id. Moreover, data from some States is not correctly evaluated 

by ELI, as: some States counted in ELI's study as not regulating non-CWA waters 

actually do regulate non-CWA waters.94 More importantly, ELI misunderstands many of 

the State laws it references. For example, the ELI study presents Florida's coverage of 

non-CWA waters as much more limited than it is. It does not acknowledge that Florida 

regulates far more waters, and far more activities in those waters, than does the CWA. 

Moreover, ELI scarcely mentions Florida's Environmental Resources Permitting (ERP) 

program. By contrast, a report issued by ELI in 2006 praised the ERP program for its 

"comprehensive wetland protection strategy." See ELI, State Wetland Program 

Evaluation: Phase II, at 30 (June 2006). And the State's wetland program has expanded 

since the 2006 report was issued. In sum, EPA's concerns that States are constrained from 

regulating non-CWA waters is unfounded. 

States have primary authority to regulate water resources, and have many mechanisms in 

place to protect waters regardless of whether they are deemed "waters of the U.S." for 

purposes of the CWA. Thus, the agencies' expansive interpretation of "waters of the 

U.S." is unjustified and unnecessary. (p. 32-33)

 

91 Environmental Law Institute, State Constraints: State- Imposed Limitations on the Authority of Agencies to

Regulate Waters Beyond the Scope of the Federal Clean Water Act, at 2 (May 2013), available at

http://www.eli.om/research-report/state-constraints-state-imposed-limitations-authority-agencies-regulate-water. 

(hereinafter, ELI Study) .

92 EPA, Waters of the United States Proposed Rule Website, http://www2.epa.gov/uswaters (last visited: August 

12,2014).

93 ELI's data indicate a near- even split among states that regulate non-CWA waters and those that do not, regardless 

of whether a "constraint" exists under state law. Of the 36 jurisdictions ELI characterizes as having constraints, 17 

(47%) regulate non-CWA waters and 19 (53%) do not. See ELI Study at 2, 34-35. And of the 15 states without 

constraints, 8 (53%) regulate non-CWA waters and 7 (47%) do not. Id.

94 ELI lists 26 states as having "no" coverage of non-CWA water s, but acknowledges in a footnote that "[e]ven for 

states [categorized as not regulating non-CWA waters], the state may still provide protection in coastal areas that 

could be construed as regulating waters more broadly than the federal [CWA) ." Study at 8-9, Tab le 1 & Note 3. 

Thus, by ELI 's own admission, at least, nine of the states in ELI 's "no" columns may, in fact, cover non-CWA 

waters (Alabama, Alaska, Delaware, Georgia, Hawaii, Louisiana, Mississippi, South Carolina, and Texas) .
Clean Water Rule Response to Comments – Topic 1: General Comments 

243

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Chilton Ranch, LLC (Doc. #14724)

1.341 The proposed rule does not clarify anything; it just massively expands federal jurisdiction 

while nearly eliminating local intrastate water authority. Local and state rights will be 

curtailed beyond even the superficial meaning of the proposed rule change because states 

and local governments will be hesitant to incur the expense of defending their 

constitutional rights. (p. 1)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Great Plains Canola Association (Doc. #14725)

1.342 The ambiguity of the Proposed Rule set forth by the EPA and the Corps of Engineers 

which defines the Waters of the U.S. that are protected under the Clean Water Act is 

extremely concerning to GPCA producers. With the proposed change, GPCA producers 

believe that the Corps will be unencumbered in overriding state and local control of these 

water management activities and subject these activities, many of which occur on an 

ongoing basis, to a National Pollutant Discharge Elimination System (NPDES) and/or a 

Section 404 permitting process. Based on past experience with the Corps, GPCA 

producers believe that if such control is gained over routine farming activities by the 

Corps, significant areas of productive land in the southern Great Plains could become unfarmable due to the inability to apply timely water management practices. (p. 1-2)
Clean Water Rule Response to Comments – Topic 1: General Comments 

244

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

Farm Credit Illinois (Doc. #14767)

1.343 The proposed rule improperly disregards the statutory requirement mandating State 

control over many areas of land and intrastate water and instead seeks to make the federal 

government the primary regulator of much of intrastate waters and occasionally wet land 

in the United States. FCI and its borrowers (as well as Congress) believe local officials, 

who live in the area and know the proper local farming practices and the quality of local 

waterways, are better able to appropriately regulate the flood plains and riparian are as 

located on farmers' land. (p. 2)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document.

Washington Farm Bureau (Doc. #14783)

1.344 Given the Washington State Department of Ecology’s broad water quality authority to 

regulate nonpoint agriculture (as affirmed by the Washington Supreme Court), 

duplicative state and federal jurisdiction would waste taxpayer dollars and compound 

regulatory uncertainty. (p. 2)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 
Clean Water Rule Response to Comments – Topic 1: General Comments 

245

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document.

Monarch-Chesterfield Levee District, St. Louis, Missouri (Doc. #14904)

1.345 Under the proposed rule it is not clear that states will retain that authority, or if unfunded 

mandates for enhancing water quality will be imposed. By not clarifying in the proposed 

rule that CWA programs beyond Section 404 would not be impacted by the new 

definition, the Agencies have left open that possibility. Then, not addressing potential 

cost impacts to those programs consistent with how the Agencies have described them 

evolving, especially implementation of TMDLs, leaves the Agencies negligent and at 

best inaccurate in their estimation of the financial impact of the proposed rule on local 

entities and businesses. (p. 6)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final Rule and 

Technical Support Document. 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 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.

The scope of regulatory jurisdiction for Clean Water Act purposes in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

part because the rule puts important qualifiers on some existing categories such as 

tributaries. States and tribes retain full authority to implement their own programs 

to more broadly and more fully protect the waters under their jurisdiction. See 

Preamble to the Final Rule Sections III and IV.

This action does not contain any unfunded mandate under the regulatory provisions 

of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-

1538), and does not significantly or uniquely affect small governments. The action 

imposes no enforceable duty on any state, local, or tribal governments, or the 

private sector, and does not contain regulatory requirements that might 

significantly or uniquely affect small governments.
Clean Water Rule Response to Comments – Topic 1: General Comments 

246

Kansas Cooperative Council (Doc. #14938)

1.346 The proposed rule is also flawed from a procedural aspect. Contrary to the CWA, the 

agencies advanced the rule without adequate consultation with the states. The CWA 

articulates Congress’ clear intention that state authority over certain lands and water be 

respected as the act notes agencies must “recognize, preserve, and protect the primary 

responsibilities and rights of State...to plan the development and use...of land and water 

resources...” Failure to enter into meaningful dialogue with states in preparation of the 

proposed rule is just one more reason why the agencies must with withdraw this proposal. 

(p. 2)

Agency Response: The agencies have finalized the rule. See Response to 

Comments Compendium Topic 13 - Process Concerns and Administrative 

Procedures.

In keeping with the spirit of Executive Order 13132 and consistent with the 

agencies’ policy to promote communications with state and local governments, the 

agencies consulted with state and local officials throughout the process and solicited 

their comments on the proposed action and on the development of the rule. 

For this rule state and local governments were consulted at the onset of rule 

development in 2011, and following the publication of the proposed rule in 2014. In 

addition to engaging key organizations under federalism, the agencies sought 

feedback on this rule from a broad audience of stakeholders through extensive 

outreach to numerous state and local government organizations. 

The agencies have included a detailed narrative of intergovernmental concerns 

raised during the course of the rule’s development and a description of the agencies’ 

efforts to address them with the final rule. [See Final Summary of the Discretionary 

Consultation and Outreach to State, Local, and County Governments for the Revised 

Definition of Waters of the United States which is available in the docket for this 

rule.] The agencies will continue to work closely with the states to implement the 

final rule. 

1.347 We believe that consultation with the states would have revealed to the agencies that 

states are having much success in addressing water quality initiatives through publicprivate partnership. This is certainly the case in Kansas. Instead, the over-reaching aspect 

of the proposed rule and the potential for additional federal intervention under the 

proposal threatens to disrupt cooperative efforts between landowners/businesses and the 

state entities charged with protecting water resources. (p. 2)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 
Clean Water Rule Response to Comments – Topic 1: General Comments 

247

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document.

In keeping with the spirit of Executive Order 13132 and consistent with the 

agencies’ policy to promote communications with state and local governments, the 

agencies consulted with state and local officials throughout the process and solicited 

their comments on the proposed action and on the development of the rule. 

For this rule state and local governments were consulted at the onset of rule 

development in 2011, and following the publication of the proposed rule in 2014. In 

addition to engaging key organizations under federalism, the agencies sought 

feedback on this rule from a broad audience of stakeholders through extensive 

outreach to numerous state and local government organizations. 

The agencies have included a detailed narrative of intergovernmental concerns 

raised during the course of the rule’s development and a description of the agencies’ 

efforts to address them with the final rule. [See Final Summary of the Discretionary 

Consultation and Outreach to State, Local, and County Governments for the Revised 

Definition of Waters of the United States which is available in the docket for this 

rule.] The agencies will continue to work closely with the states to implement the 

final rule. 

Tennessee Farm Bureau Federation (Doc. #14978)

1.348 Tennessee’s Water Quality Control Act of 1977 has evolved over the years and it works 

for Tennesseans. We have a statute, regulations, and guidance that is understood by 

farmers, business, and industry. Tennessee has been successful in restoring water back to 

functional status and meeting designated users through a variety of means. Tennessee’s 

Board of Water Quality, Oil and Gas is made up of Tennesseans representing business, 

agriculture, industry, local government, and conservation interests. They set the standards 

for our state and focus our state resources and personnel toward protecting waters with a 

use. This proposal upends much work by our legislature, the Tennessee Department of 

Environment and Conservation, and the regulated community to protect Tennessee’s 

waters while simultaneously reducing regulatory burdens and promoting economic 

development. (p. 2-3)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 
Clean Water Rule Response to Comments – Topic 1: General Comments 

248

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document.

Oregon Forest Industries Council (Doc. #15028)

1.349 Oregon has a sophisticated clean water program that, in many ways, mirrors the federal 

program. The difference is that Oregon’s regulatory reach extends to “waters of the state” 

beyond the reach of federal regulators. It is not true that, without federal regulation, 

waters will be compromised or left unregulated. To the contrary, Oregon has a strong 

interest in maintaining clean water, as evidenced by its extensive state regulatory 

program. Even were it within the Agencies’ statutory authority under the federal CWA, 

expanding federal jurisdiction to include such things as distant “tributaries,” all 

“adjacent” waters, and non-tidal ditches, would be duplicative of Oregon’s state program 

and, ultimately, counterproductive. (p. 5)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document.

Colorado Cattlemen's Association (Doc. #15068)

1.350 Colorado has its own system of water law that governs public and private water rights 

within their borders and has adopted a prior appropriation doctrine (prior appropriation), 

or time, first in right, regarding surface water and many have, to some degree, integrated 

this approach into their system of ground water law. Under the prior appropriation 

doctrine, water rights are obtained by diverting water for "beneficial use", which can 

include a wide variety of uses such as domestic use, irrigation, stock-watering, 

manufacturing, mining, hydropower, municipal use, agriculture, recreation, fish and 

wildlife, among others, depending on state law. The extent of the water right is 

determined by the amount of water diverted and put to beneficial use. Any imposition by 

the federal government that infringes on property rights based on settled state water law 

would constitute takings under the Fifth Amendment to the United States Constitution 

and would require just compensation. (p. 8)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. Section 101(g) of the CWA states, “It is the policy of 

Congress that the authority of each State to allocate quantities of its water within its 

jurisdiction shall not be superseded, abrogated or otherwise impaired by [the CWA 

and] that nothing in [the CWA] shall be construed to supersede or abrogate rights 
Clean Water Rule Response to Comments – Topic 1: General Comments 

249

to quantities of water which have been established by any State.” Similarly, Section 

510(2) provides that nothing in the Act shall “be construed as impairing or in any 

manner affecting any right or jurisdiction of the States with respect to the waters . . 

. of such States.” The rule is entirely consistent with these policies. The rule does 

not impact or diminish State authorities to allocate water rights or to manage their 

water resources. Nor does the rule alter the CWA’s underlying regulatory process. 

Having been enacted with the objective of restoring and maintaining the chemical, 

physical, and biological integrity of our nation’s waters, the CWA serves to protect 

water quality. Neither the CWA nor the rule impairs the authorities of States to 

allocate quantities of water. Instead, the CWA and the rule serve to enhance the 

quality of the water that the States allocate. See Technical Support Document 

Section I for further discussion including regarding Jefferson County v. Washington 

Dept. of Ecology, 511 U.S. 700 (1994). See also summary response below.

Florida Fruit & Vegetable Association (Doc. #15069)

1.351 Due to the fact that FDEP’s water quality program has already been deemed consistent 

with the CWA, there is no reason to add another redundant layer of cost-prohibitive, 

Federal permitting requirements that will result in absolutely no environmental benefit. 

There is great concern over how Florida’s existing water quality programs will be 

impacted should the proposed WOTUS rule be implemented. As previously mentioned, 

when the EPA tried to promulgate unreasonable, blanket NNC rules within the state, our 

water quality programs were detrimentally affected, impeding TMDL development and 

BMAP implementation. (p. 4-5)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document.

Oklahoma Cattlemen's Association (Doc. #15176)

1.352 The rule also seems to ignore the significance of state's jurisdiction and local efforts to 

maintain and improve water quality. Note this statement posted by the Oklahoma 

Conservation Commission in March of this year, "The U.S. Environmental Protection 

Agency (EPA) has removed four Oklahoma streams from its impaired water or 303(d) 

list, state conservation leaders announced at a press conference at the Capitol on Feb 2. 

Efforts by farmers, ranchers and other landowners, in cooperation with the Oklahoma 

Conservation Partnership to address nonpoint source pollution through voluntary, 
Clean Water Rule Response to Comments – Topic 1: General Comments 

250

locally-led means has resulted in the streams being removed from a federal list of 

impaired water bodies and in even more streams never going on this list, they (EPA) 

said." The agency itself acknowledged the positive and good work done by Oklahomans! 

Why then should a federal proposed rule that is vague and over-reaching be needed? (p. 

2)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document.

Great Lakes Timber Professionals Association (Doc. #15219)

1.353 Healthy forests and sustainable forest management are crucial in providing clean water 

here in our states. Michigan and Wisconsin can better manage and protect our water 

resources at the state and local level just as we have proven to be able to better manage 

our forest resources at the state and local level. Federal level authority is not the answer 

when it comes to natural resource management issues. Any federal oversight of water 

resources should be strictly limited to waters supporting interstate commerce. (p. 2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Responses, Preamble to the Final Rule 

Sections III and IV and Technical Support Document.

Missouri Farm Bureau Federation (Doc. #15224)

1.354 We acknowledge that EPA has ultimate approval authority over various state 

management plans, water quality standards, and total maximum daily loads. 

Fundamentally, however, the regulation of state land and water resources resides with 

state regulatory authorities, not with the federal government. The proposed federal rule 

overrides state jurisdiction and imposes extreme standards in complete disregard for 

efforts successfully conducted by state regulatory authorities and stakeholders in 

Missouri and other states to advance water quality goals. (p. 6)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 
Clean Water Rule Response to Comments – Topic 1: General Comments 

251

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document.

Beet Sugar Development Foundation (Doc. #15368)

1.355 The proposed rule would directly extend federal jurisdiction to regulatory areas reserved 

for the states, such as land and water use.95 As discussed above, the Supreme Court has 

twice rejected such jurisdictional extensions under the CWA. If enacted, the proposed 

rule faces the same legal flaw encountered in SWANCC and Rapanos—expanding 

jurisdiction in direct contradiction to the CWA’s recognition of state regulatory power. 

(p. 9)

Agency Response: The rule does not regulate land use. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. The scope of 

regulatory jurisdiction for Clean Water Act purposes in this rule is narrower than 

that under the existing regulation. Fewer waters will be defined as “waters of the 

United States” under the rule than under the existing regulations, in part because 

the rule puts important qualifiers on some existing categories such as tributaries. 

States and tribes retain full authority to implement their own programs to more 

broadly and more fully protect the waters under their jurisdiction. See Summary 

Response, Preamble to the Final Rule Sections III and IV and Technical Support 

Document.

Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America (Doc. #15440)

1.356 By expanding their regulatory control over more waters by, e.g., using the subjective 

regulatory standard of having a “significant nexus” between intermittent and isolated 

water bodies and intrastate wetlands and traditional navigable waters, as well as by 

 

95 Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs (SWANCC), 531 U.S. 159, 174 (2001) (citing 

Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 40, 44 (1994) (“[R]egulation of land use [is] a function 

traditionally performed by local governments.”)); see also Rapanos, 547 U.S. at 738 (Scalia, J., plurality opinion) 

(“Regulation of land use, as through the issuance of the development permits sought by petitioners in both of these 

cases, is a quintessential state and local power.”).
Clean Water Rule Response to Comments – Topic 1: General Comments 

252

explicitly including tributaries dissected by natural breaks such as wetlands, EPA et al. 

are directly infringing on the rights of States to self-governance.

Similar to the discussion in Section II. A. above, EPA et al. provide no evidence that the 

respective States in the United States are not already restoring and maintaining the 

chemical, physical and biological integrity of some if not most of the waters within their 

borders or that federal control over the waters currently under state jurisdiction is needed 

to restore and maintain such integrity even in instances where a state may have identified 

a contamination problem in need of mitigation and future prevention. Again, it simply is 

not self-evident that EPA et al.’s proposal to greatly expand its jurisdiction, including 

jurisdiction over waters currently under the jurisdiction of a particular State, would have 

any effect at all on improving the integrity of the waters in that State. (p. 4)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document Sections I, II, VII, VIII and IX. See 

also Response to Comments Compendium Topic 5 – Significant Nexus. The final 

rule does not establish any new regulatory requirements. Instead, it is a definitional 

rule that clarifies the scope of “waters of the United States” consistent with the 

CWA, Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs

or to other state or tribal programs managing these resources. The scope of 

regulatory jurisdiction for Clean Water Act purposes in this rule is narrower than 

that under the existing regulation. Fewer waters will be defined as “waters of the 

United States” under the rule than under the existing regulations, in part because 

the rule puts important qualifiers on some existing categories such as tributaries. 

States and tribes retain full authority to implement their own programs to more 

broadly and more fully protect the waters under their jurisdiction. 

Iberia Parish Farm Bureau (Doc. #15585)

1.357 We are deeply concerned that this rule undermines the historically successful federalstate cooperation in the administration of the Clean Water Act. The waters this proposed 

rule seeks to cover through federal jurisdiction are not unprotected. They are currently 

protected as state waters. Surely, a better approach to ensuring these isolated and 

intrastate waters are adequately protected would be for EPA and the Corps to work with 

states to improve their water quality programs. Assertion of federal jurisdiction over 

these waters should be a last resort and not the first course of action. (p. 2)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 
Clean Water Rule Response to Comments – Topic 1: General Comments 

253

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document.

Riverport Levee District (Doc. #15655)

1.358 Efforts to analyze application of the proposed rule have found that it will significantly 

expand jurisdiction, and in some areas the amount of jurisdictional waters (river miles 

and number of ponds) may more than double. This Federal overreach by the Agencies 

will usurp any meaningful authoritative role for the states and put in place an approach 

that can be used to exercise Federal control over any and all waters, including those that 

have been traditionally identified and regulated as "Waters of the State." (p. 4)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document.

Wisconsin Farm Bureau Federation (Doc. #16166)

1.359 Under the proposal, many current Wisconsin “Waters of the State” would no longer by 

regulated by the Wisconsin Department of Natural Resources (DNR), but instead would 

be considered a “Water of the United States” falling under the jurisdiction of the EPA or 

Corps. This change does nothing to better manage or protect our natural resources. This is 

solely a change in jurisdiction which is unnecessary, duplicative and adds an additional 

layer of federal bureaucracy to resource management that is already being well regulated 

by our state agency.

Wisconsin State Statute 283.01(20) defines “Waters of the State” mean[ing] those 

portions of Lake Michigan and Lake Superior within the boundaries of Wisconsin, all 

lakes, bays , rivers, streams, springs, ponds, wells, impounding reservoirs, marshes, 

water courses, drainage systems and other surface water or groundwater, natural or 

artificial, public or private within the state or under its jurisdiction, except those waters 

which are entirely confined and retained completely upon property of a person.

This current state definition addresses many of the changes that are proposed in the new 

definition of “Waters of the United States” by the EPA and Corps. In Wisconsin, this 

authority is already delegated to the DNR. Therefore, the only significant change for the 

EPA and Corps is control over the jurisdiction of water regulations and enforcement. 

What it changes for farmers and landowners is an increased exposure to additional 

federal regulation, enforcement and oversight. It would also expose farmers to 

unwarranted and unfounded citizen lawsuits as allowed under the Clean Water Act. (p. 2)
Clean Water Rule Response to Comments – Topic 1: General Comments 

254

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document.

Wisconsin County Forests Association (Doc. #16341)

1.360 We believe the proposed definition, through expansion of federal jurisdiction, defies 

constitutional and lawful limits established by Congress and recognized by the U.S. 

Supreme Court. It is fundamentally wrong for a federal agency’s authority to supersede 

that traditionally and intentionally granted to state and local governments who are 

certainly more attuned to their communities’ natural resource issues. (p. 1)

Agency Response: See Preamble to the Final Rule and Technical Support 

Document Section I.

Kansas Corn Growers Association (Doc. #16398)

1.361 Following the withdrawal of the 2000 proposal, the State of Kansas adopted legislation in 

2001 defining a classified stream to apply the CWA water quality standards and an 

implementation plan for our state. Since the adoption of the 2001 legislation, Kansas has 

spent over four million dollars to conduct use attainability analyses on 2,222 stream 

segments allowing the state to focus resources on areas which are truly waters of the U.S. 

EPA approved the Kansas Water Quality Standards in 2005 with updates through 2011, 

and therefore approved this system of implementation of the Clean Water Act. As with 

any regulatory effort, this process has not always been popular with certain stakeholders 

at times, but we believe it has been carried out as efficiently and effectively as possible.

Kansans are proud of the carefully constructed framework that led to science-based field 

work conducted by our Kansas government and regulatory agencies to carry out the goals 

of the Clean Water Act. EPA asked for comments on approaches that would “save time 

and money and improve efficiency for regulators and the regulated community in 

determining which waters are subject to CWA jurisdiction.” We ask EPA to understand 

that our state is already doing this work and is committed to carrying out the intent of the 

Clean Water Act. It is misguided for a federal regulatory agency override these state 

efforts for the sake of “efficiency”. Kansas has boots on the ground to make these 

determinations, something that cannot be done from a desk in Washington, DC. (p. 2)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

255

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document.

Lake DeSmet Conservation District (Doc. #16441)

1.362 The Supreme Court, to the Association understanding, did not condition federal 

jurisdiction based on whether EPA or a Law Institute felt a state did or didn’t have 

adequate regulatory authorities. The jurisdiction issue is unrelated to a state’s current 

regulatory scheme and should be based on whether a specific water has a “significant 

nexus” or impact to a “traditionally navigable water”. Not on whether the agency felt that 

regulatory controls in the state are adequate or not. How to regulate and protect nonjurisdictional waters is an authority retained by the respective state. (p. 9)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document.

Western Landowners Alliance (Doc. #16553)

1.363 The Agencies should assure that individual states are prepared and not over-burdened as 

a result of the Proposed Rule, and that this proposal truly improves resource protection. 

The Agencies should provide assistance and resources for each state to assess their own 

statutory authorities over waters and wetlands, and whether this Rule or a related one 

affects or could improve protections of these resources in these states. For example, 

Wisconsin feels they are completely capable of protecting their resources irrespective of 

where CWA jurisdiction extends, while some feel Idaho needs more encouragement to 

protect water quality. Each state must assess their jurisdiction and its relation to the 

WOTUS definition and related protections. (p. 2)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 
Clean Water Rule Response to Comments – Topic 1: General Comments 

256

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document.

Ohio Farm Bureau Federation (Doc. #16609)

1.364 States, not the Federal government, have the lead for advancing water quality through the 

CWA and more importantly through state-local-private sector partnerships. Section 

101(b) of the CWA clearly states that, "it is the policy of the Congress to recognize, 

preserve, and protect the primary responsibilities and rights of States to prevent, reduce, 

and eliminate pollution, to plan the development and use (including restoration, 

preservation and enhancement) of land and water resources...". 

In Ohio, successful water quality management efforts have been developed and are being 

implemented by engaged stakeholders who have close relationships with state and local 

officials, not by Federally-prescribed directives. State and local officials have been left 

out of the drafting of the proposed rule, a rule which if implemented, will impede 

ongoing efforts to advance innovative, state-based water quality initiatives, such as 

Ohio's holistic watershed perspective in water resource management. the State of Ohio 

Nutrient Reduction Strategy, recently passed legislation (S8 150) to require state 

certification for agricultural fertilizer application, the Director's Agricultural Nutrients 

and Water Quality Working Group and on the ground edge of field research to discover 

and evaluate management measures that help reduce the off-site transport of nutrients. (p. 

1-2)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document.
Clean Water Rule Response to Comments – Topic 1: General Comments 

257

Montana Water Resources Association, (Doc. #16889)

1.365 MWRA expresses concern and opposes implementation of the proposed rule. MWRA 

opposition is predicated upon adverse implications to private property rights, confusing 

and costly regulatory burdens that will negatively impact agricultural producers and the 

overall economy of the state, as well as circumvention of authority and rights of the state 

of Montana. The rules, including assertions and provisions as proposed, ignore 

Congressional intent regarding an appropriate balance between state and federal 

jurisdiction and are an over reach of the federal jurisdiction authorized within the Clean 

Water Act. (p. 1)

Agency Response: See Summary Responses, Preamble to the Final Rule and 

Technical Support Document. Regarding federalism concerns, Technical Support 

Document Section I.

Montana Stockgrowers Association (Doc. #16937)

1.366 Our organizations have strong concerns that this proposal, much like the Migratory Bird 

Rule at issue in SWANCC, goes too far in “impinging” on State’s rights when it comes to 

regulation of water and land use. Any proposal of this nature must not infringe upon the 

rights of states to allocate quantities of water and the rights of individuals, acquired under 

state law, to use that water.” (p. 3)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. Section 101(g) of the CWA states, “It is the policy of 

Congress that the authority of each State to allocate quantities of its water within its 

jurisdiction shall not be superseded, abrogated or otherwise impaired by [the CWA 

and] that nothing in [the CWA] shall be construed to supersede or abrogate rights 

to quantities of water which have been established by any State.” Similarly, Section 

510(2) provides that nothing in the Act shall “be construed as impairing or in any 

manner affecting any right or jurisdiction of the States with respect to the waters . . 

. of such States.” The rule is entirely consistent with these policies. The rule does 

not impact or diminish State authorities to allocate water rights or to manage their 

water resources. Nor does the rule alter the CWA’s underlying regulatory process. 

Having been enacted with the objective of restoring and maintaining the chemical, 

physical, and biological integrity of our nation’s waters, the CWA serves to protect 

water quality. Neither the CWA nor the rule impairs the authorities of States to 

allocate quantities of water. Instead, the CWA and the rule serve to enhance the 

quality of the water that the States allocate. See Technical Support Document 

Section I for further discussion including regarding Jefferson County v. Washington 

Dept. of Ecology, 511 U.S. 700 (1994).

Greenfields Irrigation District (Doc. #17022)

1.367 The uncertainty created by the new rules infringes on the rights and the responsibilities of 

the States to oversee the management and use of lands found within their jurisdictions. 

The CWA itself states that "[i]t is the policy of Congress to recognize, preserve, and 

protect the primary responsibilities and rights of the States to prevent, reduce, and 

eliminate pollution . . ." See 33 U.S.C. Sec. 1251(b). The obvious reason for this federal 

deference to the States is that it is impossible and improper to establish a single set of 
Clean Water Rule Response to Comments – Topic 1: General Comments 

258

federal regulations for land use nationwide. Instead, the wide variety of geographical 

features, climates, and terrain that exists across the nation requires State and local 

government regulation, where the legislators and regulators have a much better and more 

intimate knowledge and understanding of the features of their State and locales. (p. 2)

Agency Response: The rule does not regulate land use. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. See Summary 

Response, Preamble to the Final rule and Technical Support Document. Regarding 

federalism concerns, see Technical Support Document Section I.

Iowa Soybean Association (Doc. #17175)

1.368 We believe this rule supersedes states rights to plan the development and use of land and 

water resources, and will result in lawsuits to attempt to clarify the rule, negatively 

impacting both a farmers ability to make a living and water quality efforts in the 

landscape. (p. 2)

Agency Response: The rule does not regulate land use. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. The scope of 

regulatory jurisdiction for Clean Water Act purposes in this rule is narrower than 

that under the existing regulation. Fewer waters will be defined as “waters of the 

United States” under the rule than under the existing regulations, in part because 

the rule puts important qualifiers on some existing categories such as tributaries. 

States and tribes retain full authority to implement their own programs to more 

broadly and more fully protect the waters under their jurisdiction. See Summary 

Response, Preamble to the Final Rule Sections III and IV and Technical Support 

Document. Regarding federalism concerns, see Technical Support Document 

Section I.

Earth City Levee District (Doc. #18910)

1.369 It is to be expected that data in existing records would be what was relevant under the 

existing rule, rather than that required for a determination under the proposed rule. 

Efforts to analyze application of the proposed rule have found that it will significantly 

expand jurisdiction, and in some areas the amount of jurisdictional waters (river miles 

and number of ponds) may more than double. This Federal overreach by the Agencies 

will usurp any meaningful authoritative role for the states and put in place an approach 

that can be used to exercise Federal control over any and all waters, including those that 

have been traditionally identified and regulated as "Waters of the State." (p. 4)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 
Clean Water Rule Response to Comments – Topic 1: General Comments 

259

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. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. Regarding federalism 

concerns, seeTechnical Support Document Section I.

Iowa Poultry Association (Doc. #19589)

1.370 One of the underlying premises in the CWA is a partnership between the federal 

government and state governments to protect and preserve water resources.96 The 

proposed rule completely undermines the intention of the CWA that the federal 

government work with the states by taking away most, if not all, of the state’s jurisdiction 

over waters. The proposed rule is all encompassing, including a catch all jurisdictional 

provision of “on a case-specific basis, other waters, including wetlands, provided that 

those waters alone, or in combination with other similarly situated waters, including 

wetlands, located in the same region, have a significant nexus to a traditional navigable 

water, interstate water or the territorial seas.” While EPA and the Corp have been unable 

to provide any guidance as to what waters this catch all provision may include, it seems 

to include most, if not all of the waters, including those that have traditionally not fallen 

under the jurisdiction of the CWA and instead left to the states. The proposed rule 

provides no clear jurisdictional limits to determine where the EPA and Corps’ jurisdiction 

ends and the state’s jurisdiction starts, stripping authority specifically provided to the 

states by Congress in enacting the CWA. (p. 2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. See also Response to 

Comments Compendium 5 – Significant Nexus. Regarding federalism concerns, 

seeTechnical Support Document Section I.

New Mexico Cattle Growers Association et al. (Doc. #19595)

1.371 As noted by the Court in both SWANCC and Rapanos, the impingement by the federal 

government on the regulatory and oversight affairs traditionally reserved to the States 

creates a constitutional concern that usually requires a clear authorization from Congress. 

Id. at 172–74; Rapanos, 547 U.S. at 738. The CWA is devoid of any such authorization 

and, therefore, the Proposed Rule’s implication of federalism concerns and traditional 

 

96 It is the “policy of Congress to recognize, preserve and protect the primary responsibilities and rights of States to

prevent, reduce and eliminate pollution...” 33 U.S.C. §1251
Clean Water Rule Response to Comments – Topic 1: General Comments 

260

state authority should prompt the re-development of a rule/definition that stays within the 

confines of the authority granted to the agencies by Congress under the Act. (p. 9) 

Agency Response: The agencies have finalized the rule. See Response to 

Comments Compendium Topic 13 – Process Concerns and Administrative 

Procedures. Regarding federalism concerns, see Technical Support Document 

Section I. See also Summary Response and Preamble to the Final rule.

Clearwater County Highway Department, Minnesota (Doc. #1762)

1.372 We are all for clean waters and protecting the environment. I myself have worked as an 

environmental engineer prior to becoming a County Engineer, so I understand the 

environmental issues and the related cost to the environment, industry, and the public. 

However, I am concerned with over regulation. It is not that I don't think permits are 

necessary, just that we are being over regulated and having to jump through hoops for 

various regulators to get permits to address the same issue. For an example, a typical road 

reconstruction project, we obtain water related permits from the Minnesota Pollution 

Control Agency for a NPDES permit, the Minnesota Department of Natural Resources 

for protected waters, Clearwater County who implements the Minnesota Wetland 

Conservation Act locally, the Minnesota Board of Water and Soil Resources who 

administers the Minnesota Wetland Conservation Act statewide, the U.S. Corps of 

Engineers for discharge of dredged or fill materials, and local watershed districts. I don't 

understand why one agency cannot address all water related permits.

It appears to me that the proposed rules will greatly expand the Corps of Engineers 

jurisdiction way beyond what the federal laws where intended to do. The rules should be 

changed for the Corps of Engineers to only regulate traditional navigable waters and 

leave the remaining wetland impacts to other agencies to regulate. This would prevent 

some overlapping of water related permits. We have other agencies that regulate waters 

that are above and that drain into navigable waters. The EPA regulates runoff from our 

construction sites through the authority they gave to the MPCA to issue NPDES permits, 

our local LGU and various state agencies regulate the Wetland Conservation Act which is 

stricter than the federal regulations. I believe the Corp of Engineers provide an important 

role in keeping our nations navigable waters in a navigable condition for commerce and 

that the EPA provides an important role in protecting our nations waters in keeping our 

waters clean. It just does not make sense to me to expand the Corps of Engineers role 

when others are addressing the all-important water quality impacts to our waters. (p. 1-2)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 
Clean Water Rule Response to Comments – Topic 1: General Comments 

261

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. Regarding federalism 

concerns, see Technical Support Document Section I.

Minnesota County Engineers Association (Doc. #6996.2)

1.373 We highly value and certainly recognize the need to preserve, protect and where feasible 

enhance the waters of the United States. Although Minnesota has three very rigorous and 

somewhat redundant State programs protecting these waters (MnDNR Public Waters, 

MnBWSR Wetland Conservation Act, MPCA Storm Water Discharge), we know some 

States do not and see the wisdom in having a program to ensure all the waters of the 

United States are protected. (p. 1)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document.

New Salem Township (Doc. #8365)

1.374 Statewide permits for certain construction and maintenance activities within 'waters of 

Illinois' will no longer be available for use by townships. (p. 2)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. See Summary Response, Preamble to the Final rule and 

Technical Support Document.

North Dakota Soybean Growers Association (Doc. #14121)

1.375 The ND Soybean Growers Association strongly believes that the agencies’ proposed 

rules are an unlawful intrusion on state jurisdiction that was intended by Congress in the 

original Act and subsequent revisions. Strong evidence exists that Congress has 

adamantly resisted proposed changes for the CWA that are similar to the agencies’ 

overreaching rulemaking proposal. (p. 2)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 
Clean Water Rule Response to Comments – Topic 1: General Comments 

262

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. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. Regarding federalism 

concerns, Technical Support Document Section I.

Texas Farm Bureau (Doc. #14129)

1.376 Justification for the proposed rule also fails to acknowledge that practically every state 

already has state programs to address discharges to those waters not currently regulated 

by the Clean Water Act. As such, the stated benefit of the proposed rule is inflated. (p. 2)

Agency Response: See Summary Response, Preamble to the Final Rule, and

Technical Support Document.

Union Pacific Railroad Company (Doc. #15254)

1.377 The Proposed Rule also violates Constitutional limitations and protections by 

encroaching on the traditional power of the States to regulate land and water, once again 

ignoring the directives of the Supreme Court in SWANCC and Rapanos. The CWA 

statute itself acknowledges the States’ primary role and provides as one of its objectives: 

[T]o recognize, preserve and protect the primary responsibilities and rights of States to 

prevent, reduce, and eliminate pollution, to plan the development and use (including 

restoration, preservation and enhancement) of land and water resources. 

See 33 U.S.C. §1251(b). As the Supreme Court observed, “[w]here an administrative 

interpretation of a statute invokes the outer limits of Congress’ power, we expect a clear 

indication that Congress intended that result,” especially “where the administrative 

interpretation alters the federal-state framework by permitting federal encroachment upon 

a traditional state power.” SWANCC, 531 U.S. at 172-173; see also, Rapanos, 547 U.S. 

738. The Supreme Court recognized that the Agencies’ expansive interpretation of CWA 

jurisdiction “would result in a significant impingement of the States’ traditional and 

primary power over land and water use.” SWANCC, 531 U.S. at 174; Rapanos, 547 U.S. 

at 738. There was “nothing approaching a clear statement from Congress” that it intended 

CWA jurisdiction to extend to features like the abandoned sand and gravel pit at issue in 

SWANCC. SWANCC, 531 U.S. at 174. Accordingly, the Supreme Court found that 

permitting the Agencies to assert jurisdiction over isolated ponds and mudflats was 

impermissible. Id. The Rapanos plurality similarly found that the Agencies’ expansive 

theory of jurisdiction, “rather than ‘preserv[ing] the primary rights and responsibilities of 

the States,’ would have brought virtually all ‘plan[ning] of the development and use . . . 

of land and water resources’ by the States under federal control,” which is not a 

permissible interpretation of “waters of the United States.” Rapanos, 547 U.S. at 737-38. 

The Proposed Rule’s expansive assertion of jurisdiction is equally – if not more –

impermissible than the Agencies’ assertion of jurisdiction in SWANCC and Rapanos. 

