# FINAL

ENVIRONMENTAL ASSESSMENT

ADOPTION OF

THE CLEAN WATER RULE: DEFINITION OF WATERS OF THE UNITED STATES

26 May 2015

U.S. Army Office of the Assistant Secretary of the Army for Civil Works Washington DC1 

## FINAL

ENVIRONMENTAL ASSESSMENT

ADOPTION OF

THE CLEAN WATER RULE: DEFINITION OF WATERS OF THE UNITED STATES

1.0 INTRODUCTION The Assistant Secretary of the Army for Civil Works (ASA(CW)) has prepared this Environmental Assessment (EA) to evaluate the potential impacts of adopting the final proposed rule entitled: Adoption of the Clean Water Rule: Definition of Waters of the

United States A draft rule entitled : 33 CFR Part 328 Definition o f Waters of the United

States of title 33 Cha pter I of the Code of Federal Regulations was published in the Federal Register (Vol. 79, No. 76) for public comment from April 21, 2014 to November 14, 2014. This EA has been prepared consistent with the Natio nal Environmental Policy Act (NEPA) of 1969 and the Council on Environmental Quality’s Regulations (40 CFR

1500

- 1508) . Electronic copies of the documents incorporated into this EA as well as the

final EA are located in the docket for this rulemaking , Dock et EPA

- HQ

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- 2011

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.

The scope of this EA is to (1) document the potential environmental effects of the proposed clar ification of the definition of waters of the United States pursuant to the

Clean Water Act (proposed action) and , (2) to determine whether to prepare an environmental impact statement for the proposed clarification or a finding of no significant impact (FONSI)

. This EA includes a brief discussion of the need for the proposed action and , the potential environmental impacts of the proposed action and

the alternative (no action).

1.1 PURPOSE The foundation of the Clean Water Act is a desire by the Nation to restore and maintain the chemical, physical, and biological integrity of the waters of the United States. The

term “ waters of the United States ” identifies waters which are subject to the Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act)

. The purpose s of

the final proposed rule are to (1) clarify th e scope of the regulatory term “ waters of the

United States ” , and (2) simplify implementation of the Clean Water Act consistent with its purposes through clearer definitions and increased use of bright

- line rules. The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers ( USACE) have developed this rule based upon language in the Clean Water Act, available science, Supreme Court decisions, public comments, and the agencies’ experience and technical expertise. Because the purpose of the final proposed rule is

to define a wa ters of the United States the implementation of the rule would not affect2

or alter the Department of the Army permit application process or the decision

- making processes in place by the agencies

. The final proposed rule, Adoption of the Clean

Water Rule: D efinition of Waters of the United States is herein incorporated by

reference.

1.2 NEED The need addressed by promulgating this rule is to resolve the ambiguity that exists under current regulations and practice s following recent Supreme Court decisions, under which virtually all waters and wetlands across the country theoretically could be subject to a case

- specific jurisdictional determination.

In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers , 531 U.S. 159 (2001) ( SWANCC ), the Supreme Court held that the use of “isolated” non

navigable intrastate ponds by migratory birds was not by itself a sufficient basis for the exercise of federal regulatory authority under the Clean Water Act . Although the

SWANCC decision did not call into question earlier decisions upholding the Clean

Water Act ’s coverage of wetlands or other waters “adjacent” to traditional navigable waters, it created uncertainty with regard to the jurisdic tion of other waters and wetlands that, in many instances, may play an important role in protecting the integrity of the

nation’s waters. The majority opinion in SWANCC introduced the concept that it was a “significant nexus” that informed the Court’s rea ding of Clean Water Act jurisdiction over waters that are not navigable in fact.

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

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

some wat ers that are not navigable in the traditional sense. In addition, Justice Kennedy’s opinion stated that the critical factor in determining the Clean Water Act ’s coverage is whether a water has a “significant nexus” to downstream traditional navigable wate rs such that the water is important to protecting the chemical, physical, or biological integrity of the navigable water, referring back to the Court’s decision in

SWANCC

.

The “significant nexus” standard articulated and refined in these Supreme Court opinions is the touchstone for the agencies’ interpretation of the Clean Water Act ’s jurisdictional scope. In response to these opinions, the agencies issued guidance in

2003 (post

- SWANCC

) and 2008 (post

- Rapanos )

. However, these two guidance documents are not effective in providing the public or agency staff with the information needed to ensure timely, consistent, and predictable jurisdictional determinations. Many waters ar e currently subject to case

- specific jurisdictional analysis to determine whether a “significant nexus” exists, and this time and resource intensive process can

result in in consistent interpretation of Clean Water Act jurisdiction and perpetuate ambiguity over wher e the Clean Water Act applies. Members of Congress, developers, farmers, state and local governments, energy companies, and many others requested new regulations to make the process of identifyin g waters protected under the Clean

Water Act cleare r, simpler, and faster. In the rule, the agencies are responding to those requests from across the country to make the process of identifyin g waters protected3

under the Clean Water Act easier to understand, more predictable, and more consistent

with the l aw and peer

- reviewed science.

2.0 ALTERNATIVES

Th is EA analyses the impacts of either implementing the proposed action ( a doption of

the final proposed r ule) or selecting the No Action alternative (t he existing rule and guidance would remain unchanged).

2.1 ADOPTION OF THE FINAL PROPOSED RULE ALTERNATIVE (Proposed Action)

The agencies administer the Clean Water Act Section 404 process and the USACE

issues f our types of permits: standard permits, letters of permission, nationwide permits, and regional general permits. In most situations a jurisdictional determination (preliminary or approved) is required to be completed. Jurisdictional determinations are

co nducted by the USACE to establish the geographic extent of on

- site waters and wetlands subject to the Clean Water Act. Current practice for the determination of the extent of jurisdictional waters of the United States is based upon regulations dated

Novem ber 16, 1986, and interagency guidance documents dated January 15, 2003 and December 2, 2008.

The agencies developed a draft rule (appendix A) that was published in the Federal Register (Vol. 79, No. 76) on April 21, 2014 for a public comment period throu gh July 21, 2014. At the request of stakeholders the comment period was extended until November 14, 2014. A pproximately 1.2 million comments were received during the comment period. After publication of the draft rule approximately 400 stakeholder engagements in the form of meetings, webinars, and phone calls were conducted to gather input and listen to stakeholders concerns with the draft rule

. Upon review of the comments received, 20 ,567 were identified as unique; the remain in g comments were
form letters from mass letter writing efforts . The unique comments were evaluated

further to identify comments that were substantive. Responses to the substantive comments have been developed by the agencies and are located in the docket for this rulemaking

, Docket EPA

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. Based upon a review of the comments

and discussions with stakeholders, Federal agencies, and Congress , the draft rule was amended to incorporate changes into a final proposed rule (appendix B) that address the ambiguity that exists under current regulations and practices , while striving to simplify the process for identifying waters of the United States.

T he final proposed rule establishes jurisdiction for : waters that are jurisdictional in all

instances ( traditional navigable waters and impoundments of jurisdictional waters )

, waters that are jurisdictional

, but only if they meet specific definitions in the rule ( tributaries and adjacent waters ) , and a narrowed category of waters subject to case

specific analysis (othe r waters)

. Decisions about these waters are based on the law,

peer

- reviewed science, and the agencies’ technical expertise, and were informed by public comments. Th e final proposed rule replaces existing procedures and guidance that often depend on indiv idual, time

- consuming, and often inconsistent analyses of the relationship between a particular stream, wetland, lake, or other water with downstream4

navigable waters. The agencies have greatly reduced the extent of waters subject to an individual review by incorporating the scientific literature described in the EPA’s science
report characterizing the nature and strength of the chemical, physical, and biological connections between upstream and downstream waters. The result of applying this

scientific analysis is that the agencies can more effectively focus the rule on identifying waters that are clearly covered by the C lean W ater A ct and those that are clearly not covered, making the final proposed rule easier to understand, more consistent, in applica tion, and environmentally more protective.

Traditional navigable waters ( including interstate waters and the territorial seas ) are jurisdictional by rule in all cases. Impoundments of jurisdictional waters are also jurisdictional by rule in all cases. T he waters in the next two categories, “tributaries” and “adjacent” waters are jurisdictional by rule, as defined, because the science confirms

that

, as defined

, they have a significant nexus to traditional navigable waters, interstate waters, or territorial seas. For waters that are jurisdictional by rule, no additional significant nexus analysis is required.

The final two categories of jurisdictional waters ar e those waters subject to case

- specific analysis to determine whether they have a significant nexus to traditional navigable waters, interstate waters, or the territorial seas, either alone or in combination with similarly situated waters in the region.

C onsistent with existing regulations and the April 2014 proposed rule, the final proposed rule includes traditional navigable waters, interstate waters, territorial seas, and impoundments of jurisdictional waters in the definition of “waters of the United S tates.” These waters are jurisdictional by rule.

Tributaries Previous definitions of “waters of the United States” regulated all tributaries without qualification. This final proposed rule more precisely defines “tributaries” as waters that

are character ized by the presence of physical indicators of flow

– bed and banks and ordinary high water mark

– and that contribute flow directly or indirectly to a traditional navigable water, an interstate water, or the territorial seas. The final proposed rule

conc ludes that such tributaries are “waters of the United States.” The great majority of tributaries as defined by the final proposed rule are headwater streams that play an important role in the transport of water, sediments, organic matter, nutrients, and

o rganisms to downstream waters. The physical indicators of bed and banks and ordinary high water mark demonstrate that there is sufficient volume, frequency, and flow in such tributaries to a traditional navigable water, interstate water, or the territoria l seas to establish a significant nexus. “Tributaries,” as defined, are jurisdictional by rule.

The final proposed rule only covers as tributaries those waters that science tells us provide chemical, physical, or biological functions to downstream waters and that meet the significant nexus standard. The agencies identify these functions in the definition of “significant nexus” at paragraph (c)(5) of the final proposed rule

. Features not meeting this legal and scientific test are not jurisdictional under th e final proposed rule. The final5

proposed rule continues the current policy of regulating ditches that are constructed in tributaries or are relocated tributaries or, in certain circumstances drain wetlands, or that science clearly demonstrates are functioning as a tributary. These jurisdictional waters affect the chemical, physical, and biological integrity of downstream waters. The rule further reduces existing confusi on and inconsistency regarding the regulation of ditches by explicitly excluding certain categories of ditches, such as ditches that flow only after precipitation. Further, the rule explicitly excludes from the definition of “waters of the

United States” erosional features, including gullies, rills, and ephemeral features such as ephemeral streams that do not have a bed and banks and ordinary high water mark.

Adjacent Waters The agencies determined that “adjacent waters,” as defined in the final proposed rule, have a significant nexus to traditional navigable waters, interstate waters, and the territorial seas based upon their hydrological and ecological connections to, and interactions with, those waters. Under the final proposed rule, “adjacent” means

b ordering, contiguous, or neighboring, including waters separated from other “waters of the United States” by constructed dikes or barriers, natural river berms, beach dunes and the like. Further, waters that connect segments of, or are at the head of, a s tream or river are “adjacent” to that stream or river. “Adjacent waters” include wetlands, ponds, lakes, oxbows, impoundments, and similar water features. However, it is important to note that “adjacent waters” do not include waters that are subject to

e stablished normal farming, silviculture, and ranching activities as those terms are used in Section 404(f) of the C lean Water Act

.

The final proposed rule establishes a definition of “neighboring” for purposes of determining adjacency. In the final propo sed rule, the agencies identify three circumstances under which waters would be “neighboring” and therefore “waters of the

United States”: (1) Waters located in whole or in part within 100 feet of the ordinary high water mark of a traditional navigable water, interstate water, the territorial seas, an impoundment of a jurisdictional water, or a tributary, as defined in the final proposed rule. (2 ) Waters located in whole or in part in the 100

- year floodplain and that are within 1,500 feet of the ordinary high water mark of a traditional navigable water, interstate water, the territorial seas, an impoundment, or a tributary, as defined in

the final proposed rule (“floodplain waters ”). (3) Waters located in whole or in part within 1,500 feet of the high tide line of a traditional navigable water or the territorial seas and waters located within 1,500 feet of the ordinary high water mark of the Great Lakes

.

The agencies emphasize that the rule has defined as “adjacent waters” those waters that currently available science demonstrates possess the requisite connection to downstream waters and function as a system to protect the chemical, physical, or

bi ological integrity of those waters. The agencies also emphasize that the rule does not cover “adjacent waters” that are otherwise excluded. Further, the agencies recognize the establishment of bright line boundaries in the final proposed rule for adjacen cy does not in any way restrict states from considering state specific information and concerns,6

as well as emerging science to evaluate the need to more broadly protect their waters

under state la w. The C lean Water Act establishes both national and state roles to ensure that states specific circumstances are properly considered to complement and

reinforce actions taken at the national level.

“Adjacent” waters as defined

, are jurisdictional by rule. The agencies recognize that

there are individual waters outside of the “neighboring” boundaries stated above where the science may demonstrate through a case

- specific analysis that there exists a significant nexus to a downstream traditional navigable water, interstate water, or the territorial seas. However, these waters are not determined jurisdictional by rule and

would be evaluated thr ough a case

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

- speci fic basis as described in the final proposed rule.

T he final proposed rule establishes a definition of “neighboring” for purposes of determining adjacency. In the final proposed rule, the agencies identify three

circumstances (bright lines) under which waters would be “neighboring” and therefore

“waters of the United States”: (1) Waters located in whole or in part within 100 feet of the ordinary high water mark of a traditional navigable water, interstate water, the territorial seas, an impoundment of a jurisdictional water, or a tributary. (2) W aters located in whole or in part in the 100

- year floodplain that are within 1,500 feet of the ordinary high water mark of a traditional navigable water, interstate water, the territorial seas, an impoundment, or a tributary (“floodplain waters ”). (3) Wate rs located in whole or in part within 1,500 feet of the high tide line or the ordinary high water mark of a tidally

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

Case

- Specific Significant Nexus The rule identifies particular waters that are not jurisdictional by rule but are subject to

case

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

of the United States.” This category of case

- specific waters is based upon available science and the law, and in response to public comments that encouraged the agencies to ensure more consistent determinations and reduce the complexity of conducting jurisdictional determinations. Consistent with the significant nexus stand ard articulated in the Supreme Court opinions, waters are “waters of the United States” if they significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas. This determin ation w ould most typically be made on a water individually, but can, when warranted, be made in combination with

other waters w here waters function together.

In th e final proposed rule , the agencies have identified by rule, five specific types of waters in specific regions that science demonstrates should be subject to a significant nexus analysis and are considered similarly situated by rule because they function alike

and are sufficie ntly close to function together in affecting downstream waters. These five types of waters are Prairie potholes, Carolina and Delmarva bays, pocosins,7

western vernal pools in California, and Te xas coastal prairie wetlands. Consistent with Justice Kennedy ’s opinion in Rapanos , the agencies determined that such waters should be analyzed “in combination” (as a group, rather than individually) in the watershed that drains to the nearest traditional navigable water, interstate water, or the

territorial seas wh en making a case

- specific analysis of whether these waters have a significant nexus to traditional navigable waters, interstate waters, or territorial seas.

The final proposed rule also provides that waters within the 100

- year floodplain of a

traditional navigable water, interstate water, or the territorial seas and waters within 4,000 feet of the high tide line or the ordinary high water mark of a traditional navigable water, interstate water, the territorial seas, impoundments, or covered tributary are

s ubject to case

- specific significant nexus determinations, unless the wate r is excluded under paragraph ( b ) of the rule. The science available today does not establish that waters beyond those defined as “adjacent” should be jurisdictional as a category und er the Clean Water Act , but the agencies’ experience and expertise indicate that there are many waters within the 100

- year floodplain of a traditional navigable water, interstate water, or the territorial seas or out to 4,000 feet where the science demonst rates that they have a significan t effect on downstream waters.

In circumstances where waters within the 100

- year floodplain of a traditional navigable water, interstate water, or the territorial seas or within 4,000 feet of the high tide line or ordinary high water mark are subject to a case

- specific significant nexus analysis and such waters may be evaluated as “similarly situated,” it must be first demonstrated that these waters function alike and are sufficiently close to function together in affecting

downstream waters . The significant nexus analysis must then be conducted based on consideration of the functions provided by those waters in combination in the point of entry watershed. A “similarly situated” analysis is conducted where it is determined that there is a likelihood that there are waters that function together to affect downstream water integrity. To provide greater clarity and transparency in determining what

functions would be considered in determining what constitutes a significant nexu s, the final proposed rule lists specific functions that the agencies would consider.

In establishing both the 100

- year floodplain and the 4,000 foot bright line boundaries for

these case

- specific significant nexus determinations in the rule, the agencies are carefully applying the available science. Consistent with the Clean Water Act , the agencies would work with the states in connection with the prevention, reduction and elimination of pollution from state waters. The agencies would work with states to more closely evaluate state

- specific circumstances that may be present within their borders and, as appropriate, encourage states to develop rules that reflect their circumstances and emerging science to ensure consistent and effective protection for wate rs in the states. As is the case today, nothing in this rule restricts the ability of states to more broadly protect state waters.

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

case

- specific analysis to dete rmine if a significant nexus exists and the water is a “water

of the United States.” This category of case

- specific waters was determined using8

available science

, the law, and in response to public comments received during the public comment period that encouraged the agencies to ensure more consistent determinations and reduce the complexity of conducting jurisdictional determinations.

Under the significant nexus standard articulated in the Supreme Court opinions, waters

are “waters of the United States ” if they significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstate wa ters, or the territorial

seas.

In this final proposed rule

, based in particular on the Connectivity Report and the input

of the EP A science Advisory Board, contained in the administrative record for the rule

t he agencies have identified by rule, five specific types of waters in specific regions that should be subject to a significant nexus analysis and are considered similarly situat ed by rule because they perform similar functions and are located sufficiently close together in the watershed to function as a single system in affecting downstream

waters. These five types of waters are prairie potholes, Carolina and Delmarva bays,

poco sins, western vernal pools in California, and Texas coastal prairie wetlands. As explained in the preamble to the final proposed rule and the Technical Support document contained in the administrative record for the final proposed rule, th e agencies deter mined that such waters should be analyzed “in combination” (as a group, rather than individually) in the watershed that drains to the nearest traditional navigable water, interstate water, or the territorial seas when making a case

- specific analysis of

whe ther these waters have a significant nexus to traditional navigable waters, interstate waters, or territorial seas. “ Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence ” was completed by the E PA

, January 2015 and is incorporated by reference.

The final proposed rule also provides that waters within the 100

- year floodplain or 4,000

feet of the high tide line or the ordinary high water mark of a traditional navigable water, interstate water, the ter ritorial seas, impoundments, or covered tributary are subject to case specific significant nexus determinations. The science available today would not support inclusion of all waters beyond those defined as “adjacent” a s jurisdictional by

rule under the C lean W ater A ct . T he agencies’ experience and expertise have shown there are waters where the science demonstrates that they often do have a significant

effect on downstream waters. In establishing the 4,000 feet “bright line the agencies have balanced pr otection of the environment and clarity of the definition of a water of

the United States , scientific uncertainties and regulatory experience, and established a line that is, in their judgment, reasonable and consistent with the statute and its goals

and o bjectives. It is the judgment of the agencies that the 4,000 feet bright line would capture the vast majority of the waters that have a significant nexus to waters covered by the rule and thus should also be sub ject to jurisdiction under the C lean Water A ct.

In circumstances where waters within the 100

- year floodplain or 4,000 feet of the high tide line or ordinary high water mark are subject to a case

- specific significant nexus analysis and such waters are to be evaluated as “similarly situated,” it must be first

demonstrated that these waters function alike and are sufficiently close to function9

together in affecting downstream waters. The significant nexus analysis must then be

conducted based on considerat ion of the functions provided by those waters in combination in the point of entry watershed. A “similarly situated” analysis is conducted

where i t is determined that there is a likelihood that there are waters that function as a system to affect downstre am water integrity. To provide greater clarity and transparency in determining what functions w ould be considered in determining what constitutes a significant nexus, the final proposed rule lists specific functions that the agencies w ould consider.

Exclusions All existing exclusions from the definition of “waters of the United States” are retained, and several exclusions reflecting longstanding agency practice are added to the regulation for the first time.

Prior converted cropland and waste treatme nt systems have been excluded from the definition of “waters of the United States” definition since 1992 and 1979 respectively, and only ministerial changes are made. These two exclusions remain substantivel y and operationally unchanged.

The agencies add exclusions for waters and features previously identified as generally exempt (e.g., exclusion for certain ditches that are not located in or drain wetlands) in preamble language from Federal Register notices by the USACE on November 13, 1986, and by EPA o n June 6, 1988. This is the first time these exclusions have been established by rule. The agencies for the first time also establish by rule that certain ditches are excluded from jurisdiction, including ditches with ephemeral flow that are not

a reloca ted tributary or excavated in a tributary, and ditches with intermittent flow that are not a relocated tributary, or excavated in a tributary, or drain wetlands . The agencies add exclusions for groundwater and erosional features, as well as exclusions

for some waters that were identified in public comments as possibly being found jurisdictional under proposed rule language where this was never the agencies’ intent,

such as stormwater control features constructed to convey, treat, or store stormwater,

and c ooling ponds that are created in dry land. These exclusions reflect the agencies’ current practice, and their inclusion in the rule as specifically excluded furthers the agencies’ goal of providing greater clarity over what waters are and are not protecte d

under the Clean Water Act

.

With adoption of the final proposed rule

, the definition of waters of the United States would be changed in the regulation . The new definition would be applica ble nationwide and utilized by stakeholders and r egulators in making jurisdictional determinations

under S ection 404 of the Clean Water Act. The USACE completes jurisdictional

determination s at the request of a landowner or developer , during processing of a Department of the Army permit application

, or in conjunction with an enforcement

action . The jurisdictional determination concludes whether lands for which an action may be proposed meet the criteria to be a waters of the United States and therefore subject to the Clean Water Act

. Because the purpos e of the final proposed rule is to define a waters of the United States the implementation of the rule would not affect or10

alter the Department of the Army permit application process or the decision

- making processes in place by the agencies

.

