Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

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Clean Water Rule Comment Compendium

Topic 17 – Non-Technical Comments (Volume 2)

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 non-technical comments (volume 2), 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.
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

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TOPIC 17. NON-TECHNICAL COMMENTS ..................................................................................... 5

17.1. PROPERTY OWNER .............................................................................................................. 5

AGENCY SUMMARY RESPONSE...................................................................................... 5

SPECIFIC COMMENTS ..................................................................................................... 5

Koontz, S.M. (Doc. #0020)..................................................................................... 5

Latchford, A. (Doc. #0600)..................................................................................... 5

Anonymous (Doc. #0820)....................................................................................... 6

Dion, B. (Doc. #0835)............................................................................................. 7

Ealy, S. (Doc. #0910.1)........................................................................................... 7

Shaughness, J. (Doc. #0930)................................................................................... 8

Kaun, S. (Doc. #0944) ............................................................................................ 8

Smith, C. and L. (Doc. #0974)................................................................................ 9

Hixson, R. and D. (Doc. #1201) ........................................................................... 10

Yoder, M. (Doc. #1601)........................................................................................ 10

Ray, C. (Doc. #1745) ............................................................................................ 11

Calcote, R. (Doc. #1850) ...................................................................................... 11

Anonymous (Doc. #2127)..................................................................................... 12

Anonymous (Doc. #2129)..................................................................................... 12

Anonymous (Doc. #2138)..................................................................................... 13

Anonymous (Doc. #2572)..................................................................................... 14

Smith, R. & J. (Doc. #2667) ................................................................................. 14

Anonymous (Doc. #3071)..................................................................................... 15

Baruch, M. A. (Doc. #3221) ................................................................................. 16

Reed, K. A. (Doc. #3386) ..................................................................................... 16

Thrower, G. (Doc. #3502)..................................................................................... 17

Dux, L. & N. (Doc. #4263)................................................................................... 18

Anonymous (Doc. #4440)..................................................................................... 18

Daly, M. (Doc. #6516).......................................................................................... 19

Kaufman, S. (Doc. #6833) .................................................................................... 20

Anonymous (Doc. #7176)..................................................................................... 20

Anonymous (Doc. #8794)..................................................................................... 21

Anonymous (Doc. #8805)..................................................................................... 21

Tolson, E. (Doc. #10768)...................................................................................... 22

Anonymous (Doc. #10849)................................................................................... 23

Cooper, B. (Doc. #11375)..................................................................................... 23

Porter, P.J. (Doc. #11596)..................................................................................... 24

Williams, E. H. (Doc. #14961) ............................................................................. 25

Mason, A. and NY State Ornithological Association, Inc. (Doc. #15743)........... 25

L.H. (Doc. #15750)............................................................................................... 26

Anonymous (Doc. #16388)................................................................................... 27

Anonymous (Doc. #16422)................................................................................... 27

Potts, C. (Doc. #16807)......................................................................................... 28

Huffmaster, D. (Doc. #18633) .............................................................................. 29

Grether, S. (Doc. #18668)..................................................................................... 30

17.2. BUSINESS OWNER .............................................................................................................. 30

AGENCIES’ SUMMARY RESPONSE ................................................................................ 30
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

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SPECIFIC COMMENTS ................................................................................................... 30

Guthrie, T. (Doc. #0921.1).................................................................................... 30

James, D. (Doc. #0991)......................................................................................... 31

Anonymous (Doc. #5366)..................................................................................... 31

Schlautmann, J. (Doc. #6072.1)............................................................................ 32

Carlson, R. (Doc. #11834) .................................................................................... 33

Klaassen, D. (Doc. #12193).................................................................................. 33

Martin Marietta (Doc. #13593)............................................................................. 34

Steinlage, J. (Doc. #13751)................................................................................... 34

Poirier, D. (Doc. #18679)...................................................................................... 35

17.3. “GREEN CITIZEN” ............................................................................................................. 35

AGENCY SUMMARY RESPONSE.................................................................................... 35

SPECIFIC COMMENTS ................................................................................................... 35

Doerflein, C. (Doc. #0500) ................................................................................... 36

Cuppy, E. A. (Doc. #1998) .................................................................................. 36

Anonymous (Doc. #2073)..................................................................................... 37

Niccoli, R. (Doc. #2854)....................................................................................... 37

Anonymous (Doc. #2951)..................................................................................... 37

Anonymous (Doc. #4486)..................................................................................... 39

Vasaturo, G. (Doc. #4593).................................................................................... 39

Anonymous (Doc. #11810)................................................................................... 40

Assayag, M. (Doc. #12022) .................................................................................. 40

Zucker, A. (Doc. #12043) ..................................................................................... 41

Saine, A. (Doc. #12090)........................................................................................ 42

McDougal, S. (Doc. #12185)................................................................................ 43

Reeves, M. (Doc. #12466) .................................................................................... 43

Hopkins, S. (Doc. #12697) ................................................................................... 44

Hallman, H. (Doc. #12912)................................................................................... 45

Grewe, A. (Doc. #13345)...................................................................................... 45

Martini, B. (Doc. #13589)..................................................................................... 46

Anonymous (Doc. #15684)................................................................................... 47

Species, S. (Doc. #15740)..................................................................................... 47

Ellis, J. (Doc. #15747) .......................................................................................... 47

Anonymous (Doc. #15803)................................................................................... 48

Morris, B. (Doc. #15841)...................................................................................... 48

Morris, S. (Doc. #15844) ...................................................................................... 48

Anonymous (Doc. #15867)................................................................................... 49

Wright, K. (Doc. #16146) ..................................................................................... 50

Anonymous (Doc. #16148)................................................................................... 50

Burleigh, J. (Doc. #16232).................................................................................... 50

Anonymous (Doc. #16418)................................................................................... 51

Joy, J. N. (Doc. #17208) ....................................................................................... 52

Newman, V. (Doc. #17698).................................................................................. 52

17.4. OTHER ................................................................................................................................ 53

AGENCY SUMMARY RESPONSE.................................................................................... 53

SPECIFIC COMMENTS ................................................................................................... 53
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

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Central Arizona Project (Doc. #3267) .................................................................. 53

Neill Grading and Construction (Doc. #4580.2)................................................... 55

Travis County Commissioners' Court, TX (Doc. #4876) ..................................... 57

Reese, J. (Doc. #4955.1) ....................................................................................... 58

Montana Wool Growers Association (Doc. #5843.1) .......................................... 58

Physicians for Social Responsibility (Doc. #8374) .............................................. 59

Energy Producing States Coalition (Doc. #11552)............................................... 59

Urban Drainage and Flood Control District (Doc. #12263) ................................. 60

Society of Wetland Scientists (Doc. #12846) ....................................................... 60

TriBasin Natural Resources District (Doc. #13564)............................................. 62

Moore, S. (Doc. #13818) ...................................................................................... 62

Anonymous (Doc. #13841)................................................................................... 63

Menard County Underground Water District (Doc. #13885).............................. 64

Interlocking Concrete Pavement Institute (Doc. #13952.1) ................................ 64

U. S. Chamber of Commerce et al. (Doc. #14115)............................................... 65

North Dakota Soybean Growers Association (Doc. #14121).............................. 66

Georgia Chamber of Commerce (Doc. #14430).................................................. 67

Tennessee Mining Association (Doc. #14582)..................................................... 68

Anonymous (Doc. #14600)................................................................................... 69

Environmental Enforcement Council (Doc. #14608) ........................................... 70

Senator John Kefalas, Colorado et al. (Doc. #15031)........................................... 73

American Foundry Society (Doc. #15148)........................................................... 74

Pennsylvania Municipal Authorities Association (Doc. #15374)......................... 75

Permian Basin Petroleum Association (Doc. #15378) ......................................... 77

National Sustainable Agriculture Coalition (Doc. #15403)................................. 78

Association of Texas Soil and Water Conservation Districts (Doc. #15475)....... 80

Wisconsin Farm Bureau Federation (Doc. #16166) ............................................. 81

Anonymous (Doc. #16217)................................................................................... 82

Kentucky Soybean Association (Doc. #16345) .................................................... 82

Burlsworth, J. (Doc. #16431)................................................................................ 83

City of Riverside Public Utilities (Doc. #17052).................................................. 84

Mark R. Warner, United States Senator, Constituent Comment - Charles Cooper 

(Doc. #19311) ....................................................................................................... 84

Bayou Concrete (Doc. #19321) ............................................................................ 85

Robert Rustermier (Doc. #19398)......................................................................... 85

Tunget, B. (Doc. #19951) ..................................................................................... 86

Grace, R. (Doc. #20398) ....................................................................................... 86

REFERENCES AND ATTACHMENTS ............................................................................................... 87
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

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Topic 17. NON-TECHNICAL COMMENTS

17.1. PROPERTY OWNER

Agency Summary Response

Various commenters expressed concerns regarding the need for the rule, private property 

impacts, and the breadth of the proposed rule's definitions or coverage of tributaries, puddles, 

ditches or various manmade features on their properties. A number of commenters expressed 

support for the rulemaking, due to concerns over the degradation of nearby waterbodies.

Specific Comments

Koontz, S.M. (Doc. #0020)

17.2.1 I live on 30 acres and my domestic water source comes from severa l springs on my 

property. I also maintain a small fishing pond on my property. I have a 2.5 acre property 

with a mobile home on it in Everett, Bedford County, PA. The water supply on this 

property is also derived from one of several springs. Your plan to expand your definition 

of “Navigable Waterways” to seize control of my water sources and supplies is 

unacceptable. I will fight you with every means appropriate and necessary to defeat such 

a notion. I will actively, through all forms of social media, lobbying avenues, and general 

communication methods oppose you and any candidate or representative who supports 

such a notion. You have no right to use my tax dollars to fund and execute such a 

mission. You do not represent the best interests of property owners or the environment. It 

is tragic this socialist act is the example your president has set for you. Please keep in 

mind Mr. Obama’s imperial reign ends in 2.5 years and you will be facing accountability 

to a new administration. I strongly suggest you re-think your perspective on the 

expansion of the definition of a “navigable waterway” and show your respect for property 

owners. A respect that should be earned through the tax dollars we pay that in turn fund 

your agency and pay your salary. (p. 1)

Agency Response: Section I of the Technical Support Document discusses the 

historic scope of the existing regulatory definition of “waters of the United States.” 

Fewer waters are defined as “waters of the United States” under the final rule than 

under the existing regulations, in part because the rule puts important qualifiers on 

some existing categories such as tributaries. In fact, the agencies are specifically 

excluding more water features as non-jurisdictional (i.e. they are not “waters of the 

United States”) than in present regulations.

Latchford, A. (Doc. #0600)

17.2.2 I own property with a man-made pond (pre-existing at purchase). We do not use it for 

more than children's fishing and a scenic item of interest. An EPA overreach could for 

any number of reasons determine that our water feature is in violation by its existence yet 

I know it has existed, without problems, for well over a decade. 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

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I strongly oppose changing the EPA's authority to include expanses of water not currently 

included in their purview. To expand that control is a bad idea not only for landowners 

but the government whose resources are already spread thin an unable to prevent other 

violations from occurring in its current assignments. (p. 1)

Agency Response: The scope of regulatory jurisdiction in this rule is narrower 

than that under the existing regulation. Section I of the Technical Support 

Document discusses the historic scope of the existing regulatory definition of 

“waters of the United States.” Fewer waters will be are defined as “waters of the 

United States” under the final rule than under the existing regulations, in part 

because the rule puts important qualifiers on some existing categories such as 

tributaries. In fact, the agencies are specifically excluding more water features as 

non-jurisdictional (i.e. they are not “waters of the United States”) than in present 

regulations. The agencies have no intent to retroactively assert jurisdiction over any 

waters. 

Anonymous (Doc. #0820)

17.2.3 I am highly offended that the federal government is attempting to exercise authority again 

over something it has no right to. Please get out of my life. I have temporary streams 

running through my property caused by a pond overflow. This is not wetlands. (p. 1)

Agency Response: Section I of the Technical Support Document discusses the 

historic scope of the existing regulatory definition of “waters of the United States.” 

Fewer waters are defined as “waters of the United States” under the final rule than 

under the existing regulations, in part because the rule puts important qualifiers on 

some existing categories such as tributaries. In fact, the agencies are specifically 

excluding more water features as non-jurisdictional (i.e. they are not “waters of the 

United States”) than in present regulations. 

The 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 peerreviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades. In this final rule, 

the agencies are responding to those requests from across the country to make the 

process of identifying waters protected under the CWA easier to understand, more 

predictable, and more consistent with the law and peer-reviewed science.

The agencies believe that by defining “tributary” for the first time and including the 

requirements for an ordinary high water mark and bed and bank, the agencies have 

identified tributaries as a class of waters which are similarly situated and where 

they contribute flow have a significant nexus to downstream (a)(1) through (a)(3) 

waters. The rule includes ephemeral streams that meet the definition of tributary as 

“waters of the United States” because the agencies determined that such streams 

provide important functions for downstream waters, and in combination with other 

covered tributaries in a watershed significantly affect the chemical, physical, and 

biological integrity of traditional navigable waters, interstate waters, and the 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

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territorial seas. Where ephemeral features do not meet the definition of tributary, 

they are not “waters of the united States.” There are also new exclusions for 

ephemeral ditches and erosional features which are not jurisdictional. Please see 

the preamble, the Tributary Compendium, the Ditches Compendium and the 

Exclusion Compendium for a complete discussion of the definition of tributaries, the 

relevance of flow regime, the treatment of ditches and all of the other the exclusions 

in the final rule. The rule has expanded the section on waters that are not 

considered waters of the United States, including many of the features listed in the 

comment, such as artificial lakes and ponds created in dry land, water-filled 

depressions incidental to mining or construction, constructed grassed waterways 

and non-wetland swales, and stormwater and wastewater detention basins 

constructed in dry land.

Dion, B. (Doc. #0835)

17.2.4 Thank you for moving forward with action to protect Pennsylvania's waterways. My 

husband and son fish in a stream near our home. We live in a suburban neighborhood and 

having a fresh water source near us for recreation is a delight. Pollution has long been an 

issue for this stream and others like it nearby. The fish are placed there from a hatchery. 

We look forward to a day when this stream will allow the fish to thrive. These same 

streams feed into our water supply and we want clean water for our community.

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. 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.

Ealy, S. (Doc. #0910.1)

17.2.5 I am a property owner and clean water is very important to me. Your proposed rule is a 

significant expansion of the Clean Water Act that will affect every American, and ha ve 

significant impact on my business and community due to the proposed increased 

jurisdiction over all waters. Due to the proposed rule's complexity, additional time is 

needed for me to review and respond to the rule and all its implications for my business, 

community and state. (p. 1)

Agency Response: Section I of the Technical Support Document discusses the 

historic scope of the existing regulatory definition of “waters of the United States.” 

Fewer waters will be defined as “waters of the United States” under the final rule 

than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. In fact, the agencies are 

specifically excluding more water features as non-jurisdictional (i.e. they are not 

“waters of the United States”) than in present regulations. 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

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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 peerreviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades. 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 proposed rule was available for review and comment by the public for over 200 

days. The agencies believe that sufficient time was provided for review of the 

proposed rule. 

Shaughness, J. (Doc. #0930)

17.2.6 We have a small stream running through our back yard that originates from a natural 

spring. It also handles some rainwater runoff. Since most running surface water 

eventually finds its way to a navigable body of water I am concerned the proposed 

expansion of the EPA’s water regulation will cover this small stream. The stream runs 

past or through several lots in our neighborhood, and control of this stream by the EPA 

will likely place an undue burden on property owners, both financially and structurally. 

For this reason I oppose any proposed expansion of EPA’s regulations that would include 

very small streams such as the one described above. (p. 1)

Agency Response: Section I of the Technical Support Document discusses the 

historic scope of the existing regulatory definition of “waters of the United States.” 

Fewer waters are defined as “waters of the United States” under the final rule than 

under the existing regulations, in part because the rule puts important qualifiers on 

some existing categories such as tributaries. In fact, the agencies are specifically 

excluding more water features as non-jurisdictional (i.e. they are not “waters of the 

United States”) than in present regulations. 

The 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 peerreviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades. 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.

Kaun, S. (Doc. #0944)

17.2.7 It is my understanding that this proposed rule will include small, year-round creeks and 

wetlands which are tributaries to a traditional navigable waterway. Until now this lack of 

protection has caused considerable angst for citizens in Bellingham, Washington, 

especially those who have worked hard to protect the Padden Creek and Estuary system, 

part of which flows through the Fairhaven Neighborhood where I live. Padden is a natal 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

9

pocket estuary for the Nooksack River salmon runs, and is impaired in large part by lack 

of using best available science to ensure proper management of urban runoff. 

Although the City acknowledges in its Shoreline Master Program the riparian protection 

area for the fragile Padden Estuary is 200 feet, citizens were advised by City staff that 

because Padden Creek's flow is below an average of 20 cfs, the protection of the Creek's 

riparian is limited to a mere 50 feet. 

The Creek empties into Bellingham Bay, which is part of the Salish Sea (Puget Sound). 

Recent studies indicate the other creeks in Bellingham that empty into the Bay are also 

impaired. Latest studies by the Washington State Department of Ecology indicate the Bay 

is becoming increasingly polluted. I believe that with the passage of the new rule these 

small creeks and connected wetlands will now be seen as integral to the health of 

adjacent navigable waterways, fish, and wildlife, and will hopefully prompt local 

governments to revisit their earlier determination that these creeks do not merit increased 

protection. 

The effort by EPA and Army Corps staff to extend protection to these small but essential 

creeks and wetlands is greatly appreciated, and in my opinion could bode well for future 

restoration and protection efforts in navigable waters such as Bellingham Bay. (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. 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 Clean Water Act regulates discharges of pollutants and fill material into 

covered waters, and does not regulate dry land, land use or private property rights.

Smith, C. and L. (Doc. #0974)

17.2.8 I am a senior citizen of Pennsylvania and have a stream running through my property. It 

has been running through my property without any regulations for as long as I can 

Remember. It is the cleanest and freshest water around. I am against any EPA regulations 

being enforced on my property. Government has become too involved in the private 

sector. (p. 1)

Agency Response: Section I of the Technical Support Document discusses the 

historic scope of the existing regulatory definition of “waters of the United States.” 

Fewer waters are defined as “waters of the United States” under the final rule than 

under the existing regulations, in part because the rule puts important qualifiers on 

some existing categories such as tributaries. In fact, the agencies are specifically 

excluding more water features as non-jurisdictional (i.e. they are not “waters of the 

United States”) than in present regulations.
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

10

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

order to restore and maintain the chemical, physical, or biological integrity o f 

traditional navigable waters, interstate waters, and the territorial seas. This 

interpretation is based not only on legal precedent and the best available peerreviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades. 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 Clean Water Act regulates discharges of pollutants and fill material into 

covered waters, and does not regulate dry land, land use or private property rights.

Hixson, R. and D. (Doc. #1201)

17.2.9 My son and I own a small plot of ground with a mobile home on it. When the rains are 

heavy water collects in a low spot but it doesn't stay long before it soaks into the ground. 

We have never been flooded even in the September 2011 record flood. Though the water 

came to the top of the dike along White Deer Creek, it didn't come over. There was never 

any problem requiring federal intervention. I believe the EPA is overstepping its bounds 

with the proposed legislation. (p. 1)

Agency Response: Section I of the Technical Support Document discusses the 

historic scope of the existing regulatory definition of “waters of the United States.” 

Fewer waters are defined as “waters of the United States” under the final rule than 

under the existing regulations, in part because the rule puts important qualifiers on 

some existing categories such as tributaries. In fact, the agencies are specifically 

excluding more water features as non-jurisdictional (i.e. they are not “waters of the 

United States”) than in present 

Yoder, M. (Doc. #1601)

17.2.10 I am a homeowner of a home in a community that has stormwater collection drains, 

which combine and partially flows through my property and then enters a ditch 

eventually entering a navigable waterway several miles away. The stormwater flowing 

across my property is not a singular point source, but a compilation of smaller sources, 

and is impacted and influenced by a variety of other factors. While my property has a 

man-made 'berm break', and has been defined not to be in a Flood Plain, there are 

intermittent times stormwater does pool up temporarily. For this and other reasons I am 

very concerned regarding possible implications and requirements for complying with the 

new rule. Some of my concerns relate to the definitions and my understanding of the 

specifics regarding 'Tributaries' (Part Ill, subpart F, 1 and 3,), 'Adjacent Waters' (Part Ill, 

Subpart G,2(i)), 'Other Waters' (Part Ill, subpart H). (p. 1)

Agency Response: The rule has expanded the section on waters that are not 

considered waters of the United States, such as artificial lakes and ponds created in 

dry land, water-filled depressions incidental to mining or construction, constructed 

grassed waterways and non-wetland swales, and stormwater and wastewater 

detention basins constructed in dry land.
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

11

The final rule has also revised and clarified important definitions for “tributaries” 

and “neighboring” (as a component of adjacent waters). In addition, there is no 

longer a separate category of “other waters.” The final rule also provides for case -

specific determinations under more narrowly targeted circumstances. Section IV(F) 

of the preamble addresses tributaries and section IV(G) covers adjacent waters.

Ray, C. (Doc. #1745)

17.2.11 I live near a stream, where my children and I have played for years and the impact of 

increased dirty run-off and other ill treatment are obvious. (p. 1)

Agency Response: The 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. 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.

Calcote, R. (Doc. #1850)

17.2.12 The current proposal is much too broad in its breadth. There is a very small creek behind 

my backyard. The EPA proposed rule would impose unrealistic conditions on the use of 

my land. (p. 1)

Agency Response: Section I of the Technical Support Document discusses the 

historic scope of the existing regulatory definition of “waters of the United States.” 

Fewer waters are defined as “waters of the United States” under the final rule than 

under the existing regulations, in part because the rule puts important qualifiers on 

some existing categories such as tributaries. In fact, the agencies are specifically 

excluding more water features as non-jurisdictional (i.e. they are not “waters of the 

United States”) than in present regulations.

The 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 peerreviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades. 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 Clean Water Act regulates discharges of pollutants and fill material into 

covered waters, and does not regulate dry land, land use or private property rights.
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

12

Anonymous (Doc. #2127)

17.2.13As a land owner living in a rural area bordered by a bayou on one side that drains much 

of the nearby city and a pond on the site I am gravely concerned about the government’s 

consistent desire to over reach into the lives and property of individual citizens. As we 

have seen from the EPA over the last few years this agency wants to control everything. 

So instead of rule making to clarify what bodies of water it regulates, I strongly suspect 

the agency is trying to circumvent the court system and the intent of the CWA in order to 

gain more power over individual rights. (p. 1)

Agency Response: In this final rule, the agencies are responding to requests from 

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

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

identifying waters protected under the CWA clearer, simpler, and faster. 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 CWA, 

Supreme Court precedent, and science.

Section I of the Technical Support Document discusses the historic scope of the 

existing regulatory definition of “waters of the United States.” Fewer waters are 

defined as “waters of the United States” under the final rule than under the existing 

regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries. In fact, the agencies are specifically excluding more 

water features as non-jurisdictional (i.e. they are not “waters of the United States”) 

than in present regulations.

The 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 peerreviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades. 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.

Anonymous (Doc. #2129)

17.2.14 I don’t want to hear about any laws regulating water on or crossing my property...You 

don’t seem very concerned with the microwaves from the cell tower above my head. 

(....) yet you seem so concerned about a little pool of water standing for time on my 

property! (...) You want to regulate the little petty things of life and don’t bother with 

the major things.... (p. 1)

Agency Response: In this final rule, the agencies are responding to requests from 

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

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

identifying waters protected under the CWA clearer, simpler, and faster. The final 

rule does not establish any regulatory requirements. Instead, it is a definitional rule 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

13

that clarifies the scope of “waters of the United States” consistent with the CWA, 

Supreme Court precedent, and science.

The 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 peerreviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades. 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.

Anonymous (Doc. #2138)

17.2.15 As a land owner with a creek running through my recreational property I find this VERY 

DISTURBING. I also have a dry wash on the back of my Home property. I see this as a 

major land grab in my opinion. What NEED does the EPA have to regulate a dry ditch 

(or a puddle) running on my yard behind my house? The only time it sees water is after a 

rain. (...)

I am all for clean water. (...) But this proposal to me is a no more than a power grab and 

a land grab. You would better serve us and get our support if you would go after the big 

polluters and leave those of us who pay our taxes and follow the law alone. (p. 1)

Agency Response: : In this final rule, the agencies are responding to requests 

from members of Congress, developers, farmers, state and local governments, 

energy companies, and many others who requested new regulations to make the 

process of identifying waters protected under the CWA clearer, simpler, and faster. 

Section I of the Technical Support Document discusses the historic scope of the 

existing regulatory definition of “waters of the United States.” Fewer waters are 

defined as “waters of the United States” under the final rule than under the existing 

regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries. In fact, the agencies are specifically excluding more 

water features as non-jurisdictional (i.e. they are not “waters of the United States”) 

than in present regulations.

The 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 peerreviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades. 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 Clean Water Act regulates discharges of pollutants and fill material into 

covered waters, and does not regulate dry land, land use or private property rights.
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

14

Anonymous (Doc. #2572)

17.2.16 I have streams running through my property, one listed as protected and one not. I have 

done work on both, with the necessary permits. I can understand "navigable waters". 

Now you want to add "~ plus any nearby land we happen to like." The EPA needs to 

map out the specific properties that fall within its regulatory grasp: and then buy them. 

Placing the burden on landowners to get a permit for anything they want to do with their 

property or risk million dollar fines is unacceptable. Roll it back. (p. 1)

Agency Response: Section I of the Technical Support Document discusses the 

historic scope of the existing regulatory definition of “waters of the United States.” 