This attempt to impose control over features with little or no relationship to navigable 

waters raises serious federalism concerns. In fact, the Proposed Rule would assert federal 
Clean Water Rule Response to Comments – Topic 1: General Comments 

263

jurisdiction over essentially all intermittently wet areas, including ditches with ephemeral 

flow, depressions that collect stormwater, and industrial ponds. Such expansive 

jurisdiction is contrary to the limitations recognized in SWANCC and Rapanos, contrary 

to the objectives recognized by the CWA statute, and unlawful because it would result in 

a “significant impingement” on the States’ traditional authority over land and water use. 

(p. 10-11)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. Regarding federalism 

concerns, see Technical Support Document Section I.

Southern Illinois Power Cooperative (Doc. #15486)

1.378 The proposed rule federalizes waters and “aquatic systems” not intended to be covered by 

CWA, thereby impinging on the states’ traditional and primary power over land and 

water use. (p. 10)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. Regarding federalism 

concerns, see Technical Support Document Section I.

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

1.379 NACWA members have expressed unease that the WOTUS rulemaking may impinge on 

the states’ water quality management authority as delegated under the CWA. Differences 

in how states have implemented CWA jurisdiction in the past raise legitimate concerns 

about how the new rule will interface with existing state practice. The resulting 

perception is that the rule is, contrary to the Agencies’ claims, expanding federal 

jurisdiction. When finalizing the rule, EPA and the USACE should include clarifying 

language in the rule preamble reaffirming the authority provided to the states by the 

CWA. (p. 4-5)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 
Clean Water Rule Response to Comments – Topic 1: General Comments 

264

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. Regarding federalism 

concerns, see Technical Support Document Section I.

Western States Water Council (Doc. #9842)

1.380 WSWC Policy #369 sets forth the unanimous, consensus position of the western states 

regarding federal efforts to clarify or redefine CWA jurisdiction. The WSWC urges EPA 

and the Corps to review this policy carefully and to incorporate its recommendations. 

Specifically, the WSWC urges BPA and the Corps to ensure that the rule:

... [ ]

F. Acknowledges that states have authority pursuant to their "waters of the state" 

jurisdiction to protect excluded waters, and that excluding waters from federal 

jurisdiction does not mean that excluded waters will be exempt from regulation and 

protection. (p. 1-2)

The preamble for the rule should also recognize that the states have authority pursuant to 

their 'waters of the state" jurisdiction to protect excluded waters, and that excluding such 

waters from federal CWA jurisdiction does not mean that they will be exempt from 

regulation. The preamble should further recognize that the states are best suited to 

understand the unique aspects of their geography, hydrology, and legal frameworks, and 

are therefore in the best position to provide the most feasible and effective protections for 

excluded waters. (p. 21)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. Regarding federalism 

concerns, see Technical Support Document Section I.

Duke Energy (Doc. #13029)

1.381 Duke Energy contends that State and local governments have the most immediate 

knowledge of the geographic, hydrologic, and geomorphic conditions of the water bodies 

within their jurisdictions, and should be given the right to decide how best to regulate 

their local land and water resources. It is illogical for waters that are not currently 

determined to be “waters of the United States,” but are covered under State and local 

permitting programs, to be required to undertake duplicative, and in some cases 

contradictory, permitting actions. This is especially true for waters that may have only a 

marginal to no connection to traditional navigable waters such as ephemeral drainages, 

industrial water storage and treatment entities and isolated waters. (p. 58)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 
Clean Water Rule Response to Comments – Topic 1: General Comments 

265

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

San Juan Water Commission (Doc. #13057)

1.382 The expansion of federal jurisdiction over intrastate waters that would result from 

adoption of the WOTUS Rule will intrude on the rights of states to regulate water and 

land use activities-a duty the states are not shirking. The New Mexico Water Quality 

Control Commission and the New Mexico Environment Department regulate all state 

waters, and thus there is no need to overlay federal Clean Water Act jurisdiction to 

regulate dry arroyos, isolated private ponds, stormwater drains, irrigation ditches or other 

non-navigable intrastate waters. (p. 4)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and 

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. See Summary Response, 

Preamble to the Final Rule Sections III and IV and Technical Support Document. 

The final rule does not establish any new regulatory requirements. Instead, it is a 

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

with the CWA, Supreme Court precedent, and science. As such, there are no 

changes in the relationship between federal, state, tribal and local implementors of 

CWA programs or to other state or tribal programs managing these resources. 

Florida Power & Light Company (Doc. #13615)

1.383 The proposed rule would result in significant encroachment upon the states' traditional 

and primary jurisdiction over land and water use. In Florida, Florida law already prohibits 

discharge of pollutants into "waters of the state" without a permit. "Waters of the State" 

are broadly defined in Section 403.031(13), F.S., and encompass most water bodies not 

regulated as WOTUS. If any pollutants are discharged into waters that deviate from 

permits approved by state or local regulatory agencies, the person or entity discharging 

into a water body must provide notification to the appropriate agency/agencies about the 

unapproved discharge within a specific time frame that is included in the permit. The 

proposed rule appears to encroach on the state's primary jurisdiction over these types of 

waters. (p. 2)
Clean Water Rule Response to Comments – Topic 1: General Comments 

266

Agency Response: The rule does not regulate land use. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. The scope of 

regulatory jurisdiction for Clean Water Act purposes in this rule is narrower than 

that under the existing regulation. Fewer waters will be defined as “waters of the 

United States” under the rule than under the existing regulations, in part because 

the rule puts important qualifiers on some existing categories such as tributaries. 

States and tribes retain full authority to implement their own programs to more 

broadly and more fully protect the waters under their jurisdiction. See Summary 

Response, Preamble to the Final Rule Sections III and IV and Technical Support 

Document. Regarding federalism concerns, Technical Support Document Section I.

1.384 Likewise, the proposed rule's sweeping assertions of jurisdiction over feature s with little 

or no relationship to navigable waters (e.g., channels that infrequently host ephemeral 

flows, non navigable ditches, isolated waters) raises serious federalism concerns. As was 

the case with SWANCC and Rapanos, the proposed rule would result in authorization for 

the federal government to take control of land use and planning by extending jurisdiction 

to essentially all wet areas. Most of these areas are already regulated by States as "waters 

or the State." Many types of waters and features that were previously regulated as "waters 

of the State" or that States purposely chose not to regulate (e.g., roadside ditches,

channels with ephemeral now, arroyos, industrial ponds) would now be subject to federal 

regulation as "waters or the United States" under the proposed rule. Accordingly, the 

proposed rule's interpretation of "waters of the United States" would result in a

"significant impingement" on the States' traditional authority over land and water use. (p. 

8)

Agency Response: The rule does not regulate land use. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. The scope of 

regulatory jurisdiction for Clean Water Act purposes in this rule is narrower than 

that under the existing regulation. Fewer waters will be defined as “waters of the 

United States” under the rule than under the existing regulations, in part because 

the rule puts important qualifiers on some existing categories such as tributaries. 

States and tribes retain full authority to implement their own programs to more 

broadly and more fully protect the waters under their jurisdiction. See Summary 

Response, Preamble to the Final Rule Sections III and IV and Technical Support 

Document. Regarding federalism concerns, Technical Support Document Section I.

1.385 One issue the agencies claim drives the need for this rule is the need to broaden the 

definition of "waters of the United States" because the States cannot be relied upon to 
Clean Water Rule Response to Comments – Topic 1: General Comments 

267

"fill the gap" in CWA coverage that would result from faithful interpretation of SWANCC

and Rapanos.

97 In support of this assertion, they cite a study published by the 

Environmental Law Institute (ELI) in May 20 13, which concludes that "State laws 

imposing limitations on the authority of state agencies to protect aquatic resources are 

commonplace ... [and] the prevalence of these state constraints across the country, 

together with the reality that only half of all states already protect waters more broadly 

than is required by federal law, suggest that states are not currently “filling the gap” left 

by US Supreme Court rulings ..., and face significant obstacle s in doing so."98 The 

agencies' reliance on this concern over "filling the gap" in CWA coverage essentially 

functions as an admission that the proposed rule overreaches and seeks to take on a role 

previously considered to be solely within the authority of the States. 

EPA expresses concern that "36 states have legal limitations on their ability to fully 

protect waters that are not covered by the Clean Water Act.”99 However, the result s of 

the Study do not support ELI's conclusions. To the contrary, they indicate that whether a 

"constraint" exists under state law has little bearing on whether the State regulates waters 

that arc not regulated by the CWA.100 Indeed, roughly half of the States in each category 

(constraint or no constraint) regulate non-CWA waters. Id. If States have chose n not to 

regulate non-CWA waters, it is not necessarily because they are prevented by law. 

Rather, in many case s, the States have determined that certain non-CWA waters and 

features do not require regulation. In sum, the agencies cannot rely on claims that States 

are limited in their ability to protect non-CWA waters to justify a rulemaking that 

captures such an expansive scope of "waters of the United States." (p. 8-9)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document.

 

97 EPA, Waters of the United States Proposed Rule Website. httn://www2.cpa.gov/usw8tcrs (last visited: August 12, 

2014).

98 Environmental Law Institute, State Constraints: State-Imposed Limitations on the Authority of Agencies to 

Regulate Waters Beyond the Scope of the Federal Clean Water Act, at 2 (May 20 13), available at 

http://www.eli.org/rescarch-report/state-constraints-state-imposed-lirnitations-authority-ageneies-regulate-waters 

(hereinafter, ELI Study).

99 EPA Waters of the United States Proposed Rule Website, http://www2.epa.gov/uswaters .

100 ELI's data indicate a near-even split among States that regulate non-CWA waters and those that do not, regardless 

of whether a "constraint" exists under State law. Of the 36 jurisdictions ELI characterizes as having constraints, 17

(47%) regulate non-CWA waters and 19 (53%) do not. See ELI Study at 2, 34-35. And of the 15 States without 

constraints, eight (53%) regulate non-CWA waters and seven (47%) do not. Id.
Clean Water Rule Response to Comments – Topic 1: General Comments 

268

Nebraska Public Power District (Doc. #15126)

1.386 Expanded federal jurisdiction would pre-empt traditional state and local government 

authority over land and water use decisions and alter the balance of federal and state 

authority. (p. 3)

Agency Response: The rule does not regulate land use. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. The scope of 

regulatory jurisdiction for Clean Water Act purposes in this rule is narrower than 

that under the existing regulation. Fewer waters will be defined as “waters of the 

United States” under the rule than under the existing regulations, in part because 

the rule puts important qualifiers on some existing categories such as tributaries. 

States and tribes retain full authority to implement their own programs to more 

broadly and more fully protect the waters under their jurisdiction. See Summary 

Response, Preamble to the Final Rule Sections III and IV and Technical Support 

Document. Regarding federalism concerns, Technical Support Document Section I.

Association of Fish and Wildlife Agencies (Doc. #15399)

1.387 It appears coordination and consultation between the U.S. Environmental Protection 

Agency (EPA), the U.S. Army Corps of Engineers (ACOE), and the state agencies in 

drafting the rule was less than robust, which we find concerning, especially considering 

the diversity of state agencies and their publics which will be affected by its 

implementation. Improved coordination with state agencies, as a whole, is needed to 

ensure the rule doesn’t provide adverse unintended consequences and appropriately 

considers the states’ terminology and laws as well as the diverse geographical and 

hydrological landscapes relevant to the Definition of WOUS and the proposed rule. (p. 1)

Agency Response: See Preamble to the Final Rule and Technical Support 

Document. See also Summary Response. In keeping with the spirit of Executive 

Order 13132 and consistent with the agencies’ policy to promote communications 

with state and local governments, the agencies consulted with state and local 

officials throughout the process and solicited their comments on the proposed action 

and on the development of the rule. 

For this rule state and local governments were consulted at the onset of rule 

development in 2011, and following the publication of the proposed rule in 2014. In 

addition to engaging key organizations under federalism, the agencies sought 

feedback on this rule from a broad audience of stakeholders through extensive 

outreach to numerous state and local government organizations. 

The agencies have included a detailed narrative of intergovernmental concerns 

raised during the course of the rule’s development and a description of the agencies’ 

efforts to address them with the final rule. [See Final Summary of the Discretionary 

Consultation and Outreach to State, Local, and County Governments for the Revised 

Definition of Waters of the United States which is available in the docket for this 
Clean Water Rule Response to Comments – Topic 1: General Comments 

269

rule.] The agencies will continue to work closely with the states to implement the 

final rule. 

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

1.388 Based upon the legal analysis fully articulated in the comments of the Utility Water Act 

Group, of which We Energies is a member, a water body must meet each of the following 

prerequisites to qualify for federal jurisdiction: 

* A water that is a standing water must be relatively permanent; 

* A water that is a stream must have a continuous flow; 

* A water that is a wetland must have a continuous surface connection to an otherwise 

jurisdictional water; and 

* A water must have a significant nexus to a traditional navigable water. 

Evaluation of the above criteria for purposes of a jurisdictional determination often 

requires detailed mapping, GIS resources and field reconnaissance work. We Energies 

position is that in cases where jurisdictional determinations require an evaluation of 

whether the above prerequisites are met, the Corps and State agency field staff need to 

make a case-specific determination. Both Wisconsin and Michigan have the types of 

CWA delegated permit programs noted above. Therefore, to implement these programs, 

State agency staff, along with regional Corps staff, has the detailed knowledge of the 

local conditions required to evaluate questions related to navigation or whether a water 

body is “adjacent” or has a “significant nexus” to a water of the United States. (p. 3)

Agency Response: See Summary Response, Preamble to the Final Rule Sections 

III and IV and Technical Support Document. The final rule does not establish any 

new regulatory requirements. Instead, it is a definitional rule that clarifies the 

scope of “waters of the United States” consistent with the CWA, Supreme Court 

precedent, and science. As such, there are no changes in the relationship between 

federal, state, tribal and local implementors of CWA programs or to other state or 

tribal programs managing these resources. The scope of regulatory jurisdiction for 

Clean Water Act purposes in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. States and tribes retain 

full authority to implement their own programs to more broadly and more fully 

protect the waters under their jurisdiction.

Washington County Water Conservancy District (Doc. #15536)

1.389 The Proposed Rule is also inconsistent with the CWA policy to preserve the primary 

responsibilities and rights of states over land and water resources. The rule asserts that it 

“does not affect” this policy because states “retain full authority to implement their own 

programs to more broadly or more fully protect the waters in their state.”101 This 

 

101 Id. at 22,194.
Clean Water Rule Response to Comments – Topic 1: General Comments 

270

statement ignores the scope of Congress’ policy statement, which applies not only to the 

rights of states “to prevent, reduce, and eliminate pollution,” but also to state’s rights “to 

plan the development and use . . . of land and water resources.”102 While the Proposed 

Rule may preserve states’ rights to address pollution by adopting more stringent 

regulations than the Agencies, it does not preserve the primary authority of states to plan 

the development and use . . . of land and water resources,” as Congress intended when it 

adopted the CWA. On the contrary, the Proposed Rule asserts authority over isolated, 

non-navigable water bodies and land areas that Congress never intended to be regulated 

under the CWA. By eliminating the discretion of states to leave such areas unregulated, 

the Proposed Rule would invade the primary authority of states to plan for the 

development and use of these resources. As such, the rule is contrary to CWA as well as 

the state consultation criteria set forth in Executive Order 13132. As explained by the 

Western States Water Council and many other parties,103 the statement in the Proposed 

Rule that Executive Order 13132 “does not apply” is simply incorrect, and the Agencies’ 

“voluntary federalism consultation” regarding the Proposed Rule was clearly inadequate, 

as reflected in the surprise and concern being expressed by states across the country.104

(p. 9-10)

Agency Response: In keeping with the spirit of Executive Order 13132 and 

consistent with the agencies’ policy to promote communications with state and local 

governments, the agencies consulted with state and local officials throughout the 

process and solicited their comments on the proposed action and on the 

development of the rule. 

For this rule state and local governments were consulted at the onset of rule 

development in 2011, and following the publication of the proposed rule in 2014. In 

addition to engaging key organizations under federalism, the agencies sought 

feedback on this rule from a broad audience of stakeholders through extensive 

outreach to numerous state and local government organizations. 

The agencies have included a detailed narrative of intergovernmental concerns 

raised during the course of the rule’s development and a description of the agencies’ 

efforts to address them with the final rule. [See Final Summary of the Discretionary 

Consultation and Outreach to State, Local, and County Governments for the 

Revised Definition of Waters of the United States which is available in the docket for 

this rule.] The agencies will continue to work closely with the states to implement 

the final rule. 

The rule does not regulate land use. The final rule does not establish any new 

regulatory requirements. Instead, it is a definitional rule that clarifies the scope of 

“waters of the United States” consistent with the CWA, Supreme Court precedent, 

and science. As such, there are no changes in the relationship between federal, state, 

 

102 33 U.S.C. § 1251(b).

103 See, e.g., Potential Impacts of Proposed Changes to the Clean Water Act Jurisdictional Rule: Testimony Before

the Subcommittee on Water Resources and Environment (June 11, 2014), available at

http://transportation.house.gov/uploadedfiles/2014-06-11-strong.pdf (statement of J.D. Strong, Western Governors’

Association, Western States Water Council).

104 Proposed Rule, 79 Fed. Reg. at 22,220-21.
Clean Water Rule Response to Comments – Topic 1: General Comments 

271

tribal and local implementors of CWA programs or to other state or tribal 

programs managing these resources. The scope of regulatory jurisdiction for Clean 

Water Act purposes in this rule is narrower than that under the existing regulation. 

Fewer waters will be defined as “waters of the United States” under the rule than 

under the existing regulations, in part because the rule puts important qualifiers on 

some existing categories such as tributaries. States and tribes retain full authority 

to implement their own programs to more broadly and more fully protect the 

waters under their jurisdiction. See Summary Response, Preamble to the Final 

Rule Sections III and IV and Technical Support Document. Regarding federalism 

concerns, see Technical Support Document Section I.

Massachusetts Water Resources Authority (Doc. #15546)

1.2 Other commentators have indicated that the WOTUS rulemaking raises questions 

regarding potential federal interference with state water quantity management. As this 

rule is designed to clarify historic practice in the context of recent court rulings, EPA and 

the Corps should clearly indicate that the states have ultimate regulatory authority over 

water quantity under CWA section 101(g). (p. 4)

Agency Response: See Summary Response, Preamble to the Final Rule and 

Technical Support Document. Section 101(g) of the CWA states, “It is the policy of 

Congress that the authority of each State to allocate quantities of its water within its 

jurisdiction shall not be superseded, abrogated or otherwise impaired by [the CWA 

and] that nothing in [the CWA] shall be construed to supersede or abrogate rights 

to quantities of water which have been established by any State.” Similarly, Section 

510(2) provides that nothing in the Act shall “be construed as impairing or in any 

manner affecting any right or jurisdiction of the States with respect to the waters . . 

. of such States.” The rule is entirely consistent with these policies. The rule does 

not impact or diminish State authorities to allocate water rights or to manage their 

water resources. Nor does the rule alter the CWA’s underlying regulatory process. 

Having been enacted with the objective of restoring and maintaining the chemical, 

physical, and biological integrity of our nation’s waters, the CWA serves to protect 

water quality. Neither the CWA nor the rule impairs the authorities of States to 

allocate quantities of water. Instead, the CWA and the rule serve to enhance the 

quality of the water that the States allocate. See Technical Support Document 

Section I for further discussion including regarding Jefferson County v. Washington 

Dept. of Ecology, 511 U.S. 700 (1994).

Irrigation & Electrical Districts' Association (Doc. #15832)

1.390 Congress assumed that the states had that competence and would employ it and the states 

have done so. 

Arizona is a prime example. When we initially legislated our State Clean Water Act, we 

inserted two definitions that aptly demonstrate the ability of the State of Arizona to deal 

with the subject. The first is the federal definition of navigable waters as being the Waters 

of the United States. Our initial permit program was based on mirroring that definition as 

to what would initially be regulated in Arizona and would allow Arizona to achieve 

delegation of the National Pollutant Discharge Elimination System (NPDES) program. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

272

The second definition was waters of the state. Waters of the state are: “all waters within 

the jurisdiction of this state including all perennial or intermittent streams, lakes, ponds, 

impounding reservoirs, marshes, watercourses, waterways, wells, aquifers, springs, 

irrigation systems, drainage systems and other bodies or accumulations of surface, 

underground, natural, artificial, public or private water situated wholly or partly in or 

bordering on the state.” From this second definition, you can easily see that Arizona is 

prepared and has been for nearly four decades ready, willing and able to regulate water 

quality issues beyond the reach of the federal permit program as it determines is 

necessary. We are not alone. This is exactly the federal state partnership that Congress 

envisioned in passing the law in the first place. And the subsequent amendments to the 

Act have not in any way altered that assumption. (p. 3)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. Regarding federalism 

concerns, Technical Support Document Section I.

Association of Electronic Companies of Texas, Inc. (Doc. #16433)

1.391 Because the Proposed Rule would place virtually all planning of the development and use 

of land and water resources under federal control,105 the Proposed Rule goes against the 

express intent CWA, which EPA and the Corps recognize, as indicated by their following 

statement in the preamble to the Proposed Rule: 

Section 101(b) of the C\VA states that it is Congressional policy to preserve the primary 

responsibilities and rights of states to prevent, reduce, and eliminate pollution, to plan the 

development and use of land and water resources, and to consult with the Administrator 

with respect to the exercise of the Administrator' s authority under the CWA.... 106

Although EPA and the Corps recognize that Congress intended for the CWA to leave to 

the states the primary responsibility to protect land and water resources, the Proposed 

Rule would have the opposite effect of giving the EPA and the Corps the primary 

responsibility to protect land and water resources. (p. 12)

 

105 !d., at 737. (emphasis not added)(internal citations omitted)

106 79 Fed.Reg. 22 194; see also !d., at 722-23, citing 33 V .S.C. § 1251(b) ("It is the policy of Congress to 

recognize, preserve, and protect the primary responsibilities and rights of states to prevent, reduce, and protect the 

primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and 

use (including restoration, preservation, and enhancement) of land and water resources.").
Clean Water Rule Response to Comments – Topic 1: General Comments 

273

Agency Response: The rule does not regulate land use. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. The scope of 

regulatory jurisdiction for Clean Water Act purposes in this rule is narrower than 

that under the existing regulation. Fewer waters will be defined as “waters of the 

United States” under the rule than under the existing regulations, in part because 

the rule puts important qualifiers on some existing categories such as tributaries. 

States and tribes retain full authority to implement their own programs to more 

broadly and more fully protect the waters under their jurisdiction. See Summary 

Response, Preamble to the Final Rule Sections III and IV and Technical Support 

Document. Regarding federalism concerns, see Technical Support Document 

Section I.

Battelle Energy Alliance, LLC (Doc. #16448)

1.392 States have traditionally had the right to regulate the allocation, management, and use of 

water. The proposed rule interferes with that right by placing a myriad of “other waters” 

under CWA jurisdiction. Additionally, the rule fails to acknowledge how the waters may 

already protected by other regulations. The biological, ecological, and chemical integrity 

of navigable water may be protected under other laws such as the Safe Drinking Water 

Act, the Comprehensive Environmental Response, Compensation, and Liability Act, state 

water quality standards, and other water laws. An acknowledgement and discussion of 

other legal protections as well as state sovereignty would better inform the proposed rule 

and help to alleviate the fears that the proposed rule is a needless and wholesale extension 

of CWA jurisdiction. (p. 7-8)

Agency Response: Regarding CWA legal authority, see Technical Support 

Document Section I. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. Regarding federalism 

concerns, Technical Support Document Section I.

Section 101(g) of the CWA states, “It is the policy of Congress that the authority of 

each State to allocate quantities of its water within its jurisdiction shall not be 

superseded, abrogated or otherwise impaired by [the CWA and] that nothing in [the 

CWA] shall be construed to supersede or abrogate rights to quantities of water 

which have been established by any State.” Similarly, Section 510(2) provides that 

nothing in the Act shall “be construed as impairing or in any manner affecting any 

right or jurisdiction of the States with respect to the waters . . . of such States.” The 

rule is entirely consistent with these policies. The rule does not impact or diminish 
Clean Water Rule Response to Comments – Topic 1: General Comments 

274

State authorities to allocate water rights or to manage their water resources. Nor 

does the rule alter the CWA’s underlying regulatory process. Having been enacted 

with the objective of restoring and maintaining the chemical, physical, and 

biological integrity of our nation’s waters, the CWA serves to protect water quality. 

Neither the CWA nor the rule impairs the authorities of States to allocate quantities 

of water. Instead, the CWA and the rule serve to enhance the quality of the water 

that the States allocate. See Technical Support Document Section I for further 

discussion including regarding Jefferson County v. Washington Dept. of Ecology, 511 

U.S. 700 (1994).

American Public Gas Association (Doc. #18862)

1.393 The proposed rule increases the number of water features that would be subjected to 

federal permitting standards. These water features have been traditionally regulated at the 

local level. This system of shared responsibility, consistent with basic principles of

federalism,107 has resulted in effective environmental protection without imposing 

unnecessary federal controls (or expending federal dollars) where they are not needed. 

APGA believes that the Agencies should focus on maintaining a proper balance between 

Federal and State oversight of nonnavigable waters ...

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. Regarding federalism 

concerns, see Technical Support Document Section I.

Hickory Underground Water District 1, Texas (Doc. #18928)

1.394 Western water law has traditionally been the province of state courts and legislatures, 

except for interstate waters and Federal reclamation projects, for good reason. The 

proposed rule would inevitably seriously disrupt important state water planning strategies 

and agricultural production, resulting not only in economic impairment to many areas of 

the state, but also in permanently entrenching the "have" and 'have-not" water status of 

many regions of the state. (p. 2)

 

107 The CWA recognizes the "primary responsibilities and rights of States to prevent, reduce and eliminate pollution, 

... " Rapanos at 722-23.
Clean Water Rule Response to Comments – Topic 1: General Comments 

275

Agency Response: Section 101(g) of the CWA states, “It is the policy of Congress 

that the authority of each State to allocate quantities of its water within its 

jurisdiction shall not be superseded, abrogated or otherwise impaired by [the CWA 

and] that nothing in [the CWA] shall be construed to supersede or abrogate rights 

to quantities of water which have been established by any State.” Similarly, Section 

510(2) provides that nothing in the Act shall “be construed as impairing or in any 

manner affecting any right or jurisdiction of the States with respect to the waters . . 

. of such States.” The rule is entirely consistent with these policies. The rule does 

not impact or diminish State authorities to allocate water rights or to manage their 

water resources. Nor does the rule alter the CWA’s underlying regulatory process. 

Having been enacted with the objective of restoring and maintaining the chemical, 

physical, and biological integrity of our nation’s waters, the CWA serves to protect 

water quality. Neither the CWA nor the rule impairs the authorities of States to 

allocate quantities of water. Instead, the CWA and the rule serve to enhance the 

quality of the water that the States allocate. See Summary Response, Preamble to 

the Final Rule, and Technical Support Document Section I for further discussion

including regarding Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700 

(1994).

National Agricultural Aviation Association (Doc. #19497)

1.395 Most states have delegated authority for CWA permitting responsibilities, including 

PGPs. The types of pesticide uses covered and compliance requirements of PGPs vary 

remarkably from state to state, affecting aerial applicators who routinely work across 

state lines. Furthermore, many state PGPs regulate pesticide discharges into, over or near 

“waters of the state,” instead of WOTUS, which could establish tensions between the 

agencies’ proposed rule and state statutes and regulatory policies for water and pesticide 

programs. No doubt delegated states would have to adapt to the agencies’ proposed rule, 

which could severely strain their budgets and manpower resources. In arid and semi-arid 

regions of the West, and throughout the country, policy makers and pesticide users likely 

will be scrambling to unravel the complex net of overlapping jurisdiction proposed by the 

agencies. It is not surprising that many state and local governmental organizations, 

agricultural and environmental commissioners, governors and Congress have called on 

the agencies to withdraw the proposed rule. We echo their statements, and urge the rule

be withdrawn. (p. 5)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 
Clean Water Rule Response to Comments – Topic 1: General Comments 

276

Sections III and IV and Technical Support Document. The agencies have finalized 

the rule. See Response to Comments Compendium Topic 13 – Process Concerns and 

Administrative Procedures.

Environmental Council of the States (Doc. #15543)

1.396 We write on behalf of states and territories (hereinafter, "states") who are coregulators 

with EPA and the Corps jointly seeking to deliver the nation's environmental protection 

system of laws, regulations, programs, research, and services. States have many laws that 

protect waters and wetlands, and implementing the Clean Water Act (CWA) is a 

fundamental responsibility of states. States have long supported early, meaningful, and 

substantial state involvement in the development and implementation of environmental 

statutes and related rules, as stated in ECOS Resolution 11-1. ECOS believes that EPA 

and the Corps must engage states as co-regulators prior to and during the rulemaking 

process. While ECOS appreciates the time and effort spent on calls and outreach to states 

regarding this proposal, some states find that these efforts do not rise to the level of 

consultation that should occur between the states and federal agencies in developing 

comprehensive regulations with such significant impact.1 Recent calls held answered 

many state questions about the proposed rule, but many questions remain. (p. 1)

Agency Response: See Summary Response and Preamble to the Final Rule. In 

keeping with the spirit of Executive Order 13132 and consistent with the agencies’ 

policy to promote communications with state and local governments, the agencies 

consulted with state and local officials throughout the process and solicited their 

comments on the proposed action and on the development of the rule. 

For this rule state and local governments were consulted at the onset of rule 

development in 2011, and following the publication of the proposed rule in 2014. In 

addition to engaging key organizations under federalism, the agencies sought 

feedback on this rule from a broad audience of stakeholders through extensive 

outreach to numerous state and local government organizations. 

The agencies have included a detailed narrative of intergovernmental concerns 

raised during the course of the rule’s development and a description of the agencies’ 

efforts to address them with the final rule. [See Final Summary of the Discretionary 

Consultation and Outreach to State, Local, and County Governments for the Revised 

Definition of Waters of the United States which is available in the docket for this 

rule.] The agencies will continue to work closely with the states to implement the 

final rule. 

1.397 Continuing diligent and frequent communication with states will be critical to developing 

and implementing an effective final rule on this difficult subject matter. EPA and the 

Corps must maintain regular forums and contact with states leading to any finalization of 

the proposed rule. EPA has been the main communicator and participant in outreach 

forums. A concern of states throughout the process has been the lack of Corps 

participation. States ask that the Corps engage meaningfully in the process of developing 

a final rule as co-regulators. 

Uncertainty about the effects of the proposed rule still exists among states, largely due to 

regional, geographic, and climactic differences around the country. Cost impacts may 
Clean Water Rule Response to Comments – Topic 1: General Comments 

277

differ from state to state depending on legislative and administrative process differences. 

States ask EPA and the Corps to consider variations in state implementation costs as 

appropriate, and structure any final rule to "provide the maximum flexibility possible that 

is still consistent with underlying statutory objectives" (ECOS Resolution 12-2). (p. 2)

Agency Response: In keeping with the spirit of Executive Order 13132 and 

consistent with the agencies’ policy to promote communications with state and local 

governments, the agencies consulted with state and local officials throughout the 

process and solicited their comments on the proposed action and on the 

development of the rule. 

For this rule state and local governments were consulted at the onset of rule 

development in 2011, and following the publication of the proposed rule in 2014. In 

addition to engaging key organizations under federalism, the agencies sought 

feedback on this rule from a broad audience of stakeholders through extensive 

outreach to numerous state and local government organizations. 

The agencies have included a detailed narrative of intergovernmental concerns 

raised during the course of the rule’s development and a description of the agencies’ 

efforts to address them with the final rule. [See Final Summary of the Discretionary 

Consultation and Outreach to State, Local, and County Governments for the Revised 

Definition of Waters of the United States which is available in the docket for this 

rule.] The agencies will continue to work closely with the states to implement the 

final rule. 

The final rule does not establish any new regulatory requirements. Instead, it is a 

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

with the CWA, Supreme Court precedent, and science. As such, there are no 

changes in the relationship between federal, state, tribal and local implementors of 

CWA programs or to other state or tribal programs managing these resources. The 

scope of regulatory jurisdiction for Clean Water Act purposes in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

part because the rule puts important qualifiers on some existing categories such as 

tributaries. States and tribes retain full authority to implement their own programs 

to more broadly and more fully protect the waters under their jurisdiction. See 

Summary Response, Preamble to the Final Rule Sections III and IV and Technical 

Support Document.

The Nature Conservancy (Doc. #17453)

1.398 Protection of our water resources under the federal Clean Water Act is one of the most 

fundamental and important environmental protections in the United States. This federal 

statute establishes the national standards for the protection of water resources. Many 

rivers, streams, wetlands and other waterbodies cross state lines and the Clean Water Act 

helps ensure these shared waters are protected so that downstream states are not unduly 

burdened. In addition, half of all states have no state-level wetlands protection beyond 
Clean Water Rule Response to Comments – Topic 1: General Comments 

278

that provided by the Clean Water Act under Section 401108– the authority of states to 

review and approve federal permits. Therefore, it is critical that the rulemaking ensures 

that our water resources are protected in a manner that meets the goals of the Act, in an 

equitable and sustainable way that includes states retaining the ability to have their own 

statutes that parallel and complement the federal statute. (p. 2)

Agency Response: See Preamble to the Final Rule and Technical Support 

Document. States and tribes retain full authority to implement their own programs 

to more broadly and more fully protect the waters under their jurisdiction.

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

1.399 We strongly urge that the federal agencies emphasize and increase coordination with state 

and tribal co-regulators in development of the final rule and associated guidance, and in 

implementation.

Numerous states and tribes have developed effective and proven technical and field 

methods to document many of the connections and types of waters defined in the rule. 

We believe that where such procedures are consistent with the overall requirements of the 

rule, they should be readily accepted.

Numerous states and tribes also have existing agreements with Corps Districts and other 

agencies regarding regulatory procedures that are addressed by or may be affected by the 

proposed rule. To the extent that such agreements can be maintained (recognizing the 

need for consistency with the overall rule), regulatory delays will be minimized. (p. 5)

Agency Response: The EPA held over 400 meetings with interested stakeholders, 

including representatives from states, tribes, counties, industry, agriculture, 

environmental and conservation groups, and others during the public comment 

period. In keeping with the spirit of Executive Order 13132 and consistent with the 

agencies’ policy to promote communications with state and local governments, the 

agencies consulted with state and local officials throughout the process and solicited 

their comments on the proposed action and on the development of the rule. For this 

rule state and local governments were consulted at the onset of rule development in 

2011, and following the publication of the proposed rule in 2014. In addition to 

engaging key organizations under federalism, the agencies sought feedback on this 

rule from a broad audience of stakeholders through extensive outreach to numerous 

state and local government organizations. 

The agencies have prepared a report summarizing their voluntary consultation and 

extensive outreach to state, local and county governments, the results of this 

outreach, and how these results have informed the development of today’s rule. This 

report, Final Summary of the Discretionary Consultation and Outreach to State, 

Local, and County Governments for the Revised Definition of Waters of the United 

States (Docket Id. No. EPA-HQ-OW-2011-0880) is available in the docket for this 

rule.

 

108 America’s Vulnerable Waters: Assessing the Nation’s Portfolio of Vulnerable Aquatic Resources since Rapanos 

v. United States, 2011 Environmental Law Institute, Washington, D.C. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

279

The final rule does not establish any new 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. It also 

does not upset the cooperative federalism of the Act that has been undertaken to 

implement the Clean Water Act. The agencies respect states’ critical roles in 

protecting water quality and this rule does not supplant that role or their 

authorities. Nothing in this rule limits or impedes any existing or future state or 

tribal efforts to further protect their waters. In fact, providing greater clarity 

regarding what waters are subject to CWA jurisdiction will reduce the need for 

permitting authorities, including the states and tribes with authorized section 402 

and 404 CWA permitting programs, to make jurisdictional determinations on a 

case-specific basis.

Southeastern Legal Foundation (Doc. #16592)

1.400 The Proposed Rule is an Unconstitutional Expansion of Federal Authority Into an Area 

Previously Reserved to the States.109

The CWA provides a balance of state and federal control over water. Congress

recognized the need for state regulation over certain waters. “It is the policy of Congress 

to recognize, preserve, and protect the primary responsibilities of States to prevent, 

reduce and eliminate pollution, to plan the development and use (including restoration, 

preservation, and enhancement) of land and water resources, and to consult with the 

Administrator in the exercise of his authority under this chapter.”110 The CWA explicitly 

gives the Agencies jurisdiction over certain and limited waters. All other waters are state 

waters. In SWANCC, the Supreme Court stated that "[p]ermitting [the Agencies] to claim 

federal jurisdiction over ponds and mudflats ... would result in a significant impingement 

of the State's traditional and primary power over land and water use.”111 Some of the 

waters that the Agencies are trying to subsume in the Proposed Rule share the same 

infirmities as the SWANCC ponds - they are state waters not subject to federal 

jurisdiction.

Where an agency interprets a statute in a manner that "invokes the outer limits of

Congress's power" or "overrides ... [the] usual constitutional balance of federal and state

powers" - such as the Agencies are doing in the Proposed Rule - the Supreme Court 

"expect]s] a clear indication that Congress intended that result.”112 The Supreme Court 

requires this because of its "prudential desire not to needlessly reach constitutional issues 

and our assumption that Congress does not causally authorize administrative agencies to 

interpret a statute to push the limit of congressional authority."

113 Importantly, "this 

 

109 Because the Proposed Rule involves federalism and the balance of power between state and federal governments, 

Executive Order 13132 is implicated. While the Agencies purport to have engaged in a "voluntary federalism 

consultation," SLF questions whether the consultation fulfilled the requirements of E.O. 13132. Because SLF was 

not a part of the consultation, SLF hopes that states comment on the comprehensiveness of the consultation.

110 33 U.S.C. § 1251(a).