The final proposed rule includes eight standalone categories of jurisdictional waters, maintains existing exemptions for certain categories of activities and waters, and adds additional exclusions for categories of waters that are never covered under the Act. Navig able waters as defined by 40 CFR 110.1, means the waters of the United States, including the territorial seas. The eight jurisdictional water categories are:

(a) For purposes of the Clean Water Act, 33 U.S.C. 1251 et. seq. and its implementing regulations, subject to the exclusions in paragraph (b) of this section, the term

‘‘waters of the United States’’ means: (1) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or for eign commerce, including all waters which are subject to the ebb and flow of the tide; (2) All interstate waters, including interstate wetlands; (3) The territorial seas; (4) All impoundments of waters otherwise identified as waters of the United States

un der this section; (5) All tributaries, as defined in paragraph (c)(3) of th e final proposed rule , of waters identified in paragraphs (a)(1) through (3) of this section; (6) All waters adjacent to a water identified in paragraphs (a)(1) through (5) of this section, including wetlands, ponds, lakes, oxbows, impoundments, and s imilar
waters; (7) All waters in paragraphs (i) through (v) of this paragraph where they are determined, on a case

- specific basis, to have a significant nexus to a water identified in pa ragraphs (a)( 1) through (3) of this section. The waters identified in each of paragraphs (i) through (v) of this paragraph are similarly situated and shall be combined, for purposes of a sig nificant nexus analysis, in the

watershed that drains to the near est water identified in paragraphs (a)(1) through (3) of this section

. Waters identified in this paragraph shall not be combined with waters identified in paragraph (a)(6) of this section when performin g a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (a)(6), they are an adjacent water

and no case

- specific significant nexus analysis is required. (i ) Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually occurr ing in depressions that lack permanent natural outlets, located in the upper Midwest. (ii) Ca rolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, depressional wetlands that occur along the Atlantic coastal plain. (iii ) Pocosins. Poc osins are evergreen shrub and tree dominated wetlands found predominantly along the Central Atlantic coastal plain. (iv ) Western vernal pools. Western vernal pools are seasonal wetlands located in parts of California and associated with topographic depre ssion, soils with poor drainage, mild, wet winters and hot, dry summers.11 (v) T exas coastal prairie wetlands. Texas coastal prairie wetlands are freshwater wetlands that occur as a mosaic of depressions, ridges, intermound flats, and mima mound wetlands lo cated along the Texas

Gulf Coast. (8) All waters located within the 100

- year floodplain of a water identified in (a)(1) through (3) of this section and all waters located within 4,000 feet of the high tide line or ordinary high water mark of a water identi fied in paragraphs (a)(1) through (5) of this section where they are determined on a case

- specific basis to have a significant nexus to a water identified in paragraphs (a)(1 ) through (3) of this section. For waters determined to have a significant nexus, the entire water is a water of the United States if a portion is located within the

100

- year floodplain of a water identified in (a)(1) through (3) of this section or within 4,000 feet of the high tide line or ordinary high water mark. Waters

identified in this paragraph shall not be combined with waters identified in paragraph (a)(6) of this section when performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (a)(6), they are an adjacent water and no case

- specific signific ant nexus analysis is required.

The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (iv) through (viii) of th e section above

.

(b) The following are not waters of the United States” even where they otherwise meet the terms of paragraphs (a)(4) through (8) of this section. (1) Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act. (2) Prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA. (3) The following ditches: (i) Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary. (ii) Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands. (iii) Ditches that do not flow, either directly or through another water, into a water identified in paragraphs (a)(1) through (3) of this section. (4) The following features: (i) Artificially irrigated areas that would revert to dry land should application of water to that area cease; (ii) Artificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log cleaning ponds, or cooling ponds; (iii) Artificial reflecting pools or swimming pools created in dry land; (iv) Small ornamental waters created in dry land;12 (v) Water

- filled depressions created in dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water; (vi) Erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non

- wetland swales, and lawfully constructed grassed waterways; and (vii) Puddles. (5) Groundwater, including groundwater drained throug h subsurface drainage
systems. (6) Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land. (7) Wastewater recycling structures constructed in dry land; detention and

retention basins built for wast ewater recycling; groundwater recharge basins; percolation ponds built for wastewater recycling; and water distributary structures built for wastewater recycling.

2.2 NO ACTION ALTERNATIVE The analysis of the No Action alternative is based upon the exist ing conditions, rules, process, and procedures currently utilized by the agencies in making and enforcing jurisdictional determinations on the lands of the United States that are subject to protection under the Clean Water Act. The USACE is the lead agenc y for completing jurisdictional determinations. Jurisdictional determinations are the process employed by the USACE to complete a formal scientific based evaluation of a parcel of land to

determine whether lands

, for which an action may be proposed

, meet s the criteria to be

a waters of the United States and therefore subject to the Clean Water Act. The USACE completes jurisdictional determinations at the request of a landowner or developer, during processing of a Department of the Army permit application, or in conjunction with an enforcement action. Jurisdictional determinations can be completed in two ways. If a permit applicant elects to set aside the question of jurisdiction and voluntarily opts in to the permitting process, a “preliminary” jurisdict ional determination is adopted. A preliminary jurisdictional determination can avoid the longer process associated with completing an “approved” jurisdictional determination. In Fiscal Year

2014

, 66 percent of jurisdictional determinations completed were preliminary and 34 percent were approved.

The baseline for the No Action alternative analysis is the set of current processes and procedures utilized by the agencies of identifying waters that are subject to jurisdiction under the Clean Water Act based upon the 1986 regulatory definition, and guidance developed as a result of the SWANCC and Rapanos U.S. Supreme Court decisions. The analysis of the No Action alternati ve focuses on the potential impacts to potentially impacted environmental resources that are reasonable and foreseeable.

Existing regulations (last codified in 1986) define waters of the United States as traditional navigable waters, interstate waters, impoundments of waters of the United States, tributaries, the territorial seas, adjacent wetlands, and all other waters that could affect interstate or foreign commerce (33 CFR 328.3). Under this definition, the13

agencies only have Clean Water Act jurisdictional authority over "isolated" waters under the Commerce Clause "if their use, degradation, or destruction could affect in terstate or foreign commerce." Intrastate waters that could affect interstate commerce solely by virtue of their use as habitat for migratory birds are not considered to be waters of the United States, in accordance with the SWANCC decision.

In response to the SWANCC decision, approximately 20 million acres of “isolated” wetlands were removed from consideration as waters of the United States, and the definition of waters of the United States was updated in interagency guidance

.

2.3 ALTERNATIVES CONSIDER ED BUT ELIMINATED

2.3.1 DRAFT RULE ALTERNATIVE

The agencies developed a draft rule (appendix A) in April 2014 which was published in the Federal Register (Vol. 79, No. 76) for a public comment period . A pproximately 1.2

million comments were received

. A dditionally, approximately 400 stakeholder engagements in the form of meetings, webinars, and phone calls were conducted to gather input and listen to stakeholders concerns with the draft rule

. The substantive

comments were evaluated and incorporated int o the final proposed rule

.

The ASA(CW) considered whether to analyze the draft rule in this Environmental Assessment, but removed it from further consideration because it is no longer a viable option to accomplish the purpose and need for action. The draft rule was modified based upon a review of the substantive comments received during the public comment period

. As a result, and recognizing the myriad components of such a rule, it was determined that analyzing the various component elements of the fi nal proposed rule was appropriate. Accordingly, this environmental assessment focus es only on “Adoption of the Final P roposed Rule ” alternative and the No Action alternative (baseline)

.

3.0 ENVIRONMENT AL SETTING

3

. 1

. 1 WATERS OF THE UNITED STATES

Wetland s are lands where saturation with water is the dominant factor determining the nature of soil development and the types of plant and animal communities living in the

soil an d on its surface . Wetland characteristics can vary widely because of regional and local differences in soils, topography, climate, hydrology, water chemistry, vegetation, and other factors, including human disturbance. Wetlands are found from the tundra to the tropics and on every continent except Antarctica.

For regulato ry purposes under the Clean Water Act, the term wetlands means "those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetat ion typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas." (40 CFR 230.3(t))14

Wetlands and open waters in non

- floodplain landscape settings provide numerous

functions that benefit downs tream water integrity (Connectivity Report) . These functions include storage of floodwater; recharge of ground water that sustains river baseflow; retention and transformation of nutrients, metals, and pesticides; export of organisms or reproductive propa gules to downstream waters; and habitats needed for stream species. This diverse group of wetlands (e.g., many prairie potholes, vernal pools, playa lakes) can be connected to downstream waters through surface

- water,
shallow subsurface

- water, and ground

- w ater flows and through biological and chemical

connections.

Streams are the dominant source of water in most rivers, and individually or cumulatively, exert a strong influence on the integrity of downstream waters. T he majority of tributaries are perenni al, intermittent, or ephemeral headwater streams. Headwater streams convey water into local storage compartments such as ponds, shallow aquifers, or stream banks, as well as regional and alluvial aquifers; these local storage compartments are important sources of water for maintaining baseflow in rivers.

All tributary streams are physically, chemically, and biologically connected to downstream rivers via channels and associated alluvial deposits where water and other materials are concentrated, mixed, t ransformed, and transported. Physical, chemical, and biological connections between streams and downstream waters interact via integrative processes such as nutrient spiraling, in which stream communities assimilate and chemically transform large quantiti es of nitrogen and other nutrients that otherwise would be transported directly downstream, increasing nutrient loads and associated impairments due to excess nutrients in downstream waters.

S treams transport water, sediment, wood, organic matter, nutrients, chemical contaminants, and many of the organisms found in rivers. They are biologically connected to downstream waters by the dispersal and migration of aquatic and semiaquatic organisms, including fish, amphibia ns, plants, microorganisms, and invertebrates, that use both upstream and downstream habitats during one or more stages of their life cycles, or provide food resources to downstream communities. In addition to material transport and biological connectivit y, ephemeral, intermittent, and perennial flows influence fundamental biogeochemical processes by connecting channels and shallow ground water with other landscape elements.

Stream and wetland connections have particularly important consequences for

downs tream water integrity. Most of the materials, in rivers, for example, originate from aquatic ecosystems located upstream or elsewhere in the watershed. Longitudinal flows through ephemeral, intermittent, and perennial stream channels are much more

efficie nt for transport of water, materials, and organisms than diffuse overland flows, and areas that concentrate water provide mechanisms for the storage and transformation, as well as transport, of materials.15

In addition to material transport and biological c onnectivity, ephemeral, intermittent, and perennial stream flows influence fundamental biogeochemical processes by connecting channels and shallow ground water with other landscape elements.

Connectivity of streams and wetlands to downstream waters occurs along a continuum

that is described in terms of the frequency, duration, magnitude, timing, and rate of change of water, material, and biotic fluxes to downstream waters. Variations in the degree of connectivity influence the range of functions provided by streams and wetlands, and are critical to the integrity and sustainability of downstream waters.

Human alterations affect the frequency, duration, magnitude, timing, and rate of change of connections between headwater streams, including ephemeral and i ntermittent streams, and downstream waters. Human activities and built structures (e.g., channelization, dams, groundwater withdrawals) can either enhance or fragment longitudinal connections between headwater streams and downstream waters, while

also con straining lateral and vertical exchanges and tightly controlling the tempo ral dimension of connectivity.

The agencies administer the Clean Water Act Section 404 process and the USACE issues four types of permits: standard permits, letters of permission, nationwide permits, and regional general permits. All of these permits may require a jurisdictional determination (preliminary or approved) to be conducted by the USACE to establish th e geographic extent of on

- site waters and wetlands subject to the Clean Water Act. Current practice for the determination of the extent of jurisdictional waters of the United States is based upon regulations dated November 16, 1986, and interagency guidan ce documents dated January 15, 2003 and December 2, 2008.

Aquatic resources protected under the Clean Water Act are regulated under Section 404 of the Act and efforts are made through the regulatory processes to avoid and minimize impacts to the fullest e xtent possible. Compensatory mitigation, in compliance with the law, is required for any unavoidable impacts.

3.1.2 CLIMATE CHANGE The analysis of global climate change related impacts to natural resources and the potential responses to those impacts ha s become a priority as precipitation patterns may shift, extreme heat and cold events may become more common, and sea levels rise (Flournoy 2013). Because wetlands support a number of migratory birds, threatened species, endangered species, interjurisdict ional fish, marine mammals, and other species of concern and have been linked to water quality and other environmental values, their susceptibility to climatic variations is an important consideration. Due in part to their limited capacity for adaptation, wetlands have been considered among the ecosystems most vulnerable to clima te change (Bates et al. 2008).

Global climate change is recognized as a threat to species survival and the health of natural systems. Scientists worldwide are looking at the ecolo gical and hydrological impacts resulting from climate change. Climate change is projected to make future16

efforts to protect, restore

, and manage wetlands more complex. Wetland systems are vulnerable to changes in quantity and quality of their water supply, and it is expected that climate change w ould have a pronounced effect on wetlands through alterations in hydrological regimes with great global variability. Wetland habitat responses to climate change and the implications for restoration w ould be realized differently on a regional and mega

- watershed level, making it important to recognize that specific restora tion and management plan s would require examination by habitat. Floodplains, mangroves, seagrasses, saltmarshes, arctic wetlands, peatlands, freshwater marshes and forests are very diverse habitats, with different stressors

.

Sea level rose during the 20th century, and observatio ns and projections suggest that it

w ould rise at a higher rate during the 21st century. Rising seas increase the risk of coastal flooding, storm surge inundation, coastal erosion and shorel ine retreat, and

wetland loss (The National Research Council, 2012 ). Sea level rise is a major factor in sustainability of wetlands and their function. As sea level rises some wetlands w ould be

inundated and become open water and some non jurisdictional areas w ould experience hydrologic changes such that they would tra nsition to wetlands. This would result in changes in the biota of the United States (wetlands, fish, wildlife, plants) over time. Additionally, there would be changes in the Ordinary High Water Mark for some waters
of the United States as sea level rises

.

4.0 RELEVANT RESOURCES This section contains a description of the relevant resources that could be impacted by

the proposed action. The principal relevant resource for the purposes of this analysis is the set of waters that are subject to a determination under the Clean Water Act as waters of the United States. Covered water bodies include oceans, rivers and streams, lakes, ponds, impoundments (in some circumstance s), wetlands, playa lakes, channels, and in some circumstances, various unique ecological features such as Carolina/Delmarva Bays, Pocosins, Prairie Potholes, Texas Coastal Wetlands, and

Vernal Pools. Other relevant resources discussed include f ish and w i ldlife, r ecreation,

s ocio

- e conomic effects and f lood r isk r eduction.

4.1 AFFECTED ENVIRONMENT

4.1 .1 WATERS OF THE UNITED STATES Streams and wetlands provide many functions, including water supply; groundwater recharge; sediment trapping; nutrient recycling; pollutant removal ; retention and attenuation of floodwaters; shoreline stabilization; runoff storage; contribution of flow; export of organic matter; export of food resources; and provision of life

- cycle dependent

aqu atic habitat (such as foraging, feeding, nesting, breeding, spawning, and nursery

area s ) for fish, shellfish, and wildlife including threatened and endangered species.

The effect of upstream water can be significant even when a water, alone or in

combinat ion, is providing a subset, or even just one, of the functions listed.17

Science demonstrates that the aquatic functions provided by smaller streams, ponds, wetlands and other waters are important for contributing to the chemical, physical, and biological i ntegrity of downstream traditional navigable waters, interstate waters, and the territorial seas. For example, States identify sediment and nutrients as the primary contaminants in the nation’s waters. Sediment storage and export via streams to

downstrea m waters is critical for maintaining the river network, including the formation

of channel features. Although sediment is essential to river systems, excess sediment can impair ecological integrity by filling interstitial spaces, reducing channel capacity

, blocking sunlight transmission through the water column, and increasing contaminant

and nutrient concentrations. Streams and wetlands can prevent excess deposits of sediment downstream and reduce pollutant conce ntrations in downstream waters.

Nutrient recycling results in the uptake and transformation of large quantities of nitrogen and other nutrients that otherwise would be transported directly downstream, thereby decreasing nutrient loads and associated impairments due to excess nutrients in

downstre am waters. Streams, wetlands and open waters improve water quality through the assimilation, transformation, or sequestration of pollutants, including

excess nutrients and chemical contaminants such as pesticides and metals that can degrade downstream water integrity. Nutrient transport exports nutrients downstream and can degrade water quality and lead to stream impairments. Nutrients are necessary to support aquatic life, but excess nutrients lead to excessive plant grow th and hypoxia, in which over

- enrichment causes dissolved oxygen concentrations to fall below the level necessary to sustain most aquatic animal life in the downstream waters. Nutrient recycling, retention, and export can significantly affect downstream ch emical integrity by impacting downstream water quality.

The contribution of flow downstream is an important role, as upstream waters are a cumulative source of the majority of the total mean annual flow to bigger downstream rivers and waters, in ways that influence the recharge of baseflow. Streams, wetlands, and open waters contribute surface and subsurface water downstream, and are the

dominant sources of water in most rivers.

Small streams and wetlands are particularly effective at retaining and atten uating floodwaters. By subsequently releasing (desynchronizing) floodwaters and retaining large volumes of stormwater that could otherwise negatively affect the condition or function of downstream waters, streams and adjacent wetlands and open waters can reduce flood peaks downstream and can also maintain downstream river base flows by recharging alluvial aquifers.

Streams, wetlands, and open waters supply downstream waters with dissolved and particulate organic matter ( e.g. , leaves, wood), which support biological activity throughout the river network. In addition to organic matter, streams, wetlands, and open waters can also export other food resources downstream, such as aquatic insects

that are the food source for fish in downstream waters. The expor t of organic matter and food resources downstream is importan t to maintaining the food webs.18

Streams, wetlands, and open waters provide life

- cycle dependent aquatic habitat (such as foraging, feeding, nesting, breeding, spawning, and use as a nursery area ) for species located in traditional navigable waters, interstate waters, or the territorial seas. Many species require different habitats for different resources ( e.g. , food, spawning habitat, overwintering habitat), and thus move throughout the river net work over their

life

- cycles. For example, headwater streams can provide refuge habitat under adverse conditions, enabling fish to persist and recolonize downstream areas once conditions have improved. These u pstream systems form integral components of downstream food webs, provid ing nursery habitat for breeding fish and amphibians, colonization opportunities for stream invertebrates, and maturation habitat for stream insects, including for species that are critical to downstr eam ecosystem function.

The c onterminous U nited S tates contained an estimated 110.1 million acres of wetlands in 2009 (Dahl 2011). An estimated 95 percent of all wetlands were freshwater and 5 percent were in the marine or estuarine systems. Estuarine e mergent (salt marsh) wetland was the most prevalent type of all estuarine and marine intertidal wetland. Salt marsh made up an estimated 66.7 percent of all estuarine and marine wetland area. Forested wetlands made up the single largest category (49.5 per cent) of wetland in the freshwater system. Freshwater emergent made up an estimated 26.3 percent, shrub wetlands 17.8 percent and freshwater ponds 6.3 percent by area (Dahl 2011).

In 1994, an estimated 174 million acres of wetland existed in Alaska (Hall , 1994). Hawaii had 52,000 acres as of the 1980s (Dahl, 1990). Next to Alaska, Florida (11.4 million) (Dahl, 2005), Minnesota (10.6 million) (Klobier, 2010), Louisiana (7.8 million) (Caffey, 2003), and Texas (7.6 million) (Dahl 1990) have the largest wet land acreage (Dahl 2011)

. Th e wetlands described above were determined using the Cowardin et al

. system that was adopted as a standard by the U.S. Fish and Wildlife Service and subsequently became a Federal Geographic Data Committee (FGDC) . This definition differs from the Regulatory definition of a wetlands as used in the final proposed rule

Wetland area declined by an estimated 62,300 acres between 2004 and 2009 according

to the Status and Trends of Wetland in the Conterminous United States 200 4 to 2009 (Dahl 2011) . The reasons for this loss are complex and reflect economic conditions, land use trends, changing wetland regulation and enforcement measures

, and climatic changes. Certain types of wetland declined while others increased in area. For example, b etween 2004 and 2009, 489,600 acres of former upland s were re

- classified

as wetland s . These increases were attributed to wetland reestablishment and creation on agricultural lands and other uplands with undetermined land use including

undeve loped land, lands in conservation program or idle lands. The rate of wetland reestablishment increased by an estimated 17 percent from previous study period s (1998 and 2004). Conversely, the estimated wetland loss rate increased 140 percent during the sa me time period and as a consequence, national wetland losses have outdistanced gains (Dahl 2011).19

4. 1. 2 FISH AND WILDLIFE The significance of wildlife resources is demonstrated by the multitude of legislative acts that exist to manage and conserve the resource. Pivotal among these are the Coastal Zone Management Act; the Estuary Protection Act; the Fish and Wildlife Coordination Act of 1958, as amended; the Migratory Bird Conservation Act of 1929 as amended; the migratory Bird Treaty Act of 1918; the Endangered Species Act of 1973 (ESA), as amended; the Fish and Wildlife Conservation Act of 1980; the North American Wetlands Conservation Act; Executive Order 13186 Migratory Bird Habitat Protection; and the Magnuson

- Stevens Fishery Conservation and Manag ement of 1976, as amended.

Wildlife resources are critical elements of the ecosystem and important indicators of the health of the ecosystem. W etlands provide habitat for waterfowl and other wildlife,

habitat for rare and endangered species, food production, and plant production

. Wetlands provide valuable habitat for recreational and commercial fishing and nursery areas for a wide variety of finfish and shellfish.

Fish and wildlife resources are important bec ause of the high priority that the public places on their esthetic, recreational, and commercial value. Living marine resources constitute valuable and renewable resources that contribute to the food supply, economy, welfare, health, and recreational oppo rtunities of the Nation (Magnuson

Stevens Act, 1996). Wildlife serve as agents of pollination, are a food source, control the rate and extent by which nutrients are distributed in an ecosystem, contain compounds that are the basis of some medicines, and c an provide a safe, effective and less expensive alternative to chemical pest control.

Threatened and endangered fish, wildlife, and plant species “are of esthetic, ecological, educational, historical, recreational, and scientific value to the N ation and i ts people.” Biodiversity is essential for a healthy and functional ecosystem. There are currently 678 fish and wildlife species listed as threatened and endangered in the United States. Since passage of the Endangered Species Act in 1973, over 1

, 300 end angered and threatened species have been protected in the U nited States and its territories. Male and Bean (Male, 2005)

, in a review of 1988 to 2002 Federal agency reports to the United States Congress, “found that 52 percent of species showed repeated improvements or were not declining over this time. Species status improved over time, with only 35 percent still declining 13 years or more after protection.”

4.1.3 RECREATION

Wetlands have recreational value to the Nation. More than half of all U.S. adults (98 million) hunt, fish, bird watch ing or photograph wildlife (EPA). While individual significance or value of recreation may differ greatly, nationally it is very significant. A 1999 report drafted by the National Recre ation Lakes Study Commission, states “recreation constitutes 10.5 percent of all consumer spending and contributes more than $350 billion annually to the Gross Domestic Product” (1999). The 2011 National Survey of Fishing, Hunting, and Wildlife

- Associated Recreation revealed that over 90 million U.S. residents 16 years old and older participated in wildlife

- related recreation. During that year, 33.1 million people fished, 13.7 million hunted, and 71.8 million participated in20

at least one type of wildlife

- watching activity including observing, feeding, or photographing fish and other wildlife in the United States.

