Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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Clean Water Rule Comment Compendium

Topic 11: Costs/Benefits (Volume 2)

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

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

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

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

issues raised in the public comments.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rule rulemaking record.

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

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

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

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

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

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

comments that were submitted on the proposed rule.

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

the technical comments about Cost and Benefits submitted by commenters. Comments have 

been copied into this document “as is” with no editing or summarizing. Footnotes in regular font 

are taken directly from the comments.

Note: While the contractor established a placeholder in this document for the “Agency 

Response,” the rule is promulgated by the Environmental Protection Agency and the Department 

of the Army and the responses are those of the agencies.
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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TOPIC 11. COSTS/BENEFITS (VOLUME 2)..................................................................................... 9

11.2. SCOPE OF CHANGE OF JURISDICTION ................................................................................. 9

AGENCY SUMMARY RESPONSE...................................................................................... 9

SPECIFIC COMMENTS ................................................................................................... 12

Small Business Administration Office of Advocacy (Doc. #7958)...................... 13

Committee on Space, Science and Technology (Doc. #16386)............................ 13

Texas Comptroller of Public Accounts (Doc. #10952) ........................................ 13

Wyoming Association of Conservation Districts (Doc. #14068) ......................... 17

State of Wyoming (Doc. #14584)......................................................................... 17

Maine Department of Environmental Protection (Doc. #14624).......................... 17

State of Oklahoma (Doc. #14625) ........................................................................ 18

Arizona Department of Environmental Quality (Doc. #15096) ........................... 19

Office of the Governor, State of Utah (Doc. #16534) .......................................... 20

State of Oklahoma, et al. (Doc. #16560) .............................................................. 22

Coastal Restoration and Protection Authority Board of Louisiana (Doc. #17043)

............................................................................................................................... 23

Texas Department of Agriculture (Doc. #18854)................................................. 25

Iowa League of Cities (Doc. #18823)................................................................... 26

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

Sweetwater County Board of County Commissioners, Sweetwater County, 

Wyoming (Doc. #6863) ........................................................................................ 27

Butler County Pennsylvania (Doc. #6918.1)........................................................ 27

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

(Doc. #6936) ......................................................................................................... 28

City of San Diego, Transportation & Storm Water Department (Doc. #7950.2). 29

Moffat County Board of Commissioners, Moffat County, Colorado (Doc. #7987)

............................................................................................................................... 29

Board of Douglas County Commissioners, Castle Rock, Colorado (Doc. #8145)29

Beaver County Commission (Doc. #9667)........................................................... 33

Pasco County, Florida (Doc. #9697)..................................................................... 33

Pike Peak Area Council of Governments (Doc. #9732)....................................... 34

Urban Drainage and Flood Control District (Doc. #12263) ................................. 34

Owyhee County Board of Commissioners (Doc. #12725.1)................................ 35

Palo Alto County Board of Supervisors (Doc. #14095) ....................................... 35

Maricopa County Board of Supervisors (Doc. #14132.1).................................... 35

Florida League of Cities, Inc. (Doc. #14466)....................................................... 36

Big Horn County, State of Wyoming (Doc. #14571)........................................... 37

Soil and Water Conservation District (Doc. #14943)........................................... 38

San Joaquin Tributaries Authority (Doc. #14992)................................................ 38

Harris County Flood Control District (Doc. #15049)........................................... 38

National Association of Counties (Doc. #15081)................................................. 39

Rio Grande Water Conservation District (Doc. #15124)...................................... 41

Sacramento County, California (Doc. #15518) .................................................... 41

Republican River Water Conservation District (Doc. #15621)............................ 42

Delaware County Department of Watershed Affairs (Doc. #16936) ................... 43
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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Department of Public Works, County of San Diego, California (Doc. #17920).. 43

Nevada County Board of Supervisors, State of California (Doc. #18894)........... 44

Mississippi Valley Flood Control Association (Doc. #19488)............................. 44

California Central Valley Flood Control Association (Doc. #19571) .................. 45

Butte County Administration, County of Butte, California (Doc. #19593).......... 46

National Association of Towns and Townships (Doc. #1864)............................. 47

North Houston Association, et al. (Doc. #8537)................................................... 48

California State Association of Counties (Doc. #9692)........................................ 48

Kentucky League of Cities (Doc. #15227) ........................................................... 49

The United States Conference of Mayors, et al. (Doc. #15784)........................... 50

Oklahoma Municipal League (Doc. #16526) ....................................................... 50

Michigan Association of Conservation Districts (Doc. #16583).......................... 50

Maine Municipal Association (Doc. #16630)....................................................... 51

Wyoming Association of Conservation Districts (Doc. #17348) ......................... 52

U.S. Chamber of Commerce (Doc. #14115)......................................................... 53

Georgia Chamber of Commerce (Doc. #14430)................................................... 54

Atlantic Legal Foundation (Doc. #15253)............................................................ 55

International Brotherhood of Boilermakers, et al. (Doc. #15373)........................ 59

National Association of Manufacturers (Doc. #15410)........................................ 63

Grand Junction Area Chamber of Commerce (Doc. #15425) .............................. 64

Missouri and Associated Rivers Coalition (Doc. #15519) ................................... 65

South Carolina Association of Counties (Doc. #15573)....................................... 65

Federal Water Quality Coalition (Doc. #15822)................................................... 66

Minnesota Chamber of Commerce (Doc. #16473)............................................... 68

Kentucky Association Manufacturers (Doc. #16525) .......................................... 68

Water Advocacy Coalition (Doc. #17921) ........................................................... 69

Water Advocacy Coalition (Doc. #17921.15) ...................................................... 71

Western States Land Commissioners Association (Doc. #19453) ....................... 80

Minnkota Power Cooperative, Inc. (Doc. #19607)............................................... 81

Houma-Terrebonne Chamber of Commerce (Doc. #19624)................................ 81

Southern Nevada Home Builders Association (Doc. #3251) ............................... 82

American Concrete Pressure Pipe Association et al. (Doc. #3306)...................... 82

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

#7938.1) ................................................................................................................ 83

Southern States Energy Board (Doc. #13011)...................................................... 83

National Ready Mix Concrete Association (Doc. #13956) .................................. 84

El Dorado Holdings, Inc. (Doc. #14285).............................................................. 86

Vulcan Materials Company (Doc. #14642).......................................................... 90

Home Builders Association of Mississippi (Doc. #19504) .................................. 90

National Association of Home Builders (Doc. #19540)....................................... 91

North Carolina Aggregates Association (Doc. #6938)......................................... 94

Kansas Independent Oil & Gas Association (Doc. #12249)................................. 94

National Stone, Sand and Gravel Association (Doc. #14412).............................. 96

Wyoming Mining Association (Doc. #14460)...................................................... 99

The Mosaic Company (Doc. #14640)................................................................... 99

Devon Energy Corporation (Doc. #14916)......................................................... 110
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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Alaska Miners Association (Doc. #15027.1)...................................................... 110

American Petroleum Institute (Doc. #15115)..................................................... 111

Permian Basin Petroleum Association (Doc. #15378) ....................................... 151

Texas Pipeline Association (Doc. #15404)......................................................... 152

Illinois Coal Association (Doc. #15517) ............................................................ 153

Pennsylvania Grade Crude Oil Coalition (Doc. #15773) ................................... 154

Dominion Resources Services, Inc. (Doc. #16338)............................................ 154

Vulcan Materials Company (Doc. #16566)........................................................ 155

Oregon Cattleman’s Association (Doc. #5273).................................................. 156

North Dakota Soybean Growers Association (Doc. #14121)............................. 156

Dairy Cares (Doc. #16471)................................................................................. 157

Ohio Farm Bureau Federation (Doc. #16609).................................................... 158

Iowa Soybean Association (Doc. #17175).......................................................... 158

J.R. Simplot Company (Doc. #15062)................................................................ 159

Colorado Agricultural Aviation Association (#15033)....................................... 166

Klamath Water Users Association (Doc. #15063).............................................. 166

Riverport Levee District (Doc. #15655)............................................................. 167

Ohio Farm Bureau Federation (Doc. #16609).................................................... 168

Earth City Levee District (Doc. #18910)............................................................ 169

Coon Run Levee and Drainage District (Doc. #8366)........................................ 170

Ingram Barge Company (Doc. #14796).............................................................. 170

Elmore County Highway Department, Wetumpka, Alabama (Doc. #14072) .... 171

SD1 (Doc. #15140)............................................................................................. 171

Arizona Public Service Company (Doc. #15162)............................................... 172

Department of Public Works, City of Harrisonville, Missouri (Doc. #4038.2).. 173

Utility Water Act Group (Doc. #15016)............................................................. 173

Association of Electronic Companies of Texas, Inc. (Doc. #16433).................. 175

Florida H2O Coalition (Doc. #19325)................................................................ 177

Exxon Mobil Corporation (Doc. #15044)........................................................... 178

ARIPPA (Doc. #16545)...................................................................................... 178

Northern California Water Association (Doc. #17444)...................................... 179

Pacific Legal Foundation (Doc. #14081)............................................................ 180

Environmental Council of the States (Doc. #15543).......................................... 180

Southeastern Legal Foundation (Doc. #16592) .................................................. 181

Coalition of Alabama Waterways (Doc. #15101)............................................... 182

Missouri and Associated Rivers Coalition (Doc. #15519) ................................. 183

Upper Mississippi, Illinois, & Missouri Rivers Association (Doc. #19563)...... 184

University of Florida (Doc. #16446) .................................................................. 185

Florida Stormwater Association, Inc. (Doc. #7965.1)........................................ 192

American Legislative Exchange Council (Doc. #19468) ................................... 201

United States Senate (Doc. #1377)..................................................................... 202

United States House of Representatives (Doc. #17464)..................................... 202

Congress of the Unites States (Doc. #1434)....................................................... 202

House of Representatives (Doc. #12751) ........................................................... 203

11.3. SECTION 404 .................................................................................................................... 204
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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AGENCY SUMMARY RESPONSE.................................................................................. 204

SPECIFIC COMMENTS ................................................................................................. 204

Southern Nevada Home Builders Association (Doc. #3251) ............................. 205

The Mosaic Company (Doc. #14640)................................................................ 205

Oregon Cattleman’s Association (Doc. #5273).................................................. 206

Pike and Scott County Farm Bureaus (Doc. #5519)........................................... 206

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

............................................................................................................................. 207

Monarch-Chesterfield Levee District, St. Louis, Missouri (Doc. #14904) ........ 207

11.3.1. Costs.......................................................................................................................... 208

AGENCY SUMMARY RESPONSE.................................................................................. 208

SPECIFIC COMMENTS ................................................................................................. 214

New Mexico Department of Agriculture (Doc. #13024).................................... 214

Wyoming Association of Conservation Districts (Doc. #14068) ....................... 214

State of Wyoming (Doc. #14584)....................................................................... 215

Tennessee Department of Environment and Conservation (Doc. #15135) ........ 215

Florida Department of Agriculture and Consumer Services (Doc. #10260) ...... 215

Mesa County Board of County Commissioners (Doc. #12713)......................... 216

Resource Development Council for Alaska, Inc. (Doc. #14649) ....................... 216

Golf Course Superintendent’s Association of America, et al. (Doc. #14902).... 217

Coalition of Local Governments (Doc. #15516) ................................................ 218

Houma-Terrebonne Chamber of Commerce (Doc. #19624).............................. 218

Water Advocacy Coalition (Doc. #17921.15) .................................................... 219

El Dorado Holdings, Inc. (Doc. #14285)............................................................ 223

Associated General Contractors of America (Doc. #14602) .............................. 223

Lehigh Hanson, Inc. (Doc. #15781).................................................................... 224

National Association of Home Builders (Doc. #19540)..................................... 226

National Stone, Sand and Gravel Association (Doc. #14412)............................ 227

The Mosaic Company (Doc. #14640)................................................................. 227

Continental Resources, Inc. (Doc. #14655)........................................................ 232

American Petroleum Institute (Doc. #15115)..................................................... 232

Countrymark Cooperative Holding Corporation, LLC,Countrymark Refining and 

Logistics, LLC (Doc. #16656)............................................................................ 233

Pennsylvania Grade Crude Oil Coalition (Doc. #15773) ................................... 234

Dominion Resources Services, Inc. (Doc. #16338)............................................ 234

American Petroleum Institute (Doc. #15115)..................................................... 234

Coastal Louisiana Levee Consortium (Doc. #19324)......................................... 250

The Mosaic Company (Doc. #14640)................................................................ 251

Iowa Farm Bureau Federation and American Farm Bureau Federation (Doc. 

#7633) ................................................................................................................. 255

North Dakota Soybean Growers Association (Doc. #14121)............................. 255

Florida Crystals Corporation (Doc. #16652) ...................................................... 256

Department of Public Works, City of Northglenn, Colorado (Doc. #14990)..... 257

Orange County Public Works, Orange County, California (Doc. #14994)........ 257

Mohave Electric Cooperative, Inc. (Doc. #10953)............................................. 258
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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Arizona’s Generation and Transmission Cooperative (Doc. #14901)................ 258

Salt River Project Agricultural and Power District and the Salt River Valley 

Water Users Association (Doc. #14928) ............................................................ 258

Utility Water Act Group (Doc. #15016)............................................................. 259

American Wind Energy Association (Doc. #15208).......................................... 259

Tri-State Generation and Transmission Association, Inc. (Doc. #16392).......... 260

Greater Lafourche Port Commission (Doc. #8411)............................................ 261

Iowa Waters Advocacy Coalition (Doc. #14120)............................................... 262

11.3.2. Benefits...................................................................................................................... 262

AGENCY SUMMARY RESPONSE.................................................................................. 262

SPECIFIC COMMENTS ................................................................................................. 264

Water Advocacy Coalition (Doc. #17921.15) .................................................... 264

The Mosaic Company (Doc. #14640)................................................................. 266

American Petroleum Institute (Doc. #15115)..................................................... 271

Western Landowners Alliance (Doc. #16553).................................................... 279

11.4. OTHER CWA PROGRAMS................................................................................................ 279

AGENCY SUMMARY RESPONSE.................................................................................. 279

SPECIFIC COMMENTS ................................................................................................. 281

Tennessee Valley Association (Doc. #17470).................................................... 281

The United States Conference of Mayors, et al. (Doc. #15784)......................... 282

Greater Houston Partnership (Doc. #14726) ...................................................... 282

Water Advocacy Coalition (Doc. #17921.15) .................................................... 283

Lydig Construction Inc. (Doc. #14147).............................................................. 285

Halliburton Energy Services, Inc. (Doc. #15509)............................................... 286

Illinois Coal Association (Doc. #15517) ............................................................ 286

Family Farm Alliance (Doc. #1431)................................................................... 286

Mohave Electric Cooperative, Inc. (Doc. #10953)............................................. 287

11.4.1. 303 and 305............................................................................................................... 287

AGENCY SUMMARY RESPONSE.................................................................................. 287

SPECIFIC COMMENTS ................................................................................................. 287

Wyoming Association of Conservation Districts (Doc. #14068) ....................... 287

11.4.1.1 Costs .............................................................................................................. 288

AGENCY SUMMARY RESPONSE.................................................................................. 288

SPECIFIC COMMENTS ................................................................................................. 288

Arizona Department of Environmental Quality, et al. (Doc. #15096)................ 288

Tennessee Department of Environment and Conservation (Doc. #15135) ........ 290

Water Advocacy Coalition (Doc. #17921.15) .................................................... 291

Nevada Mining Association (Doc. #14930) ....................................................... 292

Independent Petroleum Association of America (Doc. #18864)........................ 292

County Engineers Association of Ohio (Doc. #1997) ........................................ 293

Arizona Public Service Company (Doc. #15162)............................................... 294

Utility Water Act Group (Doc. #15016)............................................................. 296

11.4.1.2 Benefits.......................................................................................................... 297
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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11.4.2. 311 Program............................................................................................................. 297

AGENCY SUMMARY RESPONSE.................................................................................. 297

SPECIFIC COMMENTS ................................................................................................. 297

Pennsylvania Grade Crude Oil Coalition (Doc. #15773) ................................... 297

Independent Petroleum Association of America (Doc. #18864)........................ 298

Kansas Independent Oil & Gas Association (Doc. #12249)............................... 298

11.4.2.1 Costs .............................................................................................................. 299

AGENCY SUMMARY RESPONSE.................................................................................. 299

SPECIFIC COMMENTS ................................................................................................. 299

Water Advocacy Coalition (Doc. #17921.15) .................................................... 300

American Petroleum Institute (Doc. #15115)..................................................... 300

11.4.2.2 Benefits.......................................................................................................... 302

AGENCY SUMMARY RESPONSE.................................................................................. 302

SPECIFIC COMMENTS ................................................................................................. 302

American Petroleum Institute (Doc. #15115)..................................................... 302

The Mosaic Company (Doc. #14640)................................................................ 303

11.4.3. 401 Program............................................................................................................. 304

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

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

Tennessee Valley Association (Doc. #17470).................................................... 305

State of Iowa (Doc. #8377)................................................................................. 308

Florida Department of Agriculture and Consumer Services (Doc. #10260) ...... 308

11.4.3.1 Costs .............................................................................................................. 309

AGENCY SUMMARY RESPONSE.................................................................................. 309

SPECIFIC COMMENTS ................................................................................................. 309

Water Advocacy Coalition (Doc. #17921.15) .................................................... 309

American Petroleum Institute (Doc. #15115)..................................................... 310

The Clean Energy Group Waters Initiative (Doc. #14616)................................ 310

11.4.3.2 Benefits.......................................................................................................... 311

11.4.4. 402 Program............................................................................................................. 311

AGENCY SUMMARY RESPONSE.................................................................................. 311

SPECIFIC COMMENTS ................................................................................................. 311

Arizona Department of Environmental Quality, et al. (Doc. #15096)................ 311

Colorado Clean Water Coalition (Doc. #1231) .................................................. 312

Butler County Pennsylvania (Doc. #6918.1)...................................................... 312

Mesa County Board of County Commissioners (Doc. #12713)......................... 313

Board of Douglas County Commissioners, Castle Rock, Colorado (Doc. #8145)

............................................................................................................................. 313

Georgia Municipal Association (Doc. #14527).................................................. 314

Colorado Clean Water Coalition (Doc. #3533) .................................................. 315

American Society of Civil Engineers (Doc. #19572)......................................... 316

North Carolina Aggregates Association (Doc. #6989)....................................... 316
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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The Mosaic Company (Doc. #14640)................................................................ 316

Golf Course Superintendent’s Association of America, et al. (Doc. #14902).... 319

11.4.4.1 Costs .............................................................................................................. 320

AGENCY SUMMARY RESPONSE.................................................................................. 320

SPECIFIC COMMENTS ................................................................................................. 320

St. Johns County Board of County Commissioners (Doc. #5598) ..................... 320

Natural Resources (Doc. #14426.1).................................................................... 320

Florida Stormwater Association (Doc. #14613)................................................. 324

City of Golden Public Works (Doc. #14617) ..................................................... 324

Water Advocacy Coalition (Doc. #17921.15) .................................................... 324

Texas Mining and Reclamation Association (Doc. #10750).............................. 326

American Petroleum Institute (Doc. #15115)..................................................... 326

City of Goose Creek, South Carolina (Doc. #18827)......................................... 327

11.4.4.2 Benefits.......................................................................................................... 327

11.4.5. Other......................................................................................................................... 327

11.5. SUPPLEMENTAL COMMENTS ON COSTS AND BENEFITS ................................................. 327

SPECIFIC COMMENTS ................................................................................................. 327

W. V. Giniecki (Doc. #4262)............................................................................. 328

Council of the Borough of Ferndale, Cambria County (Doc. #4825) ............... 328

Nevada County Resource Conservation District (Doc. #4830)......................... 328

Bonner County Board of Commissioners (Doc. #4879.1)................................. 329

Kansas Senate Committee on Natural Resources (Doc. #4904)........................ 330

Congress of the United States (Doc. #4983)...................................................... 330

L. Banks (Doc. #5554.1).................................................................................... 330

L. Banks (Doc. #5554.2).................................................................................... 331

Iowa State University (Doc. #7975) .................................................................. 332

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

Illinois (Doc. #7984)........................................................................................... 333

Home Builders Association of Michigan (Doc. #7994) .................................... 333

Eddy County Board of Commissioners (Doc. #9693)....................................... 335

United States Senate (Doc. #10625).................................................................. 336

Anonymous (Doc. #11304)................................................................................ 336

Anonymous (Doc. #11481)................................................................................ 336

Board of County Commissioners, El Paso County, Colorado (Doc. #11487)... 337

Board of County Commissioners, County of El Paso, State of Colorado (Doc. 

#11587) ............................................................................................................... 337

Commissioner’s Court, Collin County, Texas (Doc. #11989)........................... 338

Office of the Board Attorney, Board of Supervisors Jackson County, Mississippi 

(Doc. #12262) ..................................................................................................... 338

Family Farm Alliance (Doc. #12983)................................................................ 340

Duncan Valley Electric Cooperative, Inc. (Doc. #13033)................................. 341

Sitka Economic Development Association (Doc. #13023) ............................... 343

Todd Wilkinson (Doc. #13443)......................................................................... 343

Legislative Council on River Governance (Doc. #14791)................................. 343
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Clean Water Action (Doc. #15015) ................................................................... 344

The Heritage Foundation (Doc. #15055)........................................................... 344

Destin Water Users, Inc. (Doc. #15357)............................................................. 345

Missouri and Associated Rivers Coalition (Doc. #15528) ................................. 345

Countrymark Cooperative Holding Corporation, LLC; Countrymark Refining and 

Logistics, LLC (Doc. #15656)............................................................................ 346

City of Jackson, Mississippi (Doc. #15766)...................................................... 347

Martin Marietta (Doc. #16356).......................................................................... 349

L. L. Hughes (Doc. #16687).............................................................................. 349

D. Gillham (Doc. #16906) ................................................................................. 350

Shasta County Farm Bureau (Doc. #16924)...................................................... 351

Colusa County Board of Supervisors (Doc. #17002) ........................................ 352

Cook County, Minnesota, Board of Commissioners (Doc. #17004)................. 352

Arizona Rock Products Association (Doc. #17055).......................................... 354

Walsh Centennial, LLC (Doc. #17056).............................................................. 355

Atlantic Legal Foundation (Doc. #17361)......................................................... 356

Vermilion Parish Police Jury (Doc. #17362)..................................................... 360

W. Stevens (Doc. #17663).................................................................................. 361

L. Schlothauer (Doc. #17946)............................................................................ 361

Anonymous (Doc. #18801)................................................................................ 362

Donald Shawcroft (Doc. #18569)...................................................................... 362

Independent Petroleum Association of America, et al (Doc. #18864) ............... 362

Anonymous (Doc. #18943)................................................................................ 363

Kevin and Nicole Keegan (Doc. #19128).......................................................... 363

United States Senate (Doc. #19309).................................................................. 364

Jil Tracy, State Representative 94th District (Doc. #19518) .............................. 364

M. Sedlock (Doc. #19524)................................................................................. 365

Spring City, Utah (Doc. #19662)....................................................................... 367

Alpine County Board of Supervisors, County of Alpine, California (Doc. 

#20492) ............................................................................................................... 367

Mayor and Hannibal City Council, City of Hannibal, Missouri (Doc. #20495) 367

Highlands Ranch Metropolitan District, Highlands Ranch, Colorado (Doc. 

#20499) ............................................................................................................... 368

Empire District Electric Company (Doc. #20501) ............................................ 369

Michigan House of Representatives (Doc. #20504).......................................... 369

REFERENCES/ATTACHMENTS .................................................................................................... 370

Topic 11. COSTS/BENEFITS (VOLUME 2)

11.2. SCOPE OF CHANGE OF JURISDICTION

Agency Summary Response
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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Some commenters expressed concerns regarding the analysis of jurisdictional determinations that 

serves as a proxy for a potential increase in permitting activity for the purposes of the economic 

analysis. In some cases these concerns are unwarranted, while in other cases EPA has attempted 

to address the concerns. An initial set of concerns relate to the Corps’ Operation and 

Maintenance Business Information Link, Regulatory Module (ORM2) database which was used 

in order to review a sample of negative jurisdictional determinations (JDs)1(i.e., determinations 

of no jurisdiction) completed by the Corps in fiscal years 2009 and 2010 in order to assess if the 

determination would change if the final rule had been in place. Contrary to submitted comments, 

ORM2 categories are fully inclusive of all types of waters whose jurisdiction may be affected by 

this rule. The Corps' ORM2 database includes a variety of waters that have been found to be 

jurisdictional and not jurisdictional including ditches. This analysis and the waters in ORM2 are 

described in Section 4: Estimated Changes in Positive Jurisdiction of the Economic Analysis of 

the Clean Water Rule. The Economic Analysis evaluated streams, wetlands, and “other waters”. 

The “other waters” category includes intrastate, non-navigable waters - lakes, ponds, streams, 

and ditches that lack a direct surface connection to other waterways. 

Commenters suggest that the universe of jurisdictional areas under the proposed rule is 

underrepresented because ORM2 only captures waters engaged in the permitting process. The 

agencies recognize this uncertainty, and conducted quantitative analysis based on conservative 

assumptions to address this issue. (The agencies also recognize that some landowners seeking 

determinations may not pursue permits.) To account for the fact that there may be “other waters” 

for which landowners are not engaging in the permit process as a result of a presumption of nonjurisdiction, the agencies doubled the number of “other waters” records in the ORM2 dataset to 

derive a “high-end” estimate of increases in positive jurisdictional determinations. This is a 

more conservative assumption than used in the proposal analysis, where the number of “other 

water” records was doubled only for the purposes of estimating the number of other waters 

becoming jurisdictional as non-adjacent other waters. Additionally, the agencies assume that 

100 percent of the waters in the stream and wetlands categories would be found jurisdictional. 

The agencies did not have data available to estimate the number of waters that were found 

jurisdictional under current practice but that would be found non-jurisdictional under the final 

rule. 