111 SWANCC, 531 U.S. at 174.

112 Id. at 172.

113 Id. at 172-73.
Clean Water Rule Response to Comments – Topic 1: General Comments 

280

concern is heightened where the administrative interpretation alters the federal-state 

framework by permitting federal encroachment upon a traditional state power.”114

While the line between state and federal waters may not always be clear, there is a line.

The farther upstream the Agencies attempt to regulate water, the closer they get to 

crossing that line. The Proposed Rule eliminates that line by making all waters federal. 

This cannot be the case because the CWA and state regulations across the country tell us 

that state waters exist. By definition, those state waters are not federal, therefore those 

state waters cannot be WOTUS. Yet, the Proposed Rule provides no exception for state 

waters, but instead subsumes them in its overly broad definitions of "tributary," 

"adjacent," and "significant nexus." Not only is there no "clear indication" that Congress 

intended that result, but there is statutory language to the contrary. Because the Proposed 

Rule violates the principles of state's rights, it must be withdrawn. (p. 24-26)

Agency Response: The agencies have finalized the rule. See Response to 

Comments Compendium Topic 13 – Process Concerns and Administrative 

Procedures. The final rule does not establish any new regulatory requirements. 

Instead, it is a definitional rule that clarifies the scope of “waters of the United 

States” consistent with the CWA, Supreme Court precedent, and science. As such, 

there are no changes in the relationship between federal, state, tribal and local 

implementors of CWA programs or to other state or tribal programs managing 

these resources. The scope of regulatory jurisdiction for Clean Water Act purposes 

in this rule is narrower than that under the existing regulation. Fewer waters will 

be defined as “waters of the United States” under the rule than under the existing 

regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries. States and tribes retain full authority to implement 

their own programs to more broadly and more fully protect the waters under their 

jurisdiction. See Summary Response, Preamble to the Final Rule Sections III and 

IV and Technical Support Document. Regarding federalism concerns, Technical 

Support Document Section I.

Protect Americans Now, Board of Directors (Doc. #12726)

1.401 The Proposed Rule improperly impinges upon the "primary responsibilities and rights of 

States" under the Act Under the 1977 Amendments, Congress deemed it appropriate and 

necessary t o emphasize the traditional role of the states in the management of land and 

water resources, and specifically noted its intent to:

recognize, preserve, and protect the primary responsibilities and rights of States to 

prevent , reduce, and eliminate pollution, to plan the development and use 

(including restoration, preservation, and enhancement) of land and water 

resources. 

33 U.S.C. § 1251(b) (emphasis added). Yet, by drafting a regulatory definition so 

encompassing as to embrace those isolated, unconnected and wholly intrastate wet lands, 

 

114 Id. (emphasis added)
Clean Water Rule Response to Comments – Topic 1: General Comments 

281

ponds, oxbow lakes, etc. simply because they f all within a "floodplain" -a term not found 

in the statutory text- the agencies' Proposed Rule is sure to impinge upon the states' 

traditional land use and water management authority. See SWANCC, 531 U.S. at 174. 

As noted by the Court in both SWANCC and Rapanos, the impingement by the federal 

government on the regulatory and oversight affairs traditionally reserved to the States 

creates a constitutional concern that should require a clear authorization from Congress. 

Id. at 172-74; Rapanos, 547 U.S. at 738. The CWA is devoid of any such authorization 

and, therefore, the Proposed Rule's implication of federalism concerns and traditional 

state authority should prompt the re-development of a rule/definition that stays within the 

confines of the authority granted to the agencies by Congress under the Act. (p. 10-11)

Agency Response: The agencies have finalized the rule. See Response to 

Comments Compendium Topic 13 – Process Concerns and Administrative 

Procedures. The final rule does not establish any new regulatory requirements. 

Instead, it is a definitional rule that clarifies the scope of “waters of the United 

States” consistent with the CWA, Supreme Court precedent, and science. As such, 

there are no changes in the relationship between federal, state, tribal and local 

implementors of CWA programs or to other state or tribal programs managing 

these resources. The scope of regulatory jurisdiction for Clean Water Act purposes 

in this rule is narrower than that under the existing regulation. Fewer waters will 

be defined as “waters of the United States” under the rule than under the existing 

regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries. States and tribes retain full authority to implement 

their own programs to more broadly and more fully protect the waters under their 

jurisdiction. See Summary Response, Preamble to the Final Rule Sections III and 

IV and Technical Support Document. Regarding federalism concerns, Technical 

Support Document Section I.

Colorado Wastewater Utility Council (Doc. #13614)

1.402 Based on the expanded definition of waters of the U.S., CWWUC members have to now 

reevaluate the regulatory status of waters located on their property or near their activities 

irrespective of the location or disposition of that water. Even then, members will not be 

sure what are considered "waters of the U.S." without further clarification from EPA. To 

add yet another layer of confusion, this new federal definition would need to be 

integrated with the "waters of the state" definition currently in place. An expansion of 

"waters" should be enacted at the state level as a state prerogative to better address the 

issues associated with the particular region. This has already been done in Colorado. (p. 

2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document.
Clean Water Rule Response to Comments – Topic 1: General Comments 

282

Edison Electric Institute (Doc. #15032)

1.403 The agencies also rely on the phrase "biological integrity" to justify a claim of 

jurisdiction over features that hold water and prevent flow from reaching navigable 

water. See, e.g., 79 Fed. Reg. 22247. In so doing, however, the agencies ignore another 

CWA policy: the reservation of the rights of states to control water supply. CWA § 

101(g). As EPA recently noted in a brief filed in federal court: 

The Act is a complex statute with a "welter of consistent and inconsistent goals." 

Catskilll, 273 F.3d at 494. To be sure, the Clean Water Act's stated objective is "to restore 

and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 

U.S.C. § 1251(a). However, "it frustrates rather than effectuates legislative intent 

simplistically to assume that whatever furthers the statute's primary objective must be the 

law." Rodriguez v. United States, 480 U.S. 522, 526 (1987). As this Court has 

acknowledged, the CWA also reflects Congress's desire to limit interference with 

traditional state control of water use and allocation. Catskill II, 451 F.3d at 79. Thus, the 

statute states "the policy of Congress that the authority of each State to allocate quantities 

of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired" 

by the Act. 33 U.S.C. § 1251(g). More broadly, Congress emphasized its policy "to 

recognize, preserve, and protect the primary responsibilities and rights of States .. . to 

plan the development and use (including restoration, preservation, and enhancement) of 

... water resources ...." Id. § l251(b). Elsewhere in the statute, Congress prohibits 

construction of the Act "as impairing or in any manner affecting any right or jurisdiction 

of the States with respect to the waters (including boundary waters) of such States." Id. § 

1370(2). These provisions do not, of their own force, "limit the scope of water pollution 

controls that may be imposed on users who have obtained, pursuant to state law, a water 

allocation." PUD No.1 of Jefferson County v. Washington Dep’t of Ecology, 511 U.S. 

700, 720-21 (1994). They do, however, show that one of Congress's purposes was to 

avoid interference with state water allocation decisions.115

Thus, the agencies cannot stretch the meaning of one goal of the Act to expand their 

authority so broadly that other goals of the Act are overridden. In this context, the 

agencies are impacting the primacy of states in regulating land and water use and 

controlling water supply by too broadly defining waters of the U.S. The scope of 

jurisdiction under the Act must be consistent with the authorities granted to the agencies 

under the Act and therefore must be limited to waters that must be regulated to protect the 

quality of navigable water used as an avenue of interstate commerce. (p. 11-12)

Agency Response: The final rule does not regulate land use. The final rule does 

not establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. The scope of 

regulatory jurisdiction for Clean Water Act purposes in this rule is narrower than 

 

115 Catskill Mountains Chapter of Trout Unlimited, Inc., et al. v. EPA, Docket No. 14-1823 (2d Cir), Brieffor

Defendant EPA, et al. (Sept. 11,2014), at 29-30.
Clean Water Rule Response to Comments – Topic 1: General Comments 

283

that under the existing regulation. Fewer waters will be defined as “waters of the 

United States” under the rule than under the existing regulations, in part because 

the rule puts important qualifiers on some existing categories such as tributaries. 

States and tribes retain full authority to implement their own programs to more 

broadly and more fully protect the waters under their jurisdiction. See Summary 

Response, Preamble to the Final Rule Sections III and IV and Technical Support 

Document. Regarding federalism concerns, Technical Support Document Section I.

Section 101(g) of the CWA states, “It is the policy of Congress that the authority of 

each State to allocate quantities of its water within its jurisdiction shall not be 

superseded, abrogated or otherwise impaired by [the CWA and] that nothing in [the 

CWA] shall be construed to supersede or abrogate rights to quantities of water 

which have been established by any State.” Similarly, Section 510(2) provides that 

nothing in the Act shall “be construed as impairing or in any manner affecting any 

right or jurisdiction of the States with respect to the waters . . . of such States.” The 

rule is entirely consistent with these policies. The rule does not impact or diminish 

State authorities to allocate water rights or to manage their water resources. Nor 

does the rule alter the CWA’s underlying regulatory process. Having been enacted 

with the objective of restoring and maintaining the chemical, physical, and 

biological integrity of our nation’s waters, the CWA serves to protect water quality. 

Neither the CWA nor the rule impairs the authorities of States to allocate quantities 

of water. Instead, the CWA and the rule serve to enhance the quality of the water 

that the States allocate. See Technical Support Document Section I for further 

discussion including regarding Jefferson County v. Washington Dept. of Ecology, 

511 U.S. 700 (1994).

Texas Agricultural Land Trust (Doc. #15188.1)

1.404 The definition proposed by the Rule is illegal based on the Commerce Clause of the U.S. 

Constitution, the framework and goals of the CWA, Congressional intent and Supreme 

Court rulings. Each places a limit on federal jurisdiction over the nation’s waters. 

Currently, the proposed rule has practically no limit whatsoever and exceeds the intent of 

the CWA and reasonable boundaries for federal jurisdiction. (p. 1)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. Regarding federalism 

concerns, Technical Support Document Section I.

Texas Agricultural Land Trust (Doc. #15188.2)

1.405 The proposed definition annihilates the federalist system that underpins the CWA. This 

proposal has obliterated the important and fundamental line separating federal and state 

interests and oversight. By expanding the definition of tributary, expanding the definition 
Clean Water Rule Response to Comments – Topic 1: General Comments 

284

of “adjacent”, expanding the category of “adjacent wetlands” to “adjacent waters,” and 

including “other waters,” the proposed rules dramatically expand federal oversight 

beyond traditional navigable waters, as originally intended, and will have major impacts 

for private landowners without an adequate federal interest. (p. 1)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. Regarding federalism 

concerns, Technical Support Document Section I.

Delaware Riverkeeper Network (Doc #15383)

1.406 The majority of the States (46) have been delegated Clean Water Act permitting and 

enforcement responsibilities through “parallel” state laws and delegation agreements with 

EPA. Adoption of this proposed rule will have a significant and adverse effect on those 

46 states. While the Federal Register Notice (P22194) provides that “[s]tates and tribes, 

consistent with the CWA, retain full authority to implement their own programs to more 

broadly or more fully protect the waters in their state”, it ignores two critical problems 

created by this proposed rule.

First, while states may be free to more broadly or more fully protect the waters in their 

state, if the proposed rule is adopted it will mean the 50 states and territories will be 

required to introduce and pass new laws that protect “waters of the State.” This puts an 

enormous burden on each state and it is unlikely in this current legislative climate that 

any such legislation will be adopted. The proposed rule would also unnecessarily 

abdicate EPA’s existing uniform federal scheme and potentially establish 50 disparate 

and potentially unenforceable state approaches.

While it is suggested that a state can provide stricter requirements than the CWA, it is 

unclear whether there is a valid argument, potentially raised by defendants, that a 

jurisdictional change in the federal law would preempt new state laws which provide 

broader coverage than the current proposed rule because of the proposed rule’s 

overarching federal determination of jurisdiction. While states are free to legislate in the 

absence of a federal pronouncement, (e.g. groundwater) they are not free to legislate once 

there has been an overarching federal law or enacted regulatory scheme. DRN is 

concerned that the proposed definition may preempt a state’s ability to implement a 

broader definition of jurisdiction because the new rule will be the assertion of federal 

jurisdictional authority to regulate waters not defined as waters of the U.S. If so, this will 

harm every state’s ability to effectively protect its water quality beyond what EPA is now 

legislating as a jurisdictional assertion.

Second, states share land and water boundaries and many have different interpretations of 

the law. Take for example, New Jersey’s and New York’s shared borders. If there is a 

newly excluded treatment system, lagoon, or ditch in New York that will no longer be 
Clean Water Rule Response to Comments – Topic 1: General Comments 

285

regulated, and it breaches or drains into a previously jurisdictional water in New Jersey, 

the CWA may no longer offer a remedy for enforcement mechanisms that were 

previously available. EPA is now leaving states and citizens vulnerable to water pollution 

with no recourse under the CWA.

In order to remedy both of these issues, EPA should include specific language in the 

response to comments and in the proposed rule that clearly states that EPA is not 

asserting an over-reaching federal scheme as it relates to a state’s ability to legislate 

broader terms for their own state jurisdictional determinations for waters in their states 

and boundary waters. EPA should also provide guidance that addresses potential state to 

state disputes clarifying that the more protective state law governs. (p. 2-3)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. Regarding Interstate 

Waters, see Technical Support Document Section IV.

Sierra Club, Cumberland Chapter (Doc. #15466)

1.407 Kentucky farmers are already subject to the requirements of - and entitled to the 

protections afforded by - the Kentucky Agriculture Water Quality Act. 

The proposed rulemaking will not alter any of the provisions and safeguards of that Act. 

Much of the criticism of the WOTUS proposed rule has come from the American Farm 

Bureau Federation. However, the WOTUS rule should have little or no effect on 

Kentucky farmers. That is because all Kentucky farmers are already require to have a 

Kentucky Agriculture Water Quality Plan for their farm. That Act requires farmers to 

have installed Best Management Practices that depend on the nature of that farming 

operation. It also provides a "permit shield" for the farmer, to protect the farmer from the 

so-called "regulatory over-reach" claim against EPA and the Corps. The Act is found at 

KRS 224.71-100 through 224.71-140. See attached KRS 224.71-130 concerning 

noncompliance. (p. 4)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 
Clean Water Rule Response to Comments – Topic 1: General Comments 

286

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document.

Citizen's Advisory Commission on Federal Areas, State of Alaska (Doc. #16414)

1.408 The proposed rule mischaracterizes the state of the law and unwarrantedly interferes with 

state authorities and private property rights. (p. 1)

Agency Response: See Preamble to the Final Rule and Technical Support 

Document and summary response below.

1.409 Despite the agencies' and the preamble's protestations, the proposed rule would 

inarguably increase the acreage and linear measure of waterbodies subject to federal 

permitting authority under the CWA. A determination there will be no or negligible 

increases in jurisdiction is naive, unimaginative and misleading. Under the proposed rule, 

the possibility of Alaska being designated as one large, interconnected watershed is not 

farfetched. The fact that the proposed rule overlooks the complexity of exclusively 

Alaskan features, such as permafrost and muskeg, underscores the validity of this as a 

concern.

116

While some clarification may be needed for efficient implementation, the CWA seems 

very clear on one point: the people who care and know the most about the water should 

be in charge of its care. Those people are the ones who drink it, swim in it and fish in it. 

Those are the people with rights, duties and obligations to manage and protect their lands 

and waters. And yet those are the people most disenfranchised, most burdened and most 

at risk from the proposed rule's "clarification," which dismissively quashes any 

recognizable homage to the CWA's reverence for the merits, common sense and 

practicality of local knowledge and control. (p. 2)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. Regarding federalism 

concerns, see Technical Support Document Section I.

 

116 Comments from the Alaska Department of Environmental Conservation expand on these and other points and are 

wholly incorporated here by reference.
Clean Water Rule Response to Comments – Topic 1: General Comments 

287

Ruby Valley Conservation District, Montana (Doc. #16477)

1.410 The Ruby Valley Conservation District Board of Supervisors considers Waters of the 

U.S. (WOTUS) to be a very significant expansion of Federal jurisdiction over waters in 

this country. Traditionally, most of the waters are protected by state and local entities. As 

a grass roots organization, we believe good conservation and protection of water 

resources can be better accomplished locally. (p. 1)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. Regarding federalism 

concerns, see Technical Support Document Section I.

Montana Land and Water Alliance, Inc. (Doc. #18890)

1.411 The EPA, as a federal agency, does not have the authority to usurp the sovereign 

prerogatives of state government. We urge you to drop this effort immediately and stop 

wasting taxpayer dollars. (p. 1)

Agency Response: See Preamble to the Final Rule and Technical Support 

Document.

New Mexico State University, The Linebery Policy Center for Natural Resource Management 

(Doc. #7336.2)

1.412 The implications of this report are alarming. The Desert Land Act of 1877117 states: "if 

not before, all nonnavigable waters then a part of the federal domain became. . . Subject 

to the plenary118 control of the designated states ...119)." The Supreme Court recognized 

that nonnavigable waters were severed from the federal domain by Congress, allowing 

the states the power to administer the appropriation of those waters for beneficial use120. 

In light of this study however, federal agencies could attempt to claim jurisdiction over 

 

117 43 USC 641

118 Unqualified; absolute

119 Id. at 163.64.

120 Identifying the Reclamation Act of 1902 and the Indian Appropriation Act of 1909 as two pieces of legislation 

that verify congressional recognition of the supremacy of state law with respect to the acquisition of water located 

on public domains
Clean Water Rule Response to Comments – Topic 1: General Comments 

288

non-navigable waterways without the "significant nexus tests”121 established by the 

Supreme Court ruling in Rapanos122. In other words federal agencies may attempt to use 

the report to argue that all streams, arroyos , or washes are navigable irrespective of the 

flow rate and thus under the jurisdiction of the federal government and not the states: 

This would effectively circumvent the Desert Lands Act123 without the need for 

Congressional action to amend or repeal the Act: Using the reserved rights doctrine, any 

and all senior water rights could be forfeit, with the federal government assuming senior 

appropriator status. (p. 1-2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. Regarding federalism 

concerns, see Technical Support Document Section I. 

Section 101(g) of the CWA states, “It is the policy of Congress that the authority of 

each State to allocate quantities of its water within its jurisdiction shall not be 

superseded, abrogated or otherwise impaired by [the CWA and] that nothing in [the 

CWA] shall be construed to supersede or abrogate rights to quantities of water 

which have been established by any State.” Similarly, Section 510(2) provides that 

nothing in the Act shall “be construed as impairing or in any manner affecting any 

right or jurisdiction of the States with respect to the waters . . . of such States.” The 

rule is entirely consistent with these policies. The rule does not impact or diminish 

State authorities to allocate water rights or to manage their water resources. Nor 

does the rule alter the CWA’s underlying regulatory process. Having been enacted 

with the objective of restoring and maintaining the chemical, physical, and 

biological integrity of our nation’s waters, the CWA serves to protect water quality. 

Neither the CWA nor the rule impairs the authorities of States to allocate quantities 

of water. Instead, the CWA and the rule serve to enhance the quality of the water 

that the States allocate. See Technical Support Document Section I for further 

discussion including regarding Jefferson County v. Washington Dept. of Ecology, 

511 U.S. 700 (1994).

University of Missouri (Doc. #7942.1)

1.413 Further, despite many states (including Missouri) hard work to improve soil conservation 

and water quality standards, the new ruling would in many cases override state 

 

121 The words "significant nexus" was used in the Rapanos decision to differentiate navigable from non-navigable 

waters. It intended to address only those standing or continuously flowing waters i.e. oceans, rivers, and lakes 

forming geographic features as waters of the U.S., and not the Connectivity of Streams and Wetlands to 

Downstream Waters.

122 547 U.S. 715,62 ERC1481 (2006)

123 43 USC 641
Clean Water Rule Response to Comments – Topic 1: General Comments 

289

jurisdictions and impose federal standards in many locations that may not be practicable 

for application. (p. 2)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document.

John Wood Community College (Doc. #11770)

1.414 I am concerned that under the proposed rule many ordinary activities undertaken by local 

governments such as a community college would I immediately become subject to a wide 

variety of federal regulation, including permitting requirements, notifications and 

recordkeeping, modeling and monitoring, and use approvals that are now under state or 

local jurisdiction. These requirements would impose direct costs, delays, and uncertainty 

in planning. (p. 1)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document.

Water Environment Federation Member Association Governmental Affairs (GA) Committees 

Representing EPA Region 7 (Doc. #15185)

1.415 The proposed rule does not address parallel "Waters of the State" authority already in 

place for various States as to which entity will likely have primary responsibility for 

program management and enforcement. For example, the Nebraska Department of 

Environmental Quality has legislation in place that already deals with all of the key 

elements contained in the Proposed Rule, plus it also includes groundwater nexus 

considerations, which the Proposed Rule excludes. Similar to above, it is suggested that 
Clean Water Rule Response to Comments – Topic 1: General Comments 

290

EPA clearly state its intent on the issue of either independent EPA or parallel authority 

among States, in order to avoid unnecessary confusion over the basis for program control; 

especially where States already possess similar or even greater authority. (p. 1-2)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document.

Water Environment Federation (Doc. #16584)

1.416 A parallel authority issue with “Waters of the State” may be created in this proposed rule. 

The proposed rule does not address parallel “Waters of the State” authority already in 

place for various States as to which entity will likely have primary responsibility for 

program management and enforcement. For example, the Nebraska Department of 

Environmental Quality has legislation in place that already addresses the key elements 

contained in the Proposed Rule, including groundwater nexus considerations, which the 

Proposed Rule excludes. Similar to above, it is suggested that EPA clearly state its intent 

on the issue of either independent EPA or parallel authority among States, in order to 

avoid unnecessary confusion over the basis for program control; especially where States 

already possess similar or even greater authority. (p. 3)

Agency Response: The final rule does not establish any new regulatory 

requirements. Instead, it is a definitional rule that clarifies the scope of “waters of 

the United States” consistent with the CWA, Supreme Court precedent, and science. 

As such, there are no changes in the relationship between federal, state, tribal and 

local implementors of CWA programs or to other state or tribal programs 

managing these resources. The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document.

American Legislative Exchange Council (Doc. #19468)

1.417 As currently written, the proposed redefinition of “waters of the United States” offers 

EPA and the Corps virtually unlimited regulatory authority over water resources. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

291

Whereas in the past, federal jurisdiction was based upon site-specific analysis, the new 

rule employs an aggregate watershed analysis to determine whether isolated waters have 

a “significant nexus” to navigable waters, and therefore subject to federal regulation. This 

test is so ambiguous that every ditch, vernal pool, dry lake, mudflat, sandflat, drainage 

ditch, and irrigation from farming operations could easily fall under EPA and the Corp’s 

jurisdiction. Furthermore, the proposed rule also expands federal regulatory authority 

over waters with a “confined surface or shallow subsurface hydrologic connection to such 

a jurisdictional water.” This is significant since Congress never intended for the CWA to 

apply to the management of groundwater in the states. (p. 2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document Sections I, II, VII, VIII and 

IX. See also Response to Comments Compendium Topic 3 – Adjacent Waters, Topic 

4 – Other Waters, Topic 5 – Significant Nexus, Topic 6 – Ditches, Topic 7 – Features 

and Waters Not Jurisdictional and Topic 8 – Tributaries. 

John Barrasso et al., Congress of the United States (Doc. #4901)

1.418 We urge you to change course by committing to operating under the limits established by 

Congress, recognizing the states' primary role in regulating and protecting their streams, 

ponds, wetlands and other bodies of water. We also again ask that you consider the 

economic impacts of your policies knowing that your actions will have serious impacts 

on struggling families, seniors, low-income households and small business owners. (p. 2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. Regarding the economic 

analysis see Preamble to the Final Rule Section V.

Patrick E. Murphy, Member of Congress, Congress of the United States, House of 

Representatives (Doc. #15371.1)

1.419 Federal Regulation of Minor Waters Is Unnecessary for Environmental Protection

 The State of Florida already regulates work in all waters of the state, no matter 

how small

 Florida law has rigorous environmental protections for State waters, and neither 

the Corps nor EPA have claimed that Florida’s regulatory criteria are inadequate
Clean Water Rule Response to Comments – Topic 1: General Comments 

292

 Expanding federal Clean Water Act jurisdiction in Florida simply increases the 

level of duplication of agency oversight, which increases costs for landowners and 

delays in the permitting process (p. 2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. 

United States Senate (Doc. #19301)

1.420 Finally, I am deeply concerned that this rule undermines the historically successful 

federal-state cooperation in the administration of the Clean Water Act. The waters this 

proposed rule seeks to cover through federal jurisdiction are not unprotected They are 

currently protected as state waters. Surely, a better approach to ensuring these isolated 

and intrastate waters are adequately protected would be for EPA and the Corps work with 

states to improve their water quality programs. Assertion of federal jurisdiction over 

these waters should be a last resort and not the first course of action. (p. 2)

Agency Response: The scope of regulatory jurisdiction for Clean Water Act 

purposes in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries. States and tribes retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

under their jurisdiction. See Summary Response, Preamble to the Final Rule 

Sections III and IV and Technical Support Document. The final rule does not 

establish any new regulatory requirements. Instead, it is a definitional rule that 

clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science. As such, there are no changes in the 

relationship between federal, state, tribal and local implementors of CWA programs 

or to other state or tribal programs managing these resources. Regarding 

federalism concerns, see Technical Support Document Section I.

Wetland Science Applications, Inc. (Doc. #4958.2)

1.421 Since 2007, the EPA and COE have maintained that they can follow the migratory 

molecule of water if it theoretically will reach a water body that is determined to be 

jurisdictional. This is inconsistent with Sec 101(b) of the CWA and is unconstitutional 

because it usurps States' rights and responsibilities to conduct land management. Any 
Clean Water Rule Response to Comments – Topic 1: General Comments 

293

surface of land that is not perfectly level can upon sufficient volume of water being 

placed upon it transmit that water down slope and may ultimately reach a legitimate 

jurisdictional water of the U.S. With this proposed definition of tributary, water from a 

puddle with no OHWM could traverse the landscape by sheet flow and end up being 

identified as a tributary. This is an inappropriate expansion of federal land management. 

(p. 9)

Agency Response: The rule does not regulate land use. The scope of regulatory 

jurisdiction for Clean Water Act purposes in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. States and

tribes retain full authority to implement their own programs to more broadly and 

more fully protect the waters under their jurisdiction. See Summary Response, 

Preamble to the Final Rule Sections III and IV and Technical Support Document. 

The final rule does not establish any new regulatory requirements. Instead, it is a 

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

with the CWA, Supreme Court precedent, and science. As such, there are no 

changes in the relationship between federal, state, tribal and local implementors of 

CWA programs or to other state or tribal programs managing these resources. 

Regarding federalism concerns, see Technical Support Document Section I.

The Property Which Water Occupies (Doc. #8610)

1.422 Expanding state title to property beneath smaller headwater streams transfers jurisdiction 

within National Parks and Forests from Federal agencies to State agencies. This issue is 

not considered in the Rules. The Rules also undermine title and rights to privately held 

lands. The Rules undermine property grants and deed conveyances, transferring property 

title worth billions of dollars to individual States. Unsettling property title initiates 

enormous costs to affected farmers, landowners, taxpayers, financial institutions and 

insurers; these costs are not included in the associated economic analysis. The multibillion dollar regulatory taking of property124 unsettles the clear delineation between 

state-owned lands -those submerged by navigable waters, and private/federal property. 

Thousands of miles of land below smaller streams, ephemeral streams, wetlands and 

drainage ditches, are declared 'navigable' by the Rules and therefore state-owned 

property. Even the choice of the rules vocabulary Waters of the United States

125, removes 

the modifier navigable from the often used judicially phrase "Navigable Waters Of The 

United States "

126 that has been used to establish the limit of federal authority. The US 

 

124 The Cost of such a potential liability is not addressed or considered as required under NEPA and multiple 

executive Orders.

125 "of" being a possessive modifier within the phrase "waters of the United States", as if the water itself is property 

belonging to the United States. This, rather using descriptive 'within the United States'. Although a limited form of 

jurisdiction may extend beyond navigable waters when necessary to fulfil purposes of the CWA, neither the Water 

nor Air 'belongs to' the United States under common law, but are rather part of the negative estate associated with 

the land.

126 The Daniel Ball .77 US 557(1870), Kaiser Aetna v. United States 444 US 164 (1979), Gibbons v. Ogden, 22 US I 

(1824), US v. Appalachian Power Co. 311 US 377 (1940), The Montello, 11 Wall. 411-414,(1870), United States v. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

294

Supreme Court noted: "The term "navigable" has at least the import of showing us what 

Congress had in mind as its authority for enacting the CWA: its traditional jurisdiction 

over waters that were or had been navigable in fact or which could reasonably be so 

made." Solid Waste Agency of Northern Cook City. v. Army Corps of Engineers, 53 1 

US 159,172, (2001). The Rules denigrate this Supreme Court Decision. 

The proposed Rules ignore property ownership and circumvent the due process owed 

those holding title to real property127, lenders with leans against this real property and 

insurers of title. They burden the judiciary and taxpayers accountable for compensation 

regulatory taking and sorting out the mess created by these Rules. None of these costs are 

represented in the Rules economic analysis. The Rules adversely affects property 

interests, property rights in real property across this country, mistakenly based upon the 

location of water. The proposed rule misrepresents well settled law defining the contours 

of real property.128 (p. 4-5)

Agency Response: See Preamble to the Final Rule and Technical Support 

Document and summary response below.

1.423 By explicitly stating that property title, property rights and public rights of access remain 

unaffected because navigability can only be determined by a Federal court would the 

Rules avoid unsettling property title creating constitutional chaos for the judiciary. (p. 9)

Agency Response: See Preamble to the Final Rule and Technical Support 

Document and summary response below. 

1.1.1. 404 Assumption

Agency Summary Response

States and tribes play a vital role in the implementation and enforcement of the CWA. 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. This rule 

recognizes the unique role of states as confirmed by section 101(b) of the CWA which clearly 

states that it is Congressional policy to preserve the primary responsibilities and rights of states 

to prevent, reduce and eliminate pollution to plan the development and use of land and water 

resources, and to consult with the Administrator with respect to the exercise of the 

Administrator’s authority under the CWA. 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 their environment and 

economy but which are outside the regulatory jurisdiction on the CWA. Congress has also 

 

Rio Grande Dam & Irrigation Co., 174 US 690,687 (1899), and more recently Solid Waste Agency of Northem 

Cook Cty, v. Army Corps of Engineers, 531 US 159,169, (2001).

127 Allowing deed holders the right to be heard at a meaningful time and in the appropriate forum before they are 

divested of their property is a fundamental property right codified in almost every State.

128 Rights in water follow the grant to soil below; the presence of water provides no basis for claiming rights. 

Blackstone Vol II pg. 18.
Clean Water Rule Response to Comments – Topic 1: General Comments 

295

provided roles for eligible Indian tribes to administer CWA programs over their reservations and 

expressed a preference for tribal regulation of surface water quality on Indian reservations to 

assure compliance with the goals of the CWA (see 33 U.S.C. § 1377; 56 FR 64876, 64878-79 

(Dec. 12, 1991)). Where appropriate, references to states in this document may also include 

eligible tribes. Essay 1.1 provides additional discussion on the role of states.

Some comments raised concerns that this rule would usurp, limit or preempt state and tribal 

rights to manage waters within their jurisdiction. Consistent with the CWA, and as is the case 

today, nothing in this rule limits or impedes any existing or future state or tribal efforts to protect 

their waters. States and tribes retain full authority to implement their own programs. As cited in 

the preamble, the agencies commit to working 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 emerging science to ensure consistent and 

effective protection for waters in their states. The rule is consistent with Congress’ intent not to 

supersede, abrogate, or otherwise impair the authority of each state or tribe to manage the waters 

within its jurisdiction or to more broadly protect their waters.

Of particular importance, states and tribes may be authorized by the EPA to administer the 

permitting programs of CWA section 402 and 404. Several commenters raised concerns that this 

rule would adversely affect the ability of states and tribes to assume administration of and 

continue implementation of section 404 of the CWA. Section 404(t) of the CWA states that 

“Nothing in this section shall preclude or deny the right of any state or interstate agency to 

control the discharge of dredged or fill material in any portion of the navigable waters within the 

jurisdiction of such state . . .” 

The CWA identifies the waters over which states may assume permitting jurisdiction. See CWA 

section 404(g)(1). The scope of waters that are subject to state and tribal permitting is a separate 

inquiry and must be based on the statutory language in CWA section 404. States administer 

approved CWA section 404 programs for “waters of the United States” within the state, except 

those waters remaining under Corps jurisdiction pursuant to CWA section 404(g)(1) as identified 

in a Memorandum of Agreement between the state and the Corps. 40 CFR 233.14; 40 CFR 

233.70(c)(2); 40 CFR 233.71(d)(2). 

At the request of the Association of Clean Water Administrators, the Environmental Council of 

States, the Association of State Wetlands Managers (letter April 30, 2014) and several states, 

EPA has initiated a separate process to address how the EPA can best clarify assumable waters 

for dredge and fill permit programs pursuant to the Clean Water Act section 404(g)(1), and has 

invited nominations from a diverse range of qualified candidates for serving on a new 

subcommittee under the National Advisory Council for Environmental Policy and Technology 

(NACEPT) to provide advice and recommendations. 80 FR 13439 (Mar. 16, 2015).

Specific Comments

Michigan Department of Environmental Quality (Doc. #5462)

1.424 Because Michigan administers the Sections 402 and 404 Programs under state law, the 

proposed rule will not significantly impact Michigan. Michigan has been administering 
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296

the Section 402 Program for over 40 years, during which time we have been a leader in 

improving and maintaining water quality through both regulatory and non-regulatory 

initiatives in the program. Although we do not believe the proposed rule will impact 

Michigan's administration of the Section 402 Program because of the widespread 

controversy and confusion about this issue, we recommend the USEPA clarify the impact 

of this rule on activities regulated under the Section 402 Program, specifically regulated 

agricultural activities. 

Michigan's Section 404 Program, with its clear definition of wetlands and other waters, 

provides a superior jurisdictional framework for the regulated community (i.e., provides 

predictability and certainty for the regulated community regarding the waters that are 

regulated) than the federal program does. Furthermore, having administration of the 

federal program has insulated most of Michigan’s citizens from the many jurisdictional 

process changes over the years at the federal level. However, clarification of the Waters 

of the United States through a rule would benefit Michigan citizens who need permits 

from the United States Army Corps of Engineers (USACE) in areas of the state 1 where 

the USACE has retained administration of the Section 404 Program. In those areas, it has 

been Michigan's experience that the current jurisdictional determination process at the 

federal level results in significant delays for the regulated community. 

Michigan has administered the Section 404 Program for 30 years. In 2008 following a 

ten-year review of Michigan's program, the USEPA issued its report identifying issues 

needing to be addressed in order for Michigan's program to remain consistent with 

federal regulations. Although Michigan 's jurisdictional framework for regulating waters 

was determined to be consistent with federal regulations and the federal Rapanos 

guidance, other deficiencies were identified that the USEPA stated needed to be 

addressed. As a result, Michigan's Legislature created the Wetland Advisory Council 

(WAC) to evaluate the findings of the report and propose solutions to align Michigan's 

program with the requirements of the CWA. The WAC had broad stakeholder 

participation, including business groups; drain commissioners; local, state and federal 

agencies; and conservation and environmental groups. The 2012 recommendations from 

the Michigan Wetland Advisory Council and eighteen months of debate in the Michigan 

Legislature resulted in the passage of 2013 PA 98, which narrowed and clarified the 

exemptions in Michigan 's Section 404 Program. These changes are intended to address 

the 2008 program review findings and modernize the program to allow Michigan to 

continue to be a leader in protecting and managing water and wetland resources, while 

being tailored to appropriately regulate Michigan's land-based industries. Michigan is 

seeking confirmation from the USEPA that the proposed rule will not impact the progress 

made in 2013 PA 98. 

Although Michigan must stay consistent with the provisions of the CWA, having 

administration of the Sections 402 and 404 Programs has allowed Michigan to develop 

innovative approaches to provide a streamlined regulatory process while still protecting 

Michigan's water resources. It has also provided more clarity for the regulated 

community, so compliance can be achieved in a more timely manner than federal law 

currently provides. We believe it is critical for the USEPA and USACE to continue to 

work collaboratively with states and tribes to continue to administer the CWA. One area 

of particular concern is the potential impact the proposed rule may have on the scope of 
Clean Water Rule Response to Comments – Topic 1: General Comments 

297

waters for which jurisdiction may be assumed by states under the Section 404 Program. 

Although it is stated in the preamble and USEPA staff have stated in various forums that 

it is not the intent of the rule to impact assumable waters, the current language could be 

misinterpreted otherwise. Michigan does not support any changes to the scope of 

assumable waters and urges clarification of this issue before promulgation of the final 

rule. (p. 1-3)As stated in the summary, EPA is convening a subcommittee under the 

National Advisory Council for Environmental Policy and Technology (NACEPT) to 

provide advice and recommendations on how the EPA can best clarify assumable waters 

for dredge and fill permit programs pursuant to the Clean Water Act section 404(g). 

Clarification of assumable waters will not be completed prior to the finalization of this 

rule; however, the timing of the clarification of assumable waters should not affect 

Michigan’s current approved program or EPA’s review of PA 98 as assumable waters is a 

question of who is the permitting authority, not whether or not the water is covered under 

the CWA which is the scope of this rule. 

Agency Response: Approval of any proposed changes to Michigan's approved 

CWA section 404 program will be based upon EPA's review of PA 98’s consistency 

with the CWA and its implementing regulations. This review has not yet been 

completed. EPA is working with Michigan’s Department of Environmental Quality 

to understand the proposed changes to Michigan’s CWA section 404 program, so 

that a decision can be made to approve those consistent with the CWA. See also the 

summary response. 