4. 2 SOCIO

- ECONOMIC

Wetlands have a socio

- economic value to the Nation and its residents and visitors

, especially in providing positive ecosystem services that contribute to human well

- being.

Some of these services include preservation of food supply (i.e. rice farming); preservation of habitats and food supply for a variety of species including fish, migratory birds and other organisms; increasing water supply

, purification

, and quality; providing additional resiliency in coastal protection and flood regulation (per Section 4.3) and increasing recreational opportunities and tourism (per Section 4. 1. 3).

These services are difficult to quantify as monetized values, because they are not market goods with a direct dollar value, but instead are qualitative and can be derived by noting in addition to their services, their preventative contribution to flooding and general environmental degradation. Waters of the United States contribute to a desirable quality of life and sustainability of that quality of life. T he EPA estimate s that wetlands could have a value of up to $15 trillion (The Millennium Ecosystem

Ass essment, 1997) and studies of the role of coastal wetlands in reducing the severity of impacts from hurricanes in the United States found that they provided storm damage

reduction services with an estimated value of $23.2 billion per year (Costanza 2008)

.

4.3 FLOOD RISK REDUCTION Wetlands serve a vital role in temporarily storing storm water during flooding events. Wetlands function as natural sponges that trap and slowly release surface water, rain, snowmelt, groundwater and flood waters. Trees, root mats, and other wetland vegetation also slow the speed of flood waters and distributes them more slowly over the floodplain. This combined water storage and braking action lowers flood heights

and reduces erosion. As discussed in the connecti vity Report w etlands within and downstream of urban areas are particularly valuable, counteracting the greatly

increased rate and volume of surface

- water runoff from pavement and buildings.

A one

- acre wetland can typically store about three

- acre feet of water, or up to one and

half million gallons. The holding capacity of wetlands helps control floods and prevents water logging of crops. Preserving and restoring wetlands, together with other water retention, can often provide the level of flood risk red uction otherwise provided by expensive dredge operations and le vees.

Coastal wetlands can have an impact on storm surge associated with coastal storms. Wetland plants help retard shoreline erosion by holding the soil in place with their roots

and absorbing the energy of waves.21

5.0 ENVIRONMENTAL CONSEQUENCES

5.1 WATERS OF THE UNITED STATES

5.1.1 ADOPTION OF THE FINAL PROPOSED RULE ALTERNATIVE (Proposed Action) Adoption of the final proposed rule would have no direct effect on the environment. Indirect effects under NEPA are those caused by an action that are later in time or farther removed in distance but are still reasonably foreseeable. See 40 C.F.R. 1508.8(b). Compared to a baseline of the existing regulations and historic p ractice

, prior to the SWANCC case , th e adoption of the final proposed rule results in a decrease in Clean Water Act jurisdiction because the scope of regulatory jurisdiction in this rule is narrower than that under the existing regulation. However, when c ompared to the No Action alternative, the set of current processes and procedures utilized by the agencies of identifying waters that are subject to jurisdiction under the Clean Water Act based upon the 1986 regulatory definition, and guidance developed as a result of the

SWANCC and Rapanos U.S. Supreme Court decisions

, this rule is projected to result in

a incremental increase in Clean Water Act jurisdiction because the uncertainty caused by the efforts to implement the Supreme Court cases, and the resulting caution in asserting jurisdiction, would be resolved by the rule which provides clarity about which waters are covered by the Clean Water Act.

Based upon an analysis performed as a part of the economic analysis, a ra ndom

selection of 188 negative jurisdictional determinations made in Fiscal Years 2013 and 2014 covering 32 states, in which waters were found to not be subject to jurisdiction

under the Clean Water Act , were reviewed and a determination was made if the wa ters in those jurisdictional determinations would be determined to be positive with adoption

of the final proposed rule

. The analysis used negative jurisdiction determinations from the three categories of waters of the United States: streams, wetlands, an d other

waters. Of the 188 jurisdictional determinations 65 percent were streams, 29 percent were wetlands, and 6 percent were other waters. Based upon that analysis it was

determined that there would be an increase of between 2.8 and 4.6 percent in the

w aters found to be jurisdictional with adoption of the rule

. The majority of the change occurring in the determinations would be in the category for waters that fit the “Other Waters” category.

A positive jurisdictional det ermination is a determinatio n made by the USACE

that finds the waters/wetlands to be waters of the United States.

Negative jurisdictional determination is a determination made by the USACE

that finds the waters/wetlands to not be waters of the United States.

Upon request the USACE evaluates a parcel of land for jurisdiction, as such, a jurisdictional determination may include jurisdictional areas as well as non

jurisdictional areas. Additionally, in many cases a single jurisdictional

determination evaluates all water s the on the parcel of property, t hus, one or

more water s may be included in a single jurisdictional determination and t hose

water may fal l into different categories of waters of the U nited S tates

.22

For the purposes of the analysis preformed in this EA, a subsample of the total number of jurisdictional determinations made were examined. Based upon that analysis a

determination was made that there would be an incremental increase in the number of

waters f ound to be subject to jurisdiction under the Clean Water Act. No analysis was

made to determine the actual number of acres of waters that would be and for this

reason i t is not possible to estimate the number of acres that w ould be captured by this

increase in positive jurisdictional determinations

. As described below , the majority of the incremental change in jurisdiction would occur in the category of “Other Waters.”

Other W aters are those waters that do not fit within the categories of waters ju risdictional by rule and would only be jurisdictional upon a case

- specific determination

that those waters have a significant nexus to a water which is currently used, was used in the past, or may be susceptible to use in interstate or foreign commerce, in cluding all waters which are subject to the ebb and flow of the tide; all interstate waters, including interstate wetlands; and the territorial seas. Based upon the analysis of the negative jurisdictional determinations that would be found to be positive with adoption of the rule the following impacts could be expected to occur:

Streams

- the estimated percentage of positive jurisdictional determinations for

streams w ould go from 99.3 percent to 100 percent (tributaries) under the new rule. (a)(1)

Adjacent Wetlands

- the estimated percentage of positive jurisdictional determinations

for wetlands w ould go from 98.9 percent to 100 percent under the new rule. (a)(6)

The estimated change in positive jurisdictional determina tions for Other Waters is estimated at 34.5 percent. ((a)(6), (a)(7), and (a)(8)) Other Waters (adjacent waters)

– estimated t hat there would be up to a 17.1 percent increase in positive jurisdictional determinations for "other waters

, " based on the assump tion that they are "adjacent waters." (a)(6) Other Waters (significant nexus)

- estimated that there would be up to a 15.7 percent increase in positive jurisdictional determinations for "other waters

, " based on the assumption that there is a significant nexus to a nearby water of the United States. (a)(7) Other Waters (Bright Line)

- estimated that there would be up to a 1.7 percent increase in positive jurisdictional determinations for “other waters

, ” based on the assumption that there is a significant n exus to a (a)(1) to (a)(5) waters of

the United States within the 100

- year floodplain or 4,000 feet of a high tide line or ordinary high water mark of a waters of the United States. (a)(8)

As discussed above, estimates are that under paragraph (a)(8) of the final proposed

rule there could be a 1.7 percent increase in positive jurisdictional determinations, there is also the possibility that some wetlands that might have been found jurisdictional as “adjacent” under current r ules and practice, would no longer be jurisdictional under the final proposed rule . Specifically, in a few instances in the past the USACE has determined that there were jurisdictional wetlands based on a surface or subsurface hydrologic connection to regulated waters, but those wetlands would fall outside either23

the 100

- year floodplain or 4,000 feet from the high tide line or ordinary high water mark

. These wetlands would have been considered “ adjacent” under the current regulation, but would not be “adjacent” based on the definition of neighboring in the final proposed

rule. However, in the agencies experience the vast majority of wetlands with a significant nexus are located within the 4,000 foot boundary. I t is anticipate d that the incremental decrease in jurisdiction al determinations for wetlands outside the 100 year floodplain or 4,000 feet of the high tide line or ordinary high wat e r mark of jurisdictional

waters would correspondingly be small. I t is also speculative and hypothetical as to what the environmental consequences would be for such waters beyond the 100

- year floodplain or 4,000 feet if they are not subject to the S ection 404 permitting process. The consequences would depend on other factors not related to this rule, such as the nature of any activity proposed for such waters and the waters affected, and any other requirements (e.g., Section 9 of the Endangered Spec ies Act, or state and local law)

that may be applicable

.

With adoption of the final proposed rule there would be an incremental increase in the amount of waters of the United States subject to jurisdiction under the Clean Water Act, and any proposals that would impact jurisdictional areas would be subject to review under the USACE public interest analysis, the section 404(b)(1) Guidelines and any other applicable federal requirements (e.g., NEPA, section 7 of the ESA) that would not

occur if areas were not subject to jurisdiction (No Action). Under the Section 404(b)(1) guidelines, some impacts to waters may be avoided or minimized as a result of the implementation of the proposed action and for areas that are impacted due to unavoidable actions the expect ation is that the functional losses would be offset by compensatory mitigation.

5.1.2 NO ACTION ALTERNATIVE Between 2004 and 2009, an estimated 62,300 acres of wetlands were lost in the

conterminous U nited S tates . Various factors have contributed to the decline in the loss rate including implementation and enforcement of wetland protection measures and elimination of some incentives of wetland drainage. Certain types of wetland declined while others increased in area. For example, between 2004 an d 2009 , 489,600 acres of uplands were re

- classified as wetlands. These increases were attributed to wetland reestablishment and creation on agricultural lands and other uplands with undetermined land use including undeveloped land, lands in conservation program or idle lands. The rate of wetland reestablishment increased by an estimated 17 percent from previous study period (1998 and 2004). Conversely, the estimated wetland loss rate increased 140 percent during the same time period and as a consequence, natio nal wetland losses have outdistanced gains (Dahl 2011).

Under the No Action Alternative, t he cur rent procedures, processes

, and definitions used by the USACE to complete jurisdictional determinations would continue to be

utilized and the process and procedures would not be impacted by the changes to jurisdiction with the adoption of the final proposed rule

. However, as discussed in

Section 5.1.1, under this alternative, the scope of Clean Water Act jurisdiction and permitting would be inc rementally smaller than under the f inal proposed r ule alternative

.24

5.2 FISH AND WILDLIFE

5.2.1 ADOPTION OF THE FINAL PROPOSED RULE ALTERNATIVE (Proposed Action) The reasonable and foreseeable future for the biota of the United States (wetlands, fish, wildlife, plants) would primarily be changes associated with the e ffects of climate change and continued pressure from parties interested in development. Low lying

w etlands would be completely inundated as waters rise, while some of the land at higher elevations would experience hydrologic changes such that they would t ransition

to wetland habitats.

Under the final proposed rule there would be an incremental increase in the amount of waters of the United States subject to jurisdiction under the Clean Water Act, and any proposals that would impact jurisdictional areas would be subject to review under the

USACE public interest analysis, the Section 404(b)(1) Guidelines and any other applicable federal requiremen ts (e.g. NEPA, S ection 7 of the ESA) that would not occur

if a reas were not subject to jurisdiction (No Action). Under the Section 404(b) ( 1 ) guidelines (40 C.F.R. part 230)

, s ome impacts to biota may be avoided or minimized as a result of the implementation of the proposed action and for areas that are impacted due to unavoidable actions the expectation is that the functional losses would be offset by compensatory mitigation. The additional protections associated with the incremental increase in the amount of waters subject to Clean Water Act jurisdiction is expected to have a beneficial impact on fish and wildlife for which the protected waters provide

habitat.

5.2.2 NO ACTION ALTERNATIVE Impacts to fish and wildlife would continue to occur as a result of climate change and development. Existing wetlands would be impacted negatively as waters rise and other areas would experience hydrologic changes and transition in to wetland habitats.

Im pacts to areas as a result of development, would continue in accordance with existing practice and areas not subject to jurisdiction under the Clean Water Act would occur

and not be subject to requirements related to m itigation (avoid, minimize, or

compens atory mitigation) required in the Section 404 program

.

Impacts to Threatened and Endangered Species would be similar in nature and scope to those discussed above for Fish and Wildlife. Potential impacts from taking s on non

jurisdictional lands would cont inue.

5.3 RECREATION

5.3.1 ADOPTION OF THE FINAL PROPOSED RULE ALTERNATIVE (Proposed Action) Under the proposed action, there would be an incremental increase in the amount of waters of the United States subject to jurisdiction and therefore protected under the Clean Water Act. Thus, any proposed projects that would impact the areas subject to jurisdiction would be subject to review under the USACE pu blic interest analysis, the section 404(b)(1) Guidelines and any other applicable fed eral requirements (e.g., NEPA, S ection 7 of the ESA) that would not occur if the areas were not subject to25

jurisdiction. Under the section 404(b)(1) Guidelines, some impa cts to biota may be avoided or minimized as a result of the implementation of the proposed action and for areas that are impacted due to unavoidable actions the expectation is that the functional losses would be offset by compensatory mitigation. The addi tional protections associated with the incremental increase in the amount of waters subject to Clean

Water Act jurisdiction is expected to have a beneficial impact on recreation, based on the increase in wildlife available for hunting, fishing, bird watchi ng, and photography.

5.3.2 NO ACTION ALTERNATIVE The Nation’s wetlands provide visitors with opportunities to experience unique and rewarding adventures in a natural environment. Recreation opportunities would continue along existing trends under this a lternative.

5. 4 SOCIO

- ECONOMIC

5. 4 .1 ADOPTION OF THE FINAL PROPOSED RULE ALTERNATIVE (Proposed Action)

T here would be an incremental increase in the amount of waters of the United States subject to jurisdiction and therefore protected under the Clean Water Act

. Based upon the information available there would be approximately a 2.8 to 4.6 percent increase in jurisdictional waters with adoption of the rule. This increase in jurisdiction expected to impact several aspects of the regula tory program; specifically Section s 410, 402 and
404, and each program could be impacted in different ways.

A n economic analysis was prepared to estimate the incremental costs and benefits that may result from any change in the number of positive jurisdic tional determinations

associated with C lean W ater A ct programs relying on the definition of waters of the

United States. The economic report entitled: “ Economic Analysis of the EPA

- Army

Clean Water Rule”

– May 2015 is incorporated by reference into this Environmental

Assessment. T he agencies concluded that adoption of the new rule would result in an increase in the number of positive jurisdictional determinations and an associated

increase in both costs and benefits that derive from conducting of Clean Water Act programs, based on an approximate 2.8 to 4.6 percent increase in positive jurisdictional determinations for waters annually, due to adoption of the new rule when compared with current process and procedures.

To estimate annual costs and benefits, the agencies uniformly applied the 2.8 and 4.6 percent increment al change in jurisdiction to the total costs and benefits for the Sections 311, 401, 402 (stormwater, pesticide general permit, Confined Animal Feeding Operation permits (CAFO) ) and 404 programs to account for an estimated increase in permitting and regulatory activitie s that would result. T h e increase varies across programs and is based upon varying assumptions about the number of permits and the

cost o f permits involved for each program. T o estimate costs, the agencies relied on existing annual administrative and compliance cost information, and updated cost figures to 2014 dollars. On the benefits side, the focus of the benefits analysis is based

on an anticipated increase in C lean W ater A ct 404 permits that would result in ecological benefits from those permitted losses being offset through compensatory26

mitigation acres. The agency estimated the potential benefits from C lean W ater A ct 404 compensato ry mitigation based upon a benefits transfer analysis from approximately 12

studies across the U nited S tates that used a contingent valuation survey method to measure willingness to pay for the preservation of wetlands similar to the type likely to be prot ected by adoption of this rule. There are several costs and benefits that the agencies were unable to monetize, including permitting time and project redesign costs under Section 404, as well as the benefits of Section 404 stream mitigation, benefits of

t he 402 pesticide general permit, and benefits of the 401 certification program. The agencies assumed, however, that costs and benefits associated with each of these programs would be relatively small.

The table below summarizes the range of costs and ben efits that the agencies estimated for each program, given an assumed positive 2.8 to 4.6 percent change in the number of waters affected by new jurisdi ctional determinations.

Estimated Annual Indirect Costs and Benefits

Annual Costs (FY14$ millions) Annual Benefits (FY14$ millions)

Clean Water Action Section Low High Low High

402 CAFO Administration $0.3 $0.3 $6.2 $10.8 402 CAFO Implementation $9.9 $9.9

402 Stormwater Administration $0.5 $0.5 $47.5 $60.2 402 Stormwater Implementation $47.8 $59.6

404 Permit Application $47.0 $80.3 $501.2 $501.2 404 Mitigation

– Wetlands $ 89.0 $2 49.4

SUBTOTAL $194.5 $400.0 $554.9 $572.3

311 Compliance $12.7 $12.7 not quantified

401 Administration $1.3 $1.3 not quantified

402 Pesticide General Permit
Implementation $5.4 $5.9 not quantified
404 Mitigation

– Streams $22. 8 $4 5

. 2 not quantified

TOTAL $236.8 $ 465.1 $554.9 $572.3

I mplementation o f the rule is expected, based upon past experience in implementing

rules

, to have a lag time for policy and rules change to occur, such that permitting and

other resource regulatory programs c ould show a temporary impact in terms of

increased cost and realized benefits.27

5. 4 .2 NO ACTION ALTERNATIVE If No Action is taken juri sdictional determinations would continue to be completed according to the process and procedures in place today. The ambiguity that exists under current regulations and practices following recent Supreme Court decisions, under which virtually all waters a nd wetlands across the country theoretically could be subject to a case

- specific jurisdictional determination would continue to be an issue for landowners, developers and regulators.

5. 5 FLOOD RISK REDUCTION

5. 5

. 1 ADOPTION OF THE FINAL PROPOSED RULE ALTERNATIVE (Proposed Action) Under the proposed action, there would be an incremental increase in the amount of waters of the United States subject to jurisdiction and therefore protected under the Clean Water Act. Thus, any proposed projects that would impact the areas subject to jurisdiction would be subject to review under the USACE pub lic interest analysis, the

Section 404(b)(1) Guidelines and any other applicable federal requirements (e.g., NEPA, S ection 7 of the ESA) that would not occur if the areas were not subjec t to jurisdiction (No Action).

Under the Section 404(b(1) Guidelines, potential reduction in flood storage capacity would be avoided or minimized as a result of the adoption of the proposed action and for areas that are impacted due to unavoidable actions the expectation is that the losses would be offset by compensatory m itigation. The additional protections associated with the incremental increase in the amount of waters subject to C lean W ater A ct jurisdiction is expected to have a beneficial impact on flood risk reduction, based on the increase in wetland capacity for s torage and slow release of snowmelt, groundwater, and flood

waters.

5. 5 .2 NO ACTION ALTERNATIVE

As discussed in Section 5.1.2, b etween 2004 and 2009, an estimated 62,300 acres of wetlands were lost in the conterminous US. Certain types of wetland declined while others increased in area. For example, between 2004 and 2009, 489,600 acres of uplands were re

- classified as wetlands (Dahl 2011) . These increases were attributed to wetland reestablishment and creation on agricultural lands and other upla nds with undetermined land use including undeveloped land, lands in conservation program or

idle lands. These trends and associated impacts on flood storage capacity would be expected to continue as a result of natural and manmade factors

.

5. 6 CUMULATIV E IMPACT “Cumulative impact” is defined by the Council on Environmental Quality regulation as the impact on the environment resulting from the incremental impact of the action when added to other past, present, and reasonably foreseeable future federal or non

- federal

actions. 40 C.F.R. 1508.7.

The effects of adopting the rule would be added to a multitude of past, present, and reasonably foreseeable federal and non

- federal activities that have or may benefit or28

adverse ly affect these waters. This include s environmental regulation, development, agriculture, and other activities and climate change.

The incremental impact of the rule when added to these other actions do not differ in a measurable (quantitative) way from the indirect effects of the rule discussed qualitatively throughout Section 5. The anticipated incremental increase in jurisdiction w ould not have any unique or reasonably foreseeable cumulative impact beyond the application of

the S ection 404 permit ting program. Similarly, no cumulative impact is anticipated for waters that may no longer be subject to Section 404 permitting.

6 .0 COORDINATION AND PUBLIC INVOLVEMENT IN SHAPING THE PROPOSED RULE The public was provided with significant environmental information about the proposed rule in order to allow members of the public to provide their views and inform agency

decision

- making. The draft rule was published in the Federal Register (Vol. 79, No. 76) on April 21, 2014 for public comment through July 21, 2014 and extended at the request of stakeholders until November 14, 2014. After publication of the draft rule approximately 400 stakeholder engagements in the form of meetings, webinars, and phone calls were conducted

.

Of the a pproximately 1.2 million comments received, the vast majority of the comments were form letters from mass letter writing campaigns . A subset of the 1.2 million

comments, 20 ,567 were identified as unique and evaluated furthe r to determine if the comments were substantive. Responses to the substantive comments have been developed by the Environmental Protection Agency and the U.S. Army Corps of Engineers and are contained in the rulemaking

. Docket EPA

- HQ

- OW

- 2011

- 0880

.

7.0 CONCLUSION With adoption of the proposed action, there w ould be an incremental increase in the amount of waters of the United States subject to jurisdiction and therefore protected

under the Clean Water Act. Thus, any proposed projects that would imp act the areas subject to jurisdiction would be subject to review under the USACE public interest analysis, the Section 404(b)(1) Guidelines and any other applicable federal requirements (e.g., NEPA, S ection 7 of the ESA) that would not occur if the areas w ere not subject to jurisdiction (No Action). Some adverse impacts to the aquatic

environment w ould be avoided or minimized as a result of the adoption of the proposed action. For areas that are impacted due to unavoidable actions

, the assumption is that

the functional losses would be addressed through compensatory mitigation.

In respect to the Socio

- Economic analysis of the costs and benefits conducted by the

EPA

, indicat ions are that indirect incremental benefits exceed indirect incremental

costs. The analysis acknowledges that there is a possibility that costs (and benefits) may be overstated because each new jurisdictional water may not be affected by all Clean Water Act programs simultaneously, and in some cases a particular activity affecting a waters of the United States may be exempt from permitting under the Clean29

Water Act. The water in the “other waters” category represents the greatest potential for changes in jurisdictional determinations as a result of adoption of the rule . However,

it is likely that the benefits may be understated because the benefits are based primarily on compensatory mitigation acres (fro m the S ection 404 program) and that the willingness to pay analysis used to value these acres are from existing studies

conducted b etween 1986 and 2000. In recent years t he public has become more aware of the value of wetlands and updated studies might show a significant increase in willingness to pay associated with preserving wetlands, particularly when wetlands are

tied to a concr ete utility, such as improved water quality, hunting and fishing habitat, general recreation, or flood control.