Commenters stated the agencies should rely on additional data sources apart from ORM2 to 

calculate the change in jurisdictional determinations. The agencies believe ORM2 to be the best 

nationally representative dataset available for the calculation of the percent change in 

jurisdictional determinations. The data have gone through an extensive quality assurance 

process in preparation for the final rule economic analysis.

 

1 A “positive jurisdictional determination” is a decision to assert CWA jurisdiction over a particular water. The 

alternative is a “negative jurisdictional determination” which is a decision not to assert CWA jurisdiction over a 

particular water. It is important to note that the purpose of the economic analysis is not to estimate the change in the 

numbers of waters subject to jurisdiction.
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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Commenters also state that the “water type null” is not accounted for in the calculations resulting 

in a 2.7% increase as estimated for the proposed rule. There is no reason to suggest that a blank 

entry for “aquatic resource type” would fall predominantly in any one or other category should it 

have been entered. The agencies deem assuming the same distribution is the most appropriate 

way to deal with blank entries.

Some commenters note that because certain states claim state jurisdiction over waters beyond 

what EPA and the Corps claim under current practice, an increase in jurisdiction under the 

proposed rule could lead to increased permit costs without the equivalent increase in benefits. 

Additionally, some commenters suggest that a way to correct the Economic Analysis for the rule 

is to calculate the incremental acreage for each state, rather than for the entire country, and 

subsequently adjust incremental benefits to account for protection already occurring under state 

law. The agencies based their projections on actual records of jurisdictional determinations. 

While it was not feasible to assemble a large enough sample of nation-wide jurisdictional 

determinations to project how many more positive jurisdictional determinations would be made 

in each state, the agencies did apply their projections of the increased fraction of jurisdictional 

determinations to levels of 404-regulated activity in each state, so those states experiencing more 

activity requiring 404 permits would be assigned higher costs. The agencies estimated 

mitigation and permit application costs. While some costs of project design modification 

incurred prior to permit application may not have been reflected, the agencies’ estimates of costs 

also have an upward bias, as not all parties requesting a jurisdictional determination will acquire 

a permit and realize mitigation costs. The agencies did not estimate costs to Section 404 

permittees of meeting other non-CWA requirements, but have no reason to suppose they would 

be significant. In any event, the Economic Analysis was developed for informational purposes 

and did not guide policy decisions.

Some commenters also expressed concern that preliminary jurisdictional determinations (PJDs) 

were not included as part of the analysis. In the PJD process an applicant presumes all wetlands 

or streams on-site are jurisdictional, in lieu of performing a complete jurisdictional analysis on 

the site. Because these waters are currently being assumed jurisdictional, they are not relevant to 

a calculation focused on estimating the potential increase in jurisdictional waters. Commenters 

noted that the PJD process is sometimes used to avoid the full approved jurisdictional 

determination (AJD) process and associated processing time and expense. However, in 

circumstances where there are waters on-site that are likely not jurisdictional under current 

practice, it can benefit applicants to undergo the full AJD process to avoid incurring permit 

requirements and associated costs on non-jurisdictional waters. Following this rule-making the 

PJD process will continue, and the explicit distance limits in under paragraphs (a)(6) and (a)(8)

of the rule may make PJDs for certain waters more appealing, saving permit applicants time and 

money.

Commenters suggest that using permit data from fiscal years 2009 and 2010 represents an 

economically depressed period, and will result in artificially low numbers of applications and 

affected acreage. The agencies used the most recent available information in ORM2 at the time 

of conducting the EA for the Proposed Rule. In response to these concerns, in the final rule 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

12

analysis, the agencies examined permit numbers from fiscal years 2009 to 2013 and 

independently selected the maximum number of general and individual permits issued each year. 

As a point of comparison, ORM2 fiscal years 2009 and 2010 records listed in the EA for the 

Proposed Rule totaled 141,965, while the equivalent figure for fiscal years 2013 and 2014, used 

for the Final Rule, totaled 160,087. The average project size per permit was also updated using 

data from fiscal year 2013. This data reflects a more recent year of permit activity and also has 

been informed by significant data-cleaning efforts by the Corps, and is believed to be an 

improvement on the information presented in the proposal. 

Similar to the concern above regarding the universe of jurisdictional waters being 

underrepresented, commenters suggest that the sensitivity analysis in the Proposed Rule’s EA 

doesn’t adequately address the potential influx of new applicants. In the EA for the Proposed 

Rule, the agencies doubled the number of waters not meeting the definition of adjacency. This 

assumption reflects the belief that waters found to be adjacent are located on the landscape such 

that their current jurisdictional status is likely to be ambiguous and so a landowner would have 

sought a jurisdictional determination prior to any water disturbance activity. In the EA for the 

Final Rule, the agencies have attempted to address the concern that landowners would not have 

sought a jurisdictional determination by doubling the number of all “other waters,” and not just 

the number of non-adjacent other waters. This assumption will provide a reasonable high-end 

estimate of the potential increase in jurisdictional determinations.

Commenters point out that the EA for the Proposed Rule uses the 2.7% estimate of increased 

permit applications as a starting point for economic analysis of non-404 sections of the Clean 

Water Act, and questions the validity of this approach. The Agencies do not have a database 

similar to ORM2 that would confidently show the change in impact, benefits, or costs to other 

Clean Water Act programs. In the absence of such information, it is reasonable to rely on the 

estimates of change negative jurisdictional determinations to positive determinations related to 

Section 404 activity. Construction-related stormwater discharges, CAFO discharges, and 

permits for the application of pesticides are more likely to occur in similar locations as CWA 

Section 404 dredge and fill discharge with respect to proximity to “isolated waters”, small 

streams, and their adjacent wetlands. Using the estimates of change in negative determinations 

to positive determinations related to 404 activity directly for changes to other programs serves to 

potentially overestimate costs. In an effort to accurately estimate the potential increase in 

permits and associated costs and benefits, when applying the estimated increase in jurisdictional 

waters as a proxy for an increase in Clean Water Act permits, the agencies examine each 

respective CWA program. In the case of evaluating Section 402 program effects, the agencies 

adjusted for either program growth or shrinkage since the original regulatory impact analysis was 

completed.

Commenters provided the agencies with numerous examples of site-specific situations and 

examples of particular waters that they believe should or should not be considered jurisdictional. 

See Summary and Individual Responses under Topic 14 for more information.

Specific Comments
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

13

Small Business Administration Office of Advocacy (Doc. #7958)

11.2.1 Second, the rule defines the scope of jurisdiction of the Clean Water Act without any 

discretion left to any entity or intermediary. The rule does not, for example, set a goal for 

which types or how many waters must be included in jurisdiction, leaving the Corps or 

states to determine the exact definition of waters of the United States in particular

instances. This rule establishes the definition and all small entities are bound by it. (p. 6)

Agency Response: See Summary Response to Topic 11.1 (RFA/SBREFA), as well 

as Topic 10 (Legal Analysis). The rule is narrower in jurisdiction than the existing 

rule.

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

11.2.2 (...) 29. Why did EPA only look at the cost of 404 permits when developing their 

economic impact numbers? Did EPA make the determination that there will be cost 

associated with the other permits such as 303, 311, 401 and 402? (p. 10)

Agency Response: See Summary Response to Topic 11.4 (Other CWA Programs). 

Though the Economic Analysis is for illustrative purposes only, the agencies do 

estimate potential costs to non-404 programs.

11.2.3 (...) 31. A recent study by conducted by Dr. David Sunding a Professor at DC Berkley 

and Principle at the Brattle Group found that the EPA used data on permitting costs that 

were almost 20 years old and not adjusted for inflation. Additionally, his analysis showed 

that EPA's cost estimates excludes costs of avoidance and delay. What is EPA doing to 

address the concerns with its economic analysis? (p. 11)

Agency Response: See Summary Response for Topic 11.3. The agencies did 

adjust costs for inflation.

11.2.4 32. The Agencies' economic analysis projects a 3 percent increase in regulatory 

jurisdiction based upon Section 404 permitting activities in 2009-2010.

a. What factors did EPA consider in selecting this window as the best 

representative sample?

b. What percentage of people do you estimate never apply for regulatory 

determinations and are therefore not part of the sample EPA relied on? (p. 11)

Agency Response: See Summary Response for this section (Topic 11.2). The 

agencies selected the 2009-2010 period because of best available data at the time. 

The agencies have adjusted their illustrative economic analysis to account for 

similar critiques by using data from 2013-2014.

Texas Comptroller of Public Accounts (Doc. #10952)

11.2.5 Faulty Economic Analysis
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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Finally, EPA’s economic analysis of the proposal does not provide an accurate or 

complete picture of the proposal’s true economic costs. According to the Review of 2014 

Economic Analysis of Proposed Revised Definition of Waters of the United State by Dr. 

David Sunding (Professor, Agricultural and Resource Economics, at the University of 

California, Berkeley) numerous deficiencies exist regarding the EPA’s economic analysis

of the proposed rule including those outlined below. Dr. Sunding’s instructive analysis, 

as summarized below, is consistent with my agency’s view and we agree with his 

approach and conclusions.

EPA Inaccurately Quantifies the Increase in Bodies of Water Subject to CWA 

Jurisdiction

To calculate the potential increase in CWA jurisdiction caused by the proposal, EPA used 

the U.S. Army Corps of Engineers' Operation and Maintenance Business Information 

Link - Regulatory Module (ORM2) database.2 However, according to Dr. Sunding, this 

database is not an appropriate tool to conduct this analysis for numerous reasons. 

Specifically, the use of ORM2 greatly weakens EPA's overall analysis, resulting in EPA 

sending misleading information to the public regarding this proposal.3 

Most problematic is the fact that EPA's analysis underrepresents the universe of 

jurisdictional areas and fails to consider the extent to which increased jurisdiction 

will impact activities other than discharge. The following outlines some of the problems 

with EPA's use of ORM2:

 ORM2 records do not correspond with the categories of jurisdictional waters in 

the proposal; and records are not included for preliminary jurisdictional 

determinations.

 Even though a PJD would force landowners to treat all waters and wetlands on 

their property as jurisdictional waters of the U.S., EPA does not account for this 

potentially large increase in cost and scope of jurisdiction.

 Even if a landowner applies for a jurisdictional determination ORM2 does not 

accurately capture all aquatic resources.

While EPA recognizes that costs would be associated with updating ORM2 to properly 

match the proposal, the Agencies did not include these costs in their analysis. Given the 

reasons above, Sunding states, "... EPA's use of the ORM2 data throughout its 

economic analysis to quantify the increase in jurisdiction is highly suspect and 

results in woefully inaccurate projections." (p. 4)

Agency Response: See Summary Response for this section (Topic 11.2). 

 

2 The Brattle Group, Review of2014 EPA’s Economic Analysis (Proposed Revised Definition of Waters of the 

United States by Dr. David Sunding, May 15,2014, p. 4

3

Sunding p. 4-5.
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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11.2.6 EPA's Estimated 2.7 Percent Increase in Jurisdictional Waters is Misleading

EPA's economic analysis projected the proposed definition of WOTUS would result in

2.7 percent more jurisdictional waters than under the current definition.4 However, the 

time period (FY 2009-2010) used to arrive at EPA's estimated 2.7 percent increase in the 

number of waters subject to CWA jurisdiction is not representative of the number of 

acres that could actually be affected in a "normal" year. This timeframe was marked with 

unusually low construction activity, which produced an artificially low number of 

applications and affected acreage. Broadly applying this 2.7 percent increase to the total 

number of permitted acres is incorrect as it does not account for fundamental differences 

that exist across state lines. (p. 5)

Agency Response: See Summary Response for this section (Topic 11.2). 

11.2.7 EPA Underestimates Incremental Costs Associated with the Proposal

EPA estimates the costs of the proposal for several CWA regulatory programs, 

emphasizing costs associated with Section 404 permitting. As 404 permits are issued for 

development near wetlands and small streams, the regulation of these waters under the 

CWA will increase costs for affected entities, including farmers, ranchers, developers, 

communities and local governments. As Dr. Sunding points out, the Agencies' analyses 

are flawed in several ways:

 First, the analysis did not examine all costs associated with 404 permitting. There 

are four types of costs associated with 404 permitting: permit application; 

compensatory mitigation; permitting time; and impact avoidance and 

minimization. However, EPA's analysis only considered two of these costs: 

permit application and compensatory mitigation.5

 Second, data used by EPA to calculate permitting costs are out-of-date and not 

adjusted for inflation.

 Third, the total costs associated with the type of permits issued does not 

accurately account for all of the different permit types. 

o For example, individual permits (IP) are issued for activities that are 

expected to significantly impact a nearby body of water, while general 

permits (GP) are issued for projects with minimal expected impacts. 

 

4 U.S Environmental Protection Agency, Economic Analysis of Proposed Revised Definition of Waters of the 

United States, March 2013; 

file:///G:/Shared/Water/CWA/WOTUS%definition%20proposal/EPA%20wus_proposed_rule_economic_analysis.p

df, p. 12.

5 U.S Environmental Protection Agency, Economic Analysis of Proposed Revised Definition of Waters of the 

United States, March 2013;, 

file:///G:/Shared/Water/CWA/WOTUS%definition%20proposal/EPA%20wus_proposed_rule_economic_analysis.p

df, p. 12.
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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EPA did not consider the potential restructuring that could occur 

wherein a project that was previously eligible for GP would be 

required to apply for an IP, which carries increased costs.6

 Finally, EPA applied its Section 404 acreage increase value (2.7 percent) to nonSection 404 regulatory programs. As previously stated, there are several questions 

regarding the methodology supporting the 2.7 percent incremental change. (p. 5)

Agency Response: See Summary Response for this section (Topic 11.2).

11.2.8 EPA’s Incremental Benefits are Inflated and Unsubstantiated

 EPA's estimates are based on outdated, unpublished studies that have not 

been peer reviewed, and its findings are based on synthesized information from 

ten studies that sought to estimate average willingness-to-pay for wetland 

mitigation. Nine of the ten studies were conducted more than ten years ago, with 

the oldest being completed thirty years ago. As Sunding concludes, "Those 

studies are largely irrelevant and do not provide accurate estimates of benefit."7

 The analysis assumes that benefits estimated for one geographic region at a

particular point in time can be readily applied to other regions and points in time. 

However, 'This oversimplification comes at the expense of accuracy.”8

 EPA did not take into account variations in economic trends, recreational patterns 

or stated preferences over time, which further skews the analysis and 

conclusions. (p. 6)

Agency Response: See Summary Response for Topic 11.3.2.

11.2.9 EPA’s Analysis is Misleading and Contains Several Calculation Errors

Based on Dr. Sunding's review, EPA's economic analysis does not accurately reflect the

potential impacts of the proposal as EPA's assumptions and calculations appear to be 

flawed and the analysis excludes certain costs and benefits. Thus, it is fair for the public 

to question EPA's conclusions (e.g., estimated benefits at $301M - 398M and costs of 

$134M - $231M). In his analysis, Dr. Sunding strongly recommends that EPA conduct a 

more thorough analysis to accurately calculate the true economic impacts of the proposal. 

(p. 6)

Agency Response: The agencies have made several changes to address concerns 

expressed by Dr. Sunding and others. See Summary Responses to this section, as 

well as responses to Topics 11.3.1 and 11.3.2, and 11.4.

 

6

Sunding p. 16

7

Sunding p. 27

8

Sunding p. 28
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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Wyoming Association of Conservation Districts (Doc. #14068)

11.2.10Cost analysis

The Association believes that the cost analysis9failed to take a hard look at the economic 

impact of the proposed rule on the regulated community as well as state and local 

governments. EPA on one hand argues that 60% of the nation’s waters are not clearly 

protected under today’s jurisdictional requirements. EPA suggests that this rule will 

provide protection, pro se, to all of these waters. Yet EPA claims an increase of 3% or an 

estimated 1,500 acres in jurisdiction after completing the analysis. So the Association 

assumes, the impact in increased jurisdictional waters would range between the 3% and 

60% of waters. Is it then assumed that of the 60% “not clearly protected waters” 57% will 

remain “not clearly protected”? (p. 6-7)

Agency Response: See Summary Response for this section (Topic 11.2). This rule

is narrower in scope than existing regulations and historical practice. An increase 

of approximately 3% represented the agencies’ estimate of increased positive 

jurisdictional determinations over recent practice.

State of Wyoming (Doc. #14584)

11.2.11The costs and benefits of the proposed rule are not properly addressed.

The Agencies state that the proposed rule "saves businesses time and money" and 

"provides more benefits to the public than it costs." These statements are grossly 

inaccurate. The Agencies note savings in Agency expenditures based on an assumption 

that there will be less field-based, case-specific determinations for jurisdictional 

authority. While the proposed rule may save some administrative cost if the Agencies 

assume certain jurisdiction over more waters, it creates an expectation for more services 

elsewhere. The Agencies have failed to incorporate the weight of additional 

responsibilities they assume in this proposal. (p. 6)

Agency Response: See Summary Response for this section (Topic 11.2). In 

addition, this rule is narrower in scope than existing regulations and historical 

practice, and therefore does not create an expectation for more services elsewhere.

Maine Department of Environmental Protection (Doc. #14624)

11.2.12The estimated 3% increase of jurisdiction nationwide and 17% increase in 

jurisdiction regulating "other waters" exceeds the jurisdiction afforded to the 

Agencies by the U.S. Constitution.

Despite the fact that the Supreme Court made the determination that the Corps exceeded 

its jurisdiction in the Rapanos cases, the Agencies proceeded to develop a regulation that 

 

9

http://www2.epa.gov/sites/production/files/2014-03/documents/wus_proposed_rule_economic_analysis.pdf
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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expanded their jurisdiction by an estimated 3% nationwide, and an estimated 17% 

expansion of jurisdiction for waters categorized as "other waters." The Agencies' 

Economic Analysis of Proposed Revised Definition of Waters of the United States10

("Economic Analysis ") predicts an expansion of jurisdiction over what was considered 

jurisdictional under the 2008 guidance. The result of the expanded interpretation of 

WOTUS is an encroachment of federal jurisdiction into state jurisdictional waters by 

approximately 3%. Economic Analysis at 34. This 3% expansion of jurisdiction 

encroaches upon Maine's traditional and primary authority over land and water use.

It should be noted that the Economic Analysis was conducted over the course of a twoyear time period which may not be indicative of normal construction activity due to the 

economic climate during the time period. If increased construction were to have taken 

place during the two-year time period, the estimates of expanded jurisdiction may have 

been greater than what was presented by the Agencies. Furthermore, the estimates which 

were provided in the Economic Analysis represented a nationwide increase. More rural, 

water-rich states, such as Maine, are likely to be disproportionately impacted by the 

proposed regulation and expansion of jurisdiction. 

Waters that are not navigable, and that have traditionally been regulated solely by the 

State of Maine, such as a "shallow subsurface hydrologic connection" to a jurisdictional 

water, are considered WOTUS under the proposed regulation. Significantly, the 

Economic Analysis states that 0% of "other waters" evaluated using the 2008 guidance 

were determined to be jurisdictional, compared to 17% of "other waters" under the 

proposed rule. Economic Analysis at 34. The Agencies' Economic Analysis indicates that 

this expansion is a result of the redefinition of the "adjacency" test. This expansion in 

jurisdictional reach interferes with the regulation of a state resource by the state. Further, 

use of shallow subsurface connections to determine adjacency essentially federalizes 

regulation of groundwater, which no reasonable person could interpret as navigable 

water. Use of a shallow subsurface connection as the only connection to a traditional 

navigable water ("TNW") would be to "read the significance of the term `navigable' out 

of the statute altogether." (see SWANCC at 171-172) (p. 3-4)

Agency Response: See Summary Response for this section (Topic 11.2) and the 

Economic Analysis for the final rule, as well as the Technical Support Document. 

The agencies have revised the period evaluated to account for economic downturn in 

2009 and 2010.

State of Oklahoma (Doc. #14625)

11.2.13VI. The Burden of Ambiguity on States and Local Stakeholders 

 

10 March 2014, US Environmental Protection Agency and US Army Corps of Engineers.
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19

Like others that have commented, including the organizations to which we belong, we 

believe that the Agencies have missed or ignored the greater expense and resource burden 

this proposed rule will place on State co-regulators and watershed stakeholders. The 

ambiguity outlined above opens the door for your Agencies and the courts to greatly 

expand CWA jurisdiction to waters not meant to be regulated by the Federal government. 

Because States are in the lead or playa significant role in implementation of the various 

CWA programs, we anticipate greater demands on our already limited resources that go 

well beyond the estimates provided in the cost analysis accompanying this rulemaking. 

For example, an expanded number of Section 404 permits will result in an increased

demand for 401 certifications by the State, and there are unquantifiable impacts on our 

stormwater general permits and MS4permits. More significantly, it will be the 

landowners, developers and other watershed stakeholders that own and manage well over 

90% of Oklahoma's landscape that will face the brunt of the burden despite the great 

strides they have made in working with us to restore water quality heretofore. (p. 3-4)

Agency Response: See Summary Response under Topic 13.2.4 (Unfunded 

Mandates Reform Act) for a discussion related to co-regulators. See Summary 

Response for this section (Topic 11.2), and Topics 11.3 and 11.4, for responses 

related to the potentially affected community in the context of a “recent practice” 

baseline. 

Arizona Department of Environmental Quality (Doc. #15096)

11.2.14B. Expansion of Federal Control Over Land and Water Use.

By asserting jurisdiction over areas of land where water flows in direct response to 

precipitation, the Agencies are blurring the distinction between nonpoint source runoff 

and point source discharges. If the area through which water runs is a water of the U.S., 

then the federal government has control of the use of that area. This is federal land use 

control that will affect State economic development decisions.

Indeed, all activities that drive economic development in the States would be affected by 

the proposed rule, including highway and road construction, pipeline projects, 

transmission line projects, farming, flood control, and public works projects. With federal 

permitting also comes the potential for a federal veto of State economic development 

projects. 

For example, stream and wetland mitigation costs for state highway projects in the State 

of Washington can range anywhere from $180,000 to $2.28 million each.8 The likelihood 

that roadside ditches would now be included as jurisdictional federal waters would 

increase those costs exponentially. The proposed rule could also have similar impacts on 

States that choose to build significant infrastructure related to renewable energy or 

natural gas projects in order to comply with EPA’s proposed guidelines for states to 

reduce emissions from existing power plants under § 111(d) of the Clean Air Act. (p. 6)
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

20

Agency Response: See Summary Response for this section (Topic 11.2), and 

Topics 11.3 and 11.4, for responses related to the potentially affected community in 

the context of a “recent practice” baseline. See also Summary Response for Topic 6 

(Ditches).

Office of the Governor, State of Utah (Doc. #16534)

11.2.15B. Flawed Economic Analysis

The rule does not comport with EO 12866. The proposing agencies have used a flawed 

methodology for calculating benefits and a deficient approach toward calculating 

incremental costs. The analysis fails to conform to even the most basic principles of 

economic analysis. As a result, the analysis does not provide the public and policy 

makers credible information about the magnitude of the rule's impacts. For example, the 

economic analysis relies on nearly 20-year old cost data that has not been adjusted for 

inflation. In concluding that the rule would increase the waters subject to permitting 

requirements by only 2.7 percent, the proposing agencies rely on a data base that is 

incomplete and not representative of those waters that are subject to jurisdiction under 

current regulation. Their use of the 2.7 percent figure to extrapolate likely cost impacts in 

other CWA programs introduces further bias in the benefit-cost analysis.

In addition, EPA's economic analysis has been limited to costs association with section 

404 of the CWA and fails to consider the full costs of implementing expanded 

jurisdiction. The cost of this expansion will impact all programs of the CWA, including 

sections 303, 311, 401, and 402. EPA has significantly underestimated the costs 

associated with this rule. (p. 15)

Agency Response: See Summary Response for this section (Topic 11.2), and 

Topics 11.3 and 11.4. The economic analysis does take into consideration sections 

303, 311, 401, and 402 of the Clean Water Act.

11.2.16C. Energy Sector

The value of the state's direct energy production is nearly $5 billion dollars annually, and 

jobs in the energy sector pay almost twice the state average.11 Revenues from energy 

development on state trust land s provide crucial funding to Utah's schools. Additionally, 

a multitude of energy and infrastructure projects underway in the state will provide direct 

benefits to the nation and region through increased access to energy resources , improved 

transportation systems with economic and environmental benefits, and efficient resource 

development. The EPA's proposed rule imposes unjustified and unnecessary costs and 

burdens on energy production and infrastructure projects, and the many benefits that flow 

 

11 Michael Vanden Berg, Utah Geo logic Survey, "Utah's Energy Landscape," 3'd Edit ion; 20 14 at 9, available at

http ://energy.utah.gov/wp-content/uploads/Utahs-Energy- Landscape-3rd-Edition.pdf (accessed 11II 0/ 14).
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

21

from them , and should be reconsidered to allow for sensible and understandable 

interpretations of Waters of the U.S.

The Environmental Protection Agency' s (EPA) proposed rule for the definition of 

"waters of the United States" unreasonably impedes responsible domestic energy 

development by unnecessarily increasing the time and expense of project and 

infrastructure permitting. Energy companies already face burdensome costs and delays 

from numerous federal requirements. According to the National Association of 

Environmental Professionals, final Environmental Impact Statements (EIS) issued in 

2012 under the National Environmental Policy Act (NEPA) averaged 4.6 years to 

complete.12 The Government Accountability Office in a 2014 report to Congress found 

the median EIS contractor cost for Department of Energy projects was $ 1.4 million.13

The EPA's proposed rule would extend federal jurisdiction to whole new categories of 

natural and artificial features, including poorly defined "tributary," "adjacent, " and 

"neighboring" waters that would by regulatory rule be assumed to have a " significant 

nexus" to navigable water. This approach would unfairly expose the energy industry to 

numerous lawsuits where they would have the legal burden of showing that some water 

feature does not have a "significant nexus." The EPA's approach turns established law on 

its head and undermines current best practices for assessing Waters of the U.S. The 

EPA's ambiguous legal terms and shifting of the legal burden of proof will create 

enormous costs and delays to energy production and infrastructure projects.