As stated in the summary, EPA is convening a subcommittee under the National 

Advisory Council for Environmental Policy and Technology (NACEPT) to provide 

advice and recommendations on how the EPA can best clarify assumable waters for 

dredge and fill permit programs pursuant to the Clean Water Act section 404(g).

We welcome Michigan’s participation in this effort

New Mexico Department of Agriculture (Doc. #13024)

1.425 Despite reference to a DEA prepared by the Corps for Section 404 aspects of the 

proposed rule on page 22222 in the Federal Register notice, NMDA has not been able to 

locate this National Environmental Policy Act documentation. Such an important 

document should have been made publicly available on the EPA's Waters of the US. 

website. NMDA submitted a Freedom of Information Act (FOIA) request on October 27, 

2014, for these documents. This FOIA request can be found in Appendix B. (p. 17-18) 

Agency Response: The Army has prepared a final environmental assessment and 

Findings of no Significant Impact in accordance with the NEPA. See Preamble for 

discussion.

Board of Commissioners of Carbon County, Utah (Doc. #12738)

1.426 One issue that the guidance does not address but is most relevant in throughout the west 

is water rights and state sovereignty. SWANCC, dispelled Army corps and EPA’s 

policy’s asserting that virtually all U. S. wetlands were, at least theoretically, subject to 

regulation under section 404. It was stated that primacy of wetland analysis falls on states 

primarily and local governments. State and local wetlands regulatory programs focus 

primarily upon navigable waters, tributaries, and adjacent wetlands. In many cases they 
Clean Water Rule Response to Comments – Topic 1: General Comments 

298

are a superior substitute for federal jurisdiction. At present 14 states have regulatory 

programs for freshwater wetlands. These programs are variable and need to be 

considering the differences that exist because of various wetland types and the major uses 

within the range of each drainage or HUC. The comprehensiveness of state programs and 

regulations are assessed on a case by case basis that considers wetland size, mapping 

requirements, and can in some cases include exemptions for specified activities. 

According to the Association of State Wetland Managers (ASWM), state regulations do 

not generally apply to federal lands. This is true because the overreach of the federal 

agencies trump state sovereignty by using the interstate commerce clause in a manner 

that would sicken the founding fathers. In reality, the federal government could save 

billions of dollars by returning regulatory responsibility back to the states; especially 

those with the largest isolated wetland acreages. At present these states provide little or 

no protection realizing they have no acknowledged authority and regulatory attempts on 

their part would instigate additional state expenses from mute duplication. However, it is 

reasonable to understand that legislative inaction continues to add to the federal tax 

burden and only serves overreaching federal agencies that continue to gain more power 

and autonomy from an inactive Congress. (p. 3-4)

Agency Response: See summary response above as well as summary response 

under section 1.1 Comments on State/Tribal Authority. The EPA cannot speak to 

what ASWM may have advised states 

1.427 States do not have the constitutional constraints that the federal government does in 

enacting legislation (i.e., whether a legislative action exceeds Congress' power under the 

Commerce Clause). Also, CWA section 404(t) expressly provides that the existence of 

section 404 does not preempt state law governing the discharge of dredged or fill 

material. However, whether states will take steps to expand wetlands protection in 

response to the need is a political and resource need question (e.g., budget and staffing). 

It is quite likely that among states, most will do it. Utah already does. (p. 4) It is quite 

likely that among states, most will do it. Utah already does. (p. 4) 

Agency Response: See summary response above and under section 1.1 Comments 

on State/Tribal Authority. Nothing in this rule changes this fundamental CWA 

right of states and tribes to regulate discharges of pollution and dredge or fill 

material into their waters and is consistent with CWA section 404(t).

Landmark Legal Foundation (Doc. #15364)

1.428 It usurps state authority in contravention of section 404(g) of the Clean Water Act's (33 

USC § 1251 et. seq., 'TWA" or "the Act") (p. 1)

Agency Response: As stated in the summary above, this rule does not affect 

state’s rights pursuant to section 404(g) of the CWA. States, or tribes, wishing to 

administer their own CWA section 404 dredge and fill permitting program, may 

seek to have their program approved by the EPA. Michigan and New Jersey are 

currently the only two states who have sought to assume these permitting 

responsibilities.
Clean Water Rule Response to Comments – Topic 1: General Comments 

299

USA Rice Federation (Doc. #13998)

1.429 The proposed exemptions are supported by the statute and agency policy. Water is used 

extensively by municipalities, industries and agriculture. The right to use water is the 

subject of state water law, and is not addressed by the Clean Water Act. CWA § 

101(g).129 Following use, water may be discharged to a water of the U.S. Such water 

may carry pollutants to a navigable water, but that discharge into a water of the U.S. is 

regulated under section 404 or 402 (or is exempt by statute). The water itself is not 

regulated until it is discharged.130 (p. 10)

Agency Response: See summary response above under section 1.1 Comments on 

State/Tribal Authority. This rule recognizes the unique role of states related to 

water quantity and is con consistent with section 101(g) of the CWA. 

Tennessee Farm Bureau Federation (Doc. #14978)

1.430 Tennessee should not be in a subservient role in protecting upstream, non-navigable 

waters. Congress established numerous programs and incentives for states to protect 

smaller, non-navigable waters. This design would ensure the protection downstream of 

larger, navigable waters under jurisdiction of the Agencies. Many of these programs were 

structured for land use activities like farming. Sections 208 and 303(e) require 

management plans for nonpoint sources. Section 319 provides funding for states like 

Tennessee to control and prevent nonpoint sources. These programs have worked and are 

taken seriously in Tennessee to ensure we do our part protecting the total network of 

waters throughout this state from impairment. Why after decades of proven success of 

these programs propose a rule that would place all water features in Tennessee under 

federal jurisdiction. Why did Congress implement these programs if they intended for the 

Agencies to exercise control over all water features? Today watersheds receive 319 

funding if nonpoint sources are causing impairment that needs to be addressed. Under 

this proposal the heavy hand of the federal government will require section 404 permits 

to do the job. We believe this is a contradiction of Congress’ intent. (p. 4)

Agency Response: See summary response above as well as under section 1.1 

Comments on State/Tribal Authority.

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

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

identifying waters protected under the CWA clearer, simpler, and faster. In this 

final rule, the agencies are responding to those requests from across the country to 

make the process of identifying waters protected under the CWA easier to 

 

129 “It is the policy of Congress that the authority of each State to allocate quantities of water within its jurisdiction 

shall not be superseded, abrogated or otherwise impaired by this Act. It is the further policy of Congress that nothing 

in this Act shall be construed to supersede or abrogate rights to quantities of water which have been established by 

any State.”

130 See, e.g., National Pork Producers Council v. EPA, 635 F.3d 738 (5th Cir. 2011) (water in a lagoon is not 

regulated under the CWA until it is discharged); American Iron and Steel Inst. v. EPA, 155 F.3d 979, 996 (D.C. Cir. 

1997) (“The statute is clear: The EPA may regulate the pollutant levels in a waste stream that is discharged directly 

into the navigable waters of the United States through a "point source"; it is not authorized to regulate the pollutant 

levels in a facility's internal waste stream.”).
Clean Water Rule Response to Comments – Topic 1: General Comments 

300

understand, more predictable, and more consistent with the law and peer-reviewed 

science. 

Environmental Council of the States (Doc. #15543)

1.431 ECOS also appreciates the EPA and the Corps’ recognition in the proposed rule preamble 

that the issue of state assumption of CWA Section 404 authority is a distinct issue that 

that should be addressed in a separate process for this specific topic: 

"This proposal does not affect the scope of waters subject to state assumption of 

the section 404 regulatory program under section 404(g) of the CWA. See CWA 

section 404(g). The scope of waters that are subject to state and tribal permitting 

is a separate inquiry and must be based on the statutory language in CWA section 

404. States administer approved CWA section 404 programs for ‘waters of the 

United States’ within the state, except those waters remaining under Corps 

jurisdiction pursuant to CWA section 404(g)(1) as identified in a Memorandum of 

Agreement 7 between the state and the Corps. 40 CFR 233.14; 40 CFR 

233.70(c)(2); 40 CFR 233.71(d)(2). Clarification of waters that are subject to 

assumption by states or tribes or retention by the Corps could be made through a 

separate process under section 404(g)." (79 Fed. Reg. 22200) 

States agree that Section 404 assumption is an important matter which should be treated 

separately from any final rule on the definition of Waters of the United States. ECOS 

supports state assumption of the Section 404 program by interested states (ECOS 

Resolution 08-3) and recently wrote to EPA requesting that efforts be undertaken to 

clarify several ambiguities surrounding the assumption process. States emphasize that a 

final rule should add such clarity that the need for implementation guidance is minimized. 

To the extent that guidance is needed, it should be developed with state involvement and 

published concurrently with any final rule. (p. 2-3)

Agency Response: In response to ECOS’s request and the request of other states 

and state associations, EPA is convening a subcommittee under the National 

Advisory Council for Environmental Policy and Technology (NACEPT) which will 

provide advice and recommendations on how the EPA can best clarify assumable 

waters for state and tribal dredge and fill permit programs pursuant to the Clean 

Water Act section 404(g). The EPA welcomes participation from ECOS and others 

in this effort. See summary response above.

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

1.432 We urge the federal agencies to continue attention to distinguishing between the 

jurisdictional definition of Waters of the United States, and the waters that are assumable 

by states under §404(g) of the CWA. 

The preamble to the proposed rule includes the statement:

“Today’s proposal does not affect the scope of waters subject to state assumption 

of the section 404 regulatory program under Section 404(g) of the CWA. ... The 
Clean Water Rule Response to Comments – Topic 1: General Comments 

301

scope of waters that are subject to state and tribal permitting is a separate inquiry 

and must be based on the statutory language of the CWA. ...”

We concur with this statement, but also are of the opinion that a more definitive 

clarification of the scope of assumable waters is needed to facilitate ongoing development 

of state-federal coordination. It has become apparent that there is not a clear 

understanding between states interested in assumption and the federal agencies regarding 

the means by which assumable waters are to be identified. Therefore, ASFPM requests 

that EPA and the Corps consult with the states and tribes to revise the existing 

assumption regulations to clarify this issue, preferably through formation of a FACA 

subcommittee to develop consensus and provide transparency. (p. 5)

Agency Response: EPA is convening a subcommittee under the National Advisory 

Council for Environmental Policy and Technology (NACEPT) which will provide 

advice and recommendations on how the EPA can best clarify assumable waters for 

state and tribal dredge and fill permit programs pursuant to the Clean Water Act 

section 404(g). The EPA welcomes participation from ASFM and others in this 

effort. See summary response above.

1.433 Other provisions of the CWA also lose significance in the proposed rule. For example, 

there is scope for assumption of significant responsibilities by state agencies in the 

primacy provisions of §404. Were the proposed rule to be adopted and implemented, it is 

unclear whether primacy would have any practical application potential, as the waters 

available for assumption could readily shrink to a level inconsistent with, for instance, the 

expense, logistics and administrative burden that would necessarily attend a state 

permitting program. This consequence of the proposed rule is not lost on Alaska and its 

state regulatory agencies, who have been actively cooperating with the agencies to 

evaluate assumption of §404 permitting. 

The CWA very attentively contemplates an oversight role for the federal government. 

This responsibility, for example, spare s states from a race to the bottom and attendant 

river fires. This role does not, however, deem the EPA and ACOE the sole sufficient 

protectors and stewards of clean water. In fact, the CWA explicitly includes 

congressional intent to "recognize, preserve, and protect the primary responsibilities and 

right s of States to prevent, reduce, and eliminate pollution, [and to] plan the development 

and use .. . of land and water resourccs[.]"131 The CWA also "expressly provide[s]" for all 

instances where federal authority could “be construed as impairing or in any manner 

affecting” state authority.132 Yet, the agencies have not cited any express provision that 

supports the majority of jurisdictional assumptions in the proposed rule. (p. 2-3)

Agency Response: See summary response above. The Agencies recognize the 

important role states and tribes have in managing the aquatic resources within their 

jurisdiction. This rule does not limit a state or tribe's ability to manage these 

resources under state or tribal programs. With respect to assuming the CWA 

section 404 permitting responsibilities, EPA is convening a subcommittee under the 

National Advisory Council for Environmental Policy and Technology (NACEPT) 

 

131 33 U.S.c. § 125 1(b).

132 33 U.S.c. § 1370
Clean Water Rule Response to Comments – Topic 1: General Comments 

302

which will provide advice and recommendations on how the EPA can best clarify 

assumable waters for dredge and fill permit programs pursuant to the Clean Water 

Act section 404(g). The EPA welcomes participation from the state of Alaska and 

others in this effort to clarify for which waters a state or tribe assumes CWA section 

404 permitting responsibility.

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

1.434 We urge the federal agencies to continue attention to distinguishing between the 

jurisdictional definition of Waters of the United States and the waters that are assumable 

by states under §404(g) of the CWA. 

The preamble to the proposed rule includes the statement: 

“Today’s proposal does not affect the scope of waters subject to state assumption of the 

section 404 regulatory program under Section 404(g) of the CWA. ... The scope of waters 

that are subject to state and tribal permitting is a separate inquiry and must be based on 

the statutory language of the CWA. ...” 

We concur with this statement, but are also of the opinion that a more definitive 

clarification of the scope of assumable waters is needed to facilitate ongoing development 

of state-federal coordination. (p. 4) 

Agency Response: See summary response above. In response to ASWM’s request 

and the request of other state associations (letter April 30, 2014) and states, EPA has 

initiated a separate process to address how the EPA can best clarify assumable 

waters for dredge and fill permit programs pursuant to the Clean Water Act section 

404(g)(1), and has invited nominations from a diverse range of qualified candidates 

for serving on a new subcommittee under the National Advisory Council for 

Environmental Policy and Technology (NACEPT) to provide advice and 

recommendations. 80 FR 13439 (Mar. 16, 2015). The EPA welcomes participation 

from ASWM and others in this effort. 

Florida Department of Agriculture and Consumer Services (Doc. #10260) 

1.435 State Sovereignty

“The powers not delegated to the United States by the Constitution, nor prohibited by it 

to the states, are reserved to the states respectively, or to the people.” U.S. Const. amend. 

X. Each state can establish regulations for water bodies within their borders that are not 

“waters of the U.S.,” which is to say those waters related to navigability, interstate 

commerce, and the federal government’s scope of powers. As the extent of “waters of the 

U.S.” is expanded, the regulatory control reserved solely to the states is diminished and, 

potentially, becomes nonexistent. This is not consistent with the CWA’s stated purpose of 

recognizing, preserving, and protecting the “primary responsibilities and rights of the 

States...to plan the development and use...of land and water resources....” SWANCC, 

531 U.S. at 174 (quoting 33 U.S.C. § 1251(b)). 

Within the bounds of the federal government’s enumerated powers, there is the concept 

of “cooperative federalism,” which is a term used to describe those spheres where federal 

and state authorities share a degree of regulatory authority over a particular area of 
Clean Water Rule Response to Comments – Topic 1: General Comments 

303

law.230 Under this construct, the federal government establishes a minimum level of 

regulation and the state assumes responsibility for administration of the federal program 

to standards at least at the federally-set floor; beyond that states may also implement 

stricter regulations. For instance, the CWA limits states to issuing permits for “the 

discharge of dredged or fill material into the navigable waters (other than those waters 

which are presently used, or are susceptible to use in their natural condition or by 

reasonable improvement as a means to transport interstate or foreign commerce 

shoreward to their ordinary high water mark, including all waters which are subject to 

the ebb and flow of the tide shoreward to their ordinary high water mark, or mean higher 

high water mark on the west coast, including wetlands adjacent thereto) within its

jurisdiction. 33 U.S.C. § 1344(g)(1) (emphasis supplied). The parenthetical carves out an 

exception, apparently reserving those specified waters for federal jurisdiction; however, if 

that is the case, it also seems that if the term “navigable waters” is amended by the 

proposed rule, the cooperative intent is thwarted as the term “navigable waters” 

encompasses a much wider subset of waters, infringing on and at least partially 

obliterating the jurisdiction of the states. The proposed rule offers little cooperation; 

rather, it expands federal jurisdiction and marks no limit as to the waters the CWA may 

reach, leaving uncertainty as to what the states will be left to regulate. (p. 78 – 79) 

Agency Response: See summary response above. The agencies disagree that the 

rule covers a “much wider” group of waters. The rule is narrower than current 

regulations, and does not differ significantly from how the Act is administered in 

current practice. Moreover, the Agencies recognize the important role states and 

tribes have in managing the aquatic resources within their jurisdiction. 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. This rule does not limit a state or tribe's ability to manage these resources 

under state or tribal programs. Florida raised concerns that the rule infringes upon 

and limits the scope of waters a state may assume permitting responsibility for per 

33 U.S.C. § 1344(g)(1). The scope of waters a state, or tribe, may assume CWA 

section 404 permitting responsibility for is a separate issue and one the EPA has 

committed to seek to clarify through another process. The EPA is convening a 

subcommittee under the National Advisory Council for Environmental Policy and 

Technology (NACEPT) which will provide advice and recommendations on how the 

EPA can best clarify assumable waters for dredge and fill permit programs 

pursuant to the Clean Water Act section 404(g). The EPA welcomes participation 

from the state of Florida and others in this effort. 

Association of Clean Water Administrators (Doc. #13069) 

1.436 ACWA requests that the rule clarify that the definition of navigable waters does not 

affect the ability of states to assume the 404 program. (p. 3)

Agency Response: In response to ACWA’s request and the request of other states 

and state associations, EPA is convening a subcommittee under the National 

Advisory Council for Environmental Policy and Technology (NACEPT) which will 

provide advice and recommendations on how the EPA can best clarify assumable 

waters for state and tribal dredge and fill permit programs pursuant to the Clean 
Clean Water Rule Response to Comments – Topic 1: General Comments 

304

Water Act section 404(g). The EPA welcomes participation from ACWA and others 

in this effort. See summary response above.

1.1.2. Water Supply and Allocation

Agency Summary Response

A number of commenters expressed concerns that the proposed rule would impair States’ rights 

to allocate quantities of water and to manage their water resources. Various commenters also 

stated that the proposed rule would infringe on private property rights in violation of the United 

States Constitution. 

The rule does not impact or diminish State authorities to allocate water rights or to manage their 

water resources. Nor does the rule violate the U.S. Constitution. 

Section 101(g) of the CWA states, “It is the policy of Congress that the authority of each State to 

allocate quantities of its water within its jurisdiction shall not be superseded, abrogated or 

otherwise impaired by [the CWA and] that nothing in [the CWA] shall be construed to supersede 

or abrogate rights to quantities of water which have been established by any State.” 

The rule is entirely consistent with these policies. Having been enacted with the objective of 

restoring and maintaining the chemical, physical, and biological integrity of our nation’s waters, 

the CWA serves to protect water quality. Neither the CWA nor the rule impairs the authorities of 

States to allocate quantities of water. Instead, the CWA and the rule serve to enhance the quality 

of the water that the States allocate. 

Even if the rule were to have an incidental effect on water quantity or allocation, which it does 

not, the rule would still be consistent with section 101(g) of the CWA. In PUD No. 1 of Jefferson 

County v. Washington Dept. of Ecology, 511 U.S. 700, 720, 114 S.Ct. 1900, 1913, 128 L.Ed.2d 

716, 733 (1994) the United States Supreme Court held, “Sections 101(g) and 510(2) [of the 

CWA] preserve the authority of each State to allocate water quantity as between users; they do 

not limit the scope of water pollution controls that may be imposed on users who have obtained, 

pursuant to state law, a water allocation.” See the Technical Support Document for a discussion 

of state water allocation and the CWA jurisdiction.

Under the rule, States, tribes, and local governments, consistent with the CWA, retain full 

authority to implement their own CWA programs to protect their waters more broadly or more 

fully than under the CWA. According to section 510 of the CWA, unless expressly stated in the 

CWA, nothing in the CWA precludes or denies the right of any State, tribe, or political 

subdivision to establish its own standards or limits, as long as these standards and limits are at 

least as protective as those under the federal CWA. Many States and tribes, for example, protect 

groundwater. Others protect wetlands that are vital to their environment and economy but are 

outside the regulatory coverage of the CWA. Nothing in the rule limits or impedes any existing 

or future State, tribal, or local efforts to further protect waters. In fact, by providing greater 

clarity regarding what waters are subject to the CWA, the rule will assist States and tribes 
Clean Water Rule Response to Comments – Topic 1: General Comments 

305

authorized section 402 and 404 CWA permitting programs, because it will reduce the need for 

case-specific jurisdictional determinations.

The rule gives full force and effect to State authorities. It has been developed in furtherance of 

the Congressional policy, as articulated in section 101(b) of the CWA, to recognize, preserve, 

and protect the primary responsibility of States to prevent, reduce, and eliminate pollution, to 

plan the development and use (including restoration, preservation, and enhancement of land and 

water resources), and to consult with the EPA Administrator in the exercise of the 

Administrator’s CWA authority. The rule is also in keeping with the directive of section 501(2) 

of the CWA that unless otherwise expressly provided in the CWA, nothing in the CWA is to be 

construed as impairing or in any manner affecting any right or jurisdiction of the States with 

respect to the waters (including boundary waters) of such States.

The rule does not constitute a taking of private property rights. As a matter of law, an agency’s 

determination of jurisdiction, by itself, cannot constitute a regulatory taking. See, e.g., U. S. v. 

Riverside Bayview Homes, 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). Even if there is 

a finding of jurisdiction there can still be no taking unless and until the owner is prevented from 

using the property. The rule does not establish any regulatory requirements. Instead, it is a 

definitional rule that clarifies the scope of “waters of the U.S.” consistent with the CWA, U.S. 

Supreme Court precedent, and science. It does not alter the underlying regulatory structure of the 

CWA. Under the CWA, any person discharging a pollutant from a point source into navigable 

waters must obtain a permit. 

Courts have consistently upheld the constitutional authority of federal agencies to regulate 

activities causing air or water pollution. Hodel v. Virginia Surface Mining and Reclamation 

Association, Inc., 452 U.S. 264, 282-283, 101 S.Ct. 2352, 2363, 69 L.Ed. 2d 1 (1981); , 332 F.3d 

698, 704, 707 (4th Cir. 2003), cert. den. 541 U.S. 972, 124 S.Ct. 1874, 158 L.Ed.2d 466 (2004); 

U.S. v. Ashland Oil and Transportation Co., 504 F.2d 1317, 1329 (6th Cir. 1974); See also U.S. 

v. Cundiff, 555 F.3d 200, 213, n. 6 (6th Cir. 2009), cert. den. 558 U.S. 818, 130 S.Ct. 74, 174 

L.Ed.2d 27 (2009).).

Specific Comments

Arizona Game and Fish Department (Doc. #15197)

1.437 The draft Connectivity report describes in Section 4.8 a connection between the quantity 

of water delivered by a watershed from ephemeral and intermittent tributaries to WUS as 

defined in the proposed Rule. The Department believes that water conservation or water 

supply augmentation projects seeking to capture sheet flow and surface water run-off for 

augmentation of local water supplies might deprive downstream channels of their 

physical and hydrological connection to WUS. It is unclear as to how the proposed Rule 

would affect local water quantity management practices, the exercise of which is reserved 

to the States. (p. 2)

Agency Response: Please see the summary response, regarding States’ roles in 

water quantity management. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

306

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

1.438 We are unaware of any consultation that has taken place with state and regional entities 

that own and manage these water supply facilities with respect to any changes that may 

occur as a result of this proposed rule. We urge the agencies to carefully consider the 

impact of this rule on water supply systems and make the appropriate changes in the final 

rule to ensure that the public can continue to rely upon these sources for dependable and 

affordable water supply. (p. 4)

Agency Response: During the development of the rule, the agencies consulted 

with state and local governments. Please see section VI.E., entitled “Executive Order 

13132: Federalism” in the preamble to the final rule for more details. The agencies 

expect that the rule will assist state and local agencies in managing water supply 

facilities, inasmuch as the rule will clarify the scope of water resources subject to 

CWA protection. 

Energy Producing States Coalition (Doc. #11552)

1.439 In essence, water allocation and water itself is the property of a state. Without a clear 

limiting principle under the rule, there is no defined demarcation of where the federal 

jurisdiction ends and where the state's begins. We have trouble understanding how such a 

regulatory posture I0.can be construed as anything other than an arbitrary agency takings 

that not only usurps well-established state rights under the 10th Amendment , but the 

personal property rights of individuals that will be denied beneficial use of their own land 

or legally acquired water rights. (p. 2)

Agency Response: The EPA is responding to the comments about the Tenth 

Amendment in the Legal Comment Response Compendium.

Western Urban Water Coalition (Doc. #15178)

1.440 Western municipalities have acquired most, if not all, of their water portfolios under the 

prior appropriation system administered by their respective states. However, in order to 

put those waters to beneficial use, they must divert or store that water and subsequently 

deliver it through a complex set of collection and distribution infrastructure. Congress, 

through sections 101(g) and 510(2) of the CWA, has afforded an appropriate measure of 

deference to state water allocation decisions. Given the expansive reach of the Proposed 

Rule, including its determination as to what constitutes waters that are “jurisdictional by 

rule,” infrastructure related activities of the municipal water providers could become 

subject to federal oversight. If the proposal had this outcome, it would effectively remove 

the concept of “navigable” from the Act contrary to the Supreme Court’s admonition in 

SWANCC that this term must be accorded some effect. SWANCC, 531 U.S. at 172 (“We 

cannot agree that Congress’ separate definitional use of the phrase ‘waters of the United 

States’ constitutes a basis for reading the term ‘navigable waters’ out of the statute.”) 

Certainly in an area of traditional state primacy, such as the allocation and distribution of 

essential water supplies, the federal agencies should be reluctant to expand federal 

jurisdiction in the absence of a clear Congressional directive to do so. No such directive 

exists here. (p. 6)
Clean Water Rule Response to Comments – Topic 1: General Comments 

307

Agency Response: Please see the summary responses, above, including regarding 

States’ roles in allocating water supplies. The agencies’ revised definition of “waters 

of the U.S.” is consistent with the text of the CWA, Supreme Court rulings, the best 

available peer-reviewed science, public input, and the agencies’ technical expertise 

and experience in implementing the CWA over the past four decades. 

Washington State Water Resources Association (Doc. #16543)

1.441 The potential effects of the proposal’s expanded jurisdiction are not limited to water 

recycling and groundwater recharge projects. It would also directly impact efforts to 

construct and maintain traditional water supply infrastructure. The Agencies’ proposal 

would capture larger areas within the CWA’s jurisdiction, making it much more likely 

that infrastructure work could fall into the CWA’s purview. Many of our members have 

decades of on the ground experience constructing water delivery systems. Their 

experience shows that when the CWA is triggered it is not a trivial matter. Depending on 

project size, triggering CWA jurisdiction can add a decade or more to the permitting 

process and tens of millions of dollars or more in project costs. 

Our members are very conscious of the cost of water. Providing access to an affordable 

water supply is something that is of the utmost importance to our members. It is an 

irreplaceable resource that is vital for health and safety needs. It is also something that the 

United Nations has recognized as a basic human right. In addition some western states 

have adopted measures that also recognize access to affordable water as a human right. 

Despite our members’ best efforts, access to affordable water is not universally available 

in the United States. NWRA’s members remain committed to working to meet this need 

and are confident that the Agencies share this commitment. Unfortunately, the proposal 

in its current form stands to make providing affordable water supplies more challenging. 

(p. 13-14)

Agency Response: As indicated in the preamble, the revised rule narrows the 

scope of regulatory jurisdiction. The rule provides greater clarify regarding which 

waters are subject to the CWA. The agencies expect that the rule will promote state 

and local efforts in providing clean, affordable water supplies. 

Alameda County Cattlewomen (Doc. #8674)

1.442 States have their own system of water law that governs public and private water rights 

within their borders. The western states in particular have adopted some form of the prior 

appropriation doctrine (prior appropriation), or "first in time, first in right," regarding 

surface water and many have, to some degree, integrated this approach into their system 

of ground water law. Under the prior appropriation doctrine, water rights are obtained by 

diverting water for "beneficial use", which can include a wide variety of uses such as 

domestic use, irrigation, stock-watering, manufacturing, mining, hydropower, municipal 

use, agriculture, recreation, fish and wildlife, among others, depending on state law. The 

extent of the water right is determined by the amount of water diverted and put to 

beneficial use.

Any imposition by the federal government that infringes on property rights based on 

settled state water law would constitute takings under the Fifth Amendment to the United 

States Constitution and would require just compensation. (p. 25)
Clean Water Rule Response to Comments – Topic 1: General Comments 

308

Agency Response: Please see the summary response, above. 

Relief Ditch Company (Doc. #11977)

1.443 Additionally, we are very concerned about priority water rights. The state of Colorado 

should continue to manage water rights under Colorado law as they have done for over

150 years. Please consider the impact on all regions before moving forward. (p. 1)

Agency Response: Please see the summary response, above.

Kentucky Farm Bureau (Doc. #14567.1)

1.444 The Agencies propose to assert jurisdiction over features that can store water, arguing 

that the ability to store water creates a nexus to a downstream water that might otherwise 

receive flows. This authority would give the Agencies the ability to control the expansion 

or removal of water storage units, such as reservoirs or ponds, and the installation of 

pipes in a reservoir or pond needed to remove water from storage. The result would be 

federal control over the use of that water. However, the Clean Water Act expressly 

reserves that authority to states. (p. 3)

Agency Response: Under the existing rule, impoundments of “waters of the 

United States” remain “waters of the United States.” See 33 C.F.R. § 328.3(a)(4). 

The rule does not change the existing regulatory language for impoundments. Under 

the rule, states will retain their authorities to manage water storage units. Please see 

the summary response, above.

Western Governors Association (Doc. #14645)

1.445 In the West, stormwater discharges to ephemeral streams in arid regions pose 

substantially different environmental risks than do the same discharges to perennial 

surface waters. The Western Governors emphasize the importance of state primacy in 

water management, including management of ephemeraal streams. State water agencies 

are well-equipped to provide tailored approaches that reflect the unique management of 

ephemeral streams. (p. 8)

Agency Response: The agencies agree that it is appropriate for States to manage 

ephemeral streams. By providing predictability and consistency, the rule will assist 

State in managing and protecting these waters. 

Association of Metropolitan Water Agencies et al. (Doc. #15157)

1.446 The transfer of water for purposes of water supply is an essential element of water 

resource management and that management warrants close attention and clarity as to the 

jurisdiction of the CWA. In defining WOTUS, EPA and the Corps should be clear that 

waters transferred from one water body to another without intervening municipal, 

industrial, or agricultural use should not be subject to WOTUS restrictions for purposes 

of water utility operations and maintenance.

The WOTUS rulemaking also raises questions regarding federal recognition of state 

water quantity management. Again in keeping with the rule’s purpose of clarifying 

historic practice in the context of recent court rulings, when finalizing the rule, EPA and 

the Corps must explicitly defer authority over water quantity to states, as required by 
Clean Water Rule Response to Comments – Topic 1: General Comments 

309

CWA section 101(g). The rule language must give full force and effect to and not 

diminish or detract from States’ authority over water allocation and water rights 

administration. (p. 2)

Agency Response: Transfers of water from one water body to another without 

intervening municipal, industrial, or agricultural use are addressed in 40 C.F.R. 

§ 122.3(i) and 73 Fed. Reg. 33697-33708 (June 13, 2008) and are outside the scope of 

this rule. With regard to State roles under section 101(g) of the CWA, please see the 

summary response, above.

Western Resource Advocates (Doc. #16460)

1.447 Some opponents of the rule have suggested that it conflicts with state water allocation 

systems, especially in the west, and would constitute a taking of private property rights. 

This concern is inapt. Indeed, the Clean Water Act makes clear that its implementation 

should not supersede, abrogate or impair the exercise of water rights under state water 

allocation law.133 Interpreting this language, courts have consistently upheld agency 

efforts to enforce Clean Water Act requirements on water rights holders whose actions 

discharge pollutants or dredged and fill materials to WOTUS, including wetlands.134

Clarifying the definition of what constitute WOTUS may affect individual water rights 

holders insofar as a proposed discharge may be to a waterbody or wetland that is now 

jurisdictional – or that now is no longer jurisdictional. However, a refined WOTUS 

definition does not affect settled law that water rights holders are subject to Clean Water 

Act regulation when the exercise of their water rights may result in a discharge of 

pollutants or dredged and fill materials to jurisdictional waters. (p. 27)

Agency Response: See summary responses above.

Ducks Unlimited (Doc. #11014)

1.448 Similarly, it is also desirable to be very clear that the proposed rule has no impact on 

states' authorities to regulate water from the standpoint of addressing quantity and 

allocation issues. We believe the new rule could and should actually benefit those efforts 

by helping to maintain water flows in "waters of the U.S.," particularly if findings of 

significant nexus are scientifically justified and jurisdiction by rule is extended to the 

"other waters" in ecoregions in which wetlands and other waters contribute to base flows 

and are important components of the ecosystem. (p. 35)

Agency Response: See summary responses above. With respect to water quantity 

and allocation issues, please see the agencies’ other comments regarding section 

101(g) of the CWA. 

 

133 33 U.S.C. § 1251(g).

134 See PUD #1 of Jefferson County v. Washington Dep’t of Ecology, 511 U.S. 700 (1994); U.S. v. Akers ̧ 785 F.2d 

814 (9th Cir. 1986); Riverside Irrigation Dist. v. Andrews, 758 F.2d 508 (10th Cir. 1985).
Clean Water Rule Response to Comments – Topic 1: General Comments 

310

1.1.3. Property Rights

Agency Summary Response

Please see the summary responses above in this section. The preamble and Technical Support 

Document provide additional information.

Specific Comments

Mike Holmes, Representative, Alabama State House D-31 (Doc. #1151)

1.449 As a small tree farmer in Elmore County, Alabama, this threat of morel federal intrusion 

into our private property rights as provided in our Constitution is very threatening. We 

need much less government in our lives and livlihoods, not more! (p. 1)

Agency Response: Please see the summary responses, above.

Richard F. Colburn, The Senate of Maryland (Doc. #4870)

1.450 I represent a District consisting of many streams, creeks and rivers that would now be 

under EPA control should these regulations b e approved. These regulations would force 

the property owners I represent to be subject to rules and regulations that should not be 

governed by any federal agency. (p. 1)

Agency Response: Please see the summary responses above.

Attorney General of Texas (Doc. #5143.2)

1.451 Under the federal agencies' proposed rubric, the first six categories would effectively 

establish a set of "waters of the United States" by rule, while the final category would 

grant the agencies authority to determine all "other waters" by using the highly subjective 

"significant nexus" analysis on a case-by-case basis. As we noted in our letter to the EPA 

regarding its 2011 Draft Guidance on Identifying Waters Protected by the Clean Water 

Act, the result of this ad-hoc analysis will be that landowners will often not know (or 

even know to consider) whether bodies of water on their private properties-potentially 

even dry fields and creek beds- are subject to Clean Water Act jurisdiction until a federal 

field agent arrives to conduct this highly subjective "significant nexus" analysis. The 

proposed rulemaking makes no mention of.-and it appears the federal agencies have not 

even considered-the rule's potential effect on the market value of land that is clouded by 

the uncertainty created by the agencies' new approach. Nor do the federal agencies appear

to have considered the chilling effect the proposed rulemaking could have on the 

economic development of private property that, depending on an individual field agent's 

future determination, may be deemed subject to federal regulation. (p. 2)

Agency Response: The rule will provide increased clarity and consistency 

regarding the definition of “waters of the US.” Please see the summary responses 

above.
Clean Water Rule Response to Comments – Topic 1: General Comments 

311

State of Tennessee, House of Representatives (Doc. #5597)

1.452 We believe the proposed rule defines "waters of the United States" in a manner that 

increases burdensome and costly permitting requirements, infringes on private property 

rights, and circumvents the legislative process. EPA's jurisdiction is expanded to waters 

previously not regulated as "waters of the United States". (p. 1)

Agency Response: Because the rule will increase clarity and consistency regarding 

the definition of “waters of the U.S.,” the agencies expect that it will decrease 

burdens and costs associated with permitting requirements. Please also see the 

summary responses above.

Wyoming House of Representatives (Doc. #14308)

1.453 In essence, water allocation and water itself is the property of a state. Without a clear 

limiting principle under the rule, there is no defined demarcation of where the federal 

jurisdiction ends and where the state's begins. I have trouble understanding how such a 

regulatory posture can be construed as anything other than an arbitrary agency takings 

that not only usurps well-established state rights under the 1Oth Amendment, but the 

personal property rights of individuals that will be denied beneficial use of their own land 

or legally acquired water rights. (p. 2)

Agency Response: Please see the summary responses above. 

Anonymous (Doc. #1371)

1.454 WHEREAS, the proposed rule, if adopted would infringe on private property rights, 

impairing land management activities such as urban development and agriculture 

production; (p. 1)

Agency Response: Please see the summary responses, above.

Kimble County Commissioners' Court, Kimble County, Texas (Doc. #4534)

1.455 WHEREAS, the proposed rule is an attempted end-run around Congress and two 

Supreme Court rulings and would grant authority to the EPA/CORE that would infringe 

upon private property rights as well as the Rights of the Individual States. (p. 1)

Agency Response: Please see the summary responses above.

Warrick County Board of Commissioners, Boonville, IN (Doc. #5145)

1.456 The over-broad definition of small waters to include "significant nexus" can be 

interpreted to include virtually every low-lying area, ditch, floodplain, or natural 

rainwater runoff path without respect to the frequency of water in these areas. This will 

certainly expand the jurisdiction of the EPA and Corps, directly impacting the local 

farming community by increasing costs for permits and mitigation and decrease revenues 

due to delays while waiting approval for permits and farming techniques. Indeed this 

increase in cost will be felt beyond the local fanning community in the form of higher 

prices for consumers. We also believe this expanded definition could result in restrictions 

and directives ordering local fanners to refrain from farming portions of their land. This 
Clean Water Rule Response to Comments – Topic 1: General Comments 

312

invasion into the private property of local property owners is against the spirit of the 

CWA, Congressional exemptions to the CWA, and recent U.S. Supreme Court opinions.