8 .0 PR E PARED BY

Gib Owen US. Army, Office of the Assistant Secretary of the Army for

Civil Works

Marianne Matheny

- Katz US. Army, Office of the Assistant Secretary of the Army for

Civil Works

Tom Hughes US. Army, Office of the Assistant Secretary of the Army for

Civil Works

Sandra Stiles US. Army Corps of Engineers, Mississippi Valley Division,

New Orleans District

Elizabeth Behrens US. Army Corps of Engineers, Mississippi Valley Division,

New Orleans District30

9 .0 REFERENCES Bates, B.C., Z.W. Kundzewicz, S. Wu, and J.P. Palutikof (eds.). 2008. Climate Change and Water. Technical Paper of the Intergovernmental Panel on Climate Change, IPCC Secretariat, Geneva, 210 p

Caffey, R.H. and M. Schexnayder. 2003. "Coastal Louisiana and South Florida: A Comparative Wetland Inventory," Interpretive Topic Series on Coastal Wetland

Restoration in Louisiana , Coastal Wetland Planning, Protection, and Restoration Act (eds.), National Sea Grant Library. 8 pp. http://lacoast.gov/new/Data/Reports/ITS/Florida.pdf

Costanza, Robert, Octavio Pérez

- Maqueo, M. Luisa Martinez, Paul Sutton, Sharolyn J.
Anderson, and Kenneth Mulder. 2008. "The Value of Coastal We tlands for Hurricane Protection." AMBIO: A Journal of the Human Environment 37 (4):241

- 248.

Dahl, T.E. 2011. Status and Trends of Wetlands in the Conterminous United States

2004 to 2009. U.S. Department of the Interior, Fish and Wildlife Service,
Washingt on, D.C. 108 pp. http://www.fws.gov/wetlands/Status

- And

- Trends

2009/index.html

Dahl, T.E. 1990. Wetlands Losses in the United States 1780's to 1980's. U.S. Department of the Interior, Fish and Wildlife Service, Washington, D.C. 13 pp. http://www.fws.gov/we tlands/Documents/Wetlands

- Losses

- in

- the

- United

- States

1780s

- to

- 1980s.pdf

Dahl, T.E. 2005. Florida's Wetlands: An Update on Status and Trends 1985 to 1996

. U.S. Department of the Interior, Fish and Wildlife Service, Washington, D.C. 80

pp. http://www.fws.go v/wetlands/Documents/Floridas

- Wetlands

- An

- Update

- on

Status

- and

- Trends

- 1985

- to

- 1996.pdf

Federal Geographic Data Committee. 1996. On

- line resource: http:// www.fgdc.gov/standards/projects/ FGDC

- standards

- projects/ wetlands/

Flournoy, Alyson C and A. Fischman . 2013. Wetlands Regulation in an Era of Climate Change: Can Section 404 Meet the Challenge? Geo. Wash. J. Energy & Envtl.
L., S ummer 2013, at 67, available at http://scholar ship.law.ufl.edu/facultypub/368

Hall, Jonathan V., W.E. Frayer, and Bill O. Wilen. 1994. Status of Alaska Wetlands . U.S.
Department of the Interior, Fish and Wildlife Service, Washington, D.C. 36 pp.
http://www.fws.gov/wetlands/Documents/Status

- of

- Alaska

- Wetlands.pdf

Klobier, Steven M. 2010. Status and Trends of Wetlands in Minnesota: W etland
Quantity Baseline . Minnesota Department of Natural Resources. Ecological and31

Water Resource s Report, Saint Paul, MN. 28 pp
http://files.dnr.state.mn.us/eco/wetlands/wstmp_report_final_121410.pdf

Male, Timothy D. and Michael J. Bean. 2005. Measuring Progress in US Endangered Species Conservation. 7 pp., available at http://www.esf.edu/efb/gibbs/efb413/Male

- Bean.2005.pdf

National Research Council. 2012. Sea

- Level Rise for the Coasts of California, Oregon,

and Washington: Past, Present, and Future, Washington, DC: The National

Academies Press. 201 pp

National Atlas. Average Annual Precipitation, 1961

- 1990

U.S. Department of the Interior, U.S. Geological Survey. URL: http://geomaps.wr.usgs.gov/parks/province/index.html Flournoy, Alyson C and A. Fischman. 2013. Wetlands Regulation in an Era of Climate Change: Can Section 404 Meet the Challenge? Geo. Wash. J. Energy & Envtl. L., Summer 2013, at 67,

available at http://scholarship.law.ufl.edu/facultypub/368

U.S. Environmental Protection Agency. 2015. Connectivity of Streams and Wetlands to
Downstream Waters: A Review and Synthesis of the Scientific Evidence (Final
Report) . EPA/600/R

- 14/475F. U.S. Environmental Pro tection Agency, Washington,

D.C.

Upon request hard copies of any materials or reports reference in this report can be
obtained at any USACE District and Division office s and EPA regional and field offices1 

# FINAL

ENVIRONMENTAL ASSESSMENT

ADOPTION OF

THE CLEAN WATER RULE: DEFINITION OF WATERS OF THE UNITED STATES

APPENDIX A

PROPOSED DRAFT RULE (APRIL 2014)

26 May 201523 

## Appendix A

– Proposed Rule

(a) For purposes of all sections of the Clean Water Act, 33 U.S.C. 1251 et. seq. and its implementing regulations, subject to the exclusions in subsection (b) of this section,

the term “waters of the United States” means: (1) All waters which are currently used, were used in the past, or may be

s usceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (2) All interstate waters, including interstate wetlan ds; (3) The territorial seas; (4) All impoundments of waters otherwise defined as waters of the United States under this definition; (5) All tributaries of waters identified in paragraphs (1) through (3) of this section; (6) All waters, including wetla nds, adjacent to a water identified in paragraphs (1) through (5) of this section; and (7) On a case

- specific basis, other waters, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including

wetl ands, located in the same region, have a significant nexus to a water identified in paragraphs (1) through (3) of this section.

(b) The following are not “waters of the United States” (1) Waste treatment systems, including treatment ponds or lagoons, des igned to meet the requir ements of the Clean Water Act. (2) Prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authorit y regarding Clean Water Act jurisdiction remains with EPA; and, (3) Artificially irrigated areas that would revert to upland should application of irrigation water to that area cease; artificial lakes or ponds created by excavating and/or diking dry land a nd used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing; artificial reflecting pools or swimming pools created by excavating and/or diking dry land; small ornamental waters created by excavating and/or diking d ry land for primarily aesthetic reasons;

water

- filled depressions created incidental to construction activity; groundwater drained through subsurface drainage systems; gullies and rills; non

- wetland swales; and puddles; (4) Ditches that are excavated who lly in uplands, drain only uplands or non

jurisdictional waters, and have no more than ephemeral flow; and (5) Ditches that do not contribute flow, either directly or through other waterbodies, to a water identified in paragraphs (a)(1) through (a)(3) of this section.

(c) Definitions Adjacent : The term adjacent means bordering, contiguous or neighboring. Waters, including wetlands, separated from other waters of the United States by man

-4

made dikes or barriers, natural river berms, beach dunes and t he li ke are “adjacent waters.”

Neighboring : The term neighboring , for purposes of the term “adjacent” in this section, includes waters located within the riparian area or floodplain of a water identified in paragraphs (a)(1) through (a)(5) of this section, or waters with a surface or shallow subsurface hydrologic connection t o such a jurisdictional

water.

Riparian area : The term riparian area means an area bordering a water where surface or subsurface hydrology influence the ecological processes and plant

and animal community structure in that area. Riparian areas are transitional areas between aquatic and terrestrial ecosystems that influence the exchange of energy and mate rials between those ecosystems.

Floodplain : The term floodplain means an area borderin g inland or coastal waters that was formed by sediment deposition from such water under present climatic conditions and is inundated during periods of moderate to high water flows.

Tributary : The term tributary means a water body physically characterized by the presence of a bed and banks and ordinary high water mark, which contributes flow, either directly or through other water bodies , to a water identified in paragraphs (a)(1) through (a)(3) of this section. A water body that otherwise qualifies as a tributary under this definition does not lose its status as a tributary if, for any length, there are one or more man

- made breaks (such as bridges, culverts, pipes, or dams), or one or more natural breaks (such as wetlands at the head of or along the run of a stream, debris piles, boulder fields, or a stream that flows underground) so long as a bed and banks and an ordinary high water mark can be identified upstream or downstream of the break. In addition, wetlands are tributaries (even if they lack a bed and banks and ordinary high water mark) if they contribute flow, either directly or through other water bodies to a water identified in paragraphs (a)(1) through (a)(3) of this section. A tributary, including wetlands, can be a natural, man

- altered, or m an

- made water body and includes waters such as rivers, streams, lakes, impoundments, canals, and ditches not excluded in paragraph (b)(4) and (b)(5) of this section.

Wetlands : The term wetlands means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditio ns. Wetlands generally include swamps, marshes, bogs and similar areas.

Significant nexus : The term significant nexus means a more than speculative or insubstantial effect that a water, including wetlands, either alone or in

combination with other simila rly situated waters in the region (i.e., the watershed that drains to a water identified in paragraphs (a)(1) through (3) of this section),5

has on the chemical, physical or biological integrity of a water identified in paragraphs (a)(1) through (3) of this section. Other waters, including wetlands, are similarly situated when they perform similar functions and are located sufficiently close together or close to a “water of the U.S.” so that they can be evaluated as a single landscape unit with regard to th eir effect on the chemical, physical, or biological integrity of a water identified in paragraphs (a)(1) through (a)(3) of this section.1 

# FINAL

ENVIRONMENTAL ASSESSMENT

ADOPTION OF

THE CLEAN WATER RULE: DEFINITION OF WATERS OF THE UNITED STATES

APPENDIX B

FINAL PROPOSED RULE

26 May 201523



## Appendix B

– Final P roposed Rule

Title 33

— Navigation and Navigable Waters For the reasons set out in the preamble, title 33, chapter I of the Code of Federal Regulations is amended as follows:

PART 328

— DEFINITION OF WATERS OF THE UNITED STATES 1. The authority citation for part 328 continues to read as follows: Authority: The Clean Water Act, 33 U.S.C. 1251 et.seq. 2. Section 328.3 is amended by removing the introductory text, redesignating paragraph (f) as paragraph (d), and revising paragraphs (a)

— (e), to read as follows:

§ 328.3 Definitions. (a) For purposes of the Clean Water Act, 33 U.S.C. 1251 et. seq. and its implementing regulations, subject to the exclusions in paragraph (b) of this section, the term ‘‘waters of the United States’’ means: (1) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or for eign commerce, including all waters which are subject to the ebb and flow of the tide; (2) All interstate waters, including interstate wetlands; (3) The territorial seas; (4) All impoundments of waters otherwise identified as waters of the United

States un der this section; (5) All tributaries, as defined in paragraph (c)(3) of this section, of waters identified in paragraphs (a)(1) through (3) of this section; (6) All waters adjacent to a water identified in paragraphs (a)(1) through (5) of this section, in cluding wetlands, ponds, lakes, oxbows, impoundments, and similar waters; (7) All waters in paragraphs (i) through (v) of this paragraph where they are determined, on a case

- specific basis, to have a significant nexus to a water identified in paragraphs ( a)(1) through (3) of this section. The waters identified in each of paragraphs (i) through (v) of this paragraph are similarly situated and shall be combined, for purposes of a significant nexus analysis,

in the watershed that drains to the nearest water identified in paragraphs (a)(1) through (3) of this section. Waters identified in this paragraph shall not be combined with waters identified in paragraph (a)(6) of this section when performing a significant nexus analysis. If waters identified in this par agraph are also an adjacent water under paragraph (a)(6), they are an adjacent water

and no case

- specific significant nexus analysis is required. (i ) Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually occurring in depr essions that lack permanent natural outlets, located in the upper Midwest. (ii) Ca rolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, depressional wetlands that occur along the Atlantic coastal plain. (iii ) Pocosins. Pocosins are e vergreen shrub and tree dominated wetlands found predominantly along the Central Atlantic coastal plain.4 (iv ) Western vernal pools. Western vernal pools are seasonal wetlands located in parts of California and associated with topographic depression,

soils with poor drainage, mild, wet winters and hot, dry summers. (v) Texas coastal prairie wetlands. Texas coastal prairie wetlands are freshwater wetlands that occur as a mosaic of depressions, ridges, intermound flats, and mima mound wetlands located along the Texas

Gulf Coast. (8) All waters located within the 100

- year floodplain of a water identified in (a)(1) through (3) of this section and all waters located within 4,000 feet of the high tide line or ordinary high water mark of a water identified in para graphs (a)(1) through (5) of this section where they are determined on a case

- specific basis to have a significant nexus to a water identified in paragraphs (a)(1 ) through (3) of this section. For waters determined to have a significant nexus, the

entire water is a water of the United States if a portion is located within the

100

- year floodplain of a water identified in (a) (1) through (3) of this section or within 4,000 feet of the high tide line or ordinary high water mark. Waters identified in this para graph shall not be combined with waters identified in paragraph (a)(6) of this section when performin g a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (a)(6), they are an adjacent water and n o case

- specific signific ant nexus analysis is required.

(b) The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (a)(4) through (8) of this section. (1) Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act. (2) Prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA. (3) The following ditches: (i) Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary. (ii) Ditches with intermittent flow that are not a rel ocated tributary, excavated in a tributary, or drain wetlands. (iii) Ditches that do not flow, either directly or through another water, into a water identified in paragraphs (a)(1) through (3) of this section. (4) The following features: (i) Artificiall y irrigated areas that would revert to dry land should application of water to that area cease; (ii) Artificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds, irrigation ponds, settling basins, fields flooded

for ri ce growing, log cleaning ponds, or cooling ponds; (iii) Artificial reflecting pools or swimming pools created in dry land; (iv) Small ornamental waters created in dry land;5 (v) Water

- filled depressions created in dry land incidental to mining or

constructi on activity, including pits excavated for obtaining fill, sand, or gravel that fill with water; (vi) Erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non

- wetland swales, and lawfully c onstructed grassed waterways; and (vii) Puddles. (5) Groundwater, including groundwater drained through subs urface drainage
systems. (6) Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land. (7) Wastewa ter recycling structures constructed in dry land; detention and retention basins built for wastewater recycling; groundwater recharge basins; percolation ponds built for wastewater recycling; and water distributary structures built for wastewater recycling

.

(c) Definitions

— In this section, the following definitions apply: (1) Adjacent. The term adjacent means bordering, contiguous, or neighboring a water identified in paragraphs (a)(1) through (5) of this section, including waters separated by constructed dikes or barriers, natural river berms, beach dunes, and the like. For purposes of adjacency, an open water such as a pond or lake includes any wetlands within or abutting its ordinary high water mark. Adjacency is not limited to waters locate d laterally to a water identified in paragraphs (a)(1) through (5) of this section. Adjacent waters also include all waters that connect segments of a water identified in paragraphs (a)(1) through (5) or are located at the head of a water identified in par agraphs (a)(1) through (5) of this section and are bordering, contiguous, or neighboring such water. Waters being used for established normal farming, ranching, and silviculture activities (33 USC § 1344(f)) are not adjacent. (2) Neighboring. The term neig hboring means: (i) All waters located within 100 feet of the ordinary high water mark of a water identified in paragraphs (a)(1) through (5) of this section. The entire water is neighboring if a portion is located within 100 feet of the ordinary high wat er mark; (ii) All waters located within the 100

- year floodplain of a water identified in paragraphs (a)(1) through (5) of this section and not more than 1,500 feet from the ordinary high water mark of such water. The entire water is neighboring if a portio n is located within 1,500 feet of the ordinary high

water mark and within the 100

- year floodplain; (iii) all waters located within 1,500 feet of the high tide line of a water identified in paragraphs (a)(1) or (a)(3) of this section, and all waters

within 1,500 feet of the ordinary high water mark of the Great Lakes. The entire water is neighboring if a portion is located within 1,500 feet of the high tide line or within 1,500 feet of the ordinary high water mark of the

Great Lakes.6

(3) Tributary and tribut

aries. The terms tributary and tributaries each mean a water that contributes flow, either directly or through another water (including an impoundment identified in paragraph (a)(4) of this section), to a water

identified in paragraphs (a)(1) through (3) o f this section that is characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark. These physical indicators demonstrate there is volume, frequency, and duration of flow sufficient to create a bed and banks and an ordinary high water mark, and thus to qualify as a tributary. A tributary can be a natural, man

- altered, or man

- made water and includes waters such as rivers, streams, canals, and ditches not excluded under paragraph (b) of this

section. A water t hat otherwise qualifies as a tributary under this definition

does not lose its status as a tributary if, for any length, there are one or more constructed breaks (such as bridges, culverts, pipes, or dams), or one or more natural breaks (such as wetlands a long the run of a stream, debris piles, boulder fields, or a stream that flows underground) so long as a bed and banks and an ordinary high water mark can be identified upstream of the

break. A water that otherwise qualifies as a tributary under this defin ition does

not lose its status as a tributary if it contributes flow through a water of the United States that does not meet the definition of tributary or through a non

jurisdictional water to a water identified in paragraphs (a)(1) through (3) of this

section. (4) Wetlands. The term wetlands means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically ada pted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. (5) Significant nexus . The term significant nexus means that a water, including wetlands, either alone or in combination with other similarly s ituated waters in the region, significantly affects the chemical, physical, or biological integrity of a water identified in paragraphs (a)(1) through (3) of this section. The term “in the region” means the watershed that drains to the nearest water identi fied in paragraphs (a)(1) through (3) of this section. For an effect to be significant, it must be more than speculative or insubstantial. Waters are similarly situated when they function alike and are sufficiently close to function together in affecting d ownstream waters. For purposes of determining whether or not a water has a significant nexus, the water’s effect on downstream (a)(1) through (3) waters shall be assessed by evaluating the aquatic functions identified in paragraphs (i) through (ix) of thi s paragraph. A water has a significant nexus when any single function or combination of functions performed by the water, alone or together with similarly situated waters in the region, contributes significantly to the chemical, physical, or biological in tegrity of the nearest water identified in paragraphs (a)(1) through (3) of this section. Functions relevant to the significant nexu s evaluation are the following: (i ) sediment trapping, (ii ) nutrient recycling, (iii ) pollutant trapping, transforma tion, f iltering, and transport,7 (iv) retention and attenuation of flood waters

, (v ) runoff storage, (vi ) contribution of flow, (vii) export of organic matter, (viii) export of food resources, and (ix) provision of life cycle dependent aquatic habitat (such as for aging, feeding, nesting, breeding, spawning, or use as a nursery area) for species located in a water identified in paragraphs (a)( 1) through (3) of

this section. (6) O rdinary high water mark. The term ordinary high water mark means that line

on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas. ( 7) High tide line. The term high tide line means the line of intersection of the land with the water's surface at the maximum height reached by a rising tide. The high ti de line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from t he normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm.8

Title 40

— Protection of the Environment For reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows:

PART 110

— DISCHARGE OF OIL 3. The authority citation for part 110 continues to read as follows: Authority: The Clean Water Act, 33 U.S.C. 1321 et.seq.
4. Section 110.1 is amended by revising the definition of “navigable waters” to read as

follows:

§ 110.1 Definitions. Navigable waters means waters of the United States, including the territorial seas. (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et. seq. and its implementing regulations, subject to the exclusions in paragraph (2) of this section, the term ‘‘waters of the United States’’ means: (i) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or fo reign commerce, including all waters which are subject to the ebb and flow of the tide; (ii) All interstate waters, including interstate wetlands; (iii) The territorial seas; (iv) All impoundments of waters otherwise identified as waters of the United

Stat es under this section; (v) All tributaries, as defined in paragraph (3)(iii) of this section, of waters identified in paragraphs (1)(i) through (iii) of this section; (vi) All waters adjacent to a water identified in paragraphs (1)(i) through (v) of this

s ection, including wetlands, ponds, lakes, oxbows, im poundments, and similar waters; (vii) All waters in paragraphs (A) through (E) of this paragraph where they are determined, on a case

- specific basis, to have a significant nexus to a water identified in p aragraphs (1)(i) through (iii ) of this section. The waters identified in each of paragraphs (A) through (E) of this paragraph are similarly situated and shall be combined, for purposes of a sig nificant nexus analysis, in the watershed that drains to the n earest water identified in paragraphs (1)(i) through (iii) of this se ction. Waters identified in this paragraph shall not be combined with waters identified in paragraph (1)(vi) of this section when performin g a significant nexus analysis. If waters iden tified in this paragraph are also an adjacent water under paragraph (1)(vi), they are an adjacent water and no case

- specific significant nexus analysis is required. (A) Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usuall y occurring in depressions that lack permanent natural outlets, located in the upper Midwest. (B) C arolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, depressional wetlands that occur along the Atlantic coastal plain.9 (C) Pocosins. Pocosins are evergreen shrub and tree dominated wetlands found predominantly along the Central Atlantic coastal plain. (D) Western vernal pools. Western vernal pools are seasonal wetlands located in parts of California and associated with topographic depression, soils with poor drainage, mild, wet winters and hot, dry

summers. (E) Texas coastal prairie wetlands. Texas coastal prairie wetlands are freshwater wetlands that occur as a mosaic of depressions, ridges, intermound flats, and mima mound wetlands located along the Texas

Gulf Coast. (viii ) All waters located within the 100

- year floodplain of a water identified in (1)(i) through (iii) of this section and all waters located within 4,000 feet of the high tide line or ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this section where they are determined on a case

- specific basis to have a significant nexus to a water identified in paragraphs (1)(i) through (iii ) of this section. For waters determined to have a significant nexus, the entire water is a water of the United States if a portion is located

within the 100

- year floodplain of a water identified in (1)(i) through (iii ) of this

section or within 4,000 feet of the high tide line or ordinary high wate r mark. Waters identified in this paragraph shall not be combined with waters identified in paragraph (1)(vi) of this section when performin g a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they are an adjacent water and no case

specific signific ant nexus analysis is required.

(2) The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (1)(iv) through (viii) of this section. (i) W aste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act. (ii) Prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal ag ency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA. (iii) The following ditches: (A) Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary. (B) Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands. (C) Ditches that do not flow, either directly or through another water, into a

water identified in paragraphs (1)(i) through (iii) of this sect ion. (iv) The following features: (A) Artificially irrigated areas that would revert to dry land should application of water to that area cease; (B) Artificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds, irrig ation ponds, settling basins, fields flooded for rice growing, log cleaning ponds, or cooling ponds;10 (C) Artificial reflecting pools or swimming pools created in dry land; (D) Small ornamental waters created in dry land; (E) Water

- filled depressions cre ated in dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water; (F) Erosional features, including gullies, rills, and other ephemeral features

that do not meet the definition of tributary, non

- wetland swales, and lawfully constructed grassed waterways; and (G) Puddles. (v) Groundwater, including groundwater drained throug h subsurface drainage
systems. (vi) Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land. (vii) Wastewater recycling structures constructed in dry land; detention and retention basins built for wastewater recycling; groundwater recharge basins; percolation ponds built for wastewater recycling; and water distributary structures built for wastewater recycling.