The proposed rule states that man-mad e conveyances, including ditches, are considered 

jurisdictional tributaries if they have a "bed, bank and ordinary water mark and flow 

directly or indirectly into a 'water of the United States,' regardless of perennial, 

intermittent or ephemeral flow." This broad declaration would require numerous energy 

production and infrastructure projects to potentially get a number of new Clean Water 

Act (CWA) permits and/or certifications, including sections 303, 304, 305 (state water 

quality standards), 311 (oil spill prevention), 401 (state water quality certification), 402 

(effluent/stormwater discharge permits), and 404 (dredge and fill permits). Compliance 

with these new permitting and certification requirement s would cost industry enormous 

amounts of time and money. The average time it takes to acquire a 404 permit is 788 days 

and costs an average of $27l ,596 .14 Since the proposed rule has placed the legal burden 

of proof on industry, the cost and burden of these new permitting requirements would be 

greatly enhanced.

 

12 U.S. Government Accountability Office, "National Environmental Policy Act: Little Information Exists on NEPA 

Analyses, " GAO- 14-37 0, at 14 (April 20 14), available at http ://gao.gov/assets/670/662546.pdf (accessed

11 /10/201 4).1

13 Id. at 13.

14 David Sunding and David Zilbennan, "The Economics of Environmental Regulation by Licensing: An

Assessment of Recent Changes to the Wet land Permitting Process" (200 2) available at http://are.berkeley.edu /-

sunding/Economcs%200fllfo20Environmental%JORegulation .pdf (accessed 11I 10/201 4).
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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The expansive and uncertain application of this proposed rule would require significant 

state and local government time and money to implement without any evidence that it 

will improve the state's system for protecting its water resources. State and local 

governments must make tough decisions on how to deploy limited personnel and bud get. 

Increased compliance costs created by the Proposed Rule would likely reduce 

government responsiveness to other regulatory needs in the energy sector, which would 

further hamper energy development that is so crucial to economic development for the 

state. (p. 12-14)

Agency Response: See Summary Response for this section (Topic 11.2), and 

Topics 11.3 and 11.4 on the potentially affected entities in the economic analysis. 

See also the Summary Response and additional discussion under Topic 13 

(Unfunded Mandates Reform Act) on impacts to state and local governments. See 

also response to Topic 11.3.1.

State of Oklahoma, et al. (Doc. #16560)

11.2.17c. Inadequate economic impact analysis

EPA and the Corps also claim that the rule would have minimal economic impact and 

would not affect many acres-only about 1,300 acres nationwide-which seems grossly 

inaccurate given that the proposed rule could be read to affect this number of acres within 

one Oklahoma county alone. Furthermore, in order for EPA and the Corps to substantiate 

such claims that the rule will only impact a defined number of acres or defined 

percentage of waters requires that they delineate the newly impacted areas. So show us 

the map! Such a map would go a long way to helping states and the regulated community 

understand exactly where each jurisdictional water is located. Unfortunately, up to this 

point there has been no map delineating the proposed scope of CWA jurisdiction, even in 

the abstract, which seems like a very reasonable and helpful visual aid to accompany a 

geographically-based rule. When we contacted our Corps District Office to help identify 

which waters would be covered by the new rule, we were told that case-by-case

determinations would continue to be made, which begs the question whether anything has 

been clarified by the proposed rule.

Largely avoiding the true costs, EPA and the Corps have instead emphasized that the 

proposed rule will benefit businesses by making it easier to determine if a body of water 

is covered by the CWA. Based upon our aforementioned confusion regarding definitions 

and new undefined terms, this is only true if we assume that nearly everything is covered. 

This, of course, does not save anyone from the cost and burdens of increased regulation. 

As highlighted in a recent report prepared for The Waters Advocacy Coalition, "The 

inclusion of these (expanded categories of) waters will broaden the scope of the CWA 

and will increase the costs associated with each program. Unfortunately, the EPA 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

23

analysis relies on a flawed methodology for estimating the extent of newly jurisdictional 

waters that systematically underestimates the impact of the definitional changes.15 Thus, 

the proposed rule creates a situation where continued litigation will likely cause a greater 

expenditure of time and resources to subjectively apply the definitions contained within 

the proposed rule. This impact will be felt by the entire regulated community and all 

Oklahomans, including small landowners and businesses least able to absorb such costs.

Of grave concern to the OWRB and our sister agencies, the analysis also does not address 

the burden on state resources for required for permitting, oversight and enforcement. (p. 

11-12)

Agency Response: See Summary Response for this section (Topic 11.2), and 

Topics 11.3 and 11.4 on the potentially affected entities in the economic analysis. 

The agencies considered it more appropriate for the economic analysis to use 

existing Corps data to assess the change in jurisdictional determinations from 

negative to positive assertions due to the rule when compared to recent practice, as 

opposed to abstract maps. Furthermore, as the rule clarifies types of waters that 

are covered by the CWA and those that aren’t, the agencies would expect to find 

reduced litigation costs. See also the Summary Response and additional discussion 

under Topic 13 (Unfunded Mandates Reform Act) on impacts to state and local 

governments.

Coastal Restoration and Protection Authority Board of Louisiana (Doc. #17043)

11.2.18C. The permitting delays and increased costs associated with the broad reach of the 

proposed rule will significantly hamper state and local restoration efforts given the 

lack of exemptions for restoration projects that actually increase wetland acreage and 

promote integrated coastal protection.

Just as the risk of litigation as outlined in the previous comment will surely increase as 

uncertainty of the case-by-case "other waters" desktop analysis clutters the landscape in 

the aftermath of the implementation of this proposed rule, so too will the risk of litigation 

for the state and local agencies sifting through the permit process because of the 

increased costs associated with heavy delays in permitting. It is undisputed that the 

administration costs for an agency like the CPRA would skyrocket if this proposed rule 

goes into effect.

Consider, for example, the increased costs associated with the oversight of the permitting 

process. While the task of issuing coastal use permits in the Louisiana coastal zone lies 

with the Louisiana Department of Natural Resources ("DNR"), CPRA is nonetheless 

required to conduct a consistency review of these permits to determine whether the 

 

15 David Sunding, Ph.D., Review of 2014 EPA Economic Analysis of Proposed Revised Definition of Waters of the

United States, The Brattle Group (May 2014), available at: 

http://news.agc.org/wpcontent/uploads/2014/05/WOTUS-Economic-Report-FINAL.pdf
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

24

permits are, in fact, consistent with the most recent version of the Master Plan. In 

addition, the CPRA also has oversight authority over other potentially impacted entities 

like state levee and drainage boards. The Agencies readily admit that the costs to state 

agencies are likely to increase. As the jurisdictional reach of the proposed rule and the 

uncertainty surrounding the analysis of "other waters" coincide, the direct and indirect 

costs from additional permitting will assuredly soar like those associated with § 404 

permits under the CWA, stormwater permits and permits required in the coastal zone.

Along with the increased oversight costs borne by state agencies like the CPRA, DNR 

and the Louisiana Department of Environmental Quality, the delays in the processing 

time of Corps permit applications will delay critical coastal restoration projects. The 

expansion of jurisdictional waters under the proposed rule will require more permits for 

activities that did not previously require them. In turn, state agencies will have to use 

more funding dollars to hire more staff to administer the larger permit load. So, in 

addition to the costs needed to apply for the permits, the cost of administering the permits 

will overwhelm state agencies as they grapple with bringing on more personnel to handle 

the bloated permit loads. Every dollar that is put toward the administration costs of 

handling the ever-growing permit load means less dollars that can actually be used 

toward restoration projects that restore critical lost wetland acreage.

Ultimately, the increased cost of the expansive permitting regime brought on by this 

proposed rule would be felt by the end user, as well. Local governments and private 

stakeholders will be forced to hire consultants and more technical personnel as they 

struggle to make determinations of whether the waters associated with their projects will 

be deemed "waters of the United States" and, thus, subjected to the Agencies' expanded

permitting footprint. Outside of these determinations, local governments and private 

stakeholders will be forced to bring on more staff to handle the increased permit load 

given the acknowledgement by the Agencies that more waters will be subjected to the

Agencies' regulatory reach than have been in the past.

Louisiana is facing a critical land loss crisis. Every hour, we lose a land area the size of a 

football field due to erosion and subsidence. Through our Master Plan, we are combatting 

that crisis and building land. With the Master Plan, we anticipate closing that land loss 

gap within 20 to 30 years at which time we will actually be building more land than we 

are losing. However, the increased delays from the expansive permitting requirements 

under the proposed rule coupled with the ever-inflating administrative costs and the 

growth in the amount of regulatory permits required for our restoration projects threaten 

the State's ability to turn this critical corner to realize more land built than lost. In sum, 

the dollars required to comply with the expanded permitting footprint of the Agencies 

could be more efficiently used to fund critical restoration projects. The efficient use of 

these dollars could be streamlined if the proposed rule included exclusions for projects 

that restore wetlands rather than delaying projects to the point where wetlands are lost or 

destroyed due to administrative red tape. As it is written, the proposed rule would not 

only increase the amount of time required to implement restoration projects, but it would 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

25

effectively decrease the number of wetland acres restored in Louisiana. We ask the 

Agencies to address why they do not include exclusions in their proposed rule for these 

types of restoration projects. While the Agencies address the potential permit expansion, 

they do not discuss why exclusions are not included in the rule for restoration projects 

that restore wetlands in the battle against land loss in places like Louisiana. (p. 3-4) 

Agency Response: This rule is narrower in scope than existing regulations and 

historical practice. Costs described in the economic analysis are for illustrative 

purposes. See the Economic Analysis and summary responses to Topics 11, 11.2, 

11.3, 11.3.1, and 11.4. See also Topic 7.

Texas Department of Agriculture (Doc. #18854)

11.2.19The EPA and the Corps anticipate that the losses suffered by the government and 

regulated entities will be between $162 million to $279 million per year under the new 

rule. These financial costs will be associated with activities such as administering 

additional permits and modifying business operations to meet new standards. The 

reporting agencies go on to estimate the benefits of this rule change to be between $318 

million and $514 million per year. These benefits, however, are represented by "values of 

ecosystem services" and "reduced uncertainty concerning where the CWA jurisdiction 

applies." This assessment of benefits is vague and severely inflated. These measures are 

not easily quantifiable, which will result in subjective and questionable estimates of 

economic costs without clearly identifying defined and measurable benefits from these 

proposed regulations. While the costs to agriculture and our economy will be very real, 

the purported costs by EPA and the Corps are grossly underestimated - meanwhile, the 

benefits are obscure at best.

This proposal comes as the most recent and most expansive attempt to bypass the term 

"navigable" in the CW A. All previous efforts have been deterred by Congress and the 

Supreme Court. Congress has consistently defended the original intent of the CW A, and 

these actions to circumvent the wills of our Congress and Supreme Court by EPA and the 

Corps are inexcusable.

Wise stewardship of our water resources is of paramount importance to Texans. The 

elimination of water pollution should be considered a time-intensive objective that is 

restricted by the incurrence of financial and social costs. The costs of this radical 

proposal severely outweigh the expected benefits. This type of overregulation will be 

damaging to our nation's economy, as well as citizens' trust in government. In order to 

protect our agricultural producers and communities, I encourage EPA and the Corps to 

withdraw the proposed rule immediately. (p. 2-3)

Agency Response: While this rule is narrower than existing regulations, see 

Summary Responses to Topics 11.3 and 11.4 on the benefits as a result of this rule 

compared to recent practice.
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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Iowa League of Cities (Doc. #18823)

11.2.20The data analyzed for the Economic Analysis of Proposed Revised Definition of Waters 

of the U.S. does not provide a complete picture of the impact of the proposed rule. The 

Agency utilizes the ORM2 database, which was not developed or intended for the type of 

analysis for which it was utilized. The focus of the analysis was also on the Section 404

program and did not include Section 402 NPDES program, Section 303 Water Quality 

Standards, TMDLs, storm-water and green infrastructure. Not fully analyzing the waters 

impacted leaves uncertainty for systems that are used to dealing with EPA and the Iowa 

Department of Natural Resources (IDNR). According to EPA's and Army Corp's 

Economic Analysis of Proposed Revised Definition of Waters of the U.S., the impact of 

this change in definition is largely unknown because the findings are "incomplete" due to 

the "many data and methodological limitations, as well as the inherent assumptions in 

each component of the analysis."

The Economic Analysis states that about 3 percent more waters would be found 

jurisdictional. EPA based this calculation on permits that were submitted for review, 

rather than waters that would be jurisdictional under the rule (where permits are not 

currently needed). Moreover, the calculation was based off of2009-20 10 data- the height 

of the recession when development (and other types of projects) was at an all-time low.

City Example: One city had only 38 NPDES General Permit No.2's issued in 2009. By 

comparison there were 60 issued in 2007 and 54 issued in 2008 in that same city. County 

wide there were only 147 NPDES General Permits No.2's issued in 2009. By comparison 

there were 229 in 2007 and 184 in 2008. The numbers indicate that development was 

significantly reduced in 2009 based upon the number of NPDES General Permits No.2's 

issued.

Request for EPA Response: The Agency should further delineate what new waters, if 

any, would be impacted through this rulemaking that are associated with municipal 

storm-water systems both internal and external to these systems. (p. 2)

Agency Response: See the Summary Response in this section on how the agencies 

have modified the sampling period from the ORM2 database, as well as the 

Summary Response to Topic 11.4 on CWA Section 402 permits, including 

stormwater. See also Topic 7 Features and Waters Not Jurisdictional and Topic 12 

Implementation.

State of Alaska (Doc. #19465)

11.2.21Disregard and Underestimation of Significant Economic Costs. Economic analysis for 

the proposed rule does not adequately consider the significant cost of implementing the 

proposed rule. Costs to comply with the rule divert funding from state and federal 

regulatory programs already in place, and place an unreasonable burden on private and 

public development projects for which there is little risk of impacting downstream, 

traditionally navigable waters. Increases in compliance and transactions costs include 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

27

consulting contracts, compensatory mitigation, post-construction costs, and liabilities that 

are foreseeable. EPA and the Corps fail to adequately investigate and disclose what fiscal 

impacts implementation of this program will have on both state and federal agencies. The 

rule is an unfunded mandate in terms of its implementation, both for state regulatory 

agencies, state-funded public construction projects, and for the court system. (p. 5-6)

Agency Response: See Summary Response for Topic 13 (Unfunded Mandates).

Sweetwater County Board of County Commissioners, Sweetwater County, Wyoming (Doc. 

#6863)

11.2.22As described above, the proposed rule may have similar effects on businesses and 

industries attempting to develop in Sweetwater County. For example, the oil and gas 

industry, which provides 43% of the county tax base, depends on obtaining approved

Sweetwater County Road Access Permits in order to construct service roads to their oil 

and gas wells. Under the existing rule, Sweetwater County can quickly approve these 

access permits for oil and gas companies. If the proposed rule is passed and is interpreted

in a manner that classifies the Sweetwater County roads as waters of the United States, 

the approval of county road access permits will potentially be delayed by requirements to

obtain CWA 404 permits. This delay adds to the time needed to obtain access permits, 

which in turn adds to the numerous permitting delays that oil and gas companies now 

face. When taken as a whole, additional permitting delays may cause a company to 

choose not to develop in Sweetwater County, the State of Wyoming, or for that matter, in 

the United States. (p. 2)

Agency Response: This rule is narrower in scope than existing regulations and 

historical practice. See Summary Response in this section and Summary Response 

11.3.1, and the Economic Analysis for the rule, on the effects to CWA programs that 

may result because of the rule.

Butler County Pennsylvania (Doc. #6918.1)

11.2.23Because the EPA and Corps self-determine their proposed definitional rule expansion 

would only impose indirect costs, the proposed rule stated federalism concerns were not 

triggered despite their own cost-benefits analysis. The economic analysis indicates there 

may be additional implementation costs for a number of CWA programs and cautions the 

data used and the assumptions relied upon by the Agencies in drafting the proposed rule 

analysis may be flawed. Furthermore, under the rule, the economic analysis failed to

address additional waters currently not jurisdictional (with no permit submissions) which 

would become jurisdictional under the rule. This reasoning is flawed and fails to 

recognize a true accounting of direct impact costs or benefits. Consultation input 

strengthens federal, state and local government partnerships for CWA implementation 

and streamlining of expenses in any proposed projects. (p. 9)

Agency Response: This rule is narrower in scope than existing regulations and 

historical practice. See Summary Responses to Topic 13.2.5 (Federalism). See 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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Summary Response for this section (Topic 11.2), and Topics 11.3 and 11.4 on the 

potentially affected entities in the economic analysis.

11.2.24Moreover, a direct impact cost analysis should have been included in the proposed rule 

process. Usurping a State and local government's right to oversee land use within its 

jurisdiction clearly violates Constitutional federalism concepts and mandates. (p. 9)

Agency Response: See Summary Responses to Topic 13.2.5 (Federalism).

11.2.25Given the economic recession realized since 2007 and its slow recovery, the timing of 

this proposed rule and its jurisdictional expansion is both inappropriate and not advised. 

During the recession, federal and state revenues declined which economically impacted 

counties. County funds are limited given the expenses in providing needed services to its 

residents. Federal mandates by the proposed rule on states and counties means increased 

expenses without funding avenues to implement and oversee compliance within the 

regulations as the rule is not proposed legislation. The proposed rule is federal agency 

self-regulation without proposed revenue supporting methodologies. As demonstrated 

earlier, Supreme Court cases determined the EPA and Corps exceeded their regulatory 

authority. Costs of mitigation or design changes and daily fines (if a party misinterprets 

or misapplies the proposed rule contrary to the regulatory agency) were not included. 

Current permitting costs and time frames for application approval were not readily 

available from the Corps. With these figures many counties, local municipalities could 

find their coffers bankrupt under federal jurisdictional requirements for a particular 

project. Most residents would not be able to afford the permitting process due to both 

criminal liability and steep civil fines imposed by the CWA. Arbitrarily expanding the 

definition without legislative debate and placing additional regulatory burdens on local 

economies beginning to experience recovery from a long recession is not an inappropriate

solution. As such, the EPA and Corps should withdraw their draft guidance and proposed 

definitional expansion of regulatory implementation. (p. 10)

Agency Response: See Summary Response in this section on the adjustments the 

agencies made in the economic analysis to account for the economic recession.

White Pine County Board of County Commissioners, White Pine County, Nevada (Doc. #6936)

11.2.26According to a review of the EPA's economic analysis by an economist and University of 

California- Berkeley faculty member, EPA relied on flawed methodology for estimating 

the extent of its jurisdiction under the proposed rule and rail to include several types of 

costs in its analysis resulting in an analysis that is not accurate in its estimate of the rules 

impact on affected communities and businesses and under-represents its expanded 

jurisdiction. (p. 3)

Agency Response: See Summary Responses in this section, as well as in Topics 

11.3 and 11.4 for a discussion of similar comments.
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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City of San Diego, Transportation & Storm Water Department (Doc. #7950.2)

11.2.27The true impacts of this rule are unknown. Though it is not intended to add new waters to 

federal jurisdiction, it leaves much open to interpretation and may unintentionally pull in 

waters and infrastructure that conveys storm water. It is vague in some sections, and 

specifically mentions some exemptions while excluding others such as MS4 

infrastructure. The economic burden on MS4 operators is not known.

Recommendation: Clarify and/or specifically exclude those waters which were not 

intended to be classified as waters of the US such as MS4 infrastructure. Conduct an 

economic analysis which adequately assesses the cost for complying with regulations 

governing new waters that are pulled into federal jurisdiction with this rule. (p. 3)

Agency Response: See Summary Response under Topic 13.4 (Other CWA

Programs) for a discussion of MS4 infrastructure, and see Topic 7 (Features and 

Waters Not Jurisdictional).

Moffat County Board of Commissioners, Moffat County, Colorado (Doc. #7987)

11.2.28Although the cost benefit analysis identifies that most programs under the Clean Water 

Act will be affected, a main focus of cost analysis was 404 permit costs. Cost benefit 

analysis should also include permitting time/delay costs and impact avoidance and 

minimization costs, neither of which were addressed in the cost benefit report. In 

addition, the economic analysis uses cost information from Section 404 permits in FY 

2009-2010, a timeframe that is very narrow in scope, and one of economic downturn for 

much of Colorado. To assume the cost of 404 permitting before this rule is in effect, does 

not consider the additional costs the rule will impose upon future applicants. (p. 3)

Agency Response: See the Summary Response in this section on how the agencies 

addressed concerns over FY 2009-2010 timeframe. See the Summary Responses to 

Topics 11, 11.3, 11.3.1, and 11.4 for information on permitting time/delay and other 

related costs.

Board of Douglas County Commissioners, Castle Rock, Colorado (Doc. #8145)

11.2.29Douglas County contracted Wright Water Engineers, Inc. (WWE) to evaluate how the 

Proposed Rule could impact Douglas County if the Proposed Rule is finalized as 

currently written. The evaluation, Douglas County Waters’ Evaluation---Considerations 

on Potential Clean Water Act Jurisdiction under Current Guidance and the 2014 Proposed 

Waters of the U.S. Rule (Douglas County Waters Evaluation) is attached to this letter as 

Exhibit 1. The Douglas County Waters Evaluation demonstrates how the Proposed Rule 

expands jurisdictional determinations.

To demonstrate the economic impact the Proposed Rule would have on Douglas County 

specifically, we offer the following specific illustration. In 2014, Douglas County 

underwent a 404 permit process to design and construct a federally funded bridge 

replacement at Airport Road crossing Plum Creek. The bridge replacement was 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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warranted due to the current bridge being structurally deficient and functionally obsolete. 

The permitting process began in January with local agencies priming federal agencies, 

which resulted in a submittal in April and awarded permit in June. This two month 

turnaround is considered the best case scenario. The Federal Highway Administration’s 

(FHA) current estimated timeline for obtaining a required individual 404 permit for 

activities that occur in jurisdiction determined WOUS is approximately 3 to 6 months.

Taking into consideration the County’s current staff, resources, and project load, the 

County can expect that under the Proposed Rule, the time to secure the 404 permit for the 

Airport Road Bridge Project would have been doubled. The permitting delay and increase 

in cost will also affect public infrastructure economically in the following ways:

 New public roadway infrastructure - Typically in Colorado, bridge projects are 

constructed during low precipitous periods and timing is critical during the permit 

process. For example, the $3 million Airport Road Bridge Project may be delayed as 

much as one year if the Proposed Rule is promulgated in its current form. As outlined 

in the Colorado Construction Cost Index Report, the average inflationary increases 

for labor materials of this type of construction averaged 8.6 percent from 1987 to 

2011, which would result in an additional cost of $258,000 to the public. In some 

years like 2004 to 2005, Colorado experienced an increase in the Colorado 

Construction Cost index reporting of 168.0 to 255.2 resulting in a 51.9% annual 

increase in construction. Under the Airport Road Bridge Project example, such a 

delay would result in an additional $1.6 million to the cost of the Project. 

 National new public roadway infrastructure – The American Society of Civil 

Engineers (ASCE) and the FHA have stated that approximately $76 billion is needed 

to repair deficient bridges across the United States. According to the ASCE’s 2013 

Infrastructure Report Card and the FHA, approximately $12.8 billion is being spent 

currently on bridge investments, with a shortage of approximately $8 billion annually 

to address the identified $76 billion needed. The resulting increase in costs associated 

with permit delays, with an average 4 percent inflationary increase, totals 

approximately $512 million or higher in annual construction costs inefficiencies 

nationally immediately following the Proposed Rule promulgation. 

 Existing public roadway infrastructure maintenance – It is the responsibility of

MS4 permittees to ensure long term operational and maintenance of permittee owned 

and private owned water quality/detention facilities to the maximum extent practical. 

MS4s at times develop manmade wetlands for water quality features and at other 

time, may need to remove such wetlands, along with sediment for purposes of 

protecting the infrastructures functional purpose, such as storage volume and 

controlled release for water quality and downstream stormwater conveyance in 

roadside ditches that outfall into tributary waters. Maintenance of water 

quality/detention facilities and ditches both inside the boundaries of the MS4 and 

within public right-of-way will require a 404 permit never before required for this 

type of maintenance. The additional constraint from the Proposed Rule is the time it 
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31

will take a MS4 to obtain a 404 permit. The increase in time will delay the ability to 

conduct the required maintenance activities for the infrastructure to function as 

intended such as protecting public life, property, and the environment. While waiting 

for a 404 permit or jurisdictional determinations, the owners will be delayed in 

construction, resulting in penalties and fines associated with such delays. These 404 

permits or jurisdictional determinations impede Douglas County and private land 

owners from completing their currently permitted operational and maintenance 

responsibilities resulting in tens of thousands of dollars in EPA and Colorado 

Department of Health and Environment daily accumulated fines. Nonetheless, these 

violations have civil and criminal imprisonment terms. If we maintained these 

facilities without a 404 permit, similar violations and penalties could be imposed on 

the owners of the facilities. This is a 100% increase in fiscal costs and unforeseen

increase to public life, property, and the environment if permitting obstructs required 

maintenance. 

 Business impact – Douglas County is undergoing strong economic development and 

some notable economic indicators suggesting the County is poised for continued 

expansion as follows:

o Total employment rose 6.5% from 2013, resulting in 6,370 additional jobs. 

Douglas County reported a 5.3% increase in total retail sales over-the-year.

o Average sales price for a single-family detached home rose 6.3% through the first 

quarter of 2014 compared with 2013. The average sales price increase was 

$23,928 higher than the first quarter 2013. 

o Douglas County workers in the prime ages of 35 to 54 make up 55.1% of the 

labor force compared to 44.6% for all workers in Colorado. 

o Standard & Poor’s Rating Services has reviewed their rating for Douglas County 

and has raised the County’s credit rating from AA+ to AAA.