(p. 1)

Agency Response: As indicated in the preamble, the rule narrows the scope of 

CWA regulatory jurisdiction. Please also see the summary responses above.

Sierra Soil and Water Conservation District (Doc. #5593)

1.457 The proposed changes are only an attempt by federal agencies, the Environmental 

Protection Agency (EPA) and the Army Corps of Engineers, to expand their jurisdiction 

and control over dry land and non-navigable waters. These changes would drastically 

increase the scope of navigable waters making small, remote waters, and even portions of 

dry land subject to the clean water act. We believe this is a violation of the U. S. 

Constitution and an infringement on private property rights. (p. 1)

Agency Response: As indicated in the preamble to the final rule, the rule narrows 

the scope of CWA regulatory jurisdiction. Please also see the summary responses 

above.

Owyhee County Board of Commissioners (Doc. #12725)

1.458 Both of the above actions resulting from the proposed rule will be a taking of the private 

property rights of the landowner. Such infringement of State and County authority and 

such taking of private property rights greatly exceed the scope and intent of the CWA as 

passed by the Congress. (p. 3)

Agency Response: As indicated in the preamble to the final rule, the rule narrows 

the scope of CWA regulatory jurisdiction. Please also see the summary responses 

above.

Board of Commissioners of Carbon County, Utah (Doc. #12738)

1.459 The guidance is nothing short of a license to allow EPA and the Corp of Engineers to 

dictate all land-use across the nation. Much of the document assumes to takeover of 

State’s water right authority. In one portion of the document EPA gives itself authority to 

make overriding determinations without a mechanism for appeal or public hearing. 

Outright litigation to protect property rights would be the only avenue for someone who 

was impacted by this administrative fiat. However, many of those impacted would have 

no ability seek justice in court due to the extreme expenses of defending their property 

rights in a series of expensively debilitating court battles. (p. 2)

Agency Response: The rule does not change the scope of, and in fact narrows, 

CWA regulatory jurisdiction. Other CWA processes are outside the scope of this 

rule. Please also see the summary responses above. 

Pocahontas County, IA (Doc. #13666)

1.460 This board is very concerned that the rights of farmers across the country to continue 

improvements to private drainage systems on the long-cropped lands of the county not be 

materially impaired. These private drains are essential to the successful farming of most 

of the soils in the county and are essential to maintaining the tax base of the county. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

313

These private drains and their outlet drainage district mains are not static and must be 

periodically repaired, replaced and improved. (p. 1)

Agency Response: See summary responses above. Improvements to private 

drainage systems are not within the scope of this rule.

Chaves Soil & Water Conservation District, New Mexico (Doc. #13953)

1.461 We believe this is an outright violation of the US Constitution and an intrusion on private 

property rights, and is nothing short of a license for these agencies to micromanage landuse. (p. 1)

Agency Response: Please see the summary responses above. 

Pima Natural Resource Conservation District (Doc. #14720)

1.462 The District believes the proposed regulations to be a massive Regulatory takings that 

would effectively devalue private property without just compensation. Even worse, any 

efforts to enforce the proposed regulations will make law abiding citizens feel victimized 

and robbed without realistic remedy because appeal of arbitrary and vindictive rulings 

will be beyond the economic means of most citizens. (p. 3)

Agency Response: Please see the summary responses above. 

1.463 Private property is not a utopian concept. It is the bedrock of American productivity and 

the best hope for conservation of natural values. It is the basic right of our Cooperators 

who own the land and who wish to conserve its productive value while preserving the 

culture, community and traditions of the generations that passed that heritage on to them. 

The right to hold private property is the most powerful tool for motivating human 

ingenuity to improve landscapes. Free people, vested with the security of private property 

and the rule of moral law, have natural incentives to enhance the value of land that 

belongs to them. An improving natural world order occurs because of freedom, not in the 

absence of freedom. And as George Washington said, “private property and freedom are 

inseparable.” Our District Cooperators rely on that property and on the right to produce 

products without undue burdens exceeding rational respect for the equal rights of their 

neighbors. (p. 4)

Agency Response: Please see the summary responses, above.

Republican River Water Conservation District (Doc. #15621)

1.464 The proposed rule's practical effect on property rights cannot be reconciled with Section 

101(g) of the Act, which states that "nothing in [the CWA] shall be construed to 

supersede or abrogate rights to quantities of water which have been established by any 

state," or the U.S. Supreme Court's decision in SWANCC. (p. 8)

Agency Response: Please see the summary responses, above.

Pike County Economic Development Corporation (Doc. #5460)

1.465 This proposed rule will give primacy to the federal government over local and State land 

use rules. When federal agencies have the power to grant, deny or veto a federally 
Clean Water Rule Response to Comments – Topic 1: General Comments 

314

enforceable permit to build, plant, fence, apply fertilizer or spray pesticide or disease 

control products on land managed by businesses and municipalities, that is regulatory 

authority over land use. If a landowner cannot build a house on, build a fence over, or 

manipulate a jurisdictional wetland or ephemeral drain that runs across his or her land 

without a federal permit, then that is regulating land use. (p. 2)

Agency Response: Please see the summary responses, above.

Landmark Legal Foundation (Doc. #15364)

1.466 The proposed rule will establish an unauthorized and nearly limitless power within the 

Agencies' to regulate private property. (p. 1)

Agency Response: Please see the summary responses, above.

Louisiana Landowners Association (Doc. #16490)

1.467 If adopted, the proposed Definition would give the EPA and Corps control over more 

privately owned land than ever before. The proposed Definition would gut individual 

property owner rights and effectively prevent landowners from making productive use of 

their own property. The scope of the proposed Definition does nothing to advance the 

intended congressional purpose of the Clean Water Act (the "Act") and directly 

undermines the individual property rights of American citizens with potentially disastrous 

economic consequences. (p. 1)

Agency Response: As indicated in the preamble to the final rule, the rule narrows 

the scope of waters subject to the CWA’s regulatory jurisdiction. Please also see the 

summary responses, above.

Western States Land Commissioners Association (Doc. #19453)

1.468 As set forth in our resolution, WSLCA urges the EPA to suspend and reconsider action 

on this rulemaking given that it contravenes Supreme Court precedent and federal 

statutory authority, lacks adequate scientific support and economic analysis, and 

prejudices the substantive and vested rights of landowners. (p. 1)

Agency Response: Please see the summary responses, above.

Kolter Land Partners and Manatee-Sarasota Building Industry Association (Doc. #7938.1)

1.469 For years, landowners and regulators alike have been saddled with continued uncertainty 

regarding the scope of federal jurisdiction under the CWA. However, the proposed rule 

would vastly increase federal regulatory power over private property and trigger issues 

and results that the Agencies have not even considered. Such proposed changes are not 

consistent with the original legislative intent of the CWA, represent a marked departure 

from Supreme Court decisions, and raise significant constitutional, procedural, and 

practical questions. If implemented, new responsibilities will be imposed, costs borne, 

and the rights and responsibilities of private property owners curtailed by the new 

regulations, leading to further and unwarranted impacts on the housing industry, local 

economies, and state prerogatives. (p. 1)
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315

Agency Response: As indicated in the preamble to the final rule, the rule narrows 

the scope of waters subject to the CWA’s regulatory jurisdiction. Please also see the 

summary responses, above.

Home Builders Association of Michigan (Doc. #7994)

1.470 The proposed rule would vastly increase federal regulatory power over private property 

and trigger issues and results that the Agencies have not even considered. Such proposed 

changes are not consistent with the original legislative intent of the CWA, represent a 

marked departure from Supreme Court decisions, and raise significant constitutional, 

procedural and practical questions. If implemented, new responsibilities will be imposed, 

costs borne, and the rights and responsibilities of private property owners curtailed by the 

new regulations, leading to further and unwarranted impacts on the housing industry, 

local economies, and state prerogatives. (p. 2)

Agency Response: As indicated in the preamble to the final rule, the rule narrows 

the scope of waters subject to the CWA’s regulatory jurisdiction. Please also see the 

summary responses, above.

DreamTech Homes, Ltd. (Doc. #11012)

1.471 For years, landowners and regulators alike have been saddled with continued uncertainty 

regarding the scope of federal jurisdiction under the CWA. However, the proposed rule 

would vastly increase federal regulatory power over private property and trigger issues 

and results that the Agencies have not even considered. Such proposed changes are not 

consistent with the original legislative intent of the CWA, represent a marked departure 

from Supreme Court decisions, and raise significant constitutional, procedural, and 

practical questions. If implemented, new responsibilities will be imposed, costs borne, 

and the rights and responsibilities of private property owners curtailed by the new 

regulations, leading to further and unwarranted impacts on the housing industry, local 

economies, and state prerogatives. (p. 1)

Agency Response: As indicated in the preamble to the final rule, the rule narrows 

the scope of waters subject to the CWA’s regulatory jurisdiction. Please also see the 

summary responses, above.

Building Industry Association of Washington (Doc. #13622)

1.472 Homeowners and homebuilders will see the loss of use of their property as the EPA’s 

proposal shifts the burden of proving or disproving whether their property is subject to 

federal jurisdiction onto property owners. Those unable to afford to contest the EPA’s 

presumption simply lose their property rights. (p. 3)

Agency Response: Please see the summary responses, above.

Washington Cattlemen’s Association (Doc. #3723)

1.473 The EPA's Proposed Rule that re-defines Waters of t he United States (WOTUS) as 

referenced throughout the Clean Water Act (CWA) is an egregious effort to illegally 

empower the EPA to seize control over private property without just compensation. This 

Proposed Rule represents a per se takings when it is coupled with the Interpretive Rule 
Clean Water Rule Response to Comments – Topic 1: General Comments 

316

(IR) that narrows the agricultural exemption from the original CWA that states in Sec 404 

(f)(l): "Except as provided in paragraph (2) of this subsection, the discharge of dredge or 

fill material-(A)from normal farming, silviculture, and ranching activities such as 

plowing, seeding, cultivating, minor drainage, harvesting for the production of food, 

fiber, and forest products, or upland soil and water conservation practices" and WCA 

insists that the EPA must rescind both the Proposed Rule and the IR completely. (p. 2)

Agency Response: Please see the summary responses, above.

Alameda County Cattlewomen (Doc. #8674)

1.474 Not only would the proposed rule obliterate the rights of the states under the CWA and 

the Constitution, it similarly tramples on the private property rights of livestock 

producers. The vast expansion of the CWA to cover every wet and dry depression in the 

United States will create a great expansion of federal regulatory oversight into land-use 

activity. ACCW believe this proposed rule goes so far as to cover virtually every piece of 

dry land across the country through one way or another, depriving landowners of the use 

and enjoyment of their land and severely impacting their ability to make a living off of it. 

The Fifth Amendment of the U.S. Constitution provides two important rights to 

landowners in this context: the right of due process before life, liberty or property are 

taken from him and the right of just compensation for any taking of private property for 

public use.135 The takings clause is of utmost importance because this proposed rule has 

the potential to condemn vast swaths of land across the country, preventing beneficial 

activity from taking place. One regulatory action such as pronouncing all prairie potholes 

to be "similarly situated" and found to have the requisite “significant nexus" could 

condemn activity in a region of more than 300,000 square miles. With farms and ranches 

dominating much of the landscape, our members will feel a significant direct negative 

impact by preventing the use of their land for farming and ranching. As demonstrated 

throughout these comments, the agricultural exemptions and exclusions do not protect 

our industry from the reach of this regulation and as such the agencies should include a 

discussion of how they will compensate for a taking and impairment of private property. 

(p. 29-30)

Agency Response: Please see the summary responses, above.

Michigan Farm Bureau, Lansing, Michigan (Doc. #10196) 

1.475 The rule limits private property rights, which clearly goes beyond Congressional intent 

for the Clean Water Act, and beyond the limits set on agency jurisdiction through 

multiple Supreme Court decisions. (p. 12)

Agency Response: Please see the summary responses, above.

 

135 U.S. Const. amend V, art. IV § 3 (" ... nor be deprived of life, liberty, or property, without due process of law; nor

shall private property be taken for public use, without just compensation").
Clean Water Rule Response to Comments – Topic 1: General Comments 

317

Missouri Soybean Association (Doc. #14986)

1.476 The expanded federal jurisdiction negatively impacts and encroaches on landowner 

property rights and their ability to make rightful and productive use of their land. Under 

the federal law, once a feature is deemed a WOTUS, it will forever legally be deemed as 

a WOTUS. Farm ponds, lakes, stormwater structures, BMPs, green infrastructure, 

constructed wetlands, and other structures that are or could be jurisdictional under 

WOTUS were all man-made and never designed or assumed by their owners to be legally 

and forever permanent. (p. 9)

Agency Response: Please see the summary responses, above, and the responses to 

comments related to each of these types of structures.

Oklahoma Cattlemen's Association (Doc. #15176)

1.477 The most upsetting premise of the proposed rule is the disregard for the private property 

rights of Oklahoma beef cattle ranchers. In early April of 2014, EPA Administrator 

McCarthy remarked to the attendees at the National Cattlemen's Beef Association Spring 

Legislative Conference attendees in a public speech, to not worry because the rule will 

allow us to continue to farm and ranch. Further, in a September meeting with EPA water 

division staff in Washington DC, OCA President Richard Gebhart asked the staff 

members the purpose of the rule which they replied that the rule is needed in order to 

better define what land the EPA has jurisdiction. Further, incredible expansion of federal 

oversight to include every wet and dry depression as outlined in the rule will infringe if 

not take the freedoms of use and enjoyment of OCA member's land. 

A remark indicating that OCA members will be 'allowed to continue farming and 

ranching' is insulting of the very core values of cattle farmers and ranchers. Trying to 

further define what land the federal government needs jurisdiction goes well beyond the 

scope of the Clean Water Act into violating the very constitutional rights of private 

property. (p. 2)

Agency Response: Please see the summary responses, above.

Jensen Livestock and Land LLC (Doc. #15540)

1.478 Any imposition by the federal government that infringes on property rights based on 

settled state water law would constitute takings under the Fifth Amendment to the United 

States Constitution and would require just compensation. (p. 25)

Agency Response: Please see the summary responses, above.

Top O' The Mount Farm (Doc. #15833)

1.479 Hands off our waters and our lands! Stop taking the rights of property owners by 

increasing the power of the EPA and the U.S. Army Corps of Engineers. The power 

belongs to the people. (p. 1)

Agency Response: Please see the summary responses, above.
Clean Water Rule Response to Comments – Topic 1: General Comments 

318

Mohave Livestock Association & Mohave County Farm Bureau (Doc. #15859)

1.480 The logical explanation for such action is an unconstitutional land grab, blatantly 

pandering to special interest. We question the need to encumber, cause emotional distress 

and economic losses to the users of the land in massive red tape and punitive regulation, 

when the EPA has the tools to regulate clean water if the water is polluted? 

Rep. Vicky Hartzler (R-Mo) Stated "It is a potentially dangerous rule that could lead to 

infringements on farming and increase the cost of food. This policy is wrong for Missouri 

and wrong for America". Is anyone at the EPA listening to our Congressmen? 

What is the scientific and economic justification for the proposal? If finalized, this blatant 

disregard for private property rights would have devastating effects on landowners and 

producers in this country. (p. 1)

Agency Response: Please see the preamble to the rule and the summary 

responses, above.

Florida Crystals Corporation (Doc. #16652)

1.481 The Proposed Rule will significantly increase the scope of CWA regulatory jurisdiction 

in Florida in ways which exceed the authority of the U.S. Environmental Protection 

Agency ("EPA") and the U.S. Army Corps of Engineers ("Army Corps"). This would 

amount to an improper assertion of federal control over land use decisions on private 

lands. (p. 1)

Agency Response: Please see the summary responses, above.

The 9-12 Association, Inc. (Doc. #5556)

1.482 It is my belief that the EPA is overreaching its authority by trying to redefine regulated 

water and water ways. I believe that the EPA needs to withdraw this proposed rule. The 

continued attempts to control the rights of the people through unconstitutional regulations 

by an agency with no constitutional Authority will only force the people to demand that 

congress defund the EPA. (p. 1)

Agency Response: Please see the summary responses, above.

Nebraska Water Resources Association (Doc. #13565)

1.483 Imposing “categorical” decision making under the pretense of providing clarity to a 

private landowner and simplifying the workload for the EPA and the Corps resonates that 

the Agencies are more concerned for themselves and not the responsible use of our 

waters or the private landowner. While the rule may very well simplify the workload of 

the Agencies, the proposed rule fails to provide clarity and unnecessarily restricts how a 

private landowner can use his or her property and, more disconcerting, results in 

uncertainty as to how the private landowner will be able to use his or her property. (p. 3)

Agency Response: Increased clarity and consistency does benefit the agencies 

administering the CWA. More importantly, increased clarity and consistency 

benefit the regulated community and the public. See summary responses above.
Clean Water Rule Response to Comments – Topic 1: General Comments 

319

Citizen's Advisory Commission on Federal Areas, State of Alaska (Doc. #16414)

1.484 Major due process concerns arise when private property owners and sovereign states need 

to ask the federal government if permission is needed, regardless of whether it actually is 

needed, just to safely avoid significant fines and penalties without efficient or costeffective recourse. This request can include significant expenses, including contractors, 

fees, studies and surveys. The proposed rule creates a scenario where private property 

owners must obsequiously approach the federal government, engage in a lengthy and 

uncertain process, shell out potentially huge sums of money, where one of the possible 

results of the process is that the federal government had no authority to impose these 

requirements. At worst, this is tantamount to an unconstitutional extraction; at best, it is 

bad public policy. 

Asserting the need for a better way to engage with federal agency authorities under the 

CWA should not be taken as a failure to appreciate or care about the national interest in 

clean water. This is about how much states, businesses and citizens would have to pay 

and endure to acquire and confirm rights they already possess. This burden includes not 

only money but also lost opportunity for everything from conservation projects to 

responsible business creation and expansion to critical infrastructure development and 

maintenance. Regardless of the proposed rule's insistence on clarity, if adopted, every 

project related to lands or waters in the U.S. will become hostage to a jurisdictional 

question . 

The cost of disproving the presumed connection would fall to the applicant. Instead of 

case-by case determinations establishing jurisdictional areas, which would be consistent 

with prevailing case law, determinations establishing non-jurisdiction will likely be the 

ones made case-by-case. As it stands, many project proponents in Alaska have limited 

construction seasons due to climate and logistics. In order to proceed with a project, 

many have simply conceded jurisdiction to avoid the delays and expense associated with 

wetlands studies and other requirements for a jurisdictional determination. Instead, 

applicants pay for compensatory mitigation at the outset. 

The proposed rule will force more §404 applicants to pursue this option. Yet, the 

proposed rule fails to acknowledge or explain how indeterminate expansion of 

jurisdictional waters and wetlands under the proposed rule will correspondingly result in 

increased mitigation fees, thus undermining this readily understood cost-benefit analysis 

and offering no sustainable alternative. (p. 7)

Agency Response: As indicated in the preamble to the final rule, the rule narrows 

the scope of waters subject to CWA regulatory jurisdiction. The rule does not effect 

a taking. See summary responses above.

U. S. House of Representatives (Doc. #3097)

1.485 Implementing this rule will lead to unnecessary and burdensome restrictions on 

landowners through the use of a clause which broadens the category of "other" waters 

under CWA rules. For example, if one hundred acres are owned by an individual and this 

property has numerous "dry-ditches" for the purpose of runoff during heavy rains, then 

this landowner's land could potentially fall subject to EPA and Corps regulations. The 

proposed rule would deem it unnecessary to always submit a report on a case-by-case 
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320

basis revealing why a particular body is in need of EPA or Corps oversight. This rule will 

impede on the rights of property owners. Landowners will be forced to relocate poultry 

houses, restricted to smaller areas to raise cattle, or be further limited in the acreage 

desirable for harvesting crops. These are just a few of the many issues which would come 

with this rule. This rule will lead to the EPA and Corps enforcing needless restrictions on 

landowners without the proper due process being given to the landowner. (p. 2)

Agency Response: As indicated in the preamble to the final rule, the rule narrows 

the scope of waters subject to CWA regulatory jurisdiction. See also the summary 

responses, above.

United States Senate (Doc. #3536)

1.486 Indeed, the proposed rule represents the agency's latest land grab and the most serious 

threat to Americans' property rights. The proposal's sweeping coverage to virtually any 

wet area would subject countless private and public lands to EPA's permitting 

requirements (p. 2)

Agency Response: See the summary responses, above.

Congress of the United States, Senate Committee on Environment and Public Works et al. (Doc. 

#16564)

1.487 Despite the constitutional and statutory limits which bind EPA and the Corps, the 

proposed "waters of the United States" rule provides essentially no limit to federal 

regulatory authority under the Clean Water Act. As such, the proposed rule presents a 

grave threat to Americans' property rights, and its finalization will force landowners 

throughout the country to live with the unending prospect that their homes, farms, or 

communities could be subject to ruinous Clean Water Act jurisdictional determinations 

and litigation. (p. 1)

Agency Response: See the summary responses, above.

United States Senator (Doc. #18022)

1.488 The proposed rule is a violation of my property rights and is blatantly illegal based on 

interpretations by the Supreme Court. Congress gave state governments a seat at the table 

when it crafted the Clean Water Act. That federalist system has been completely 

obliterated by the agencies proposed definition. (p. 2)

Agency Response: See the summary responses, above.

The Property Which Water Occupies (Doc. #8610)

1.489 The proposed Rules continue to claim broad discretion over all space that water may 

occupy on its path toward a navigable waterway. The Rules assert real property upon 

which precipitation may fall is suddenly 'jurisdictional' under the CWA. This, rather than 

accepting the clearly expressed will of congress to limit the scope of the CWA to 

protecting "navigable waters". The Rules imply the CWA holds absolute domain over 

those lands which water may sometimes flow, trickle, or make-damp, and that the 

presence of water (rain, snow, dew, humidity) somehow redefines the boundary between 

public property and private property. Congress did not delegate the authority to proclaim 
Clean Water Rule Response to Comments – Topic 1: General Comments 

321

private property now public based upon the presence of water molecules. In violation of 

the Administrative Procedures Act the Rules assert a federal agencies take action "in 

excess of statutory jurisdiction, authority, or limitations.”136 Promulgation of these Rules 

would also violate the due process rights owed those citizens whose property is adversely 

effected by such a sweeping assertions of jurisdiction which directly challenges property 

title137. 

Egregiously, the Rules include a claim to property title through a misinterpretation of the 

laws defining Navigable Waters. Id at 22200. The Rules fail to clarify the limits of CWA 

jurisdiction over private lands, which form the path for trickling waters or draining 

precipitation. The only basis to invoke CWA jurisdiction upstream of navigable waters is 

when necessary to protect the quality of the downstream navigable/public water. The 

rational outlined by the Rules disregards any connection to the protection of navigable 

waters by suggesting absolute regulatory control of all land (private or public) over which 

rain falls and drains. Under common law, the space occupied by water provides no basis 

to claim domain over real property138, yet the Rules base jurisdiction on the intermittent 

presence of water molecules. The Rules circumvent the congressionally imposed limits 

on CWA jurisdiction, which is based upon protecting the quality of downstream 

navigable waters.

Courts have found CWA jurisdiction could extend beyond the boundary of navigable 

waters, but only when necessary to protect the quality of downstream-navigable waters; a 

right of any downstream riparian owner including the government. Jurisdictional 

authority cannot been premised on some ill-conceived property interest in the space 

through which flowing water temporarily occupies, which is the premise of the Rules. 

These new Rules are solely focused on establishing where water exists which may end up 

in navigable waters , then claiming complete domain over this space occupied by the 

water regardless of any real property ownership or the associated property rights. The 

Rules fail to recognize that beyond navigable waters the scope of CWA jurisdiction is 

limited to protecting the quality of downstream navigable waters. This more limited 

scope of CWA jurisdiction over private land is ignored within the proposed Rules and 

without legal basis presumes domain over private property. The Rules presume any space 

which drains water is property of the United States, a notion repugnant to 200 years of 

case law defaming real property and those associated property rights. All property over 

which rain falls or drains cannot be presumed under the domain of a Federal authority 

based upon the Clean Waters Act. 

The Rules are in excess of authority on two specific issues. First, the Rules include a title 

claim against real property; this must be removed from the proposed Rules. Federal 

 

136 U.S.C. §706(2)c.

137 The Fifth Amendment protects private property by guaranteeing a fair and timely judicial review of those 

property rights. Snyder v. Massachusetts, Solesbee v. Balkcom, 339 U.S. 9, 16 (1950) (Frankfurter, J., dissenting); 

291 U.S. 97, 105 (1934) (due process represents "some principle of justice so rooted in the traditions and conscience 

of our people as to be ranked as fundamental").

138 It is the ownership of land which dictates control over the space occupied by water. This subject only to the 

riparian right of downstream owners to receive these waters without significant diminution. Blackstone 

Commentaries ,Vol II pg.18. The Rules disregard this rights of landowners, and transfers them to a Federal Agency 

that will 'decide ' if a property right can continue to exercise that right.
Clean Water Rule Response to Comments – Topic 1: General Comments 

322

agencies do not have the authority to transfer real property title through Rulemaking 

without just compensation or here in excess of statutory authority. Second, the Rules fail 

to recognize the limited scope of CWA jurisdiction when applied to waters which flow or 

trickle over private lands. Interference with property rights (the human environment) 

cannot be knowingly disregarded under NEPA, and expanding interpretation of CWA 

jurisdiction beyond navigable/public waters as outline in the rules exceeds statutory 

authority. (p. 1-3)

Agency Response: The rule does not purport to classify all land over which rain 

falls or drains as “waters of the US.” The rule specifies various defined categories of 

waters and wetlands as “waters of the US,” based on the text of the CWA, Supreme 

Court rulings, the best available peer-reviewed science, public input, and the 

agencies’ technical expertise and experience in implementing the CWA over the past 

four decades. Please also see the summary responses, above. 

1.490 At common law, the ownership of land includes the space occupied by the air and water 

above it.139 The proposed new Rules turn this common law maximum on its' head, 

ignoring vested rights in real property, by exerting ubiquitous jurisdiction based upon the 

presence water. Such a claim against property title has no basis in the laws of this 

country, and amounts to a regulatory taking. Rain falls indiscriminately across this entire 

country and drains toward lower elevations. It all eventually flows into Oceans which are 

in public ownership. Once sufficient flows gathers to form a navigable river, the land 

below the water became public property at the time of statehood -state-owned subject 

only to the Federal authority to regulate commerce.140 and to protect downstream water 

quality. The distinction between state ownership of navigable waterways and private title 

to all non-navigable waterways, is recognized by the judiciary.141 Title to those lands 

below navigable waters were conveyed to the State upon entering the Union. 43 USC § 

1311(a)(I); while, all other waters occupying the space over land has no effect over the 

property ownership . 43 USC § 1315. Therefore, by redefining navigable waters beyond 

what has been traditionally recognized as navigable under the laws of this country, the 

Rules include a property claim established in excess of statutory authority. 

In 1889, The Army Corps of Engineers were assigned jurisdiction over 'navigable waters 

' defined now by 200 years of case law. 33 CFR § 329. But even the ACOE recognize 

that "navigability" is ultimately "dependent on judicial interpretation and cannot be made 

 

139 Blackstone 's Commentaries. Vol II p.18. see also Hale, De Jure. Maris. Chap. I, "Aqua cedit solo".

140 "It was settled long ago by this court, upon a consideration of the relative rights and powers of the Federal and 

state governments under the Constitution, that lands underlying navigable waters within the several states belong to 

the respective states in virtue of their sovereignty, and may be used and disposed oafs they may direct, subject 

always to the rights of the public in such waters and to the paramount power of Congress to control their navigation 

so far as may be necessary for the regulation of commerce among the states and with foreign nations" St. Clair 

County v. Lovingston, 23 Wall. 46, 68, 23 L. ed. 59, 63;Bamey v. Keokuk, 94 U.S. 324,338,24 S. L. ed. 224, 

228;IIlinois C. R. Co. Illinois, 146 U.S. 387, 434-437,36 L. ed. 1018, 1035-1037, 13 Sup:CI. Rep. II 0;Shively v.

Bowlby, 152 U.S. 1,48-50, 58, 38 L. ed. 331,349,350, 352, 14 Sup. CI. Rep. 548; McGilvra v. Ross, 215 U.S. 70. 

See also PPL Montana v. Montana, 132 S. CI. 1215,1 227 (2013)

141 Scott v. Lattig, 227 U.S. 229, 243, citing Hardin v.Shedd.190 U.S. 508. 519
Clean Water Rule Response to Comments – Topic 1: General Comments 

323

conclusively by administrative agencies." id § 329.3.142 The Rules include no such caveat 

protecting the due process rights of property owners when defining navigable waters. 

An additional definition of 'navigability' would be redundant and completely unnecessary 

if the proposed definition matched existing law. Here the proposed Rules contradict 

navigability case law, and attempt to expand which waters classify as "navigable", which 

is synonymous with 'state owned'. Therefore, the proposed Rules claim, or at least cloud, 

vested property title by redefining the boundary of state-owned property. (p. 3-4)

Agency Response: Please see the summary responses, above.

1.2. SUPPLEMENTAL GENERAL COMMENTS

Agency Summary Response

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 Acts. The CWA is the nation’s single 

most important statute for protecting America’s clean water against pollution, degradation, and 

destruction.

The Supreme Court has addressed the scope of “waters of the United States” protected by the 

CWA in three cases: United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) 

(Riverside), Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 

531 U.S. 159 (2001) (SWANCC), and Rapanos v. United States, 547 U.S. 715 (2006) (Rapanos). 

The Supreme Court has consistently agreed that the geographic scope of the CWA reaches 

beyond waters that are navigable in fact.

Protecting the long-term health of our nation’s waters is essential. The Clean Water Rule 

strengthens the protection of waters for the health of our families, our communities, and our 

businesses. Our nation’s businesses depend on clean water to operate. Streams and wetlands are 

economic drivers because they support fishing, hunting, agriculture, recreation, energy, and 

manufacturing.

This final rule interprets the CWA to cover those waters that require protection in order to restore 

and maintain the chemical, physical, or biological integrity of traditional navigable waters, 

interstate waters, and the territorial seas. This interpretation is based not only on legal precedent 

and the best available peer-reviewed science, but also on the agencies’ technical expertise and 

extensive experience in implementing the CWA over the past four decades.

The scope of regulatory jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the rule than 

under the existing regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries.

 

142 See also 33 CFR§ 329.14, ("conclusive determinations of navigability can be made only by federal Courts").
Clean Water Rule Response to Comments – Topic 1: General Comments 

324

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. 

This rule is consistent with the Clean Water Act, the Supreme Court decisions and the 

Constitution and provides increased clarity and certainty regarding the definition of Waters of 

the United States. The summary responses above provide additional information.

Specific Comments

Eric W. Nagle (Doc. #0009.1)

1.491 One additional source of federal authority under the Constitution is the Property Clause, 

which states: “The Congress shall have Power to dispose of and make all needful Rules 

and Regulations respecting the Territory or other Property belonging to the United 

States.” U.S. Constitution, Art. IV, § 3, Cl. 2. This power is “without limitation.” United 

States v. California, 332 U.S. 19, 27 (1947). The Supreme Court has repeatedly relied on 

the Property Clause as authority for federal jurisdiction over activities that could affect 

federal lands, even where such activities occur on non-federal lands. For example, in 

Kleppe v. New Mexico, 426 U.S. 529, 538 (1976), the Supreme Court upheld the 

constitutionality of the Wild Free-Roaming Horses and Burros Act, which protects wild 

horses and burros even when they are on non-federal land, because the “power granted by 

the Property Clause is broad enough to reach beyond territorial limits.” In Camfield v. 

United States, 167 U.S. 260 (1897), the Supreme Court held that the United States had 

authority under the Property Clause to prohibit construction of fences on private lands, 

where the fences would have the effect of enclosing public lands.

Similarly, in United States v. Alford, 274 U.S. 264, 267 (1927), the Supreme Court held 

that “Congress may prohibit the doing of acts upon privately owned lands that imperil the 

publicly owned lands.” The case involved a federal law that prohibited the building of 

fires “in or near” any forest on the public domain. The Court reasoned that the purpose of 

the law was to prevent forest fires, and that “[t]he danger depends upon the nearness of 

the fire and not upon the ownership of the land where it is built.”

Nothing in Solid Waste Agency of Northern Cook County v. Corps of Engineers, 531 U.S. 

159 (2001) (“SWANCC”) limits applicability of the Property Clause, because that 

question was not before the Court. The waters at issue in SWANCC had no nexus with 

federal property, and the “migratory bird rule” at issue rested exclusively on the 

Commerce Clause, not the Property Clause. The Court held that the “migratory bird rule” 

went beyond what Congress had authorized because the Court assumed that “Congress 

does not casually authorize administrative agencies to interpret a statute to push the limit 

of congressional authority.” Id. at 173-74. While the “bird rule” may have stretched the 

“interstate commerce” nexus beyond reasonable limits of the Commerce Clause, there 

can be no doubt that giving federal protection to waters on or adjacent to federal lands is 

comfortably within established Property Clause authority. Moreover, recognizing 

Property Clause authority over waters on federal lands does not implicate the sort of 
Clean Water Rule Response to Comments – Topic 1: General Comments 

325

“state powers” concerns that troubled the SWANCC Court, since federal primacy over 

such lands has always been recognized. Cf. Federal Land Policy and Management Act, 

43 U.S.C. § 1701(a)(8) (congressional declaration of policy that the public lands be 

managed to protect water resources).

This is not merely an abstract issue. Approximately one-third of the nation’s land is 

owned by the federal government. All waters on those lands fall within Property Clause 

jurisdiction, regardless of whether they are “isolated” or whether they are used by 

migratory birds or interstate travelers. Moreover, all waters the degradation of which 

could affect federal lands also fall within Property Clause jurisdiction. For example, 

where filling a wetland on private property would increase the likelihood of flooding on 

nearby federal property, that wetland is “waters of the United States,” regardless of 

whether it meets any Commerce Clause-based criteria. Like the current definition, EPA’s 

and the Corps’ proposed definition of “waters of the United States” entirely ignores this 

authority, and hence excludes from CWA’s protection a significant portion of the waters 

that Congress intended the Act to protect.

Consequently, EPA and the Corps should amend their definition of waters of the United 

States” to include:

(1) All waters that flow across or touch upon land or other property owned by the 

United States; and

(2) All waters in which the United States holds a water right, including rights held 

in trust for Indian tribes. (p. 2 – 3)

Agency Response: The Supreme Court has addressed the scope of “waters of the 

United States” protected by the CWA in three cases: United States v. Riverside 

Bayview Homes, 474 U.S. 121 (1985) (Riverside), Solid Waste Agency of Northern 

Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC), 

and Rapanos v. United States, 547 U.S. 715 (2006) (Rapanos). 

The science demonstrates that waters fall along a gradient of chemical, physical, and 

biological connection to traditional navigable waters, and it is the agencies’ task to 

determine where along that gradient to draw lines of jurisdiction under the CWA. 

In making this determination, the agencies must rely, not only on the science, but 

also on their technical expertise and practical experience in implementing the CWA 

during a period of over 40 years. In addition, the agencies are guided, in part, by 

the compelling need for clearer, and more consistent, and easily implementable 

standards to govern administration of the Act, including brighter lines where 

feasible and appropriate. 

This rule is consistent with the Clean Water Act, the Supreme Court decisions and 

the Constitution and provides increased clarity and certainty. See the summary 

responses, above.

John Ford Ranch (Doc. #9512)

1.492 On April 21, 2014 your agencies (EPA and ACE) issued a draft rule concerning Waters 

of the United States (WOTUS) dealing with the Clean Water Act (CWA), which would 

empower the field staff of your agencies with the authority to make jurisdictional 
Clean Water Rule Response to Comments – Topic 1: General Comments 

326

determinations on wetlands with no oversight in the absence of a judicial challenge. The 

proposed definition of “jurisdictional wetlands” provides your staff with the discretion to 

make such determinations without empirical evidence in support. This is an attempt to 

make an end run around the two Supreme Court decisions which limited the EPA and 

ACE’s authority under the CWA. You are attempting to circumvent the legislative 

process of rulemaking which is in place in America. Congress never intended to regulate 

all waters: The proposed rule would allow the EPA and the ACE to regulate waters now 

considered entirely under state jurisdiction. This unprecedented power grab would allow 

the EPA and ACE to trump states’ rights and wipe out the authority of state and local 

governments to make local land and water use decisions. The Constitution prohibits such 

broad federal regulations, and Congress stated in the original Act that it would defer to 

the States the control of local land and water use. Your agencies are running yourselves 

and are accountable to no one. This is entirely too much power to give to the field staff of 

either of your agencies. (p. 1)

Agency Response: The Supreme Court has addressed the scope of “waters of the 

United States” protected by the CWA in three cases: United States v. Riverside 

Bayview Homes, 474 U.S. 121 (1985) (Riverside), Solid Waste Agency of Northern 

Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC), 

and Rapanos v. United States, 547 U.S. 715 (2006) (Rapanos). Judicial review of 

jurisdictional determinations is outside the scope of this rule.

The science demonstrates that waters fall along a gradient of chemical, physical, and 

biological connection to traditional navigable waters, and it is the agencies’ task to 

determine where along that gradient to draw lines of jurisdiction under the CWA. 

In making this determination, the agencies must rely, not only on the science, but 

also on their technical expertise and practical experience in implementing the CWA 

during a period of over 40 years. In addition, the agencies are guided, in part, by 

the compelling need for clearer, and more consistent, and easily implementable 

standards to govern administration of the Act, including brighter lines where 

feasible and appropriate. 