(3) Definitions

— In this section, the following definitions apply: (i) Adjacent. The term adjacent means bordering, contiguous, or neighboring a water identified in paragraphs (1)(i) through (v) of this section, including waters separated by constructed dikes or barriers, natural river berms, beach dunes, and the like. For purposes of adjacency, an open water such as a pond or lake includes any wetlands within or abutting its ordinary high water mark. Adjacency is not limited to waters located laterally to a water identified in paragraphs (1)(i) through (v) of this section. Adjacent waters also include all waters that connect segments of a water identified in paragraphs (1)(i) through (v) or are located at the head of a water identified in paragraphs (1)(i) through (v) of this section and are bordering, contiguous, or neighboring such water. Waters being used for established normal farming, ranching, and silviculture activities (33 USC § 1344(f)) are not adjacent. (ii) Neighboring. The term neighboring means: (A) all waters located within 100 feet of the ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this section. The entire water is neighboring if a portion is located within 100 feet of the ordinary high water mark; (B) all waters located within the 100

- year floodplain of a water identified in paragraphs (1)(i) through (v) of this section and not more than 1,500 feet from the ordinary high water ma rk of such water. The entire water is neighboring if a portion is located within 1,500 feet of the ordinary high water mark and within the 100

- year floodplain; (C) all waters located within 1,500 feet of the high tide line of a water identified in paragrap hs (1)(i) or (1)(iii) of this section, and all waters within 1,500 feet of the ordinary high water mark of the Great Lakes. The entire water is neighboring if a portion is located within 1,500 feet11 of the high tide line or within 1,500 feet of the ordinary high water mark

of the Great Lakes. (iii) Tributary and tributaries. The terms tributary and tributaries each mean a water that contributes flow, either directly or through another water (including an impoundment identified in paragraph (1)(iv) of this s ection), to a water

identified in paragraphs (1)(i) through (iii) of this section that is characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark. These physical indicators demonstrate there is volume, f requency, and duration of flow sufficient to create a bed and banks and an ordinary high water mark, and thus to qualify as a tributary. A tributary can be a natural, man

- altered, or man

- made water and includes waters such as rivers, streams, canals, and d itches not excluded under paragraph (2) of this section. A water that otherwise qualifies as a tributary

under this definition does not lose its status as a tributary if, for any length,

there are one or more constructed breaks (such as bridges, culverts, pipes, or dams), or one or more natural breaks (such as wetlands along the run of a stream, debris piles, boulder fields, or a stream that flows underground) so long as a bed and banks and an ordinary high water mark can be identified upstream of the break. A water that otherwise qualifies as a tributary under

this definition does not lose its status as a tributary if it contributes flow through a water of the United States that does not meet the definition of tributary or through a non

- jurisdictional water to a water identified in paragraphs (1)(i1) through (iii) of this section. (iv) Wetlands. The term wetlands means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. (v) Significant nexus . The term significant nexus means that a water , including wetlands, either alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of a water identified in paragraphs (1)(i) through (iii) of this section.

The ter m “in the region” means the watershed that drains to the nearest water identified in paragraphs (1)(i) through (iii) of this section. For an effect to be significant, it must be more than speculative or insubstantial. Waters are similarly situated when the y function alike and are sufficiently close to function together in affecting downstream waters. For purposes of determining whether or not a water has a significant nexus, the water’s effect on downstream (1)(i) through (iii) waters shall be assessed by evaluating the aquatic functions identified in paragraphs (A) through (I) of this paragraph. A water has a significant nexus when any single function or combination of functions performed by the water, alone or together with similarly situated

waters in t he region, contributes significantly to the chemical, physical, or biological integrity of the nearest water identified in paragraphs (1)(i) through (iii) of this section. Functions relevant to the significant nexu s evaluation are the following:12 (A) sedime nt trapping, (B) nutrient recycling, (C) pollutant trapping, transformation, filtering, and trans port, (D) retention a nd attenuation of flood waters, (E) runoff storage, (F) contribution of flow, (G) export of organic matter, (H) export of food resources, and (I) provision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting, breeding, spawning, or use as a nursery area) for species located in a water identified in paragraphs (a)( 1) through (3) of

this section. (vi) O rdinary high water mark. The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of s oil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas. ( vii) High tide line. The term high tide line means the line of intersection of the

land w ith the water's surface at the maximum height reached by a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine

shell or debris on the fore shore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with period ic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense

storm.13

PART 112

– OIL POLLUTION PREVENTION

5. The authority citation for part 112 continues to read as follows: Authority: The Clean Water Act, 33 U.S.C. 1321 et.seq. 6. Section 112.2 is amended by revising the definition of “navigable waters” to read as

follows:

§ 112.2 Definitions Navigable waters means waters of the United States, including the territorial seas. (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et. seq. and its implementing regulations, subject to the exclusions in paragraph (2) of this s ection, the term

‘‘waters of the United States’’ means: (i) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (ii) All interstate waters, including interstate wetlands; (iii) The territorial seas; (iv) All impoundments of waters otherwise identified as waters of the United States under this section; (v) All tributaries, as defined in paragraph (3)(iii) of this sec tion, of waters identified in paragraphs (1)(i) through (iii) of this section; (vi) All waters adjacent to a water identified in paragraphs (1)(i) through (v) of this section, including wetlands, ponds, lakes, oxbows, im poundments, and similar waters; (vii ) All waters in paragraphs (A) through (E) of this paragraph where they are determined, on a case

- specific basis, to have a significant nexus to a water identified in paragraphs (1)(i) through (iii ) of this section. The waters identified in each of paragr aphs (A) through (E) of this paragraph are similarly situated and shall be combined, for purposes of a sig nificant nexus analysis, in the watershed that drains to the nearest water identified in paragraphs (1)(i) through (iii ) of this section. Waters iden tified in this paragraph shall not be combined with waters identified in paragraph (1)(vi) of this section when performin g a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they

are an adjacent water and no case

- specific significant nexus analysis is required. (A) Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper Mid west. (B) Ca rolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, depressional wetlands that occur along the Atlantic coastal plain. (C) Pocosins. Pocosins are evergreen shrub and tree dominated wetlands found predominantly along t he Central Atlantic coastal plain. (D) Western vernal pools. Western vernal pools are seasonal wetlands located in parts of California and associated with topographic14 depression, soils with poor drainage, mild, wet winters and hot, dry

summers. (E) Texa s coastal prairie wetlands. Texas coastal prairie wetlands are freshwater wetlands that occur as a mosaic of depressions, ridges, intermound flats, and mima mound wetlands located along the Texas

Gulf Coast. (viii ) All waters located within the 100

- year f loodplain of a water identified in (1)(i) through (iii) of this section and all waters located within 4,000 feet of the high tide line or ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this section where they are determi ned on a case

- specific basis to have a significant nexus to a water identified in par agraphs (1)(i) through (iii ) of this section. For waters determined to have a significant nexus, the entire water is a water of the United States if a portion is located

within the 100

- year floodplain of a water identified in (1)(i) through (iii) of this

section or within 4,000 feet of the high tide line or ordinary high water mark. Waters identified in this paragraph shall not be combined with waters identified in paragr aph (1)(vi) of this section when performin g a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they are an adjacent water and no case

specific signific ant nexus analysis is required.

(2) The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (1)(iv) through (viii) of this section. (i) Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of t he Clean Water Act. (ii) Prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisd iction remains with EPA. (iii ) The following ditches: (A) Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary. (B) Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drai n wetlands. (C) Ditches that do not flow, either directly or through another water, into a

water identified in paragraphs (1)(i) through (iii) of this section. (iv ) The following features: (A) Artificially irrigated areas that would revert to dry land should application of water to that area cease; (B) Artificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds, irrigation ponds, settling basins, fields

fl ooded for rice growing, log cleaning ponds, or cooling ponds; (C) Artificial reflecting pools or swimming pools created in dry land; (D) Small ornamental waters created in dry land;15 (E) Water

- filled depressions created in dry land incidental to mining o r construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water; (F) Erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non

- wetland swales, an d lawfully constructed grassed waterways; and (G) Puddles. (v) Groundwater, including groundwater drained throug h subsurface drainage
systems. (vi) Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land

. (vii) Wastewater recycling structures constructed in dry land; detention and retention basins built for wastewater recycling; groundwater recharge basins; percolation ponds built for wastewater recycling; and water distributary

structures built for waste water recycling.

(3) Definitions

— In this section, the following definitions apply: (i) Adjacent. The term adjacent means bordering, contiguous, or neighboring a water identified in paragraphs (1)(i) through (v) of this section, including waters separated by constructed dikes or barriers, natural river berms, beach dunes, and the like. For purposes of adjacency, an open water such as a pond or lake includes any wetlands within or abutting its ordinary high water mark. Adjacency is not limited to waters lo cated laterally to a water identified in paragraphs (1)(i) through (v) of this section. Adjacent waters also include all waters that connect segments of a water identified in paragraphs (1)(i) through (v) or are located at the head of a water identified in paragraphs (1)(i) through (v) of this section and are bordering, contiguous, or neighboring such water. Waters being used for established normal farming, ranching, and silviculture activities (33 USC § 1344(f)) are not adjacent. (ii) Neighboring. The term neighboring means: (A) all waters located within 100 feet of the ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this section. The entire water is neighboring if a portion is located within 100 feet of the ordinary hig h water mark; (B) all waters located within the 100

- year floodplain of a water identified in paragraphs (1)(i) through (v) of this section and not more than 1,500 feet from the ordinary high water mark of such water. The entire water is neighboring if a portion is located within 1,500 feet of the ordinary high water mark and within the 100

- year floodplain; (C) all waters located within 1,500 feet of the high tide line of a water identified in paragraphs (1)(i) or (1)(iii) of this section, and all waters within 1,500 feet of the ordinary high water mark of the Great Lakes. The entire water is neighboring if a portion is located within 1,500 feet of the high tide line or within 1,500 feet of the ordinary high water mark

of the Great Lakes.16

(iii) Tributary a nd tributaries. The terms tributary and tributaries each mean a water that contributes flow, either directly or through another water (including an impoundment identified in paragraph (1)(iv) of this section), to a water

identified in paragraphs (1)(i) through (iii) of this section that is characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark. These physical indicators demonstrate there is volume, frequency, and duration of flow sufficient to create a bed and banks and an ordinary high water mark, and thus to qualify as a tributary. A tributary can be a natural, man

- altered, or man

- made water and includes waters such as rivers, streams, canals, and ditches not excluded under paragraph (2) of this sect ion. A water that otherwise qualifies as a tributary

under this definition does not lose its status as a tributary if, for any length,

there are one or more constructed breaks (such as bridges, culverts, pipes, or dams), or one or more natural breaks (suc h as wetlands along the run of a stream, debris piles, boulder fields, or a stream that flows underground) so long as a bed and banks and an ordinary high water mark can be identified upstream of the break. A water that otherwise qualifies as a tributary u nder

this definition does not lose its status as a tributary if it contributes flow through a water of the United States that does not meet the definition of tributary or through a non

- jurisdictional water to a water identified in paragraphs (1)(i1) throug h (iii) of this section. (iv) Wetlands. The term wetlands means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of
vegetat ion typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. (v) Significant nexus . The term significant nexus means that a water, including wetlands, either alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of a water identified in paragraphs (1)(i) through (iii) of this section. The term “in the region” means the watershed that drains to the n earest water identified in paragraphs (1)(i) through (iii) of this section. For an effect to be significant, it must be more than speculative or insubstantial. Waters are similarly situated when they function alike and are sufficiently close to

function to gether in affecting downstream waters. For purposes of determining whether or not a water has a significant nexus, the water’s effect on downstream (1)(i) through (iii) waters shall be assessed by evaluating the aquatic functions identified in paragraphs (A) through (I) of this paragraph. A water has a significant nexus when any single function or combination of functions performed by the water, alone or together with similarly situated waters in the region, contributes significantly to the chemical, phys ical, or biological integrity of the nearest water identified in paragraphs (1)(i) through (iii) of this section. Functions relevant to the significant nexu s evaluation are the following: (A) sediment trapping, (B) nutrient recycling,17 (C) pollutant trapping, transforma tion, filtering, and transport, (D) retention a nd attenuation of flood waters, (E) runoff storage, (F) contribution of flow, (G) export of organic matter, (H) export of food resources, and (I) provision of life cycle dependent aqu atic habitat (such as foraging, feeding, nesting, breeding, spawning, or use as a nursery area) for species located in a water identified in paragraphs (a)( 1) through (3) of

this section. (vi) O rdinary high water mark. The term ordinary high water mark mea ns that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presenc e of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas. ( vii) High tide line. The term high tide line means the line of intersection of the land with the water's surface at the maximum height reached b y a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or

characteristi cs, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense

storm.18

Part 116

— DESIGNATION OF HAZARDOUS SUBSTANCE

7. The authorit y citation for part 116 continues to read as follows: Authority: The Clean Water Act, 33 U.S.C. 1321 et.seq. 8. Section 116.3 is amended by revising the definition of “navigable waters” to read as

follows:

Navigable waters is defined in section 502(7) of the Act to mean “waters of the United States, including the territorial seas.” (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et. seq. and its implementing regulations, subject to the exclusions in paragraph (2) of th is section, the term

‘‘waters of the United States’’ means: (i) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the t ide; (ii) All interstate waters, including interstate wetlands; (iii) The territorial seas; (iv) All impoundments of waters otherwise identified as waters of the United States under this section; (v) All tributaries, as defined in paragraph (3)(iii) of thi s section, of waters identified in paragraphs (1)(i) through (iii) of this section; (vi) All waters adjacent to a water identified in paragraphs (1)(i) through (v) of this section, including wetlands, ponds, lakes, oxbows, impoundments, and similar waters; (vii) All waters in paragraphs (A) through (E) of this paragraph where they are determined, on a case

- specific basis, to have a significant nexus to a water identified in paragraphs (1)(i) through (iii ) of this section. The waters

identified in each of paragraphs (A) through (E) of this paragraph are similarly situated and shall be combined, for purposes of a sig nificant nexus analysis,

in the watershed that drains to the nearest water identified in paragraphs (1)(i) through (iii ) of this section. Water s identified in this paragraph shall not be combined with waters identified in paragraph (1)(vi) of this section when performing a significant nexus anal ysis. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they are an adjacent

water and no case

- specific significant nexus analysis is required. (A) Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upp er Midwest. (B) Carolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, depressional wetlands that occur along the Atlantic coastal plain. (C) Pocosins. Pocosins are evergreen shrub and tree dominated wetlands found predominantly al ong the Central Atlantic coastal plain. (D) Western vernal pools. Western vernal pools are seasonal wetlands located in parts of California and associated with topographic19 depression, soils with poor drainage, mild, wet winters and hot, dry

summers. (E) Texas coastal prairie wetlands. Texas coastal prairie wetlands are freshwater wetlands that occur as a mosaic of depressions, ridges, intermound flats, and mima mound wetlands located along the Texas

Gulf Coast. (viii ) All waters located within the 100

- y ear floodplain of a water identified in (1)(i) through (iii) of this section and all waters located within 4,000 feet of the high tide line or ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this section where they are de termined on a case

- specific basis to have a significant nexus to a water identified in paragraphs (1)(i) through (iii ) of this section. For waters determined to have a significant nexus, the entire water is a water of the United States if a portion is loc ated within the

100

- year floodplain of a water identified in (1)(i) through (iii ) of this section or within 4,000 feet of the high tide line or ordinary high water mark. Waters identified in this paragraph shall not be combined with waters identified in

p aragraph (1)(vi) of this section when performin g a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they are an adjacent water and no case

- specific significant nexus analysis is require d.

(2) The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (1)(iv) through (viii) of this section. (i) Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act. (ii ) Prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water

Act jurisdiction remains with EPA. (iii) The following ditches: (A) Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary. (B) Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, o r drain wetlands. (C) Ditches that do not flow, either directly or through another water, into a

water identified in paragraphs (1)(i) through (iii) of this section. (iv) The following features: (A) Artificially irrigated areas that would revert to dry land should application of water to that area cease; (B) Artificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log cleaning ponds, or cooling ponds; (C) Artificial reflecting pools or swimming pools created in dry land; (D) Small ornamental waters created in dry land;20 (E) Water

- filled depressions created in dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water; (F) Erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non

- wetland swales, and lawfully constructed grassed waterways; and (G) Pudd les. (v) Groundwater, including groundwater drained throug h subsurface drainage
systems. (vi) Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land. (vii) Wastewater recycling structures constructed i n dry land; detention and retention basins built for wastewater recycling; groundwater recharge basins; percolation ponds built for wastewater recycling; and water distributary structures built for wastewater recycling.

(3) Definitions

— In this section, the following definitions apply: (i) Adjacent. The term adjacent means bordering, contiguous, or neighboring a water identified in paragraphs (1)(i) through (v) of this section, including waters separated by constructed dikes or barriers, natural river be rms, beach dunes, and the like. For purposes of adjacency, an open water such as a pond or lake includes any wetlands within or abutting its ordinary high water mark. Adjacency is not limited to waters located laterally to a water identified in paragraphs (1)(i) through (v) of this section. Adjacent waters also include all waters that connect segments of a water identified in paragraphs (1)(i) through (v) or are located at the head of a water identified in paragraphs (1)(i) through (v) of this section and are bordering, contiguous, or neighboring such water. Waters being used for established normal farming, ranching, and silviculture activities (33 USC § 1344(f)) are not adjacent. (ii) Neighboring. The term neighboring means: (A) all waters located within 100 feet of the ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this section. The entire water is neighboring if a portion is located within 100 feet of the ordinary high water mark; (B) all waters located within the 10 0

- year floodplain of a water identified in paragraphs (1)(i) through (v) of this section and not more than 1,500 feet from the ordinary high water mark of such water. The entire water is neighboring if a portion is located within 1,500 feet of the ordinary high water mark and within the 100

- year floodplain; (C) all waters located within 1,500 feet of the high tide line of a water identified in paragraphs (1)(i) or (1)(iii) of this section, and all waters within 1,500 feet of the ordinary high water mark of the Great Lakes. The entire water is neighboring if a portion is located within 1,500 feet of the high tide line or within 1,500 feet of the ordinary high water mark of

the Great Lakes.21

(iii) Tributary and tributaries. The terms tributary and tributaries each mean a water that contributes flow, either directly or through another water (including an impoundment identified in paragraph (1)(iv) of this section), to a water

identified in paragraphs (1)(i) through (iii) of this section that is characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark. These physical indicators demonstrate there is volume, frequency, and duration of flow sufficient to create a bed and banks and an ordinary high water mark, and th us to qualify as a tributary. A tributary can be a natural, man

- altered, or man

- made water and includes waters such as rivers, streams, canals, and ditches not excluded under paragraph (2) of this section. A water that otherwise qualifies as a tributary

u nder this definition does not lose its status as a tributary if, for any length,

there are one or more constructed breaks (such as bridges, culverts, pipes, or dams), or one or more natural breaks (such as wetlands along the run of a stream, debris piles, boulder fields, or a stream that flows underground) so long as a bed and banks and an ordinary high water mark can be identified upstream of the break. A water that otherwise qualifies as a tributary under

this definition does not lose its status as a tributary if it contributes flow through a water of the United States that does not meet the definition of tributary or through a non

- jurisdictional water to a water identified in paragraphs (1)(i) through (iii) of this section. (iv) Wetlands. The term wet lands means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil con ditions. Wetlands generally include swamps, marshes, bogs, and similar areas. (v) Significant Nexus . The term significant nexus means that a water, including wetlands, either alone or in combination with other similarly situated waters in the region, sign ificantly affects the chemical, physical, or biological integrity of a water identified in paragraphs (1)(i) through (iii) of this section. The term “in the region” means the watershed that drains to the nearest water identified in paragraphs (1)(i) throug h (iii) of this section. For an effect to be significant, it must be more than speculative or insubstantial. Waters are similarly situated when they function alike and are sufficiently close to function together in affecting downstream waters. For purpose s of determining whether or not a water has a significant nexus, the water’s effect on downstream (1)(i) through (iii) waters shall be assessed by evaluating the aquatic functions identified in paragraphs (A) through (I) of this paragraph. A

water has a s ignificant nexus when any single function or combination of functions performed by the water, alone or together with similarly situated waters in the region, contributes significantly to the chemical, physical, or biological integrity of the nearest water identified in paragraphs (1)(i) through (iii) of this section. Functions relevant to the significant nexu s evaluation are the following: (A) sediment trapping, (B) nutrient recycling,22 (C) pollutant trapping, transforma tion, filtering, and transport, (D) retention and attenuation of flood waters, (E) runoff storage, (F) contribution of flow, (G) export of organic matter, (H) export of food resources, and (I) provision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting, bre eding, spawning, or use as a nursery area) for species located in a water identified in paragraphs (a)( 1) through (3) of

this section. (vi) O rdinary high water mark. The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas. ( vii) High tide line. The term high tide line means the line of intersection of the land with the water's surface at the maximum height reached by a rising tide. The high tide line may be de termined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other s uitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or pred icted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense

storm.23

PART 117

— DETERMINATION OF REPORTABLE QUANTITIES FOR HAZARDOUS

SUBSTANCES

9. The authority citation for part 119 continues to read as follows: Authority: The Clean Water Act, 33 U.S.C. 1321 et.seq. 10. Section 117.1 is amended by revising the definition of “navigable waters” to read as

follows:

§ 117.1 Definitions (i) Navigable waters is defined in sectio n 502(7) of the Act to mean “waters of the United States, including the territorial seas.” (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et. seq. and its implementing regulations, subject to the exclusions in paragraph (2) of this section, the term ‘‘waters of the United States’’ means: (i) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or for eign commerce, including all waters which are subject to the ebb and flow of the tide; (ii) All interstate waters, including interstate wetlands; (iii) The territorial seas; (iv) All impoundments of waters otherwise identified as waters of the United

State s under this section; (v) All tributaries, as defined in paragraph (3)(iii) of this section, of waters identified in paragraphs (1)(i) through (iii) of this section; (vi) All waters adjacent to a water identified in paragraphs (1)(i) through (v) of this

se ction, including wetlands, ponds, lakes, oxbows, im poundments, and similar
waters; (vii) All waters in paragraphs (A) through (E) of this paragraph where they are determined, on a case

- specific basis, to have a significant nexus to a water

identifi ed in pa ragraphs (1)(i) through (iii ) of this section. The waters identified in each of paragraphs (A) through (E) of this paragraph are similarly situated and shall be combined, for purposes of a sig nificant nexus analysis, in the

watershed that drains to the ne arest water identified in paragraphs (1)(i) through (iii ) of this section. Waters identified in this paragraph shall not be combined with waters identified in paragraph (1)(vi) of this section when performin g a significant nexus analysis. If waters ident ified in this paragraph are also an adjacent water under paragraph (1)(vi), they are an adjacent water

and no case

- specific significant nexus analysis is required. (A) Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper Midwest. (B) Ca rolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, depressional wetlands that occur along the Atlantic coastal plain. (C) Pocos ins. Pocosins are evergreen shrub and tree dominated wetlands found predominantly along the Central Atlantic coastal plain.24 (D) Western vernal pools. Western vernal pools are seasonal wetlands located in parts of California and associated with topographic depr ession, soils with poor drainage, mild, wet winters and hot, dry summers. (E) Texas coastal prairie wetlands. Texas coastal prairie wetlands are freshwater wetlands that occur as a mosaic of depressions, ridges, intermound flats, and mima mound wetlands l ocated along the Texas

Gulf Coast. (viii ) All waters located within the 100

- year floodplain of a water identified in (1)(i) through (iii) of this section and all waters located within 4,000 feet of the high tide line or ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this section where they are determined on a case

- specific basis to have a significant nexus to a wate r identified in paragraphs (1)(i) through (iii)

of this section. For waters determined to have a significan t nexus, the entire water is a water of the United States if a portion is located within the 100

- year floodplain of a water identified in (1)(i) thr ough (iii) of this section or within 4,000 feet of the high tide line or ordinary high water mark. Waters i dentified in this paragraph shall not be combined with waters identified in paragraph (1)(vi) of this section when performing a significant nexus an alysis. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they are an adjacent water and no case

- specific signific ant nexus analysis is required. (2) The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (1)(iv) through (viii) of this section. (i) Waste treatment syst ems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act. (ii) Prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the

purpos es of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA. (iii) The following ditches: (A) Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary. (B) Ditches with intermitte nt flow that are not a relocated tributary, excavated in a tributary, or drain wetlands. (C) Ditches that do not flow, either directly or through another water, into a water identified in paragraphs (1)(i) through (iii) of this section. (iv) The following features: (A) Artificially irrigated areas that would revert to dry land should application of water to that area cease; (B) Artificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds, irrigation ponds, settling basin s, fields flooded for rice growing, log cleaning ponds, or cooling ponds; (C) Artificial reflecting pools or swimming pools created in dry land; (D) Small ornamental waters created in dry land;25 (E) Water

- filled depressions created in dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water; (F) Erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non

- wetland sw ales, and lawfully constructed grassed waterways; and (G) Puddles. (v) Groundwater, including groundwater drained through su bsurface drainage
systems. (vi) Stormwater control features constructed to convey, treat, or store stormwater

that are created in d ry land. (vii) Wastewater recycling structures constructed in dry land; detention and retention basins built for wastewater recycling; groundwater recharge basins; percolation ponds built for wastewater recycling; and water distributary

structures built fo r wastewater recycling.