These economic indicators are often indicators for cyclical business demands of 

commercial and residential construction needs and the public infrastructure these 

business sectors provide. The Proposed Rule may impact business decisions if the 

Proposed Rule is implemented without consideration of regional development. The 

increase in time will delay the ability for the infrastructure to be installed or designed to 

account for the Proposed Rule and the increased jurisdiction. Assuming the Proposed 

Rule is promulgated in 2015, and a single family housing development with 100 units is 

planned to start construction in the same year under Current Guidance, what would the 

economic impact be to that development? Based on the Douglas County Waters 

Evaluation, potential expansions of jurisdiction will result in additional 404 permitting. 

The delay resulting from the requirement to obtain a federal permit could result in 

missing a construction season, resulting in a possible loss of business revenue. In the 

example of 100 units finally designed after the Proposed Rule is promulgated, 

implementation of the Rule could result in a 404 permitting issuance delay transferring 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

32

the delay to delay of construction of one year. Assuming growth of $23,298 per unit is 

the same in 2015 but is reduced in 2016 by possible economic change could result in a 

loss for this 100 unit development of approximately $2.4 million. (p. 6–9)

Agency Response: See Summary Response to Topics 11, 11.3.1, and 11.4 on costs.

11.2.30The Proposed Rule combined with existing state and federal regulations, which are not 

factored in the Economic Analysis, will increase local fiscal burdens to Douglas County. 

The anticipated burden on Douglas County will be to increase the workload of the 

existing five full time employee’s (FTE’s) positions responsible for managing noxious 

weeds and pests under these compounding regulations. It has been estimated that an 

additional 25-50 percent of additional responsibilities will be added to each of these 

FTE’s to accommodate these new regulations. Each FTE including benefits are 

compensated at $80,000 annually. This estimated burden totals $100,000 to $200,000 

annually.

Douglas County respectfully requests that the Agencies suspend the rulemaking process 

to allow the Agencies to analyze specific impacts the Proposed Rule may have to each 

region of the U.S. and update the Economic Analysis accordingly based upon those 

findings for further stakeholder comment and review to confirm that these additional new 

programs for required herbicide and pesticide use prior to the finalization of the Proposed 

Rule.

The inclusion of this additional cost in the Economic Analysis is a necessary component 

for a complete review of the Proposed Rule to ensure the Proposed Rule is not impeding 

standard public safety operations. Moreover, more information is required in the 

Economic Analysis to allow local units of governments such as Douglas County to 

determine actual objective impacts to MS4s and public rights-of-ways. The current draft 

Economic Analysis does not provide enough information wherein Douglas County can 

conclude that the Proposed Rule will not fiscally limit it from conducting standard 

operating procedures to construct and repair infrastructure to protect the public. 

Stakeholders cannot provide meaningful comment on the Proposed Rule without being 

afforded the opportunity to review and comment on a comprehensive Economic Analysis 

prior to the finalization of the Proposed Rule. (p. 10-11)

Agency Response: See Summary Response to Topics 11, 11.3.1, and 11.4 on costs.

11.2.316) Rework the Economic Analysis to Accurately Quantify Costs of the Proposed Rule 

For the reasons stated above, the current Economic Analysis falls egregiously short of 

measuring the actual costs of the Proposed Rule. Not only is this damaging to the citizens 

of Douglas County, it is in violation of Presidential Executive Orders. Douglas County 

urges the Agencies to develop a new Economic Analysis. The Economic Analysis should 

examine all costs and benefits associated with implementation of the Proposed Rule and 

should use the Current Guidance as the baseline condition. (p. 16)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. However, the agencies do use recent practice as a baseline for 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

33

the economic analysis. See Summary Responses to Topic 11, and Topic 13 (Process 

Concerns and Administrative Procedures) regarding Presidential Executive Orders.

Beaver County Commission (Doc. #9667)

11.2.32Reference: FR page 22220, column 1; [The Agencies] prepared an analysis of the 

potential costs and benefits associated with this action. This analysis is contained in 

“Economic Analysis of the Proposed Revised definition of Waters of the United States.”

The Agencies’ estimate of the costs and benefits associated with the regulatory 

redefinition of “waters of the United states” has not been adequately addressed in the 

proposed rule or in the associated document cited above. The inclusion of categories of 

non-navigable waters that were previously never regulated by the Agencies under CWA, 

such as waters in floodplains, riparian areas, and certain ditches, will broaden the 

jurisdictional authority of the Agencies and will significantly increase the costs 

associated with each program; however the above cited document severely 

underestimates the impact of the definitional changes, excludes important costs, and uses 

a flawed benefits transfer methodology to estimate the benefits of expanding jurisdiction.

According to a May 15, 2014 report by David Sunding, Ph.D. of the Waters Advocacy

Coalition, the numerous errors, omissions, and lack of transparency render the analysis 

virtually meaningless. Estimates of economic impacts to other programs rely on an 

incremental jurisdiction determination that is deeply flawed. The systematic exclusion of 

various costs and benefits ignores important impacts to permit applicants and permitting 

agencies. The analysis suffers from a lack of transparency. Explanations of calculations, 

basic assumptions, and discrepancies between various EPA analyses ant rarely provided; 

the entire report is based on records from the Corps' internal ORM2 database, which is 

unavailable to the public, and thus the validity of the underlying data cannot be 

determined due to lack of requisite transparency.

Recommendation: Withdraw the proposed rule. Withdraw the economic analysis. If the

Agencies wish to resubmit a proposed rule, it must be based on an adequate economic 

analysis. (p. 14)

Agency Response: See Summary Responses in this section, as well as in Topics 

11.3 and 11.4 for a discussion of comments similar to those provided by the Waters 

Advocacy Coalition.

Pasco County, Florida (Doc. #9697)

11.2.33Lastly, the agencies have significantly underestimated the costs to implement this rule. 

Dr. David Sunding of the Brattle Group conducted an independent review of the EPA's 

March 2014 "Economic Analysis of Proposed Revised Definition of Waters of the United 

States" on behalf of the Waters Advocacy Coalition. Dr. Sunding concluded that:

.....the EPA analysis relies on a flawed methodology for estimating the extent of newly 

jurisdictional waters that systematically underestimates the impact of the definitional 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

34

changes. This is compounded by the exclusion of several important types of costs and the 

use of a flawed benefits transfer methodology, which the EPA uses to estimate the 

benefits of expanding jurisdiction. The errors, omissions, and lack of transparency in the 

EPA's study are so severe as to render it virtually meaningless. The agency should 

withdraw the economic analysis and prepare an adequate study of this major change in 

the implementation of the CWA" (Source: Review of 2014 EPA Economic Analysis of 

Proposed Revised Definition of Waters of the United States; Prepared for the Waters 

Advocacy Coalition, by David Sunding, Ph.D., May 15, 2014.)

Recommendation: The County concurs with Dr. Sunding's recommendation to withdraw 

the economic analysis and prepare a more comprehensive and transparent study of the 

economic impact of the proposed rule. (p. 5)

Agency Response: See Summary Responses in this section, as well as in Topics 

11.3 and 11.4 for a discussion of comments similar to those provided by the Waters 

Advocacy Coalition.

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

11.2.34Without modifications to the proposal, infrastructure projects will be delayed and 

increased in cost due to the need to meet additional permitting requirements. Both small 

and large infrastructure projects are already expensive and time consuming. If permits are 

not timely issued, it can cause an economic ripple effect through a community as a 

consequence of the project delays. The potential complexity in applying for a permit 

under the proposal, especially with reference to the "other waters" category, coupled with 

the ambiguity in what type of project will require a permit, will result in project delays 

and cost increases that local governments cannot afford. The financial analysis which 

accompanied the proposal needs to be re-examined and supplemented so as to provide a 

more accurate portrayal of on-the-ground cost impacts. State and local governments 

could assist with this effort. (p. 2)

Agency Response: See Summary Responses in this section, as well as in Topics 11, 

11.3 and 11.4 for a discussion of common concerns, as well as how the agencies have 

revised the economic analysis.

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

11.2.35The proposed rule will bring most, if not all, of these tributaries into the scope of 

jurisdictional Waters of the U.S. This would eliminate the USACE's flexibility in making 

individual determinations based on site-specific conditions and will result in higher costs 

for agencies like UDFCD who are trying to improve the quality of the nation's streams. 

(p. 1)

Agency Response: See Summary Response to Topic 8 (Tributaries) on the types of 

tributaries that could be brought into scope relative to recent practice.
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

35

Owyhee County Board of Commissioners (Doc. #12725.1)

11.2.36Additionally, the methodologies used to determine economic costs and benefits to the 

proposed rule are misleading. In its economic cost analysis for the proposed rule, the 

Administration has indicated that 2.7 percent of new waters will be considered 

jurisdictional under the Section 404 program. However, the data used to compute costs 

for Section 404 comes from submitted Section 404 permit applications for FY2009-2010. 

The economic analysis does not acknowledge or recognize that, under the proposal, 

additional waters, currently not jurisdictional (and thus, with no permit submissions), will 

become jurisdictional. This reasoning is flawed and does not give a true accounting of 

potential costs or benefits. (p. 9)

Agency Response: See the Economic Analysis and the Summary Response in this 

section regarding how the agencies accounted for potential additional waters 

becoming jurisdictional relative to recent practice.

Palo Alto County Board of Supervisors (Doc. #14095)

11.2.37Concern about the accuracy of the economic analysis. We object to the flawed economic 

analysis prepared for the proposed rule. It is based upon an obviously flawed assumption 

of .jurisdictional expansion and it includes no consideration for the regulatory taking 

costs associated with denied vested rights to drain. It is our belief that far more acres of 

jurisdictional waters will be assumed in our county alone than the economic analysis 

claims will be the case for the entire country. (p. 2)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. See Summary Responses in this section for a discussion of the 

potential change in jurisdiction relative to recent practice. See also Technical 

Support Document on the issue of “takings.”

Maricopa County Board of Supervisors (Doc. #14132.1)

11.2.38Cost-Benefit Analysis Flawed

While the agencies have performed cost-benefit analysis of the definitional changes on 

CWA programs, they have acknowledged that the data used and the assumptions made to 

craft the analysis may be flawed. Additionally, the methodologies used to determine 

economic costs and benefits to the proposed rule are misleading. In its economic cost 

analysis for the proposed rule, the agencies have indicated that 2.7 percent of new waters 

will be considered jurisdictional under the Section 404 program. However, the data used 

to compute costs for Section 404 comes from submitted Section 404 permit applications 

for FY2009-2010. 

The economic analysis does not acknowledge or recognize that, under the proposal, 

additional waters, currently not jurisdictional (and thus, no permits have been submitted), 

will become jurisdictional. This reasoning is flawed and does not give a true accounting 

of potential costs or benefits. (p. 2-3)
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

36

Agency Response: See Economic Analysis and Summary Response in this section 

on how the agencies address additional waters becoming potentially jurisdictional 

relative to recent practice.

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

11.2.39Economic Impact of the Proposed Rule.

The Florida League of Cities is a member of the Florida H20 Coalition16, as a partner in 

the Coalition's efforts an economic study of the proposed regulations was conducted. 

That report17; which is attached, found striking differences in the proposed economic 

impact released by EPA.18 Undoubtedly, other commenters have cited to the report in 

their comments. However, it is important to reference specifics and to that end an 

example is provided for Sarasota County, Florida. Sarasota County, located in southwest 

Florida, is a Phase 1 MS4 that owns and operates many stormwater collection and 

treatment systems and is an ongoing participant in efforts to protect Sarasota Bay, the 

Myakka River and Charlotte Harbor. lf the proposed rule were implemented, Sarasota 

County, its partner cities, and other stakeholders would need to expend significant 

resources to provide treatment so that these stormwater conveyances would meet 

Florida's numeric nutrient criteria (NNC) for streams.19

In an effort to effectively analyze the potential cost for Sarasota County a GIS analysis 

was completed to highlight the areas of the county that are currently jurisdictional waters 

and those that would be considered jurisdictional should the rule pass as promulgated. 

For Sarasota County, a 25 percent reduction in total nitrogen (TN) would be needed to 

meet Florida's Numeric Nutrient Criteria (NNC) water quality standard for streams. A 

reduction for total phosphorus (TP) is not required due to the higher TP limit in the westcentral Florida region. Based upon the load to the system, the cost for designing and 

constructing treatment facilities is shown in the following table. The unit costs for 

treatment were applied to the required load reduction to get the estimated total cost to 

meet water quality criteria in the new WOTUS jurisdiction. 

 

16 The Florida H20 Coalition is a broad stakeholder group consisting of members of local government, agriculture,

utilities, and business interests. The Coalition was originally formed to research and discuss the effects of recent

federal and state water regulations.

17 Applied Technology & Management, Inc. Estimated Fiscal Impacts for Selected Municipal Separate Storm Sewer 

System Permittees (August 29, 2014)

18 EPA released economic figures of $390 to $510 million in benefits versus $160 to $278 million in costs. See

http://www2.epa.gov/sites/production/files/2014-09/documents/facts_about_wotus.pdf'

19 Estimated Fiscal Impacts at 9.
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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Based upon the load to the system, the cost for designing and constructing treatment 

facilities is shown in this table.

The estimated cost range to meet water quality criteria in the new WOTUS jurisdiction is 

$6 million to $476 million for nitrogen reduction. Recently, the City of Miramar 

submitted conu7ients (attached) to us regarding the potential cost of the proposed rule on 

the city's stormwater management system. The City of Miramar is 31 square miles in size 

and has over 280 manmade lakes, ponds and canals to mitigate flood impacts and 

improve water quality. Under the proposed definitions of WOTUS, all of the water 

bodies located in Miramar can be subject to numeric nutrient criteria that have not yet 

been established. The city estimates that the potential rule could cost the city roughly $4 

million dollars, or a 900% percent increase in an assessment fee for stormwater 

management. (p. 2-3)

Agency Response: See Summary Response to Topic 11.4 (Other CWA Programs) 

for a discussion of water quality standards and criteria.

Big Horn County, State of Wyoming (Doc. #14571)

11.2.404) The proposed rule imposes significant direct impacts on county government and 

significant indirect impacts to county economies. Neither is adequately quantified by the 

agency's economic analysis. (p. 3)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice, and imposes no direct impacts. See Summary Response under 

Topic 11.
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

38

Soil and Water Conservation District (Doc. #14943)

11.2.41Under the proposed rule, agencies expect that a very small number of additional waters (3 

.2 percent) will be added to the new rule. The EPA's economic analysis is flawed and 

misleading. The figures of analysis was done exclusively based on 2009/2010 data, a 

period of economic contraction. The EPA did not attempt to determine the number of 

acres of watersheds, ephemeral drains, ditches, isolated wetlands or low spots which will 

be newly regulated under the proposed rule.

The agencies should have done a full-blown economic analysis and the number would 

have increased significantly. Looking at the EPA's maps, under the Waters of the US, the 

number of waters that are presented would not even come close to the EPA map if it is all

jurisdictional or even on a case by case basis as is stated in the proposed rule. This is not 

including vast areas of land or watershed that could come under EPA's jurisdiction. (p. 4-

5)

Agency Response: See Summary Response for Topic 11 as well as this section on 

how the agencies adjusted the analysis to account for 2009/2010 data.

San Joaquin Tributaries Authority (Doc. #14992)

11.2.42The Proposed Rule Expands the Jurisdiction of the EPA and Corps

The Proposed Rule expands the scope of covered hydrological features under the CWA 

in relation to the current rule (40 CFR 230.3) The Proposed Rule incorporates all adjacent 

waters, not just wetlands adjacent to territorial seas, waters susceptible to use in interstate 

commerce, interstate waters, and tributaries. In addition, other waters that the EPA and 

the Corps deem to have a "significant nexus" with waters susceptible to use in interstate 

commerce, interstate waters, and the territorial seas are considered WOTUS. (Proposed 

Rule, at (s)(6)-(7).) The economic analysis for the Proposed Rule states that roughly an 

additional three percent of the Nation's hydrological features will fall under EPA and 

Corps jurisdiction as WOTUS under the Proposed Rule. (Economic Analysis, at 12.) It is 

unclear whether the estimate of three percent is accurate; support for this estimate must 

be provided to provide for adequate public review. In addition, even at three percent, this 

increase will incorporate a great number of hydrological features not currently covered 

under the current rule, creating significant change in these areas. (p. 2)

Agency Response: The rule is narrower in scope than the existing regulations and 

historical practice. See the Summary Response for Topic 10 (Legal Analysis). See 

the Economic Analysis and the Summary Response to this section on how the 

agencies reached the three percent figure.

Harris County Flood Control District (Doc. #15049)

11.2.43The economic cost analysis for the proposed rule indicates that 2.7 percent of new waters 

will be considered jurisdictional under the Section 404 program. However, the data used 

to compute costs for Section 404 comes only from submitted Section 404 permit 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

39

applications for FY2009/2010 not taking into account more recent permitting trends in an 

improved economy and is therefore underestimated. The economic analysis does not 

acknowledge or recognize that sites containing only non-jurisdictional wetlands would 

not have applied for Section 404 permitting. The economic cost analysis does not give a 

true accounting of potential costs or benefits because it did not account for nonjurisdictional wetlands that would not require permitting. Furthermore, the economic 

analysis states that the "programs may subsequently impose direct or indirect costs as a 

result of implementation." These additional direct and indirect costs must be quantified as 

part of the economic cost analysis. The District suggests a more robust analysis be 

completed using the additional information suggested above to determine the Waters of 

the U.S. that will become jurisdictional as a result of this rule and reassess the economic 

analysis. (p. 3)

Agency Response: See the Summary Response to this section. The agencies have 

adjusted the analysis to reflect more current jurisdictional determination data.

National Association of Counties (Doc. #15081)

11.2.44Incomplete Data was Used in the Agencies’ Economic Analysis

As part of the proposed rule, the agencies released their cost-benefit analysis on 

Economic Analysis of Proposed Revised Definition of Waters of the U.S. (March 2014). 

We are concerned about the limited scope of this analysis since it bases its assumptions 

on a narrow set of CWA data not applicable to other CWA programs. Since EPA has held 

its 2011 Federalism briefing on “waters of the U.S.,” we have repeatedly raised concerns 

about the potential costs and the data points used in the cost-benefit analysis—these 

concerns have yet to be addressed.20 21 22

The economic analysis uses CWA Section 404 permit applications from 2009-2010 as its 

baseline data to estimate the costs to all CWA programs. There are several problems with

this approach. Based on this data, the agencies expect an increase of approximately three 

percent of new waters to be jurisdictional within the Section 404 permit program. The 

 

20 Letter from Larry Naake, Exec. Dir., Nat’l Ass’n of Counties to Lisa Jackson, Adm’r, EPA & Jo Ellen Darcy, 

Assistant Sec’y for Civil Works, U.S. Dep’t of the Army, “Waters of the U.S.” Guidance (July 29, 2011) available at 

http://www.naco.org/legislation/policies/Documents/Energy,Environment,Land%20Use/Waters%20US%20Draft%2

0guidance%20NACo%20Comments%20Final.pdf.

21 Letter from Larry Naake, Exec. Dir., Nat’l Ass’n of Counties to Lisa Jackson, Adm’r, EPA, Federalism 

Consultation Exec..Order 13132: “Waters of the U.S.” Definitional Change (Dec. 15, 2011) available at

http://www.naco.org/legislation/policies/Documents/Energy,Environment,Land%20Use/Waters%20US%20Draft%2

0guidance%20NACo%20Comments%20Dec%2015%202011_final.pdf.

22 Letter from Tom Cochran, CEO and Exec. Dir., U.S. Conf. of Mayors, Clarence E. Anthony, Exec. Dir., Nat’l 

League of Cities, & Matthew D. Chase, Exec. Dir., Nat’l Ass’n of Counties to Howard Shelanski, Adm’r, Office of 

Info. & Regulatory Affairs, Office of Mgmt. and Budget, EPA’s Definition of “Waters of the U.S.” Under the Clean 

Water Act Proposed Rule & Connectivity Report (November 8, 2013) available at

http://www.naco.org/legislation/policies/Documents/Energy,Environment,Land%20Use/NACo%20NLC%20USCM

%20Waters%20of%20the%20US%20Connectivity%20Response%20letter.pdf.
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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CWA Section 404 program administers permits for the “discharge of dredge and fill 

material” into “waters of the U.S.” and is managed by the Corps.

First, we are puzzled why the agencies chose the span of 2009-2010 as a benchmark year 

for the data set as more current up-to-date data was available. In 2008, the nation entered 

a significant financial recession, sparked by the housing subprime mortgage crisis. 

Housing and public infrastructure construction projects were at an all-time low. 

According to the National Bureau of Economic Research, the recession ended in June 

2009,16 however, the nation is only starting to show signs of recovery.23 By using 2009-

2010 data, the agencies have underestimated the number of new waters that may be 

jurisdictional under the proposed rule.

Second, the economic analysis uses the 2009-2010 Corps Section 404 data as a baseline 

to determine costs for other CWA programs run by the EPA. Since there is only one 

“waters of the U.S.” definition used within the CWA, the proposed rule is applicable to 

all CWA programs. The Congressional Research Service (CRS), a public policy research 

arm of the U.S. Congress, released a report on the proposed rule that stated “costs to 

regulated entities and governments (federal, state, and local) are likely to increase as a 

result of the proposal.” The report reiterates there would be “additional permit application 

expenses (for CWA Section 404 permitting, stormwater permitting for construction and 

development activities, and permitting of pesticide discharges...for discharges to waters 

that would now be determined jurisdictional).”24

We are concerned the economic analysis focuses primarily on the potential impacts to 

CWA’s Section 404 permit program and does not fully address the cost implications for 

other CWA programs. The EPA’s and the Corps economic analysis agrees, “...the 

resulting cost and benefit estimates are incomplete...Readers should be cautious in 

examining these results in light of the many data and methodological limitations, as well 

as the inherent assumptions in each component of the analysis.”25

Recommendation:

 NACo urges the agencies to undertake a more detailed and comprehensive 

analysis on how the definitional changes will directly and indirectly impact all 

Clean Water Act programs, beyond Section 404, for federal, state and local 

governments

 Work with national, state and local stakeholder groups to compile up-to-date cost 

and benefit data for all CWA programs (p.6-7)

 

23 Cong. Budget Office, The Budget & Economic Outlook: 2014 to 2024 (February 2014).

24 U.S. Cong. Research Serv., EPA & the Army Corps’ Proposed Rule to Define “Waters of the U.S.,” (Report No. 

R43455; 10/20/14), Copeland, Claudia, at 7.

25 Econ. Analysis of Proposed Revised Definition of Waters of the U. S., U.S. Envtl. Prot. Agency & U.S. Army 

Corps of Eng’r, 11 (March 2014), at 2.
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

41

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The Economic Analysis provided with the Proposed Rule 

measures potential impact from a recent practice baseline, and used 2009-2010 data 

as the most recent data available. The agencies have since updated the data 

supporting the analysis. See the Economic Analysis for the final rule and the 

Summary Response in this section for more details.

Rio Grande Water Conservation District (Doc. #15124)

11.2.455. The EPA's Economic Analysis is Flawed

Notwithstanding what appears to be a significant expansion of federal CWA jurisdiction 

under the proposed rule, the EPA estimates that there would be at most 1,332 additional 

acres subject to CWA regulation. The EPA bases this estimate on an economic analysis 

performed by the EPA as part of this rulemaking. However, several independent reviews 

of the March 2014 Economic Analysis Report have determined that the analysis 

employed in the report is fundamentally flawed and that the report significantly 

understates the amount of new land that would fall within the purview of the CWA. 

These same reviews also cast serious doubt on the projected net economic benefit to the 

public of 388 million to 514 million dollars.

In one report prepared for the Water Advocacy Coalition, University of California 

professor Dr. David Sunding writes, "the EPA analysis relies on a flawed methodology 

for estimating the extent of newly jurisdictional waters that systematically underestimates 

the impact of the definitional change." That report goes on to find that "[tlhe errors, 

omissions, and lack of transparency in EPA's study are so severe as to render it virtually 

meaningless." Many analysts, including American Farm Bureau Federation economist 

Veronica Nigh, have stated that the proposed regulation could impact a significant 

percentage of the more than 106 million acres of wetlands that are currently being used 

for agricultural purposes. This is far cry from the EPA's 1,300 acre projection and, if me, 

would represent an alarming and unsupportable expansion of the regulatory reach of the 

EPA and Corps under the CWA.

The fact that there is such a chasm between many well-respected scholars and the 

promulgating agencies regarding the potential impact of the proposed rule alone warrants 

further analysis and consideration. (p. 7)

Agency Response: See the Summary Response for Topic 11 and in this section, as 

well as under Topics 11.3 and 11.4, for details on how the agencies have updated the 

economic analysis.

Sacramento County, California (Doc. #15518)

11.2.46Agency's cost-benefit analysis assumptions and methodologies are flawed 

As previously mentioned, while the agencies have performed cost-benefit analysis of the 

definitional changes on CWA programs, they have acknowledged that the data used and 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

42

the assumptions made to craft the analysis may be flawed. Additionally, the 

methodologies used to determine economic costs and benefits to the proposed rule are 

misleading. In its economic cost analysis for the proposed rule, the agencies have 

indicated that 2.7 percent of new waters will be considered jurisdictional under the 

Section 404 program. However, the data used to compute costs for Section 404 comes 

from submitted Section 404 permit applications for FY2009-2010. The economic 

analysis does not acknowledge or recognize that, under the proposal, additional waters, 

currently not jurisdictional (and thus, no permits have been submitted), will become 

jurisdictional. This reasoning is flawed and does not give a true accounting of potential 

costs or benefits. 