This rule is consistent with the Clean Water Act, the Supreme Court decisions and 

the Constitution and provides increased clarity and certainty. See the summary 

responses, above.

Spring-Green Lawn Care Corp. (Doc. #10544)

1.493 I oppose the EPA and Army Corps of Engineers taking way our property rights through 

the proposed rule regarding Definition of Waters of U. S. Under the Clean Water Act, 

Docket No. EPA-HQ-OW-2011-0880. The definition of "navigable water" is beyond the 

limits set by law and must be stopped. (p. 1)

Agency Response: The rule does not constitute a taking of private property rights. 

The rule does not establish any regulatory requirements. Instead, it is a definitional 

rule that clarifies the scope of “waters of the U.S.” consistent with the CWA, U.S. 

Supreme Court precedent, and science. See summary responses, above.
Clean Water Rule Response to Comments – Topic 1: General Comments 

327

J. Courtwright (Doc. #11652)

1.494 I support the clarification of the term “significant nexus”, which has little scientific 

meaning alone, and the addition of a definition of “tributary”. Bed, bank, and an ordinary 

high water mark are features that take years to develop and should be chemically, 

physically, and biologically meaningful geomorphic attributes that can be determined in 

the field to define tributaries; however, it would be useful to additionally provide 

definitions of bed and bank, which can be particularly difficult to determine in the field in 

intermittent and ephemeral channels (for an example of bed and bank definitions see page 

3 of PACFISH/INFISH Biological Opinion Effectiveness Monitoring Program (PIBO) 

protocol 

http://www.fs.fed.us/biology/resources/pubs/feu/pibo/pibo_stream_sampling_protocol_2

012.pdf). (p. 1)

Agency Response: See summary responses, above. 

Weld County (Doc. #12343)

1.495 In both the Rapanos and Solid Waste decisions, the Supreme Court cautioned against the 

federal imposition of rules on an inherently local issue. The current balance that is 

achieved by allowing local governments, industry, agriculture, and citizens to work with 

local conditions is threatened to be washed away by a flood of new and vague definitions. 

Weld County seeks clarification as to the application of this "one-size-fits-all" rule to the 

infrastructure examples provided. (p. 20)

Agency Response: The Supreme Court has addressed the scope of “waters of the 

United States” protected by the CWA in three cases: United States v. Riverside 

Bayview Homes, 474 U.S. 121 (1985) (Riverside), Solid Waste Agency of Northern 

Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC), 

and Rapanos v. United States, 547 U.S. 715 (2006) (Rapanos).

The scope of regulatory jurisdiction in this rule is narrower than that under the 

existing regulation. Fewer waters will be defined as “waters of the United States” 

under the rule than under the existing regulations, in part because the rule puts 

important qualifiers on some existing categories such as tributaries.

The final rule does not establish any regulatory requirements. Instead, it is a 

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

with the Clean Water Act (CWA), Supreme Court precedent, and science. See 

summary responses, above.

M. Seelinger (Doc. #12879)

1.496 The White House Office of Management and Budget (OMB) report referenced in the 

proposed rule states that there is a minimal expansion of Federal jurisdiction over what is 

currently called “Waters of the US”. The report estimates that the expansion is only about 

3%. While this may seem small on a relative scale it represents a land area roughly the 

size of the State of Arizona. This is in fact a rather large expansion of the Federal 

Governments reach into private land ownership. I am very concerned with the concept 

that the Executive Branch can expand the Federal Governments land holdings without the 

consent of the other two branches of government and the people. (p. 2)
Clean Water Rule Response to Comments – Topic 1: General Comments 

328

Agency Response: The scope of regulatory jurisdiction in this rule is narrower 

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations, in part 

because the rule puts important qualifiers on some existing categories such as 

tributaries.

The final rule does not establish any regulatory requirements. Instead, it is a 

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

with the Clean Water Act (CWA), Supreme Court precedent, and science. See 

summary responses, above.

Todd Wilkinson (Doc. #13443)

1.497 Despite assurances from EPA agency personal at various meetings it is clear that the 

proposed rule would subject farmers and ranchers activity to new federal requirement 

under the Clean Water Act. As proposed wet areas or low lying areas would for the first 

time be defined as jurisdictional. The rule sues vague and undefined terms in the proposal 

which make it impossible for livestock producers to understand or comprehend what the 

rules would be or how they would be applied. If this was intended to clarify the opposite 

result is occurring. Terms such as neighboring, floodplain, significant nexus are defined 

by the definitions are so vague as to allow virtually any interpretation of their limits. (p. 

1)

Agency Response: The scope of regulatory jurisdiction in this rule is narrower 

than that under the existing regulation. See summary responses above. 

The agencies recognize of the vital role of farmers in providing the nation with food 

and fiber and are sensitive to their concerns. The agencies do not believe this rule 

will have a negative effect on agriculture as the rule clarifies the waters subject to 

the activities Congress exempted under Section 404(f)(1) are not jurisdictional by 

rule. The final rule interprets the intent of Congress and reflects the intent of the 

agencies to minimize potential regulatory burdens on the nation’s agriculture 

community, and recognizes the work of farmers to protect and conserve natural 

resources and water quality on agricultural lands. While waters subject to normal 

farming, silviculture, or ranching practices may be determined to significantly affect 

the chemical, physical, or biological integrity of downstream navigable waters, the 

agencies believe that such determination should be made based on a case-specific 

basis instead of by rule.

Tamara Choat (Doc. #13701)

1.498 If the proposed rule cannot be dropped, the following concerns and recommendations 

should be addressed.

(...) 6. The proposed rule usurps states’ rights to manage waters and land use activity. 

This proposed rule is an overreach that makes all waters federal, violating the Commerce 

Clause of the Constitution and the plain language of the Clean Water Act. (p. 1)

Agency Response: 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 
Clean Water Rule Response to Comments – Topic 1: General Comments 

329

stated, nothing in the CWA precludes or denies the right of any state or tribe to 

establish more protective standards or limits than the Federal CWA. See summary 

responses, above.

M. Smith (Doc. #14022)

1.499 Key terms used by the waters of the U.S. definition tributary, adjacent waters, riparian 

areas, flood plains, uplands and the exemptions listed are inadequately explained and 

raise important questions. Because the proposed definitions are vague, this will result in 

further legal challenges and delays. (p. 1)

Agency Response: The agencies respectfully disagree that the rule will 

significantly increase litigation. The rule reflects the judgment of the agencies when 

balancing the science, the statute, the Supreme Court opinions, the agencies’ 

expertise, and the regulatory goals of providing clarity to the public while protecting 

the environment and public health. The rule will clarifies and simplifies 

implementation of the CWA consistent with its purposes through clearer definitions 

and increased use of bright-line rules. See summary responses above.

Plumas County Board of Supervisors (Doc. #14071)

1.500 The rule was developed without proper engagement of local and state governmental 

partners. 

The CWA identifies state and local governments as partners in enforcing and 

implementing the Act, yet your agencies have proposed a rule that imposes all costs and 

responsibilities on these other partners. In Congressional testimony, the U.S. EPA 

representatives - incredibly - have been unable to name any public interests that your 

agencies engaged during development of the rule, which not only violates the spirit of the 

CWA, but also underscores the inadequate analysis of local impacts that has 

accompanied the proposal of this rule. Plumas County does not understand your agencies' 

unwillingness to fully engage local and state governments in a meaningful process to 

draft a new rule. (p. 1 – 2)

Agency Response: In 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 and solicited their 

comments on the proposed action and on the development of the rule. Specifically, 

state and local governments were consulted at the onset of rule development in 2011, 

and following the publication of the proposed rule in 2014. In addition to engaging 

key organizations under federalism, the agencies sought feedback on this rule from 

a broad audience of stakeholders through extensive outreach to numerous state and 

local government organizations. The EPA held over 400 meetings with interested 

stakeholders, including representatives from states, tribes, counties, industry, 

agriculture, environmental and conservation groups, and others during the public 

comment period. See also summary essays, above. 
Clean Water Rule Response to Comments – Topic 1: General Comments 

330

Patti Buck (Doc. #14825)

1.501 First, the definition as proposed is illegal based on the Commerce Clause of the U.S. 

Constitution, the framework and goals of the CWA, Congressional intent and Supreme 

Court rulings. Each places a limit on federal jurisdiction over the nation’s waters. 

Currently, your proposed rule has practically no limit whatsoever. (p. 1)

Agency Response: This final rule interprets the CWA to cover those waters that 

require protection in order to restore and maintain the chemical, physical, or 

biological integrity of traditional navigable waters, interstate waters, and the 

territorial seas. This interpretation is based not only on legal precedent and the best 

available peer-reviewed science, but also on the agencies’ technical expertise and 

extensive experience in implementing the CWA over the past four decades. See 

summary essays, above.

Erika Brotzman (Doc. #15010)

1.502 A. The “significant nexus” test strengthens the constitutionality of the proposed rule.

Downstream effects affect interstate commerce. Non-navigable water that discharges 

pollutants, in aggregate or singularly, can cause adverse effects on traditional “navigable” 

waters. The impact is measured by the concentration of pollutants. This measure of 

pollution establishes “significant nexus.” Water pollution affects commerce. A 

community is unlikely to develop around polluted waters or worse an already existing 

community is affected by highly polluted waters. In 1969, the Cuyahoga River caught on 

fire as a result of water pollution and affected not just local and downstream 

communities, but added fuel to fire of the environmental movement; all of which affects 

interstate commerce. Water does not stop flowing at a state boundary, nor does water 

pollution. Tributaries, intermittent or ephemeral, can have an effect on interstate 

commerce. Accordingly, the constitutional power provided under the Commerce Clause 

allows the federal government to regulate that which affects interstate commerce. The 

proposed rule’s definition of “tributaries” applied with the “significant nexus” test is 

constitutional under the Commerce Clause.

In Rapanos, the plurality holds that “the waters of the United States” only apply to 

“relatively permanent, standing or continuously flowing bodies of water” and not to 

“channels through which water flows intermittently or ephemerally, or channels that 

periodically provide drainage for rainfall.”143 Justice Kennedy argued that the Court’s 

reading of the CWA “is inconsistent with its text, structure, and purpose.”144 Kennedy 

maintains that the plurality’s requirement to establish jurisdiction, based on permanency 

of water, “makes little practical sense in a statute concerned with downstream water 

quality.”145 First, the definitions in the CWA do not state or indicate that the “ditches, 

channels, etc” are determined by consistent or lack therefore of regularly flowing water. 

To assert that jurisdiction should be based on relative permanency is inadequate. 

Kennedy argues that Congress did not intend for “waters” to apply only to relatively 

 

143 Rapanos v. United States, 547 U.S. 715, 739, 126 S. Ct. 2208, 2225, 165 L. Ed. 2d 159 (2006).

144 Id., at 753.

145 Id., at 769.
Clean Water Rule Response to Comments – Topic 1: General Comments 

331

permanent water.146 Kennedy references large bodies of water, such as the LA Aqueduct, 

that is dry most of the year, yet when flowing has a significant nexus and impact on 

navigable waters. Second, the Connectivity Report shows that intermittent or ephemeral 

waters present a hydrologic connection and thus affect the purpose of the CWA. As 

shown in the Connectivity Report, the hydrologic connection does not turn on the relative 

permanency of water, but rather the chemical, physical and, biological, effect resulting 

from a “significant nexus.”

The plurality suggests that because the CWA distinguishes between “point sources” and 

“navigable waters”147 this implies that these terms are “separate and distinct” categories 

and thereby mutually exclusive.148 Kennedy argues that this construction of the term 

“point-source” is erred on two accounts: (1) a point-source is not necessarily only 

“watercourses through which intermittent waters typically flow,” and (2) more 

pertinently to this point, point sources and navigable waters are not necessarily “separate 

and distinct categories.”149 The plurality’s opinion does not account for the fact that 

“point sources” can and often affect “navigable waters.” Furthermore, the Connectivity 

Report does not support the contention that “point sources” must be excluded from the 

definition of the “waters of the United States.” “Point sources” identify certain landscape 

features; but the statute does not indicate that “point sources” do not impact “navigable 

waters.” This hydrologic connection is what the “significant nexus” test establishes. 

Holding that these terms, without clear language in the statute indicating otherwise, are 

impliedly separate is an artificial distinction that the hydrologic connection does not 

follow. The “significant nexus” test establishes the hydrologic connection to “navigable” 

waters and the Corps’ jurisdiction over such waters and is constitutional under the powers 

granted to Congress. (p. 5 – 6)

Agency Response: We agree this rule is consistent with the Clean Water Act, the 

Supreme Court decisions and the Constitution and provides increased clarity and 

certainty about what constitutes “Waters of the U.S.” See summary essays, above.

1.503 D. The Proposed Rule maintains a balance between state and federal regulation.

The regulatory scheme of the CWA establishes a system of cooperative federalism. 

Thirty-three states and the District of Columbia support a comprehensive federal 

regulatory program.150 The 1977 Amendment for §404 includes section 101(g) termed the 

“Wallop Amendment.” Section 101(g) confirms that the CWA is to address water quality, 

and not to supersede state’s authority to allocate water or manage water rights. Senator 

Wallop stated “[t]his ‘state’s jurisdiction’ amendment reaffirms that it is the policy of 

congress that this act is to be used for water quality purposes.”151 The provisions reaffirm 

 

146 Id., at 770 (Congress' use of “waters” instead of “water,” ... does not necessarily carry the connotation of 

“relatively permanent, standing or flowing bodies of water,”) (Kennedy, J., concurring).

147 33 U.S.C. § 1362(14).

148 Rapanos, at 735-36.

149 Id., at 771.

150 Squillace, at 39. (referencing the Brief for New York et al. as Amici Curiae Supporting Respondents at 15, 

Rapanos v. United States, 126 S. Ct. 2208 (2006) (No. 04-1034)).

151 BARTON H. THOMPSON, JR., JOHN D. LESHY, AND ROBERT H. ABRAMS, LEGAL CONTROL OF 

WATER RESOURCES, (Thompson Reuters, 5th ed. 2013) (citing Michael Blumm, The Clean Water Act’s Section 
Clean Water Rule Response to Comments – Topic 1: General Comments 

332

states’ authority to maintain control over issues such as water rights and allocation, but 

not over water pollution. 

Under CWA states are authorized by the EPA to administer permitting programs of 

sections 402 and 404. Section 402 applies to the NPDES permitting programs. Section 

404, at issue in the proposed rule, addresses the fact that waters not found under Corps’ 

jurisdiction, may remain unregulated. Forty-six states and the Virgin Islands are 

authorized to administer the NPDES program under section § 402, while two states 

administer the § 404 dredge and fill permitting program. Some states struggle with 

implementing the permitting programs. Of the two states that manage the § 404 program, 

Michigan continues to experience litigation regarding their program. Other states have 

experienced de-delegation petitions by concerned citizens.152 Regardless, waters 

identified in § 404, if not regulated by a state-authorized permitting program or under the 

Corps’ jurisdiction may be absent any regulation entirely. (p. 8)

Agency Response: See summary essays, above.The Agencies agree the rule is 

consistent with Congressional policy not to supersede, abrogate, or otherwise impair 

the authority of each state to allocate quantities of water within its jurisdiction, and 

neither does it affect the policy of Congress that nothing in the CWA shall be 

construed to supersede or abrogate rights to quantities of water which have been 

established by any state.

The Heritage Foundation (Doc. #15055)

1.504 The Proposed Rule is Overbroad and Vague

The agencies claim they are seeking to provide clarity to the CWA. Unfortunately, the 

proposed rule creates more confusion. Justice Kennedy's significant nexus test, which 

plays a central role in the rule, is already confusing and lacks clarity in terms of practical 

application. The agencies though just expand upon his significant nexus test and then 

create additional overbroad and vague guidance.

Regulated entities have little objective guidance. Almost every aspect of the proposed 

rule applies some type of subjective element, which makes compliance almost 

impossible. This is exacerbated when regional offices almost assuredly will have 

different interpretations of subjective standards.

When dealing with regulatory compliance, there will not always be clear answers to 

specific factual situations-agencies are unable to predict every scenario. However, 

agencies can develop reasonably clear guidance that at least allows regulated entities to 

have some predictability and clarity regarding compliance. The proposed rule will be 

almost impossible to comply with because the guidance is muddled, and in many ways 

 

404 Permit Program Enters its Adolescence: An Institutional and Programmatic Perspective, 8 Ecology L.Q. 409, 

410, 466-68 (1980)).

152 See Laura Murphy, Story of A De-Delegation Petition: Nuts, Bolts, & Happy Endings in Vermont, 15 Vt. J. 

Envtl. L. 565, 566 (2014) (referencing approximately forty-one NPDES de-delegation petitions have been filed with 

the EPA for Vermont’s de-delegation since 1989) (citing U.S. EPA, STATE NPDES PROGRAM WITHDRAWAL 

PETITIONS, http:// water.epa.gov/polwaste/npdes/basics/withdrawal.cfm (last updated Apr. 5, 2013)).
Clean Water Rule Response to Comments – Topic 1: General Comments 

333

appears to be subject to the whim of the agencies. 

For example, the rule explains, "Application of the terms 'riparian area,' 'floodplain,' and 

'hydrologic connection' would be based in part on best professional judgment and 

experience applied to the definitions contained in this rule.”153 This discretion may help 

the agency by not having to commit to any clear guidance, but it makes compliance very 

difficult.

The proposed rule provides little in the way of express exceptions to the coverage of the 

CWA; the agencies were even unwilling to expressly exclude "puddles" from CWA 

jurisdiction. According to the agencies “This is not because puddles are considered 

jurisdictional, it is because "puddles" is not a sufficiently precise hydrologic term or a 

hydrologic feature capable of being easily understood."154 Yet the rule addresses and 

even sometimes defines other imprecise terns such as "floodplains" and "non- wetland 

swale."

The agencies though did appear to have a change of heart when it came to excluding 

puddles, but not in the rule itself. In a question and answer guidance document, the 

agencies explain "Wet areas in your back yard, like puddles on your lawn that hold water 

temporarily following rainfall or snowmelt, are not subject to the CWA."155 This 

guidance could be gone tomorrow, offering little comfort to landowners who need such a 

clarification in the rule itself. 

The underlying problem is the rule tries to grab as much power as possible for the 

agencies. Instead of actually providing clarity through bright line types of rules and a 

long list of clear exclusions, the agencies have developed a proposed rule that ensures 

that almost every type of water could be covered under the CWA. 

To comply, regulated entities have to be sure to analyze a potentially covered water 

against several definitions. For example, the water could be a "tributary." If it does not 

fall under "tributary," it might be an "adjacent water." Then, there is the agencies' safety 

net: the waters could he covered under "other waters." One way or another, the agencies 

will likely have a way to regulate the water. 

The regulations are so broad and so unclear that any party that could reasonably be 

regulated by the agencies will be hesitant to take ally action if they do not want to trigger 

CWA requirements. This gives the regulations even greater scope; they would not only 

cover more waters through the language of the rule, but also through the chilling effect 

they will have on potential regulated entities. 

 

153 Federal Register Vol. 79, No. 76 (April 21, 2014), p. 22208.

154 Federal Register; Vol. 79, No. 76 (April 21, 2014), p. 22218.

155 “Questions and Answers – Waters of the U.S. proposal,” Environmental protection Agency and U.S. Army Corps 

of Engineers, September 8, 2014, http://www2.epa.gov/sites/production/files/2-14-09/documents/q_a_wotus.pdf

(accessed November 14,2014).
Clean Water Rule Response to Comments – Topic 1: General Comments 

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Inevitably, property owners will violate the regulations even though no reasonable person 

could have understood there to be a problem under the law. This is what happens when 

regulations are subjective, unclear, overbroad, vague, and have few bright line rules. (p. 

6 – 7)

Agency Response: See summary essays above.

Also, see the Legal Compendium Response to comments. 

1.505 The Impact of the Proposed Rule

The proposed rule is going to impose a wide range of costs to the public, such as 

undermining property rights, imposing greater permitting costs, and discouraging start-up 

of new ventures.

Property Rights. The proposed rule would make it more difficult for some individuals 

to use their property as they deem fit. The overreach is so expansive that many property 

owners may find that their property is far less valuable if these regulations are 

implemented. The scope of the rule may surprise property owners who could never 

imagine the rule would be applicable to their property.

The Role of States. The proposed rule would drastically minimize the role that states 

play in the CWA. At the start of the CWA it states, “It is the policy of the Congress to 

recognize, preserve, and protect the primary responsibilities and rights of states to 

prevent, reduce, and eliminate pollution, to plan the development and use (including 

restoration, preservation, and enhancement) of land and water resources...”156 

Any CWA regulations should be consistent with this important goal of having states play 

a key role under the CWA, not a marginal one, when it comes to clean water. As the 

agencies try to expand their power beyond even Justice Kennedy’s concurrence, they 

should recognize that this federalism principle limits how much power they can properly 

secure. It is very possible that the proposed rule will not merely affect water regulation 

but also traditional state land use regulations, which would create significant federalism 

problems. (p. 7 – 8)

Agency Response: See summary essays above. 

SD1 (Doc. #15139)

1.506 The statement that "[ t ]he agencies propose ... no change to the regulatory status of water 

transfers" appears multiple times in the Preamble.157 EPA's Water Transfers Rule 

excludes any "activity that conveys or connects waters of the United States without 

subjecting the transferred water to intervening industrial, municipal, or commercial use" 

from the National Pollutant Discharge Elimination System ("NPDES") created by 

CWA.158 The Water Transfers Rule does not define "waters of the United States," 

although EPA relied on one of the definitions the agencies propose to change in the 

 

156 Federal Water Pollution Control Act, 33 U.S.C §1251 (b).

157 79 Fed. Reg. at 22189; see also id. at 22193, 22199 and 22217.

158 40 C.F.R. § 122.3(i) ("Water transfer means an activity that conveys or connects waters of the United States 

without subjecting the transferred water to intervening industrial, municipal, or commercial use .... ").
Clean Water Rule Response to Comments – Topic 1: General Comments 

335

proposed Rule.159 In addition to the statements in the preamble, the final rule should state 

expressly in the text of the Code of Federal Regulations that it does not change the 

regulatory status of water transfers. (p. 4)

Agency Response: This final rule does not change EPA’s regulation of water 

transfers and that regulation is outside the scope of this rule. See essay 12.3.

William Schock (Doc. #15394)

1.507 The EPA has asked for suggestions that would help them improve their clarification of 

this current WOTUS rule. This could easily be done by stating the obvious and the 

following is an example of how this could be done.

The term “Waters of the US” means all commercially navigable rivers, streams and lakes 

that can support commercial cargo carrying ships (at least 20 feet long and at least 8 feet 

wide with a minimum draft of 2 feet for at least a distance of 20 miles for at least 300 

days per year and carry their cargo across a state line, along the border of an adjacent 

state, into a territorial sea or into a foreign country) or significant tributaries that supply 

continuous water to the navigable stream of at least one acre foot per day at least 300 

days per year and wetlands that are significantly connected to the navigable stream or 

jurisdictional tributary or lake that maintain a continuously wet surface area of 100 

square yards for at least 300 days per year. All other surface waters remain the 

jurisdiction of the states. On those state waters, the EPA and USCOE shall encourage 

clean water management practices by coordinating with local governments.

By their own choosing, any state could pass resolutions by its state government that 

would expand the EPA’s jurisdiction over additional state waters but could also rescind 

this jurisdiction at any time by the same process. The EPA may also encourage the states 

to improve water quality of state controlled water by the use of monitory grants and 

through technical assistance.

This approach is quantifiable and verifiable while clearly ceding authority over much 

state property to the EPA and USCOE. The current draft rule accomplishes none of this 

but instead confuses and blurs the lines between the federal and state authority over what 

has been heretofore the exclusive domain of the states according to the constitution. The 

imprecise language in the draft rule will further lead to ruinous litigation for both the 

federal government and the state governments notwithstanding the individuals who will 

bear the brunt of the oppressive penalties exacted upon them by the federal court system. 

(p. 1 – 2)

Agency Response: See summary responses, above.

The agencies disagree that this rule will significantly increase litigation. This rule is 

consistent with the Clean Water Act, the Supreme Court decisions and the 

Constitution and provides increased clarity and certainty.

 

159 See 40 C.F.R. § 122.2; 73 Fed. Reg. 33,697, at 33,699, note 2 (June 13, 2008).
Clean Water Rule Response to Comments – Topic 1: General Comments 

336

Vulcan Materials Company (Doc. #16566)

1.508 The definition of tributary as proposed, specifically the application of "bed and bank and 

ordinary high water mark" criteria, combined with the inclusion of ephemeral waters, 

extends CWA jurisdiction by requiring waters to be traced upstream beyond the range of 

traditional navigable waters (TNW) and historic jurisdiction determinations. These areas 

are normally reserved for state and local governments to determine the extent of 

regulatory coverage. (p. 1)

Agency Response: See summary responses, above, as well as discussions of 

“tributary” in the preamble, Technical Support Document, and compendium 8.

San Luis & Delta-Mendota Water Authority (Doc. #15645)

1.509 The statement that "The agencies propose . . . no change to the regulatory status of water 

transfers" appears multiple times in the Preamble. EPA's Water Transfers Rule excludes 

any "activity that conveys or connects waters of the United States without subjecting the 

transferred water to intervening industrial, municipal, or commercial use" from the 

National Pollutant Discharge Elimination System ("NPDES") created by CWA. The 

Water Transfers Rule does not define "waters of the United States," although EPA relied 

on one of the definitions the agencies propose to change in the proposed rule. In addition 

to the statements in the preamble, the final rule should expressly state in the text of the 

Code of Federal Regulations that it does not change the regulatory status of water 

transfers. (p. 4)

Agency Response: This final rule does not change EPA’s regulation of water 

transfers and that rule is outside the scope of this rulemaking. See essay 12.3.

B. Price (Doc. #16381)

1.510 This is to request that a comprehensive study of (a) Pollution of, and (h) Nutrient Loading 

of Waters of the US using the best available Science including DNA tracing with 

quantification and identification of resulting harm to humans or the environment, be 

completed and presented to Congress before any Wetlands Rules, Storm Water Rules or 

Water Quality Rules are implemented or further proposed. (p. 2)

Agency Response: See summary responses, above.

L. L. Hughes (Doc. #16687)

1.511 Furthermore, the Yadkin County Board of Commissioners supports House Rule 5078, the 

Waters of the United States Regulatory Overreach Protection Act of 2014, which has 

successfully passed in the United States House of Representatives. (p. 2)

Agency Response: See summary responses, above.

Cook County, Minnesota, Board of Commissioners (Doc. #17004)

1.512 (...) WHEREAS, many of the waters and lands covered by the proposed rule are entirely 

outside of Congress' authority under the Commerce Clause, such as non-navigable 

intrastate waters that lack any significant nexus to a core water; and 
Clean Water Rule Response to Comments – Topic 1: General Comments 

337

WHEREAS, when constraining edicts that come, not through law, but through an 

executive agency that issues a rule constraining American citizens—restricting how 

citizens can use their land—it is an attempt to exercise binding legislative power not 

through an act of Congress, but through an administrative edict; and 

WHEREAS, the United States Constitution expressly bars the delegation of legislative 

power, the proposed rule is in direct violation of the Constitution. The Constitution's very 

first substantive words are, "All legislative Powers herein granted shall be vested in a 

Congress of the United States." Administrative adjudication evades almost all of the 

procedural rights guaranteed under the Constitution. Administrative adjudication, 

hereby, becomes an open avenue for evading the Bill of Rights; and 

WHEREAS, the EPA and Army Corp's Clean Water Act regulations would allow these 

agencies to regulate waters now considered entirely under state jurisdiction; and

WHEREAS, the Tenth Amendment to the United States Constitution prohibits the federal 

government from exercising any power not delegated to it by the states in the U.S. 

Constitution; and

WHEREAS, the states, appropriately, through local governments (county, municipal 

governments and the elected officials of soil and water conservation districts), should 

handle the majority of issues most relevant to individuals within their respective 

jurisdictions; and

WHEREAS, federal agencies are established by governments to provide specific 

services. The personnel of federal agencies are not elected officials, but rather civil 

servants. Agencies implement the actions required by laws (statutes) enacted by 

Congress, and may not take action that goes beyond their statutory authority or that 

violates the Constitution; and

WHEREAS, the proposed expansion of authority and jurisdiction over lands that may be 

or are covered with water for short periods of time cannot be justified—as these are 

nonnavigable waters—clearly this expanded role is not the role the EPA and Corps were 

created to accomplish; and

WHEREAS, expanding federal control over intrastate waters will substantially interfere 

with the ability of individual landowners to use their property; and

WHEREAS, changes to the "Waters of the U.S." definition may have far-reaching effects 

and unintended consequences on a number of state and local programs with the potential 

to create significant unfunded mandates and the power to preempt state and local 

authority; and

WHEREAS, it is believed no matter what definition could come about from the proposed 

rule, "waters of the United States" means all waters, including waters over which the 

EPA and Corps have previously not had jurisdictional authority, e.g. waters of the States 

and private lands. This is not the intent of the CWA, although it apparently is the intent of 

the EPA and Corps; and

WHEREAS, there is not doubt that with the plurality decision in the SWANCC and 

Rapanos cases, the Supreme Court has already provided a clear definition of "waters of 

the United States", the EPA and Corps unwillingness to accept the (Rapanos) Supreme 
Clean Water Rule Response to Comments – Topic 1: General Comments 

338

Court decision, are attempting to implement their own definition of the "waters of the 

United States" through self-determined expansion beyond their statutory authority, which 

has led to much confusion and uncertainty for the American public; and

WHEREAS, the extraordinary expansion of the EPA and Corps' jurisdictional authority 

that would come about through this proposed rule, and the resulting vastly increased 

restrictions imposed on private waters through permitting would result in regulatory 

taking, a violation of the Fifth Amendment. The increased permitting available to the 

agencies would result in citizens being required to obtain permits and pay the government 

for ordinary activities on private property. This amounts to seizure of that property 

without compensation, i.e. a regulatory taking; and

WHEREAS, the Supreme Court does not require government compensation where 

regulations substantially advance legitimate governmental interest, this is not true when 

the regulations prevent a property owner from making "economically viable use of their 

land." Agins v City of Tiburon, 447 U.S. 255 (1980).

In other words, the government should pay the market value of seized property rather 

than the property owner paying the government via a permit for the privilege of 

improving that property. This type of violation of the Fifth Amendment would not come 

about except that the EPA and Corps propose to include non-navigable waters in their 

definition of the scope of their jurisdictional authority. The mission of the agencies, in 

particular the EPA, is to protect and sustain water quality, not own the water or manage 

its use; and (...) (p. 1 – 7)

Agency Response: See summary responses, above.

K. G. Oertel (Doc. #17317)

1.513 The proposed rule claims that it will “enhance protection for the nations’ public health 

and aquatic resources, increase CWA program predictability and consistency by 

increasing clarity as to the scope of ‘waters of the United States’ protected under the 

Act.” However, it is apparent that this proposed rule will only work to expand the 

jurisdiction of the EPA and Army Corps of Engineers beyond what Congress intended 

under the CWA and will create overlap and confusion among state agencies. The 

proposed rule was assigned Docket No. EPA-HQ-OW-2011-0880. 

The proposed regulations will expand the definition of “waters of the United States” in a 

manner which goes too far by expanding the EPA and Army Corps of Engineers’ 

jurisdiction. By allowing the agencies to decide on a “case-specific basis” which waters 

will have a significant nexus to “an (a)(1) through (a)(3) water,” will give the agencies 

unbridled and unchecked power. There is no language under the proposed rule which 

provides any guidance to state agencies or regulated industries as to how this “casespecific basis” will be determined. This language is extremely ambiguous and leaves the 

definition of “waters of the United States” open to ad hoc interpretations by the EPA and 

Army Corps. [...]

This proposed rule will give to the agencies which enforce it untethered and unbridled 

power to assert their jurisdiction over intrastate isolated waters, causing confusion and 

overlap with the state agencies which regulate and enforce state water regulations. This 

is in direct contradiction of the language of 33 U.S.C.A. § 1251(b) of the Clean Water 
Clean Water Rule Response to Comments – Topic 1: General Comments 

339

Act, in which Congress explicitly affirmed that the states were the best and most 

appropriate entities to regulate the waters of the United States. This proposed rule will 

indeed usurp the states’ power to control and regulate their own isolated waters. The 

apparent intention of this rule is to create authority over all jurisdictional questions of 

what constitutes waters of the United States and place it in the hands of the Corps of 

Engineers and EPA. Agency rules should achieve clarity, not confusion. This rule will 

create a chaotic regulatory regime. It will promote litigation and result in excessive 

agency involvement in many aspects of normal human activity. (p. 1)

Agency Response: See summary responses, above.

W. Stevens (Doc. #17663)

1.514 Though statements on the website and news releases from EPA reiterate that the new 

proposed amendments do not expand geographic jurisdiction of EPA/Corps, it clearly 

does. Location by location, the definition and the rule require a reach beyond the current 

rule. (p. 1) 

Agency Response: The scope of regulatory jurisdiction in this rule is narrower 

than that under the existing regulation. See summary responses, above.

1.515 The proposed revision of the CWA regarding the definition of Waters of the US expands 

federal jurisdiction and is unnecessary and duplicative in Texas. It complicates present 

and future projects and creates potential conflicts between State and Federal regulation. 

(p. 2)

Agency Response: See summary responses, above.

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. 

John Whittingham (Doc. #18426)

1.516 1) The proposed rule ignores the specific intent of congress by drastically changing the 

requirement that "navigable waters" are under the authority of the USACOE.

2) Our personal property, which contains a man-made irrigation ditch and an ephemeral 

channel, should not be regulated by a federal authority.

3) The proposed rule fails to demonstrate a scientific basis for why physically 

disconnected landscape features would affect wetlands or the waters of the US.

4) Most western valleys are formed on historic or modern floodplains, but entire valleys 

are not all physically, chemically, or biologically connected to modern waters of the US, 

and should not fall under the authority of either the USEPA or the USACOE.

5) Excessive regulations by the USEPA and USACOE would encumber us from 

managing our own property in a safe, healthy and economical manner.

6) Landowners of all types will be severely and adversely impacted by the rule by 

limiting their ability to properly manage their property.
Clean Water Rule Response to Comments – Topic 1: General Comments 

340

7) The rule discriminates against landowners, and unfairly imposes excessive burden on 

people who have earned ownership of their property.

8) The rule lacks scientific basis and social equity.

9) I write in opposition to the proposed rule. (p. 1)

Agency Response: See summary responses, above.

R.D. Primrose (Doc. #18799)

1.517 (...)

 EPA and USACE have embarked on an arbitrary and heavy handed effort to 

grossly expand the scope of their own regulatory authority their direction. Truly, 

the Proposed Rule's alleged purpose, to "enhance protection for the nation's 

public health and aquatic resources, and increase [Clean Water Act] program 

predictability and consistency by increasing clarity as to the scope of "waters of 

the United States" protected under the Act" is a noble concept but should be 

established and managed at the state and local government level where those 

affected and potentially harmed will have valid, fair and reasonable input and 

opportunity to shape the program and measure success. (p. 1)

Agency Response: See summary responses, above.

1.518 (...)

 I believe this rule intends to remove the distinction between what is state and 

local in role and authority and what is national and leads to what is a completely 

centralized federal control. I believe that clearly violates and infringes upon the 

role of county and state governments and threatens to destroy all separation of 

powers, private property rights and custom and culture of local communities and 

counties. (p. 2)

Agency Response: See summary responses, above. The rule is consistent with 

Congress’ intent not to supersede, abrogate, or otherwise impair the authority of 

each state or tribe to manage the waters within its jurisdiction or to more broadly 

protect their waters. 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. 

1.519 (...)

 The Proposed Rule improperly usurps "primary responsibilities and rights of 

States" (p. 2)

Agency Response: See summary responses, above. The rule is consistent with 

Congress’ intent not to supersede, abrogate, or otherwise impair the authority of 

each state or tribe to manage the waters within its jurisdiction or to more broadly 

protect their waters. 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. 

1.520 (...) 
Clean Water Rule Response to Comments – Topic 1: General Comments 

341

 Under the 1977 Amendments, Congress deemed it appropriate and necessary to 

emphasize the traditional role of the states in the management of land and water 

resources, and specifically noted its intent to: recognize, preserve, and protect the 

primary responsibilities and rights of States to prevent, reduce, and eliminate 

pollution, to plan the development and use (including restoration, preservation, 

and enhancement) of land and water resources. By proposing and then potentially 

unilaterally enforcing a regulatory definition so encompassing as to embrace those 

isolated, unconnected and wholly intrastate wetlands, ponds, oxbow lakes, etc. 

simply because they fall within a "floodplain" -a term not found in the statutory 

text-the agencies' Proposed Rule will trample upon the states' and counties 

traditional land use and water management authority and roles. (p. 2)

Agency Response: See summary responses, above. This rule is consistent with 

Congressional policy not to supersede, abrogate, or otherwise impair the authority 

of each state to allocate quantities of water within its jurisdiction, and neither does it 

affect the policy of Congress that nothing in the CWA shall be construed to 

supersede or abrogate rights to quantities of water which have been established by 

any state.

1.521 (...)

 The impingement by the federal government on the regulatory and oversight 

affairs traditionally reserved to the States creates a constitutional concern that 

must require a clear authorization from Congress. The CWA is devoid of any such 

authorization and, therefore, the Proposed Rule's implication of federalism 

concerns and traditional state authority should prompt the withdrawal of the 

proposed rule/definitions. (p. 2)

Agency Response: See summary responses, above.

J. Dillard (Doc. #18907)

1.522 You state:

This proposal does not affect Congressional policy to preserve the primary 

responsibilities and rights of states to prevent, reduce, and eliminate pollution, to plan the 

development and use of land and water resources, and to consult with the Administrator 

with respect to the exercise of the Administrator's authority under the CWA. CWA 

section 101(b)

Comments:

Clean Water Act must include aspects of existing conditions, under any definition. 