(3) Definitions

— In this section, the following definitions apply: (i) Adjacent. The term adjacent means bordering, contiguous, or neighboring a water identified in paragraphs (1)(i) through (v) of this section, including
waters sep arated by constructed dikes or barriers, natural river berms, beach dunes, and the like. For purposes of adjacency, an open water such as a pond or lake includes any wetlands within or abutting its ordinary high water mark. Adjacency is not limited to wat ers located laterally to a water identified in paragraphs (1)(i) through (v) of this section. Adjacent waters also include all waters that connect segments of a water identified in paragraphs (1)(i) through (v) or are located at the head of a water identif ied in paragraphs (1)(i) through (v) of this section and are bordering, contiguous, or neighboring such water. Waters being used for established normal farming, ranching, and silviculture activities (33 USC § 1344(f)) are not adjacent. (ii) Neighboring. Th e term neighboring means: (A) All waters located within 100 feet of the ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this section. The entire water is neighboring if a portion is located within 100 feet of the

ordinar y high water mark; (B) All waters located within the 100

- year floodplain of a water identified in paragraphs (1)(i) through (v) of this section and not more than 1,500 feet from the ordinary high water mark of such water. The entire water is neighboring if a portion is located within 1,500 feet of the ordinary high

water mark and within the 100

- year floodplain; (C) All waters located within 1,500 feet of the high tide line of a water identified in paragraphs (1)(i) or (1)(iii) of this section, and all water s within 1,500 feet of the ordinary high water mark of the Great Lakes. The entire water is neighboring if a portion is located within 1,500 feet of the high tide line or within 1,500 feet of the ordinary high water mark of the

Great Lakes.26

(iii) Tributary and tributaries. The terms tributary and tributaries each mean a water that contributes flow, either directly or through another water (including an impoundment identified in paragraph (1)(iv) of this section), to a water

identified in paragraphs (1)(i) through (iii) of this section that is characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark. These physical indicators demonstrate there is volume, frequency, and duration of flow sufficient to create a bed and banks and an ordinary high water mark, and thus to qualify as a tributary. A tributary can be a natural, man

- altered, or man

- made water and includes waters such as rivers, streams, canals, and ditches not excluded under paragraph (2) of this

sect ion. A water that otherwise qualifies as a tributary under this definition

does not lose its status as a tributary if, for any length, there are one or more constructed breaks (such as bridges, culverts, pipes, or dams), or one or more natural breaks (suc h as wetlands along the run of a stream, debris piles, boulder fields, or a stream that flows underground) so long as a bed and banks and an ordinary high water mark can be identified upstream of the

break. A water that otherwise qualifies as a tributary u nder this definition does

not lose its status as a tributary if it contributes flow through a water of the United States that does not meet the definition of tributary or through a non

jurisdictional water to a water identified in paragraphs (1)(i1) throug h (iii) of

this section. (iv) Wetlands. The term wetlands means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of
vegetat ion typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. (v) Significant nexus . The term significant nexus means that a water, including wetlands, either alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of a water identified in paragraphs (1)(i) through (iii) of this section. The term “in the region” means the watershed that drains to the n earest water identified in paragraphs (1)(i) through (iii) of this section. For an effect to be significant, it must be more than speculative or insubstantial. Waters are similarly situated when they function alike and are sufficiently close to function to gether in affecting downstream waters. For purposes of determining whether or not a water has a significant nexus, the water’s effect on downstream (1)(i) through (iii) waters shall be assessed by evaluating the aquatic functions identified in paragraphs (A) through (I) of this paragraph. A water has a significant nexus when any single function or combination of functions performed by the water, alone or together with similarly situated waters in the region, contributes significantly to the chemical, phys ical, or biological integrity of the nearest water identified in paragraphs (1)(i) through (iii) of this section. Functions relevant to the significant nexu s evaluation are the following: (A) sediment trapping, (B) nutrient recycling, (C) pollutant trapping, transforma tion, filtering, and transport,27 (D) retention a nd attenuation of flood waters, (E) runoff storage, ( F) contribution of flow, (G) export of organic matter, (H) export of food resources, and (I) provision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting, breeding, spawning, or use as a nursery area) for species located in a water identified in paragraphs (a)( 1) through (3) of

this section. (vi) O rdinary high water mark. The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the pres ence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas. ( vii) High tide line. The term high tide line means the line of intersection of the land with the water's surface at the maximum height reache d by a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or

characteri stics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in wh ich there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm.28

PART 122

— EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL

POLLUTANT DISCHARGE ELIMINATION SYSTEM

11. The authority citation for part 122 continues to read as follows: Authority: The Clean Water Act, 33 U.S.C. 1251 et.seq. 12. Section 122.2 is amended by revising the definition of “Waters of the United States” and removing the note and editorial note at the end of the section. The revision

reads as follows:

§ 122.2 Definitions.

Waters of the United States or waters of the U.S. means: (a) For purposes of the Clean Water Act, 33 U.S.C. 1251 et. seq. and its implementing regulations, subject to the exclusions in paragraph (b) of this section, the term

‘‘waters of the United States’’ means: (1) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (2) All interstate waters, including interstate wetlands; (3) The territorial seas; (4) All impoundments of waters otherwise identified as waters of the United

States unde r this section; (5) All tributaries, as defined in paragraph (c)(3) of this section, of waters identified in paragraphs (a)(1) through (3) of this section; (6) All waters adjacent to a water identified in paragraphs (a)(1) through (5) of this section, in cluding wetlands, ponds, lakes, oxbows, im poundments, and similar waters; (7) All waters in paragraphs (i) through (v) of this paragraph where they are determined, on a case

- specific basis, to have a significant nexus to a water identified in paragraphs ( a)( 1) through (3) of this section. The waters identified in each of paragraphs (i) through (v) of this paragraph are similarly situated and shall be combined, for purposes of a sig nificant nexus analysis,

in the watershed that drains to the nearest water identified in paragraphs (a)( 1) through (3) of this section. Waters identified in this paragraph shall not be combined with waters identified in paragraph (a)(6) of this section when performin g a significant nexus analysis. If waters identified in this p aragraph are also an adjacent water under paragraph (a)(6), they are an adjacent

water and no case

- specific significant nexus analysis is required. (i) Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually occurring in de pressions that lack permanent natural outlets, located in the upper Midwest. (ii) C arolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, depressional wetlands that occur along the Atlantic coastal plain. (iii) Pocosins. Pocosins are evergreen shrub and tree dominated wetlands found predominantly along the Central Atlantic coastal plain.29 (iv) Western vernal pools. Western vernal pools are seasonal wetlands located in parts of California and associated with topographic dep ression, soils with poor drainage, mild, wet winters and hot, dry

summers. (v) Texas coastal prairie wetlands. Texas coastal prairie wetlands are freshwater wetlands that occur as a mosaic of depressions, ridges, intermound flats, and mima mound wetlands located along the Texas

Gulf Coast. (8) All waters located within the 100

- year floodplain of a water identified in (a)(1) through (3) of this section and all waters located within 4,000 feet of the high tide line or ordinary high water mark of a water ide ntified in paragraphs (a)(1) through (5) of this section where they are determined on a case

- specific basis to have a significant nexus to a water identified in paragraphs (a)(1) through (3) of this section. For waters determined to have a significant

nex us, the entire water is a water of the United States if a portion is located

within the 100

- year floodplain of a water identified in (a)(1) through (3) of this

section or within 4,000 feet of the high tide line or ordinary high water mark.

Waters identifi ed in this paragraph shall not be combined with waters identified in paragraph (a)(6) of this section when performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (a)(6), they are an adjace nt water and no case

specific signific ant nexus analysis is required.

(b) The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (a)(4) through (8) of this section. (1) Waste treatment systems, includi ng treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act. This exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States (such as disposal area in wetlands) nor re sulted from the impoundment of waters of the United States. 1
(2) Prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final aut hority regarding Clean Water Act jurisdiction remains with EPA. (3) The following ditches: (i) Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary. (ii) Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands. (iii) Ditches that do not flow, either directly or through another water, into a water identified in paragraphs (a)(1) through (3) of this section. (4) The following features:

1 At 45 FR 48620, July 21, 1980, the Environmental Protection Agency suspended until further notice in § 122.2, the last sentence, beginning “This exclusion applies...” in the definition of “Waters of the United States.” This revision (48 FR 14153, Apr. 1, 1983) continues that suspension.30 (i) Artificially irriga ted areas that would revert to dry land should application of water to that area cease; (ii) Artificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds, irrigation ponds, settling basins, fields flooded for rice growi ng, log cleaning ponds, or cooling ponds; (iii) Artificial reflecting pools or swimming pools created in dry land; (iv) Small ornamental waters created in dry land; (v) Water

- filled depressions created in dry land incidental to mining or

construction activ ity, including pits excavated for obtaining fill, sand, or gravel that fill with water; (vi) Erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non

- wetland swales, and lawfully construct ed grassed waterways; and (vii) Puddles. (5) Groundwater, including groundwater drained throug h subsurface drainage
systems. (6) Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land. (7) Wastewater rec ycling structures constructed in dry land; detention and retention basins built for wastewater recycling; groundwater recharge basins; percolation ponds built for wastewater recycling; and water distributary structures built for wastewater recycling.

(c) Definitions

— In this section, the following definitions apply: (1) Adjacent. The term adjacent means bordering, contiguous, or neighboring a water identified in paragraphs (a)(1) through (5) of this section, including waters separated by constructed dikes or barriers, natural river berms, beach dunes,

and the like. For purposes of adjacency, an open water such as a pond or lake includes any wetlands within or abutting its ordinary high water mark. Adjacency is not limited to waters located laterally to a water identified in paragraphs (a)(1) through (5) of this section. Adjacent waters also include all waters that connect segments of a water identified in paragraphs (a)(1) through (5) or are located at the head of a water identified in paragraphs (a)(1) t hrough (5) of this section and are bordering, contiguous, or neighboring such water. Waters being used for established normal farming, ranching, and silviculture activities (33 USC § 1344(f)) are not adjacent. (2) Neighboring. The term neighboring means: (i) All waters located within 100 feet of the ordinary high water mark of a water identified in paragraphs (a)(1) through (5) of this section. The entire water is neighboring if a portion is located within 100 feet of the ordinary high water mark; (ii) Al l waters located within the 100

- year floodplain of a water identified in paragraphs (a)(1) through (5) of this section and not more than 1,500 feet from the ordinary high water mark of such water. The entire water is neighboring if a portion is located wit hin 1,500 feet of the ordinary high

water mark and within the 100

- year floodplain;31

(iii) All waters located within 1,500 feet of the high tide line of a water identified in paragraphs (a)(1) or (a)(3) of this section, and all waters within 1,500 feet

of th e ordinary high water mark of the Great Lakes. The entire water is neighboring if a portion is located within 1,500 feet of the high tide line or within 1,500 feet of the ordinary high water mark of the Great Lakes. (3) Tributary and tributaries. The terms tributary and tributaries each mean a water

that contributes flow, either directly or through another water (including an impoundment identified in paragraph (a)(4) of this section), to a water identified

in paragraphs (a)(1) through (3) of this section t hat is characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark. These physical indicators demonstrate there is volume, frequency, and duration of flow sufficient to create a bed and banks and an ordinary high water mark, and thus to qualify as a tributary. A tributary can be a natural,

man

- altered, or man

- made water and includes waters such as rivers, streams, canals, and ditches not excluded under paragraph (b) of this section. A water

that otherwise q ualifies as a tributary under this definition does not lose its

status as a tributary if, for any length, there are one or more constructed breaks (such as bridges, culverts, pipes, or dams), or one or more natural breaks (such

as wetlands along the run of a stream, debris piles, boulder fields, or a stream that flows underground) so long as a bed and banks and an ordinary high water

mark can be identified upstream of the break. A water that otherwise qualifies as a tributary under this definition does not lose its status as a tributary if it

contributes flow through a water of the United States that does not meet the definition of tributary or through a non

- jurisdictional water to a water identified in paragraphs (a)(1) through (3) of this section. (4) Wet lands. The term wetlands means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. (5) Significant nexus . The term significant nexus means that a water, including wetlands, either alone or in combination with other similarly situated waters i n the region, significantly affects the chemical, physical, or biological integrity of a water identified in paragraphs (a)(1) through (3) of this section. The term “in the region” means the watershed that drains to the nearest water identified in

paragra phs (a)(1) through (3) of this section. For an effect to be significant, it must be more than speculative or insubstantial. Waters are similarly situated when they function alike and are sufficiently close to function together in affecting downstream wat ers. For purposes of determining whether or not a water has a significant nexus, the water’s effect on downstream (a)(1) through (3) waters shall be assessed by evaluating the aquatic functions identified in paragraphs (A) through (I) of this paragraph. A water has a significant nexus when any single function or combination of functions performed by the water, alone or together with similarly situated waters in the region, contributes significantly to the chemical, physical, or biological integrity of the nearest water32

identified in paragraphs (a)(1) through (3) of this section. Functions relevant to the significant nexu s evaluation are the following: (i) sediment trapping, (ii) nutrient recycling, (iii) pollutant trapping, transforma tion, filtering, a nd transport, (iv) retention a nd attenuation of flood waters, (v) runoff storage, (vi) contribution of flow, (vii) export of organic matter, (viii) export of food resources, and (ix) provision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting, breeding, spawning, or use as a nursery area) for species located in a water identified in paragraphs (a)(1) through (3) of this section. (6) O rdinary high water mark. The term ordinary high water mark means that line

on the shore establ ished by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas. ( 7) High tide line. The term high tide line means the line of intersection of the land with the water's surface at the maximum height reached by a rising tide. The high tide lin e may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the nor mal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm.33

PART 230

— SECTION 404(b)(1) GUIDELINES FOR SPECIFICATION OF DISPOSAL

SITES FOR DREDGED OR FILL MATERIAL.

13. The authority citation for part 230 continues to read as follows: Authority: The Clean Water Act, 33 U.S.C. 1251 et.seq. 14. Section 230.3 is amended by revising paragraphs (s) and (t) and adding paragraph (u) to read as follows:

§ 230.3 Definitions. (s) For purposes of the Clean Water Act, 33 U.S.C. 1251 et. seq. and its implementing regulations, subject to the exclusions in paragraph (b) of this section, the term

‘‘waters of the United States’’ means: (1) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (2) All interstate waters, including interstate wetlands; (3) The territorial seas; (4) All impo undments of waters otherwise identified as waters of the United States under this section; (5) All tributaries, as defined in paragraph (c)(3) of this section, of waters identified in paragraphs (a)(1) through (3) of this section; (6) All waters adjacent t o a water identified in paragraphs (a)(1) through (5) of this section, including wetlands, ponds, lakes, oxbows, impoundments, and similar waters; (7) All waters in paragraphs (i) through (v) of this paragraph where they are determined, on a case

- specific basis, to have a significant nexus to a water identified in paragraphs (a)( 1) through (3) of this section. The waters identified in each of paragraphs (i) through (v) of this paragraph are similarly situated and shall be combined, for purposes of a sig ni ficant nexus analysis,

in the watershed that drains to the nearest water identified in paragraphs (a)( 1) through (3) of this section. Waters identified in this paragraph shall not be combined with waters identified in paragraph (a)(6) of this section when performin g a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (a)(6), they are an adjacent water

and no case

- specific significant nexus analysis is required. (i) Prairie potholes. Prairie poth oles are a complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper Midwest. (ii) C arolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, depressional wetlands th at occur along the Atlantic coastal plain. (iii) Pocosins. Pocosins are evergreen shrub and tree dominated wetlands found predominantly along the Ce ntral Atlantic coastal plain. (iv) Western vernal pools. Western vernal pools are seasonal wetlands

locate d in parts of California and associated with topographic34 depression, soils with poor drainage, mild, wet winters and hot, dry

summers. (v) Texas coa stal prairie wetlands. Texas coastal prairie wetlands are freshwater wetlands that occur as a mosaic of dep ressions, ridges, intermound flats, and mima mound wetlands located along the Texas

Gulf Coast. (8) All waters located within the 100

- year floodplain of a water identified in (a)(1) through (3) of this section and all waters located within 4,000 feet of th e high tide line or ordinary high water mark of a water identified in paragraphs (a)(1) through (5) of this section where they are determined on a case

- specific basis to have a significant nexus to a water identified in paragraphs (a)(1 ) through (3) of thi s section. For waters determined to have a significant nexus, the entire water is a water of the United States if a portion is located within the

100

- year floodplain of a water identified in (a) (1) through (3) of this section or within 4,000 feet of the h igh tide line or ordinary high water mark. Waters identified in this paragraph shall not be combined with waters identified in paragraph (a)(6) of this section when performin g a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (a)(6), they are an adjacent water and no case

- specific signific ant nexus analysis is required.

(t) The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (a)(4) through (8) of this section. (1) Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act. (2) Prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA. (3 ) The following ditches: (i) Ditches with ephemeral flow that are not a relocated tributary or

excavated i n a tributary. (ii) Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands. (iii) Ditches that do not flow, either directly or through another water, into a water identified in paragraphs (a)(1) throu gh (3) of this section. (4) The following features: (i) Artificially irrigated areas that would revert to dry land should application of water to that area cease; (ii) Artificial, constructed lakes and ponds created in dry land such as farm

and stock wate ring ponds, irrigation ponds, settling basins, fields flooded for rice growing, log cleaning ponds, or cooling ponds; (iii) Artificial reflecting pools or swimming pools created in dry land; (iv) Small ornamental waters created in dry land;35 (v) Water

- fille d depressions created in dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water; (vi) Erosional features, including gullies, rills, and other ephemeral features

that do not meet the definition of tributary, non

- wetland swales, and lawfully constructed grassed waterways; and (vii) Puddles. (viii) Groundwater, including groundwater drained through subsurface drainage systems. (ix) Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land. (7) Wastewater recycling structures constructed in dry land; detention and retention basins built for wastewater recycling; groundwater recharge basins; percolation ponds built for wastewate r recycling; and water distributary structures built for wastewater recycling.