Further, to date, neither the EPA nor the Corps has performed any objective and detailed 

cost-benefit analysis to support a determination of the nature and scope of the economic 

impacts to the regulated community that would surely result if the proposed rule is 

adopted. We echo the comments submitted by the Small Business Administration, Office 

of Advocacy, stating the proposed rule would have a "direct and potentially costly impact 

on small businesses" and that EPA and the Corps used contradictory data and relied on 

Han obsolete baseline improperly diminish[ing] the effects of this rule" on small 

businesses. (p. 3-4) 

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice (See Summary Responses under Topics 10 and 11). The 

economic analysis for the Proposed Rule uses a recent practice baseline, and is 

based off of the most recent data available to the agencies at the time. See Summary 

Response under this section for how the agencies updated the jurisdictional 

determination data used for the analysis.

Republican River Water Conservation District (Doc. #15621)

11.2.475. The EPA’s Economic Analysis is Flawed

Notwithstanding what appears to be a significant expansion of federal CWA jurisdiction 

under the proposed rule, the EPA estimates that there would be at most 1,332 additional 

acres subject to CWA regulation. The EPA bases this estimate on an economic analysis 

performed by the EPA as part of this rulemaking. However, several independent reviews 

of the March 2014 Economic Analysis Report have determined that the analysis 

employed in the report is fundamentally flawed and that the report significantly 

understates the amount of new land that would fall within the purview of the CWA. 

These same reviews also cast serious doubt on the projected net economic benefit to the 

public of 388 million to 514 million dollars.

In one report prepared for the Water Advocacy Coalition, University of California 

professor Dr. David Sunding writes, "the EPA analysis relies on a flawed methodology 

for estimating the extent of newly jurisdictional waters that systematically underestimates 

the impact of the definitional change." That report goes on to find that "[t]he errors, 

omissions, and lack of transparency in EPA's study are so severe as to render it virtually 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

43

meaningless." Many analysts, including American Farm Bureau Federation economist 

Veronica Nigh, have stated that the proposed regulation could impact a significant

percentage of the more than 106 million acres of wetlands that are currently being used 

for agricultural purposes. This is far cry from the EPA's 1,300 acre projection and, if true, 

would represent an alarming and unsupportable expansion of the regulatory reach of the 

EPA and Corps under the CWA.

The fact that there is such a chasm between many well-respected scholars and the 

promulgating agencies regarding the potential impact of the proposed rule alone warrants 

further analysis and consideration. (p. 7)

Agency Response: The rule is narrower in scope than the existing regulation. See 

the Summary Response in this section, as well as under Topics 11, 11.3, and 11.4, for 

details on the current approach to the economic analysis.

Delaware County Department of Watershed Affairs (Doc. #16936)

11.2.48(...) For example, they could not explain how the cost/benefit analysis was calculated 

because it was beyond their level of confidence to do so. While sympathetic to their 

situation, their response is not adequate they can’t explain it as an EPA staff member, 

how do you expect anyone to understand it? This is a critical issue because their will be 

costs to comply including capital and opportunity costs associated acquiring a permit. 

How did EPA conclude that there was a net positive benefit? How does one measure 

what we consider to be immeasurable water quality benefits? How can we comment on 

the cost/benefit analysis if an EPA staff member can’t explain the results? (p. 2)

Agency Response: See the Economic Analysis for the final rule which describes 

the methodologies used for estimating change in jurisdictional determinations, costs 

and benefits. See also Summary Response in this section, as well as under Topics 

11, 11.3, and 11.4, for details on the current approach to the economic analysis.

Department of Public Works, County of San Diego, California (Doc. #17920)

11.2.4914. Insufficient Cost Benefit Analysis

The cost-benefit analysis should be expanded to include local and state costs. The 

Economic Analysis for the proposed rule is insufficient because it only accounts for 

federal agency costs. The Economic Analysis of Proposed Revised Definition of Waters 

of the United States was released by the agencies, consisting of a cost-benefit analysis 

across CWA programs. The analysis states, "The economic analysis is necessarily based 

on readily available information and the resulting cost and benefit estimates are 

incomplete." The analysis contends that the new definition of Waters of the U.S. would 

have minimal costs to MS4 permittees and agriculture, but did not take into account any 

additional monitoring, assessment, program realignment, training and outreach, BMPs, 

reporting, or permitting costs for these entities that would result from the expanded 

definition of Waters of the U.S. The report should be revised or amended to address these 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

44

additional potential implications of changing the definition of Waters of the U.S. At a 

minimum, the Economic Analysis should be amended to account for additional 

monitoring, assessment, program realignment, training and outreach, BMPs reporting or 

permitting costs, due to the expanded definition of Waters of the U.S. at the state and 

local levels.

Example: The Economic Analysis indicated minimal costs to MS4 permittees and other 

agencies. However, the proposed rule will require San Diego County time and costs for 

program administration, including planning, monitoring, training, implementation, and 

permitting costs. These all include additional costs that were not considered as part of the 

Economic Analysis. (p. 10)

Agency Response: The final rule in narrower in scope than the existing 

regulations. See Summary Response under Topic 11.4 on how the agencies expect 

this rule to impact MS4s.

Nevada County Board of Supervisors, State of California (Doc. #18894)

11.2.50Economist and University of California-Berkley faculty member Dr. David Sunding26 has 

reported that the proposed rule contains numerous errors, lacks transparency and would 

greatly expand federal control over land that was previously not regulated by the federal 

government. For example, he notes that EPA's economic impact analysis uses FY 

2009/2010 as the baseline year to estimate impacts. This was a "period of significant 

contraction in the housing market due to the financial crisis..... it is apparent that 

choosing FY 2009/2010 as representative years is problematic, as building permit filings 

were at an all-time low during this period." (p. 3)

Agency Response: The agencies have updated permit data to account for the 

referenced recession. See the Economic Analysis for the final rule and the Summary 

Response in this section, as well as under Topics 11, 11.3, and 11.4, for details on 

how the agencies have updated the economic analysis.

Mississippi Valley Flood Control Association (Doc. #19488)

11.2.51The Agencies’ Economic Analysis Underestimates Costs

The agencies’ cost-benefit analysis of the Proposed Rule41 severely underestimates its 

associated costs. The agencies’ reliance on requests for jurisdictional determinations in 

fiscal years 2009–2010 as a baseline for the Proposed Rule’s economic impacts skews the 

effects downward. It is widely known that economic activity was severely constrained 

and construction activity was at a low point during that time due to the recession. For 

example, per U.S. Census Bureau data on seasonally adjusted monthly total construction, 

 

26 Review of2014 EPA Economic Analysis of Proposed Revised Definition of Waters of the United States, Dr. 

David Sunding, May 15, 2014
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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the average monthly spending on construction for that two-year baseline period was 

lower than any month since 2002.27 (p. 10)

Agency Response: The agencies have updated permit data to account for the 

referenced recession. See the Economic Analysis for the final rule and the Summary 

Response in this section, as well as under Topics 11, 11.3, and 11.4, for details on 

how the agencies have updated the economic analysis.

California Central Valley Flood Control Association (Doc. #19571)

11.2.52D. If adequate guidance and permit assistance are not provided, the Economic 

Analysis for this rule must accurately assess the impact of these rules without 

adequate guidance.

Currently, the Economic Analysis for this rule states, “Any incremental costs for routine 

maintenance of waterways (such as drainage ditches that might newly meet the definition 

of tributary as proposed in this rule) incurred by local, state, or federal authorities would 

likely be minimal because of the general permits that the Corps issues to reduce the 

regulatory requirements for these minor activities.” This is simply untrue. The 

Association in this letter has identified multiple additional costs incurred by the likely 

increase in landside levee permitting. Additionally, there are likely to be economic, 

public safety, and public health costs associated with the proposal that have not been 

recognized or explored in the analysis.

The Association also begs that perspective be applied to considerations of cost. An 

increase of project costs by $1 million may seem minor, in the scheme of public works 

projects. However, recall that some Central Valley and California flood control agencies 

may have maintenance budgets of $50,000 or less. Flood control agencies must borrow 

the money for special projects from commercial banks. An additional $1 million could 

mean the difference between loan approval and loan denial.

It is not clear from the rule package as proposed that the Corps will be issuing new 

general permits or a Regulatory Guidance Letters for local governments working on 

public safety projects. The economic impacts analysis states that coverage by general 

permits is “routine”; however, that has not been the experience of the local agencies that 

operate and maintain California’s flood control efforts. Particularly for “special projects,” 

such as plant remediation, project-specific permits are nearly always required. In 

combination, these rules mean that levee projects will more often require permitting, and 

costs will not be minimal.

As stated earlier, the Association objects to this rule, which will expand the Corps’ and 

EPA’s jurisdiction to the entirety of California’s Central Valley and Delta. The economic 

 

27 U.S. Census Bureau, Construction Spending: Annual Rate for Total Construction: U.S. Total—Seasonally 

Adjusted Total Construction [Millions of Dollars], Period: 2006 to 2014, Data Extracted on: May 14, 2014.
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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analysis provided by EPA simply fails to capture the full costs, and fails to provide 

perspective as to the impacts of these costs on flood control and reclamation districts. 

Minimally, the Association requests and requires that the rule be withdrawn and repromulgated alongside more permitting assistance and more general permits, as well as 

additional, helpful guidance from the Corps that is specific to drainage ditches in 

California’s Central Valley and Delta. (p. 7)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. This rule does not change current permit programs. 

See the Summary Response in this section, as well as under Topics 11, 11.3, and 

11.4, for details on the current approach to the economic analysis.

Butte County Administration, County of Butte, California (Doc. #19593)

11.2.53I. The agencies have not provided an adequate or comprehensive economic analysis, 

and must undertake a more complete economic analysis prior to promulgating the 

rule.

The EPA’s Economic Analysis for the proposed “waters of the United States” rule fails to 

provide a reasonable assessment of the proposed rule’s costs and benefits. The Economic 

Analysis suggests that the proposed rule will increase overall jurisdiction under the CWA 

by only about 3 percent. But the EPA arrives at this percentage using a questionable 

methodology that only accounts for the Section 404 program, relies on figures 

extrapolated from statistics from FY 2009-2010 (a period of extremely low construction 

activity during one of our nation’s greatest recessions), and fails to account for the 

universe of waters and features for which landowners have not previously sought CWA 

permits. Even the agencies note that “there is uncertainty and limitations associated with 

the results,” due to data and information gaps, as well as analytic challenges. The analysis 

does not quantify all possible costs and benefits, and values are meant to be illustrative, 

not definitive.28 Relying on this percentage throughout the Economic Analysis, the EPA 

systematically and hugely underestimates the impact of the proposed rule’s new 

definition of “waters of the United States.”

The EPA’s calculations of incremental costs and benefits are also deficient. The EPA’s 

cost analysis is focused on costs associated with the section 404 program and largely 

ignores the cost impact of the changes to other CWA regulatory programs due to lack of 

data. Moreover, the benefit calculation is based on a problematic methodology that relies 

on studies that are largely irrelevant, do not provide accurate estimates of benefits, and 

were conducted 10-30 years ago.

 

28 Congressional Research Service (CRS), “EPA and the Army Corps’ Proposed Rule to Define ‘Waters of the 

United States’”, September 10, 2014 p. 11
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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As a result of the incompleteness and inaccuracies of the EPA’s Economic Report, we 

believe it is necessary for to recalculate the economic analyses to more accurately project 

the impacts of the proposed rule, and identify effects that the EPA failed to consider the 

first time. A rule of this magnitude deserves a much more accurate and defensible 

analyses and accounting of future costs and benefits. (p. 2-3)

Agency Response: The agencies have updated the economic analysis to reflect 

public comments and the final rule. See the Summary Response in this section, as 

well as under Topics 11, 11.3, and 11.4, for details on the current approach to the 

economic analysis.

National Association of Towns and Townships (Doc. #1864)

11.2.542. The Agencies Have Not Provided an Adequate or Comprehensive Economic 

Analysis, and the Regulated Community Needs Adequate Time to Undertake a 

More Complete Economic Analysis.

The EPA’s Economic Analysis for the proposed waters of the United States rule fails to 

provide a reasonable assessment of the proposed rule’s costs and benefits. The Economic 

Analysis suggests that the proposed rule will increase overall jurisdiction under the CWA 

by only 2.7 percent. But the EPA arrives at this percentage using a questionable 

methodology that only accounts for the Section 404 program, relies on figures 

extrapolated from statistics from FY 2009-2010 (a period of extremely low construction 

activity during one of our nation’s greatest recessions), and fails to account for the 

universe of waters and features for which landowners have not previously sought CWA 

permits. Relying on this percentage throughout the Economic Analysis, the EPA 

systematically and hugely underestimates the impact of the proposed rule’s new 

definition of “waters of the United States.” 

The EPA’s calculations of incremental costs and benefits are also deficient. The EPA’s 

cost analysis is focused on costs associated with the section 404 program and largely 

ignores the cost impact of the changes to other CWA regulatory programs due to lack of 

data. Moreover, the benefit calculation is based on a problematic methodology that relies 

on studies that are largely irrelevant, do not provide accurate estimates of benefits, and 

were conducted 10-30 years ago.

As a result of the incompleteness and inaccuracies of the EPA’s Economic Report, it is 

necessary for members of the public to provide their own economic analyses to project 

the impacts of the proposed rule, and identify effects that the EPA failed to consider. 

Additional time is required for commenters to gather the necessary data and develop 

sound economic methodology to properly assess the proposed rule’s likely increase in 

jurisdiction as well as its projected costs and benefits. The comment period should be 

extended so that the public can adequately assess the economic implications of the 

proposed rule. (p. 2-3)
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Agency Response: The agencies have updated the economic analysis to reflect 

public comments and the final rule. See the Summary Response in this section, as 

well as under Topics 11, 11.3, and 11.4, for details on the current approach to the 

economic analysis.

North Houston Association, et al. (Doc. #8537)

11.2.55The unreasonable extension of federal jurisdiction will have another adverse effect. There 

is no reasonable expectation of significant additional federal money for support of the 

increased work load at the Corps. As a result, even with the best efforts of federal 

employees, the time and cost to obtain permits will increase. This will further 

disincentivise the move to green infrastructure and service and act as a drag on the 

economy of the Houston Region. (p. 3)

Agency Response: The agencies were unable to quantify the potential reduction in 

workload due to increased certainty. See the Summary Response under Topic 11.3 

for details on the current approach to the economic analysis. The agencies 

recognize that cities have turned to green infrastructure, using existing natural 

features or creating new features that mimic natural hydrological processes that 

work to infiltrate or evapotranspirate precipitation, to manage stormwater at its 

source and keep it out of the conveyance system. These engineered components of

stormwater management systems can address both water quantity and quality 

concerns, as well as provide other benefits to communities. This rule is designed to 

avoid disincentives to this environmentally beneficial trend in stormwater 

management practices.

California State Association of Counties (Doc. #9692)

11.2.56Cost Benefit Analysis: CSAC believes the Economic Analysis for the proposed Rule is 

insufficient because it only a c m t s for federal agency costs, The Economic Analysis did 

not account for increased federal agency costs associated with the need to increase the 

agencies' staffing levels to handle the increased workload resulting from the potential we 

see for expanding CWA authority. The Economic Analysis also did not account for the 

likelihood that the agencies' staffs will not be increased to handle the increased workload, 

resulting in costs on counties associated with delays caused by permit processing. The 

analysis contends that the new definition of WOUS would have minimal costs to MS4 

permittees and agriculture, but they did not take into account various costs and activities. 

CSAC believes at a minimum the Economic Analysis should be amended to account for 

the following additional costs at the state, regional and local levels due to the expanded 

definition of WOUS: increased federal, state and local agency staffing levels to process 

the increased number of permits; lost capacity and for function of infrastructure due to 

delays caused by additional permit processing times and the likelihood of federal, state 

and local agencies being unable to get the funding needed to handle the increased permit 

load; increased permit outreach, and BMPs reporting; and permitting costs, including 

compensatory mitigation. (p. 2)
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Agency Response: The final rule is narrower in scope than the existing 

regulations. See the Summary Response in this section, as well as under Topics 11, 

11.3, and 11.4, for details on the current approach to the economic analysis.

Kentucky League of Cities (Doc. #15227)

11.2.57One of the most pressing concerns with the proposed rule is the lack of a thoroughly 

vetted economic analysis. The EPA and the Corps have yet to conduct a full economic 

analysis on the cost of the impact of the proposed on all CWA programs beyond the 404 

program, including the 402 National Pollutant Discharge Elimination System (NPDES) 

program, 303 Water Quality Standards, total maximum daily loads (TMDLs), stormwater 

and green infrastructure. According to the EPA and the Corps' own Economic Analysis 

of the Proposed Revised Definition of Waters of the US, the impact of the definitional 

change is largely unknown because the findings are "incomplete" due to the "data and 

methodological limitations, as well as the inherent assumptions in each component of the 

analysis.'" proposed rule of this magnitude should not base its limited economic analysis 

on flawed assumptions with incomplete data.

As previously mentioned, the data sets from the limited economic analysis performed by 

EPA and the Corps is also a concern for local communities. The limited economic 

analysis performed by EPA and the Corps on the proposed rule indicated that about three 

percent (3%) more would be found jurisdictional under the proposed definitional change. 

Unfortunately, EPA based this calculation on Section 404 permits submitted for review 

rather than waters that would be jurisdictional under the proposed rule, where permits are 

not currently required. An additional concern is the calculation was based off of 2009-

2010 data, which was the height of the Great Recession. This time period marked an alltime low for construction and other types of development. The limited economic analysis 

performed by EPA and the Corps used faulty and incomplete data during a poor sample 

time period. The uncertainty brought about by such a poor economic analysis should lead 

to further consideration of withdrawing the proposed rule.

The direct and indirect costs on local governments of determining whether or not 

Municipal Separate Storm Sewer Systems (MS4s) and other stormwater systems and 

components comply with the proposed rule are of significant concern. If a determination 

is made that an MS4 system is a jurisdictional water, this could lead to additional permit 

application costs, wetland and stream mitigation costs, and could result in project delays. 

There is absolutely no reason to subject stormwater systems to Section 404 permits on a 

nationwide " basis and add further delays and costs to an already cumbersome permitting 

process. (p. 1-2)

Agency Response: The exclusion for stormwater control features in paragraph

(b)(6) of the rule is intended to address engineered stormwater control structures in 

municipal or urban environments. Stormwater control features are designed to 

address runoff that occurs during and shortly after precipitation events; as a result, 

stormwater features that convey runoff are expected to only carry ephemeral or 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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intermittent flow. For ease of implementation, the agencies want water features to 

be dealt with under only one provision of the rule; the agencies do not expect the 

scope of ditches excluded to be different under the exclusion of ditches at paragraph 

(b)(3) of the rule and (b)(6).See the Summary Response in this section, as well as 

under Topics 11, 11.3, and 11.4, for details on the current approach to the economic 

analysis, including permit period data and effect on MS4s.

The United States Conference of Mayors, et al. (Doc. #15784)

11.2.58Moreover, we remain concerned that the data used in the analysis is insufficient. The 

economic analysis used in 2009-2010 data of Section 404 permit applications as a basis 

for examining the impacts of the proposed rule on all CWA programs. It is insufficient to 

compare data from the Section 404 permit program and speculate to the potential impacts 

to other CWA programs. Additionally, 2009-2010 was at the height of the recession 

when development (and other types of projects) was at an all-time low. The poor sample 

period and limited data creates uncertainty in the analysis’s conclusion. (p. 3) 

Agency Response: See Summary Response in this section on how the agencies

updated the jurisdictional determination data to reflect more current information.

Oklahoma Municipal League (Doc. #16526)

11.2.59The Economic Analysis of Proposed Revised Definition of Waters of the U.S. fails to 

consider the proposal's true costs to state and local governments. By limiting its financial 

review to 404 programs, it ignores the proposal's significant economic impact on all 

programs under the CWA and other water-quality regulations.

Additionally, the Economic Analysis is scientifically unsound due to its restricted 

consideration of data to submitted 404 permits rather than the full range of permitting 

requirements that would exist under the proposed rule. Costs arising under enlarged 

permit application and compliance requirements are direct and substantial economic 

burdens to state and local governments. (p. 2)

Agency Response: The agencies did take into account CWA programs beyond 

404. See the Summary Response in this section, as well as under Topics 11, 11.3, 

and 11.4, for details on the current approach to the economic analysis.

Michigan Association of Conservation Districts (Doc. #16583)

11.2.60CWA Jurisdiction. EPA and USAGE have continued to state that the proposed rule does 

not increase CWA jurisdiction but they have also stated that there's an estimated 3% 

increase in jurisdiction after completing their economic analysis. The amount of 

expansion is difficult to predict but if the proposal were to pick up all adjacent waters and 

most isolated wetlands and ditches it would be significantly greater than 3% as estimated 

by EPA. The ambiguity regarding the 3% estimate raises significant questions about the 

economic analysis. For example, how it was conducted, what methodology was used, 
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51

what will be the specific impact in each state. We recommend a thorough analysis of the 

impact of the proposed rule be conduct to include specific information for each state that 

includes the number and location of new jurisdictional acres and the marginal impact on 

costs and revenue of these acres. Therefore, MACO is in agreement with NACD's

opinion that a 3% increase in jurisdictional areas is significant considering the number of 

acres and the associated potential economic impact. (p. 3)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See the Summary Response in this section, as well as 

under Topics 11, 11.3, and 11.4, for details on the current approach to the economic 

analysis.

Maine Municipal Association (Doc. #16630)

11.2.61The economic analysis document accompanying the proposed rule indicates the 

regulatory changes will likely increase costs to all branches of government. If the 

implementation of this new concept of "neighboring" waterbody results in broader 

EPA/Corps jurisdiction, the fiscal note underestimates the financial impact of compliance 

at the local level. Expanding jurisdiction to include ditches, as referenced above, would 

be a significant broadening of the existing rule, with resultant sizable impacts on 

municipal staff budgets. By providing such a wide estimate of the total incremental costs 

associated with the rule, estimated by your agencies at between $1 62 million to $279 

million annually, it appears that identifying the exact impact of this rule will be difficult. 

Even the higher range of the fiscal note seems conservative, and a rule that has as its goal 

providing maximum clarity to the public ought to result in a more precise financial 

impact assessment. (p. 2)

Agency Response: The agencies have used the feedback we received from public 

outreach efforts as the source of early guidance and recommendations for refining 

the proposed rule. Specifically, stakeholder input received during public outreach 

events in combination with the written comments received during the public 

comment period have reshaped each of the definitions included in the final rule, 

ultimately with the goal of providing increased clarity for regulators, stakeholders, 

and the regulated public to assist them in identifying waters as “waters of the United 

States.” This rule is narrower in scope than existing regulations and historical 

practice. See Summary Response under Topic 13.2.4 (Unfunded Mandates Reform 

Act) on the effect to other branches of the government. See the Summary Response 

in this section, as well as under Topics 11, 11.3, and 11.4, for details on the current 

approach to the economic analysis.
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Wyoming Association of Conservation Districts (Doc. #17348)

11.2.624. Further, the q/a fact sheet 7 includes the following as it pertains to expansion over 

existing regulation:

3. Doesn't the Economic Analysis indicate jurisdiction would expand by at least 3 percent 

compared to the existing regulation?

ANSWER: The economic analysis examines the costs and benefits of the proposal. In 

doing so, the agencies compared the proposed rule to current practices. This analysis 

indicates that there would be a three percent increase, or roughly 1500 acres nationwide, 

in cases where the agencies would find waters jurisdictional. This increase is largely a 

result of clarifying the current confusion and difficulty of assessing "other waters." When 

the proposed rule is compared to the agencies' existing regulations, however, the 

proposed rule reflects a substantial reduction in waters protected by the CWA as a 

consequence of recent decisions of the Supreme Court. (p. 3)

Agency Response: This rule is narrower in scope than existing regulations and 

historical practice. See Summary Response under Topic 11 (Costs/Benefits), as well 

as Topic 10 (Legal Analysis).

11.2.63Cost Analysis

The Association believes that the cost analysis 16 failed to take a hard look at the 

economic impact of the proposed rule on the regulated community as well as state and 

local governments. 

EPA on one hand argues that 60% of the nation's waters are not clearly protected under 

today's jurisdictional requirements. EPA suggests that this rule will provide protection, 

pro se, to all of these waters. Yet EPA claims an increase of 3% or an estimated 1,500 

acres in jurisdiction after completing the analysis. So the Association assumes, the impact 

in increased jurisdictional waters would range between the 3% and 60% of waters. Is it 

then assumed that of the 60% "not clearly protected waters" 57% will remain "not clearly 

protected"?

Further, the cost analysis discussion as it relates to sections 303 and 305 in essence 

claims that since states typically incorporate what may have been non-jurisdictional into 

their water quality standards, water quality assessment reports and TMDL/watershed 

programs, the rule would essentially have no impact.

While the Association concurs that the state and local governments do address water 

quality efforts within their local watershed(s) on what would arguably be considered nonjurisdictional waters, this currently is a matter of practice due to EPA's expectations. 

There are a number of waters being addressed within these programmatic processes that 

the Association would argue are non-jurisdictional.

The Association believes the cost analysis fails to recognize the significant cost savings

to the federal, state and local governments should those waters appropriately non-
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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jurisdictional be left to state and local government entities to address. For example, as 

indicated earlier, due to EPA requirements the state currently spends on average 

$150,000 per TMDL. Many of these would encompass waters that the Association 

believes would fall outside EPA jurisdiction and therefore may not require the costly and 

expensive processes. Yet all of these tributaries are evaluated and best management 

practices are implemented locally at a much more efficient rate.

Further, as discussed below in the Rapanos decision, the cost of 404 permitting can be 

quite extensive adverse to claims made by EPA in this proposed rulemaking:

The burden of federal regulation on those who would deposit fill material in locations 

denominated "waters of the United States" is not trivial. In deciding whether to grunt or 

deny a permit, the U.S. Army Corps of Engineers (Corps) exercises the discretion of an 

enlightened despot, relying on such factors as "economics," "aesthetics," "recreation," 

and "in general, the needs and welfare of the people," 33 CFR § 320.4(a) (2004).FN1 The 

average applicant for an individual permit spends 788 days and $271,596 in completing 

the process, and the average applicant for a nationwide permit spends 313 days and 

$28,915-not counting costs of mitigation or design changes. Sunding & Zilberman, The 

Economics of Environmental Regulation by Licensing: An Assessment of Recent 

Changes to the Wetland Permitting Process, 42 Natural Resources J. 59, 74-76 (2002). 