Fewer waters are defined as “waters of the United States” under the final rule than 

under the existing regulations, in part because the rule puts important qualifiers on 

some existing categories such as tributaries. In fact, the agencies are specifically 

excluding more water features as non-jurisdictional (i.e. they are not “waters of the 

United States”) than in present regulations.

The 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 peerreviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades. 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 Clean Water Act regulates discharges of pollutants and fill material into 

covered waters, and does not regulate dry land, land use or private property rights.

Smith, R. & J. (Doc. #2667)

17.2.17 I own water rights to water from a creek that runs through my land and I and the NRCS 

have installed a gated pipe system that carries my water to irrigate my pastures. I make 

decisions every day, sometimes several times a day, regarding how this water is used on 

my property. I do NOT want or need ANY government regulations or interference of 

any kind regarding my use of this water. Please DITCH THE RULE. It is not necessary 

or needed. (p. 1)

Agency Response: Section I of the Technical Support Document discusses the 

historic scope of the existing regulatory definition of “waters of the United States.” 

Fewer waters are defined as “waters of the United States” under the final rule than 

under the existing regulations, in part because the rule puts important qualifiers on 

some existing categories such as tributaries. In fact, the agencies are specifically 

excluding more water features as non-jurisdictional (i.e. they are not “waters of the 

United States”) than in present regulations. Section IV.I of the preamble discusses 

the exclusions in the final rule. 

The 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 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

15

interpretation is based not only on legal precedent and the best available peerreviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades. 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 Clean Water Act regulates discharges of pollutants and fill material into 

covered waters, and does not regulate dry land, land use or private property rights.

Anonymous (Doc. #3071)

17.2.18As a landowner, I am concerned about the government's over-reach into private property. 

Back in the early 1960's, after several years of drought, the US Fish and Wildlife 

approached farmers in our area for "wetland easements" that were 99 year leases with 

perpetual renewal. Those farmers were paid a one-time pittance for that lease, and now 

the USF&W seems to think that they purchased those lands. To make matters worse, they 

want to control any mining, oil exploration, or anything that they say may affect those 

lands. Those original wetlands have also multiplied by their rules, and are no longer only 

the wetlands that they may have "leased" at that time, but any land that may hold water 

for more than 36 hours. It seems that their plan is to not only control that property, but to 

take ownership of that property, whether a wetland or not.

An example of this- when a gravel company wanted a gravel lease on some of our land 

which has a "USF&W easement," the lease was denied by the DOT because of the lease. 

I contacted my Congressman, who in turn gave the USF&W 10 days to resolve the issue. 

I met with the representative from the USF&W at the site, he told me they "OWN" the 

property, that it was purchased in the early 1960's. My reply was, "If you owned the 

property, you would have the abstract, not be listed in my abstract as having an easement 

on the wetlands." He also told me that routinely after a down pouring rain, property is 

aerial photographed and those wetlands maps are updated. Hardly what was leased in the 

60's, is it. As I said, the ultimate goal is to "own" the whole of the property where those 

wetlands are situated. (p. 1)

Agency Response: In this final rule, the agencies are responding to requests from 

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

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

identifying waters protected under the CWA clearer, simpler, and faster. 

Section I of the Technical Support Document discusses the historic scope of the 

existing regulatory definition of “waters of the United States.” Fewer waters are 

defined as “waters of the United States” under the final rule than under the existing 

regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries. In fact, the agencies are specifically excluding more 

water features as non-jurisdictional (i.e. they are not “waters of the United States”) 

than in present regulations.

The 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 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

16

interpretation is based not only on legal precedent and the best available peerreviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades. 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 Clean Water Act regulates discharges of pollutants and fill material into 

covered waters, and does not regulate dry land, land use or private property rights.

Baruch, M. A. (Doc. #3221)

17.2.19Personally, as a property owner I would have to constantly wonder if I were breaking 

some minor rule or regulation as to well use, rainfalls, some flood control needs, garden 

water needs, dictated by a far away agency instead of by the rules and laws of the state I 

live in. This is contrary to free societies and goes beyond your authorities. It is more 

disruptive that useful. (p. 1)

Agency Response: Fewer waters are defined as “waters of the United States” 

under the final rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. In fact, the 

agencies are specifically excluding more water features as non-jurisdictional (i.e. 

they are not “waters of the United States”) than in present regulations.

States and tribes, consistent with the CWA, retain full authority to implement their 

own programs to more broadly and more fully protect the waters in their 

jurisdiction. Under section 510 of the CWA, unless expressly stated, nothing in the 

CWA precludes or denies the right of any state or tribe to establish more protective 

standards or limits than the Federal CWA. Many states and tribes, for example, 

regulate groundwater, and some others protect wetlands that are vital to 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.

Reed, K. A. (Doc. #3386)

17.2.20As a homeowner this could negatively and unfairly dictate how I care for my residential 

property since it slightly drains toward a nearby slope of land that eventually reaches a 

creek several hundred yards from my home and any natural contour of the land between 

the two points. I am not convinced that the EPA or its agents could not also regulate the 

occasional puddles that form after a moderate to heavy rain. The proposed fines alone 

would devastate my wife and I financially, since we are of low income (I am permanently 

and totally disabled). (p. 1)

Agency Response: Fewer waters are defined as “waters of the United States” 

under the final rule than under the existing regulations, in part because the rule 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

17

puts important qualifiers on some existing categories such as tributaries. In fact, the 

agencies are specifically excluding more water features as non-jurisdictional (i.e. 

they are not “waters of the United States”) than in present regulations. Section IV.I

of the preamble discusses the exclusions in the final rule, including an exclusion for 

puddles. 

The 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 peerreviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades. 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 Clean Water Act regulates discharges of pollutants and fill material into 

covered waters, and does not regulate dry land, land use or private property rights.

Thrower, G. (Doc. #3502)

17.2.21as a land owner I am very concerned with the current plans of the EPA to regulate even 

the most simple of water bodies. Like my small pond. how would I know if I am in 

violation of the new proposed EPA regs? would I really have to get a permit to prevent 

runoff damage, damage from cattle drinking out of the pond, a fence that needs put up. it 

seems terribly burdensome to both me, the casual farmer and the EPA. if I hand spray for 

thistle and other noxious weeds, would I need a permit? if I back fill dirt into the runoff 

erosion? how will I know if I need a permit? (p. 1)

Agency Response: Section I of the Technical Support Document discusses the 

historic scope of the existing regulatory definition of “waters of the United States.” 

Fewer waters are defined as “waters of the United States” under the final rule than 

under the existing regulations, in part because the rule puts important qualifiers on 

some existing categories such as tributaries. In fact, the agencies are specifically 

excluding more water features as non-jurisdictional (i.e. they are not “waters of the 

United States”) than in present regulations. Section IV.I of the preamble discusses 

the exclusions in the final rule. 

The 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 peerreviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades. 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 Clean Water Act regulates discharges of pollutants and fill material into 

covered waters, and does not regulate dry land, land use or private property rights. 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

18

Implementation of the CWA will be no different than under current regulations. 

The Army Corps of Engineer will still review permit applications for the discharge 

of dredged or fill material. The USDA NRCS will still be the first point of contact 

for our nation’s farmers. And states and tribes with delegated authority to issue 

NPDES permits will continue to do so. None of that will change.

Dux, L. & N. (Doc. #4263)

17.2.22The EPA has no right to use the Clean Water Act to dictate how landowners use their 

land. We know how to use our land. 

This proposal will put a severe hardship on any small farm or company – the backbone 

of our Kansas economy – out of business. (p. 1)

Agency Response: The Clean Water Act regulates discharges of pollutants and 

fill material into covered waters, and does not regulate dry land, land use or private 

property rights.

Section I of the Technical Support Document discusses the historic scope of the 

existing regulatory definition of “waters of the United States.” Fewer waters are 

defined as “waters of the United States” under the final rule than under the existing 

regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries. In fact, the agencies are specifically excluding more 

water features as non-jurisdictional (i.e. they are not “waters of the United States”) 

than in present regulations. Section IV.I of the preamble discusses the exclusions in 

the final rule. 

The 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 peerreviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades. 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.

Anonymous (Doc. #4440)

17.2.23There are four draws running through our property. They were created by a heavy rainfall 

event in a couple of hours. These draws are healing over due to our careful grazing 

management. Though we do not have a river, creek, spring, or wetland on our land, 

rainwater may run off the hills into the draws when it rains heavily. This would qualify 

our place as having “waters” and being subject to regulation. The new definition of 

wetlands and waters will damage our ability to successfully manage our vegetative 

resources by exponentially increasing government regulations and oversight and by 

requiring expensive NEPA to be prepared for even the smallest of our management tasks. 

(p. 1)

Agency Response: Section I of the Technical Support Document discusses the 

historic scope of the existing regulatory definition of “waters of the United States.” 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

19

Fewer waters are defined as “waters of the United States” under the final rule than 

under the existing regulations, in part because the rule puts important qualifiers on 

some existing categories such as tributaries. In fact, the agencies are specifically 

excluding more water features as non-jurisdictional (i.e. they are not “waters of the 

United States”) than in present regulations. Section IV.I of the preamble discusses 

the exclusions in the final rule. 

The 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 peerreviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades. 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.

Daly, M. (Doc. #6516)

17.2.24I own a mobile home park built in the 1970’s. It lies partially in the flood plain in a rural 

area. With just 58 units any kind of regulatory oversight on minor grading operations will 

be prohibitively costly. I can assure you we are more than 100 miles from any navigable 

stream. You Storm Water Pollution Prevention Plan requirements show the way to over 

regulation. All spring the wind blows dust from Arizona into New Mexico and during the 

summer monsoons that dust is partially returned to Arizona. What little is not taken up by 

the soil. In our area only 20% of the land surface is covered by plant life; the rest is bare 

soil that moves every time the wind blows. Yet EPA SWPPP requirements insist that 

development not just keep the contaminants from leaving a site, but also insist that soil 

releases be controlled. While this might be a great idea around the Chesapeake River, it is 

a pointless exercise here. (p. 1)

Agency Response: Fewer waters are defined as “waters of the United States” 

under the final rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. In fact, the 

agencies are specifically excluding more water features as non-jurisdictional (i.e. 

they are not “waters of the United States”) than in present regulations. Section IV.I

of the preamble discusses the exclusions in the final rule. 

The 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 peerreviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades. 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.
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

20

Kaufman, S. (Doc. #6833)

17.2.25We have a koi pond with a waterfall in our back yard at our home in Oklahoma. It is a 

landscape feature that is not a natural waterway. It is fed with city water and recirculates 

the water with a pump to the top of the waterfall. The total drop of the stepped waterfall 

is perhaps 15-20 feet down a hillside into two ponds in series. The ponds leak a small 

amount of water from time to time. The leaked water runs down hill gradually on our 

property and occasionally reaches the lot line before it evaporates or soaks into the 

ground. Beyond the lot line is city property which has not been developed because it is 

part of the flood plain. 

From what I have read about the proposed regulations defining the "waters of the U.S.", 

our landscape feature might just be subject to regulation! That would be totally 

ridiculous.

...As proposed it violates the law, will not benefit the environment, and will have a 

negative impact on my property value and use of my home. (p. 1)

Agency Response: Fewer waters are defined as “waters of the United States” 

under the final rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. In fact, the 

agencies are specifically excluding more water features as non-jurisdictional (i.e. 

they are not “waters of the United States”) than in present regulations. Section IV.I

of the preamble discusses the exclusions in the final rule, including exclusions for 

small ornamental waters constructed in dry land. 

Anonymous (Doc. #7176)

17.2.26My husband and I have a backyard that is the lowest spot in our neighborhood. During 

heavy rain events or consecutive days of rain when the ground is saturated, water can run 

in our backyard. Under the expansive language in the proposed rule, this could be 

interpreted as a navigable water. It would be burdensome and an intrusion on our 

property rights. I urge you to immediately ditch this rule. I am staunchly opposed! (p. 1)

Agency Response: The Clean Water Act regulates discharges of pollutants and fill 

material into covered waters, and does not regulate dry land, land use or private 

property rights.

Section I of the Technical Support Document discusses the historic scope of the 

existing regulatory definition of “waters of the United States.” Fewer waters are 

defined as “waters of the United States” under the final rule than under the existing 

regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries. In fact, the agencies are specifically excluding more 

water features as non-jurisdictional (i.e. they are not “waters of the United States”) 

than in present regulations. Section IV.I of the preamble discusses the exclusions in 

the final rule. 

The 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-
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

21

reviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades. 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.

Anonymous (Doc. #8794)

17.2.27More regulations at an individual landowner level will eventually drive up food cost in 

this country due to an increased cost of production. Landowners are already spending 

large amounts of money to improve the water quality leaving their land. Adding more 

rules to this will only hinder what is being done. (p. 1)

Agency Response: In this final rule, the agencies are responding to requests from 

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

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

identifying waters protected under the CWA clearer, simpler, and faster. 

Section I of the Technical Support Document discusses the historic scope of the 

existing regulatory definition of “waters of the United States.” Fewer waters are 

defined as “waters of the United States” under the final rule than under the existing 

regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries. In fact, the agencies are specifically excluding more 

water features as non-jurisdictional (i.e. they are not “waters of the United States”) 

than in present regulations.

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. The 

agencies’ economic analysis indicates that indirect incremental benefits exceed 

indirect incremental costs.

Anonymous (Doc. #8805)

17.2.28This is an attack on Private property owners rights, who would need to obtain permits 

from the federal government more often than now when seeking to use and enjoy their 

land. There should be opposition to the rule from everyone, property owners to counties, 

concerned that costly new requirements will be imposed. Also, the CWA is without a 

men’s rea clause; the principle of mens rea, or "guilty mind," holds that a person 

shouldn't be convicted if he hasn't shown an intent to do something wrong; and this 

expansion of jurisdiction only means more people could be subject to arrest and 

conviction for unknowing violations. (p. 1)

Agency Response: In this final rule, the agencies are responding to requests from 

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

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

identifying waters protected under the CWA clearer, simpler, and faster. 

Section I of the Technical Support Document discusses the historic scope of the 

existing regulatory definition of “waters of the United States.” Fewer waters are 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

22

defined as “waters of the United States” under the final rule than under the existing 

regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries. In fact, the agencies are specifically excluding more 

water features as non-jurisdictional (i.e. they are not “waters of the United States”) 

than in present regulations.

Tolson, E. (Doc. #10768)

17.2.29The attempt to define puddles, vernal pools, farm ponds, ditches and seasonal creeks as 

"Waters of the United States" would affect nearly every rural landowner (large and small) 

in the Country in a negative way. Imposing more government scrutiny and mandates to 

individuals and farm/ranch operations will deter their positive and productive agendas as 

time consuming practices to comply to nebulous regulations are implemented. Every 

individual's time is valuable; misusing it on needless compliance missions and paperwork 

assignments is wasteful. To declare all ponds or puddles where waterfowl may alight as 

"significant nexus" or a biological connection to navigable waters is totally unrealistic. 

This is government overreach. There can be no practical way to monitor and control all 

watershed areas in rural America. The case-by-case agenda for exceptions to the onerous 

mandate will allow the governments to reward some and punish others at its pleasure. 

The government expense for monitoring would be prohibitive as would the expense 

imposed on landowners who would have to get permits and live with delays as they are 

being processed. 

Congress should be the body to impose any regulation of this type and they have 

repeatedly voted against this plethora of "isolated waters" which have no surface 

connection to navigable rivers. The States and local governments are the agencies that 

should be the regulators. California has closely monitored its waters for years. (p. 1)

Agency Response: Fewer waters are defined as “waters of the United States” 

under the final rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. In fact, the 

agencies are specifically excluding more water features as non-jurisdictional (i.e. 

they are not “waters of the United States”) than in present regulations. Section IV.I

of the preamble discusses the exclusions in the final rule, including exclusions for 

puddles and most ditches that are not relocated tributaries or excavated in a 

tributary. Vernal pools are not jurisdictional by rule and must instead first be 

subject to a significant nexus analysis before determining whether it is a water of the 

United States (see section IV.H. of the preamble).

The 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 peerreviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades. 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.
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

23

Anonymous (Doc. #10849)

17.2.30The EPA, in their overview of this new ruling, says their purpose is to 'clarify the scope 

of the Clean Water act." It seems like all they have accomplished is to declare 

EVERYTHING as "Waters of the US"...even dry land, for the purposes of permitting 

process. This is an infringement on the private property rights of all taxpayer landowners. 

The EPA, an agency of the federal government, lacks the constitutional authority to 

change existing laws because that authority belongs solely to the Congress of the US. 

These proposed changes are therefore unconstitutional. (p. 1)

Agency Response: Section I of the Technical Support Document discusses the 

historic scope of the existing regulatory definition of “waters of the United States.” 

Fewer waters are defined as “waters of the United States” under the final rule than 

under the existing regulations, in part because the rule puts important qualifiers on 

some existing categories such as tributaries. In fact, the agencies are specifically 

excluding more water features as non-jurisdictional (i.e. they are not “waters of the 

United States”) than in present regulations. 

The Clean Water Act regulates discharges of pollutants and fill material into 

covered waters, and does not regulate dry land, land use or private property rights. 

In this final rule, the agencies are responding to requests from members of 

Congress, developers, farmers, state and local governments, energy companies, and 

many others who requested new regulations to make the process of identifying 

waters protected under the CWA clearer, simpler, and faster. 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.

Cooper, B. (Doc. #11375)

17.2.31I am equally concerned about locations that have seasonal runoff from higher elevations, 

rather it be melting snow or excess rainfall. We all know water finds the lowest point to 

flow too and many areas that have higher elevation, have rainfall runoff from excessive 

rain that has created, utilized or recreated existing and normally dry stream beds and 

ditches. Many of these usually dry runoff ditches or normally dry stream beds are used as 

crossing points for farming, forestry and many other operations that should absolutely not 

be impacted by any regulation now or in the future. At no time should a land owner suffer 

from regulation or be financially impacted due to regulations that have changed their 

historical use of their land. If a landowner has been utilizing a dry or wet stream bed to 

move equipment or livestock across, will this no longer be allowed? Will the same 

landowner have to construct a bridge or other means to traverse the location? If so, will 

the government pay for any apparatuses to put into place to continue access? The runoff 

from excessive rainfall from higher elevations is no different from excessive rainfall from 

higher elevations in metropolitan areas running down streets and road ways. Will the 

government consider these to be waterways and regulate them as well? I say hands off to 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

24

regulating land owners properties that have any form of waterway, seasonal, continual, 

rain runoff or impoundment unless it can be proven that a man made pollution issue is the 

result and that pollution cannot be natural earthen materials. (p. 1)

Agency Response: In this final rule, the agencies are responding to requests from 

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

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

identifying waters protected under the CWA clearer, simpler, and faster. 

Section I of the Technical Support Document discusses the historic scope of the 

existing regulatory definition of “waters of the United States.” Fewer waters are 

defined as “waters of the United States” under the final rule than under the existing 

regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries. In fact, the agencies are specifically excluding more 

water features as non-jurisdictional (i.e. they are not “waters of the United States”) 

than in present regulations. Section IV.I of the preamble discusses the exclusions in 

the final rule, including most ditches that are not relocated tributaries or excavated 

in a tributary and erosional features that do not meet the definition of tributary. In 

addition, all statutory exemptions, including those exempting “normal farming, 

silviculture and ranching activities” from CWA section 404 permitting 

requirements, remain in place and unaffected by the final rule.

Porter, P.J. (Doc. #11596)

17.2.32Located on my property is an "ephemeral drain" which is, in my vocabulary, a dry cre ek 

bed until it rains substantially. It is my understanding that the rainwater that collects in 

this creek bed after a rain would then be considered to be WOTUS. This creek bed does 

not extend past my fence line so does not at any point join any other waterway nor does it 

feed any other waterway. Please do not restrict ranchers from using God's bounty (rain) 

to us to be used to grow beef for all by putting a bunch of paperwork regulations on us. 

As I understand it, your regulations would require an investigation on a case by case basis 

in order to determine whether or not this dry creek bed joins any other waterway. This 

seems to be overkill and over- regulation in West Texas where we are totally dependent 

on rainfall to operate our cattle operations. There is little underground water in this area, 

so surface ponds are my sole source of cattle water, including the creek when it does rain. 

This creek bed will catch a little water and hold it for several days and cattle will use it. 

But it does not supply any other tributary or lake. (p. 1)

Agency Response: Fewer waters are defined as “waters of the United States” 

under the final rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. In fact, the 

agencies are specifically excluding more water features as non-jurisdictional (i.e. 

they are not “waters of the United States”) than in present regulations. Section IV.I

of the preamble discusses the exclusions in the final rule, including erosional 

features that do not meet the definition of tributary. In order to be considered a 

tributary under the final rule, the feature must have both a bend and banks and an 

ordinary high water mark. It must also contribute flow, either directly or through 

another water, to a traditional navigable water, interstate water or territorial sea. 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

25

Williams, E. H. (Doc. #14961)

17.2.33All of my normal practices could also result in some concerned citizen deciding to file 

legal proceedings against what I do as part of my normal business practices. There have 

been too many instances of such frivolous lawsuits being filed in Illinois, with the added 

legal costs that the defendants have to pay! (p. 1)

Agency Response: Although the EPA cannot preclude third parties from filing 

suit pursuant to the Clean Water Act’s citizen suit provisions, the EPA and the 

Corps plan to clearly articulate the concepts embodied in any final rule in order to 

provide maximum clarity to permit applicants, agencies, and the public. We believe 

that doing so will reduce, not increase, the possibility that these provisions may be 

misunderstood by permittees, third parties, or other stakeholders, thereby leading 

to less litigation. Such clarity will also aid courts in responding consistently to 

citizen suits. 

Landowners may request a jurisdictional determination (JD) from the Corps. The 

agencies believe that the clarity provided by the rule will make conducting 

determinations easier. A JD is a Corps’ determination that jurisdictional waters are 

either present or absent at a site, and can be used by the landowner if a CWA citizen 

suit is brought against the owner. While the JD would not be binding on the third 

party, we believe the Corps’ expert opinion, and the landowner’s reliance on the 

Corps’ expert opinion, would be important factors to which any Court hearing such 

a suit would give substantial weight.

Mason, A. and NY State Ornithological Association, Inc. (Doc. #15743)

17.2.34The lack of a clear definition and understanding of the waters to be regulated under the 

Clean Water Act, particularly wetlands, has been a matter of serious concern in NY and 

across the nation. In NY, wetlands smaller than 12.4 acres are not regulated by the state, 

hence have no protections, despite their importance to water quality, flood and drought 

mitigation, and wildlife. These smaller wetlands have been drained and filled with 

impunity due to a loophole that has no recognition of their values. Nationwide, these 

losses have doubled since Supreme Court rulings stripping them of protection.

The importance of wetlands and riparian areas to birds cannot be overstated. About 138 

avian species in the conterminous United States are wetland dependent (American 

Ornithologists' Union, 1983). About one-half of the 188 animals that are federally 

designated as endangered or threatened are wetland dependent. Of these, 17 are bird 

species or subspecies. Many other species, including at risk birds, utilize wetlands at 

some time in their life cycle.

It is important that the intent of protecting these smaller wetlands under the Clean Water 

Act be recognized and fully-implemented. Adopting these definitions will move the 

United States toward doing so.

Arguments that this rule would burden the regulated community are unfounded. No 

additional waters beyond those protected prior to the Supreme Court decisions would 

become regulated, and in fact expand exclusions to the CWA. We do not support 

increased exclusions, however, nor a case-by-case analysis approach wetlands.
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

26

We urge adoption of this rule.

Agency Response: In this final rule, the agencies are responding to requests from 

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

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

identifying waters protected under the CWA clearer, simpler, and faster.

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 peerreviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades. 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.

L.H. (Doc. #15750)

17.2.35Please reconsider wording of this regulation. The proposed jurisdiction is too broad and 

not in the best interest of the private landowner or small property owner.

This rule would negatively impact my property, in relation to a county floodplain. 

According to the proposed broad terminology of the rule, any possible standing water in 

my garden from a recent rain or a thorough summer watering would also be affected. (p. 

1)

Agency Response: In this final rule, the agencies are responding to requests from 

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

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

identifying waters protected under the CWA clearer, simpler, and faster.

Fewer waters are defined as “waters of the United States” unde r the final rule than 

under the existing regulations, in part because the rule puts important qualifiers on 

some existing categories such as tributaries. In fact, the agencies are specifically 

excluding more water features as non-jurisdictional (i.e. they are not “waters of the 

United States”) than in present regulations. Section IV.I of the preamble discusses 

the exclusions in the final 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. This 

interpretation is based not only on legal precedent and the best available peerreviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades. 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.
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

27

Anonymous (Doc. #16388)

17.2.36This rule is unlawful and unconstitutional and therefore should not be established. The 

rule usurps local and state land use authority. The rule is a "takings" without 

compensation to property owners for loss of use. There is no process for property owners 

to expeditiously contest an EPA decision regarding a designation of WOTUS for a pond, 

ditch, or wetland on their property. In addition, property owners must first be fined before 

they have legal recourse, forcing them to comply with a designation with which they 

disagree rather than wage costly litigation against the "deep-pocketed" EPA.

Besides being unlawful and unconstitutional, the proposed rule would inhibit the use of 

land for economic gain, crippling even more our struggling economy - especially for 

small businesses who have few resources to devote to time-consuming and expensive 

litigation of a WOTUS designation.

This rule must not be established for the sake of property owners, our economy, and our 

constitution. (p. 1)

Agency Response: In this final rule, the agencies are responding to requests from 

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

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

identifying waters protected under the CWA clearer, simpler, and faster. 