Pollution cannot be corrected with geology that creates a contrary condition. Land 

resources may have grandfathered conditions due to land use decisions prior to laws and 

regulations. (p. 1 – 3)

Agency Response: See summary responses, above.

1.523 You state:

This proposal also does not affect Congressional policy not to supersede, abrogate or 

otherwise impair the authority of each State to allocate quantities of water within its 
Clean Water Rule Response to Comments – Topic 1: General Comments 

342

jurisdiction and neither does it affect the policy of Congress that nothing in the CWA 

shall be construed to supersede or abrogate rights to quantities of water which have been 

established by any state. CWA section 101(g).

Comments:

Water quantity, supply and rights should be an issue under CWA, but the pollution 

controls in permitting is creating a situation contrary to the Congressional policy (in Los 

Angeles Basin, California). With MS4 permitting requiring watershed management and 

consequently, stormwater capture at all costs, the intent of the CWA is blurred. Waters of 

the United States cannot be used for water supply. (p. 3)

Agency Response: See summary responses above, as well as discussions of the 

exclusion for stormwater control features constructed in dry land.

Anonymous (Doc. #18947)

1.524 The proposed definitions in this proposed rule defining the "waters of the United States", 

undermines the principle of cooperative federalism within the Clean Water Act (CWA). 

Section 101(b) of the CWA states, "It is the policy of the Congress to recognize, 

preserve, and protect the primary responsibilities and rights of States to prevent, reduce, 

and eliminate pollution, to plan the development and use (including restoration, 

preservation, and enhancement) of land and water resources." Individual States play a 

role in the implementation of the CWA within their jurisdiction as it pertains to the 

waters of the State as defined by their sovereign State Constitutions; not the 

Environmental Protection Agency (EPA) and United States Army Corp of Engineers 

(USACOE). 

Throughout this proposed rule, the EPA and USACOE are usurping the policy of 

Congress; State sovereignty, and rights of local home rule. Individual states, local 

governments, and private property owners are in a better position to address their unique 

clean water needs than bureaucrats of the EPA and USACOE.

Under the U.S. Constitution, Congress has the lawmaking power; Article 1, Section 8, 

states; "The Congress shall have Power... To regulate Commerce with foreign Nations, 

and among the several States, and with the Indian Tribes; To make all Laws which shall 

be necessary and proper for carrying into Execution the foregoing Powers, and all other 

Powers vested by this Constitution..." For all practical purposes, the EPA and USACOE 

by this proposed rule are seeking to make law by changing the meanings of words; but 

they cannot change Congress's policy in Section 101(b) of the CWA; nor can they usurp 

State sovereignty retained at the time of the formation, admission, or re-admission 

(former Confederate States of America) into the United States of America. (p. 1)

Agency Response: 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. This rule recognizes the unique role of 

states and tribes. As stated in the preamble, 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 emerging science to ensure consistent and effective protection for 

waters in the states. As is the case today, nothing in this rule restricts the ability of 
Clean Water Rule Response to Comments – Topic 1: General Comments 

343

states to more broadly protect state waters. States and tribes may assume 

permitting responsibility for section 402 and 404 of the CWA. As co-implementers 

of these permitting programs, the agencies’ commit to continue to work 

collaboratively with states and tribes with approved 402 and 404 programs. The 

rule is consistent with sections 101(b), 402(b), 404(g), and 510 of the CWA.

The final rule does not establish any new regulatory requirements. Instead, it is a 

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

with the CWA, Supreme Court precedent, and science. As such, there are no 

changes in the relationship between federal, state, tribal and local implementors of 

CWA programs or to other state or tribal programs managing these resources. 

States and tribes retain full authority to implement their own programs to more 

broadly and more fully protect the waters under their jurisdiction.

The rule is consistent with Congressional policy to preserve the primary 

responsibilities and rights of states to prevent, reduce, and eliminate pollution, to 

plan the development and use of land and water resources, and to consult with the 

Administrator with respect to the exercise of the Administrator’s authority under 

the CWA (see section 101(b) of the CWA). 

See also the summary responses above and the response to legal comments in legal 

compendium and the TSD. 

Kevin and Nicole Keegan (Doc. #19128)

1.525 I support any effort Congress has to rein in the expansion of control over private land.

 "Waters of the United States" should not be redefined until the United States 

Congress has clarified the jurisdiction of the Clean Water Act.

 The broad opposition the proposal is receiving is a clear indication that it should 

not be adopted in its present form.

 The proposed definition would be an egregious violation of personal property 

rights. (p. 3)

Agency Response: See Summary responses above.

K. Miles (Doc. #19129)

1.526 I am recommending that the Clean Water Act be renamed the Cleaner Water Act. The 

change in the name of the act corrects the inaccurate perception held by many na'ive 

individuals that adherence to an act named the Clean Water Act would bring "CLEAN" 

water when it does not, will not, and cannot bring the level of purity to any water that 

would result in a "clean" designation. This distinction needs to be made because there is 

no water that is without some sort of amendments (i.e. there is no "perfectly clean" 

water). The physical and/or chemical amendments of the nation's waters constitute 

impairment (e.g. specific limitations).

Water found to be "impaired" could be considered to be water with a specific 

limitation(s) that could be feasibly cleaned (i.e. economically, environmentally, socially) 

to reestablish the utility of the water to meet the water use requirements of the identified 

water user(s)". Water found to be "irreparably damaged" would be considered to be water 
Clean Water Rule Response to Comments – Topic 1: General Comments 

344

with specific limitation(s) that could not feasibly be cleaned (i.e. economically, 

environmentally, socially) to reestablish the utility of the water to meet the water use 

requirements of the identified water user(s)". (p. 8 - 9)

Agency Response: See Summary responses above. The commenter’s comments 

about how to treat “impaired” waters is outside the scope of this rulemaking. 

1.527 I am recommending that where section 303(d) of the Clean Water Act, states, territories, 

and authorized tribes are required to develop lists of impaired waters be changed to the 

following:

The states, territories, and authorized tribes will work with sponsors and stakeholders to 

identify project measures to address impairments to the water. The EPA will assist those 

sponsors/stakeholders in completing a preliminary plan that identifies those impairments 

to be addressed in project actions. Economic, environmental, regional and social accounts 

will be formulated and displayed in the preliminary plan. Preliminary plan information 

will be referenced in determining planning priorities. The Economic account w11l 

reasonably maximize the net economic development benefits. The Economic accounts of 

the preliminary plans being submitted for planning and implementation assistance will be 

used to prioritize EPA assistance (technical and financial) under the Act. (p. 9)

Agency Response: The final rule 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. Considerations of how lists of impaired waters under 

The suggested edits to Section 303(d) are outside the scope of this rule. See also 

summary responses above.

Alcona Conservation District (Doc. #19345)

1.528 Additionally, rather than providing clarity and less complication over covered waters, the 

rule relies on undefined or vague concepts such as "riparian areas," "landscape unit," 

"floodplain," "ordinary high water mark," as determined by the agencies' "best 

professional judgment" and "aggregation," which will inevitably cause unnecessary 

litigation. (p. 1)

Agency Response: See summary responses above.

1.529 The new proposal redefines its control over "Waters of the U.S." without considering any 

factors beyond a very narrow environmental view. It doesn't consider land use, private 

property rights or economics. It doesn't care about people's livelihoods. This proposed 

rule change poses a serious threat to farmers, the forest products industry and landowners 

in the State of Michigan. (p. 1 – 2)

Agency Response: See summary responses above.

City of Morgan City, Louisiana (Doc. #19346)

1.530 It appears that the Agencies did not even consider existing State authorities when 

developing its proposed rule. (p. 2)

Agency Response: See summary responses above. The rule does not impact or 

diminish State authorities to allocate water rights or to manage their water 
Clean Water Rule Response to Comments – Topic 1: General Comments 

345

resources. Section 101(g) of the CWA states, “It is the policy of Congress that the 

authority of each State to allocate quantities of its water within its jurisdiction shall 

not be superseded, abrogated or otherwise impaired by [the CWA and] that nothing 

in [the CWA] shall be construed to supersede or abrogate rights to quantities of 

water which have been established by any State.” The rule is entirely consistent with 

these policies. Having been enacted with the objective of restoring and maintaining 

the chemical, physical, and biological integrity of our nation’s waters, the CWA 

serves to protect water quality. Neither the CWA nor the rule impairs the 

authorities of States to allocate quantities of water. Instead, the CWA and the rule 

serve to enhance the quality of the water that the States allocate. 

The CWA establishes both national and state roles to ensure that states specificcircumstances are properly considered to complement and reinforce actions taken 

at the national level. This rule recognizes the unique role of states and tribes. As 

stated in the preamble, 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 

emerging science to ensure consistent and effective protection for waters in the 

states. As is the case today, nothing in this rule restricts the ability of states to more 

broadly protect state waters. States and tribes may assume permitting responsibility 

for section 402 and 404 of the CWA. As co-implementers of these permitting 

programs, the agencies’ commit to continue to work collaboratively with states and 

tribes with approved 402 and 404 programs. The rule is consistent with sections 

101(b), 402(b), 404(g), and 510 of the CWA.

United States House of Representatives (Doc. #19348)

1.531 On September 9 2014, the House of Representatives passed H.R. 5078, the Waters of the 

United States Regulatory Overreach Protection Act with strong bipartisan support. This 

vote was a powerful reflection of the concerns of the American people about this 

proposal. We believe it is appropriate and critical for the EPA to extend the comment 

period to allow more Americans to fully express their views. (p. 1)

Agency Response: The agencies have provided sufficient time for review of the 

rule. On April 21, 2014, EPA published for public comment the proposed rule 

defining the scope of waters protected under the Clean Water Act (CWA) in light of 

the U.S. Supreme Court cases in U.S. v. Riverside Bayview, Solid Waste Agency of 

Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), and Rapanos

v. United States (Rapanos) (the Proposed Rule). The Proposed Rule was developed 

to enhance protection for the nation’s public health and aquatic resources and 

increase CWA program predictability and consistency by providing clarity as to the 

scope of “waters of the United States” protected under the CWA. The 90-day 

comment period was expected to close on July 21, 2014; however on June 24, 2014, 

EPA issued an extension through October 20, 2014. On October 14, 2014, EPA 

issued an additional extension, and the comment period closed on November 14, 

2014. The comment period, including the two extensions afforded substantial time 

for review and submission of public comments.
Clean Water Rule Response to Comments – Topic 1: General Comments 

346

Western States Water Council (Doc. #19349)

1.532 B. Deference to State Water Law

The text of the rule itself should give full force and effect to, and should not diminish or 

in any way detract from, the intent and purpose of CWA Sections 101(b) and 101(g) 

regarding the states’ primary and exclusive authority over water allocation and water 

rights administration, as well as state-federal co-regulation of water quality. (p. 2)

Agency Response: See summary responses above. This Rule does not impact or 

diminish State authorities to allocate water rights or to manage their water 

resources. Section 101(g) of the CWA states, “It is the policy of Congress that the 

authority of each State to allocate quantities of its water within its jurisdiction shall 

not be superseded, abrogated or otherwise impaired by [the CWA and] that nothing 

in [the CWA] shall be construed to supersede or abrogate rights to quantities of 

water which have been established by any State.” The rule is entirely consistent with 

these policies. Having been enacted with the objective of restoring and maintaining 

the chemical, physical, and biological integrity of our nation’s waters, the CWA 

serves to protect water quality. Neither the CWA nor the rule impairs the 

authorities of States to allocate quantities of water. Instead, the CWA and the rule 

serve to enhance the quality of the water that the States allocate.

The CWA establishes both national and state roles to ensure that states specificcircumstances are properly considered to complement and reinforce actions taken 

at the national level. This rule recognizes the unique role of states and tribes. As 

stated in the preamble, 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 

emerging science to ensure consistent and effective protection for waters in the 

states. As is the case today, nothing in this rule restricts the ability of states to more 

broadly protect state waters. States and tribes may assume permitting responsibility 

for section 402 and 404 of the CWA. As co-implementers of these permitting 

programs, the agencies’ commit to continue to work collaboratively with states and 

tribes with approved 402 and 404 programs. The rule is consistent with sections 

101(b), 402(b), 404(g), and 510 of the CWA.

Jil Tracy, State Representative 94th District (Doc. #19518)

1.533 The proposed rule promulgated by the Environmental Protection Agency (EPA) and the 

U.S. Army Corps of Engineers (ACE) would expand federal CWA jurisdiction over 

nearly all areas with any hydrologic connection to navigable waters. 

Your rule aggressively expands federal authority under the CWA while bypassing 

Congress and creating unnecessary ambiguity. Moreover, the rule is based on incomplete 

scientific and economic analyses.

The rule is flawed in a number of ways. The greatest problem is expansion of areas 

defined as ‘waters of the U.S.’ by effectively removing the word "navigable" from the 

definition of Waters of the United States (WOTUS).
Clean Water Rule Response to Comments – Topic 1: General Comments 

347

The rule would place features such as ditches, ephemeral drainages, ponds (natural or 

man-made), prairie potholes, seeps, flood plains, and other occasionally or seasonally wet 

areas under federal jurisdiction. These areas are the reserved domain of the state 

government not the federal government. (p. 1)

Agency Response: See summary responses above. The scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 

the existing regulations, in part because the rule puts important qualifiers on some 

existing categories such as tributaries.

This rule is consistent with the Clean Water Act, the Supreme Court decisions and 

the Constitution and provides increased clarity and certainty regarding the 

definition of Waters of the United States.

1.534 Rather than providing clarity and certainty in identifying covered waters, the rule instead 

creates more confusion and will inevitably cause unnecessary litigation. The rule relies 

heavily on undefined and vague concepts such as ‘riparian areas,’ ‘landscape unit,’ 

‘floodplain,’ ‘ordinary-high-water-mark’ as determined by the agencies' ‘best 

professional judgment’ and ‘aggregation.’ (p. 2)

Agency Response: See summary responses above.

M. Sedlock (Doc. #19524)

1.535 Issue 1: Conflicting intent and incorrect purpose given for the proposed rule

Reference: FR title: Definition of “Waters of the United States” Under the Clean Water 

Act

FR page 22188 column 1: [The Agencies] are publishing for public comment a proposed 

rule defining the scope of waters protected under the Clean Water Act (CWA), 

FR page 22190, column 3: The purposes of the proposed rule are to ensure protection of 

our nation’s aquatic resources and make the process of identifying ‘‘waters of the United 

States’’ less complicated and more efficient.

Discussion: The title of the proposed rule clearly states that the subject matter is the 

definition of a term, “Waters of the United States”. The purpose of such a definition is 

declared to be to define the scope of waters that are protected under the CWA. However, 

the most significant and the most looming gorilla in the room associated with the 

Agencies’ proposed regulatory definition is that there is no valid or justifiable need or 

purpose in redefining “waters of the United States”, and that the actual purpose of the 

proposed rule is not to create a definition but to mask a tremendous expansion of the 

scope of CWA protected waters.

The task of establishing the parameters of the scope of responsibility for the Agencies 

that will enable them to carry out their missions160 cannot be accomplished by proposing 

 

160 The EPA mission is to protect human health and the environment. http://www2.epa.gov/aboutepa
Clean Water Rule Response to Comments – Topic 1: General Comments 

348

to redefine a term that already has a well-understood meaning in the English language. 

The Agencies, in couching the proposed rule as a request for unnecessary and 

inappropriate redefinitions of that and multiple additional terms, beg the question of 

actual intent for doing so.

The Agencies have stated in the Federal Registry that there is a need for adopting a 

formal statement of the meaning or significance of the phrase “waters of the United 

States”. The Agencies stated that the need for this proposed rule was because the scope of 

CWA protection for streams and wetlands became confusing and complex following 

Supreme Court decisions in 2001 and 2006.

A regulatory definition, ideally, would be consistently and systematically used by the 

Agencies when interpreting and implementing the Clean Water Act (CWA). The 

Agencies’ proposal that the definition of “waters of the United States” be defined masks 

the fact that no such new definition is needed or even wanted by the Agencies. In fact, the 

Agencies would be delighted for the public to accept “waters of the United States” at face 

value.

This approach is a “bait and switch” process based on confusion caused by selfreferential internal definitions within the proposed rule, making any real definition of any 

term nearly impossible. The proposed rule is presented with an ultimate objective of 

substantially increasing the scope of waters protected by the CWA (the switch) as a 

consequence of getting the public to agree to using the term “waters of the United States” 

at face value meaning.

The bait is the pretense that a real rule change is being proposed to meet legal 

requirements for public notice and mandated public hearings (the bait), while bypassing 

not only the objective of public notice and public discussion on the actual rules, but 

avoiding the scrutiny of the legislative and judicial eyes (enabling the switch).

Any ordinary speaker of the English language understands “waters of the United States” 

to mean, in plain writing and common use, “all waters located within the territorial 

boundaries of the United States”. None of the words are hard to comprehend, and the use 

of this type of phraseology is common to native speakers of the English language (e.g., 

“riders of the purple sage”, “ranchers of the western states”, “farmers of the Midwest”, 

“speakers of the English language”). It is a non-specific term that does not exclude any 

specific kinds of water to be found within the United States (or, e.g., riders to be found 

riding the purple sage, etc).

No matter what definition could come about from the proposed rule, “waters of the 

United States” means all waters, including waters over which the Agencies have not 

previously had jurisdictional authority, e.g. waters of the States and private lands. This is 

not the intent of the CWA, although it apparently is the intent of the Agencies.

 

The mission of ACE is to "Deliver vital public and military engineering services; partnering in peace and war to 

strengthen our Nation's security, energize the economy and reduce risks from disasters." 

http://www.usace.army.mil/About/MissionandVision.aspx

Summary of the Clean Water Act 33 U.S.C. §1251 et seq. (1972) The Clean Water Act (CWA) establishes the basic 

structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards 

for surface waters. http://www2.epa.gov/laws-regulations/summary-clean-water-act
Clean Water Rule Response to Comments – Topic 1: General Comments 

349

In the English language when a word or term must be qualified with a modifier it is an 

indicator that the word or term is too general for the intended meaning. Thus the reason 

for the many modifiers for “waters of the United States” in the CWA, is because the 

CWA was not intended to apply to every drop of water located within the territorial 

boundaries of the United States. Modifying words have been used to provide parameters 

for implementation of protection of water quality since the Water Pollution Control Act 

of 1948.

Thus when the CWA uses the term “navigable waters” to modify “waters of the United 

States”, there should be no question that the Agencies should address waters that can be 

sailed on, i.e. that are passable by a vessel that floats on water. Using this clear and 

commonly understood meaning further leads to understanding that connected waterways 

and significant nexus waters will be waters that can be used for sailing on or that directly 

feed such waters. Limiting the Agencies’ jurisdiction to the actual meaning of “navigable 

waters” yields to a simple test: Can you float your boat on the water?

It is not the business of the Agencies to reinvent language, nor is it right or proper for the 

Agencies to use confusing language and incorrectly stated purpose to attempt to expand a 

federal Agency’s jurisdictional authority.

Recommendation: Withdraw the proposed rule. If the Agencies are confused about their 

scope of jurisdiction, they should seek Congressional and judicial guidance. (p. 3 – 5)

Agency Response: See summary responses above. This final rule interprets the 

CWA to cover those waters that require protection in order to restore and maintain 

the chemical, physical, or biological integrity of traditional navigable waters, 

interstate waters, and the territorial seas. This interpretation is based not only on 

legal precedent and the best available peer-reviewed science, but also on the 

agencies’ technical expertise and extensive experience in implementing the CWA 

over the past four decades.

1.536 Issue 4: Misrepresentation of Agencies’ authority in the proposed rule

Reference: Page 22189, column 3: This proposal does not affect Congressional policy to 

preserve the primary responsibilities and rights of states to prevent, reduce, and 

eliminate pollution, to plan the development and use of land and water resources, and to 

consult with the Administrator with respect to the exercise of the Administrator’s 

authority under the CWA. CWA section 101(b).

This proposal also does not affect Congressional policy not to supersede, abrogate or 

otherwise impair the authority of each State to allocate quantities of water within its 

jurisdiction and neither does it affect the policy of Congress that nothing in the CWA 

shall be construed to supersede or abrogate rights to quantities of water which have been 

established by any state. CWA section 101(g).

Discussion: The above two statements are misleading because they are presented in the 

proposed rule in a way that tends to create the impression the Agencies are dealing with 

solely Congressional policy and not requirements of the CWA. The above two statements 

are in fact a clearly stated objective of the CWA.

The lead-in paragraph for Section 101 of the CWA states: The objective of this Act is to 

restore and maintain the chemical, physical, and biological integrity of the Nation’s 
Clean Water Rule Response to Comments – Topic 1: General Comments 

350

waters. In order to achieve this objective it is hereby declared that, consistent with the 

provisions of this Act --- (b) It is the policy of the Congress to recognize, preserve, and 

protect the primary responsibilities and rights of States to ... and (g) It is the policy of 

Congress that the authority of each State to allocate quantities of water within its 

jurisdiction shall not be superseded, abrogated or otherwise impaired by this Act...

When the above statements are presented in the context that they are found in the CWA it 

becomes much more evident that Congress did intend for Federal actions conducted 

under authority of the CWA to not interfere with state rights and authorities, and state 

responsibilities to prevent, reduce, and eliminate pollution and to plan the development 

and use of land and water resources.

We also have a concern with the statements: “This proposal does not affect 

Congressional policy to preserve the primary responsibilities and rights of states ...”and 

“This proposal also does not affect Congressional policy not to supersede, abrogate or 

otherwise impair the authority of each State...” When considering all of the concerns and 

problems that have occurred with the current implementation of the CWA it is difficult to 

believe that the actions called for under the proposed rule would not add an additional 

burden on the states as they work to carry out their rights and responsibilities to manage 

the water and land resources within their jurisdiction.

Having a federal agency permitting land and water management activities from distant 

and often out-of-state offices with no knowledge of local conditions and no connection 

with local citizens can only lead to further complicate matters. It is clear that Congress, 

when it originally enacted and then amended the CWA never intended for the Agencies 

to act as the primary permitting and enforcement agency for land and water use activities 

across the nation. Contrary to what is being presented in the proposed rule it is obvious 

that the Agencies are attempting to set themselves up as the distant and often out-of-state 

permitting authority that will have the ability to greatly influence the land and water uses 

in all States and across the entire nation.

For over one hundred years the nation’s state and local governments have dealt with the 

planning, development and use of land and water resources, including water pollution 

within their jurisdictions. These tasks have been carried out faithfully at the local level 

without having to take extremely punitive measures, which seems to be the norm when 

federal agencies have intervened in the recent past. This heavy-handed approach to gain 

compliance is now a common practice in the way the Agencies conducts their permitting 

activities. This constant fear of harsh fines and threats of being imprisoned by federal 

agencies has greatly affected the states’ responsibilities and rights when dealing with 

local efforts to prevent, reduce, and eliminate pollution and to plan the development and 

use of land and water resources. We can only foresee this situation becoming much worse 

if the proposed rule is implemented.

Congress has over the years been very careful to encourage state and local government 

responsibility for and involvement in the planning, permitting and proper implementation 

of land and water use activities. Only in the last twenty or thirty years has the role of the 

states and local governments been usurped by the mission creep of federal agencies. This 

proposed rule is another example of a mission creep that is being fueled and driven by a 
Clean Water Rule Response to Comments – Topic 1: General Comments 

351

few select elite environmental organizations that will stop at nothing to impose their will 

on the American public.

Recommendation: Withdraw the current proposed rule.

Additionally, the Agencies must:

 End actions that allow mission creep within the federal governmental agencies. 

Discontinue unconstitutional self-serving efforts to increase the Agencies’ 

boundaries of jurisdiction over land use activities across the nation.

 Work diligently to divest themselves of all permitting authority and rather put 

their efforts towards helping the states and local governments coordinate and 

jointly plan for permitting and implementing sound land and water use practices 

across the entire United States, which is the clear intent of the CWA.

 Connect with the American public and not give in to the desires of a select elite 

group of environmental organizations that hope to gain control of the nation’s 

land and water resources through the manipulation of the Federal land and 

resource management agencies. (p. 9 – 11)

Agency Response: See summary responses above.

1.537 Issue 7: Violation of Fifth Amendment “regulatory taking”

Discussion: The extraordinary expansion of the Agencies’ jurisdictional authority that 

would come about through this proposed rule, and the resulting vastly increased 

restrictions imposed on private waters through permitting would result in regulatory 

taking, a violation of the Fifth Amendment. The increased permitting available to the 

Agencies would result in citizens being required to obtain permits and pay the 

government for ordinary activities on private property. This amounts to a seizure of that 

property without compensation, i.e. a regulatory taking. Although the Supreme Court 

does not require government compensation where regulations substantially advance 

legitimate governmental interests, this is not true when the regulations prevent a property 

owner from making “economically viable use of his land.” Agins v. City of Tiburon, 447 

U.S. 255 (1980).

In other words, the government should pay the market value of seized property rather 

than the property owner paying the government via a permit for the privilege of 

improving that property.

This type of violation of the Fifth Amendment would not come about except that the 

Agencies propose to include non-navigable waters in their definition of the scope of their 

jurisdictional authority. The mission of the Agencies, in particular the EPA, is to protect 

and sustain water quality, not own the water or manage its use.

Recommendations: Withdraw the proposed rule. (p. 13 – 14)

Agency Response: The rule does not constitute a taking of private property rights. 

As a matter of law, an agency’s determination of jurisdiction, by itself, cannot 

constitute a regulatory taking. See, e.g., U. S. v. Riverside Bayview Homes, 474 U.S. 

121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). Even if there is a finding of jurisdiction 

there can still be no taking unless and until the owner is prevented from using the 

property. The rule does not establish any regulatory requirements. Instead, it is a 
Clean Water Rule Response to Comments – Topic 1: General Comments 

352

definitional rule that clarifies the scope of “waters of the U.S.” consistent with the 

CWA, U.S. Supreme Court precedent, and science. It does not alter the underlying 

regulatory structure of the CWA. Under the CWA, any person discharging a 

pollutant from a point source into navigable waters must obtain a permit. The rule 

clarifies which navigable waters trigger the permit requirement. As stated by a 

unanimous United States Supreme Court in Riverside Bayview Homes, supra, “A 

requirement that a person obtain a permit before engaging in a certain use of his or 

her property does not itself ‘take’ the property in any sense: after all, the very 

existence of a permit system implies that permission may be granted, leaving the 

landowner free to use the property as desired. Moreover, even if the permit is 

denied, there may be other viable uses available to the owner. Only when a permit is 

denied and the effect of the denial is to prevent ‘economically viable’ use of the land 

in question can it be said that a taking has occurred.” 474 U.S. at 127, 106 S.Ct. at 

459, 88 L.Ed.2d 419 (1985).

Courts have consistently upheld the constitutional authority of federal agencies to 

regulate activities causing air or water pollution. Hodel v. Virginia Surface Mining 

and Reclamation Association, Inc., 452 U.S. 264, 282-283, 101 S.Ct. 2352, 2363, 69 

L.Ed. 2d 1 (1981); U.S. v. Deaton, 332 F.3d 698, 704, 707 (4th Cir. 2003), cert. den. 

541 U.S. 972, 124 S.Ct. 1874, 158 L.Ed.2d 466 (2004); U.S. v. Ashland Oil and 

Transportation Co., 504 F.2d 1317, 1329 (6th Cir. 1974); See also U.S. v. Cundiff, 555 

F.3d 200, 213, n. 6 (6th Cir. 2009), cert. den. 558 U.S. 818, 130 S.Ct. 74, 174 L.Ed.2d 

27 (2009).).

Chairman, Broadwater County Commissioner, Broadwater County Commissioners, Broadwater 

County, Montana (Doc. #20489)

1.538 Finally, the Constitution of the State of Montana says, "All surface, underground, flood, 

and atmospheric waters within the boundaries of the state are the property of the state for 

the use of its people and are subject to appropriation for beneficial uses as provided by 

law." (p. 1)

Agency Response: See summary responses above. This Rule does not impact or 

diminish State authorities to allocate water rights or to manage their water 

resources. 

Flood Control Water Agency, Santa Barbara County Public Works Department, Santa Barbara 

County, California (Doc. #20491)

1.539 A final point to be made is the lack of justification for such a move and the unintended 

impacts this increased regulation would have. In our County, these retention/recharge 

basins are physically disconnected from waters of the United States and were constructed 

in upland areas. Construction in upland areas did not result in a loss of wetland areas and 

therefore, there is no reason to regulate them as such. The result of the current proposed 

changes to the CWA would be a disincentive to further construct these facilities that must 

be recognized as being beneficial. The federal government should be encouraging more 

of these facilities not regulate their maintenance, increase regulatory costs, or create time 

delays for doing this vital work. There are no impact from keeping these facilities outside 

the 404 process nor advantages for including them. (p. 2)
Clean Water Rule Response to Comments – Topic 1: General Comments 

353

Agency Response: See the summary responses above as well as compendium 7 

regarding exclusions. The final rule identifies a number of waters that are not 

jurisdictional. For example, in the final rule, the agencies added an exclusion to 

reflect current agencies’ practice, and (b)(6) of the final rule excludes “[s]tormwater 

control features constructed to convey, treat, or store stormwater that are created in 

dry land.” 

Empire District Electric Company (Doc. #20501)

1.540 The Empire District Electric Company (EDE) is submitting these comments in response 

to the above-referenced proposed rule that redefines "waters of the United States" under 

the Clean Water Act (CWA) and appears to broaden the scope of CWA jurisdiction to the 

detriment of the traditional state and local authority to regulate land and water.

(...) The definitions of "floodplain," "wetlands, "tributaries, "significant nexus", and 

"riparian area" as expanded under the concept of "adjacency" is problematic and does 

NOT provide the hoped for clarity and consistency. While we are supportive of efforts to 

codify definitions of key terms in the CWA it is our belief that the proposed rule with the 

new definitions, when applied to establish jurisdictional waters, does not accomplish its 

stated objective. (p. 1)

Agency Response: See summary responses above.

Michigan House of Representatives (Doc. #20504)

1.541 WHEREAS, In response to the Supreme Court decisions, the EPA and Army Corps have 

recently proposed an amended definition to clarify federal jurisdiction. Unfortunately, the 

EPA and Army Corps have once again missed the mark and continue to ignore the limits 

on their authority, usurping powers reserved to the states under the Tenth Amendment to 

the U.S. Constitution; and

WHEREAS, The proposed rule would create greater uncertainty for businesses and 

homeowners rather than providing clarity. The proposed rule will add new definitions for 

key technical terms that introduce ambiguities and vagaries into federal regulation. 

Confusion will inevitably lead to further litigation, tying up our com1s, delaying 

economic development, and wasting taxpayer money; and (...) (p. 2)

Agency Response: See summary responses above.

ATTACHMENTS AND REFERENCES

Comments included above in this document discuss the Proposed Rule, and some include 

citations to various attachments and references, which are listed below. The agencies do not 

respond to the attachments or references themselves, rather the agencies have responded to the 

substantive comments themselves above, as well as in other locations in the administrative 

record for this rule (e.g., the preamble to the final rule, the TSD, the Legal Compendium). In 

doing so, the agencies have responded to the commenters’ reference or citation to the report or 

document listed below as it was used to support the commenters’ comment. Relevant comment 

attachments include the following:
Clean Water Rule Response to Comments – Topic 1: General Comments 

354

American Farm Bureau Federation Responses to Sections of Stoner Blog (Doc. #16357.44)

AFBF Comments on 2008 Rapanos Guidance (includes its own exhibits 1-8), dated 1/22/2008 

(Doc. #17921.4)

America's Vulnerable Waters: Assessing the Nation's Portfolio of Vulnerable Aquatic Resources 

since Rapanos v. United States (Doc. #15742.19)

American Waterways Operators Annual Report 2013 (Doc. #14858, p. 2)

Anderson, Robert. “Memorandum outlining concerns with Arizona portion of ELI state 

constraint study.” September 29, 2014. (Doc. #14285, p. 62)

Anthropogenic Climate Change in the Playa Lakes Joint Venture Region: Understanding 

Impacts, Discerning Trends, and Developing Responses. A report prepared for the Playa Lakes 

Joint Venture by J.H. Matthews, PhD, February 2008 (Doc. #17477.6)

Arizona Department of Environmental Quality Comments on USEPA's Docket ID-No-OW2002-0050 (April 15, 2003) (Doc. #17477.3)

Arizona Game and Fish Department Comments on USEPA's Docket ID-No-OW-2002-0050 

(April 15, 2003) (Doc. #17477.5)

Arkansas Game Fish Commission Comments on USEPA's Docket ID-No-OW-2002-0050 (April 

15, 2003) (Doc. #17477.4)

Arizona and New Mexico, National Hydrography Dataset: Medium Resolution, Little Colorado 

River Watershed (Doc. #17921.14, p. 323)

Arthur Brown Curriculum Vitae (Doc. #0050)

Association of State Floodplain Managers (ASFM) Comments on USEPA's Docket ID-No-OW2002-0050 (April 16, 2003) (Doc. #17477.7)

Association of State Wetland Managers, Inc. (ASWM) Comments on USEPA's Docket ID-NoOW-2002-0050 (April 16, 2003) (Doc. #17477.9)

Aquatic Scientists Comments on USEPA's Docket ID -No -OW-2002-0050 (10 April 2003) 

(Doc. #17477.46)

Background Information on the Galveston Bay Council (Doc. #0866, p. 3)

Benjamin H Grumbles Response to comments, USEPA to Jeanne Christie, Association of State 

Wetlands Managers (January 2006) (Doc. #17477.11)
Clean Water Rule Response to Comments – Topic 1: General Comments 

355

Biodiversity Conservation Alliance, Californians for Western Wilderness, Center for Native 

Ecosystems, Land and Water Fund of the Rockies, Oil and Gas Accountability Project, Powder 

River Basin Resource Council, Juan Citizens Alliance, Southern Utah Wilderness Alliance, 

Western Organization of Resource Councils, Western Slope Environmental Resource Council, 

Wyoming Outdoor Council Comments on USEPA's Docket ID-No-OW-2002-0050 (April 16, 

2003) (Doc. #17477.10)

Biodiversity Values of Geographically Isolated Wetlands in the United States (Doc. #15742.9)

Black, Gary. Georgia Commissioner of Agriculture Comments. (Doc. #14430, p. 36)

Board of Directors of the North Houston Association (Doc. #8537, p. 11)

Board of Directors of the West Houston Association (Doc. #8537, p. 12)

Buechler, D., Five Case Studies on the Effects of the SWANCC and Rapanos Supreme Court 

Rulings on Colorado Wetlands and Streams, February 2010, prepared in association with Ducks 

Unlimited, National Wildlife Federation, and Trout Unlimited. (Doc. #17477.19)

Busch Wildlife (Doc. #16372.4)

Calcasieu Parish Map of Waterways and Flood zone (Doc. #15412, p. 4)

California Resources Agency and California EPA Late Comments on USEPA's Docket ID-NoOW-2002-0050 (July 3, 2003) (Doc. #17477.12)

California Water Resource Control Board Comments on USEPA's Docket ID- No-OW-2002-

0050 (March 13, 2003) (Doc. #17477.13)

Clean Water Act Jurisdiction Handbook: Second Edition, May 2012 (Doc. #15742.3)

Clean Water Act Jurisdiction Handbook: 2007 Edition (Doc. #15742.4)

Coastal States Organization (CSO) Comments on USEPA's Docket ID-No-OW-2002-0050 

(April 16, 2003) (Doc. #17477.14)

Committee Hearings (Doc. #16386, p. 140)

Compilation of Preliminary Comments from Individual Panel Members on the Scientific and 

Technical Basis of the Proposed Rule Titled “Definition of ‘Waters of the United States’ Under 

the Clean Water Act”, as of 8/14/2014. (Doc. #14564.2)

Connolly, K.D. The Effects of the SWANCC and Rapanos Supreme Court Rulings on South 

Carolina Waters, prepared for Ducks Unlimited, National Wildlife Federation, and Trout 

Unlimited [undated] (Doc. #17477.91)
Clean Water Rule Response to Comments – Topic 1: General Comments 

356

Conservation Law Foundation versus US EPA (Doc. #15822.5)

Contribution of Headwater Streams to Biodiversity in River Networks (Doc. #15742.11)

Corps Regulatory Program Data FY2003-FY2010(Doc. #17921.2, p. 227)

Courting Disaster: How the Supreme Court Has Broken the Clean Water Act and Why Congress 

Must Fix It (Doc. #15472.22)

CRS Issue Brief for Congress: Wetland Issues (Order Code IB97014), updated May 22, 2006 

(Doc. #17477.16)

CRS Report to Congress: The Wetlands Coverage of the Clean Water Act is Revisited by the 

Supreme Court: Rapanos v. United States, updated September 12, 2006 (RL33263) (Doc. 

#17477.20)

CRS Report for Congress: The Wetlands Coverage of the Clean Water Act is Revisited by the 

Supreme Court: Rapanos v. United States, January 9, 2009 (RL33263) (Doc. #17477.17)

CRS Report for Congress: The Supreme Court Addresses Corps of Engineers Jurisdiction over 

“Isolated Waters”: The SWANCC Decision, February 16, 2001 (RL30849) (Doc. #17477.18)

David Sunding (The Brattle Group), Economic Incentive Effects..., dated 5/30/2011 (Doc. 

#17921.2, p. 13)

David Sunding (The Brattle Group), Review of EPA's Preliminary..., dated 7/26/2011(Doc. 

#17921.2, p. 252)

David Sunding Biography"(Doc. #17921.2, p. 263)

Delaware Department of Natural Resources Comments on USEPA's Docket ID-No-OW-2002-

0050 (April 16, 2003) (Doc. #17477.26)

Ditch the Myth: Let's Get Serious About Protecting Clean Water (Doc. #13029, p. 92)

Down the Drain: The Destruction of Waters and Wildlife in the Southwest, White Paper (Doc. 