(u) Definitions

— In this section, the following definitions apply: (1) Adjacent. The term adjacent means bordering, contiguous, or neighboring a water identified in paragraphs (a)(1) through (5) of this section, including waters separated by constructed dikes or barriers, natural river berms, beach dunes,

and the like. For purposes of adjacency, an open water such as a pond or lake includes any wetlands within or abutting its o rdinary high water mark. Adjacency is not limited to waters located laterally to a water identified in paragraphs (a)(1) through (5) of this section. Adjacent waters also include all waters that connect segments of a water identified in paragraphs (a)(1) through (5) or are located at the head of a water identified in paragraphs (a)(1) through (5) of this section and are bordering, contiguous, or neighboring such water. Waters being used for established normal farming, ranching, and silviculture activitie s (33 USC § 1344(f)) are not adjacent. (2) Neighboring. The term neighboring means: (A) All waters located within 100 feet of the ordinary high water mark of a water identified in paragraphs (a)(1) through (5) of this section. The entire water is neighbor ing if a portion is located within 100 feet of the ordinary high water mark; (B) All waters located within the 100

- year floodplain of a water identified in paragraphs (a)(1) through (5) of this section and not more than 1,500 feet from the ordinary high wa ter mark of such water. The entire water is neighboring if a portion is located within 1,500 feet of the ordinary high water

mark and wit hin the 100

- year floodplain; (C) All waters located within 1,500 feet of the high tide line of a water identified in p aragraphs (a)(1) or (a)(3) of this section, and all waters within 1,500 feet of the ordinary high water mark of the Great Lakes. The entire water is neighboring if a portion is located within 1,500 feet of the high tide line or within 1,500 feet of the or dinary high water mark of the Great Lakes. (3) Tributary and tributaries. The terms tributary and tributaries each mean a water

that contributes flow, either directly or through another water (including an36

impoundment identified in paragraph (a)(4) of this section), to a water identified in paragraphs (a)(1) through (3) of this section that is characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark. These physical indicators demonstrate there is volume, f requency, and duration of flow sufficient to create a bed and banks and an ordinary high water mark, and thus to qualify as a tributary. A tributary can be a natural, man

- altered, or man

made water and includes waters such as rivers, streams, canals, and ditches not excluded under paragraph (b) of this section. A water that otherwise qualifies as a tributary under this definition does not lose its status as a tributary if, for any length, there are one or more constructed breaks (such as bridges, culverts

, pipes, or dams), or one or more natural breaks (such as wetlands along the run of a stream, debris piles, boulder fields, or a stream that flows underground) so long as a bed and banks and an ordinary high water mark can be identified upstream of the bre ak. A water that otherwise qualifies as a tributary under this

definition does not lose its status as a tributary if it contributes flow through a water of the United States that does not meet the definition of tributary or through

a non

- jurisdictional wa ter to a water identified in paragraphs (a)(1) through (3) of

this section. (4) Wetlands. The term wetlands means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and

that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. (5) Significant nexus . The term significant nexus means that a water, includ ing wetlands, either alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of a water identified in paragraphs (a)(1) through (3) of this section. The term “in the region” means the watershed that drains to the nearest water identified in paragraphs (a)(1) through (3) of this section. For an effect to be significant, it must be more than speculative or insubstantial. Waters are similarly situated when they functio n alike and are sufficiently close to function together in affecting downstream waters. For purposes of determining whether or not a water has a significant nexus, the water’s effect on downstream (a)(1) through (3) waters shall be assessed by evaluating the aquatic functions identified in paragraphs (A) through (I) of this paragraph. A water has a significant nexus when any single function or combination of functions performed by the water, alone or together with similarly situated waters in the region, contributes significantly to the chemical, physical, or biological integrity of the nearest water identified in paragraphs (a)(1) through (3) of this section. Functions relevant to the significant

nexu s evaluation are the following: (i) sediment trapping, (ii) nutrient recycling, (iii) pollutant trapping, transforma tion, filtering, and transport, (iv) retention and attenuation of flood waters, (v) runoff storage, (vi) contribution of flow,37

(vii) export of organic matter, (viii) export of food resources, and (ix) provision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting, breeding, spawning, or use as a nursery area) for species located in a water identified in paragraphs (a)( 1) through (3) of this section. (6) O rdinary high wat

er mark. The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, dest ruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas. ( 7) High tide line. The term high tide line means the line of intersection of the land

with the wat er's surface at the maximum height reached by a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or

debris on the foreshore or b erm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic freque ncy but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm.38

PART 232

— 404 PROGRAMS DEFINITIONS; EXEMPT ACTIVITIES NOT REQUIRING

404 PERMITS

15. The authority citation for part 230 continues to read as follows: Authority: The Clean Water Act, 33 U.S.C. 1251 et.seq. 16. Section 232.2 is amended by revising the definition of “Wat ers of the United States”

to read as follows:

§ 232.2 Definitions.

Waters of the United States or waters means: (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et. seq. and its implementing regulations, subject to the exclusions in paragraph (2) of this section, the term

‘‘waters of the United States’’ means: (i) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or fo reign commerce, including all waters which are subject to the ebb and flow of the tide; (ii) All interstate waters, including interstate wetlands; (iii) The territorial seas; (iv) All impoundments of waters otherwise identified as waters of the United

Stat es under this section; (v) All tributaries, as defined in paragraph (3)(iii) of this section, of waters identified in paragraphs (1)(i) through (iii) of this section; (vi) All waters adjacent to a water identified in paragraphs (1)(i) through (v) of this

s ection, including wetlands, ponds, lakes, oxbows, impoundments, and similar waters; (vii) All waters in paragraphs (A) through (E) of this paragraph where they are determined, on a case

- specific basis, to have a significant nexus to a water
identified in paragraphs (1)(i) through (iii) of this section. The waters identified in each of paragraphs (A) through (E) of this paragraph are similarly situated and shall be combined, for purposes of a significant nexus analysis,

in the watershed that drains to the nearest water identified in paragraphs (1)(i) through (iii) of this section. Waters identified in this paragraph shall not be combined with waters identified in paragraph (1)(vi) of this section when performing a significant nexus analysis. If waters iden tified in this paragraph are also an adjacent water under paragraph (1)(vi), they are an adjacent

water and no case

- specific significant nexus analysis is required. (A) Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper Midwest. (B) C arolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, depressional wetlands that occur along the Atlantic coastal plain. (C) Pocosins. Pocosins are evergreen shrub and tree dominated wetlands found predominantly along the Central Atlantic coastal plain.39 (D) Western vernal pools. Western vernal pools are seasonal wetlands located in parts of California and associated with topographic dep ression, soils with poor drainage, mild, wet winters and hot, dry summers. (E) T exas coastal prairie wetlands. Texas coastal prairie wetlands are freshwater wetlands that occur as a mosaic of depressions, ridges, intermound flats, and mima mound wetlands located along the Texas

Gulf Coast. (viii) All waters located within the 100

- year floodplain of a water identified in (1)(i) through (iii) of this section and all waters located within 4,000 feet of the high tide line or ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this section where they are determined on a case

- specific basis to have a significant nexus to a water identified in paragraphs (1)(i) through (iii) of this section. For waters determined to have a significa nt nexus, the entire water is a water of the United States if a portion is located within the

100

- year floodplain of a water identified in (1)(i ) through (iii) of this section or within 4,000 feet of the high tide line or ordinary high water mark. Waters identified in this paragraph shall not be combined with waters identified in paragraph (1)(vi) of this section when performin g a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they ar e an adjacent water and no case

- specific signific ant nexus analysis is required. (2) The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (1)(iv) through (viii) of this section. (i) Waste treatment sys tems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act. (ii) Prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the

purp oses of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA. (iii) The following ditches: (A) Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary. (B) Ditches with intermi ttent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands. (C) Ditches that do not flow, either directly or through another water, into a water identified in paragraphs (1)(i) through (iii) of this

secti on. (iv) The following features: (A) Artificially irrigated areas that would revert to dry land should application of water to that area cease; (B) Artificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds, irrigati on ponds, settling basins, fields flooded for rice growing, log cleaning ponds, or cooling ponds; (C) Artificial reflecting pools or swimming pools created in dry land; (D) Small ornamental waters created in dry land;40 (E) Water

- filled depressions created i n dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water; (F) Erosional features, including gullies, rills, and other ephemeral features

that do not meet the definition of t ributary, non

- wetland swales, and lawfully constructed grassed waterways; and (G) Puddles. (v) Groundwater, including groundwater drained throug h subsurface drainage
systems. (vi) Stormwater control features constructed to convey, treat, or store stormwa ter that are created in dry land. (vii) Wastewater recycling structures constructed in dry land; detention and retention basins built for wastewater recycling; groundwater recharge basins; percolation ponds built for wastewater recycling; and water distributary structures built for wastewater recycling.

(3) Definitions

— In this section, the following definitions apply: (i) Adjacent. The term adjacent means bordering, contiguous, or neighboring a water identified in paragraphs (1)(i) through (v) of th is section, including waters separated by constructed dikes or barriers, natural river berms, beach dunes, and the like. For purposes of adjacency, an open water such as a pond or lake includes any wetlands within or abutting its ordinary high water

mark. Adjacency is not limited to waters located laterally to a water identified in paragraphs (1)(i) through (v) of this section. Adjacent waters also include all waters that connect segments of a water identified in paragraphs (1)(i) through (v) or are loca ted at the head of a water identified in paragraphs (1)(i) through (v) of this section and are bordering, contiguous, or neighboring such

water. Waters being used for established normal farming, ranching, and silviculture activities (33 USC § 1344(f)) are not adjacent. (ii) Neighboring. The term neighboring means: (A) All waters located within 100 feet of the ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this section. The entire water is neighboring if a portion is loc ated within 100 feet of the ordinary high water mark; (B) All waters located within the 100

- year floodplain of a water identified in paragraphs (1)(i) through (v) of this section and not more than 1,500 feet from the ordinary high water mark of such water. The entire water is neighboring if a portion is located within 1,500 feet of the ordinary high

water mark and within the 100

- year floodplain; (C) All waters located within 1,500 feet of the high tide line of a water identified in paragraphs (1)(i) or (1) (iii) of this section, and all waters within 1,500 feet of the ordinary high water mark of the Great Lakes. The entire water is neighboring if a portion is located within 1,500 feet of the high tide line or within 1,500 feet of the ordinary high water mar k of

the Great Lakes.41

(iii) Tributary and tributaries. The terms tributary and tributaries each mean a water that contributes flow, either directly or through another water (including an impoundment identified in paragraph (1)(iv) of this section), to a wa ter
identified in paragraphs (1)(i) through (iii) of this section that is characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark. These physical indicators demonstrate there is volume, frequency, and duration of flow sufficient to create a bed and banks and an ordinary high water mark, and thus to qualify as a tributary. A tributary can be a natural, man

- altered, or man

- made water and includes waters such as rivers, streams, canals, and ditches not ex cluded under paragraph (2) of this

section. A water that otherwise qualifies as a tributary under this definition

does not lose its status as a tributary if, for any length, there are one or more constructed breaks (such as bridges, culverts, pipes, or da ms), or one or more natural breaks (such as wetlands along the run of a stream, debris piles, boulder fields, or a stream that flows underground) so long as a bed and banks and an ordinary high water mark can be identified upstream of the

break. A water t hat otherwise qualifies as a tributary under this definition

does not lose its status as a tributary if it contributes flow through a water of the United States that does not meet the definition of tributary or through a

non

- jurisdictional water to a water identified in paragraphs (1)(i1) through (iii)

of this section. (iv) Wetlands. The term wetlands means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumsta nces do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. (v) Significant Nexus . The term significant nexus means that a water, including

wetla nds, either alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of a water identified in paragraphs (1)(i) through (iii) of this section. The term “in the region ” means the watershed that drains to the nearest water identified in paragraphs (1)(i) through (iii) of this section. For an effect to be significant, it must be more than speculative or insubstantial. Waters are similarly situated when they function alike and are sufficiently close to function together in affecting downstream waters. For purposes of determining whether or not a water has a significant nexus, the water’s effect on downstream (1)(i) through (iii) waters shall be assessed by evaluating the aquatic functions identified in paragraphs (A) through (I) of this paragraph. A water has a significant nexus when any single function or combination of functions performed by the water, alone or together with similarly situated waters in the region, contributes significantly to the chemical, physical, or biological integrity of the nearest water identified in paragraphs (1)(i) through (iii) of this section. Functions relevant to the significant nexus evaluation are the follow ing: (A) sediment trappin g, (B) nutrient recycling, (C) pollutant trapping, transforma tion, filtering, and transport,42 (D retention a nd attenuation of flood waters, (E) runoff storage, (F) contribution of flow, (G) export of organic matter, (H) export of food resources, and (I) p rovision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting, breeding, spawning, or use as a nursery area) for species located in a water identified in paragraphs (a)( 1) through (3) of

this section. (vi) O rdinary high water mark. T he term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas. ( vii) High tide line. The term high tide line means the line of intersection of the

land with the water's sur face at the maximum height reached by a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, othe r physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but

do es not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm.43

PART 300

— NATIONAL OIL AN D HAZARDOUS SUBSTANCES POLLUTION

CONTINTENCY PLAN

17. The authority citation for part 300 continues to read as follows: Authority: The Clean Water Act, 33 U.S.C. 1251 et.seq. 18. Section 300.5 is amended by revising the definition of “navigable waters” to read as

follows:

§ 300.5 Definitions. Navigable waters as defined by 40 CFR 110.1, means the waters of the United States, including the territorial seas. (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et. seq. and its implementing regulations, s ubject to the exclusions in paragraph (2) of this section, the term

‘‘waters of the United States’’ means: (i) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (ii) All interstate waters, including interstate wetlands; (iii) The territorial seas; (iv) All impoundments of waters otherwise identified as waters of the United States under this section; (v) All tribut aries, as defined in paragraph (3)(iii) of this section, of waters identified in paragraphs (1)(i) through (iii) of this section; (vi) All waters adjacent to a water identified in paragraphs (1)(i) through (v) of this section, including wetlands, ponds, la kes, oxbows, impoundments, and similar waters; (vii) All waters in paragraphs (A) through (E) of this paragraph where they are determined, on a case

- specific basis, to have a significant nexus to a water

identified in paragraphs ( 1)(i) through (iii) of th is section. The waters identified in each of paragraphs (A) through (E) of this paragraph are similarly situated and shall be combined, for purposes of a sig nificant nexus analysis,

in the watershed that drains to the nearest water identified in paragraph s (1)(i) through (iii) of this section. Waters identified in this paragraph shall not be combined with waters identified in paragraph (1)(vi) of this section when performin g a significant nexus analysis. If waters identified in this paragraph

are also an adjacent water under paragraph (1)(vi), they are an adjacent

water and no case

- specific significant nexus analysis is required. (A) Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper Midwest. (B) C arolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, depressional wetlands that occur along the Atlantic coastal plain. (C) Pocosin s. Pocosins are evergreen shrub and tree dominated wetlands found predominantly along the Central Atlantic coastal plain.44 (D) Western vernal pools. Western vernal pools are seasonal wetlands located in parts of California and associated with topographic depr ession, soils with poor drainage, mild, wet winters and hot, dry

summers. (E) Texas coastal prairie wetlands. Texas coastal prairie wetlands are freshwater wetlands that occur as a mosaic of depressions, ridges, intermound flats, and mima mound wetlands l ocated along the Texas

Gulf Coast. (viii) All waters located within the 100

- year floodplain of a water identified in (1)(i) through (iii) of this section and all waters located within 4,000 feet of the high tide line or ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this section where they are determined on a case

- specific basis to have a significant nexus to a water identified in paragraphs (1)(i) through (iii) of this section. For waters determined to have a significan t nexus, the entire water is a water of the United States if a portion is located within the

100

- year floodplain of a water identified in (1)(i) t hrough (iii) of this section or within 4,000 feet of the high tide line or ordinary high water mark. Waters

i dentified in this paragraph shall not be combined with waters identified in paragraph (1)(vi) of this section when performin g a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they are an adjacent water and no case

- specific signific ant nexus analysis is required.

(2) The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (1)(iv) through (viii) of this section. (i) Waste treatment sys tems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act. (ii) Prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the

purp oses of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA. (iii) The following ditches: (A) Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary. (B) Ditches with intermi ttent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands. (C) Ditches that do not flow, either directly or throu gh another water, into a

water identified in paragraphs (1)(i) through (iii) of this section. (iv) The follow ing features: (A) Artificially irrigated areas that would revert to dry land should application of water to that area cease; (B) Artificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds, irrigation ponds, settling b asins, fields flooded for rice growing, log cleaning ponds, or cooling ponds; (C) Artificial reflecting pools or swimming pools created in dry land; (D) Small ornamental waters created in dry land;45 (E) Water

- filled depressions created in dry land incidenta l to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water; (F) Erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non

- wetlan d swales, and lawfully constructed grassed waterways; and (G) Puddles. (v) Groundwater, including groundwater drained through subsurface drainage
systems. (vi) Stormwater control features constructed to convey, treat, or store stormwater

that are created in dry land. (vii) Wastewater recycling structures constructed in dry land; detention and retention basins built for wastewater recycling; groundwater recharge basins; percolation ponds built for wastewater recycling; and water distributary

struct ures built for wastewater recycling.

(3) Definitions

— In this section, the following definitions apply: (i) Adjacent. The term adjacent means bordering, contiguous, or neighboring a water identified in paragraphs (1)(i) through (v) of this section, including waters separated by constructed dikes or barriers, natural river berms, beach dunes, and the like. For purposes of adjacency, an open water such as a pond or lake includes any wetlands within or abutting its ordinary high water mark. Adjacency is not limited to waters located laterally to a water identified in paragraphs (1)(i) through (v) of this section. Adjacent waters also include all waters that connect segments of a water identified in paragraphs (1)(i) through (v) or are located at the h ead of a water identified in paragraphs (1)(i) through (v) of this section and are bordering, contiguous, or neighboring such

water. Waters being used for established normal farming, ranching, and silviculture activities (33 USC § 1344(f)) are not adjacen t. (ii) Neighboring. The term neighboring means: (A) All waters located within 100 feet of the ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this section. The entire water is neighboring if a portion is located within 100 feet of the ordinary high water mark; (B) All waters located within the 100

- year floodplain of a water identified in paragraphs (1)(i) through (v) of this section and not more than 1,500 feet from the ordinary high water mark of such water. The entire water is neighboring if a portion is located within 1,500 feet of the ordinary high water mark and

within the 100

- year floodplain; (C) All waters located within 1,500 feet of the high tide line of a water identified in paragraphs (1)(i) or (1)(iii) of thi s section, and all waters within 1,500 feet of the ordinary high water mark of the Great Lakes. The entire water is neighboring if a portion is located within 1,500 feet of the high tide line or within 1,500 feet of the ordinary high water mark of t he Gre at Lakes. (iii) Tributary and tributaries. The terms tributary and tributaries each mean a water that contributes flow, either directly or through another water (including46 an impoundment identified in paragraph (1)(iv) of this section), to a water

identifi ed in paragraphs (1)(i) through (iii) of this section that is characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark. These physical indicators demonstrate there is volume, frequency, and duration of fl ow sufficient to create a bed and banks and an ordinary high water mark, and thus to qualify as a tributary. A tributary can be a natural, man

- altered, or man

- made water and includes waters such as rivers, streams, canals, and ditches not excluded under p aragraph (2) of this

section. A water that otherwise qualifies as a tributary under this definition

does not lose its status as a tributary if, for any length, there are one or more constructed breaks (such as bridges, culverts, pipes, or dams), or one or more natural breaks (such as wetlands along the run of a stream, debris piles, boulder fields, or a stream that flows underground) so long as a bed and banks and an ordinary high water mark can be identified upstream of the

break. A water that otherwise qualifies as a tributary under this definition

does not lose its status as a tributary if it contributes flow through a water of the United States that does not meet the definition of tributary or through a

non

- jurisdictional water to a water identified in paragraphs (1)(i1) through (iii)

of this section. (iv) Wetlands. The term wetlands means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do suppor t, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. (v) Significant nexus . The term significant nexus means that a water, including wetlands, either al one or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of a water identified in paragraphs (1)(i) through (iii) of this section. The term “in the region” means the wa tershed that drains to the nearest water identified in paragraphs (1)(i) through (iii) of this section. For an effect to be significant, it must be more than speculative or insubstantial. Waters are similarly situated when they function alike and are suf ficiently close to function together in affecting downstream waters. For purposes of determining whether or not a water has a significant nexus, the water’s effect on downstream (1)(i) through (iii) waters shall be assessed by evaluating the aquatic funct ions identified in paragraphs (A) through (I) of this paragraph. A water has a significant nexus when any single function or combination of functions performed by the water, alone or together with similarly situated waters in the region, contributes signi ficantly to the chemical, physical, or biological integrity of the nearest water identified in paragraphs (1)(i) through (iii) of this section. Functions relevant to the significant nexu s evaluation are the following: (A) sediment trapping, (B) nutrie nt r ecycling, (C) pollutant trapping, transforma tion, filtering, and transport, (D) retention a nd attenuation of flood waters, (E) runoff storage,47 (F) contribution of flow, (G) export of organic matter, (H) export of food resources, and (I) provision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting, breeding, spawning, or use as a nursery area) for species located in a water identified in paragraphs (a)( 1) through (3) of

this section. (vi) O rdinary high water mark. The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vege tation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas. ( vii) High tide line. The term high tide line means the line of intersection of the

land with the water's surface at the maxim um height reached by a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markin gs or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but

does not include s torm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm.48

19. In appendix E to part 300, section 1.5 Definitions is amended by revising the definition of “navigable waters” to read as follows:

Appendix E to Part 300

— Oil Spill Response.

1.5 Definitions Navigable waters as defined by 40 CFR 110.1, means the waters of the United States, including the t erritorial seas. (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et. seq. and its implementing regulations, subject to the exclusions in paragraph (2) of this section, the term

‘‘waters of the United States’’ means: (i) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (ii) All interstate waters, including interstate wetlands; (iii) The territorial seas; (iv) All impoundments of waters otherwise identified as waters of the United States under this section; (v) All tributaries, as defined in paragraph (3)(iii) of this section, of waters identified in paragraphs (1)(i) through (iii) of this section; (vi) All wat ers adjacent to a water identified in paragraphs (1)(i) through (v) of this section, including wetlands, ponds, lakes, oxbows, im poundments, and similar
waters; (vii) All waters in paragraphs (A) through (E) of this paragraph where they are determined, on a case

- specific basis, to have a significant nexus to a water identified in paragraphs (1)(i) through (iii) of this section. The waters identified in each of paragraphs (A) through (E) of this paragraph are similarly situated and shall be combined, for pu rposes of a sig nificant nexus analysis, in the watershed that drains to the nearest water identified in paragraphs (1)(i) through (iii) of this section. Waters identified in this paragraph shall not be combined with waters identified in paragraph (1)(vi) of this section when performin g a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they are an adjacent water

and no case

- specific significant nexus analysis is required. (A) Prairie po tholes. Prairie potholes are a complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper Midwest. (B) C arolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, depressional wetlands that occur along the Atlantic coastal plain. (C) Pocosins. Pocosins are evergreen shrub and tree dominated wetlands found predominantly along the Central Atlantic coastal plain. (D) Wester n vernal pools. Western vernal pools are seasonal wetlands located in parts of California and associated with topographic depression, soils with poor drainage, mild, wet winters and hot, dry summers. (E) Texas coastal prairie wetlands. Texas coastal prai rie wetlands are freshwater wetlands that occur as a mosaic of depressions, ridges,49 intermound flats, and mima mound wetlands located along the Texas Gulf

Coast. (viii) All waters located within the 100

- year floodplain of a water identified in (1)(i)

throu gh (iii) of this section and all waters located within 4,000 feet of the high tide line or ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this section where they are determined on a case

- specific basis to have a signific ant nexus to a water identified in paragraphs (1)(i) through (iii)

of this section. For waters determined to have a significant nexus, the entire water is a water of the United States if a portion is located within the 100

- year floodplain of a water ident ified in (1)(i) through ( iii) of this section or within 4,000 feet of the high tide line or ordinary high water mark. Waters identified in this paragraph shall not be combined with waters identified in paragraph (1)(vi) of this section when performing a s ignificant nexus analysis

. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they are an adjacent water and no case

- specific signific ant nexus analysis is required.