Section I of the Technical Support Document discusses the historic scope of the 

existing regulatory definition of “waters of the United States.” Fewer waters are 

defined as “waters of the United States” under the final rule than under the existing 

regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries. In fact, the agencies are specifically excluding more 

water features as non-jurisdictional (i.e. they are not “waters of the United States”) 

than in present regulations. 

The Clean Water Act regulates discharges of pollutants and fill material into 

covered waters, and does not regulate dry land, land use or private property rights. 

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 peerreviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades.

Anonymous (Doc. #16422)

17.2.37My home is adjacent to an unregulated waterway, Salt Creek, and part of my yard is in 

the creek's floodplain, so my family is directly impacted by the rulemaking. In recent 

years there has been development next to the creek and the Army Corps said that it wasn't 

covered by the Clean Water Act. It is very likely that water quality was negatively 

impacted by that development. Specifically, a wooded, natural area was converted into a 

baseball diamond. The grass in the ball field is fertilized and there is likely runoff from it, 

whereas previously, there was no fertilizer application there. Salt Creek runs into the Des 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

28

Plaines River and eventually into the Gulf of Mexico which is plagued with excess 

nutrients. (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.

The Clean Water Act regulates discharges of pollutants and fill material into 

covered waters, and does not regulate dry land, land use or private property rights.

Potts, C. (Doc. #16807)

17.2.38As a property owner in Payson, AZ and included in the Salt River watershed of Arizona, 

I’m writing to express my concern over the proposed rule (EPA-HQ-OW-2011-0880). 

The primary effect of the proposed rule would be that the EPA would be granted 

jurisdiction of all water ways in the US. The EPA currently has jurisdiction over 

“navigable” water ways and wet lands. The EPA control over water is a problem because 

of the invasion of traditional and constitutionally guaranteed water rights. In addition, 

because the EPA only protects water quality, the Army Corp of Engineers is included in 

this proposal. That is where the problem starts. By way of example, an irrigation ditch 

which feeds into a primary water way would be subject to Corps jurisdiction.

Virtually every irrigation ditch that serves Arizona feeds into the Salt, Verde or Colorado 

River. The rule, if passed, could require any homeowner who wants to build a simple 

walkway over their ditch to obtain a permit from the Army Corps of Engineers.

This type of extreme invasion of a property owners rights should be avoided at all costs, 

despite any proposed additional authority that could be garnered by the administration in 

these matters. (p. 1)

Agency Response: In this final rule, the agencies are responding to requests from 

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

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

identifying waters protected under the CWA clearer, simpler, and faster.

Section I of the Technical Support Document discusses the historic scope of the 

existing regulatory definition of “waters of the United States.” Fewer waters are 

defined as “waters of the United States” under the final rule than under the existing 

regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries. In fact, the agencies are specifically excluding more 

water features as non-jurisdictional (i.e. they are not “waters of the United States”) 

than in present regulations. Section IV.I of the preamble discusses the exclusions in 

the final rule, including most ditches that are not relocated tributaries or excavated 

in a tributary and erosional features that do not meet the definition of tributary. In 

addition, all statutory exemptions, including those exempting construction or 

maintenance of irrigation ditches from CWA section 404 permitting requirements, 

remain in place and unaffected by the final rule.
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

29

The Clean Water Act regulates discharges of pollutants and fill material into 

covered waters, and does not regulate dry land, land use or private property rights. 

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 peerreviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades.

Huffmaster, D. (Doc. #18633)

17.2.39I am very concerned about the broad definition of "tributary" under this proposed rule. I 

understand the federal agencies contend this rule would not expand federal regulatory 

authority, but my reading of the preamble does not support that contention.

Tributaries are defined as any feature having "a bed, a bank, and a high water mark" 

without regard to whether water actually flows there. In my opinion, this definition 

expands federal regulatory authority to my property, and I do not believe this action is 

warranted.

I am a good steward of my property. Additionally, the Georgia EPD prohibits illegal 

pollution or abuse of the property. This proposed rule is an unwarranted expansion of 

federal power.

This proposed rule also infringes on my private property rights. If federal authority is 

authorized, I believe additional federal permits will be required if I decide to change the 

use of my property. This rule will add another layer of bureaucracy for me as a 

landowner, and I do not see how this will be of benefit to anyone. However, I can clearly 

see how it will infringe on my private property rights.

I respectfully request the federal agencies to withdraw this proposed rule from 

consideration. (p. 1)

Agency Response: Fewer waters are defined as “waters of the United States” 

under the final rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. In fact, the 

agencies are specifically excluding more water features as non-jurisdictional (i.e. 

they are not “waters of the United States”) than in present regulations. Section IV.I

of the preamble discusses the exclusions in the final rule, including erosional 

features that do not meet the definition of tributary. In order to be considered a 

tributary under the final rule, the feature must have both a bend and banks and an 

ordinary high water mark. It must also contribute flow, either directly or through 

another water, to a traditional navigable water, interstate water or territorial sea.

The Clean Water Act regulates discharges of pollutants and fill material into 

covered waters, and does not regulate dry land, land use or private property rights. 

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-
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

30

reviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades.

Grether, S. (Doc. #18668)

17.2.40...permit requirements now applicable to navigable waters would, under this new 

definition, then be applied to the aforementioned land features. Since many of these land 

features exist on privately owned land, and virtually all of it gets rained at some point 

during a normal year, federal agencies could then regulate almost everything we do on 

our property via a permitting process. 

To redefine the term “Waters of the United States” in such a way redefines the very idea 

of private property. So in essence you regulators don’t mind us owning the land, but you 

want to control everything we do on it. This way we are still responsible for paying the 

property taxes and incurring any and all liability which might befall said property. Is the 

scope of the rules ever enough? At what point do regulators kill the industry they are 

trying to control? Let these proposed rules stand and we will get to that point quickly. (p. 

1)

Agency Response: Fewer waters are defined as “waters of the United States” 

under the final rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. In fact, the 

agencies are specifically excluding more water features as non-jurisdictional (i.e. 

they are not “waters of the United States”) than in present regulations. 

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 peerreviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades.

The Clean Water Act regulates discharges of pollutants and fill material into 

covered waters, and does not regulate dry land, land use or private property rights.

17.2. BUSINESS OWNER

Agencies’ Summary Response

Commenters expressed a number of concerns regarding potential impacts on businesses. Varied 

issues were discussed, including public input concerns and potential impacts on: ability to obtain 

permits, property rights, pesticide application, oil and gas development, and farming operations.

Specific Comments

Guthrie, T. (Doc. #0921.1)

17.2.41I am a vegetation management specialist and clean water is very important to me. Your 

proposed rule is a significant expansion of the Clean Water Act that will affect every 

American, and have significant impact on my business and community due to the 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

31

proposed increased jurisdiction over all waters. Due to the proposed rule's complexity, 

additional time is needed for me to review and respond to the rule and all its implications 

for my business, community and state. (p. 1)

Agency Response: In this final rule, the agencies are responding to requests from 

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

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

identifying waters protected under the CWA clearer, simpler, and faster. 

Section I of the Technical Support Document discusses the historic scope of the 

existing regulatory definition of “waters of the United States.” Fewer waters are 

defined as “waters of the United States” under the final rule than under the existing 

regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries. In fact, the agencies are specifically excluding more 

water features as non-jurisdictional (i.e. they are not “waters of the United States”) 

than in present regulations. Section IV.I of the preamble discusses the exclusions in 

the final rule.

The proposed rule was available for review and comment by the public for over 200 

days. The agencies believe that sufficient time was provided for review of the 

proposed rule.

James, D. (Doc. #0991)

17.2.42People will further lose their property rights with this. Also, consider when people start 

losing the privileges of property ownership, then why should they buy rather than rent! If 

they market dives for purchases of Real Estate, and the prices, then so will your Property 

Tax Collections. (p. 1)

Agency Response: The Clean Water Act regulates discharges of pollutants and fill 

material into covered waters, and does not regulate dry land, land use or private 

property rights.

Anonymous (Doc. #5366)

17.2.43I have built few new terraces about every year or so for the last fifteen years. It is always 

a struggle to get them designed, contractors lined up, cooperative weather, short seasons 

to do the work, plan around crops, seed them, till and level them, and pay for them. If the 

EPA or CORP would add move permits and plans to the process most people would 

decide a good conservation measure such a as terrace would not be worth the hassle.

There are already regulations on most of the pesticides I use why add more" It has been 

said everything I do now will be exempted if so why bother with more rules and 

regulations, what's the point"

I think this goes way beyond Congressional intent of regulating navigable waters when it 

passed the CWA in 1972.

I strongly believe this rule would be an intrusion on my property rights and overly 

burdensome. I am urging you to abandon this rule. (p. 1)
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

32

Agency Response: The Clean Water Act regulates discharges of pollutants and fill 

material into covered waters, and does not regulate dry land, land use or private 

property rights.

Schlautmann, J. (Doc. #6072.1)

17.2.44...I say if the bill passes it will ruin small businesses everywhere and it will ruin the 

economy more than it is already ruined. The small businesses will be out of business 

because they won’t be able to comply with all the rules and regulations which the EPA 

has in store for us. I say leave the bill like the House has passed as of right now, 

September 10, 2014.

First of all, this rule/act will harm the future of sustainable agriculture on small business, 

family-operated ranches like ours in many ways. 

Our day-to-day operations would be severely affected. Many of our cattle use the banks 

of Wild Horse Creek, a tributary of the Belle Fourche River, to give birth to, and raise 

their young. The banks also provide shelter during spring blizzards, which without them, 

many calves would perish.

In the same way, some of our cattle use the banks of Mud Spring Creek, another tributary 

of the Belle Fourche River, as shelter in the harsh months. The creek is always dry then, 

but it and the surrounding floodplain would require a permit for use, which is 

unacceptable, for the ground that the family owns and has the mineral rights to. We use 

the meadows surrounding Mud Spring Creek as a hayfield in the summer, without which 

we would almost certainly have to buy hay to feed our cattle as it is one of our biggest 

hay producers. This use would also require a permit, which once again is unacceptable.

Our future as dedicated stewards of the land depends on the EPA staying out of our 

business and letting “we” the rancher/landowner take care the way we have always done 

for 100 years. (p. 1)

Agency Response: In this final rule, the agencies are responding to requests from 

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

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

identifying waters protected under the CWA clearer, simpler, and faster. 

Section I of the Technical Support Document discusses the historic scope of the 

existing regulatory definition of “waters of the United States.” Fewer waters are 

defined as “waters of the United States” under the final rule than under the existing 

regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries. In fact, the agencies are specifically excluding more 

water features as non-jurisdictional (i.e. they are not “waters of the United States”) 

than in present regulations. Section IV.I of the preamble discusses the exclusions in 

the final rule. In addition, all statutory exemptions, including those exempting 

“normal farming, silviculture and ranching activities” from CWA section 404 

permitting requirements, remain in place and unaffected by the final rule.
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

33

The Clean Water Act regulates discharges of pollutants and fill material into 

covered waters, and does not regulate dry land, land use or private property rights.

Carlson, R. (Doc. #11834)

17.2.45The additional rules surrounding the NPDES permitting process have already caused 

unnecessary additional work for us and our state agencies. Our state of Wisconsin has 

had strict permitting laws surrounding the application of aquatic herbicides and 

algaecides and the idea of adding yet another layer of regulation sounds redundant at 

best. 

Like many states, our Department of Natural Resources is understaffed, underpaid and 

overworked. Who will administer and regulate any additional requirements? They were 

taxed with the added work-load of the NPDES permitting and now they may have to add 

and enforce yet another, unnecessary set of regulations? Small businesses like ours are 

likely to suffer as the permitting process will be further delayed and our cost of providing 

services will increase. Our states natural resources will also suffer as the DNR officials 

charged with implementing these new rules will have to ignore other, more important 

facets of their position. (p. 1)

Agency Response: 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.

Klaassen, D. (Doc. #12193)

17.2.46...If I have to report to EPA on routine activities like driving a tractor across a pasture, 

improving drainage on crop land or letting my cattle drink out of a creek, I will be less 

efficient in farming and I won’t be able to make critical decisions myself. An example of 

less efficiency is not getting my drainage work done before a big rain. If I needed to fix a 

broken field terrace before a rain, I would need to fix it immediately. If the EPA was 

involved, I would have to get permission and by then the rain would have already hit.

My planned feedlot would be affected too. I have a Kansas state feedlot permit, but I 

would have to apply for a EPA permit too. I would have to delay my feedlot which keeps 

me from making income. I would have to change my plans so adhere to EPA regulations. 

The regulations would make a mess of my feedlot plans and cause unnecessary changes. I 

would ask you to consider everything that I have included in this letter and see how more 

regulations would hurt farmers’ way of life. Some rules are important, but it is imperative 

that local and state governments make the rules. Local and state officials live among and 

understand the farmers unlike the federal officials who do not... (p. 1)

Agency Response: Fewer waters are defined as “waters of the United States” 

under the final rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. In fact, the 

agencies are specifically excluding more water features as non-jurisdictional (i.e. 

they are not “waters of the United States”) than in present regulations. Section IV.I

of the preamble discusses the exclusions in the final rule. In addition, all statutory 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

34

exemptions, including those exempting “normal farming, silviculture and ranching 

activities” from CWA section 404 permitting requirements, remain in place and 

unaffected by the final rule.

The Clean Water Act regulates discharges of pollutants and fill material into 

covered waters, and does not regulate dry land, land use or private property rights.

Martin Marietta (Doc. #13593)

17.2.47There is no doubt that the expanded scope of this rule would directly impact our 

operations. As explained, among the impacts would be increased costs, delays in 

permitting, reduction in access to a necessary natural resource with a direct impact on our 

ability to provide needed materials for roads, bridges and construction projects. (p. 1)

Agency Response: In this final rule, the agencies are responding to requests from 

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

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

identifying waters protected under the CWA clearer, simpler, and faster. 

Section I of the Technical Support Document discusses the historic scope of the 

existing regulatory definition of “waters of the United States.” Fewer waters are 

defined as “waters of the United States” under the final rule than under the existing 

regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries. In fact, the agencies are specifically excluding more 

water features as non-jurisdictional (i.e. they are not “waters of the United States”) 

than in present regulations. Section IV.I of the preamble discusses the exclusions in 

the final rule.

Steinlage, J. (Doc. #13751)

17.2.48This rule would make it more difficult to control harmful pests on private and public 

property if any water is near the area. Professional applicators and homeowners would 

have to obtain permits to protect properties from pests like ticks, which carry harmful 

diseases like Lyme Disease. 

Well-maintained lawns are important for the environment and properly-cared for lawns 

reduce run-off into nearby waters. One of the unintended consequences of EPA's 

proposed rule could be increased erosion and run-off into many connected water bodies. 

The proposed rule would have a profound and significant impact on small businesses 

providing pest, turf and lawn control solutions around the United States. The cost of 

pesticide application permits near waters that would be defined as a "water of the U.S." 

will create additional burdens for small businesses, and some business owners may not be 

able to afford these additional fees. The cost of permitting fees will also have to be 

reflected in customers' fees as businesses will have to increase prices to cover the new 

costs of their services. (p. 1)

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. The rule 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

35

would not change existing CWA permitting requirements regarding the application 

of pesticides or fertilizer on farm fields.

Poirier, D. (Doc. #18679)

17.2.49I am a royalty owner of both oil and natural gas interests. I'd like to let you know that I 

oppose the expansion of the Federal Clean Water Act. This act might take away my 

ability to develop my land and minerals, and raise my costs of production. The raising of 

surface regulatory compliance costs would make my land less attractive for development, 

and affect the livelihood of myself and my family. (p. 1)

Agency Response: In this final rule, the agencies are responding to requests from 

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

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

identifying waters protected under the CWA clearer, simpler, and faster. 

Section I of the Technical Support Document discusses the historic scope of the 

existing regulatory definition of “waters of the United States.” Fewer waters are 

defined as “waters of the United States” under the final rule than under the existing 

regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries. In fact, the agencies are specifically excluding more 

water features as non-jurisdictional (i.e. they are not “waters of the United States”) 

than in present regulations. Section IV.I of the preamble discusses the exclusions in 

the final rule.

The Clean Water Act regulates discharges of pollutants and fill material into 

covered waters, and does not regulate dry land, land use or private property rights.

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 whole, or the potential need 

for CWA permits for non-exempted activities in these waters or non-exempted 

discharges to these waters.

17.3. “GREEN CITIZEN”

Agency Summary Response

Commenters expressed concern over the pollution and degradation of waters, and expressed their 

support for clean water and the protection of aquatic ecosystems. A majority of commenters in 

this section support the rule. Several commenters expressed concern over exemptions or 

exclusions for agriculture and groundwater. 

Specific Comments
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

36

Doerflein, C. (Doc. #0500)

17.2.50I spent summers on the New Jersey shore in a community that destroyed its wetlands to 

build houses on "lagoons." We didn't realize at the time what the consequences would be, 

but I can tell you that, decades later, our wonderful Barnegat Bay is nothing like it was, 

nor is the wildlife that depends on it, because of the ecological disaster brought by 

rampant destruction of its surrounding wetlands.

We have to be smarter about things.

I strongly support the proposed Waters of the United States rule to clarify the Clean 

Water Act's protection of our nation's critical wetlands and streams, and I urge you to 

promptly finalize the new rule so that birds, fish, other wildlife, and our own 

communities can thrive with the security of clean and abundant water. (p. 1)

Agency Response: The agencies appreciate the commenter’s support. 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.

Cuppy, E. A. (Doc. #1998)

17.2.51I am just a small person, living pay to pay. I do not have the means to fight the big 

companies that only care about the dollar not the water. We need the EPA to fight for us, 

not against us and have the companies that have polluted our waters for hundreds of years 

finally start cleaning up the damage that has already been done.

I would propose that we continue to work on the large companies that truly do pollute our 

waters.

The proposed rule does not provide clarity or certainty as EPA has stated. The only thing 

that is clear and certain is that under this rule, it will be more difficult to farm, ranch, 

build homes, erect fences or make changes to the land – even if those changes would 

benefit the environment. I work to protect water quality regardless of whether it is 

legally required by EPA. It is one of the values I hold as a human being.

Small people, like me, along with farmer, homeowners, all Americans will severely be 

impacted. Therefore, I ask, beg really, to withdraw the proposed rule. (p. 3-4)

Agency Response: In this final rule, the agencies are responding to requests from 

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

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

identifying waters protected under the CWA clearer, simpler, and faster. 

Fewer waters are defined as “waters of the United States” under the final rule than 

under the existing regulations, in part because the rule puts important qualifiers on 

some existing categories such as tributaries. In fact, the agencies are specifically 

excluding more water features as non-jurisdictional (i.e. they are not “waters of the 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

37

United States”) than in present regulations. Section IV.I of the preamble discusses 

the exclusions in the final rule.

The Clean Water Act regulates discharges of pollutants and fill mate rial into 

covered waters, and does not regulate dry land, land use or private property rights.

Anonymous (Doc. #2073)

17.2.52I am very concerned about water quality in the United States and the need for more water 

and soil retention. As a landowner with land in an active river watershed that empties into 

the gulf of Mexico, I am saddened by the massive movement of valuable top soil to the 

gulf. Expansion of the "waters of the US" will do nothing to help that as the government 

already neglects the land it controls. What is needed is incentives and funding to build 

more terraces, swales and small silt catchments as well as drop structures and riparian 

zones. I am strongly in favor of preventing infill and dense development in flood plains. 

The simple solution to that is to adopt the European standard of a 1000 year flood line for 

development nationwide. (p. 1)

Agency Response: The Clean Water Act regulates discharges of pollutants and fill 

material into covered waters, and does not regulate dry land, land use or private 

property rights.

Niccoli, R. (Doc. #2854)

17.2.53I would also like to take this time to urge the EPA to add Ephemeral/Vernal wetlands (i.e. 

Carolina Bays, Vernal Pools, Prairie Potholes and other similar features) and riparian 

buffer zones surrounding these to the ruling. These ecosystems are of vital importance to 

many insects and amphibians that cannot compete in open/connected water systems. The 

animals that rely directly on these systems also play a large role in the food web and have 

a large impact on the greater wildlife community. Please do not overlook these critical 

ecosystems in your rulings. (p. 1)

Agency Response: The agencies recognize the importance of these wetlands and 

the ecosystems they support. Under paragraph (a)(7) of the final rule, prairie 

potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, 

and Texas coastal prairie wetlands are jurisdictional when they have a significant 

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

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

However, because the agencies determined that these subcategories of waters are 

“similarly situated,” the waters within the specified subcategories that are not 

otherwise jurisdictional under (a)(6) of the rule must be assessed in combination 

with all waters of a subcategory in the region identified by the watershed that drains 

to the nearest point of entry of a traditional navigable water, interstate water, or the 

territorial seas (point of entry watershed).

Anonymous (Doc. #2951)

17.2.54Forty years ago, two-thirds of America’s lakes, rivers and coastal waters were unsafe for 

fishing and swimming. Because of the Clean Water Act, that number has been cut in half. 

However, one-third of the nation’s waters still do not meet standards.
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

38

Indiana is one of the worst states in the nation on water quality. It is terrible to see all the 

Indiana lakes and rivers on the list with mercury, PCB’s, e-coli, algae, lead, copper and 

even cyanide. I firmly believe that the majority of causes polluting our waterways are 

from Concentrated Animal Feeding Operations (CAFOs) and pesticides and herbicides 

running into waterways from huge corporate farms.

The algae blooms, mercury, PCB, cyanide on the lakes and streams and the “Red Tide” 

on oceans and the "dead zone" on the Gulf are NOT natural occurrences! They are caused 

by POLLUTION! It is so sad that even though the Wabash River is a long way from the 

Gulf of Mexico and represents just 3% of the total Mississippi River Basin area, 

according to a recent study by a team of freshwater ecologists at the University of Notre 

Dame, it is responsible for 11% of the nitrogen that flows into the Gulf, causing the "dead 

zone". Indiana has been identified as one of the states contributing the most excess 

nutrients to the Gulf, and much of this is from CAFOs and corporate farms. Nearly every 

stream is Indiana is impaired and on IDEM's 303(d) list because of E. coli and other 

issues.

In 2004 our Salamonie Reservoir was in terrible shape. Due to illegal clumping of animal 

waste (much from a corporate dairy CAFO) into a ditch that led into Salamonie, there 

were often thick white-green smelly masses of algae in lots of places in the lake. Thanks 

to the help of the EPA and some state Senators and Representatives, 2005 was much 

improved. We are volunteers for Salamonie Lake in Indiana’s Volunteer Lake program 

run by IDEM and Indiana University’s School of Public and Environmental Affairs. We 

had dogs die from lapping water from Salamonie Reservoir 2 years ago. IDEM began 

blue-green algae sampling the summer of 2012. The designated swimming beaches of 

most of the state's reservoirs were sampled monthly unless cell counts exceed 100,000 

cells per milliliter (cells/ml), at which point the swimming beaches in exceedance will be 

resampled on a biweekly basis until the counts fall below 100,000 cells/ml. For 

protection of human health from cyanobacteria, the World Health Organization uses a 

guideline level of greater than 100,000 cells/ml and microcystin toxin levels of 20 parts 

per billion (ppb) for a high risk health alert in recreational waters. In Indiana, IDEM uses 

6 ppb of microcystin toxin as a warning level. The counts have often exceeded what they 

should. I now volunteer test for microcystins (blue-green algae) for the U. S. Army Corps 

of Engineers.

I firmly believe that more stringent majors need to be taken on not allowing animal 

wastes and pesticides and herbicides into our waterways. I do not believe that the 

proposed rule should preserve the Clean Water Act exemptions and exclusions for 

agriculture. (p. 1-2)

Agency Response: The rule does not affect or modify in any way the many 

existing statutory exemptions under CWA Sections 404, 402, and 502, which were 

enacted into law by Congress. However, the 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. 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

39

Anonymous (Doc. #4486)

17.2.55The comment of "case-specific" when determining a "nexus" is potentially detrimental to 

many temporary pothole wildlife breeding locations if the court (a non-scientific entity), 

finds no connection to a protected water as defined. The result could open the prairies to 

commercialization without proper understanding of the part potholes play in aquifer 

recharge either directly via substrata infiltration or moisture retention and subsequent 

evaporation for future rainfall.

Loss of any naturally occurring water collection, distribution or presentation network or 

system will decrease fresh water availability and while human personal consumption 

needs can be met with desalination and fog collection systems, these will not preserve 

wildlife and once lost to commercial designs, decades, if not centuries, will typically be 

needed to return such deviations to the original form. Loss of such cannot be calculated 

by "nexus" test methodology and long term effects will never be understood.

Florida is a excellent case in point. Depletion of subterranean aquifers has caused loss of 

wetlands "downstream" and "laterally" without any surface waterway ever being in 

existence. Similar, and substantial networks exist from Missouri to and through Kentucky 

and Tennessee. These and other networks under attack by ventures which will deplete 

them as in Florida and California. The Clean Water Acts must protect all fresh water 

sources, no matter the insignificance they present. No court can rule on these effectively 

since the philosophy of words is more important to a justice or lawyer than what is right 

and proper to maintain a clean world. (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 

sections III and IV.H. of the preamble to the final rule for a discussion of 

“significant nexus” and “case-specific waters of the United States,” respectively.

Vasaturo, G. (Doc. #4593)

17.2.56I'm writing as a South Florida resident in strong support of the proposed EPA and Corps 

"Waters of the United States" rule and would like my comments included in the docket. 