"[O]ver $1.7 billion is spent each year by the private and public sectors obtaining 

wetlands permits." Id., at 81. These costs cannot be avoided, because the Clean Water 

Act "impose[s] criminal liability," as well as steep civil fines, "on a broad range of 

ordinary industrial and commercial activities." 2215Hanousek v. United States, 528 U.S. 

1102, 1103, 120 S. Ct. 860, 145 L.Ed.2d 710 (2000) (THOMAS, J., dissenting from 

denial of certiorari). In this litigation, for example, for backfilling his own wet fields, Mr. 

Rapanos faced 63 months in prison and hundreds of thousands of dollars in criminal and 

civil fines. See United States v. Rapanos, 235 F.3d 256, 260 (C.A.6 2000).29 (p. 6-7)

Agency Response: See Summary Response for this section (Topic 11.2). This rule 

is narrower in scope than existing regulations and historical practice. An increase 

of approximately 3% represented the agencies’ estimate of increased jurisdiction 

over recent practice. The agencies use the Sunding & Zilberman article referenced 

above, as well as updated jurisdictional determination data and permit application 

data from the Corps to estimate permitting costs related to the rule. See the 

Economic Analysis and the Summary Response under Topic 11.4, and the 

Summary Response under Topic 11.3.

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

11.2.64Sand, Stone, and Gravel Operations - Aggregates, such as sand, stone, and gravel, are the 

chief ingredient in asphalt pavement and concrete. They are used in nearly all residential, 

 

29 Rapanos v. United States, 547 U.S. 715, 720-22 (2006)
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commercial, and industrial building construction and in most public works projects, 

including roads, highways, bridges, dams, and airports. Many aggregate deposits were 

created by water, so the deposits are often located near water. The availability of future 

sources of high quality aggregates is now a significant problem in many areas of the 

country, and permitting issues have made the problem more acute. This proposed rule 

will make matters worse. A change in what is considered jurisdictional can have a 

significant impact on aggregate reserves, which affects the life of facilities and delays the 

start-up of new sites. The concern is not only that these facilities will face more 

uncertainty and significant new costs, but that other industries will also be affected. 

Without a supply of readily available aggregates, the construction of highways, public 

works, and residential and commercial building projects would be seriously impacted. (p.

18-19)

Agency Response: This rule is narrower in scope than the existing regulations and 

historical practice. See Summary Response in this section.

Georgia Chamber of Commerce (Doc. #14430)

11.2.65Economic Impact Analysis

This proposed rulemaking is a wide ranging measure that EPA claims will have an annual 

national cost of $162-279 million, while delivering $318-514 million in benefits.

Chamber members have little confidence in those outcomes ever being achieved.

The vagueness of this rule makes any informed analysis of costs and benefits all but 

impossible to undertake.

There is a big difference between theoretical modelling outcomes and the real business 

costs that will be borne by individuals and businesses left to grapple with the 

inefficiencies of federal government agencies and the layers of uncertainty evident in this 

draft rule.

The Chamber has reviewed a critique of EPA’s Economic Analysis of Proposed Revised 

Definition of Waters of the United States prepared for the Water Advocacy Coalition by 

David Sunding, Ph.D. and is alarmed by the summary and conclusions of his report:

The Environmental Protection Agency’s (EPA) March 2014 Economic Analysis of 

Proposed Revised Definition of Waters of the United States (EPA analysis) 

presents the agency’s estimates of the probable costs and benefits associated with 

a definitional change to the term “waters of the United States” used throughout 

Clean Water Act (CWA) programs. EPA is proposing an expansion of the 

definition of the term “waters of the United States” to include categories of 

waters that were previously never regulated as waters of the United States, such 

as all waters in floodplains, riparian areas, and certain ditches. The inclusion of 

these waters will broaden the scope of the CWA and will increase the costs 

associated with each program. Unfortunately, the EPA analysis relies on a flawed 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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methodology for estimating the extent of newly jurisdictional waters that 

systematically underestimates the impact of the definitional changes. This is 

compounded by the exclusion of several important types of costs and the use of a 

flawed benefits transfer methodology, which EPA uses to estimate the benefits of 

expanding jurisdiction. The errors, omissions, and lack of transparency in EPA’s 

study are so severe as to render it virtually meaningless. The agency should 

withdraw the economic analysis and prepare an adequate study of this major 

change in the implementation of the CWA.

The estimates associated with section 404 compensatory wetland mitigation, 

which contain some of the most glaring errors, represent approximately 40% of 

the total costs and 85% of the total benefits. This suggests the entire analysis is 

fraught with uncertainty as to render it insufficient for evaluating programmatic 

impacts of this scale. Estimates of economic impacts to other programs rely on an 

incremental jurisdiction determination that is deeply flawed. Additionally, the 

systematic exclusion of various costs and benefits ignores important impacts to 

permit applicants and permitting agencies.

In addition to the methodological errors discussed above, EPA’s analysis suffers 

from a lack of transparency. Explanations of calculations, basic assumptions, and 

discrepancies between various EPA analyses are rarely provided. This is 

particularly troubling given that the entire report is based on records from the 

Corps’ internal ORM2 database, which is unavailable to outside entities. The 

author of this report spent considerable time replicating the calculations used in 

the analysis, but was unable to vet the validity of the underlying data. Any errors 

or inconsistencies in documentation, sample selection, or data extraction are 

necessarily overlooked. These shortcomings indicate that a more thorough 

analysis is required to properly assess the economic impacts of a definitional 

change.

The Chamber supports Dr. Sunding’s recommendation that:

The agency should withdraw the economic analysis and prepare an adequate 

study of this major change in the implementation of the CWA. (p. 17-18)

Agency Response: See the Summary Response in this section, as well as under 

Topics 11, 11.3, and 11.4 for information on how the agencies are updating the 

economic analysis.

Atlantic Legal Foundation (Doc. #15253)

11.2.66(...) The cost-benefit analysis is deeply flawed, employing decades old cost estimates 

that were not adjusted for inflation, or current economic and market conditions.

The proposed rule will place undue regulatory burdens and limitations on persons

attempting to use their land responsibly and efficiently, would add new regulatory dead 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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weight to the economy and would produce no meaningful gains for the environment, the 

economy or the nation. (p.2-3)

Agency Response: The agencies have updated costs for inflation, as well as 

current conditions in the economy. See the Summary Response in this section, as 

well as under Topics 11, 11.3, and 11.4 for information on how the agencies are 

updating the economic analysis.

11.2.67b. Estimated Costs

Under the proposed rule, estimated permit application costs are projected to impact only 

1,332 additional acres. The agencies derived this number by manipulating and excluding 

several potential sources of permit costs and acreage. First, this estimate is based upon 

the artificially low projected three (3%) percent increase in jurisdiction. Thus, if the 

amount of “other waters” rises, the quantity of impacted acreage would likewise increase. 

Second, the acreage estimation only takes into account section 404 permits, ignoring any 

permits issued under other sections that may be impacted by the proposed rule, such as 

section 402.30 Finally, this estimate only pertains to permits issued for permanent impacts 

and excludes “ecological restoration and conversion activities, as well as temporary 

impacts.”31 We believe all of these additional sources or permit jurisdiction should be 

included in the calculation in order to make an accurate projection of the impact of the 

proposed rule. (p. 7)

Agency Response: The agencies have updated the Economic Analysis with current 

data. See the Summary Response in this section on other waters, and Topic 11.4 on 

non-404 aspects of the economic analysis, including 402 permits.

11.2.68c. Estimated Benefits

To calculate “benefits” of the proposed rule, the report took a benefits transfer approach 

that combined data from ten different studies that had attempted to “assess the value of 

waters expected to provide services similar to the waters incrementally protected under 

the proposed rule.” These studies employed the contingent valuation method (CVM), 

where “willingness to pay”32 (WTP) per household was measured via surveys that 

assessed respondents’ stated WTP to preserve certain wetlands.33 Based on these studies, 

the agencies determined that the annual WTP for all regional acres ranged from $0.36 to 

$3.86 depending on the region, with a mean of $2.30.34 Extrapolating from these figures, 

 

30 See id. at 6 (“Permitting for construction and development stormwater, concentrated animal feeding operations

(CAFOs), and pesticide application are three areas of CWA 402 implementation where there may be potential new

costs.”).

31 Id. at 14.

32 Id. at 21.

33 See id. at 20.

34 See id. at 29.
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the agencies claimed that, “on a per acre basis, benefits vary by region, ranging from 

approximately $26,000 to $287,000 per year with an overall average of $193,000.”35

This method is fundamentally flawed. First, the studies relied upon are outdated: the most 

recent study used was published in 2000 with the rest were published from 1986 to 

1999.36 Next, many in the scientific community find CVM to be both inaccurate and 

improper for large scale evaluations.37 These studies often suffer from hypothetical 

response biases which lead to inflated values, strategic questioning, large disparities 

between willingness to pay and willingness to avoid, and difficulties in verifying data.38

Finally, even the agencies acknowledge that in general, CVM “elicits ‘stated preferences’ 

rather than revealed (or actual) preferences, which is not ideal for quantifying benefits”39

and that “it is important to recognize up front that there is uncertainty and limitations 

associated with the [report’s] results.”40 Furthermore, the report concedes that WTP may 

be incomparable between the respondents from the older studies and the individuals who 

actually use the services in areas potentially affected by increased assertion of 

jurisdiction.41 Aggregating household WTP from a few outdated sources to arrive at a 

nationwide average ignores these methodological flaws, allowing the agencies to arrive at 

a convenient number that may bear little resemblance to the actual value of an acre of 

mitigated land. We believe basing a broad expansion in federal jurisdiction on such a 

flawed analysis is unsound. (p. 7-9)

Agency Response: See Summary Response in Topic 11.3.2 for how the agencies 

adjusted the 404-related benefits.

11.2.694. Economic Report

The economic report relied upon for the proposed rule states that the revised definition of 

“waters of the United States” will only increase federal jurisdiction by three (3%) 

 

35 Id.

36 See id., app. B at 54–58.

37 See, e.g., Jerry Hausman, Contingent Valuation: From Dubious to Hopeless, 26 J. OF ECON. PERSPECT. 43, 44 

(2012) (“Responses to contingent valuation surveys for a single environmental issue are typically based on little 

information, given the limited time involved for each survey respondent. Thus, the results of such surveys are 

unlikely to be accurate predictors of informed opinion. . . Contingent valuation does not provide a good basis for 

either informed policymaking or accurate damage assessments in judicial proceedings.”); see also David W. Eberle 

& Gregory F. Hayden, Critique of Contingent Valuation and Travel Cost Methods for Valuing Natural Resources 

and Ecosystems, J. ECON. ISSUES 649, 683 (1991) (“The CV [contingent valuation] and TC approaches lack 

methodological, theoretical, and empirical grounding. Their continued use will mislead valuation attempts and 

frustrate policy intended to restore a viable environment.”).

38 See Hausman, supra, at 43.

39 Economic Analysis at 20.

40 Id. at 21.

41 See id. at 20.
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percent.42 Furthermore, the rulemaking documents assert that the proposed rule will 

impose few indirect costs and that those costs are easily outweighed by the potential 

benefits. The evidence supporting these claims is scant. Moreover, the economic report 

repeatedly stresses that its cost/benefit estimates are incomplete.43 Nowhere is there any 

meaningful attempt to capture the potential costs of expanded jurisdiction. Instead, the 

report mainly focuses on possible benefits including “ecosystem services” such as 

biodiversity, wildlife habitat, and recreational use.44 Most of these alleged economic 

benefits are vague and difficult to monetize, as the report concedes45, and provide little to 

justify the potentially unlimited jurisdictional authority the agencies propose. We believe 

any proposed regulation should be supported by a rigorous cost/benefit analysis. The 

economic report for the proposed rule is unpersuasive.

a. Increase in Jurisdictional Waters.

The three (3%) percent increase in jurisdictional wetlands estimated by the agencies was 

based on a limited study; however, that study fails to account for (1) the proposed rule’s 

expanded definition of “waters of the United States” and (2) the agencies’ enhanced 

incentives to increase substantially the number of “other waters.”46

Jurisdiction was considered for three separate categories of water bodies: streams, 

wetlands, and “other waters.” According to the report, “other waters” are defined as nonnavigable waters that lack a direct surface connection to other waterways.47 During the 

two-year period none of the “other waters” were considered jurisdictional, as opposed to 

nearly 100% of streams and wetlands. The economic report’s authors then measured 

1,000 individual “other waters” during the two-year period and found 17% of them to be 

jurisdictional.48

 

42 U.S. ENVIRONMENTAL PROTECTION AGENCY & U.S. ARMY CORPS OF ENGINEERS, ECONOMIC 

ANALYSIS OF PROPOSED REVISED DEFINITION OF WATERS OF THE UNITED STATES 12 (2014) 

(hereafter “Economic Analysis”).

43 See id. at 2 (“The economic analysis is necessarily based on readily available information and the resulting cost 

and benefit estimates are incomplete.” (emphasis added)); id. at 17 (“The Corps also provided an estimate of 43,000 

acres of wetland mitigation and 530 miles of stream mitigation period . . . This total may be incomplete.” (emphasis 

added)); see also, id. at 14 (“The agencies recognize that time and impact avoidance and minimization costs can be 

significant for some share of permit applicants. However . . . the agencies did not estimate compliance costs for 

these categories as part of the economic analysis.”).

44 See id. at 8.

45 See id. (“The ecosystem services identified . . . have no market values. Some are closely related to market goods, 

which may facilitate valuation, whereas others are far removed from the end product of market value.”).

46 The baseline data supporting the economic report is derived from a two-year period (2009-2010), which was the 

most economically depressed since the Great Depression of the 1930s and was characterized by extremely low 

construction activity. Using period that as a baseline to estimate may skew the incremental acreage impacted by the 

proposed rule.

47 See Economic Analysis. at 11.

48 See id. at 12.
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It is highly probable that the baseline data during the two-year period contains an 

artificially low number of reported “other waters.” Under the original framework no 

“other waters” could be determined to be jurisdictional; thus, neither the agencies, 

landowners, nor developers felt compelled to seek permit determinations because during 

the study period this form of “reporting” was deemed unnecessary, and this would 

explain the relatively low number of “other waters” recorded.49

The authors of the report concede that the category of “other waters” may be 

unrepresentative, stating, “if a significant amount of the [other] waters are not included in 

the FY 2009-2010 data because of presumed non-jurisdiction on the part of landowners 

and developers, then the overall percent increase in [other] waters that become 

jurisdictional would be somewhat greater” (emphasis added).50 This is an understatement. 

Even a modest increase in the amount of “other waters” recorded would result in a 

significant expansion of jurisdiction. The small number of reported “other waters” 

reflects a previously understood standard that property owners could rely upon. The 

proposed framework for determining jurisdiction may call into question the 

categorization of almost any body of water and thus landowners will have an incentive to 

seek permit determinations to reduce the uncertainty regarding the status of their 

property. The two-fold increase in “other waters” the EPA estimated does not capture the 

severity of this problem. If the number of “other waters” reported were to approach that 

of streams and wetlands (which is plausible), expansion of jurisdiction would be 

considerable. (p. 6-7)

Agency Response: While it is possible that the category of “other waters” may 

increase due to entities not previously seeking jurisdictional determinations, the 

agencies have taken this possibility into consideration when conducting the 

economic analysis. However, this rule is narrower than existing regulations and 

historical practice, and there is limited evidence that entities chose to change 

historical behavior as opposed to seeking clarification in recent years. See the 

Summary Response in this section on how the agencies account for potential 

changes in jurisdictional determinations.

International Brotherhood of Boilermakers, et al. (Doc. #15373)

11.2.70Despite the Agencies' reassurances, the Boilermakers believe that the Proposed Rule will 

result in a significant expansion of the jurisdictional scope of what will be considered a 

"water of the United States." For example, the Agencies are proposing to find that all 

tributaries and "adjacent waters" are jurisdictional, even ephemeral and intermittent 

streams that do not have continuous flow. Currently, because these types of waters are 

subject to a case-specific jurisdictional determination, at least some of the waters, in fact, 

 

49 Total reported agency records showing jurisdictional status of aquatic resources: 95,476 streams; 38,280 wetlands; 

8,209 “other waters.” See id.

50 Economic Analysis at 43.
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are found not to be jurisdictional. Thus, by any measure, the unilateral declaration that all 

tributaries and adjacent waters are jurisdictional extends the scope of waters classified as 

"waters of the United States." Therefore, the Agencies' assumption that the Proposed 

Rule will result in a narrowed jurisdictional scope is misplaced and renders the Economic 

Analysis fatally flawed.

As part of any final rule, the Agencies must reconsider and reissue an Economic Analysis 

that recognizes the expansion of water bodies that will be subject to regulation under the 

CWA. Moreover, such Economic Analysis must properly recognize and assess the fact 

that unilateral classification of all tributaries and adjacent waters as "waters of the United 

States," undoubtedly, will increase permitting and compliance requirements under the 

CWA. (p. 2-3)

Agency Response: This rule is narrower in scope than existing regulations and 

historical practice. The agencies have revised the definitions of tributaries and 

adjacency to provide greater clarity. See the Summary Response in this section, as 

well as Topic 11.

11.2.71B. The Agencies Underestimate the Indirect Costs Associated with the Proposed 

Rule

The Agencies must take into consideration the full scope of indirect costs associated with 

the Proposed Rule. In particular, the Agencies must consider the indirect impacts on 

employment by virtue of permitting delays, higher risks of project failure, and effects on 

overall employment levels due to higher mitigation and compliance costs affecting 

overall project budgets. The Economic Analysis describes the potential indirect costs as 

including: 

This proposed rule could result in new indirect costs on regulated entities such as 

the energy, agricultural, and transportation industries; land developers, 

municipalities, industrial operations; and on governments administering 

regulatory programs, at the tribal, state and federal levels ... These indirect costs 

may include " application costs, associated environmental compliance costs, 

wetlands mitigation, stream mitigation, and project re-design and relocation 

expenses. In addition, there would be program management, training, and 

associated environmental compliance costs to government associated with 

administering the CWA.51

Fundamentally, such a narrow scope of the indirect costs associated with the Proposed 

Rule is flawed by the lack of any consideration of adverse impacts on employment. The 

Agencies must reevaluate the economic impact of the Proposed Rule by including 

employment-specific factors related to permitting delays, increased project costs, and 

most importantly, a decrease in overall project availability because of the increased 

 

51 Id. at 6 (emphasis added).
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compliance costs associated with constructing energy projects in light of the new rule. (p. 

3)

Agency Response: This rule is narrower in scope than existing regulations and 

historical practice. The agencies conducted an illustrative economic analysis based 

on changes relative to recent practice. However, impacts on employment are not 

within the scope of this analysis. See Summary Responses under Topic 11 and 

corresponding subsections.

11.2.72C. Agencies' Assertions of "Economic Benefits" from Additional Regulatory 

Certainty are Overstated

The Agencies assert that the Proposed Rule's new definitions will promote greater 

certainty and that such "certainty" will lead to more willingness to invest in projects.52

The Boilermakers respectfully disagree with this assertion. In essence the Agencies are 

suggesting that the "certainty" that a project will now be subject to CWA regulation will 

make entities more willing to invest. To the contrary, uncertainty is not driven by whether 

or not a permit or compliance is required, but actually by the assertion of jurisdiction and 

resulting permitting and compliance requirements, costs, and timelines. 

An expansion of CWA jurisdiction will create more regulatory uncertainty since a 

broader range of activities will now be subject to the vagaries and delays of the Agencies' 

regulatory regime under CWA. The potential for regulatory permitting regimes, 

associated delays in permitting, and additional costs imposed as part of a regulatory 

scheme are key drivers for uncertainty and increase risk factors for investment. By 

unilaterally expanding the scope of water bodies that will become subject to CWA 

regulation, the only "certainty" that the Agencies actually have achieved is the certainty 

of higher risks in delay and costs-which, in turn, will reduce the likelihood of investment 

and cost the U.S. economy the type of jobs that are a foundation of growth. (p. 3-4)

Agency Response: Along with a narrowing of jurisdiction, the final rule also 

significantly reduces the uncertainty and number of case-specific determinations 

that will required The agencies analyzed changes in assertion of jurisdiction based 

on recent practice for the Economic Analysis. See the Summary Response in this 

section, as well as Topic 11.

11.2.73D. The Economic Analysis Fails to Accurately Articulate "Permitting Time Costs"

The Economic Analysis does not accurately articulate the permitting time costs 

associated with the Proposed Rule. The Agencies define permitting time costs to include: 

financial or opportunity costs of carrying development capital for longer periods of time; 

opportunity costs of foregone public services and benefits from not proceeding with the 

 

52 Id. at 10 (emphasis added).
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project sooner rather than later.53 There are other types of cost considerations that should 

be captured within the "permitting time costs" element. Specifically, delays in permitting 

have a consequent impact on employment rates that must be captured within the 

Economic Analysis.

Uncertainty and extended permitting periods can have significant negative impacts on the 

timing and extent of hiring activities for a project. Particularly, a project developer is 

unlikely to hire work forces for construction until there is a high likelihood of permit 

issuance and certainty as to start times. Likewise, increased expenses driven by 

regulatory requirements oftentimes result in developers cutting expenses by hiring fewer 

workers or reducing benefits. These types of costs must be recognized and addressed in 

the Economic Analysis.

The Agencies Economic Analysis also is flawed by the choice not to estimate permitting 

compliance costs because "there is not a defensible, ready basis for estimating these 

costs."' The Agencies could have (and should have) requested comment in the Proposed 

Rule on ways to estimate these costs. Therefore, the Agencies must take comment on the 

estimated time and impact avoidance and minimization costs and then revise the 

Economic Analysis to properly capture the potential for these impacts and provide both 

qualitative and quantitative analysis of the potential impacts. (p. 4)

Agency Response: See Summary Responses under Topic 11.3.1 and 11.4 for 

discussion on how the agencies address costs in the economic analysis.

11.2.74N. The Proposed Rule Fails to Streamline Permitting and Compliance Costs and 

Procedures

Core infrastructure projects now face a significant array of federal regulatory rules and 

regulations that increase the time and costs of projects. Subsequently, these increased 

costs and risks adversely affect the level and timing of employment for the development 

and maintenance of infrastructure projects. 

The compliance costs presented by the Proposed Rule are of a significant concern to the 

Boilermakers. For example, the Portland Cement Association has submitted to the 

Agencies an economic study showing that, for its cement manufacturing members, alone, 

the Proposed Rule could add nearly $73 million in compliance costs over a five-year time 

horizon. Further, based on reasonable changes in assumptions, the Portland Cement 

Association believes that compliance costs to its cement manufacturing facilities could 

range 6-om a low of $55 million to a high of $103 million. This estimate is just a single 

snapshot of the significant economic impacts that would result from the Proposed Rule. 

The simple fact is that other industrial sectors will have similar, if not higher, compliance 

costs under this Proposed Rule. 9 79 Fed. Reg. at 22,220. 

 

53 Id. at 13.
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In finalizing any new definition of "waters of the United States," the Boilermakers urge 

the Agencies to take into consideration the need to foster economic growth consistent 

with other Administration priorities and Executive Actions. Further, the Agencies also 

must take parallel actions to streamline the CWA permitting process so as to avoid the 

lengthy delays that are often required to obtain a permit and, in some cases, can affect 

whether projects move forward at all. (p. 5)

Agency Response: See Summary Responses under Topic 11.3.1 and 11.4 for 

discussion on how the agencies address the Portland Cement Association comments 

on costs.

National Association of Manufacturers (Doc. #15410)

11.2.75V. THE PROPOSED RULE IS NOT SUPPORTED BY A VALID COST-BENEFIT 

ANALYSIS

The NAM agrees with the other commenters that have demonstrated that extending the 

Clean Water Act’s jurisdiction over such bodies of water with no or insignificant 

connections to a navigable-in-fact water would impose significant costs on American 

manufacturers, businesses, and—ultimately—consumers that are disproportionate to any 

benefit. For example, as the Waters Advocacy Coalition has demonstrated, the proposed 

rule would require States to undertake expensive scientific analyses of flood control 

projects as to why standards for “fishable, swimmable” uses should not be set for those 

projects; routine maintenance on stormwater conveyance would now in many instances 

require a section 404 permit; NPDES permits would be required for storm flows diverted 

to water supply projects; and potentially thousands of miles of roadside ditches could be 

treated as “waters of the United States.”54

Executive Order No. 12866 appropriately requires executive agencies to assess all the 

costs and benefits of available regulatory alternatives, including the alternative of not 

regulating. Exec. Order No. 12866 §§ 1(a) & 1(b)(5), 58 Fed. Reg. 51734, 51735-36 

(Sept. 30, 1993). Here, the agencies have failed to undertake a valid cost-benefit analysis. 

Cf., Michigan v. EPA, 213 F.3d 663, 679 (D.C. Cir. 2000) (statutes should be read to 

authorize “regulations with benefits at least ‘roughly commensurate with their costs, 

unless there is a clear legislative statement to the contrary’”) (quoting Cass R. Sunstein, 

Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 487 (1989)). As 

explained in greater detail by the Waters Advocacy Coalition, the EPA’s analysis relies 

on a flawed methodology for estimating the extent of newly-jurisdictional waters that 

systematically underestimates the incremental wetlands acreage that will be impacted, 

 

54 See Waters Advocacy Coalition, Comments on Proposed WOTUS Rule for All CWA Programs.
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excludes several important types of costs, and uses a flawed benefits transfer 

methodology.55

The NAM’s members could face an enormous increase in costs if the proposed rule were 

finalized—costs that will make American businesses less competitive in the global 

marketplace and will drive those businesses to expand their operations overseas— costs 

that are not offset by any tangible environmental benefit. These costs are only multiplied 

when, as would be the case here, key aspects of the rule are not sufficiently defined and 

there will be substantial uncertainty as to whether many bodies of water are jurisdictional. 