(2) The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (1)(iv) through (viii) of this section. (i) Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act. (ii) Prior converted cropland . Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA. (iii) The following ditch es: (A) Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary. (B) Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands. (C) Ditches that do not flow, either dir ectly or throu gh another water, into a

water identified in paragraphs (1)(i) through (iii) of this section. (iv) The following features: (A) Artificially irrigated areas that would revert to dry land should application of water to that area cease; (B) Art ificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log cleaning ponds, or cooling ponds; (C) Artificial reflecting pools or swimming pools crea ted in dry land; (D) Small ornamental waters created in dry land; (E) Water

- filled depressions created in dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water; (F) Erosion al features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non

- wetland swales, and lawfully constructed grassed waterways; and50 (G) Puddles. (v) Groundwater, including groundwater drained through subsu rfa ce drainage
systems. (vi) Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land. (vii) Wastewater recycling structures constructed in dry land; detention and

retention basins built for wastewater re cycling; groundwater recharge basins; percolation ponds built for wastewater recycling; and water distributary structures built for wastewater recycling.

(3) Definitions

— In this section, the following definitions apply: (i) Adjacent. The term adjacent means bordering, contiguous, or neighboring a water identified in paragraphs (1)(i) through (v) of this section, including waters separated by constructed dikes or barriers, natural river berms, beach dunes, and the like. For purposes of adjacency, an open water such as a pond or lake includes any wetlands within or abutting its ordinary high water mark. Adjacency is not limited to waters located laterally to a water identified in paragraphs (1)(i) through (v) of this section. Adjacent waters also include all waters that connect segments of a water identified in paragraphs (1)(i) through (v) or are located at the head of a water identified in paragraphs (1)(i) through (v) of this section and are bordering, contiguous, or neighboring such water. Waters being used for established normal farming, ranching, and silviculture activities (33 USC § 1344(f)) are not adjacent. (ii) Neighboring. The term neighboring means: (A) All waters located within 100 feet of the ordinary high water mark of a water identified in p aragraphs (1)(i) through (v) of this section. The entire water is neighboring if a portion is located within 100 feet of the ordinary high water mark; (B) All waters located within the 100

- year floodplain of a water identified in paragraphs (1)(i) through (v) of this section and not more than 1,500 feet from the ordinary high water mark of such water. The entire water is neighboring if a portion is located within 1,500 feet of the ordinary high water mark and within

the 100

- year floodplain; (C) All waters located within 1,500 feet of the high tide line of a water identified in paragraphs (1)(i) or (1)(iii) of this section, and all waters within 1,500 feet of the ordinary high water mark of the Great Lakes. The entire water is neighboring if a portion is l ocated within 1,500 feet of the high tide line or within 1,500 feet of the ordinary high water mark of the Great Lakes. (iii) Tributary and tributaries. The terms tributary and tributaries each mean a water

that contributes flow, either directly or through another water (including an impoundment identified in paragraph (1)(iv) of this section), to a water identified in paragraphs (1)(i) through (iii) of this section that is characterized by the presence of the physical indicators of a bed and banks and an o rdinary high water mark. These physical indicators demonstrate there is volume, frequency, and duration of flow sufficient to create a bed and banks and an ordinary high water mark, and thus to qualify as a tributary. A tributary can be a natural, man

- al tered, or man

-51

made water and includes waters such as rivers, streams, canals, and ditches not excluded under paragraph (2) of this section. A water that otherwise qualifies as a tributary under this definition does not lose its status as a tributary if, f or any length, there are one or more constructed breaks (such as bridges, culverts, pipes, or dams), or one or more natural breaks (such as wetlands along the run of a stream, debris piles, boulder fields, or a stream that flows underground) so long

as a b ed and banks and an ordinary high water mark can be identified upstream
of the break. A water that otherwise qualifies as a tributary under this definition

does not lose its status as a tributary if it contributes flow through a water of the

United States that does not meet the definition of tributary or through a non

jurisdictional water to a water identified in paragraphs (1)(i1) through (iii) of this

section. (iv) Wetlands. The term wetlands means those areas that are inundated or saturated by surface o r groundwater at a frequency and duration sufficient to support, and

that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and simi lar areas. (v) Significant nexus . The term significant nexus means that a water, including wetlands, either alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of a water identified in paragraphs (1)(i) through (iii) of thi s section. The term “in the region” means the watershed that drains to the nearest water identified in paragraphs (1)(i) through (iii) of this section. For an effect to be significant, it must be more than speculative or insubstantial. Waters are simila rly situated when they function alike and are sufficiently close to function together in affecting downstream waters. For purposes of determining whether or not a water has a significant nexus, the water’s effect on downstream (1)(i) through (iii) waters shall be assessed by evaluating the aquatic functions identified in paragraphs (A) through (I) of this paragraph. A water has a significant nexus when any single function or combination of functions performed by the water, alone or together with similarly situated waters in the region, contributes significantly to the chemical, physical, or biological integrity of the nearest water identified in paragraphs (1)(i) through (iii)

of this section. Functions relevant to the significant nexus evaluation are the following: (A) sediment trapping, (B) nutrient recycling, (C) pollutant trapping, transforma tion, filtering, and transport, (D) retention a nd attenuation of flood waters, (E) runoff storage, (F) contribution of flow, (G) export of organic matter, (H) expo rt of food resources, and (I) provision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting, breeding, spawning, or use as a nursery area) for species located in a water identified in paragraphs (a)( 1) through (3) of this section.52

( vi) O rdinary high water mark. The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the ch aracter of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas. ( vii) High tide line. The term high tide line means the line of intersection o f the land with the water's surface at the maximum height reached by a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that

occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or

other intense st orm.53

PART 302

— DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION 20. The authority citation for part 302 continues to read as follows: Authority: The Clean Water Act, 33 U.S.C. 1251 et.seq. 21. Section 302.3 is amended by revising the definition of “navigable waters” to read as

follows:

§ 302.3 Definitions. Navigable waters as defined by 40 CFR 110.1, means the waters of the United States, including the territorial seas. (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et. seq. and its implement ing regulations, subject to the exclusions in paragraph (2) of this section, the term ‘‘waters of the United States’’ means: (i) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, inc luding all waters which are subject to the ebb and flow of the tide; (ii) All interstate waters, including interstate wetlands; (iii) The territorial seas; (iv) All impoundments of waters otherwise identified as waters of the United

States under this secti on; (v) All tributaries, as defined in paragraph (3)(iii) of this section, of waters identified in paragraphs (1)(i) through (iii) of this section; (vi) All waters adjacent to a water identified in paragraphs (1)(i) through (v) of this section, including w etlands, ponds, lakes, oxbows, im poundments, and similar waters; (vii) All waters in paragraphs (A) through (E) of this paragraph where they are determined, on a case

- specific basis, to have a significant nexus to a water identified in paragraphs (1)(i) th rough (iii) of this section. The waters identified in each of paragraphs (A) through (E) of this paragraph are similarly situated and shall be combined, for purposes of a significant nexus analysis, in the watershed that drains to the nearest water identi fied in paragraphs (1)(i) through (iii) of this section. Waters identified in this paragraph shall not be combined with waters identified in paragraph (1)(vi) of this section when performing a significant nexus analysis. If waters identified in this paragr aph are also an adjacent water under paragraph (1)(vi), they are an adjacent water and no case

- specific significant nexus analysis is required. (A) Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper Midwest. (B) C arolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, depressional wetlands that occur along the Atlantic coastal plain. (C) Pocosins. Pocosins are evergreen shrub and tree dominated wetlands found predominantly along the Central Atlantic coastal plain. (D) Western vernal pools. Western vernal pools are seasonal wetlan ds located in parts of California and associated with topographic54 depression, soils with poor drainage, mild, wet winters and hot, dry

summers. (E) Texas coastal prairie wetlands. Texas coastal prairie wetlands are

freshwater wetlands that occur as a mosa ic of depressions, ridges, intermound flats, and mima mound wetlands located along the Texas

Gulf Coast. (viii ) All waters located within the 100

- year floodplain of a water identified in (1)(i) through (iii) of this section and all waters located within 4, 000 feet of the high tide line or ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this section where they are determined on a

case

- specific basis to have a significant nexus to a water identified in paragraphs (1)(i) thro ugh (iii) of this section. For waters determined to have a significant nexus, the entire water is a water of the United States if a portion is located within the 100

- year floodplain of a water identified in (1)(i)

t hrough (iii) of this section or within 4 ,000 feet of the high tide line or ordinary high water mark. Waters identified in this paragraph shall not be combined with waters identified in paragraph (1)(vi) of this section when performin g a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they are an adjacent water and no case

- specific signific ant nexus analysis is required.

(2) The following are not “waters of the United States” even where they otherwise

meet the terms of paragraphs (1)(iv) through (viii) of this section. (i ) Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act. (ii) Prior converted cropland. Notwithstanding the determination of an area’s

sta tus as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA. (iii ) The following ditches: (A) Ditches with ephemeral flow that are not a r elocated tributary or excavated in a tributary. (B) Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands. (C) Ditches that do not flow, either directly or through another water, into

a water identif ied in paragraphs (1)(i) through (iii) of this section. (iv ) The following features: (A) Artificially irrigated areas that would revert to dry land should application of water to that area cease; (B) Artificial, constructed lakes and ponds created in dry l and such as farm and stock watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log cleaning ponds, or cooling ponds; (C) Artificial reflecting pools or swimming pools created in dry land; (D) Small ornamental waters created in dry land;55 (E) Water

- filled depressions created in dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water; (F) Erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non

- wetland swales, and lawfully constructed grassed waterways; and (G) Puddles. (v) Groundwater, including groundwater drained throug h subsurface drainage
systems. (vi) Stormwater control fe atures constructed to convey, treat, or store stormwater that are created in dry land. (vii) Wastewater recycling structures constructed in dry land; detention and retention basins built for wastewater recycling; groundwater recharge basins; percolation po nds built for wastewater recycling; and water distributary structures built for wastewater recycling.

(3) Definitions

— In this section, the following definitions apply: (i) Adjacent. The term adjacent means bordering, contiguous, or neighboring

a water id entified in paragraphs (1)(i) through (v) of this section, including waters separated by constructed dikes or barriers, natural river berms,

beach dunes, and the like. For purposes of adjacency, an open water such as a pond or lake includes any wetlands w ithin or abutting its ordinary high water mark. Adjacency is not limited to waters located laterally to a water identified in paragraphs (1)(i) through (v) of this section. Adjacent waters also include all waters that connect segments of a water identifi ed in paragraphs (1)(i) through (v) or are located at the head of a water identified in paragraphs (1)(i) through (v) of this section and are bordering, contiguous, or neighboring such water. Waters being used for established normal farming, ranching, and silviculture activities (33 USC § 1344(f)) are not adjacent. (ii) Neighboring. The term neighboring means: (A) All waters located within 100 feet of the ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this section. The entire water is neighboring if a portion is located within 100 feet of the ordinary high water mark; (B) All waters located within the 100

- year floodplain of a water identified in paragraphs (1)(i) through (v) of this section and not more than 1,500 feet from the ordinary high water mark of such water. The entire water is neighboring if a portion is located within 1,500 feet of the ordinary high water mark and within the 100

- year floodplain; (C) All waters located within 1,500 feet of the high tide line o f a water identified in paragraphs (1)(i) or (1)(iii) of this section, and all waters within 1,500 feet of the ordinary high water mark of the Great Lakes. The entire water is neighboring if a portion is located within 1,500 feet of the high tide line or w ithin 1,500 feet of the ordinary high water

mark of the Great Lakes.56 (iii) Tributary and tributaries. The terms tributary and tributaries each mean a water that contributes flow, either directly or through another water (including an impoundment identified in paragraph (1)(iv) of this section), to

a water identified in paragraphs (1)(i) through (iii) of this section that is characterized by the presence of the physical indicators of a bed and

banks and an ordinary high water mark. These physical indicators demonstrate there is volume, frequency, and duration of flow sufficient to create a bed and banks and an ordinary high water mark, and thus to qualify as a tributary. A tributary can be a natural, man

- altered, or man

made water and includes wat ers such as rivers, streams, canals, and ditches not excluded under paragraph (2) of this section. A water that otherwise qualifies as a tributary under this definition does not lose its

status as a tributary if, for any length, there are one or more cons tructed breaks (such as bridges, culverts, pipes, or dams), or one or more natural breaks (such as wetlands along the run of a stream, debris piles, boulder fields, or a stream that flows underground) so long as a bed and banks and an ordinary high water m ark can be identified upstream of the break. A

water that otherwise qualifies as a tributary under this definition does not

lose its status as a tributary if it contributes flow through a water of the

United States that does not meet the definition of tri butary or through a

non

- jurisdictional water to a water identified in paragraphs (1)(i1) through (iii) of this section. (iv) Wetlands. The term wetlands means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient

to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.

Wetlands generally include swamps, marshes, bogs, and similar areas. (v) Significant nexus

. The term significant nexus means that a water, including wetlands, either alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of a water identified in paragraph s (1)(i) through (iii) of this section. The term “in the region” means the watershed that drains to the nearest water identified in paragraphs (1)(i) through (iii) of this section. For an effect to be significant, it must be more than speculative or insub stantial. Waters are similarly situated when they function alike and are sufficiently close to function together in affecting downstream waters. For purposes of determining whether or not a water has a significant nexus, the water’s effect on downstream ( 1)(i) through (iii) waters shall be assessed by evaluating the aquatic functions identified in paragraphs (A) through (I) of this paragraph. A water has a significant nexus when any single function or combination of functions performed by the water, alone or together with similarly situated waters in the region, contributes significantly to the chemical, physical, or biological integrity of the nearest water identified in paragraphs (1)(i) through (iii) of this section. Functions relevant to the significa nt nexu s evaluation are the following: (A) sediment trapping,57 (B) nutrient recycling, (C) pollutant trapping, transforma tion, filtering, and transport, (D) retention a nd attenuation of flood waters, (E) runoff storage, (F) contribution of flow, (G) export of organic matter, (H) export of food resources, and (I) provision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting, breeding, spawning, or use as a nursery area) for species located in a water identified in paragraphs (a )( 1) through (3)

of this section. (vi) O rdinary high water mark. The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas. ( vii) High tide line. The term high tide line means the line of intersection of the land with the water's surface at the maximum height reached by a rising

tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less con tinuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring hi gh tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those acco mpanying

a hurricane or other intense storm.58

Part 401

— GENERAL PROVISIONS 22. The authority citation for part 401 continues to read as follows: Authority: The Clean Water Act, 33 U.S.C. 1251 et.seq. 23. Section 401.11 is amended by revising the definitio n of “navigable waters” to read

as follows:

§ 401.11 General definitions. (l) The term navigable waters as defined by 40 CFR 110.1, means the waters of the United States, including the territorial seas. (1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et. seq. and its implementing regulations, subject to the exclusions in paragraph (2) of this section, the term ‘‘waters of the United States’’ means: (i) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (ii) All interstate waters, including interstate wetlands; (iii) The territorial seas; (iv) All impoundments of waters otherwise identified as waters of the United States under this section; (v) All tributaries, as defined in paragraph (3)(iii) of this section, of waters identified in paragraphs (1)(i) through (iii) of this section; (vi) All waters adjacent to a water identified in paragraphs (1)(i) through (v) of this section, including wetlands, ponds, lakes, oxbows, im poundments, and similar waters; (vii) All waters in paragraphs (A) through (E) of this paragraph where they are determined, on a case

- specific ba sis, to have a significant nexus to a water identified in paragraphs (1)(i) through (iii) of this section. The waters identified in each of paragraphs (A) through (E) of this paragraph are similarly situated and shall be combined, for purposes of a sig nif icant nexus analysis, in the watershed that drains to the nearest water identified in paragraphs (1)(i) through (iii) of thi s section. Waters identified in this paragraph shall not be combined with waters identified in paragraph (1)(vi)

of this section wh en performin g a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they are an adjacent water and no case

- specific significant nexus analysis is required. (A) Prairie potholes. Prairie p otholes are a complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper Midwest. (B) C arolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, depressional wetlands that occur along the Atlantic coastal plain. (C) Pocosins. Pocosins are evergreen shrub and tree dominated wetlands found predominantly along the Central Atlantic coastal plain.59 (D) Western vernal pools. Western vernal pools are seasonal wetlands

located in parts of California and associated with topographic depression, soils with poor drainage, mild, wet winters and hot, dry

summers. (E) Texas coastal prairie wetlands. Texas coastal prairie wetlands are freshwater wetlands that occur as a mosaic of depr essions, ridges, intermound flats, and mima mound wetlands located along the Texas

Gulf Coast. (viii) All waters located within the 100

- year floodplain of a water identified in (1)(i) through (iii) of this section and all waters located within 4,000 feet o f the high tide line or ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this section where they are determined on

a case

- specific basis to have a significant nexus to a water identified in paragraphs (1)(i) through (iii) of this section. For waters determined to have a significant nexus, the entire water is a water of the United States if a portion is located within the 100

- year floodplain of a water identified in (1)(i) t hrough (iii) of this section or within 4,000 feet of the high tide line or ordinary high water mark. Waters identified in this paragraph shall not be combined with waters identified in paragraph (1)(vi) of this section when performin g a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they are an adjacent water and no case

- specific significant nexus anal ysis is required.

(2) The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (1)( iv) through (viii) of this section. (i) Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act. (ii) Prior converted cropland. Notwithstanding the determination of an area’s status as prior co nverted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA. (iii) The following ditches: (A) Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary. (B) Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands. (C) Ditches that do not flow, either directly or through another water, into

a water identified in pa ragraphs (1)(i) through (iii) of this section. (iv) The following features: (A) Artificially irrigated areas that would revert to dry land should application of water to that area cease; (B) Artificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log cleaning ponds, or cooling ponds; (C) Artificial reflecting pools or swimming pools created in dry land; (D) Small ornamental waters created in dry la nd;60 (E) Water

- filled depressions created in dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water; (F) Erosional features, including gullies, rills, and other ephemeral

fea tures that do not meet the definition of tributary, non

- wetland swales, and lawfully constructed grassed waterways; and (G) Puddles. (v) Groundwater, including groundwater drained through subsurface drainage
systems. (vi) Stormwater control features cons tructed to convey, treat, or store stormwater that are created in dry land. (vii) Wastewater recycling structures constructed in dry land; detention and retention basins built for wastewater recycling; groundwater recharge basins; percolation ponds built f or wastewater recycling; and water distributary structures built for wastewater recycling.

(3) Definitions

— In this section, the following definitions apply: (i) Adjacent. The term adjacent means bordering, contiguous, or neighboring

a water identified in paragraphs (1)(i) through (v) of this section, including waters separated by constructed dikes or barriers, natural river berms,

beach dunes, and the like. For purposes of adjacency, an open water such as a pond or lake includes any wetlands within or abu tting its ordinary high water mark. Adjacency is not limited to waters located laterally to a water identified in paragraphs (1)(i) through (v) of this section. Adjacent waters also include all waters that connect segments of a water identified in

paragr aphs (1)(i) through (v) or are located at the head of a water identified in paragraphs (1)(i) through (v) of this section and are bordering, contiguous, or neighboring such water. Waters being used for established normal farming, ranching, and silvicultur e activities (33 USC § 1344(f)) are not adjacent. (ii) Neighboring. The term neighboring means: (A) All waters located within 100 feet of the ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this section. The

entire wate r is neighboring if a portion is located within 100 feet of the ordinary high water mark; (B) All waters located within the 100

- year floodplain of a water identified in paragraphs (1)(i) through (v) of this section and not more than 1,500 feet from the ordinary high water mark of such water. The entire water is neighboring if a portion is loca ted within 1,500 feet of the ordinary high water mark and within the 100

- year floodplain; (C) All waters located within 1,500 feet of the high tide line of a water identified in paragraphs (1)(i) or (1)(iii) of this section, and all waters within 1,500 fee t of the ordinary high water mark of the Great Lakes. The entire water is neighboring if a portion is located within 1,500 feet of the high tide line or within 1,500 feet of the ordinary high water
mark of the Great Lakes.61 (iii) Tributary and tributaries. The terms tributary and tributaries each mean a water that contributes flow, either directly or through another water (including an impoundment identified in paragraph (1)(iv) of this section), to

a water identified in paragraphs (1)(i) through (iii) of t his section that is characterized by the presence of the physical indicators of a bed and

banks and an ordinary high water mark. These physical indicators demonstrate there is volume, frequency, and duration of flow sufficient to create a bed and banks and an ordinary high water mark, and thus to qualify as a tributary. A tributary can be a natural, man

- a ltered, or man

made water and includes waters such as rivers, streams, canals, and ditches not excluded under paragraph (2) of this section. A water that otherwise qualifies as a tributary under this definition does not lose its

status as a tributary if, for any length, there are one or more constructed breaks (such as bridges, culverts, pipes, or dams), or one or more natural breaks (such as wetlands along the run of a stream, debris piles, boulder fields, or a stream that flows underground) so long as a bed and banks and an ordinary high water mark can be identified upstream of the break. A

water that otherwise qualifies as a tributary under this definition does not

lose its status as a tributary if it contributes flow through a water of the

United State s that does not meet the definition of tributary or through a

non

- jurisdictional water to a water identified in paragraphs (1)(i1) through (iii) of this section. (iv) Wetlands. The term wetlands means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient

to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.

Wetlands generally include swamps, marshes, bogs, and similar areas. (v) Significant nexus

. The term significant nexus means that a water, including wetlands, either alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integri ty of a water identified in paragraphs (1)(i) through (iii) of this section. The term “in the region” means the watershed that drains to the nearest water identified in paragraphs (1)(i) through (iii) of this section. For an effect to be significant, it m ust be more than speculative or insubstantial. Waters are similarly situated when they function alike and are sufficiently close to function together in affecting downstream waters. For purposes of determining whether or not a water has a significant nexu s, the water’s effect on downstream (1)(i) through (iii) waters shall be assessed by evaluating the aquatic functions identified in paragraphs (A) through (I) of this paragraph. A water has a significant nexus when any single function

or combination of fu nctions performed by the water, alone or together with similarly situated waters in the region, contributes significantly to the chemical, physical, or biological integrity of the nearest water identified in paragraphs (1)(i) through (iii) of this section. Functions relevant to the significant nexu s evaluation are the following: (A) sediment trapping,62 (B) nutrient recycling, (C) pollutant trapping, transformation, filtering, and transport, (D) retention a nd attenuation of flood waters, (E) runoff storage, (F) contribution of flow, (G) export of organic matter, (H) export of food resources, and (I) provision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting, breeding, spawning, or use as a nursery area) for species located in a wat er identified in paragraphs (a)( 1) through (3)

of this section. (vi) O rdinary high water mark. The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clea r, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas. ( vii) High t

ide line. The term high tide line means the line of intersection of the land with the water's surface at the maximum height reached by a rising

tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shor e objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. T he line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by st rong winds such as those accompanying a hurricane

or other intense storm.