Water quality of Florida's coastal waters is declining, our freshwater supply dwindling, 

and habitat for wetland-dependent wildlife has been rapidly disappearing. This is a 

particular concern as development has started to ramp up in Florida, with over 1000 new 

people moving here every day. Wetlands, in particular shallow water wetlands, are 

diminishing...for example, the native apple snail is declining, and as this is the primary 

food for the snail kite and limpkin, these species are endangered. Development threatens 

floodplains and recharge areas essential not just to wetlands but to our vulnerable 

drinking water supply. It is so very important that waters of the US included headwater 

wetlands and waterways that are essential to cleansing out pollution, capturing and 

storing floodwaters, and providing sufficient freshwater flow to downstream rivers and 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

40

bays. I request EPA and the Corp to finalize this rule as soon as possible--time is of the 

essence for Florida waters. (p. 1)

Agency Response: The agencies appreciate the commenter’s support. 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. 

Anonymous (Doc. #11810)

17.2.57I am absolutely in favor of this rule. Ditches and small streams are being used as 

dumping grounds for all manner of toxic chemicals, in quantities as small as a paint can 

to as large as a deliberate, illegal, industrial dump.

It is time we protected ditches and small streams from these toxic dumps. (p. 1)

Agency Response: The agencies appreciate the commenter’s support. 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. 

Assayag, M. (Doc. #12022)

17.2.58States, particularly those in the northern Mid-Atlantic, could benefit many other states if 

they were to enforce this rule revision. Big states such as Pennsylvania and New York 

have streams and waterways that flow all the way down into the Chesapeake Bay. They 

should want to protect this water, because it is being passed on to others. As someone 

receiving water closer to the exit at the Chesapeake Bay, I would greatly appreciate if the 

water I received was clean and less polluted.

In addition, by cleaning up the water and enforcing more sustainable practices now, we 

can save time and money by preventing larger, more expensive issues from arising. If we 

aid and suggest more practical methods and techniques for farmers to use, it would help 

prevent stricter regulation that the government would need to implement in the future to 

make up for the harm that farmers have imposed on the water and the environment.

Lastly, many small businesses in Maryland have joined forces with Environment 

Maryland to support the passing of this rule change. Small businesses and small farmers 

realize that they can ultimately benefit from this change. They can help protect 

themselves and other as well as improving the condition of their farms with the passing 

of this rule. Small businesses recognize that everyone could benefit from clean water and 

ultimately it will be worth the investment.

Ultimately, clean water is the best choice for everyone. Yes, we do have to think about 

the externalities that will come along with maintaining this grand idea of clean water and 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

41

clean water practices, but it will be worth it in the long run. Our water environments 

could thrive and better support us if we, as humans, were doing all we could to protect it. 

If we are able to better sustain clean water, then clean water can help sustain our nation 

better. (p. 1)

Agency Response: The agencies appreciate the commenter’s support. 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.

Zucker, A. (Doc. #12043)

17.2.59I stand as a strong advocate for Clean Waters of the US and believe that the rules 

imposed will have a large positive impact on not only our environment, but also our 

country as a whole. It is very important that we protect our most seasonal and raindependent streams, wetlands near streams and rivers, and other bodies of water that 

connect with downstream water to ensure public health, as well as national security. By 

protecting these waters, we are minimizing the amount of pollution that is dispersed 

through our environment from evaporation, and in translation we’re minimizing acid rain 

that continues to pollute our waters. These proactive clean water actions will help with 

public health issues, as our damaged waters include 60% of our stream miles, accounting 

for 1/3 of Americans major source of drinking water! As every human needs water to 

survive, it is crucial that America provides clean drinking water without putting those 

drinking the water at risk for diseases.

As the Clean Waters of the US debate continues, it has come to my attention that many of 

the anti-activists for these imposed regulations are farmers. There are many beliefs that 

implementing rules and the Waters of the US would restrict how farmers and others can 

manage water on their property. Anti activists believe that permitting fees and 

compliance costs will hurt family farms, ranches, and small businesses. I do not believe 

this is the case, as small waters on farms that do not contribute to other waters in the US 

are exempt of the clean water regulations. Furthermore, I believe these regulations will 

positively impact farmers, allowing their farming to become more efficient due to clean 

water for their crops and land. Clean water can help farmers in the long run by keeping 

polluted water from eroding their land and dirt that is necessary for their every day 

farming needs.

As I explained, Water quality is crucial for public health and agriculture, but also very 

important for our ecosystem and other purposes. Increases in temperature, as well as 

changes in precipitation could diminish water quality in many regions. Additionally, 

increasing water temperatures can cause algal blooms and potentially increase bacteria in 

water bodies that are very harmful. These impacts require us as Americans to decrease 

our carbon footprint and take the necessary steps in implementing the regulations for 

Clean Waters of the US, in order to provide safe water resources for human uses.
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

42

As clean water is crucial for human life, it is always extremely valuable to our nature and 

wild life. Imposing regulations on waters of the US will help preserve our land from 

eroding, as well as giving animals a safe and clean environment to live. An extremely 

large amount of animals are affected and even killed by our polluted waters. I believe as 

citizens of the US, it is our responsibility to preserve our wildlife and nature. Our water 

quality is directly linked to the quality of our lives. By improving our waters through 

supporting clean water initiatives, we can each have a hand in ensuring clean, safe water 

for ourselves, our community, and our country as a whole. (p. 1)

Agency Response: The agencies appreciate the commenter’s support. 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.

Saine, A. (Doc. #12090)

17.2.60...If the intent is to strengthen protection of our water supply and give Citizens the right 

to clean water then I am in complete agreement. Water is a viable life giving source 

worthy of the time and effort. I live in Kennesaw, Georgia. My City’s history is largely 

influenced by an abundant water supply. The Cherokee Indians re ferred to the water 

source here and the location was ideal to sustain an army with Calvary training during the 

Civil War. Big Shanty Spring is commemorated just behind City Hall. This head water 

flows from there to an unnamed tributary to Butler Creek to Lake Acworth to Lake 

Allatoona and into the Etowah River.

Our world today includes a surge in population and the desire to develop with buildings, 

roads and parking decks. While I understand and defend a property owner’s right to 

develop their property, I believe the development must be done in a responsible manner. 

Water located on a property deserves a great deal of respect and water leaving a property 

should be clean. It simply is not polite to pass along dirty water to a neighbor.

2012 and 2013 included some very exciting activities in Kennesaw. The City of 

Kennesaw Decision Makers’ conversations included the words: stream variance, 

mitigation credits, detention areas and creation of wetlands. In my opinion it is 

unfortunate the Georgia Department of Natural Resources Environmental Protection 

Division granted a stream variance to encroach within the 25 foot buffer adjacent to State 

Waters. The City of Kennesaw then reduced their 75 foot stream buffer to 25 feet. This 

variance literally paved the way for the Mainstreet Kennesaw Multi-Use Development 

and runoff from this massive five acre development adjacent to a future public park site 

with a stream. The Control Number for this Application is BV-033-13-01. While I am 

told a system to structurally clean the water is in place, I am left with the question, “Is it 

enough?”

The efforts currently underway with the intent of protecting a Citizen’s right to clean 

water may be the help we need to ensure responsible development. I believe an Agency 

which is separate from the development interests of an area and committed to the 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

43

preservation and protection of our waterways would be one of the best assets the United 

States could have. (p. 1)

Agency Response: The agencies appreciate the commenter’s support. 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.

McDougal, S. (Doc. #12185)

17.2.61I support the EPA/Corps rules that speak of ‘waters of the US’ in the Clean Water Act. 

Neighboring is important because it includes oxbow lakes and other wetlands near or in 

floodplains as US waters. Also high water mark, or streams with a bank or bed should be 

included. Arid states such as MT and AZ need these protections.

Surface water protection is especially important, so floodplain definition should include 

the 100 year floodplain and any mapped 500 year floodplains and channel migration 

zones or similar mapped features. Streams that run underground should also be included. 

Wetlands and other waters located in and adjacent to floodplains deserve to be protected 

under the clean water act. The ecological floodplain or the 100 year floodplain should be 

protected, at a minimum. (p. 1)

Agency Response: The agencies appreciate the commenter’s support. 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.

Reeves, M. (Doc. #12466)

17.2.62I have reviewed the proposed rules to define the "waters of the United States" and support 

the proposed definition and the draft rules. Recently, the Yamhill County Oregon, three 

member Board of County Commissioners approved a Resolution opposing these draft 

rules based on misinformation, including broad statements not supported by facts. Their 

claims that these rules would adversely affect productive farm land and economic 

development in the County are not true.

I have lived in Yamhill County Oregon for 33 years and have actively participated in land 

and water use issues. Much of the productive farm land has tile drains which are exempt 

from the CWA and new development is permitted by State Land Use Laws. I am not 

aware of any adverse problems caused by the permitting or enforcement of the CWA in 

general, or the definition of "waters of the U.S." in particular.

Unfortunately citizens were not permitted to present any facts or correct misinformation 

to the Commissioner when the Resolution was enacted. What they drafted does not 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

44

reflect the will of the people in the County. Concerned citizens submitted letters to the 

editor (News Register, McMinnville OR, October 10, 2014).

I strongly supported the original enactment of the 1972 Federal Water Pollution Control 

Act Amendments (92-500) and the subsequent laws which created the Clean Water Act. 

The proposed rules reflect the purpose of the original legislation and over the years the 

success of the CWA has been remarkable. However, many problems remain. The fish in 

the Columbia River have toxic levels for humans and aquatic resources, farm and city run 

off creates algal blooms dangerous to both humans and fish. and we have yet to achieve 

the goals of swimmable and fishable waters here in Oregon.

Research has demonstrated the importance of temporary vernal pools or small potholes. 

For example, I lived for 10 years in the Dakotas and Minnesota and know that in some 

years, nesting ducks use temporary waters.. Although the Corps of Engineers and EPA 

permitting process is not always perfect, scare headlines and political posturing do not 

improve it.

Finally, I urge that the EPA includes these comments in the record and approves the draft 

rules. (p. 1-2)

Agency Response: The agencies appreciate the commenter’s support. 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. 

Hopkins, S. (Doc. #12697)

17.2.63I am concerned about the exclusion of ground water from any regulatory consideration...

And yet the farmers are drilling deeper wells; up to 1,500’ or more to find water. 

Shallow residential wells are drying up. The farmers are mining fossil water left over 

from the last ice age. When it’s gone, it’s gone; and the Central Valley will be 

FINISHED for farming. Not a pleasant prospect.

And yet, as the farmers pump, and the water table drops, the EPA turns its back on the 

potential disaster in the making.

Even if the modest rains return this winter, it won’t recharge the deep aquifer. Once it’s 

gone, it’s gone forever and the Central Valley will slowly become a desert. (p. 1-2)

Agency Response: As discussed in the preamble to the proposed rule, the agencies 

have never interpreted “waters of the United States” to include groundwater. 

Accordingly, the agencies include an exclusion for groundwater, including 

groundwater drained through subsurface drainage systems. However, the exclusion 

does not apply to surface expressions of groundwater, as some commenters 

requested, such as where groundwater emerges on the surface and becomes 

baseflow in streams or spring fed ponds. In addition, 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. Many states and 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

45

tribes regulate groundwater. 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.

Hallman, H. (Doc. #12912)

17.2.64I give my full support towards the EPA’s proposal to clearly define what waters are 

protected under the Clean Water Act. Water pollution is caused by many different 

activities, which will be difficult to address, but we can clearly see the effect. We must do 

our best to clean up our water supplies. I hope that someday our water supplies will not 

be polluted by anthropogenic causes. It appears that some people will pollute without a 

second thought of the consequence their action will have on the environment. By placing 

a law into action that will no longer allow people to jump through loop holes, getting 

away with their pollution, I hope to see the Clean Water Act Thrive. (p. 3)

Agency Response: The agencies appreciate the commenter’s support. 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.

Grewe, A. (Doc. #13345)

17.2.65So, of course the definition of "waters of the United States" should include wetlands and 

headwaters in addition to lakes, streams, ponds and rivers. Wetlands are of huge 

importance to the health of our waters and to all the wildlife that depend upon them. 

When Congress passed the Clean Water Act 40 years ago, it intended that getting permits 

for destroying wetlands should be difficult. "The bottom line was to try to stem what the 

scientific evidence of the day showed was a problem: the dramatic reduction in wetlands 

habitat around the nation," said Jim Range, who helped write the law as chief counsel for 

then-Sen. Howard Baker, R-Tenn.

Wetlands perform a dazzling array of ecological functions that only recently have come 

to be appreciated. Scientists understanding of the complexities of wetland ecosystems 

still is developing, and it seems the more that is learned, the more valuable wetlands 

become.

...I sincerely hope that you will consider my writing when deciding upon definitions of 

the "waters of the United

States." (p. 1-2)

Agency Response: The agencies appreciate the commenter’s support. 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.
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

46

Martini, B. (Doc. #13589)

17.2.66I am writing to comment on the proposed rules that restore Clean Water Act "waters" 

definitions to return to the scope of protection we had before court decisions removed 

several headwaters portions of the water cycle. I have direct experience with the need for 

protection of the entire water cycle, not just the big bodies of water. I worked 32 years for 

the Wisconsin Dept. of Natural Resources protecting the waters of the state from 

environmental pollution. The small headwaters streams and groundwater are like 

capillaries in the human body that feed the major veins and arteries and keep the body 

alive. If a drug is injected into the skin or muscle, it is distributed to all parts of the body. 

In like fashion, pollutants injected into the groundwater or small streams will eventually 

contaminate downstream rivers or lakes. Much of the runoff phosphorus from agricultural 

lands enters the watershed via wetlands and small streams but eventually can degrade 

huge systems like Lake Erie and make a large city water supply (like that of Toledo, Ohio 

this summer) toxic and undrinkable. In the process, the fish and aquatic life in the whole 

contaminated watershed are adversely affected. Agriculture must be regulated just like 

the point sources to protect water quality and to correct the inequity of massive 

investments already made by most industrial sectors without similar progress toward 

water quality protection by the agriculture industry. Voluntary cost sharing does not work 

as we have demonstrated over the past 30 years in Wisconsin's costly (to the taxpayers) 

Priority Watershed program. Now it is necessary for agriculture to do what the point 

sources have already done and correct their share of the problem. It all starts with water 

quality standards. If the wetlands, small streams, and groundwater are exempt from Clean 

Water Act standards the whole process of controlling agricultural runoff pollution will 

fail at the expense of our drinking water and the economic sectors that depend on clean 

water (which is most of our economy and society). As a former county board member I 

saw what happens when local elected officials ignore the protection of small streams and 

wetlands in their shoreline protection ordinances. How can local units of government be 

expected to protect the entire interconnected water cycle if a science-based agency like 

EPA sets a bad example by omitting the part of the cycle that feeds the major rivers and 

Great Lakes? Wisconsin's great environmental philosophers, John Muir, Aldo Leopold, 

Gaylord Nelson, and others have given us this basic principle: "all waters and 

components of the ecosystem and the economy are connected and interdependent". We 

ignore parts of this sustaining system at our collective risk to our economy and our 

quality of life. Water quality reflects watershed quality and watershed quality reflects the 

quality of our society. Do not exempt a crucial part of the watershed because some vested 

interests do not want to do their part like the point sources already have. This is not about 

"ditches" as the ag industry would have you believe! This is about the responsibility of 

society to protect our most valuable natural resource. (p. 1-2)

Agency Response: The agencies appreciate the commenter’s support. 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 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

47

Anonymous (Doc. #15684)

17.2.67Even though I don't hunt and rarely fish, I still feel the need the speak up in support of 

our environment. We need to keep our wetlands not only clean but open to people who 

use them for recreational purposes. The US has a lot of bird watchers who visit wetlands 

to count birds every day across every state. If we allow the wetlands to be developed and 

polluted, we're making a big mistake that will ruin our ecosystem for years to come. (p. 

1)

Agency Response: The agencies appreciate the commenter’s support. 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. 

Species, S. (Doc. #15740)

17.2.68I support EPAs proposed definition of Waters for the U.S. The rule will help restore your 

authority to protect all of the water in the U.S. that Congress intended it to protect when it 

passed the Clean Water Act.

We need a strong Clean Water Act to address threats to the water that farmers, ranchers, 

and communities depend on -- from chemical spills from mining operations that have 

leaked arsenic into a Colorado river, to the heavy metals leached from coal ash at coalfired power plants, to destructive saltwater spills, fracking fluids and other chemicals 

used in oil and gas drilling and production that have contaminated waters in states across 

the West. (p. 1)

Agency Response: The agencies appreciate the commenter’s support. 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.

Ellis, J. (Doc. #15747)

17.2.69While I would like to see all water resources protected from pollution, destruction, or 

exploitation--wetlands, lakes, rivers, streams--I understand that it's best that "Waters of 

the US" be clarified so that business, industrial, and farming practices are able to make 

clear decisions based on clear rules. This rule does clarify what waters and water bodies 

can and will be protected under the Clean Water Act. The rule also clarifies farming and 

ranching practices that can continue without need for permits or fear of breaking any 

laws. (p. 1)

Agency Response: The agencies appreciate the commenter’s support. 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 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

48

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.

Anonymous (Doc. #15803)

17.2.70The one thing that keeps all life here on this planet is clean water. All water should be 

protected and not treated as if it were a commodity to be sold and polluted at will. The 

only thing water should be used for is to sustain life and should never be dumped into, 

used in a manor that would not allow it to be collected again for use as a life giving 

necessity (drinking). Our waters have been abused and misused for too long. Protection 

must be done at the National level to protect all the waters because they know no 

boundaries and flow from state to state and to the sea and other countries. Individual 

states do not have the resources to protect this precious resources for the benefit of all in 

this country. (p. 1)

Agency Response: The agencies appreciate the commenter’s support. 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. 

Morris, B. (Doc. #15841)

17.2.71It is critical in your regulations to include shallow wetlands in the EPA-Corps "waters of 

the United States" Clean Water Rule The Wood Storks need these shallow wetlands to 

feed and in Florida alone thousands of acres of Shallow Wetlands have been lost. 

Without the food sources from Shallow Wetlands the Wood Storks will not reproduce. In 

the early 1900s there were 100,000/Wood Storks in the area of the Corkscrew Sanctuary. 

Last year due to loss of shallow wetlands there were only 200 nests at Corkscrew. 

Without the Shallow Wetlands we will lose these and other critical anima ls. (p. 1)

Agency Response: The agencies appreciate the commenter’s support. 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.

Morris, S. (Doc. #15844)

17.2.72This email is to strongly encourage the EPA and Army Corps of Engineers to complete 

and implement rules to provide protection to the various wetlands in Florida and other 

areas of the United States( docket EPA-HQ-OW-2011- 0880). Many critical wetland 

areas are in dire situations and only strong action by the EPA and the Army Corps of 

Engineers will prevent further damage. As a property owner in Florida, I have interest the 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

49

shore birds that have declined in population nearly 90% since the mid 19th century 

because of development, canal building, agriculture and other factors. These birds are 

important indicators of the state of the environment and unless strong actions are taken, 

wetland-related problems will continue to escalate. Your attention and prompt action 

would be appreciated. (p. 1)

Agency Response: The agencies appreciate the commenter’s support. 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.

Anonymous (Doc. #15867)

17.2.73I support EPA's proposed rule to restore Clean Water Act protections to all water, 

including small streams and wetlands.

Science shows that entire watersheds, including the wetlands, must be protected to 

protect the quality of water in rivers.

As a former water quality program specialist and scientist, I know that water is an 

interconnected system, and it is not possible on a scientific basis to separate the system 

into unconnected regulated/unregulated; public/private pieces. I do believe in the rights of 

people to own property, but I think that those rights are limited to what can be done 

without impacting the rights of other people. If someone pollutes the water or destroys 

the ecosystem upstream by paving over wetlands or other activity, it negatively impacts 

all the waters downstream, or downdraft for groundwater. Pollution and environmental 

degradation does not stop at property boundaries and thus regulation must be based on 

science, not property boundaries. Rivers and streams do not stop and start at the 

boundaries of states either, making comprehensive and cohesive federal regulations 

necessary to protect water quality all over the country.

Similarly, large rivers are not self-contained, but are the constant creation of 

precipitation, water from streams that feed into it, shallow groundwater flows and other 

factors. Whether or not a river can support fish or other life is influenced by what 

happens in riparian areas. Recent studies by Stroud WRC have shown how important 

riparian areas and tiny streams are to the total biological diversity of rivers they feed. 

Protecting these areas is critical to protecting the life-sustaining properties in the larger 

water bodies they feed.

The intent of the CWA was to protect the quality of all water in the United States, and 

EPA's rule restoring CWA protections to all water is vital to achieving this. It must be 

based on science, not individual property rights or short-term economic considerations.

Comprehensive, science-based regulations and programs to protect entire watersheds are 

also economically preferable to less regulation, since clean water is vital to all life, and 

time has shown that protecting water from pollution is less expensive than cleaning up 

polluted or degraded water, when that is even possible. Contrary to popular opinion, 

water quality regulations can also lead to reduced costs to regulated businesses by getting 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

50

them to develop ways to use fewer polluting materials. Many pollutants are costly, and 

reducing them through improved processes reduces costs as well as pollution. (p. 1-2)

Agency Response: The agencies appreciate the commenter’s support. 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.

Wright, K. (Doc. #16146)

17.2.74I am in favor of the adoption of the EPA/USACE rule to provide clarified description of 

waters eligible for protection by those agencies. I support it for reasons of reduced 

confusion of what waters are eligible, and because we need better protection of all 

surface waters that affect the quality of our drinking water. Source water protection is o f 

paramount importance as we continue to grow and develop our economy. (p. 1)

Agency Response: The agencies appreciate the commenter’s support. 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.

Anonymous (Doc. #16148)

17.2.75As a naturalist and private citizen I believe it is vital to support the Clean Waters Act and 

applaud this effort. While some landowners may protect the integrity of waters on their 

property, and some states may have instituted proper legislation, the widespread pollution 

of minor steams and major bodies of water such as the Chesapeake Bay and Great Lakes 

demands action. (p. 1)

Agency Response: The agencies appreciate the commenter’s support. 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.

Burleigh, J. (Doc. #16232)

17.2.76When reading over the Clean Water Act in class, it becomes obvious there are some 

sections that would benefit from clarification. One of the main objectives of the act is the 

protection of navigable water. Navigable waters are defined as waters of the United 

States, which is not a clear definition. The EPA attempted to clarify this aspect of the act 

by creating the New Rule. Streams and wetlands protection is explained with the new 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

51

addition. According to the EPAs explanation of the rule, there are no new waters being 

protected. I believe that this addition to the Clean Water Act is beneficial to the 

protection of our waterways. Our waterways are largely interconnected, which means 

pollution in any waters affect all other waterways. This could be through tributaries, 

streams or lakes. When a body of water is not connected to a different water source, the 

water cycle is still affected. The pollutants in a wetland, freestanding lake or other 

unconnected waterways will seep into the groundwater. Once in the groundwater the 

pollutants will move throughout the water system and cause contamination to fresh water. 

With stricter regulations on pollution, clean waterways will become closer to a reality. 

Clean water is a basic human right that many people are not privileged to have. The 

United States should not have to worry about the pollution in their water source. This 

clarification of the act will stop polluters from dumping unwanted waste into waterways 

and hopefully limit the amount of polluted water in the United States. With stricter 

regulations and enforcements citizens are more likely to comply to the guidelines given. 

There are certain bodies of water that do not fit into the categories that are clearly defined 

in either the Clean Water Act or the New Rule. These waters fall under the term 

significant nexus and must be defined as waters of the United States on a case by case 

basis. After speaking to an employee of NRDC, the National Resource Defense Council, 

Jon Devine, it became clear that the significant nexus area should be clarified, which 

would clearly protect more bodies of water. This would sort a smaller number of water 

bodies in the significant nexus category, which would be beneficially, because deciding 

protection on a case by case basis can be inconsistent. Farmers argue that the act puts 

limitations on their ability to properly run their farm. Farmers would have to request a 

permit in order to use certain farm practices. There are 56 practices that the Clean Water 

Act defined as normal farming practices and these practices do not require permits. The 

American Farm Bureau Federation claimed these regulations to be unworkable. However, 

this act only clarified past regulations. Farmers were technically following these 

regulations before, with limited enforcements. Agriculture is a big factor in the amount of 

pollution in the water and regulations of these pollutants are beneficially for the safety of 

all water uses. (p. 1)

Agency Response: The agencies appreciate the commenter’s support. 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.

Anonymous (Doc. #16418)

17.2.77These wetlands that are currently being threatened of not be protected from those that 

want to destroy these habitats in order to build upon them are extremely vital to many 

species of birds and fish and mammals that currently are living there. It is of the utmost 

importance that uphold the protection of these lands and subsequently many other areas 

that wildlife take refugee upon. Please support this bill in stating that the clean waters act 

applies to all waters that sustain wildlife within them. (p. 1)
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

52

Agency Response: The agencies appreciate the commenter’s support. 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.

Joy, J. N. (Doc. #17208)

17.2.78I strongly support EPA's proposed definition of Waters for the U.S. The rule will help 

restore the EPA's authority to protect all of the water in the U.S. that Congress intended it 

to protect when it passed the Clean Water Act.

We no longer have the luxury of having a cavalier approach to the protection of water in 

our world. Approximately one-third of the world's population does not have access to 

potable water, largely due to lackluster efforts on the part of world governments to 

protect water sources from the extensive and persistent pollution by industry, e.g., 

chemical spills from mining operations that have leaked arsenic into a Colorado river, 

heavy metal leaching from coal ash at coal-fired power plants, destructive saltwater 

spills, fracking fluids and other chemicals used in oil and gas drilling that have 

contaminated waters in states across the West.