#15742.17)

Dr. Amanda D. Rodewald, Chair, Science Advisory Board Panel for the Review of the EPA 

Water Body Connectivity Report, Memorandum to Dr. David Allen, Chair, EPA Science 

Advisory Board, Comments to the chartered SAB on the adequacy of the scientific and technical 

basis of the proposed rule titled “definition of ‘waters of the United States’ under the Clean 

Water Act,” (“Rodewald Memo”) transmitting “Individual Comments from Members of the SAB 

Panel for the Review of the EPA Water Body Connectivity Report on the Scientific and 

Technical Basis of the Proposed Rule Titled ‘Waters of the United States’ Under the Clean 

Water Act” (Sept. 2, 2014), 
Clean Water Rule Response to Comments – Topic 1: General Comments 

357

http://yosemite.epa.gov/sab/sabproduct.nsf/F6E197AC88A38CCD85257D49004D9EDC/$File/R 

odewald_Memorandum_WOUS+Rule_9_2_14.pdf (“SAB Panel Member Comments on 

Proposed Rule”) (Doc. #17921.14, p. 182)

Duck Unlimited Comments on USEPA's Docket ID- No-OW-2002-0050 (April 16, 2003) (Doc. 

#17477.22)

Ecological Linkages between Headwaters and Downstream Ecosystems: Transport of Organic 

Matter, Invertebrates, and Wood Down Headwater Channels (Doc. #15742.21)

Ecological Society of America (ESA) Comments on USEPA's Docket ID-No-OW-2002-0050 

(March 19, 2003) (Doc. #17477.23)

Environmental Best Management Practices for Virginia's Golf Courses and Summary BMP 

statements for the protection of water quality (Doc. #14798.1)

Environmental Coalition [National Wildlife Federation, Natural Resources Defense Council, 

Earthjustice, American Rivers, Sierra Club, Ocean Conservancy, Defenders of Wildlife, 

Appalachian Center for the Economy and the Environment, National Audubon Society, 

Environmental Defense, and Clean Water Action] Joint Comments on USEPA's Docket ID-NoOW-2002-0050 (April 16, 2003; corrected copy April 22, 2003) (Doc. #17477.29)

Environmental Defense Comments on USEPA's Docket ID-No-OW-2002-0050 [undated] (Doc. 

#17477.25)

Environmental Defense Comments In the Supreme Court of the United States: Solid Waste 

Agency of Northern Cook County v. United States Army Corps of Engineers, et.al. (No. 99-

1178) (Doc. #17477.24)

Environmental Impacts Report Golden Sands Dairy Saratoga Township Wisconsin (Doc. 

#16645.2)

EPA Documents Produced in Response to Freedom of Information Act Request Regarding 

Science Advisory Board Review of Connectivity Report and Proposed Rule, FOIA-EPA-HQ2014-005918, (July 31, 2014) - submitted on disc (Doc. #17921.15, p. 47)

ERDC and US ACOE Review of Land and Stream Classifications (Doc. #15822.12)

ERDC National OHWM Delineation Technical Guidance (Doc. #15822.4)

Exhibit 2: EPA Region 7 National Wetlands Inventory (Doc. #15364, p. 15)

Estimating the Size and Impact of the Ecological Restoration Economy (Doc. #7006.3)

Evaluation of a Market in Wetland Credits: Entrepreneurial Wetland Banking in Chicago (Doc. 

#7006.1)
Clean Water Rule Response to Comments – Topic 1: General Comments 

358

Evaluating the Potential of the Conservation Reserve Program to Offset Projected Impacts of 

Climate Change on the Lesser Prairie Chicken, March, 31 2011 (Doc. #17477.15)

FEEP Comments on 2003 ANPRM (April 30, 2003) (Doc. #17921.6)

FEMA Floodplain Maps, Callaway County, Missouri (Doc. #17921.15, p. 33)

FEMA 100-Yr Flood Zone, Miami-Dade County, FL (Doc. #17921.15, p. 29)

Florida Department of Environmental Protection Comments on USEPA's Docket ID-No-OW2002-0050 (April 16, 2003) (Doc. #17477.28)

Florida Stormwater Assocation, “Proposed Regulations on Waters of the United States: 

Preliminary Analysis” (Doc. #17921.15, p. 44)

Frontiers Wyoming - A Publication of Frontiers of Freedom "The Brace Travesty" (Doc. 

#15570, p. 11)

Galveston Bay Foundation (GBF) Comments on USEPA's Docket ID-No-OW-2002-0050 (April 

16, 2003) (Doc. #17477.30)

Geographically Isolated Wetlands and Ephemeral Streams in Montana: Extent, Distribution and 

Function (Doc. #15742.12)

Attachment 2 Georgia Commissioner of Agriculture's Submission to EPA (Doc. #14430, p. 36)

Georgia Department of Natural Resources Comments on USEPA's Docket ID-No-OW-2002-

0050 (April 17, 2003) (Doc. #17477.34)

Hawaii State Department of Health Comments on USEPA's Docket ID-No- OW-2002-0050 

(April 16, 2003) (Doc. #17477.32)

Hickman, K. and D. Elmore. 2009. Management of CRP in the Southern Great Plains for the 

Lesser Prairie Chicken. Oklahoma State University, funded by Environmental Defense Fund. 

(Doc. #17477.47)

High Plains Landowner Survey 2006: Farmers, Ranchers, and Conservation. Playa Lakes Joint 

Venture Report Prepared by D.J. Case & Associates, October 2006 (Doc. #17477.81)

Hirsch, R. [undated]. The Drainage of Headwater Wetlands and "Isolated" Wetlands and the 

Channelization of Headwater Streams Are Intimately Connected to the Dead Zone in the Gulf of 

Mexico (Environmental Defense Fund Attachment 2) (Doc. #17477.27)
Clean Water Rule Response to Comments – Topic 1: General Comments 

359

Honorable Sam Brownback, Governor of Kansas, Comments on EPA and Army Corps of 

Engineers Guidance Regarding the Identification of Waters Protected by the Clean Water Act, 

Docket ID No. EPA-HQ-OW-2011-0409 (July 14, 2011) (Doc. #17921.15, p. 41)

Hudson Riverkeeper, Inc. Comments on USEPA's Docket ID-No-OW-2002-0050 (April 16, 

2003) (Doc. #17477.33)

Hutson, S.S., et al. 2004. Estimated Use of Water in the United States in 2000, U.S. Department 

of the Interior, U.S. Geological Survey, Reston, Virginia (U.S. Geological Survey Circular 1268) 

(Doc. #17477.31)

Hydrological Connectivity Between Headwater Streams and Downstream Waters: How Science 

Can Inform Policy (Doc. #15742.14)

Hydrological Connectivity Between Headwater Streams and Downstream Waters: Introduction 

to the Featured Collection (Doc. #15742.15)

Illinois Department of Natural Resources Comments on USEPA's Docket ID-No-OW-2002-0050 

(April 11, 2003) (Doc. #17477.35)

Imperiled Treasures: How Recent Supreme Court Decisions and Agency Actions Have 

Endangered Southwest Waters and Wildlife (Doc. #15472.18)

Important Science Committee Communications (Doc. #16386, p. 21)

Inconsistent Regulation of Wetlands and Other Waters Hearing (Doc. #15822.8)

Indiana Department of Environmental Management Comments on USEPA's Docket ID-No-OW2002-0050 (April 16, 2003) (Doc. #17477.36)

Indiana Department of Natural Resources Comments on USEPA's Docket ID-No-OW-2002-

0050 (April 16, 2003) (Doc. #17477.37)

Indicators of Hydrologic Permanence in Headwater Streams of South Carolina (Doc. #15742.7)

Inside EPA Articule (5/2/14): Agencies' Workgroup Eyes Changes to Key Wetlands Delineation 

Guides (Doc. #13029, p. 89)

Interlocking Concrete Pavement Institute, “Permeable Interlocking Concrete Pavement (PICP) 

for Municipal Officials Fact Sheet.” (Doc. #13952.2)

Iowa Department of Natural Resources Comments on USEPA's Docket ID-No-OW-2002-0050 

(March 31, 2003) (Doc. #17477.40)

Izaak Walton League of America Comments on USEPA's Docket ID-No-OW-2002-0050 (noncopyright version) (April 16, 2003) (Doc. #17477.122)
Clean Water Rule Response to Comments – Topic 1: General Comments 

360

Jefferson Parish Council Resolution (Doc. #14574.5)

Justice Kennedy and Ecosystem Services: A Functional Approach to Clean Water Act 

Jurisdiction after Rapanos (Doc. #15742.10)

Kansas Agriculture Alliance Individual Association Members. (Doc. #14424, p. 13)

Keeping Our Nation's Public Drinking Water Sources Safe, Sierra Club, May 2007 (Doc. 

#17477.42)

Kentucky Department for Environmental Protection Comments on USEPA's Docket ID-No-OW2002-0050 (March 13, 2003) (Doc. #17477.39)

Kansas Department of Wildlife and Parks Comments on USEPA's Docket ID- No-OW-2002-

0050 (April 16, 2003) (Doc. #17477.38)

KANSAS WATER APPROPRIATION ACT: K.S.A. 82a-701 through 82a-737 and 82a-740 

through 82a-743a and K.S.A. 42-303 and 42-313 (Doc. #15009.1)

Lac du Flambeau Band of Lake Superior Chippewa Indians Tribe Comments on USEPA's 

Docket ID-No-OW-2002-0050 (April 15, 2003) (Doc. #17477.41)

Lake Seminole Regional Stormwater Facility (Doc. #14426.3)

Letter from EPA to Dennis Hedke (Doc. #15024.2)

Letter to Governor: Executive Order No. 14-01 Determination of a State of Drought Emergency 

in Lake Albert, Oregon (Doc. #16464.1)

Letter from Kansas Governor 2011 (Doc. #15822.9)

Letter from Nancy Stoner (Doc. #15822.18)

Letter from Public Employees for Environmental Responsibility (PEER) dated Aug. 20, 2014 

(Doc. #15822.13)

Letter to Prof. Michael Blumm: Executive Order No. 14-01 Determination of a State of Drought 

Emergency in Lake Albert, Oregon (Doc. #16464.3)

Letter from Yell County Wildlife Federation (Doc. #16493)

Louisiana Department of Wildlife and Fisheries Comments on USEPA's Docket ID-No-OW2002-0050 (April 7, 2003) (Doc. #17477.43)
Clean Water Rule Response to Comments – Topic 1: General Comments 

361

Levick, L.R. et al. The Ecological and Hydrological Significance of Ephemeral and Intermittent 

Streams in the Arid and Semi-arid American Southwest. U.S. Environmental Protection Agency, 

Office of Research and Development, November 2008 (EPA/600/R-08/134, ARS/233046) (Doc. 

#17477.124)

Maine Department of Environmental Protection Comments on USEPA's Docket ID- No-W2002-0050 (April 16, 2003) (Doc. #17477.44)

Map of Cape Coral Canal System (Doc. #14976, p. 3)

Map: AZ and NM, National Hydrology Dataset (Doc. #17921.2, p. 244)

Map: AZ and NM, Little Colorado River Watershed (Doc. #17921.2, p. 246)

Map of Fulton & Mason Counties, Illinois, Floodplain of Illinois River (Doc. #17921.2, p. 248)

Map of South Dakota, Prairie Potholes Inside and Outside James River Floodplain (Doc. 

#17921.2, p. 250)

Maps of Various Projects, Tributaries, and Floodzones in Pinellas County (Doc. #14426.2)

Mapping the Truth by Tom Reynolds (August 28, 2014) (Doc. #13029, p. 97)

Massachusetts Department of Environmental Protection Comments on USEPA's Docket ID -No 

-OW-2002-0050 (April 16, 2003) (Doc. #17477.45)

Meeting Packet for Joint Meeting State Affairs Committee and Agriculture & Natural Resources 

Subcommittee (Doc. #14283.1, p. 1)

Memorandum for all SWG-PE-R Personnel, dated February 13, 2001 (Doc. #15822.6)

“MEMORANDUM FOR ECOS CONCERNING WATERS OF THE UNITED STATES 

ISSUES” (Sept. 11, 2014) (Referred to in NLA’s Comments as the “ECOS Memo”) (Doc. 

#14428.7)

Memorandum from John Elmore Department of the Army, Directorate of Civil Works, and 

David Davis, EPA, Office of Wetlands Protection, re: Clean Water Act Section 404 Jurisdiction 

Over Isolated Waters in Light of Tabb Lakes v. United States (Jan. 24, 1990) (Doc. #17921.2, p. 

231)

Memorandum outlining concerns with Arizona portion of ELI state constraint study (Doc. 

#14285, p. 62)

Menke Lake (Doc. #16372.2)
Clean Water Rule Response to Comments – Topic 1: General Comments 

362

Meyer, J.L. et al. Where Rivers Are Born: The Scientific Imperative for Defending Small 

Streams and Wetlands. Funded by Sierra Club Foundation, The Turner Foundation, and 

American Rivers, September 2003. (Doc. #17477.141)

Mike Tate and Tom Stiles, Kansas Department of Health and Environment, Presentation on 

Waters of the U.S. (May 2, 2014) (Doc. #17921.15, p. 2)

Minnesota DNR Comments, Figure 2: Preliminary assessment of the percentage of Minnesota 

wetland area retaining federal jurisdiction after SWANCC decision 25-Meter buffer to estimate 

adjacent connectivity to selected within a watercourses. (Doc. #17477.49)

Minnesota DNR Comments, Figure 3: Preliminary assessment of the percentage of Minnesota 

wetland area retaining federal jurisdiction after SWANCC decision 50-Meter buffer to estimate 

adjacent connectivity to selected within a watercourses. (Doc. #17477.50)

Minnesota DNR Comments, Figure 1: Preliminary assessment of the percentage of Minnesota 

wetland area retaining federal jurisdiction after SWANCC decision to estimate direct 

connectivity to selected watercourses. (Doc. #17477.51)

Minnesota DNR Comments, Table 2: Predicted loss of federal regulatory protection due to postSWANCC guidance, and possible changes in CWA authority over tributaries to navigable 

waters. (Doc. #17477.52)

Minnesota DNR Comments, Table 1: Percent of wetlands mapped by NWI that would be 

regulated by section 404 based on current post-SWANCC guidance. (Doc. #17477.52)

Minnesota DNR Comments, Figure 4: Preliminary assessment of the percentage of Minnesota 

wetland area retaining federal jurisdiction after SWANCC decision 100-Meter buffer to estimate 

adjacent connectivity to selected within a watercourses. (Doc. #17477.53)

Missouri Department of Conservation Comments on USEPA's Docket ID-No-OW-2002-0050 

(February 28, 2003) (Doc. #17477.58)

Missouri Department of Natural Resources Comments on USEPA's Docket ID-No-OW-2002-

0050 (March 4, 2003) (Doc. #17477.56)

Missouri DNR Regulatory Impact Report (Doc. #15822.16)

Montana Department of Environmental Quality Comments on USEPA's Docket ID-No-OW2002-0050 (April 16, 2003) (Doc. #17477.55)

Montana Fish, Wildlife and Parks Comments on USEPA's Docket ID-No-OW-2002-0050 (April 

19, 2003) (Doc. #17477.57)

Montgomery County Environmental Guidelines (Doc. #15822.11)
Clean Water Rule Response to Comments – Topic 1: General Comments 

363

Nancy Stoner Blog Entry (June 30, 2014): Setting the Record Straight on Waters of the US (Doc. 

#13039, p. 73)

National Wildlife Federation Comments on USEPA's Docket ID-No-OW-2002-0050 (April 16, 

2003) (Doc. #17477.59)

Navajo Nation Environmental Protection Agency Comments on USEPA's Docket ID-No-OW2002-0050 (April 16, 2003) (Doc. #17477.60)

Nebraska Department of Environmental Quality Comments on USEPA's Docket ID-No-OW2002-0050 (April 11, 2003) (Doc. #17477.63)

Nebraska Game and Parks Commission Comments on USEPA's Docket ID-No-OW-2002-0050 

(April 2, 2003) (Doc. #17477.62)

Neighborhood Letter: Executive Order No. 14-01 Determination of a State of Drought 

Emergency in Lake Albert, Oregon (Doc. #16464.4)

New England Interstate Water Pollution Control Commission Comments on USEPA's Docket 

ID- No-OW-2002-0050 (April 15, 2003) (Doc. #17477.61)

New Jersey Department of Environmental Protection Comments on USEPA's Docket ID-NoOW-2002-0050 (April 15, 2003) (Doc. #17477.64)

New Mexico Department of Agriculture Previously Submitted Comments (Doc. #13024, p. 30)

New Mexico Department of Game and Fish Comments on USEPA's Docket ID-No-OW-2002-

0050 (April 15, 2003) (Doc. #17477.66)

New Mexico Office of the Governor Comments on USEPA's Docket ID-No-OW-2002-0050 

(April 7, 2003) (Doc. #17477.65)

New York Department of Environmental Conservation Comments on USEPA's Docket ID-NoOW-2002-0050 (March 27, 2003) (Doc. #17477.68)

New York Department of Environmental Conservation Comments (Doc. #17477.68), 

Attachment (Tables) (Doc. #17477.67)

New York Office of the Attorney General Comments on USEPA' s Docket ID-No-OW-2002-

0050 (April 16, 2003) (Doc. #17477.80)

Nez Perce Tribe Comments on USEPA's Docket ID-No-OW-2002-0050 (February 25, 2003) 

(Doc. #17477.70)

North Carolina Department of Environment and Natural Resources Comments on USEPA's 

Docket ID-No-OW-2002-0050 (April 16, 2003) (Doc. #17477.69)
Clean Water Rule Response to Comments – Topic 1: General Comments 

364

North Carolina Wildlife Resources Commission Comments on USEPA's Docket ID-No-W2002-0050 (April 15, 2003) (Doc. #17477.71)

North Dakota Game and Fish Department Comments on USEPA's Docket ID-No-OW-2002-

0050 (April 16, 2003) (Doc. #17477.72)

Northern CA floodplain (Doc. #17921.15, p. 37)

Notes on the definition of ‘ecological restoration’ (Doc. #7006.4)

Sheyenne, A River in Peril, Spring 2012 Newsletter (Doc. #4358.2)

Oak Ridge National Laboratory Comments on USEPA's Docket ID-No-OW-2002-0050 

(February 11, 2003) (Doc. #17477.73)

Office of Advocacy of the U.S. Small Business Administration Submission to EPA (Doc. 

#14430, p. 37)

Oklahoma Department of Wildlife Conservation Comments on USEPA's Docket ID-No-OW2002-0050 (April 15, 2003) (Doc. #17477.74)

Olens, Sam. Georgia State Attorney General Comments. (Doc. #14430, p. 22)

Parish of Calcasieu Resolution (Doc. #15412, p. 2)

Partial List of Commenting Clients (Doc. #13053.1)

Partners in Amphibian and Reptile Conservation (PARC) Comments on USEPA's Docket IDNo-OW-2002-0050 (April 16, 2003) (Doc. #17477.75)

Pattern and Process in Northern Rocky Mountain Headwaters: Ecological Linkages in the 

Headwaters of the Crown of the Continent (Doc. #15742.8)

Pennsylvania Fish and Boat Commission Comments on USEPA's Docket ID-No-OW-2002-0050 

(March 3, 2003) (Doc. #17477.76)

Pennsylvania Game Commission Comments on USEPA's Docket ID-No-OW-2002-0050 (March 

7, 2003) (Doc. #17477.77)

Permeable Interlocking Fact Sheet-Municipal (Doc. #13952.2)

Photos of people signing a "Ditch the Rule" poster (Doc. #14859.1, p. 1)

Photos and Floodplain GIS Map (Doc. #14986, p. 11)
Clean Water Rule Response to Comments – Topic 1: General Comments 

365

Photos of Typical Groundwater Detention Basins (Doc. #15620, p. 14)

Pierce, R.J. Technical Principles Related to Establishing the Limits of Jurisdiction for Section 

404 of the Clean Water Act, April 2003 (Doc. #17477.92)

Pinellas County 100 Year Floodplain (Apr. 24, 2014) (Pinellas County, Florida) (Doc. 

#17921.15, p. 31)

Phoenix, Arizona, Floodplain, US Army Corps of Engineers National Levee Database (Doc. 

#17921.15, p. 35)

PLJV 2006 High Plains Landowner Survey Report, Appendix F (Doc. #17477.78)

Playa Lakes Joint Venture (PLJV) High Plains Landowner Survey 2006: Farmers, Ranchers, and 

Conservation, Executive Summary, October 2006 (Doc. #17477.79)

Playa Lakes Joint Venture Fact Sheet: Playas & The Ogallala Aquifer (Doc. #17477.83)

PNWA Membership Roster (Doc. #14272, p. 3)

Polluting the Mississippi River Basin's Small Streams and Wetlands (Doc. #15742.13)

Position Paper on Clean Water Act Jurisdiction Determinations Pursuant to the Supreme Court's 

January 9, 2001 Decision, Solid Waste of Northern Cook County v. United States Army Corps of 

Engineers (SWANCC). Presented to Administrator Whitman, United States Environmental 

Protection Agency by the Association of State Wetland Managers and the Association of State 

Floodplain Managers, December 2001. Prepared by Pat Parenteau, Professor of Law, Vermont 

Law School (Doc. #17477.8)

POTENTIAL IMPACTS OF PROPOSED CHANGES TO THE CLEAN WATER ACT 

JURISDICTION RULE Wednesday, June 11, 2014 House of Representatives, Subcommittee on 

Water Resources and Environment, Committee on Transportation and Infrastructure, 

Washington, D.C. (Doc. #15822.7)

Preliminary Assessment of Geographic Scope of Federal Wetland Regulatory Changes in 

Minnesota based on January 10, 2003 post-SWANCC guidance and January 15, 2003 ANPRM, 

Minnesota Board of Water and Soil Resources, March 27, 2003 (Comments on USEPA's Docket 

ID-No-OW-2002-0050) (Doc. #17477.48)

Public Comment on Proposed Waters of the U.S. Guidance, EPA–HQ–OW–2011–0409. 76 Fed. 

Reg. 24479 (May 2, 2011) submitted by Western Resource Advocates July 28, 2011 (Doc. 

#16460.1)

Putting Drinking Water First, Newsletter by Clean Water Action (Doc. #15015.1)
Clean Water Rule Response to Comments – Topic 1: General Comments 

366

Questions and Answers about Waters of the U.S. Proposal (as of September 6, 2014) (Doc. 

#13029, p. 81)

“Questions And Answers About Waters Of The U.S. Proposal,” EPA (Sept. 8, 2014) (Referred 

to in NLA’s Comments as the “Q&A Document”) (Doc. #14428.2)

Reckless Abandon: How the Bush Administration is Exposing America's Waters to Harm (Doc. 

#15742.16)

REP America Comments on USEPA's Docket ID-No-OW-2002-0050 (February 24, 2003) (Doc. 

#17477.82)

Report on State Definitions (Doc. #15822.17)

Rhode Island Department of Environmental Management Comments on USEPA's Docket IDNo-OW-2002-0050 (April 16, 2003) (Doc. #17477.89)

Risk and Markets for Ecosystem Services (Doc. #7006.2)

Role of Headwater Streams in Downstream Water Quality (Doc. #15742.2)

Role of Ground Water in Generating Streamflow in Headwater Areas and in Maintaining Base 

Flow (Doc. #15472.20)

Rule of Department of Natural Resources (Doc. #15822.10)

Rules and Regulations Kansas Water Appropriations Act (June 2013) (Doc. #15009.2)

SBA Office of Advocacy Comment Letter (Doc. #8536, p. 3)

Science Advisory Board (SAB) Draft Report (09/17/14) to Assist Meeting Deliberations. (Doc. 

#16394.1)

EPA Science Advisory Board Panel for the Review of the EPA Water Body Connectivity 

Report, SAB Review of the DRAFT EPA Report, "Connectivity of Streams and Wetlands to 

Downstream Waters: A Review and Synthesis of the Scientific Evidence" (Oct 17, 2014) [URL] 

("SAB Panel Review of Connectivity Report") (Doc. #17921.14, p. 66)

Science Committee Evidence (Doc. #16386, p. 62)

Siedschlag, G., L. Butcher, and J. McFadden. Five Case Studies on the Effects of the SWANCC 

and Rapanos Supreme Court Rulings on Tennessee Waterways, January 2010, prepared for 

National Wildlife Federation, Trout Unlimited, and Ducks Unlimited (Doc. #17477.120)

Sound Science and Redefining the US Clean Water Act – Article (Doc. #14757)
Clean Water Rule Response to Comments – Topic 1: General Comments 

367

South Carolina Department of Health and Environmental Control Comment on USEPA's Docket 

ID-No-OW-2002-0050 (April 16, 2003) (Doc. #17477.84)

South Carolina Department of Health and Environmental Control Comments on USEPA's 

Docket ID-No-OW-2002-0050 (February 21, 2003) (Doc. #17477.86)

South Carolina Department of Natural Resources Comments on USEPA's Docket ID-No-OW2002-0050 (March 19, 2003) (Doc. #17477.87)

South Dakota Department of Game, Fish and Parks Comments on USEPA's Docket ID-No-OW2002-0050 (April 15, 2003) (Doc. #17477.88)

Southern Environmental Law Center's Comments on the "Definition of Waters of the United 

States" (Doc. #14280.1)

State Attorneys General Submission to EPA (Doc. #14430, p. 22)

State of Idaho, Office of the Governor Comments on USEPA's Docket ID- No-OW-2002-0050 

(April 16, 2003) (Doc. #17477.90)

State Practitioners Review of Environmental Law Institutite's "50-State Study on State 

Constraints: State-Imposed Limitation on the Authority of Agencies to Regulate Water Beyond 

the Scope of the Federal Clean Water Act", May 2013, (Nov. 13, 2014) (Doc. #17921.14, p. 2)

Streams and Waterbodies in Missouri, The National Hydrography Dataset (Doc. #15364, p. 14)

Stream Gage Data (Doc. #17159, p. 8)

SWANCC Decision: Implications for Wetlands and Waterfowl (Doc. #15742.5)

SWANCC Decision: Implications for Wetlands and Waterfowl (Excerpt) (Doc. #15742.6)

Technical Principles Related To Establishing the Limits of Jurisdiction for Section 404 of the 

Clean Water Act, April 2003 (Doc. #15822.14)

Technical Works Cited (Doc. #15016.2, p. 1)

Tennessee Wildlife Resources Agency Comments on USEPA's Docket ID-No-OW-2002-0050 

(February 26, 2003) (Doc. #17477.123)

Texas Commission on Environmental Quality Comments on USEPA's Docket ID-No-OW-2002-

0050 (April 16, 2003) (Doc. #17477.93)

Texas General Land Office Comments on USEPA's Docket ID-No-OW-2002-0050 (April 15, 

2003) (Doc. #17477.118)
Clean Water Rule Response to Comments – Topic 1: General Comments 

368

Texas Parks and Wildlife Department Comments on USEPA's Docket ID-No-OW-2002-0050 

(April 15, 2003) (Doc. #17477.119)

The State of the Birds, United States of America, 2009 (Doc. #17477.125)

The State of the Birds 2011 (Doc. #17477.126)

The State of the Birds 2010 Report on Climate Change, United States of America (Doc. 

#17477.127)

The State of the Birds Report on Private Lands United States of America Fact Sheet, Final (Doc. 

#17477.128)

The State of the Birds 2013 Report on Private Lands United States of America (Doc. 

#17477.129)

The State of the Birds 2011 Report on Public Lands and Waters, United States of America (Doc. 

#17477.130)

Transcription of Scottsdale, AZ Rapanos Guidance..., dated 9/13/2007(Doc. #17921.2, p. 147)

United States Department of Agriculture Natural Resources Conservation Service (Doc. #6918.1, 

p. 14)

University of Wisconsin Department of Botany Comments on USEPA's Docket ID-No-OW2002-0050 (March 28, 2003) (Doc. #17477.132)

US ACOE Branch Guidance Letter (Doc. #15822.3)

US ACOE Regulatory Guidance Letter (Doc. #15822.15)

US Court of Appeals Brief (Doc. #15822.19)

USEPA & US Army Corps “Guidance for Corps and EPA Field Offices Regarding Clean Water 

Act Section 404 Jurisdiction Over Isolated Waters in Light of United States v. James J. Wilson” 

(May 29, 1998) dated 5/29/1988(Doc. #17921.2, p. 236)

US GAO Report (Doc. #15822.2)

UWAG Comments on Jurisdictional Status of Isolated Waters after SWANCC (Apr. 15, 2003), 

EPA-HQ-OW-2002-0050-1836 (Doc. #15016.1, p. 138)

"UWAG, Comments on the Proposed Rule on Water Quality Standards Regulatory Clarifications 

(Jan. 2, 2014), EPA-HQ-OW-2010-0606-0203" (Doc. #15016.1, p. 211)

UWAG Member Anecdote Background Materials (Doc. #15016.2, p. 4)
Clean Water Rule Response to Comments – Topic 1: General Comments 

369

Vance, L. Post-SWANCC and Rapanos Jurisdictional Determinations in Montana Four Case 

Studies of Waters at Risk, University of Montana, February 2010, prepared for National Wildlife 

Federation, Ducks Unlimited, and Trout Unlimited (Doc. #17477.85)

VCOM Study of Health in Coal Dependent Southwest Virginia - Summary; Selected VCOM 

Research Abstracts 2012-2014 (Doc. #19314)

Vermont Department of Environmental Conservation Comments on USEPA's Docket ID-NoOW-2002-0050 [undated] (Doc. #17477.131)

Virginia Department of Conservation and Recreation Comments on USEPA's Docket ID-NoOW-2002-0050 (April 14, 2003) (Doc. #17477.133)

Virginia Department of Game and Inland Fisheries Comments on USEPA's Docket ID-No-OW2002-0050 (April 15, 2003) (Doc. #17477.134)

Virginia Tech Department of Crop and Soil Environmental Services Comments on USEPA's 

Docket ID-No-OW-2002-0050 (February 3, 2003) (Doc. #17477.135)

Virginia Department of Environmental Quality Comments on USEPA's Docket ID-No-OW2002-0050 (March 28, 2003) (Doc. #17477.140)

Washington Department of Natural Resources Comments on USEPA's Docket ID-No-OW-2002-

0050 [undated] (Doc. #17477.136)

Washington Department of Ecology Comments on USEPA's Docket ID No-OW-2002-0050 

(April 15, 2003) (Doc. #17477.137)

Waters Advocacy Coalition Interests of the Coalition Members (Doc. #17921.2, p. 2)

Waters Advocacy Coalition (WAC) letter to EPA Administrator McCarthy (Sept. 29, 2014) 

(Doc. #14428.5)

Waters Advocacy Coalition Member Organizations (Doc. #7981, p. 10)

Waterfowl Management Handbook Ecology of Playa Lakes, United States Department of the 

Interior, Fish and Wildlife Service, 1992 (Fish and Wildlife Leaflet 13) (Doc. #17477.138)

Waterways Restored - The Clean Water Act's Impact of 15 American Rivers, Lakes and Bays by 

Environment North Carolina Research and Policy Center (Doc. #14280.2)

Water Reuse Systems (photos only) (Doc. #17921.15, p. 39)

Western Water Alliance (WWA) Comments on USEPA's Docket ID- No-OW-2002-0050 (April 

16, 2003) (Doc. #17477.139)
Clean Water Rule Response to Comments – Topic 1: General Comments 

370

Wetlands at Risk 2002 Imperiled Treasures: A report by the National Wildlife Federation and 

Natural Resources Defense Council (Doc. #17477.143)

Wildlife Management Institute (WMI) Comments on USEPA's Docket ID-No-OW-2002-0050 

(April 11, 2003) (Doc. #17477.142)

Wisconsin Department of Natural Resources Comments on USEPA's Docket ID-No-OW-2002-

0050 (April 8, 2003) (Doc. #17477.145)

Wisconsin WPDES Permit Case (Doc. #16645.1)

Wyoming Office of Federal Land Policy Comments on USEPA's Docket ID-No-OW-2002-0050 

(March 3, 2003) (Doc. #17477.147)

404 Permits (Doc. #16372.1)

404 Permits on Jurisdictional Waters That Lack Protection Under Missouri's 100k Rule (Doc. 

#16372)

In addition, commenters submitted the following relevant references. These are copied into this 

document as they were submitted by commenters. The agencies have not verified the references, 

or the validity of hyperlinks.

Brief of Environmental Law Institute as Amicus Curiae (co author), Rapanos v. United States 

and Carabell v. U.S. Army Corps of Engineers, Nos. 04-1043, -1384 (U.S. filed Jan. 2006).

(Doc. #14068, p. 8)

Catskill Mountains Chapter of Trout Unlimited, Inc., et al. v. EPA, Docket No. 14-1823 (2d Cir), 

Brief for Defendant EPA, et al. (Sept. 11, 2014), at 29-30. (Doc. #15032, p. 12)

Environmental Law Institute, State Constraints: State-Imposed Limitations on the Authority of 

Agencies to Regulate Waters Beyond the Scope of the Federal Clean Water Act, at 2 (May 20 

13), available at http://www.eli.org/rescarch-report/state-constraints-state-imposed-lirnitationsauthority-ageneies-regulate-waters (hereinafter, ELI Study). (Doc. #13615, p. 8)

EPA, Waters of the United States Proposed Rule Website. httn://www2.cpa.gov/usw8tcrs (last 

visited: August 12, 2014). (Doc. #13615, p. 8)

EPA Waters of the United States Proposed Rule Website, http://www2.epa.gov/uswaters. (Doc. 

#13615, p. 8)

Laurence Tribe, Constitutional Law vol. I, § 5-9 at 853. (Doc. #5058.2, p. 15)

Letter from David T. Allen, Chair of the EPA Science Advisory Board, to EPA Administrator 

Gina McCarthy. Science Advisory Board (SAB) Consideration of the Adequacy of the Scientific 
Clean Water Rule Response to Comments – Topic 1: General Comments 

371

and Technical Basis of the EPA’s Proposed Rule titled “Definition of Waters of the United 

States under the Clean Water Act,” September 30, 2014. (Doc. #14645, p. 2)

Missouri Revised Statutes Chapter 242 (Doc. #6254, p. 1)

“MS4: What is an Urbanized Area,” at http://cfpub.epa.gov/npdes/faqs.cfm?program_id=6#174. 

(Doc. #5058.2, p. 14)

Nat. Res. Def. Council, Inc. v. Cnty. of Los Angeles, 636 F.3d 1235, 1247(9th Cir. 2011). (Doc. 

#5058.2, p. 14)

Potential Impacts of Proposed Changes to the Clean Water Act Jurisdictional Rule: Testimony 

Before the Subcommittee on Water Resources and Environment (June 11, 2014), available at 

http://transportation.house.gov/uploadedfiles/2014-06-11-strong.pdf (statement of J.D. Strong, 

Western Governors’ Association, Western States Water Council). (Doc. #15536, p. 10)

Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S. 151, 166-67 

(2001) (“SWANCC”) (citing 33 U.S.C. § 1251(b)). (Doc. #5058.2, p. 13)

Supreme Court rulings in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of 

Engineers (SWANCC), 531 U.S. 159 (2001) and in Rapanos v. United States, 547 U.S. 715 

(2006). (Doc. #14645, p. 2)

SWANCC, 531 U.S. at 172-73; Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (citing 

Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242-43 (1985)). (Doc. #5058.2, p. 15)

Texas Commission of Environmental Quality; Enforcement Initiation Criteria (EIC); 

https://www.tceq.texas.gov/assets/public/agency/eic-a4-tpdes-rev-14.pdf Environmental 

Protection Division; A Division of the Georgia Department of Natural Resources 

http://epd.georgia.gov/watershed-protection-branch http://epd.georgia.gov/enforcement Arizona 

Department of Environmental Quality; http://www.azdeq.gov/function/forms/docs.html#hand 

(Doc. #14068, p. 9)

United States House of Representatives Committee on Natural Resources Subcommittee on 

Water and Power Hearing: “New Federal Schemes to Soak Up Water Authority: Impacts on 

States, Water Users, Recreation, and Jobs.” Testimony of Patrick Tyrrell, P.E. Wyoming State 

Engineer; June 24, 2014 (Doc. #14068, p. 2)

“Urbanized Area Maps,” at http://cfpub.epa.gov/npdes/stormwater/urbanmaps.cfm. (Doc. 

#5058.2, p. 14)

http://www.epa.gov/uswaters (Doc. #14068, p. 8)

http://deq.state.wy.us/wqd/WQDrules/Chapter_01.pdf (Doc. #14068, p. 9)

http://legisweb.state.wy.us/LSOWEB/StatutesDownload.aspx (Doc. #14068, p. 9)
Clean Water Rule Response to Comments – Topic 1: General Comments 

372

http://www.epa.gov/uswaters/documents-re1ated-proposed-definition-waters-united-statesunder-clean-water-act (Doc. #14465, p. 2)

http://yosemite.epa.gov/opal admpress.nsf/3881d73f4d4aaa0b85257359003f5348/ae90dedd9595 

a02485257ca600557e30 (Doc. #14465, p. 2)

http://transportation.house.gov/uploadedfiles/2014-06-11-strong.pdf. (Doc. #15356, p. 10)

Supplemental references:

Camfield v. United States, 167 U.S. 260 (1897) (Doc. #0009.1, p. 2)

Kleppe v. New Mexico, 426 U.S. 529, 538 (1976) (Doc. #0009.1, p. 2)

Solid Waste Agency of Northern Cook County v. Corps of Engineers, 531 U.S. 159 (2001) 

(“SWANCC”) (Doc. #0009.1, p. 2)

United States v. Alford, 274 U.S. 264, 267 (1927) (Doc. #0009.1, p. 2)

United States v. California, 332 U.S. 19, 27 (1947). (Doc. #0009.1, p. 2)