Resolving that uncertainty will almost certainly require regulated companies to engage in 

expensive, time consuming, and fact-intensive expert hydrological analysis any time a 

decision must be made.

The proposed rule should be withdrawn and only re-proposed once a valid cost-benefit 

analysis has been completed and it is demonstrated that the potential environmental 

benefit is commensurate with the high costs the proposed rule could bring to bear on 

industry. (p. 27-28)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See the Summary Response in this section, as well as 

Topic 11. In addition, see Summary Response to Topic 13.2.2 on Executive Order 

12866.

Grand Junction Area Chamber of Commerce (Doc. #15425)

11.2.76Furthermore, there is great concern that the Environmental Protection Agency (EPA) has 

not completed their Economic Analysis of the Waters of the U.S. We would ask that the 

proposed rule and Economic Analysis be revised to include the findings and 

recommendations of stakeholders and businesses. As this proposed rule has the potential 

to greatly affect business, their voice and the impacts to them should be considered and 

included in the rule making process. The impacts of Federal oversight will impact many 

businesses in Western Colorado including but not limited to, private development, 

irrigation providers, and drainage districts as well as municipalities.

The proposed rule is concerning to business as the economic impacts have not fully been 

measured, the cost has not been assessed and stakeholders have not been consulted. The 

proposed rule would add another level of permitting, costs and time to proposed projects 

in Mesa County. The Grand Junction Area Chamber of Commerce would like to be part 

of the rule review process as a voice of business, and ask that the EPA consider the 

 

55 See Waters Advocacy Coalition, Review of EPA Economic Analysis of Proposed Revised Definition of Waters of 

the United States.
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comments and reach out to the chamber to provide access to the appropriate stakeholders. 

(p. 1-2)

Agency Response: The agency has taken into account comments submitted during 

the public comment period. See Summary Responses to Topics 11, 11.2, 11.3, 11.3.1, 

11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

Missouri and Associated Rivers Coalition (Doc. #15519)

11.2.77Economic analyses of the costs associated with the proposed rule are woefully 

understated. They are based on assumptions made using a very narrow timeframe during 

an economically depressed period for Colorado. Additionally, the assumptions were 

mainly based on 404 permit costs yet this rule will result in significant additional 

expenses. The full economic impact of this proposed rule cannot be adequately estimated 

or analyzed until it is known exactly which waters will be regulated by the rule. (p. 3)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

South Carolina Association of Counties (Doc. #15573)

11.2.78The economic analysis acknowledges that there will be increased assertion of federal 

CWA jurisdiction when compared to baseline practices under existing regulations. The 

agencies further admit that cost to regulated entities will likely increase for permit 

expenses, compensatory mitigation, and best management practices (page 32). The 

agencies further acknowledge that cost will likely increase to specific groups investing in 

infrastructure. The agencies specifically name state and local governments as among the 

most likely to be impacted. In the economic analysis report, the agencies caution that the 

data used and the assumptions made to craft the analysis may be flawed (page 2). Since 

states, local governments, and their agencies implement and enforce CWA programs, we 

believe the "Waters of the U.S." definitional change will have a substantial direct cost on 

our counties. The economic analysis agrees, stating that CWA "programs may

subsequently impose direct or indirect costs as a result of implementation" (page 2). (p. 

2)

Agency Response: The accompanying economic analysis considers changes that 

may occur relative to recent practice. See Summary Responses to Topics 11, 11.2, 

11.3, 11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to 

the economic analysis.

11.2.79Agency's cost-benefit analysis assumptions and methodologies are flawed 
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As previously mentioned, while the agencies have performed cost-benefit analysis of the 

definitional changes on CWA programs, they have acknowledged that the data used and 

the assumptions made to craft the analysis may be flawed. The methodologies used to 

determine economic costs and benefits to the proposed rule are misleading. In its 

economic cost analysis for the proposed rule, the agencies have indicated that 

approximately three (3) percent of new waters will be considered jurisdictional under the 

Section 404 program. However, the data used to compute costs for Section 404 comes 

from submitted Section 404 permit applications for 2009- 2010 fiscal year. The economic 

analysis fails to acknowledge or recognize that, under the proposal, additional waters, 

currently not jurisdictional (and thus, no permits have been submitted), will become 

jurisdictional. This reasoning is flawed and does not give a true accounting of potential 

costs or benefits. (p. 3)

Agency Response: See Summary Comments on in this section regarding the 2009-

2010 jurisdictional determination data, as well as the possibility of additional waters 

being impacted relative to recent practice.

Federal Water Quality Coalition (Doc. #15822)

11.2.80B. Increased Burden.

1. Burden on Landowners.

The general response to concern over expanded regulation from EPA and the Corps of 

Engineers has been: “don’t worry; just get a permit. This answer ignores the time, money, 

and effort required to secure a permit and will impose an economic burden that has not 

been quantified in the regulatory impact analysis accompanying the rule.

2. Burden on State and Local Governments.

The agencies have failed to quantify the burden on state and local governments (and the 

federal government) from the expansion of jurisdiction. The proposed rule will affect 

state and county highway departments, flood control agencies, local governments with 

municipal separate storm sewer systems, and economic development agencies. For 

example, the Tennessee Department of Economic and Community Development recently 

was told by the Corps that a field that they had designated as an industrial development 

site was a water of the U.S., after the Tennessee regulatory personnel had evaluated the 

property and determined that the erosion features in the field were not streams or 

tributaries, but instead were “wet weather conveyances,” an approved designation under 

the state’s water quality standards program.56 This regulatory determination applies the 

proposed rule’s definition of “tributary” and belies agency assertions that farmers’ fields 

will not be regulated. As a result, state agencies seeking to develop such property will 

have to incur significant permitting and mitigation costs to develop this property.

 

56 See supra pp. 6-8. A photograph of the field is attached as Appendix A.
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3. Burden on Regulators.

The agencies also have failed to quantify the burden on regulators from increased 

jurisdiction. EPA’s ATTAINS database that tracks TMDL development reports a total of 

3,533,205 river and stream miles in the United States based on data reported by states 

using the National Hydrography Dataset (NHD). The NHD is a database that 

interconnects and uniquely identifies the millions of stream segments or reaches that 

comprise the Nation’s surface water drainage system and is based on the USGS 1988 

1:100,000-scale Digital Line Graph (DLG) hydrography dataset integrated with reachrelated information from the USEPA Reach File Version 3.0-Alpha release (RF3-Alpha).

According to EPA’s report on “The Ecological and Hydrological Significance of 

Ephemeral and Intermittent Streams in the Arid and Semi-arid American Southwest” 

(EPA/600/R-08/134) (Nov. 2008), even the high resolution NHD “may grossly 

underestimate the number and length of drainage networks,” i.e., ephemeral streams. 

“Heine et al. (2004) reported that USGS 1:24,000-scale maps under-represented drainage 

networks by 64.6 percent in a study in Kansas.”

EPA’s ATTAINS database that tracks TMDL development reports a total of 107,700,000 

wetlands acres. Again, the agencies have not reasonably estimated the increase in 

potential wetland acreage under the proposed rule. Their estimate of only a 2.7 percent 

increase in jurisdictional wetlands is based on applications for jurisdictional 

determinations, when in fact landowners would not have applied for JDs for most of the 

ditches, ephemeral features, isolated wetlands in floodplains and riparian areas, and 

“other water” wetlands that would be considered jurisdictional under the proposed rule.

EPA’s currently approved ICR (EPA ICR No. 1560.10, Nov. 2011) for both water quality 

reporting and TMDL development activities estimate the cost to States for those 

programs at $193,568,080 a year. Of that amount, $21,390,991 is for assessment 

activities. The remaining costs of $172,267,089 are for TMDL development and EPA 

assumes 4,000 TMDLs a year, averaging $43,000 per TMDL.

The agencies have failed to include the cost to states of increased regulation under the 

proposed rule. What would be the total increase in stream miles if ephemeral streams that 

show up in the NHD at a high resolution become waters of the United States? What is the 

increase in acres of waters and wetlands regulated if all broadly-interpreted adjacent 

waters and wetlands become jurisdictional? What would be the total cost to States to 

assess those additional miles and acres? What will it cost to develop new water quality 

criteria, designated uses, and TMDLs for waters not currently regulated?

While the agencies have failed to include these costs in the regulatory impact analysis of 

the proposed rule, some states have provided cost estimates. According to the State of 

Missouri, if it had to regulate all stream miles discernable at the 1:24,000 scale of the 

National Hydrology Dataset, it would add an additional 158,565 miles of stream (183,591 

miles total) to its existing classified waters network and would more than double the 
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state’s monitoring costs from about $11.2 million to $24.2 million.57 The state also would 

incur additional costs for use designations and total maximum daily load development.

The agencies must calculate these increased costs for every state and include them in the 

regulatory impact analysis for the rule. (p. 57-59)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. This is not a regulatory impact analysis. The agencies

estimated costs to both public and private entities, including costs of permit 

application, administration, and compliance. Cost estimates are based on estimates 

of increased jurisdiction derived from recent data. See Summary Responses to 

Topics 11, 11.2, 11.3, 11.3.1, 11.3.2 and 11.4 on how the agencies have addressed 

concerns related to the economic analysis.

Minnesota Chamber of Commerce (Doc. #16473)

11.2.81Economic Implications Need Greater Consideration. The Proposed Rule's jurisdiction al 

expansion, which will apply throughout and make fundamental changes to all CWA 

program s, will have widespread economic impacts and consequences that the Agencies 

have not thoroughly considered. (p. 2)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

Kentucky Association Manufacturers (Doc. #16525)

11.2.82The limited economic analysis performed by EPA and the Corps on the proposed rule 

indicated that about three (3) percent more waters would be found jurisdictional under the 

proposed definitional change. Unfortunately, EPA based this calculation on Section 404 

permits submitted for review rather than waters that would be jurisdictional under the 

proposed rule, where permits are not currently required. With the farreaching impact the 

proposed rule could have on the Section 402 and Section 404 permitting programs, 

potential dischargers are entitled to a fully vetted economic analysis from the agencies.

(p. 2)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

 

57 See MO Regulatory Impact Report, supra n. 11 at 25, 35.
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assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

Water Advocacy Coalition (Doc. #17921)

11.2.83C. The Economic Analysis Is Cursory and Grossly Underestimates the Impacts of 

the Proposed Rule.

The Economic Analysis for the proposed “waters of the United States” rule fails to 

provide a reasonable assessment of the proposed rule’s costs and benefits. Professor 

David L. Sunding, Ph.D., Thomas J. Graff Chair of Natural Resource Economics at the 

University of California, Berkeley, completed a review of the agencies’ Economic 

Analysis that provides an analysis of the calculations employed by the agencies and 

documents the analysis’s numerous flaws.58 As Professor Sunding notes, “The errors, 

omissions, and lack of transparency in EPA’s study are so severe as to render it virtually 

meaningless.” Id. at 2.

The Economic Analysis fails to provide a reasonable assessment of the proposed rule’s 

increase in jurisdictional waters. The Economic Analysis suggests that the proposed rule 

will increase overall jurisdiction under the CWA by only 2.7 percent. But the agencies 

arrive at this percentage using a flawed methodology. The agencies’ reliance on data 

from the Corps’ ORM2 database is problematic. As explained by Professor Sunding, the 

agencies cannot accurately quantify the proposed rule’s increase in jurisdiction by using 

the ORM2 database because the database only accounts for the section 404 program, and 

its data do not fit this exercise. Id. at 4-9.

Indeed, the Economic Analysis looks at Corps jurisdictional determinations (“JDs”) that 

concluded under current regulations there is no jurisdiction but that would change under 

the proposed rule. But this analysis fails to recognize that landowners and project 

proponents would not have sought JDs for most of the features that would now newly be 

considered “waters of the United States” under the proposed rule, such as ditches and 

ephemeral washes. Id. at 8.

In addition, the Economic Analysis relies on figures extrapolated from statistics from FY 

2009-2010, a period of extremely low construction activity. Id. at 10-11. Moreover, the 

agencies’ calculation of increased jurisdiction fails to account for the universe of waters

and features for which landowners have not previously sought CWA permits. Id. at 8. 

Relying on the 2.7 percent calculation throughout the Economic Analysis, the agencies 

systematically and drastically underestimates the impact of the proposed rule’s new 

definition of “waters of the United States.”

 

58 Sunding Review, Exhibit 19.
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The agencies’ calculations of incremental costs and benefits are also deficient. The cost 

analysis is focused on costs associated with the section 404 program. Yet the analysis 

omits the costs of avoidance and delay, which are likely the largest out-of-pocket 

expenses of the permitting process. Sunding Review at 17. The Economic Analysis 

largely ignores the cost impact of the changes to other CWA regulatory programs due to 

lack of data. Id. at 20. Costs to other programs, like the section 303 program (State WQS 

and implementation plans) and section 402 (NPDES and stormwater), are assumed to be 

“cost-neutral or minimal” without providing any analysis to support this conclusion. Id. 

Although the effects of the proposed rule’s definitional change are likely to vary 

significantly from program to program, the agencies omit careful assessment of programspecific effects, and instead offer simplistic, generalized estimations.

Likewise, the Economic Analysis’s benefit calculation overestimates benefits and is 

riddled with errors. Professor Sunding concludes that the benefit transfer analysis used to 

approximate section 404 benefits is poorly documented and not consistent with best 

practices in environmental economics. Id. at 27. The agencies use third-party studies 

conducted 10-30 years ago to estimate an average willingness to pay for wetland 

mitigation. These studies are largely irrelevant and do not provide accurate estimates of 

benefits. Id. Moreover, the agencies’ benefits calculation is based on an unstated and 

improbable assumption that all of the incremental wetlands affected by the proposed 

rule’s definitional change would be filled (destroyed) if federal jurisdiction is not 

expanded to cover these areas. Id. at 28.

In addition to the methodological errors, the Economic Analysis suffers from a lack of 

transparency. Professor Sunding explains that “[e]xplanations of calculations, basic 

assumptions, and discrepancies between various EPA analyses are rarely provided.” Id. at 

32.59 For all of these reasons, the Economic Analysis is inaccurate and incomplete. It 

does not even begin to cover the impacts of the proposed rule.60 As recommended by 

Professor Sunding, the agencies should withdraw the analysis and perform a new, 

thorough review of the economic impacts of the proposed rule. (p. 87-88)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

 

59 This is not surprising, given the GAO’s recent conclusion that in its regulatory impacts analyses, EPA

frequently fails to communicate information supporting regulatory decisions, including baselines, alternatives

considered, and other information a reader might need to understand the analysis. U.S. Government Accountability

Office, EPA Should Improve Adherence to Guidance for Selected Elements of Regulatory Impact Analyses, GAO14-519 at 12 (July 2014) (“GAO-14-519”).

60 GAO 14-519 also noted that EPA often fails to monetize important costs and benefits, thus limiting the

usefulness of its impact analyses. See id. at 16.
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11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis, including those of Professor Sunding.

Water Advocacy Coalition (Doc. #17921.15)

11.2.84EPA is proposing an expansion of the definition of the term “waters of the United States” 

to include categories of waters that were previously never regulated as waters of the 

United States, such as all waters in floodplains, riparian areas, and certain ditches. The 

inclusion of these waters will broaden the scope of the CWA and will increase the costs 

associated with each program. (p. 52)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice.

11.2.85Unfortunately, the EPA analysis relies on a flawed methodology for estimating the extent 

of newly jurisdictional waters that systematically underestimates the impact of the 

definitional changes. This is compounded by the exclusion of several important types of 

costs and the use of a flawed benefits transfer methodology, which EPA uses to estimate 

the benefits of expanding jurisdiction. The errors, omissions, and lack of transparency in 

EPA’s study are so severe as to render it virtually meaningless. The agency should 

withdraw the economic analysis and prepare an adequate study of this major change in 

the implementation of the CWA. (p. 52)

Agency Response: See Summary Responses under Topic 11 and subtopics for 

details on how the agencies addressed concerns with the economic analysis.

11.2.86A threshold problem with EPA’s analysis is that it deals only with the “other waters” 

category of CWA jurisdiction. The economic analysis focuses on how jurisdiction might 

change for “isolated waters” that are not jurisdictional under the current CWA framework 

as a result of SWANCC, but are likely to become jurisdictional under an expanded 

definition of “other waters”. This would allow for jurisdiction over isolated areas that, 

when aggregated, are found to have a significant nexus to traditional navigable waters.

According to EPA’s analysis, “‘other waters’ is a regulatory term for wetlands and nonwetlands waters that do not fall into the category of waters susceptible to interstate 

commerce (e.g., ‘traditional navigable waters’ or TNWs), interstate waters, the territorial 

seas, tributaries, or waters adjacent to waters in one of the first four categories on this 

list.” As discussed in more detail below, to determine how jurisdiction would change for 

the “other waters” category, the U.S. Army Corps of Engineers (Corps) performed a 

sample review of 262 project files from the Corps’ ORM2 database “isolated waters” 

category. All of these 262 records are considered outside the scope of CWA jurisdiction 

under current regulatory policies, but the agencies predicted that approximately 17% of 

these records would be subject to CWA jurisdiction under the new rule.61 The agencies 

 

61 Given the existing confusion regarding 404 jurisdiction that has been well documented, see GAO-04-
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did not do a similar sample review to determine how jurisdiction might change for other 

jurisdictional categories of waters (i.e., tributaries and adjacent waters, as newly defined). 

EPA’s Economic Analysis simply assumes that the small percentage of FY 2009-2010 

ORM2 streams and wetlands records that are not jurisdictional under current regulatory 

policies (2% of streams and 1.5% of wetlands) would become jurisdictional under the 

new rule. 

But the agencies’ draft rule does much more than just expand the scope of the “other 

waters” category. As previously explained, it also includes several new categories of 

jurisdiction and new definitions for regulatory terms, which will result in regulation of 

new features and areas that are not jurisdictional or considered waters of the United 

States under the current CWA framework. These changes will sweep in many new areas 

yet EPA’s analysis does not quantify or address this change. 

This report provides an analysis of the calculations employed by EPA. In many cases, the 

lack of transparency and supporting documentation in EPA’s analysis made the 

replication of calculations difficult. The following sections address the methodology 

behind the incremental acreage determination, the program cost calculations, and the 

benefit calculations. (p. 53-54)

Agency Response: The final rule does not cover waters that were not historically 

protected. See the Economic Analysis for the final rule as well as the Summary 

Responses under Topic 11 and subtopics for details on how the agencies addressed 

concerns with the economic analysis.

11.2.87II. EPA Cannot Accurately Quantify Increases in Jurisdiction by Using the Corps’ 

ORM2 Database

To quantify the increased extent to which EPA and the Corps will assert CWA 

jurisdiction as a result of the draft waters of the U.S. rule, EPA evaluated data records 

from FY 2009-2010 in the Corps’ ORM2 (Operation and Maintenance Business 

Information Link, Regulatory Module) database. Although records from the Corps’ 

internal ORM2 database are not available to the public, we obtained a portion of the 

underlying ORM2 data used for these calculations through a Freedom of Information Act 

request. EPA’s use of the ORM2 numbers to calculate how much the draft rule will 

increase CWA jurisdiction is problematic because the ORM2 database was not designed 

for this purpose and its data do not fit this exercise. 

EPA cannot accurately quantify increases in jurisdiction by relying solely on the Corps’ 

ORM2 database for several reasons. As is explained more fully below, the categories of 

ORM2 records do not marry up with the draft rule’s categories of jurisdictional waters. In 

addition, the ORM2 data fail to capture the entire universe of areas that are jurisdictional 

 

297, it is questionable whether the assertion of jurisdiction by the Corps was consistent or accurate.

Indeed, many have questioned existing assertions as overbroad.
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under the current CWA framework because it only accounts for situations in which 

regulated entities engage in the section 404 jurisdictional determination or permitting 

process. Even for those instances where regulated entities engage in that process, the 

ORM2 database does not capture all aquatic resources on the subject parcel because the 

Corps focuses only on impacted areas and mitigation sites. Finally, because Corps staff is 

not required to fill in the “aquatic resource type” field in the ORM2 database, EPA failed 

to account for a large portion of records in its calculations of the increase in jurisdiction. 

(p. 54-55)

Agency Response: See Summary Response in this section regarding the scope of 

jurisdiction.

11.2.88A. THE ORM2 RECORDS ARE NOT COMPATIBLE WITH THE DRAFT 

RULE’S JURISDICTIONAL CATEGORIES

The categories of records available on the ORM2 database do not match up with the 

categories of jurisdictional waters provided in the proposed “waters of the US” rule. The 

ORM2 records are categorized according to “aquatic resource types” based on EPA’s and 

the Corps’ 2008 Guidance on Clean Water Act Jurisdiction Following the Supreme Court 

Decision in Rapanos v. U.S. and Carabell v. U.S. Therefore, the ORM2 database records 

are categorized based on concepts developed by the agencies after Rapanos and 

SWANCC, such as “traditional navigable waters,” “relatively permanent waters,” 

“wetlands adjacent to relatively permanent waters,” and “isolated waters.”62

In the draft rule, the agencies introduce new categories of jurisdictional waters and new 

definitions for important terms. The draft rule provides, for the first time, a regulatory 

definition of “tributaries,” which explicitly includes ditches. It also includes an “adjacent 

waters” category that includes both wetlands and non-wetlands. As it did previously, the 

draft rule defines “adjacent” as “bordering, contiguous or neighboring.” But the rule, for 

the first time, defines “neighboring” to include riparian areas and floodplains, and 

provides new, broad definitions of “riparian area” and “floodplain.” The rule also, for the 

first time, provides a regulatory definition for “significant nexus,” and provides that 

“other waters” may be jurisdictional on a case-specific basis if they, individually or when 

aggregated with other similarly situated waters, have a significant nexus with other 

jurisdictional waters.

 

62 When inputting records into the ORM2 database, a Corps field officer can select any one of the following aquatic 

resource types: (1) traditional navigable waters (TNWs); (2) wetlands adjacent to TNWs; (3) relatively permanent 

waters (RPWs) that flow directly or indirectly into TNWs; (4) wetlands directly abutting RPWs that flow directly or 

indirectly into TNWs; (5) wetlands adjacent to but not directly abutting RPWs that flow directly or indirectly into 

TNWs; (6) non-RPWs that flow directly or indirectly into TNWs; (7) wetlands adjacent to non-RPWs that flow 

directly or indirectly into TNWs; (8) tributary consisting of both RPWs and non-RPWs; (9) isolated (interstate or 

intrastate waters), including isolated wetlands; (10) uplands; (11) wetlands assessed for delineation purposes only 

(and not for jurisdictional purposes); and (12) impoundments. Alternatively, as discussed below, the Corps field 

officer may input records without completing the “aquatic resource type” field.
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Importantly, the ORM2 database does not track information on these new terms and 

categories of jurisdiction. For example, EPA’s analysis recognizes that the ORM2 

“isolated waters” category does not take into account the rule’s new aggregation principle 

and explains that EPA could not assess the potential impacts of aggregation of other 

waters within a watershed without “actual field experience.” Indeed, EPA’s analysis also 

acknowledges that there will be additional costs to the Corps to update the ORM2 system 

to “reflect needed data elements” as a result of the rule’s new jurisdictional categories. 

But EPA does not alter its analysis to account for this major deficiency. As a result, 

numbers extrapolated from the ORM2 records, which do not marry up with the draft 

rule’s categories of jurisdiction, are not useful for approximating the percentage of 

increase in jurisdiction or the increase in jurisdictional acreage. (p. 55-57)

Agency Response: See Summary Response in this section regarding the ORM2 

database and Section 4 of the Economic Analysis for further discussion of the 

methodology used..

11.2.89B. THE ORM2 RECORDS UNDERREPRESENT THE UNIVERSE OF 

JURISDICTIONAL AREAS

The ORM2 data does not capture the entire universe of jurisdictional areas under the 

current CWA framework. First, the Corps records account only for situations in which 

regulated entities seek a section 404 permit, approved jurisdictional determination (AJD), 

or wetland delineation. The ORM2 database does not include records for preliminary 

jurisdictional determinations (PJDs), which allow for a party to voluntarily waive or set 

aside questions regarding CWA jurisdiction over a particular site, usually in the interest 

of allowing the landowner to move ahead expeditiously to obtain a Corps permit. With a 

PJD, the landowner agrees to treat all waters and wetlands that would be affected in any 

way by the permitted activity on the site as if they are jurisdictional waters of the U.S.63

Thus, EPA’s Economic Analysis fails to account for large numbers of acres across the 

country that may be impacted by the regulations. Indeed, most regulated entities in the 

404 program have relied on PJDs after 2008 due to the uncertainty of jurisdiction 

stemming from inconsistency across agency policies. Waters for which jurisdiction is 

unclear is precisely the group of waters that the agencies are purporting to address in this 

draft rule. Accordingly, EPA’s claim that these waters are irrelevant for analyzing the 

draft rule’s economic impacts is incorrect.

Second, EPA purports to account for its failure to capture the entire universe of 

jurisdictional areas by explaining, 

Landowners and developers may assume that some waters are non-jurisdictional 

and not request a determination or engage in the permitting process. These waters 

would not be represented in the ORM2 FY2009-2010 database. However, these 

 

63 See U.S. Army Corps of Engineers, Regulatory Guidance Letter 08-02 (June 26, 2006).
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waters are also likely to be the most isolated and the least connected to other 

waters and therefore the least likely to have their status changed under this 

proposed rule. 

In other words, EPA is saying that the waters for which a reasonable person is likely to 

have never needed a JD are only those so isolated that they would not be jurisdictional 

anyway. But the new rule, by capturing ditches, intermittent streams, streams that are 

connected only underground, adjacent waters, and waters that have been disconnected 

from downstream waters by barriers, includes many waters that no reasonable person 

every would have thought of as jurisdictional.