As a pathologist, I have personally seen the medical tragedies related to pollution of our 

environment by uranium mining (lung cancer, pulmonary fibrosis with restrictive lung 

disease), fracking fluids (hemorrhagic diatheses, skin rashes, anemia, gastrointestinal 

disorders), and coal mining (pulmonary anthracosis/fibrosis). Despite denial by the 

industry defenders, I have no doubt in my mind that there is a direct association between 

the pollution of our environment, especially our water, and these medical conditions.

Worldwide the science community has endorsed the dangers of continuing down the path 

of continued mistreatment of our environment. We can no longer turn a blind eye to the 

very real and imminent dangers to our planet promulgated by industrial greed. As an 

agency that has actual power to act on issues that affect our entire nation, as well as 

indirectly on the world, I urge you to approve the Waters of the U.S. rule. (p. 1)

Agency Response: The agencies appreciate the commenter’s support. 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.

Newman, V. (Doc. #17698)

17.2.79On behalf of our local watershed group, Friends of the Weskeag, thank you for proposing 

a rule to clarify the scope of the Clean Water Act that will restore protections to the 

approximately 2 million miles of streams and tens of millions of acres of wetlands as 

surely was intended in the original law!
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

53

The Weskeag River watershed in Midcoast Maine exemplifies the need for this 

clarification. Our watershed is 11 square miles in size with portions located in 

Thomaston, South Thomaston, Rockland, and Owls Head. The headwaters begin in the 

city of Rockland and the river enters the ocean at a tidal falls in South Thomaston. The 

Weskeag Marsh is the largest tidal marsh in Midcoast Maine and the most productive 

shorebird roosting and feeding site in the Muscongus Bay area. A significant area of the 

marsh comprises the Ralph Waldo Tyler Wildlife Management Area. Additional sites 

along the lower river are currently being acquired by local land trusts. The estuary 

includes 1,100 acres of brackish tidal marsh and saltmarsh, extensive tidal flats, and 

eelgrass beds. Yet the Weskeag is one of several tidal rivers long considered by the 

Maine Department of Environmental Protection to be coastal wetlands most at risk from 

new development.

That development has taken place mainly within the upstream towns and has resulted in 

considerable direct and cumulative impact to intermittent streams and wetlands, including 

outright obliteration of these. Yet because of the variety of jurisdictions (state and local) 

it has been virtually impossible to prevent the resultant damage to the river's water 

quality. Hence, this proposed rule could perhaps have saved us much grief had not the 

Supreme Court et al cut short its application.

We earnestly hope that this time the full Clean Water Act will prevail, further damage to 

our aquatic ecosystem will be prevented, and even our water- and coastal-dependant uses 

may be enhanced. (p. 1)

Agency Response: The agencies appreciate the commenter’s support. 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.

17.4. OTHER

Agency Summary Response

Commenters expressed various concerns regarding implications of virtually every aspect of the 

proposed rule, from irrigation canals, to tributary and other definitions, to ditches, farming and 

ranching, pesticides application, Western water rights, ephemeral streams and features, 

stormwater, and property rights. Several commenters expressed support for the rule.

Specific Comments

Central Arizona Project (Doc. #3267)

17.2.80It is under this revised definition of a tributary that we interpret the entire CAP aqueduct 

system as being considered a tributary of a traditional WOTUS because, among other 

connections, the CAP interconnects with and uses Lake Pleasant to store water in winter 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

54

months for release in summer months. If CAP were to fall under the revised definition, it 

would inevitably lead to more costly, complex and time-consuming permitting as well as 

the potential for significant water shortages for Arizona cities during aqueduct repair and 

maintenance activities. (p. 3)

Agency Response: Many commenters asked for an exclusion for drinking water 

supply systems, similar to exclusions for wastewater treatment and stormwater 

control. Because water supply networks can be both complex in structure and 

extensive in size, involving the use of tributaries as well as a variety of other 

features, the agencies determined that a complete exclusion of such systems is not 

appropriate. However, not all portions of these systems would be regulated under 

the final rule. Some portions of these systems are tributaries, or even traditional 

navigable waters, and so would be regulated under this rule for the same reasons 

that all such waters are subject to regulation as “waters of the United States.” At 

the same time, there are some portions of these systems that would be excluded from 

regulation under the paragraph (b) exclusions, including (b)(3) (ditches that do not 

flow into a navigable water, interstate water or territorial sea) or (4)(B) (artificial, 

constructed lakes and ponds created in dry land). In addition, the agencies have not 

considered these water distributary systems jurisdictional where they do not have 

surface connections back into, and contribute flow to, “waters of the United States.” 

However, the agencies have historically regulated aqueducts and canals where they 

serve as tributaries, removing water from one part of the tributary network and 

moving it to another. 

See response to comments for Topic 7: Features and Waters Not Jurisdictional for 

discussion of these and other exclusions that may apply to waters within the CAP. 

There are also statutory exemptions for maintenance in the CWA Section 404(f)(1), 

including exemptions for maintenance of irrigation and drainage ditches, and 

construction of irrigation ditches. The CWA Section 404(f)(1)(B) exempts additional 

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.” Other types of 

maintenance activities in waters of the U.S. may also be authorized by a nonreporting Nationwide Permit 3. See summary response for 6.6 for a discussion of 

maintenance exemptions.

17.2.81 [U]nder the new definition, CAP would be subject to regulation under the Clean Water 

Act's section 404 program. CAP is generally not required to obtain 404 permits to 

perform earth-moving work in the canal, unless that work was to impact a jurisdictional 

water of the United States. (p. 5)

Agency Response: See agencies’ response for previous Central Arizona Project 

comment, above. However, certain dredge and fill activities in jurisdictional water 

of the U.S., including activities not covered by statutory exemptions for 

maintenance, may require 404 permits. 

17.2.82Interruption of Critical Water Flows: The rulemaking, as proposed, would impact the 

maintenance of the aqueduct system and pumping plants including the typical dredging of 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

55

the system and repairs that are required. On September 30,2012, CAP experienced a 

breach in the canal that forced its closure. CAP tapped the resources of the Lake Pleasant 

storage reservoir to provide uninterrupted water deliveries to its customers in the 

Phoenix, Pinal and Tucson area. The repair time from start to finish took approximately 

one month, but would undoubtedly have been longer had permits been required and, 

under those circumstances, might have created significant water shortages for Arizona 

cities. (p. 5)

Agency Response: See agencies’ response for first Central Arizona Project 

comment, above.

Neill Grading and Construction (Doc. #4580.2)

17.2.83If you have a voice in the EPA Regulatory Debate, or if you care about wildlife 

preservation, water quality, soil conservation, an individual's right to the pursuit of 

happiness and personal property rights, then check out Callaway Gardens and see that 

"this shows what God could do if He had money." Thank God Carson Callaway did what 

is now Callaway Gardens before the EPA perverted Congress's Pollution Control Act into 

their Clean Water Act which should now be called the Construction Obstruction Act. The 

obstructionism practiced by the EPA as enforced through the Army Corp of Engineers 

has reached the point of causing harm to the environment by wrong-mindedly preventing 

the type conversions of waste land to natural paradise that Callaway Gardens represents. 

Elected officials fearful of being labeled anti-environmental have stood by and allowed 

the EPA through their rule making process to pervert the intent of Congress. They have 

"outlawed" common sense practices once required by the Soil Conservation Service (now 

called the Natural Resources Conservation Service). The EPA's ignorance of standard 

engineering principles and obliviousness to established common sense practice actually 

causes additional and continuous erosion, stream degradation and poorer water quality. 

They have done an amazing job of growing the size and grasp of their self perpetuating 

bureaucracy, adding unnecessary cost to almost everything except the thousands of 

worthwhile projects they totally prevent. They take great pleasure in obstructing and 

preventing projects that would enhance the environment and benefit wildlife and 

mankind while caring not about the jobs that are lost. I sincerely hope that you will read 

the enclosed excerpt from the Bo Callaway Story and avail yourself of the terrain and 

landscape before and after his family's efforts. The Callaway Garden story is the best 

evidence I have ever seen, that when it comes to the regulation of streams, the EPA does 

not need to be allowed any additional oversight. In fact, the Congress needs to man-up 

and pare back the effects of a decade of meritless overreach. It could be as simple as 

allowing the individual states to regulate the vastly different numbers and types of 

streams within their boundaries and require the EPA to stick to real pollution. The EPA 

can, to some degree, justify the loss of jobs and GDP for the sake of cleaner air but their 

endeavors to control and obstruct most stream related activities has a diminishing affect 

to jobs and GDP and personal property rights with no offsetting environmental benefit. In 

fact, the EPA's obstructionist policy actually adversely affects man, animal, nature, and 

the aquatic environment they pretend to protect. The USDA will have a difficult time 

spending $1.2 Billion on soil and water pollution "to encourage investments that would 

improve habitat, expand outdoor tourism and add jobs" (exactly what Callaway Gardens 

did and does) unless Congress gets the EPA and Army Corp out of the benefit-less 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

56

practice of obstruction in the misused name of environmental protection. In fact, why can 

we not change the EPA name and purpose to PCA and instruct the revamped Pollution 

Control Agency to stick to a new/old original mission.

As Millard Grimes wrote in The Bo Callaway Story (5-6), "When Fuller Callaway Sr. 

died in 1928, his son Cason became head of the company at the age of 33. He was 

already a veteran industrialist, and had virtually invented the valuable cotton waste 

business while in his early 20s. He was also the prime mover in establishing the rug 

mills that turned out Callaway Mill's only consumer product at the time. Cason was first 

of all an experimenter, which later led him to his greatest experiment: Callaway 

Gardens.""It was in 1923, on a weekend excursion, that Cason and Virginia discovered a 

huge and deep spring in the woods of Harris County, which they called Blue Springs, 

and where the Callaway family - now including three children - picnicked and spent 

many happy days in the late 1920s."

"Cason bought all the land around the Springs in 1930 and launched the 

agricultural and lake-building experiments that were his favorite interests."

"In 1938, Cason turned over management of the textile business to his younger 

brother, Fuller Jr., and for the rest of his life he was a farmer and gardener - on a 

grand scale." "He moved his family to a house he'd built near Blue Springs when 

his youngest son, Bo, was about 10. Bo attended the elementary school in 

Hamilton, where he met Beth Walton, when they were in the sixth grade."

"In the 1930s, the countryside between LaGrange and Hamilton was losing a 

centuries old battle against erosion and a 20th-century invasion by saw-millers, 

who were denuding its forested hills. Pine Mountain cast its shadow over a 

spreading wasteland of gullied hills, tree stumps and abandoned farmhouses. 

Only occasionally were there places of natural beauty such as Blue Springs, 

where tall trees still grew, surrounded by the wildflowers of the Appalachians."

"Cason, an environmentalist at heart, before environmentalism became 

fashionable, was concerned by the decline of the land. So for several years he 

concentrated on agricultural experiments, producing crops other Georgia 

Farmers never imagined could be raised in southern soil, such as strawberries 

and blueberries. Probably most important for the future of southern farming, he 

built lakes and demonstrated that fish could be a lucrative crop. " 

"With the financial resources other farmers didn't have, Cason found ways to 

have a successful farm without growing a single stalk of cotton, which was then 

the main cash crop in Georgia. Later, with his" 100 Better Farms" promotion, he 

encouraged other Georgia farmers to diversify their crops." 

"By 1948 Cason's attention was turning toward his third career: conservation and 

gardening on a grand scale. He looked at the wasteland along U.S. 27 in Harris 

County and decided to develop a huge wildflower garden there were other people 

could come and enjoy the rustic delights he and his family had found at Blue 

Springs." 

"Writing to a friend in 1950, he made a prediction of what the area would 

become: "In eight miles between Hamilton and Chipley (now Pine Mountain) 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

57

we've built a I75-acre lake and around the lake is a seven-mile drive with six 

small lakes. We are now planning to put flowers and shrubs around the drive and 

lakeshores."

"Cason transformed the wasteland and wilderness into gardens of native flora 

through which people could walk, drive or bike for miles. In fact, there aren't any 

other woods exactly like the ones off U.S. 27, just south of Pine Mountain. As 

one observer said of another Callaway project: "This shows what God could do if 

He had money." (p. 1-4)

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 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 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. 

Fewer waters are defined as “waters of the United States” under the final rule than 

under the existing regulations, in part because the rule puts important qualifiers on 

some existing categories such as tributaries. In fact, the agencies are specifically 

excluding more water features as non-jurisdictional (i.e. they are not “waters of the 

United States”) than in present regulations. Section IV.I of the preamble discusses 

the exclusions in the final rule.

The Clean Water Act regulates discharges of pollutants and fill material into 

covered waters, and does not regulate dry land, land use or private property rights.

Travis County Commissioners' Court, TX (Doc. #4876)

17.2.84The more defined scope and definition of several terms in rule will aid the development 

community in understanding potential impacts upfront in the planning and scoping of a 

project, instead of relying on a less clear decision making process once a project is 

submitted in a permit application to a federal agency. As one example, the proposed rule 

lists specific situations and systems that are not "waters in the United States" such as 

ditches and waste treatment systems. (p. 1)

Agency Response: The agencies agree. Fewer waters are defined as “waters of the 

United States” under the final rule than under the existing regulations, in part 

because the rule puts important qualifiers on some existing categories such as 

tributaries. In fact, the agencies are specifically excluding more water features as 

non-jurisdictional (i.e. they are not “waters of the United States”) than in present 

regulations. Section IV.I of the preamble discusses the exclusions in the final 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. This 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

58

interpretation is based not only on legal precedent and the best available peerreviewed science, but also on the agencies’ technical expertise and extensive 

experience in implementing the CWA over the past four decades. 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.

Reese, J. (Doc. #4955.1)

17.2.85These rules appear to be written by EPA lawyers to appear politically palatable, but still 

leave everything within the power of the EPA to determine what are and what are not 

Waters of the U.S. It intends to circumvent every Supreme Court decision that has 

previously stopped the EPA from enforcing CWA on all waters. Specifically Part 328.3 a. 

7. The term Waters of the U.S. means: on a case-specific basis, (determined by the EPA) 

other waters, provided......, have a significant nexus (determined by the EPA) to a water 

identified in paragraphs a) 1-3.

The case-specific basis will be determined by the EPA and the significant nexus will be 

determined by the EPA. Those are problems that will create “government creep” into 

private property rights of citizens. (p. 1)

Agency Response: Section I of the Technical Support Document provides the legal 

background for the final rule, including discussions addressing its consistency with 

the statute and caselaw. The rule establishes a definition of significant nexus, based 

on Supreme Court opinions and the science, to use when making these case-specific 

determinations (see section III of the preamble and section II of the Technical 

Support Document). Significant nexus is not a purely a scientific determination and 

neither is the agencies’ interpretation of the scope of “waters of the United States.” 

Further, the opinions of the Supreme Court have noted that as the agencies charged 

with interpreting the statute, EPA and the Corps must develop the outer bounds of 

the scope of the CWA, while science does not provide bright lines with respect to 

where “water ends” for purposes of the CWA. Therefore, the agencies’ 

interpretation of the CWA is informed by the Science Report and the review and 

comments of the SAB, but not dictated by them. 

The final rule recognizes that not all waters have a significant nexus to a traditional 

navigable waters, an interstate water, or a territorial sea. In order to improve 

clarity, the final rule 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)(1) through (a)(6).

Montana Wool Growers Association (Doc. #5843.1)

17.2.86The Proposed Rule should provide clear, concise, and repeatable methodology for 

determining the expected level of natural pollutants within a region.

The Proposed Rule should clarify that no natural levels of pollutants will be considered in 

determining when waters from a region "significantly affect" a Section (a)(1) through 

(a)(3) water. 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

59

The Proposed Rule should not allow a single event to cause an entire watershed to 

become a "water of the United States." (p. 6)

Agency Response: Ambient water quality monitoring of rivers, lakes and 

estuaries is conducted primarily by the individual states. Similarly, water quality 

standards, including both water quality criteria and designated uses, are also set by 

the states and approved by EPA. 

Section III of the preamble and section II of the Technical Support Document 

describe the agencies’ significant nexus analysis, which is based on Supreme Court 

opinions and the science. Sections VII and VIII of the Technical Support Document 

describe the agencies’ conclusions regarding the significant nexus of tributaries and 

adjacent waters, respectively.

The agencies do not believe that the final rule establishes any criterion that could 

render an entire watershed to become a “water of the United States.”

Physicians for Social Responsibility (Doc. #8374)

17.2.87Healthy wetlands and streams provide many public health benefits to communities, 

including improving drinking water quality and preventing flooding. Wetlands serve as 

natural buffers, filtering out pollutants before they impact water sources and absorbing 

floodwaters before they hit land. As the climate changes and we begin to see more 

extreme weather events, wetlands can serve as an invaluable protection against flooding. 

Yet without CWA protections, there is often nothing stopping floods, sediment, sewage 

or toxic chemicals from threatening our health. (p. 2)

Agency Response: The agencies appreciate the commenter’s support. 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.

Energy Producing States Coalition (Doc. #11552)

17.2.88Of our many concerns with this lengthy and complex proposal is an extension of vast 

federal permitting authority on an agency-determined, case-by-case basis for traditionally 

defined navigable waters into waters with a nebulous “significant nexus” to isolated 

waters, ephemeral streams, prairie potholes, and a definition of “tributaries” that likely 

encompasses drainage ditches and irrigation from farming operations. The proposal also 

expands the federal regulatory reach into waters with a “confined surface or shallow 

subsurface hydrologic connection to such a jurisdictional water." As numerous state and 

local regulatory officials and public and private-sector stakeholders have pointed out in 

their comments and letters, Congress never intended for the CWA process to apply to the 

management of groundwater in states. Such an expansive regulatory reach described 

above would encompass most of the arid Western U.S. and the proposed rule also 

expands the definition of “Waters of the U.S.” to include “permafrost” – a move that 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

60

would potentially put 85 percent of the entire landmass of Alaska under a CWA 

permitting regime. (p. 1-2)

Agency Response: Section III of the preamble and section II of the Technical 

Support Document describe the agencies’ significant nexus analysis, which is based 

on Supreme Court opinions and the science. Sections VII and VIII of the Technical 

Support Document describe the agencies’ conclusions regarding the significant 

nexus of tributaries and adjacent waters, respectively, while section IX addresses 

case-specific significant nexus determinations.

Fewer waters are defined as “waters of the United States” under the final rule than 

under the existing regulations, in part because the rule puts important qualifiers on 

some existing categories such as tributaries. In fact, the agencies are specifically 

excluding more water features as non-jurisdictional (i.e. they are not “waters of the 

United States”) than in present regulations, including groundwater, most ditches 

that are not relocated tributaries or excavated in a tributary and artificially 

irrigated areas that would revert to dry land should application of water to that 

area cease. Section IV.I of the preamble discusses the exclusions in the final rule. 

Permafrost is not identified as a “water of the United States” in the final rule.

Urban Drainage and Flood Control District (Doc. #12263)

17.2.89The proposed rule's definition of tributaries would increase the number of features that 

are considered tributaries to traditional navigable waters, and thus by rule, are Waters of 

the U.S., causing agencies like UDFCD to spend more time and resources negotiating 

permits and less on improving the nation's streams. (p. 2)

Agency Response: In this final rule, the agencies are responding to requests from 

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

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

identifying waters protected under the CWA clearer, simpler, and faste r. 

Section I of the Technical Support Document discusses the historic scope of the 

existing regulatory definition of “waters of the United States.” Fewer waters are 

defined as “waters of the United States” under the final rule than under the existing 

regulations, in part because the rule puts important qualifiers on some existing 

categories such as tributaries. In fact, the agencies are specifically excluding more 

water features as non-jurisdictional (i.e. they are not “waters of the United States”) 

than in present regulations. Section IV.I of the preamble discusses the exclusions in 

the final rule.

The agencies revised and clarified the definition of “tributary” in the final rule to no 

longer include wetlands, lakes and ponds as tributaries. These features may still be 

waters of the United States under other provisions of the rule, but they are not 

tributaries.

Society of Wetland Scientists (Doc. #12846)

17.2.90Because water quality is degraded during and after flooding, SWS supports the need to 

protect wetlands to reduce flood risk, which will be increasingly important during future 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

61

climates with more frequent, more extreme streamflow events. Here are relevant sections 

of recent scientific publications. 

 Floods, like water quality, relate to the built environment. A study from Texas, 

which consistently has the nation’s greatest impacts of flooding, concerned 423 

flood events from 1997 to 2001 and identified impacts of several measures, 

including wetland alteration, impervious surfaces, and dams. Their results support 

the important role of naturally occurring wetlands in mitigating flood damage 

(Brody and Zahran 2008). 

 It is conventional wisdom that losing wetlands increases flood risk. However, it is 

novel to quantify cumulative impacts at a watershed scale: Ahmed (2014) 

estimated a 4% increase in the 100-year flood as a result losing non-provincially 

significant wetlands (6% of basin area; PSW are provincially significant wetlands 

recognized by Ontario)... Adding non-PSWs (combined total = 15% of basin 

area) and assuming similar hydrological functions regardless policy-related class, 

peak flood attenuation was estimated to improve 9-10%. Removal of non-PSWs 

will increase the value of the 1-day flow by up to 50%.

 “...federal permits issued to alter a naturally occurring wetland exacerbate 

flooding events in coastal watersheds along the Gulf of Mexico... importance of 

our findings for planners and policy makers interested in reducing the adverse 

impacts of coastal flooding is that flood events are regulated not solely by the 

effect of permit counts, but by the type of permit granted. First, as expected, IP 

[individual permits] significantly increase flooding because they signify 

development projects requiring large amounts of wetland (>0.5 acres) to be 

disrupted. These projects usually involve the addition of impervious surfaces... 

Decision makers should carefully monitor the number and location of IP granted 

within a watershed to ensure the hydrological system remains relatively intact... 

Second, while we expect large development projects and associated impervious 

surfaces to increase the rate of flooding, the even stronger positive effect of GP 

[general permits] is somewhat surprising. This result indicates that relative ly 

small-scale wetland alteration such as with the case of residential development 

have more serious ‘‘cumulative impacts’’ on flooding over time. GP may be 

indicative of sprawling development patterns where each individual project may 

not cause a severe impact, but the total sum of all small disruptions to a watershed 

unit results in loss of hydrological function and resulting increased flood events. 

This ‘death by a thousand cuts’ phenomenon should be a primary concern for 

environmental and hazard mitigation planners. Officials need to steer their focus 

away from site-based review and incremental decision making toward the 

watershed level where cumulative impacts are more easily detected. (Brody et al. 

2007a) 

 Wetland loss is the primary driver of increased flood risk. “Although the total 

amount of impervious surface in an area is often cited as the culprit for increased 

flooding and associated property damage, these may result more from exactly 

where these surfaces are, and how they affect the natural environment... by 

separating the variable measuring wetland development from the variable 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

62

measuring impervious surface, we eliminate from the latter from what may be its 

most important adverse hydrological impact: loss of wetlands. We noticed the 

same trends in related studies of floods at both the local jurisdiction scale and the 

watershed scale (Brody, Highfield, et al., 2007; Brody et al. 2008). (p. 5-6)

Agency Response: The agencies appreciate the commenter’s support. 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 scientific literature and the Science 

Report consistently document that the health of larger downstream waters is 

directly related to the aggregate health of waters located upstream, including waters 

such as wetlands that may not be hydrologically connected but function together to 

ameliorate the potential impacts of flooding and pollutant contamination from 

affecting downstream waters.

TriBasin Natural Resources District (Doc. #13564)

17.2.91The expansion of federal jurisdiction will also have a negative impact on the ability of 

TBNRD to provide the level of services necessary to manage water resources and wa terdependent impacts to local land-use productivity and public safety. Because the Agencies 

have tailed to engage small governmental jurisdictions, such as TBNRD, in an analysis of 

the impacts of the Proposed Rule. Simple life-saving programs such as mosquito control 

measures to control West Nile Virus will fall within the scope of activities requiring a 

CWA permit (p. 2)

Agency Response: During the consultation process, some participants expressed 

concern that the proposed changes may impose a resource burden on state and local 

governments. Some participants urged EPA to ensure that states are not unduly 

burdened by the regulatory revisions. The agencies have prepared a report 

summarizing their voluntary consultation and extensive outreach to State, local, and 

county governments, the results of this outreach, and how these results have 

informed the development of today’s rule. This report, Final Summary of the 

Discretionary Consultation and Outreach to State, Local, and County Governments 

for the Revised Definition of Waters of the United States is available in the docket 

for this rule.

Moore, S. (Doc. #13818)

17.2.92I support the proposed rule change as I understand it will reduce a lot of the unnecessary 

case by case analysis currently done to determine if wetlands and other intermittent water 

areas qualify. This will allow the EPA and other governing bodies to focus on the broader 

issues and more important topics such as shrinking aquifers, saltwater intrusion, and 

significant water pollution sources. I also think this will set right some of the 

inadequacies created by the Rapanos decision, which was quite selective in what terms 

were narrowly defined and which were ignored or defined incorrectly. Wetlands have 

both water quantity and water quality benefits in that they filter toxins and excess 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

63

nutrients out of the water, they provide both flood surge buffering and reservoirs in time 

of drought, and they also offer vital habitat for many animals and plant species. Point 

Source definitions do not include any reference to whether a discharge is constant or 

intermittent, and it is meant to refer to the discharge of pollutants not the source of a flow 

of water. If you are going to accept that "pollutants naturally wash downstream" even 

through a "conveyance" as an acceptable discharge of pollutants, then I do not see why 

intermittent water flow that has a significant hydrological connection and vital 

connection to downstream waters is not considered equally important and relevant. You 

cannot have your cake and eat it too. Dredge materials often do move, which is why 

stormwater regulation has entire sections devoted to Erosion and Sediment Control, so it 

is beyond credulous to say dredge material doesn't need to be considered because it is 

designed to stay in place. Sedimentation impairment is a major source of concern in 

many lakes, rivers, streams, etc. A 100- year floodplain means that an area has a 1 in 100 

(1%) chance EACH YEAR of a 100-year level flood. With the increasing strength and 

frequency of severe storms over the last 3-5 years, I am not sure these arbitrary 

floodplains are sufficient to protect property, and certainly should not be used as a reason 

to lessen areas we protect. Finally, the underlying reasoning in the Rapanos decision is a 

fundamental misunderstanding in how water moves throughout our environment. To 

consider surface water connections only, and ignore that surface waters almost always 

connect to groundwater and vice versa is like thinking rubbing poison on an open sore 

won't harm the blood inside your body. While this rule does not regulate groundwater, it 

does more to protect the waters that flow perennially (that would be constantly) or 

intermittently (that would be seasonally or for several months of the year) and thus 

impact our water aquifers and drinking water. Nowhere does this rule cover ephemeral 

waters (those that rarely and inconsistently run after severe precipitation only). This rule 

is necessary to clear up misunderstandings, focus our resources appropriately, and protect 

the resource that is a fundamental building block for life. (p. 1)

Agency Response: The agencies appreciate the commenter’s support. 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 imple menting 

the CWA over the past four decades.

Anonymous (Doc. #13841)

17.2.93One giant hole in the clean waters act is that it relies on cities and counties to spearhead 

enforcement. Small cities and counties such as mine (Gallatin County KY) do not have 

building departments to enforce state building codes let alone federal regulations. In fact 

stricter enforcement in larger cities and counties is driving development to smaller 

unregulated jurisdictions where the clean waters acts is ignored. (p. 1)

Agency Response: State, tribal and local governments have well-defined and 

longstanding working relationships with the Corps and EPA in implementing Clean 

Water Act programs. The final rule reflects the current state of the best available 

science and is guided by the need for clearer, more consistent and easily 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

64

implementable standards to govern administration of the Act. However, specific 

roles such as enforcement of CWA provisions is beyond the scope of this definitional 

rule. 

Menard County Underground Water District (Doc. #13885)

17.2.94 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)

Agency Response: 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. The agencies do not believe that the final rule will adversely affect water 

planning or agricultural production. In regard to the latter, the final rule excludes 

many water features common on agricultural lands and asserts for the first time in 

regulations that such features are not waters of the United States. See section IV.I

of the preamble and Topic 7 of this RTC for a discussion of the exclusions in the 

final rule. 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. For a further discussion of the CWA and state 

water rights, see the summary response for 1.1.2: Water Supply and Allocation.

Interlocking Concrete Pavement Institute (Doc. #13952.1)

17.2.95 We urge EPA and USACE to acknowledge that permeable pavements can meet 

technical requirements while taking an economically feasible path, and to the extent 

possible, discuss and regard PICP and all permeable pavements as a favored, 

recommended, and recognized safe harbor method for complying with the future 

construction impacts of the proposed rule.

ICPI is providing an attachment used to inform municipalities about the benefits and 

some technical aspects of PICP. We urge EPA, USACE and the regulated community to 

review these materials in advance of any discussion regarding technological and 

economic feasibility arguments and rebuttals, and further, to consider integrating 

permeable pavements and the responsiveness to WOTUS impacts into future designs, 

specifications, RFPs and other construction procurement instruments.

ICPI notes that WOTUS clearly suggest that expanded environmental requirements 

would be a logical consequence of the proposed rule. ICPI also recognizes the need for a 

vigorous construction economy. We offer technologies that can address these two 

seemingly mutually exclusive concerns, thereby helping to resolve divergent viewpoints 

and agendas. In addition, the adoption of PICP today may help forward-looking 

development entities to prepare for future regulatory developments beyond the instant 

debate over WOTUS. (p. 2)

Agency Response: The agencies recognize that cities have turned to green 

infrastructure, using existing natural features or creating new features that mimic 

natural hydrological processes that work to infiltrate or evapotranspirate 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

65

precipitation, to manage stormwater at its source and keep it out of the conveyance 

system. These engineered components of stormwater management systems can 

address both water quantity and quality concerns, as well as provide other benefits 

to communities. This rule is designed to avoid disincentives to this environmentally 

beneficial trend in stormwater management practices.

U. S. Chamber of Commerce et al. (Doc. #14115)

17.2.96 The proposed rule adds several new definitions that, although critical to understanding 

the true scope of the rule, are so vague as to allow virtually any interpretation of their 

limits. These definitions include “neighboring,” “riparian area,” “floodplain,” 

“tributary,” and “significant nexus.” These definitions work in conjunction with one 

another so that if an area channels water and contributes flow (directly or indirectly, in 

any amount) to downstream waters, it is a tributary. If the area does not contribute flow, 

but holds water enough (which may not be much) to be deemed a “wetland” or pond or 

other water feature, it may be considered jurisdictional due to shallow subsurface water 

connection to a water body, or because it lies in a floodplain or riparian area, or because 

it may have a significant nexus when combined with all similar features in the region. 

Thus, it will often be impossible for landowners and businesses to determine whether 

small features on their property—which may not even look like waters—are WOTUS 

under the revised definition. All that is certain is that most any occasionally wet feature 

could be deemed WOTUS. (p. 7) 

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 has expanded the section on waters that are not 

considered waters of the United States, including many features constructed in dry 

land. The final rule adds an exclusion for puddles. The proposed rule did not 

explicitly exclude puddles because the agencies have never considered puddles to 

meet the minimum standard for being a “water of the United States,” and it is an 

inexact term. A puddle is commonly considered a very small, shallow, and highly 

transitory pool of water that forms on pavement or uplands during or immediately 

after a rainstorm or similar precipitation event. However, numerous commenters 

asked that the agencies expressly exclude them in a rule. The final rule does so.

In response to comments, the agencies have revised and clarified several provisions 

and definitions in the final rule. The final rule includes specific definitions for 

“tributary” and “adjacent” waters. The definition of “neighboring” in the final rule 

has been changed to provide clearer lines on what is considered adjacent. The final 

rule no longer defines adjacency based only on the floodplain or riparian area but 

instead provides distance limits. See the preamble at Section IV.F and G for more 

discussion, as well as the Topics 3: Adjacent Waters and 8: Tributary 

Compendiums. The final rule also defines “significant nexus” and identifies specific 

functions to be assessed in a significant nexus evaluation. Shallow subsurface 

connection may be considered when making a significant nexus analysis for case -

specific waters. See sections III and IV.H of the preamble, sections II and IX of the 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

66

Technical Support Document, summary responses in Topic 5: Significant Nexus 

Compendium and individual responses in Topic 4: Other Waters Compendium, for 

further discussion.

17.2.97 The stormwater conveyance pipe may classified as a “tributary” under the new WOTUS 

definition. (p. 10)

Agency Response: The final rule includes an exclusion for stormwater control 

features constructed in dry land. Stormwater control features are designed to 

address runoff that occurs during and shortly after precipitation events; as a result, 

stormwater features that convey runoff are expected to only carry ephemeral flow. 

When these features convey, treat or store water from other sources, such as 

groundwater or discharges from industrial or domestic sewage sources or other 

non-authorized discharges, they would not qualify for the stormwater control 

feature exclusion. This exclusion does not change the agencies’ longstanding 

interpretation that "waters of the US" includes waters, such as channelized streams 

or piped streams, even where used as part of stormwater management systems. 

Thus, stormwater control features that have been built in or excavated from 

jurisdictional waters continue to be jurisdictional waters of the United States.

North Dakota Soybean Growers Association (Doc. #14121)

17.2.98 Maps developed by the EPA and the U.S. Geological Survey indicate that more than 8.1 

million miles of rivers and streams, contrasting the previous EPA’s Report to Congress 

of 3.5 million miles,1across the United States will be impacted by the revised WOTUS 

definitions.2 (p. 5)

Agency Response: : As a part of the process to evaluate the indirect costs and 

benefits associated with the proposed rule, the agencies assessed the estimated 

increase in new Clean Water Act permits that could reasonably be expected as a 

result of the proposed regulation. This analysis did not, and could not, quantify the 

potential change in the geographic scope of the CWA. 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 

 

1

EPA Office of Water, National Water Quality the Inventory: Report to Congress, EPA 841–R–08–001 (January 

2009). 

2

Press Release, House Committee on Science, Space & Technology, “Smith: Maps Show EPA Land Grab,” August

27, 2014.
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

67

maps but not for purposes of quantifying the extent of waters covered under CWA 

regulatory programs.

Georgia Chamber of Commerce (Doc. #14430)

17.2.99 Chamber members are convinced that with so many contentious, poorly defined 

elements included in this draft rule that will extend the reach of the CWA far into areas 

where it has never applied, that his will open the door to ongoing and costly litigation 

that will disrupt business operations, community development and safety. 

There is concern that there will be opportunity for vexatious litigation to impede 

legitimate business activities, halt development and road building projects that will add 

both time and additional cost burdens to businesses, utilities, counties and cities. 

Such concerns raise the imperative for EPA to ensure clarity of all areas of the CWA’s 

reach and its interpretation of all elements of the proposed rule. 

Chamber members predict that this is an area where EPA rule ambiguity will end up 

being fodder for the courts for years to come, a very time consuming and expensive 

outcome for Chamber members to endure. Vague federal rules have been used by 

various groups to litigate against industry for years, it is not an outcome the Chamber 

wishes to see perpetuated by this rulemaking proposal. (p. 15)

Agency Response: In response to comments, the agencies have made revisions to a 

number of provisions, definitions, and exclusions in the final rule to increase clarity 

about which waters are protected under 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, and includes a number of specific exclusions, 

some of which are excluded for the first time by rule. 

Although the EPA cannot preclude third parties from filing suit pursuant to the 

Clean Water Act’s citizen suit provisions, the EPA and the Corps plan to clearly 

articulate the concepts embodied in any final rule in order to provide maximum 

clarity to permit applicants, agencies, and the public. We believe that doing so will 

reduce, not increase, the possibility that these provisions may be misunderstood by 

permittees, third parties, or other stakeholders, thereby leading to less litigation. 

Such clarity will also aid courts in responding consistently to citizen suits. 

Landowners may request a jurisdictional determination (JD) from the Corps. The 

agencies believe that the clarity provided by the rule will make conducting 

determinations easier. A JD is a Corps’ determination that jurisdictional waters are 

either present or absent at a site, and can be used by the landowner if a CWA citizen 

suit is brought against the owner. While the JD would not be binding on the third 

party, we believe the Corps’ expert opinion, and the landowner’s reliance on the 

Corps’ expert opinion, would be important factors to which any Court hearing such 

a suit would give substantial weight.
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

68

Tennessee Mining Association (Doc. #14582)

17.2.100The definition of tributary causes substantial concern for the mining industry. For 

example, jurisdictional waters may require lateral buffering, permitting and costly 

compensatory mitigation. When all tributaries are considered jurisdictional, even all 

ephemeral streams, including Tennessee's wet weather conveyances, they become 

federalized and not only create additional jurisdictional waters, but also cause 

significant land use determinations that now are within the sole province of the states. 

Mining operations require regulatory certainty particularly for large surface coal mining 

operations and quarries. Identifying nearly all conveyances as jurisdictional may 

increase certainty, but hinders actual operations. For example, in Tennessee with the 

general permit for wet weather conveyances, excess material, such as rock and dirt, can 

be disposed of in wet weather conveyances. If, however, these wet weather 

conveyances are waters of the United States, as described in the Proposed Rule, the 

ability to use such features could be severely restricted if not entirely eliminated. This 

creates extra cost to mining interests with no appreciable environmental benefit. 

Likewise, some wet weather conveyances may require construction buffers. Tennessee 

prohibits surface coal mining through streams and prohibits removal of coal from the 

earth within 100 feet of a stream. A wet weather conveyance is by definition not a 

stream in Tennessee. (p. 4)

Agency Response: By clarifying the definition of “tributary,” the agencies intend 

to make the determination of jurisdictional waters independent of local 

nomenclature. Waters that flow in response to seasonal or individual precipitation 

events are jurisdictional tributaries if they contribute flow, either directly or 

indirectly, to a traditional navigable water, an interstate water, or the territorial sea, 

and they possess the physical characteristics of a bed, banks, and ordinary high 

water mark, which may be spatially discontinuous. A bed and banks and other 

indicators of ordinary high water mark are physical indicators of water flow and 

are only created by sufficient and regular intervals of flow. These physical 

indicators can be created by perennial, intermittent, and ephemeral flows. Where 

such features do not contribute flow downstream and/or do not have a bed, banks, 

and ordinary high water mark, they are not jurisdictional tributaries.

However, the final rule includes a number of new and revised exclusions in section 

(b), including exclusions for many ephemeral and intermittent ditches, stormwater 

control features constructed in dry land, and water-filled depressions created in dry 

land incidental to mining or construction activity. See section IV.I of the preamble 

and summary responses in Topic 6: Ditches Compendium and Topic 7: Features 

and Waters Not Jurisdictional Compendium for a discussion of these exclusions. 

With respect to the jurisdictional status of stormwater control features as waters of 

the U.S, please see response to comments Topic 7, summary response at 7.4.4.

Finally, the rule is a definitional rule and does not have regulatory requirements or 

change the regulatory requirements of CWA programs, including the NPDES 

program under Section 402 of the CWA. The final rule does not change the validity 

of existing NPDES permits.
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

69

17.2.101The definition of tributary causes substantial concern for the construction industry. For 

example, jurisdictional waters may require lateral buffering, permitting and costly 

compensatory mitigation. When all tributaries are considered jurisdictional, even all 

ephemeral streams, including Tennessee's wet weather conveyances, they become 

federalized, and not only create additional jurisdictional waters, but also cause 

significant land use determinations that now are within the sole province of the states. 

Construction projects require regulatory certainty particularly when undertaking large 

earth moving projects. Identifying nearly all conveyances as jurisdictional may increase 

certainty, but hinders actual operations. For example, in Tennessee with the general 

permit for wet weather conveyances, excess material, such as rock and dirt, can be 

disposed of in wet weather conveyances. If, however, these wet weather conveyances 

are waters of the United States as described in the Proposed Rule, the ability to use such 

features could be severely restricted if not entirely eliminated. This creates extra cost to 

the contractor with no appreciable environmental benefit as described in Paragraph III 

of these comments. Likewise, some wet weather conveyances may require construction 

buffers. Impacts to wet weather conveyances from moving equipment across a wet 

weather conveyance during construction will also become a substantial issue and create 

enforcement concerns. This results in notices of violations, agency orders, or even civil 

or criminal enforcement for what has been a lawful activity. (p. 17)

Agency Response: See agencies’ response to Tennessee Mining Association 

comment, above. Stormwater control features are designed to address runoff that 

occurs during and shortly after precipitation events; as a result, stormwater 

features that convey runoff are expected to only carry ephemeral flow. When these

features convey, treat or store water from other sources, such as groundwater or 

discharges from industrial or domestic sewage sources or other non-authorized 

discharges, they would not qualify for the stormwater control feature exclusion.

Anonymous (Doc. #14600)

17.2.102 I think that the proposed definition of waters of the United States, while expansive, 

creates a necessary bracket for federal regulatory power. In the wake of Solid Waste 

Agency of Northern Cook County v. U.S. Army Corps of Engineers in 2001 and 

Rapanos v. United States in 2006, it was unclear or difficult to determine which bodies 

of water constituted waters of the United States. Therefore, in order to avoid going to 

court every time someone pollutes or plans to build on possibly federal land, and having 

the decision made by the non-scientific body that is the Supreme Court, the EPA must 

clarify the language in the Clean Water Act. (p. 1)

Agency Response: The agencies agree that is necessary to define and clarify the 

scope of “waters of the United States” consistent with the Clean Water Act, 

Supreme Court precedent, and science. The final rule includes several changes from 

the proposed rule to provide additional clarity. These changes include identifying 

the specific functions to be assessed in a significant nexus evaluation, providing 

more exclusions as part of the rule text for the first time and clarifying the 

exclusions for ditches, and revising certain definitions such as “neighboring” and 

“tributary.” Along with a narrowing of jurisdiction, the final rule also significantly 

reduces the uncertainty and number of case-specific determinations that will 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

70

required, reducing state and federal workload associated with jurisdictional 

determinations. 

The agencies believe the rule will expedite the permit review process in the longterm by clarifying jurisdictional matters that have been time-consuming and 

cumbersome for field staff and the regulated community for certain waters in light 

of the 2001 and 2006 Supreme Court cases. The Corps’ Nationwide Permit 

program, which authorizes Clean Water Act Section 404 discharges that would have 

no more than minimal adverse impacts to aquatic resources, is available for 

activities that qualify. 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, to ensure that 

projects that offer significant social benefits can proceed with the necessary 

environmental safeguards while minimizing permitting delays.

Environmental Enforcement Council (Doc. #14608)

17.2.103As described in more detail in the attached comments, we are concerned that the 

proposed rule advances new concepts that are undefined and new definitions that need 

to be more clearly defined, thereby potentially undermining the agencies’ stated goals 

of greater consistency, clarity and certainty. We are also concerned that the many 

ambiguities in the proposal could undermine EPA’s Strategic Plan and “NextGen” 

compliance paradigm, both of which hinge on designing regulations that are clear and 

objective. Finally, we are concerned that the proposed rule could make the regulated 

community more susceptible to unwarranted and/or inconsistent enforcement, a risk that 

is exacerbated by the conflicting interpretations that can be drawn from the new 

concepts and new definitions in the proposal. (p.1)

Agency Response: The final rule includes several changes to provide the 

additional clarity requested. These changes include identifying the specific functions 

to be assessed in a significant nexus evaluation, providing more exclusions as part of 

the rule text for the first time and clarifying the exclusions for ditches, and revising 

certain definitions such as “neighboring” and “tributary.” 

Along with a narrowing of jurisdiction, the final rule also significantly reduces the 

number of case-specific determinations that will be required, thereby reducing 

uncertainty for landowners and reducing state and federal workload associated with 

jurisdictional determinations.

17.2.104These risks stem from the sweeping nature of the Proposal, new concepts and 

definitions that are undefined or not well defined, ambiguities and conflicting 

interpretations, all of which run counter to the stated goals of greater consistency, 

clarity and certainty. (...)

As a general matter, CEEC strongly supports the premise that improved environmental 

performance and results can be achieved through greater compliance with 

environmental regulatory requirements. At the same time, CEEC believes that 

compliance and enforcement should serve the broader mission of both Agencies –

protecting human health and the environment. To achieve this mission, the Agencies’ 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

71

regulatory programs and how they are administered must be consistent, clear and 

certain, so that the public and regulated community understand their rights and 

obligations. This is especially important in a definitional rule that serves as the bedrock 

of a major federal environmental statute, like the definition of “waters of the U.S.” 

under the Clean Water Act (“CWA”). Unless this definition is clear on its face, then 

compliance with the myriad regulatory programs that rely on it will become uncertain, 

increasing the risk of enforcement without any corresponding improvement in 

environmental performance. (p. 3

Agency Response: See agencies’ response to above Environmental Enforcement 

Council comment. 

17.2.105This particular rulemaking is intended to bring clarity to these outer limits of 

jurisdiction. However, CEEC respectfully submits that the Proposal fails to achieve the 

stated objective. (p. 

Agency Response: See agencies’ response to above first Environmental 

Enforcement Council comment, above. The final rule will clarify and simplify 

implementation of the CWA consistent with its purposes through clearer definitions 

and increased use of bright-line rules. The final rule is clearer on the outer limits of 

neighboring and case-specific waters. See the preamble sections IV.G and H and the 

Technical Support Document sections VIII and IX for a discussion. In addition, the 

agencies limited the tributaries that are “waters of the United States” to those that 

have both a bed and banks and another indicator of ordinary high water mark, and 

contribute flow to downstream (a)(1) through (3) waters, that are not otherwise 

excluded under section (b). 

17.2.106Given the many unresolved ambiguities in the Proposal, CEEC’s members will suffer 

greater risk of unwarranted and/or inconsistent agency enforcement and citizen 

lawsuits. These kinds of enforcement actions come with the threat of potentially 

enormous penalties. And even if the enforcement action is ultimately not wellsupported, the action will demand significant resources to defend and could adversely 

affect corporate reputation. (...) 

These risks are exacerbated by the fact that even if the Agencies adhere to a narrow 

interpretation of what is required for compliance, citizen groups may advance much 

broader interpretations, in effect using citizen lawsuits to drive their own agenda or 

desired policy outcomes. Indeed, recent practice shows that citizen groups are routinely 

using citizen lawsuits to advance policy and shape how agencies interpret and enforce 

their own rules (see, e.g., the citizen campaign in California over industrial stormwater 

permit compliance, which now totals well over 100 distinct citizen lawsuits, as well as 

the citizen campaign targeting seeps from coal ash impoundments under the CWA, 

even in the face of a major impending federal rule governing coal ash storage and 

disposal).

Citizen suits are by no means CEEC’s only concern. In the recent Sackett case, 3 EPA 

issued an administrative order threatening to fine a landowner up to $75,000 per day 

 

3

Sackett v. U.S. EPA, 132 S.Ct. 1367 (2012).
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

72

until the landowner restored wetlands on property that had been impacted by the 

construction of an ornamental pond. EPA pursued this enforcement action despite the 

parties’ dispute over whether the wetlands were subject to federal jurisdiction. After the 

landowner was denied pre-enforcement review – allowing a judge to determine whether 

the wetlands were jurisdictional – the case came before the Supreme Court, which 

reversed the government’s case in a decisive 9-0 decision. CEEC flags this case to 

highlight the technical and legal complexity often involved in making CWA 

jurisdictional determinations for geographic features that resemble dry land more than 

water. The Proposal would make even more dry land jurisdictional and would further 

confuse the line between wet and dry. Cases such as Sackett underscore why it is so 

exceedingly important for the Agencies to pursue a rulemaking that actually achieves 

their stated goal – greater consistency, clarity and certainty in determining which waters 

are jurisdictional. (p. 10)

Agency Response: See agencies’ response for first Environmental Enforcement 

Council comment, above. The Clean Water Act regulates discharges of pollutants 

and fill material into covered waters, and does not regulate dry land, land use or 

private property rights. While certain ephemeral waters may lack flowing water at 

a given point in time, the agencies believe that relying on observable physical 

characteristics, including bed and banks and ordinary high water mark, will allow 

jurisdictional tributaries to be consistently identified. Wetlands regulated as 

adjacent (a)(6) waters, or (a)(7) or (a)(8) waters must meet the three parameters of a 

wetland, as well as the requirements of the above referenced subparagraphs, to be 

considered jurisdictional. The final rule also includes a number of exclusions for 

waters constructed in dry land, and ephemeral features such as erosional features 

and most ephemeral ditches. 

Although the EPA cannot preclude third parties from filing suit pursuant to the 

Clean Water Act’s citizen suit provisions, the EPA and the Corps plan to clearly 

articulate the concepts embodied in any final rule in order to provide maximum 

clarity to permit applicants, agencies, and the public. We believe that doing so will 

reduce, not increase, the possibility that these provisions may be misunderstood by 

permittees, third parties, or other stakeholders, thereby leading to less litigation. 

Such clarity will also aid courts in responding consistently to citizen suits. 

Landowners may request a jurisdictional determination (JD) from the Corps. The 

agencies believe that the clarity provided by the rule will make conducting 

determinations easier. A JD is a Corps’ determination that jurisdictional waters are 

either present or absent at a site, and can be used by the landowner if a CWA citizen 

suit is brought against the owner. While the JD would not be binding on the third 

party, we believe the Corps’ expert opinion, and the landowner’s reliance on the 

Corps’ expert opinion, would be important factors to which any Court hearing such 

a suit would give substantial weight.

17.2.107 In the face of such widespread and wide-ranging interest, CEEC respectfully submits 

that its perspective and comments are unique in their focus on the enforcement-related 

risks associated with the Proposal. Above all else, we are concerned that the Proposal 

could undermine EPA’s Strategic Plan and “NextGen” compliance paradigm, both of 

which hinge on designing regulations that are clear and objective. We urge the Agencies 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

73

not to proceed with any final action until they have meaningfully addressed the 

concerns raised in these comments. (p.11)

Agency Response: See agencies’ responses for previous Environmental 

Enforcement Council comments, above. 

Senator John Kefalas, Colorado et al. (Doc. #15031)

17.2.108As a headwater state, it's critical that we ensure our rivers are protected. Colorado is 

home to four of our country's major river basin systems, which are party to nine 

interstate river compacts, one interstate agreement, and two equitable apportionment 

decrees for rivers. The Colorado River Basin is a primary source of water for drinking, 

recreational activity, agriculture, and industrial uses for seven states - providing the 

drinking water for over 30 million Americans. Most of Colorado' s nearly 100,000 miles 

of streams are tributary to one of these rivers. Even minor impacts to these tributary 

systems can significantly affect water across the West. In order for the Act to truly 

protect our river s and waterways, it must protect our headwaters. Protect water at its 

most vital point - the source. (p. 2)

Agency Response: The agencies agree. This final rule interprets the CWA to 

cover those waters that require protection in order to restore and mainta in 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 Clean Water Rule will clarify that the Clean Water Act protects 

certain streams and wetlands. Protection for about 60 percent of the nation’s 

streams and millions of acres of wetlands has been confusing and complex as the 

result of Supreme Court decisions in 2001 and 2006. For nearly a decade, EPA and 

the Corps have received numerous requests for a rulemaking to provide clarity on 

protections under the Clean Water Act from members of Congress, state and local 

officials, industry, agriculture, environmental groups, scientists, and the public. The 

EPA and U.S. Army Corps of Engineers 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.

The health of rivers, lakes, bays, and coastal waters depends on the streams and 

wetlands where they begin. Streams and wetlands provide many benefits to 

communities – they trap floodwaters, recharge groundwater supplies, remove 

pollution, and provide habitat for fish and wildlife. They are also economic drivers 

because of their role in fishing, hunting, agriculture, recreation, energy, and 

manufacturing. About 60 percent of stream miles in the U.S. only flow seasonally or 

after rain, but have a considerable impact on the downstream waters. And 

approximately 117 million people – one in three Americans – get drinking water 

from public systems that rely in part on these streams. These are important 

waterways for which EPA and the Army Corps is clarifying protection.
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

74

American Foundry Society (Doc. #15148)

17.2.109Despite the claim of EPA and the Corps that the proposed rule clarifies an existing 

regulatory program, nothing could be further from the truth. The proposed rule expands 

the definition of “tributary” to cover anything that is capable of contributing any 

amount of flow to “downstream” locations that eventually connect to larger water 

bodies. The expansion of the types of waters, drainage features, and other areas that will 

fall under the definition of “tributary” will lead to confusion as to whether or not low 

spots and drainage swales in areas at or near a facility are jurisdictional under the 

proposed rule. Accordingly, to be safe and avoid potential liability under the CWA, 

metalcasters may need a federal water permit to conduct most routine maintenance or 

process activities that are a vital part of its operations.

In defining a tributary as a drainage feature having a bed, bank and an ordinary high 

water mark (OHWM), the agencies want the public to believe that the assertion of 

CWA authority over “tributaries” is appropriate. This assertion fails to recognize the 

unnecessary inclusion of numerous other land features that fall within the definition of 

“tributary,” such as those areas with drainage features that do not even resemble any 

stream, brook or creek. Instead, the agencies advance new jurisdictional authority by 

introducing ambiguity and vague concepts of connectivity. 

The agencies justify this effort to broaden the boundaries of what the agencies consider 

a tributary because in “some regions of the country where there is a very low gradient, 

the banks of a tributary may be very low or may even disappear at times.” 79 Fed. Reg. 

at 22202. This appears to be a thinly veiled justification to protect human health and the 

environment, without first demonstrating any harm that must be eliminated or 

prevented. 

This uncertainty and potential liability is further aggravated by the EPA and the Corps 

determination that “[a] water that otherwise qualifies as a tributary under the proposed 

definition does not lose its status as a tributary if, for any length, there are one or more 

man-made breaks (such as bridges, culverts, pipes, or dams), or one or more natural 

breaks (such as debris piles, boulder fields, or a stream segment that flows 

underground) so long as a bed and banks and an ordinary high water mark can be 

identified upstream of the break.” How far would a landowner have to look “upstream” 

to insure he or she is not liable for routine activities in an area that may lack a bed, 

bank, or OHWM, yet is still considered a jurisdictional water?

In many intermittent and ephemeral tributaries, including dry-land systems in the arid 

and semi-arid west, OHWM indicators can be discontinuous within an individual 

tributary due to the variability in hydrologic and climatic influences. 79 Fed. Reg. at 

22202. Furthermore, specific areas of arid land drainage (e.g., alluvial fans) experience 

random channel breaks or avulsions in heavy precipitation events, the presence of an 

upstream channel (i.e., at the head of the fan) could then render the entire region an 

ephemeral streambed subject to regulation. Accordingly, how does a landowner gauge 

liability for CWA violations of $37,500 per day per occurrence and the risk of a citizen 

law suit when the discernible features of a tributary may not exist in a specific location? 

It is difficult to understand how the agencies consider it logical that the proposed rule 

provides clarity and certainty for industrial operations. (p. 4-6)
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

75

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. 

By clarifying the definition of “tributary,” the agencies intend to make the 

determination of jurisdictional waters independent of local nomenclature, such as 

“dry wash” and “arroyo.” Waters that flow in response to seasonal or individual 

precipitation events are jurisdictional tributaries if they contribute flow, either 

directly or indirectly, to a traditional navigable water, an interstate water, or the 

territorial sea, and they possess the physical characteristics of a bed, banks, and 

ordinary high water mark, which may be spatially discontinuous. A bed and banks 

and other indicators of ordinary high water mark are physical indicators of water 

flow and are only created by sufficient and regular intervals of flow. These physical 

indicators can be created by perennial, intermittent, and ephemeral flows. Where 

such features do not contribute flow downstream and/or do not have a bed, banks, 

and ordinary high water mark, they are not jurisdictional tributaries. With respect 

to natural and constructed breaks in the ordinary high water mark of a tributary, 

see summary response 8.3 in the Tributaries Compendium. With respect to the 

significant nexus determination for tributaries as defined, see the Technical Support 

Document at section VII.B.

A number of waters are excluded in section (b) of the rule that may apply to 

constructed waters on or near facilities, including exclusions for many ephemeral 

and intermittent ditches, and waters constructed in dry land such as stormwater 

control features, waste treatment systems designed to meet the requirements of the 

Clean Water Act, and water-filled depressions created in dry land incidental to 

mining or construction activity, among others. See Topic 6: Ditches Compendium 

and Topic 7: Features and Waters Not Jurisdictional Compendium for more 

information about exclusions. 

Pennsylvania Municipal Authorities Association (Doc. #15374)

17.2.110PMAA is concerned with the ambiguity of definitions used in the document and the 

extent to which they apply, or not, or how they may be interpreted by federal and state 

regulators or the courts. As an example, the definitions of tributary, neighboring, in the 

region, and adjacent need to be better defined for practical application. (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 definition of “neighboring” in the final rule has been changed to provide clearer 

lines on what is considered adjacent. The final rule no longer defines adjacency 

based only on the floodplain or riparian area but instead provide distance limits. 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

76

See section IV.G of the preamble and summary responses in Topic 3: Adjacent 

Waters Compendium for further discussion of adjacency.

By clarifying the definition of “tributary,” the agencies intend to make the 

determination of jurisdictional waters independent of local nomenclature, such as 

“dry wash” and “arroyo.” Waters that flow in response to seasonal or individual 

precipitation events are jurisdictional tributaries if they contribute flow, either

directly or indirectly, to a traditional navigable water, an interstate water, or the 

territorial sea, and they possess the physical characteristics of a bed, banks, and 

ordinary high water mark, which may be spatially discontinuous. A bed and banks 

and other indicators of ordinary high water mark are physical indicators of water 

flow and are only created by sufficient and regular intervals of flow. These physical 

indicators can be created by perennial, intermittent, and ephemeral flows. Where 

such features do not contribute flow downstream and/or do not have a bed, banks, 

and ordinary high water mark, they are not jurisdictional tributaries. See section 

IV.F of the preamble and summary responses in Topic 8: Tributaries Compendium 

for further discussion of the definition and physical features of tributaries.

The final rule includes a definition of “significant nexus” which explains that “in the 

region” for the purposes of this rule means the watershed that drains to the nearest 

water identified in paragraphs (a)(1) through (3) of the rule.

17.2.111A growing number of stormwater management authorities will need more precise 

direction in their efforts to comply with conditions that a “narrative” NPDES permit 

might contain. Those permits could conceivably be impacted by the use or application 

of definitions in the proposed rulemaking. (p. 1)

Agency Response: The final rule does not establish any regulatory requirements, 

and questions about implementation of the NPDES program are beyond the scope of 

the rulemaking. Instead, 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. However, the agencies recognize that 

programs established by the CWA, such as the section 402 National Pollution 

Discharge Elimination System (NPDES) permit program, do rely on the definition 

of “waters of the United States.” See summary response 12.3 in the Implementation 

Compendium for a discussion of NPDES implementation. 

The final rule also expressly excludes stormwater control features created in dry 

land and certain wastewater recycling structures created in dry land. Stormwater 

control features are designed to address runoff that occurs during and shortly after 

precipitation events; as a result, stormwater features that convey runoff are 

expected to only carry ephemeral flow. When these features convey, treat or store 

water from other sources, such as groundwater or discharges from industrial or 

domestic sewage sources or other non-authorized discharges, they would not qualify 

for the stormwater control feature exclusion. With respect to the jurisdictional 

status of stormwater control features as waters of the U.S, please see response to 

comments Topic 7, summary response at 7.4.4.
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

77

Permian Basin Petroleum Association (Doc. #15378)

17.2.112PBPA believes that the proposed revisions to the definition of waters of the United 

States do not recognize or consider the realities of hydrological conditions in the arid 

western part of the country; and disproportionately burdens the oil and gas industry with 

significant environmental compliance costs that do not provide a commensurate return 

in the form of environmental protection.

PBPA disagrees with EPA assertions that ephemeral streams necessarily have a 

chemical, physical, or biological nexus with downstream waters. PBPA is concerned 

that many features in the arid west that may be potentially defined as ephemeral stream 

under the proposed rule-making are more correctly classified as erosional gullies, and

thus would be excluded from jurisdiction. PBPA suggests the distinction between these 

two classes of features is particularly critical and difficult in the arid west, and has the 

potential to create significant negative and expensive litigious contention over 

determinations of jurisdiction or non-jurisdiction that would not provide a 

commensurate return in the form of actual environmental protection. 

PBPA is further concerned that the proposal to make determinations on a case-by-case 

basis introduces the probable need for a new and expensive review process, that 

associated determinations would be difficult, time-consuming, and expensive to 

perform, and that resulting determinations would not provide a commensurate return in 

the form of actual environmental protection. (p. 2)

Agency Response: Section I of the Technical Support Document discusses the 

historic scope of the existing regulatory definition of “waters of the United States.” 

Fewer waters are defined as “waters of the United States” under the final rule than 

under the existing regulations, in part because the rule puts important qualifiers on 

some existing categories such as tributaries. In fact, the agencies are specifically 

excluding more water features as non-jurisdictional (i.e. they are not “waters of the 

United States”) than in present regulations. The 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. In this final rule, the agencies are responding to those requests from 

across the country to make the process of identifying waters protected under the 

CWA easier to understand, more predictable, and more consistent with the law and 

peer-reviewed science.

The agencies believe that by defining “tributary” for the first time and including the 

requirements for an ordinary high water mark and bed and bank, the agencies have 

identified tributaries as a class of waters which are similarly situated and where 

they contribute flow have a significant nexus to downstream (a)(1) through (a)(3) 

waters. The rule includes ephemeral streams that meet the definition of tributary as 

“waters of the United States” because the agencies determined that such streams 

provide important functions for downstream waters, and in combination with other 

covered tributaries in a watershed significantly affect the chemical, physical, and 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

78

biological integrity of traditional navigable waters, interstate waters, and the 

territorial seas. Where ephemeral features do not meet the definition of tributary, 

there are new exclusions for ephemeral ditches in (b)(3) A) of the rule and erosional 

features in (b)(4)(F), which are not jurisdictional. Please see sections III and IV.F of 

the preamble to the final rule, as well as the Tributary Compendium, for discussions 

on the definition of tributaries, their significant nexus to downstream (a)(1) through 

(3) waters, and the relevance of flow regime. See section IV.I and the Features and 

Waters Not Jurisdictional Compendium for discussion of the exclusions.

See summary response for section 9.1 in the response to comments for Topic 9: 

Scientific Evidence Supporting the Rule. The final Science Report has an entire 

section devoted to Biological Connections in the Case Study on Southwestern 

Intermittent and Ephemeral Streams, in section B.5.5.3. In addition, see the final 

Science Report page 3-37 for references to downstream transport of pathogens in 

ephemeral tributaries, page 3-38 for export of terrestrial invertebrates from 

ephemeral streams following channel rewetting, and page 3-39 for references that 

dry stream channels can facilitate the dispersal of aquatic insects by being dispersal 

corridors for terrestrial adult forms. There are many western streams that have

intermittent or perennial headwater reaches that are separated from downstream 

perennial waters by stretches of ephemeral channels. 

Overall, the final rule provides greater clarity regarding what waters are subject to 

CWA jurisdiction, and reduces the need for permitting authorities to make 

jurisdictional determinations on a case-specific basis. The rule provides for casespecific determinations under more narrowly targeted circumstances based on the 

agencies’ assessment of the importance of certain specified waters to the chemical, 

physical, and biological integrity of traditional navigable waters, interstate waters, 

and the territorial seas. See preamble section IV.H and Technical Support 

Document section IX for more information about case-specific significant nexus 

determinations.

National Sustainable Agriculture Coalition (Doc. #15403)

17.2.113Stakeholder Engagement. The agencies have come under fire throughout the 

rulemaking process for their communication with stakeholders. Some have argued that 

the EPA has been defensive or noncommittal when responding to stakeholder concerns, 

or that the Corps has been largely absent from efforts to reach out to the regulated 

community. While we agree that more can be done to engage stakeholders, we 

commend the agencies for some of their efforts to address concerns among those in the 

agricultural community. Administrator McCarthy’s visit to Missouri is a good example. 

It showed that the EPA is committed to getting out of Washington and understanding 

how the rule will impact farmers on the ground. A primary complaint throughout the 

agricultural community is that the EPA does not recognize the impact regulations have 

on farming families in rural America. More visits by high-level EPA administrators like 

McCarthy’s trip to Missouri would be a step toward building a stronger, more 

productive rapport between the agency and farmers. Furthermore, the agencies could 

jumpstart their coordination with NRCS by hosting regional events bringing together 

regional EPA, Corps, and NRCS representatives to interact with stakeholders.
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

79

Additionally, the EPA’s WOTUS Question & Answer document, issued in September 

2014 in response to key concerns made apparent during the public comment period, is 

helpful in that it provides clear answers to stakeholder concerns. We urge the agency to 

continue releasing documents and additional information on the proposed rule and its 

implementation. Critics of the WOTUS rule have argued that the agency has been 

unable to verify which waters would be jurisdictional when asked. We recognize that 

speaking in hypotheticals around a regulation is challenging, but complaints that the 

agency is unclear on the scope of its own rule could be addressed by releasing in-depth 

case studies or examples of what would constitute a water of the United States under 

the proposed rule.

Finally, the agencies should work with farmer and community-based organizations at 

the regional, state, and local levels as part of their outreach efforts. Community-based 

organizations, especially farmer-based organizations or associations with personal 

relationships to farmers, can provide a valuable, rational voice to this issue. NSAC is a 

leader in the sustainable agriculture movement, together with our member groups 

located throughout the country. We would gladly help facilitate connections between 

the agencies and regional and local sustainable agricultural interests in any way 

possible. 

Recommendation: Continue to promote stakeholder engagement through visits to rural 

farms, publication of case studies, and work with regional, state, and local-level 

community-based organizations. (p. 10)

Agency Response: 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.

EPA and the Corps have used the feedback we received from public outreach efforts 

as the source of early guidance and recommendations for refining the proposed rule. 

Specifically, stakeholder input received during public outreach events in 

combination with the written comments received during the public comment period 

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

goal of providing increased clarity for regulators, stakeholders, and the regulated 

public to assist them in identifying waters as “waters of the United States.”

17.2.114Helping Beginning Farmers Navigate the Rule. The agencies have an opportunity to 

improve stakeholder engagement and potentially build support for the rule by increasing 

outreach to beginning farmers. A targeted outreach effort by the EPA and the Corps to 

beginning farmers and ranchers, including a guide to the rule targeted toward beginning 

farmers that lays out background information and the impacts of the rule, would provide 

a valuable resource. NSAC is happy to offer assistance on this issue.

Recommendation: Target outreach efforts to address concerns and deliver accurate 

information to beginning farmers. (p. 10)

Agency Response: This rule reflects significant consultation with many 

stakeholders. The EPA held over 400 meetings with interested stakeholders, 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

80

including representatives from states, tribes, counties, industry, agriculture, 

environmental and conservation groups, and others during the public comment 

period.

EPA and the Corps have used the feedback we received from public outreach effo rts 

as the source of early guidance and recommendations for refining the proposed rule. 

Specifically, stakeholder input received during public outreach events in 

combination with the written comments received during the public comment period 

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

goal of providing increased clarity for regulators, stakeholders, and the regulated 

public to assist them in identifying waters as “waters of the United States.”

Association of Texas Soil and Water Conservation Districts (Doc. #15475)

17.2.115Our members have attended multiple meeting with EPA to answer questions on the 

proposed rule and the largest concern is the uncertainty surrounding its implementation. 

EPA continues to clarify the proposed rules and each meeting holds a different answer 

than the meeting before. How can we proceed when you do not have a clear path 

forward? Our farmers and ranchers cannot operate under that level of uncertainty and 

should not be expected to. (...)

As conservation leaders in Texas we recognize the need to care for our natural 

resources but not through a heavy-handed top down approach. This is nothing more 

than an effort to expand the jurisdiction of EPA and control farming and ranching 

activities on private property. If EPA is truly interested in water quality they would 

look for ways to work with landowners, not opportunities to regulate and fine. (p. 1)

Agency Response: 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. The agencies recognize of the vital role of farmers in providing the nation 

with food and fiber and are sensitive to their concerns. The final rule reflects the 

intent of the agencies to minimize potential regulatory burdens on the nation’s 

agriculture community, and recognizes the work of farmers and landowners to 

protect and conserve natural resources and water quality on agricultural lands. The 

rule reflects this by clarifying the waters subject to the activities Congress exempted 

under CWA Section 404(f)(1) are not jurisdictional by rule as “adjacent”. Statutory 

exemptions under 404(f)(1) apply to certain activities conducted in waters of the 

U.S., including activities related to normal farming, ranching, and silviculture, and 

these exemptions are unchanged by the rule. These activities are exempt from 

needing a 404 permit if they are part of an ongoing agricultural practice. For a 

general discussion of activities related to normal, ongoing farming, silviculture and 

ranching, see summary response 14.2.2. 

Finally, in response to comments, the agencies have made revisions to a number of 

provisions, definitions, and exclusions in the final rule to increase clarity about 

which waters are protected under the CWA. For example, the final rule in section 

(b) has expanded the waters and features that are not considered “waters of the 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

81

United States” including exclusions for many ditches, ponds, and other features 

commonly located on farmland.

Wisconsin Farm Bureau Federation (Doc. #16166)

17.2.116Likewise, the expanded definition of “tributary” leaves farmers with questions on 

commonly accepted farming practices on any area of a field that contains a tributary. 

Will they be able to plant treated seeds? Plow the soil? Apply manure or other 

fertilizers? Apply pesticides, herbicides or fungicides? Will they be granted a CWA 

permit to do any of these activities if their farm field does in fact contain a small 

“tributary”? How long will approval of this permit take? These questions are all left 

unaddressed and unknown under the proposed rule as well as the additional interpretive 

rule. (p. 2)

Agency Response: The agencies recognize of the vital role of farmers in providing 

the nation with food and fiber and are sensitive to their concerns. The final rule 

reflects the intent of the agencies to minimize potential regulatory burdens on the 

nation’s agriculture community, and recognizes the work of farmers and 

landowners to protect and conserve natural resources and water quality on 

agricultural lands. The rule reflects this by clarifying the waters subject to the 

activities Congress exempted under CWA Section 404(f)(1) are not jurisdictional by 

rule as “adjacent”. Ephemeral tributaries are jurisdictional under the final rule; 

however, a number of regular farming and ranching activities are exempt from 

needing a permit under CWA Section 404(f)(1), if they are part of an ongoing 

agricultural practice. These statutory exemptions under 404(f)(1) are not modified 

or impacted in any way by the rule. Landowners, including farmers, may apply for 

a 404 permit with their local U.S. Army Corps of Engineers district office for 

authorization of any discharges or activities in waters of the U.S. that are not 

covered by a statutory exemption. The agencies have also withdrawn the 

Interpretive Rule. See summary response 14.2. For a general discussion of activities 

related to normal, ongoing farming, silviculture and ranching, see summary 

response 14.2.2. 

The rule would not change existing CWA permitting requirements regarding the 

application of pesticides or fertilizer on farm fields. A NPDES pesticides general 

permit is required only when there are discharges of pesticides into waters of the 

United States. The CWA provides NPDES permitting exemptions for runoff from 

agricultural fields and ditches. Discharges from the application of pesticides, which 

includes applications of herbicides, into irrigation ditches, canals, and other 

waterbodies that are themselves Waters of the United States, are not exempt as 

irrigation return flows or agricultural stormwater, and do require NPDES permit 

coverage. Some irrigation systems may not be Waters of the United States and thus 

discharges to those waters would not require NPDES permit coverage. Please see 

the responses to comments on the application of the pesticides general permit (PGP) 

in the Implementation Compendium, Topic 12.
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

82

Anonymous (Doc. #16217)

17.2.117We have enough land use laws on the books. By giving EPA an open door policy 

regarding all waters will negatively impact all of rural America. The US government 

along with state and local laws and regulations have property rights striped away from 

land owners the way laws are interpreted. There has been extensive case law in regards 

to navigable waters. Kaiser Aetna v. United States, 444 U.S. 164, 100 S. Ct. 383, 62 L. 

Ed. 2d 332, gives specific rules to test the case and this one doesn’t hold water. EPA 

definition will be struck down in a court of law anyways. Save everyone some time and 

money and leave us land owners alone. If you want your cheep reliable food that has 

been here for the last 75 years leave us alone. (p. 1)

Agency Response: The Clean Water Act regulates discharges of pollutants and fill 

material into covered waters, and does not regulate dry land, land use or private 

property rights. 

Kentucky Soybean Association (Doc. #16345)

17.2.118EPAs use of the term ephemeral to define tributaries is problematic. Jurisdiction should 

not be a categorical determination using ambiguous classifications like perennial, 

intermittent and ephemeral. A site-specific significant nexus test would be somewhat 

preferable to categorical determinations, but the Proposed Rules classification of waters 

meeting the significant nexus standard is also unclear. (p. 2)

Agency Response: The science has advanced considerably in recent years and the 

comprehensive report entitled “Connectivity of Streams and Wetlands to 

Downstream Waters: A Review and Synthesis of the Scientific Evidence” 

synthesizes the peer-reviewed science which support the connection of tributary 

streams to the chemical, physical, and biological integrity of downstream waters. 

The agencies believe that by defining “tributary” for the first time and including the 

requirements for an ordinary high water mark and bed and bank, the agencies have 

identified tributaries as a class of waters which are similarly situated and where 

they contribute flow have a significant nexus to downstream (a)(1) through (a)(3) 

waters. The rule includes ephemeral streams that meet the definition of tributary as 

“waters of the United States” because the agencies determined that such streams 

provide important functions for downstream waters, and in combination with other 

covered tributaries in a watershed significantly affect the chemical, physical, and 

biological integrity of traditional navigable waters, interstate waters, and the 

territorial seas. However, there are new exclusions for ephemeral ditches in 

(b)(3)(A) of the final rule and erosional features in (b)(4)(F), which are not 

jurisdictional. Please see sections III and IV.F of the preamble to the final rule, as 

well as the Tributary Compendium, for discussions on the definition of tributaries, 

their significant nexus to downstream (a)(1) through (3) waters, and the relevance of 

flow regime. See section IV.I and the Features and Waters Not Jurisdictional 

Compendium for discussion of the exclusions.

17.2.119There is concern about how the agency will actually distinguish between erosional 

features that are excluded and tributaries that will be jurisdictional. Using a bed, bank 

and ordinary high water mark standard for determining jurisdiction potentially opens up 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

83

every farm field to permitting. If this standard is not significantly revised, we fear that 

most fields will suddenly contain jurisdictional waters, and common practices like 

fertilizer application and pest management will require a Clean Water Act permit. (p. 2)

Agency Response: Ephemeral erosional features that are neither tributaries or 

excluded ditches, such as gullies, rills, and non-wetland swales, do not have the 

physical features of tributaries, including bed and banks and ordinary high water 

mark, and are specifically excluded from waters of the U.S. under paragraph 

(b)(4)(F). The preamble makes it clear that gullies, rills, and non-wetland swales can 

be important conduits for moving water between jurisdictional waters. However, 

they are not jurisdictional waters themselves. Further discussion of the exclusion for 

erosional features is found in the summary response 7.3.7 within the Features and 

Waters Not Jurisdictional Compendium. In addition, the summary response for 

Section 8.4 in the Tributaries Compendium, discusses distinguishing tributaries 

from non-jurisdictional erosional features. 

It should be noted that some ephemeral streams are colloquially called “gullies” or 

the like even when they exhibit a bed and banks and an ordinary high water mark; 

regardless of the name they are given locally, waters that meet the definition of 

tributary are not excluded erosional features. While the proposed rule specifically 

identified gullies and rills, the agencies intended that all erosional features would be 

excluded. The final rule makes this clear. 

Burlsworth, J. (Doc. #16431)

17.2.120Many of the terms used in the proposed rule are ambiguous. The proposed rule 

mentions adjacent waters, riparian areas, tributary, flood plains, and uplands, but these 

terms aren’t adequately defined. Our public infrastructure system for ditches -

stormwater, roadside, or flood - can run for thousands of miles. How can a resident, or 

even a local elected official, say or prove that their runoff ditch does not contribute to 

flow? What if a ditch is near waters of the U.S.? Can it be exempted? It seems that this 

will create a crisis situation in operational procedures. The uncertainty of how this will 

specifically impact residents, businesses, and government has us very concerned about 

federal overreach and control. (p. 1)

Agency Response: As discussed in the preamble to the final rule and summary 

responses in Topic 6: Ditches Compendium, the agencies do not intend to regulate 

all ditches. The agencies modified the proposed ditch exclusion and the rule 

includes new ditch exclusions in section (b)(3) that provide greater clarity and 

consistency. Reference the summary responses within the Ditches Compendium for 

a full discussion on the treatment of ditches in the final rule, including summary 

response 6.2 discussing excluded ditches.

The final rule does includes definitions for “tributary” and “adjacent” waters. The 

definition of “neighboring” in the final rule has been changed to provide clearer 

lines on what is considered adjacent. The final rule no longer defines adjacency 

based only on the floodplain or riparian area but instead provides distance limits. 

See the preamble at Section IV.G and Topic 3: Adjacent Waters Compendium for 

more discussion. In addition, the agencies recognized that the term “upland” in the 
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84

rule created concern, because “upland” itself was not explicitly defined. In order to 

increase clarity, the term “upland” has been removed from rule language.

City of Riverside Public Utilities (Doc. #17052)

17.2.121Under the proposed rule, the City of Riverside would be subject to all the permitting 

requirements in the CWA including needing to obtain a section 404 dredge and fill 

permit when, for example maintenance work is conducted on our canal. The City of 

Riverside recommends water conveyance systems be excluded from the definition of 

tributary. (p. 2)

Agency Response: The agencies have included an exclusion that applies to water 

distributary systems. The agencies have not considered these water distributary 

systems jurisdictional where they do not have surface connections back into, and 

contribute flow to, “waters of the United States.” In contrast, the agencies have 

consistently regulated aqueducts and canals as “waters of the United States” where 

they serve as tributaries, removing water from one part of the tributary network 

and moving it to another. The agencies have not in practice asserted jurisdiction 

over these types of features when created in dry land. These features often connect 

or carry flow to other water recycling structures, for example a channel or canal 

that carries water to a percolation pond. The exclusion in paragraph (b)(7) codifies 

long-standing agency practice and encourages water management practices that the 

Agencies agree are important and beneficial. In addition, maintenance of irrigation 

and drainage ditches is exempt from 404 permitting requirements under section 

404(f)(1)(C) of the CWA. This and other statutory exemptions of the CWA are not 

changed in any way by the rule. 

Mark R. Warner, United States Senator, Constituent Comment - Charles Cooper (Doc. #19311)

17.2.122The citizens of Virginia and the USA are "fed up" with Obama’s communistic takeover 

of our rights and freedom. Now we hear the latest that he wants to have EPA take over 

our rivers and streams. Come on-- enough is enough!!! If this ever makes the floor of 

the Senate, we are trusting you to say NO!' Obama knows nothing about the economy 

or health care. So what makes him think he knows anything about the environment?? So 

far most everything Obama has done has caused greater restrictions on our economy, 

our health care and now he wants to take over our water!! No way please!' (p. 2)

Agency Response: 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 the preamble to the final rule, section I.B for an explanation of the legal 

authority under which the final rule is issued. 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.
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

85

Bayou Concrete (Doc. #19321)

17.2.123 In order to have an effective rule, everyone must understand how to comply with it. The 

proposed rule's vague and confusing definitions make it nearly impossible for ready 

mixed concrete producers to determine what they will need to do to meet federal 

requirements for doing every day, routine tasks around their facility and on a 

construction site. Furthermore, Bayou Concrete LLC already has to, and does, comply 

with numerous requirements to ensure that all waters on and around ready mixed 

concrete facilities are not subject to harmful pollutants and discharges; begging the 

question of why such a confusing "clarification" would then be needed at all? (p. 2)

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 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 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. 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 will clarify 

and simplify implementation of the CWA consistent with its purposes through 

clearer definitions and increased use of bright-line rules. 

In response to comments, the agencies have made revisions to a number of 

provisions, definitions, and exclusions in the final rule. For example, the final rule in 

section (b) has expanded the waters and features that are not considered “waters of 

the United States”, including many of the features listed in the comment, such as 

artificial lakes and ponds created in dry land, water-filled depressions incidental to 

mining or construction, constructed grassed waterways and non-wetland swales, 

and stormwater detention basins constructed in dry land. The longstanding 

exclusion for waste treatment systems designed consistent with the requirements of 

the CWA has been moved to (b)(1) and remains substantively and operationally 

unchanged.

Robert Rustermier (Doc. #19398)

17.2.124 I'm writing in support of Clean Water Action's initiative to keep the Clean Water Act a 

vitally important piece of legislation and asked me to send you this sentiment: 

"Please keep the Clean Water Act strong and effective and finalize a rule that will 

improve the health of our nation's rivers, lakes and bays by protecting the small streams 

and wetlands they depend on." 

Which I strongly support. There's so much of the natural world in jeopardy, under 

constant threat. We should do all we can to reverse current trends. And I'm counting on 

the EPA to function on my behalf. (p. 1)
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

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Agency Response: The agencies agree. The EPA and U.S. Army Corps of 

Engineers 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. 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 Clean Water Rule will clarify that the Clean Water Act 

protects certain streams and wetlands. Protection for about 60 percent of the 

nation’s streams and millions of acres of wetlands has been confusing and complex 

as the result of Supreme Court decisions in 2001 and 2006. 

The final rule reflects that the scientific evidence unequivocally demonstrates that 

the stream channels and riparian/floodplain wetlands or open waters that together 

form river networks are clearly connected to downstream waters in ways that 

profoundly influence downstream water integrity. The health of rivers, lakes, bays, 

and coastal waters depends on the streams and wetlands where they begin. Streams 

and wetlands provide many benefits to communities – they trap floodwaters, 

recharge groundwater supplies, remove pollution, and provide habitat for fish and 

wildlife. They are also economic drivers because of their role in fishing, hunting, 

agriculture, recreation, energy, and manufacturing.

In addition, about 60 percent of stream miles in the U.S. only flow seasonally or 

after rain, but have a considerable impact on the downstream waters. And 

approximately 117 million people – one in three Americans – get drinking water 

from public systems that rely in part on these streams. These are important 

waterways for which EPA and the Army Corps is clarifying protection.

Tunget, B. (Doc. #19951)

17.2.125The rule stands in direct conflict to Colorado Water law under which water belongs to 

the people of the state and is managed by doctrine of prior appropriation. (p. 1-2)

Agency Response: 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. For a further discussion of the CWA and state water rights, see the 

summary response for 1.1.2: Water Supply and Allocation.

Grace, R. (Doc. #20398)

17.2.126 I oppose expanding the definition of "navigable waters". The existing silly definition 

has already cost me needless time and money via the SPCC for ASTs, and expanding 

the definition is another step in the wrong direction.

This is pretty simple: "navigable waters" are those upon which you can place a boat and 

move from place to place. Small rivers, ponds, ditches clearly do not qualify, so this is 
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

87

clearly an attempt to expand Federal influence where it is neither needed or wanted. (p. 

1)

Agency Response: The rule does not expand the definition of “navigable waters” 

but clarifies the scope of “waters of the U.S.” that are protected by the Clean Water 

Act. 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 Supreme Court has consistently agreed that the geographic scope of the CWA 

reaches beyond waters that are navigable in fact. This action would not require 

facilities that have prepared SPCC plans to update these plans. The owner/operator 

of a facility that has an SPCC plan in place has already determined that there is a 

"reasonable expectation" of an oil discharge as per 40 CFR part 112.1(b). 

REFERENCES AND ATTACHMENTS

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:

Adams, Chris. EPA Sets Out to Explain Water Rule That’s Riled U.S. Farm Interests, News & 

Observer (July 9, 2014), http://www.newsobserver.com/2014/07/09/3995009/epa-sets-out-toexplain-water.html. (Doc. #15083, p. 3)

Ahmed, F. 2014. Cumulative Hydrologic Impact of wetland loss: Numerical modeling study of 

the Rideau River Watershed, Canada. Journal of Hydrologic Engineering 19:593-606. (Doc. 

#12846, p. 5)

Amena H. Saiyid, House Republicans Claim Most Lawmakers Oppose Proposed Water 

Jurisdiction Rule, Bloomberg Law (May 5, 2014). (Doc. #15057, p. 3-4)

Belle Co. v. Corps of Engineers, 761 F.3d 383 (5th Cir. (La.) 2014) (Doc. #16490, p. 2)

Brody, S. D. and S. Zahran. 2008. Estimating flood damage in Texas Using GIs: Predictors, 

consequences, and policy implications. Pages 171-188 in D. S. Zui, editor. Geospatial 

Technologies and Homeland Security: Research Frontiers and Future Challenges. (Doc. 

#12846, p. 5)

Brody, S. D., W. E. Highfield, H. C. Ryu, and L. Spanel-Weber. 2007a. Examining the 

relationship between wetland alteration and watershed flooding in Texas and Florida. Natural 

Hazards 40:413-428. (Doc. #12846, p. 6)

Chesapeake Bay Preservation Act (Doc. #14621, p. 1)
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

88

Congressional Research Service Report R43455, EPA and the Army Corps' Proposed Rule to 

Define "Waters of the United States" (June 10,2014). p. 6. (Doc. #16413, p. 6)

Dahl, T.E. 1990. Wetland Losses in the United States: 1780's to1980’s. U.S. Department of the 

Interior, Fish and Wildlife Service, Washington D.C.

Dahl, T.E., U.S. Fish & Wildlife Serv., U.S. Dept. of Interior, Status and Trends of Wetlands in 

the Conterminous United States 2004 to 2009, at 16 (2011), available at 

http://www.fws.gov/wetlands/Documents/Status-and-Trends-of-Wetlands-in-theConterminous-United-States-2004-to-2009.pdf. (Doc. #15437, p. 3)

Dudgeon et al. 2006. Freshwater biodiversity: importance, threats, status and conservation 

challenges. Biological Reviews 81: 163-182.

Economic Analysis at 17, App. A. (Doc. #14915, p. 4)

Environmental Protections Agency's Policy on Alternative Dispute Resolution, 65 FR 81858 

December 18, 2000. (Doc. #14990, p. 5)

EPA & Corps, “Economic Analysis of Proposed Revised Definition of Waters of the United 

States” at 5 (Mar. 2014) (Doc. #15016, p. 18)

EPA's Pesticide General Permit, 76 Fed. Reg. 68750 (Nov. 7, 2011). (Doc. #15032, p. 27)

EPA Office of Water, National Water Quality the Inventory: Report to Congress, EPA 841–R–

08–001 (January 2009). (Doc. #14121, p. 5)

EPA, Watershed Assessment, Tracking & Results, National Summary of State Information, 

available at http://ofmpub.epa.gov/waters10/attains_nation_cy.control. (Doc. #16413, p. 5)

EPA, Findings on the National Water Quality Inventory: Report to Congress, 2004 Reporting 

Cycle, available at: 

http://water.epa.gov/lawsregs/guidance/cwa/305b/upload/2009_05_20_305b_2004report_rep

ort2004pt3.pdf (Doc. #16413, p. 5)

Executive Office of the President, Office of Management and Budget, Statement of 

Administration Policy re: H.R. 5078 (Sept. 8, 2014). (Doc. #15083, p.2)

Exec. Order No. 13563, 76 Fed. Reg. 3,821 (Jan. 18, 2011). (Doc. #4907, p. 2)

Federal Water Pollution Control Act §505(a)(2) (Doc. #13956, p. 15)

Federal Water Pollution Control Act § 101, 33 U.S.C. § 1251 (Doc. #15083, p. 2)

Finding Cooperative Solutions to Environmental Concerns with the Conowingo Dam to Improve 

the Health of the Chesapeake Boy: Hearing Before the Subcomm. on Water and Wildlife of 

the S. Comm. on Environment & Public Works, 113 Cong. 19 (20 14) (Corps response to 

question for the record, on file with Senator David Vitter). (Doc. #15083, p. 3)

Galveston Baykeeper, Inc. v. Trendmaker Homes, Inc., Case No. 4:14-cv- 01500 (S.D. Tex. May 

30, 2014) (hereinafter “Galveston Baykeeper Complaint”). (Doc. #15016, p. 97)
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

89

Grumbles, Benjamin, H. Acting Assistant Administrator for Water, U.S. EPA, to Anu Mittal, 

Director, Natural Resources & Environment, General Accounting Office, at 2 (Feb. 4, 2004), 

reprinted in U.S. GENERAL ACCOUNTING OFFICE, GAO-04-297,WATERS AND 

WETLANDS: CORPS OF ENGINEERS NEEDS TO EVALUATE ITS DISTRICT OFFICE 

PRACTICES IN DETERMINING JURISDICTION, appendix IV (Feb. 2004) (Doc. #15437, 

p. 3)

Grumbles, Benjamin, H., Assistant Administrator for Water, U.S. EPA, to Jeanne Christie, 

Executive Director, Association of State Wetland Managers, at 2 (Jan. 9, 2006) (mis-dated as 

Jan. 9, 2005). (Doc. #15437, p. 3)

House Transportation and Infrastructure Water Resources and Environment Subcommittee, 

Hearing on the CWA Jurisdictional Rule, Panel 1, 113th Cong., 19-20 (June 11, 2014) 

(statements of Assistant Secretary of the Army (Civil Works), Jo-Ellen Darcy, and Deputy 

Administrators of the U.S. EPA, Bob Perciasepe). (Doc. #15059, p. 2)

Indus Corporation under contract with U.S. EPA Office of Water, Streams and Waterbodies in 

the United States (Oct. 2013), available at 

http://science.edgeboss.net/sst2014/documents/epa/national2013.pdf. (Doc. #15437, p. 3)

Jelks, Howard L. et al. Conservation Status of Imperiled: North American Freshwater and 

Diadromous Fishes, Fisheries, Vol 33, no. 8, August 2008. www.fisheries.org. 

Kusler, J. Common Questions Local Government Wetland Protection Programs. Prepared by 

Association of State Wetland Managers and The International Institute for Wetland Science 

and Public Policy (June 26, 2006), at 2. (Doc. #19540, p. 12)

LaRoss, David. EPA, DOD Settle Appeal of Stormwater Retention Permits, Averting Ruling,

InsideEPA.com (May 2, 2014), http;//insideepa,com/201405022469599/EPA-DailyNews/Daily-News/epa-dod-settle-appeal-of-storrmwater-retention-permits-avertingruling/menu-id-95.html. (Doc. #3536, p. 1)

Letter from J. Mark Ward, Senior Policy Analyst and General Counsel, Utah Assoc. of Counties, 

to Gina McCarthy and Bob Perciasepe, U.S. Environmental Protection Agency (July 18, 20 

14), available at 

http://kfb.org/Assets/uploads/images/capitolgovernment/utahassocofcountiesepa71814.pdf.

(Doc. #15083, p. 3-4)

Letter to Administrator McCarthy re: 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. (09/17/14). (Doc. #19572, p. 6)

Letter (2104) to Administrator McCarthy and Major General Peabody from Winslow Sargeant, 

Chief Counsel for Advocacy. (Doc. #15224, p. 5)

Local Community Events Threatened by Lawsuits Under Environmental Regulations, Exhibit A 

(Doc. #15500, p. 5-7)
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

90

Travis Loop, Do You Choose Clean Water?, Greenversations: An Official Blog of the U.S. EPA 

Sept. 9, 2014), http://blog.epa.gov/blog/2014/09/do-you-choose-clean-water/. (Doc. #15083, 

p. 2)

McCarthy and Bob Perciasepe, U.S. Environmental Protection Agency (July 18, 20 14), 

available at 

http://kfb.org/Assets/uploads/images/capitolgovernment/utahassocofcountiesepa71814.pdf. 

(Doc. #15083, p. 3)

Meltz, R., C. Copeland, “The Wetlands Coverage of the Clean Water Act (CWA): Rapanos and 

Beyond”, at 11 (Congressional Research Service, September 2014) 

http://nationalaglawcenter.org/wp-content/uploads/assets/crs/RL33263.pdf (Doc. #15352, 

p. 3)

Memorandum of Understanding Among the U.S. Department of Agriculture, The U.S. 

Environmental Protection Agency, and the U.S. Department of the Army Concerning 

Implementation of the 404(f)(1)(A) Exemption for Certain Agricultural Conservation 

Practice Standards. http://www2.epa.gov/sites/production/files/2014-

03/documents/interagency_mou_404f_ir_signed.pdf (Doc. #13618, p. 2-3)

Mersel, Matthew, K. Development of National OHWM Delineation Technical Guidance, 

Engineer Research and Development Center (March 4, 2014). (Doc. #15032, p. 25)

Mersel K. Matthew, et al., August 2014, “A Review of Land and Stream Classifications in 

Support of Developing a National Ordinary High Water Mark Classification”; “A Guide to 

Ordinary High Water Mark Delineation for Non-Perennial Streams in the Western 

Mountains, Valleys, and Coastal Region of the United States.” (Doc. #15059.1, p. 1-2)

Missouri Department of Natural Resources, Comments on “Advance Notice of Proposed 

Rulemaking on the Clean Water Act Regulatory Definition of ‘Waters of the United 

States,’’’ Docket ID OW-2002-0050, at p-4 (Mar. 5, 2003). (Doc. #15123, p. 6)

October 1, 2014 letter to Administrator McCarthy and Major General Peabody from Winslow 

Sargeant, Chief Counsel for Advocacy. (Doc. #15224, p. 5)

Pennsylvania Clean Streams Law, Act of June 22, 1937, P.L. 1987, No. 396, as amended; 35 P.S. 

§§ 691.1 et seq. (Doc. #18880, p. 3)

Pianin, Eric. Administration Establishes New Wetlands Guidelines; 20 Million Acres Could 

Lose Protected Status, Groups Say, Washington Post, Jan. 11, 2003, at A05. (Doc. #15437, p. 

3)

Press Release, House Committee on Science, Space & Technology, “Smith: Maps Show EPA 

Land Grab,” August 27, 2014. (Doc. #14121, p. 5)

Rapanos, 547 U.S. at 721 (Doc. #15016, p. 18)

Rapanos, 547 U.S. at 727 (Doc. #14577, p. 4)

Rapanos, 547 U.S. at 734. (Doc. #15501, p. 6)
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

91

Rapanos v. United States, 547 U.S. 715 (2006). (Doc. #4957, p. 1)

Rapanos v United States, 547 U.S. 715 (2006) (Doc. #15159, p. 2)

Rapanos v. U.S. & Carabell v. U.S. Army Corps of Eng’rs, at 41-42 (U.S. Feb. 21, 2006) (Doc. 

#15437, p. 3)

Rapanos (2006) (Doc. #19540, p. 2)

Robert, Howard, Jeffery Carlin, and Taiga Takahashi, Goodbye Fourth of July: Are Fireworks 

Displays Now Subject to CWA Regulation? 43 Envtl. Law Rptr. 10537, 10539 n. 24 (July 

2013), available at http://elr.info/news-analysis/43/10537/goodbye-fourth-july-arefireworks-displays-now-subject-cwa-regulation (Doc. #15500, p. 3)

Sackett v. U.S. EPA, 132 S.Ct. 1367 (2012). (Doc. #14608, p. 10)

SAB letter to EPA regarding the scientific and technical basis of the Proposed Rule regarding 

“waters of the U.S.” (9/30/14). (Doc. #14420, p. 4)

Science Advisory Board (SAB) Draft Report (4/23/14). (Doc. #14420, p. 4)

Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers, 531 U.S. 

159 (2001). (Doc. #4957, p. 1; Doc. #16542, p. 1)

Solving the Problem of Polluted Transportation infrastructure Stormwater Runoff: Hearing 

Before the Subcomm. On Water and Wildlife of the S. Comm. On Environment and Public 

Works, 113 Cong. 19 (2014) (testimony of J.G. Andre Monette, Attorney, Best Best & 

Krieger LLP). (Doc. #1512, p. 2)

“State Constraints: State-Imposed Limitations on the Authority of Agencies to Regulate Waters 

Beyond the Scope of the Federal Clean Water Act” (An ELI 50-State Study, May 2013), 

http://www.eli.org/sites/default/files/eli-pubs/d23-04.pdf (Doc. #15352, p. 3)

Sunding, David, The Brattle Group, Review of 2014 EPA Economic Analysis of Proposed 

Revised Definition of Waters of the United States. (Doc. #16490, p. 2)

Sunding & Zilberman, The Economics of Environmental Regulation by Licensing: An 

Assessment of Recent Changes to the Wetland Permitting Process, 42 Natural Resources J. 

59,74 (2002) (Doc. #13029, p. 61; Doc. #15016, p. 18)

SWANCC (2001) (Doc. #19540, p. 2)

Tennessee Wildlife Resources Agency, Comments on “Advance Notice of Proposed Rulemaking 

on the Clean Water Act Regulatory Definition of ‘Waters of the United States,’’’ Docket ID 

OW-2002-0050 at p- 2-3 (Feb. 26, 2003). (Doc. #15123, p. 6)

United States Department of Labor, US Bureau of Labor Statistics, Labor Force Statistics from 

the Current Population Survey, HOUSEHOLD DATA ANNUAL AVERAGES, Employed 

persons by detailed industry, sex, race, and Hispanic or Latino ethnicity; 

http://www.bls.gov/cps/cpsaat18.htm (Doc. #15171.1, p.1)
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

92

U.S Army Corp of Engineers Jurisdictional Determination Guidance Document, p. 36 (May 30, 

2007) (Doc. #14577, p. 4)

U.S. Environmental Protection Agency, EPA Administrator Gina McCarthy Gives Overview of 

EPA's Clean Water Act Rule Proposal, YouTube (Mar. 25. 2014), 

http://www.youtube.com/watch?v=ow-n8zZuDYc. (Doc. #1512, p. 1; Doc. #15083, p. 2)

U.S. Environmental Protection Agency, Facts About the Waters of the U.S. Proposal, 

http://www2.epa.gov/sites/production/files/2014- 09/documents/facts_about_wotus.pdf. 

(Doc. #15083, p. 3)

U.S. EPA, Geographic Information Systems Analysis of the Surface Drinking Water Provided by 

Intermittent, Ephemeral, and Headwater Streams in the U.S. (last updated on Oct. 29, 2013), 

available at 

http://water.epa.gov/lawsregs/guidance/wetlands/surface_drinking_water_index.cfm. (Doc. 

#15437, p. 3)

U.S. Environmental Protection Agency, Office of Research and Development, Connectivity of 

Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific 

Evidence -EPA/600/R-11/098B (Sept. 2013) Available at: 

http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr_activities/Watershed%20Connectivity%

20Report?OpenDocument (Doc. #16413, p. 4-6)

U.S. Environmental Protection Agency, Science Advisory Board, Review of the Draft EPA 

Report Connectivity of Streams and Wetlands to Downstream Waters: A Review and 

Synthesis of the Scientific Evidence, EPA-SAB-15-001 (Oct. 17, 2014) Available at: 

http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr_activities/Watershed%20Connectivity%

20Report?OpenDocument (Doc. #16413, p. 4-6)

U.S. EPA, National Summary of State Information, from: Watershed Assessment, Tracking & 

Environmental Results, http://ofmpub.epa.gov/watersl0/attains_nation_cy.control, accessed 

Oct 6, 2014. (Doc. #17453, p. 1)

Codes Cited Without Additional Information:

CWA § 502(7); 33 U3.C 5 1362(7). (Doc. #14629, p. 1)

14 CFR Part 139 (Doc. #16370, p. 8)

25 Pa. Code 102.5(c) (Doc. #18880, p. 3)

33 U. S. C. § 1251(b) (Doc. #15091, p. 2)

33 U.S.C. § 1251. (Doc. #15208, p. 7)

33 U.S.C. § 1362(7), § 1251(a)(1), § 1311(f), § 1311(a), § 1362(12), §§ 1313(c)(2)(A) & (c)(4), 

§ 1313(e)(3)(c), § 1314(l)(1), § 1315(b), § 1321(b)(3), § 1321(j)(5), § 1322(h)(4), §§ 

1329(a), (b), & (h), § 1341, § 1345. (Doc. #15437, p. 1-2)

40 CFR 230.3(u)(5) (Doc. #14420, p. 5)
Clean Water Rule Response to Comments – Topic 17: Non-Technical Comments (vol.2)

93

49 CFR §213.33 (Doc. #15254, p. 22)

58 Pa.C.S. 3216(b) (Doc. #18880, p. 3) 

531 U.S. 159 (2001) (Doc. #15115, p. 2)

547 U.S. 715 (2006) (Doc. #15115, p. 2)

547 U.S. at 781. (Doc. #15032, p. 25) 

69 Fed. Reg. 22202, 22214. (Doc. #15633.1, p. 3-5)

79 Fed. Reg. at 22,193. (Doc. #14629, p. 1)

79 Fed. Reg. at 22, 201 (Doc. #14902, p. 11)

76 Fed. Reg. 24479, May 2, 2011 (Doc. #15115, p. 2)

Web Pages Cited without Additional Information:

http://www.sba.gov/advocacy/1012014-definition-waters-united-states-under-clean-water-act

(Doc. #14132.1, p. 2)

http://water.epa.gov/type/rsl/streams.cfm (Doc. #15352, p. 2)

http://www.fws.gov/wetlands/Data/Wetlands-Geodatabase-User-Caution.html (Doc. #15625, p. 

3) 

http://www.fws.gov/wetlands/Data/Limitations.html (Doc. #15625, p. 2)

http://www.fws.gov/wetlands/Data/Disclaimer.html (Doc. #15625, p. 3)

http://blog.epa.gov/epaconnect/2014/08/mapping-the-truth/ (Doc. #15633.1, p. 3-5)

http://www.ag.ndsu.edu/news/columns/spotlight-on-economics/spotlight-on-economics-northdakota-duck-nesting-habitat-economic-drivers-and-anticipated-trends/ (Doc. #16638, p. 4) 

 http://www.wlf.louisiana.gov/sites/default/files/pdf/pagehunting/32535-

programs/nat_survey2001_waterfowlhunting.pdf (Doc. #16638, p. 4) 

 http://www.fishwildlife.org/files/Hunting_Economic_Impact.pdf (Doc. #16638, p. 4) 

http://asbcouncil.org/sites/default/asbc_clean_water, 

http://asbcouncil.org/sites/default/files/asbc_clean_water_poll_report_july2014_sv_final_140

721v2sm.pdf (Doc. #19533, p. 2)

http://blog.epa.gov/epaconnect/2014/08/mapping-the-truth/ (Doc. #15633.1, p. 3)