In relying on the Corps’ ORM2 database, EPA’s Economic Analysis does not recognize 

the instances in which landowners have not engaged in the section 404 permitting process 

because they have not sought to fill areas of their land or because their property is not 

jurisdictional under the current regulatory framework. This situation is not limited to 

areas with isolated waters. The draft rule brings in many features (e.g., adjacent waters, 

ditches) that were not previously jurisdictional and would not be included in the Corps’ 

ORM2 records. 

Third, even for those instances where landowners engage in the jurisdictional 

determination or permitting process, the ORM2 database does not capture all aquatic 

resources on the subject parcel. Rather, the Corps records focus on impacted areas and 

mitigation sites. For example, if an applicant seeks a permit to impact .25 acres on a 5-

acre parcel of land, only the aquatic resources on the .25 acres that would be impacted are 

captured in the ORM2 database. Aquatic resources on the remainder of the parcel would 

not be captured.

Fourth, “aquatic resource type” is not a required field for Corps staff to fill out in the 

ORM2 database. As a result, of the 196,208 ORM2 FY2009-2010 records used by EPA 

in its calculations, 36,063 (18.4%) did not have an associated aquatic resource type 

selected. This “water type null” category was not accounted for in EPA’s calculation of 

the 2.7% increase in jurisdictional waters under the new rule or any other calculations in 

the economic analysis.

Finally, by relying on only ORM2 data, EPA fails to evaluate the extent to which the 

expansion of jurisdiction could have consequences for activities other than the discharge 

of dredged or fill material. EPA’s analysis simply assumes that the distribution of water 

body types and the relative distribution of jurisdictional vs. non-jurisdictional waters will 

be the same, regardless of whether the activity in question is the discharge of dredged or 

fill material, the discharge of wastewater or stormwater, or an activity subject to CWA 

section 311 or similar spill control requirement. EPA did not make any attempt to 

evaluate whether the numbers and types of water affected by these activities were the 

same as those affected by activities subject to 404. 
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For all these reasons, EPA’s use of ORM2 data throughout its economic analysis to 

quantify the increase in jurisdiction is highly suspect and results in woefully inaccurate 

projections.64 (p. 57-59)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Response in this section regarding the 

ORM2 data and scope of jurisdiction.

11.2.90III. Errors with EPA’s Incremental Acreage Calculations

Calculations of costs and benefits in EPA’s analysis rely on an estimate of the acreage 

that would become jurisdictional under a definitional change. The Corps estimates this 

incremental acreage by examining their ORM2 database of CWA permit applications. 

Corps staff reviewed a sample of 262 old project files relating to section 404 using the 

new jurisdictional criteria. Of these files, 67% pertained to streams, 27% to wetlands, and 

6% to “other waters.” The Corps found that 98% of the streams, 98.5% of the wetlands, 

and 0% of the other waters were jurisdictional under existing guidance. Under the new 

criteria, it found that 100% of the streams and wetlands and 17% of the other waters 

would become jurisdictional.65 Corps staff concluded that an expanded definition of 

“waters of the United States” would result in 2.7% more jurisdictional waters than under 

the current definition. These calculations are summarized in Table 1.

Table 1 Calculation of Increased Jurisdiction

EPA’s analysis arrives at the conclusion that the new rule will result in a total of 1,332 

acres of added impacts from additional permits under section 404 alone. This incremental 

acreage represents a 2.7% increase in the number of permits multiplied by the average 

impact per permit (see Table 3). Although EPA argues that it has used upper bound 

estimates of costs for many of the cost categories, its analysis is flawed in at least four 

major ways. This leads to a significant underestimation of total added impacts.

 

64 As explained more fully below, EPA’s sensitivity analysis does not adequately make up for this deficiency 

because the 2.7% percentage increase figure used throughout the economic analysis is based on ORM2 data without 

sensitivity analysis calculations.

65 EPA reviewed a subset of 50 project files for “other waters” and determined 15% would be jurisdictional.
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The analysis uses FY 2009/2010 as the baseline year to estimate impacts. FY 2009/2010 

was a period of significant contraction in the housing market due to the financial crisis. 

As Figure 1 indicates, construction spending during these two fiscal years was 24% 

below that of the previous two-year period. In statistical terms, this is an issue of sample 

selection, where due to exogenous events the sample selected for the analysis is not 

representative of the overall population. The report bases its finding on a period of 

extremely low construction activity, which will result in artificially low numbers of 

applications and affected acreage. Even if the percent increase in added permits is 

correct, using the number of permits issued in 2010 as a baseline is very likely a 

significant underestimation of the affected acreage in years not subject to a crisis in the 

building sector. 

Figure 1: United States Construction Spending, 2007-2010

If one examines building permit data for all types of construction since 1959, it is 

apparent that choosing FY 2009/2010 as representative years is problematic, as building 

permit filings were at an all-time low during this period. Figure 2 displays Census data on 

building permits at the national level. Again, this figure shows that the baseline time 

period chosen by EPA is not representative and biases the added acres calculation 

downwards, unless the nation’s building sector never recovers.
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Figure 2: New Privately Owned Housing Units Authorized by Building Permits

EPA’s analysis uses an expert review to calculate a percent increase in jurisdiction. In 

order to arrive at the 2.7% estimate, EPA reviewed historical filing and made judgment 

calls as to which filings would be subject to the new rule. According to its analysis the 

projected percent of positive jurisdiction would rise to 100% for streams and wetlands 

filings (up from 98% and 98.5%, respectively) and 17% for “other waters” (up from 0%). 

This analysis assumes that the new rule will not affect the number of total filings. It is 

clear that projects that were previously not thought to be subject to the new rules did not 

file permitting requests. Under the new rules, however, more projects likely will be 

required to seek permits. What this means is that the share of projects entering the 

permitting process is likely to increase, which will increase the projected number of 

positive jurisdictional determinations and the incremental acreage estimates.

Although the report’s conclusions remain unchanged, EPA provides a brief sensitivity 

analysis to address the influx of new applicants that had previously not entered the 

permitting process. It acknowledges that permit applications associated with “other” 

waters could double under the proposed rule and provides several alternative estimates of 

the incremental effects associated with this increase. These scenarios are included in 

Table 2, which is reproduced from the EPA analysis.
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Table 2: Alternative Incremental Jurisdiction Results from EPA Analysis

EPA suggests that the doubling of records for only non-jurisdictional waters and an 

additional 5% increase in jurisdictional waters (scenario D, option 2) is the most likely 

alternative. Thus, EPA’s upper bound estimate of the incremental increase in jurisdiction 

associated with a definitional change is 3.2%. However, the assertion is completely 

unjustified and is not accompanied by an explanation for why the number of section 404 

permits may double with only a 5% increase in residual positive jurisdictional 

determinations. Additionally, this assessment is completed as an afterthought to the 

economic analysis and has no bearing on the calculations of costs and benefits associated 

with a definitional change.

The analysis considers only permitting data from section 404 and applies the estimated 

shares to all other relevant sections of the CWA. There is no reason to believe that this is 

a valid approach given the significant differences in the location of these types of 

economic activities and the nature of the activities that give rise to permitting 

requirements across the sections. EPA recognizes this limitation, writing “while there is 

only one CWA definition of ‘waters of the United States,’ there may be other statutory 

factors that define the reach of a particular CWA program or provision.”66 Unfortunately, 

this warning is ignored in the current analysis, and the incremental acreage estimation for 

all programs relies wholly on section 404 estimates.

EPA derived the number of acres per permit using the FY 2009/2010 data, taking the 

total number of acres permitted during that period and dividing this number by the 

 

66 EPA 2011. Draft Guidance on Identifying Waters Protected by the Clean Water Act. p 3.
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number of permits issued. The analysis as presented does not allow one to study the 

underlying heterogeneity at the state level. There is a danger of significantly 

underestimating the impacts by using a 2.7% increase in combination with the average 

project size. If the new rules disproportionately affect larger projects, the proposed 

approach using averages underestimates the affected acres. There is no way of knowing 

whether this is the case without being able to review the expert judgment analysis 

conducted by EPA and the Corps.

Before turning to the calculation of incremental costs, it is worth noting that there are 

scientifically valid approaches to determining the number of acres that would become 

jurisdictional under the proposed rule. For the reasons describe above, the ORM2 

database used by EPA is not a valid basis for inferring incremental impacts. The most 

important reason is that it is not a random or representative sampling of all affected 

projects and areas, rather it suffers from potentially severe selection bias. (p. 59-64)

Agency Response: See Summary Response in this section regarding incremental 

increase in assertion of jurisdiction using ORM2 data.

11.2.91VI. Conclusion

The estimates associated with section 404 compensatory wetland mitigation, which 

contain some of the most glaring errors, represent approximately 40% of the total costs 

and 85% of the total benefits. This suggests the entire analysis is fraught with uncertainty 

as to render it insufficient for evaluating programmatic impacts of this scale. Estimates of 

economic impacts to other programs rely on an incremental jurisdiction determination 

that is deeply flawed. Additionally, the systematic exclusion of various costs and benefits 

ignores important impacts to permit applicants and permitting agencies.

In addition to the methodological errors discussed above, EPA’s analysis suffers from a 

lack of transparency. Explanations of calculations, basic assumptions, and discrepancies 

between various EPA analyses are rarely provided. This is particularly troubling given 

that the entire report is based on records from the Corps’ internal ORM2 database, which 

is unavailable to outside entities. The author of this report spent considerable time 

replicating the calculations used in the analysis, but was unable to vet the validity of the 

underlying data. Any errors or inconsistencies in documentation, sample selection, or 

data extraction are necessarily overlooked. These shortcomings indicate that a more 

thorough analysis is required to properly assess the economic impacts of a definitional 

change. (p. 81-82)

Agency Response: See Summary Responses for Topics 11, 11.3.1, and 11.3.2 

regarding 404 costs and benefits. See also the Economic Analysis for the final rule.

Western States Land Commissioners Association (Doc. #19453)

11.2.92(...) Whereas, the EPA fails to fully disclose and evaluate the negative economic impacts 

that will be caused by the rule, including the enormous impacts to land values, permitting 

and litigation costs, and costs of project delays, all of which will severely harm the 
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81

economies of the western states and impede the development, conservation, and 

productive use of public and private lands and scarce water resources; and (...)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

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

11.2.93(...) In conclusion, this Proposed Rule will result in adverse economic impacts on the 

regulated community and the public. The Agencies failed to take into consideration the 

additional permitting costs, the increased delays associated with expanded federal 

jurisdiction, and the costs of new land use restrictions. In other words, the economic 

impact analysis undertaken by the Agencies is woefully inadequate given the broad scope 

of changes included in this Proposed Rule. This Proposed Rule will have a significant 

adverse impact on the regulated community and the public nation-wide due to its broad 

expansion of the scope of the Agencies' CWA jurisdiction. Minimal or no environmental 

gain would be realized in the application of this Proposed Rule, while a significant spike 

in resources will be necessary for its implementation. Minnkota recommends the 

withdrawal of this Proposed Rule. (p. 4)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs, as well as anticipated benefits. See Summary 

Responses to Topics 11, 11.2, 11.3, 11.3.1, 11.3.2 and 11.4 on how the agencies have 

addressed concerns related to the economic analysis.

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

11.2.94Our concern is that more waters would become WOTUS under the proposed rule, and as 

a result, countless new applicants will need to obtain an individual permit from the Corps 

of Engineers (Corp) and/or the Environmental Protection Agency (EPA), triggering even 

more companion federal permitting processes which will be costly and time consuming 

given that federal agencies are not bound by a specific time limit. Over $1.7 billion is 

currently spent each year by the private and public sectors on administrative costs to 

obtain wetlands permits, without taking into account the cost of required mitigation, and 

it is clear that this proposed rule will dramatically increase both the dollar amount and the 

time required to obtain these permits. (p. 1)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 
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impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

Southern Nevada Home Builders Association (Doc. #3251)

11.2.95These new rules will also impact various projects and efforts across the country to 

develop alternative energy and boost domestic energy production. In addition, these new 

rules will undoubtedly have significant negative effects on economic development and 

the economic recovery, which is of particular concern to the Southern Nevada Home 

Builders Association and its members. As evidenced by the last recession (which was the 

worst on record since the Great Depression), homebuilding and real estate development is 

a very important sector of the national and even the global economy. This is especially 

the case here in Nevada, where construction is one of its primary industries and provides 

many of the jobs to its residents. Nevada was impacted as much or worse than any other 

region in the country by the 2007-2009 downturn in the housing market. Nevada, like 

many other states, is still in the very early and fragile stages of economic recovery, and 

there is no way to accurately predict what the consequences may be of the CWA rule 

changes that the EPA is now proposing. What is certain however, is that if jurisdiction 

under the CWA is expanded (as we expect will inevitably be the case if the proposed rule 

changes are adopted), the economy and real estate market of Nevada and many other 

similarly situated states will be adversely affected. (p. 3)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

American Concrete Pressure Pipe Association et al. (Doc. #3306)

11.2.96In the proposal, the agency ignores U.S. Supreme Court precedent and congressional 

intent by significantly broadening the definition of what “waters” fall under the CWA's 

jurisdiction. The NPRM is so expansive that it could potentially place every ditch, 

retaining pond, and seasonal stream within the ambit bf the EPA's regulatory authority.

Such an unprecedented extension of the agency's jurisdiction will have a severe impact 

on construction-related industries by increasing costs, causing delays, and possibly 

deterring many projects all together. The CWA's permitting process can take years to 

navigate and hundreds of thousands of dollars. New permitting requirements and 

regulatory compliance costs will be added to already stringent state and local water laws. 

Moreover, the expansive reach of the proposed rule will have the effect of making many 

areas of the country "off limits" to construction and development because of the expense 
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associated with obtaining new permits or installing the required mitigation measures on 

newly regulated waters of United States." (p. 1)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

Kolter Land Partners and Manatee-Sarasota Building Industry Association (Doc. #7938.1)

11.2.97Fails to Recognize the True Economic Impacts. Among numerous other procedural 

flaws, the proposal fails to sufficiently recognize and quantify the costs associated with 

the expanded definition of "waters of the United States." Indeed, many of these costs, 

including those associated with increased permitting, mitigation, and regulatory 

uncertainty, will be borne by home builders and other small businesses. Using inadequate 

data and improper baselines to assess the costs of the rule, however, the Agencies have 

wrongfully certified the rule will not impose a significant economic burden on small 

businesses. (p. 2)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.1, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

Southern States Energy Board (Doc. #13011)

11.2.98(...)WHEREAS, the proposing agencies’ economic analysis for this rule did not consider 

impacts of the full range of CWA programs affected or of economic impacts to small 

businesses and the analysis relies on nearly 20-year old cost data that has not been 

adjusted for inflation and, in concluding that the proposed rule would increase the waters 

subject to permitting requirements by only 2.7 percent, the proposing agencies rely on a 

data base that is incomplete and not representative of those waters that are subject to 

jurisdiction under current regulation; and (...) (p. 2)

Agency Response: The agencies did take into consideration other CWA 

programs, and adjusted cost data for inflation. See Summary Responses under 

Topic 11, 11.2, 11.3.1, and 11.4.

11.2.99(...) An economic analysis is completed that fully identifies impacts of the proposal and 

any revised proposal on economic development, including the impact on efforts to 

streamline infrastructure permitting and siting under current executive orders, guidance, 
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and regulations, and it should include a thorough analysis of economic impacts to the 

economy as a whole; and (...) (p. 3)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis. See also Summary Responses under Topic 13 regarding 

executive orders.

National Ready Mix Concrete Association (Doc. #13956)

11.2.100 New Economic Analysis:

NRMCA has concerns that this rule will greatly increase the cost of doing business for 

ready mixed concrete producers, as well as raise the cost of all construction projects 

across the country to unacceptable and unnecessary levels. As mentioned above, ready 

mixed concrete is a mixture of cement, aggregates and water. 

Both aggregates and cement, essential ingredients, make up a large part of the volume of 

concrete. NRMCA suggests EPA take great consideration of the economic analysis of 

both materials prepared by the National Stone, Sand and Gravel Association (NSSGA) 

and the Portland Cement Association (PCA), respectively.

Because many aggregate deposits were created by water, the deposits are often located 

near water. Any change in what is considered jurisdictional will have a significant impact 

on the ability to obtain the necessary high quality aggregates used for producing ready 

mixed concrete. Without a readily available supply of aggregates, our members’ ability to 

produce concrete will be impacted leading to delays and other issues with the 

construction of highways, public works projects like locks and dams, and residential and 

commercial building projects. We understand that the aggregates industry is extremely 

concerned about this rule. One aggregate producer estimates that the increase in wetland 

mitigation costs alone for their operations will increase nearly 14 times, from $200,000, 

to nearly $2.75 million.67 Furthermore, the Portland Cement Association estimates that 

this rule would add nearly $73 million in compliance costs over a five year period. 

Depending on the variables considered, these costs could be as low as $55 million or as 

high as $103 million.68 These raw material costs will have a significant impact on ready 

mixed concrete producers and their customers. 

 

67 Comments of the National Sand Stone and Gravel Association to Proposed Rule: Definition of “Waters of the 

United States” Under the Clean Water Act; Docket No. EPA‐HQ‐OW‐2011‐0880

68 Comments of the Portland Cement Association to Proposed Rule: Definition of “Waters of the United States” 

Under the Clean Water Act; Docket No. EPA‐HQ‐OW‐2011‐0880
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NRMCA members are extremely familiar with the costs associated with compliance with 

new CWA rules, and the agencies are as well. When EPA promulgated Phase II 

stormwater requirements under §402 in 1999 – EPA estimated that the cost per 

construction site for the program would be between $2,143 and $9,646 for sites between 

one and five acres.69 Clearly if more features like ditches, ephemeral streams, and all 

adjacent waters are jurisdictional, costs like these will need to be incurred on more 

construction sites in more places. 

NRMCA estimates significant compliance costs being associated with the proposed rule 

in its current form. When taking into consideration materials costs increases, new permit 

costs, physical plant infrastructure changes, and then the necessary continued associated 

maintenance costs, the ready mixed concrete industry places compliance well into the 

hundreds of millions of dollars annually. NRMCA believes this would be a devastating 

cost to the industry and with no proven improvement to the environment or waters of the 

United States. The Agencies estimate that compliance costs for the rule are between $163 

million and $279 million. NRMCA requests that the Agencies redo their cost estimates 

now that they have received additional economic analyses during the comment period. (p. 

11-13)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice, including practice when the Phase II stormwater requirements 

were promulgated. The accompanying economic analysis considers the changes in 

jurisdictional determinations that may occur relative to recent practice and the 

resulting impacts to CWA programs. See Summary Responses to Topics 11, 11.2, 

11.3, 11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to 

the economic analysis.

11.2.101 NRMCA believes it is important for the agencies to do a better, more thorough 

analysis of the economic impacts of changes to jurisdiction under the CWA. NRMCA is 

extremely disappointed that the agencies failed to do the proper outreach to small entities 

and that their economic analysis did not fully take into account compliance costs for 

§402, §311 oil spill prevention, as well as federal and state water quality standard under § 

401, §303, §304, and §305. Without obtaining information on how the proposal will 

impact small businesses, NRMCA believes the current proposal lacks complete, accurate, 

timely and relevant data and information to craft and eventually finalize the proposal. 

EPA needs to appropriately and further consider the rule’s affects on all the small 

businesses it intends to regulate. (p. 14)

Agency Response: The scope of the term “waters of the United States” is a 

question that has continued to generate substantial interest, particularly within the 

small business community, because permits must be obtained for many discharges 

 

69 United States Environmental Protection Agency, Economic Analysis of the Final Phase II Stormwater Rules ES‐4 

(1999)
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of pollutants into those waters. In light of this interest, the EPA and the Corps 

determined to seek wide input from representatives of small entities while 

formulating the proposed and final definition of this term that reflects the intent of 

Congress consistent with the mandate of the Supreme Court’s decisions. Such 

outreach, although voluntary, is also consistent with the President’s January 18, 

2011 Memorandum on Regulatory Flexibility, Small Business, and Job Creation, 

which emphasizes the important role small businesses play in the American 

economy. This process has enabled the agencies to hear directly from these 

representatives, throughout the rule development, about how they should approach 

this complex question of statutory interpretation, together with related issues that 

such representatives of small entities may identify for possible consideration in 

separate proceedings. The agencies have prepared a report summarizing their 

small entity outreach, the results of this outreach, and how these results have 

informed the development of this rule. This report, Final Summary of the 

Discretionary Small Entity Outreach for the Revised Definition of Waters of the United 

States (Docket Id. No. EPA-HQ-OW-2011-0880-1927), is available in the docket. The 

rule is narrower in scope than existing regulations and historical practice. The 

accompanying economic analysis addresses changes in the assertion of jurisdiction 

that may occur relative to recent practice and the resulting impacts on CWA 

programs. See Summary Response under Topic 11.1 RFA/SBREFA.

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

11.2.102 I. Economic Impact Analysis

1. The agencies’ economic impact analysis significantly understates costs, at least in 

Arizona: The agencies’ March 2014 Economic Analysis of Proposed Revised Definition 

of Waters of the United States (the “Analysis”) estimates (p. 12) that implementation of 

the proposed rule would result in an increase in jurisdiction of roughly 2.7%, based on a 

review of Corps records for fiscal years 2009 and 2010. The agencies estimate that this 

translates, on a nationwide basis, to an estimated 75 additional individual permits per 

year (p. 14), with associated additional “stream” mitigation costs of $8.7 million to $13 

million per year (p. 18).

These estimates likely significantly understate the costs associated with the proposal, at 

least in Arizona, for the following reasons:

a. The selected period for analysis results in understating the number of additional 

permits that would be required under the proposal: The selected time period (fiscal years 

2009-2010) corresponded to a period of very low activity due to the so called “Great 

Recession,” particularly in the housing industry, which is a very large “customer” of 

Section 404 permits. As noted in a report prepared by The Brattle Group,70 the amount of 

 

70 Review of 2014 EPA Economic Analysis of Proposed Revised Definition of Waters of the United States
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construction spending and building permit applications in that two year period were at

historically low levels, meaning that the period in questions is not representative of a 

typical 2 year period for the industry. Although we have not seen similar data for the 

public sector, it is reasonable to assume that public spending on infrastructure type 

projects likely to require a Section 404 permit also was at a low level during those 

challenging economic times. Therefore, the time period used by the agencies to estimate 

additional permits that would be required by the proposed rule likely led to a significant 

under-estimation of that number, even if the agencies’ estimate of a 2.7% increase in 

permits were accurate (which, at least in Arizona, it likely is not, as discussed in the next 

section).

Recommendation: The agencies should look at a more representative period when trying 

to estimate the number of additional permits that might be required if the proposed rule is 

adopted. (p. 50-51)

Agency Response: The agency has updated the “representative period” in the 

economic analysis. See Summary Response to Topic 11.2.

11.2.103 b. The 2.7% estimated increase in permits required is likely woefully low: At least 

in Arizona, the estimate of a 2.7% increase in permits is likely inaccurate as well. An 

E&E Water Policy Report article published on October 15 of this year71 noted that 13 of 

15 AJDs approved in 2014 and available on the Corps’ web site found a lack of 

significant nexus, and thus a lack of jurisdiction. All 13 addressed ephemeral drainages. 

The two AJDs approved in 2014 that found a nexus both addressed features where water 

was present at least seasonally.

In Arizona, most applicants have used PJDs since they became widely available in 2008, 

because securing a PJD is less expensive, and less time-consuming, than preparing an 

AJD with a significant nexus analysis. As noted above, a PJD presumes that all waters on 

a site are jurisdictional, and essentially ignores the requirement that a significant nexus be 

demonstrated. Data on PJDs is not publicly available, so it is not clear by what 

percentage the total number of permits required by the Arizona office would go up if the 

cases where no jurisdiction was found were to require a permit under the proposed rule. 

However, that number (13) is 17% of the increased number of permits that the agencies 

have estimated would be required nationwide. Moreover, the fact that all (13 of 13) AJDs 

involving ephemeral washes in 2014 concluded that there was no significant nexus 

strongly suggests that many PJDs for ephemeral washes may be resulting in an applicant 

conceding jurisdiction where none would exist were a significant nexus analysis 

conducted. This would mask the extent to which the proposed rule, if adopted, would 

actually represent an expansion in jurisdiction over the current guidance. The joint 

commenters performed their own analysis of AJDs in Arizona posted on the Corps Los 

 

(May 15, 2014) (prepared for the Waters Advisory Coalition).

71 http://www.eenews.net/stories/1060007241
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Angeles District’s web site. On that site, 32 AJDs are listed as having been completed in 

2013 or the first 10 months of 2014. After excluding those AJDs where no link to 

supporting information was provided, or where the supporting information was so limited 

that an accurate assessment was not possible based on what was publicly available online, 

22 AJDs were left for analysis. Six of the 22 AJDs involved relatively permanent waters, 

all of which were found to be jurisdictional. The remaining sixteen AJDs addressed 

ephemeral washes, only one of which resulted in a finding of jurisdiction (encompassing 

washes immediately adjacent to a flowing portion of the Gila River). Of the fifteen AJDs 

involving ephemeral washes that concluded no jurisdictional waters were present, three 

did so on the basis of a lack of an OHWM, and the remaining twelve did so based on the 

lack of a significant nexus between the washes AJDs).

For this nearly two year period, therefore, 68% (15 of 22) of Arizona AJDs analyzed by 

the joint commenters found no jurisdictional waters to be present. When only AJDs 

involving ephemeral washes are considered, 94% of Arizona AJDs in this period (15 out 

of 16) resulted in a finding of no jurisdiction. For the 13 AJDs where a significant nexus 

analysis was done on ephemeral washes where OHWM was present, 92% (12 of 13) 

concluded that a significant nexus with a TNW did not exist. Absent some clarification to 

the proposed definition of “tributary,” some or all of these currently non-jurisdictional 

washes seemingly would become regulated if the proposed rule is adopted.

For these reasons, the estimated 2.7% increase in the number of permits required is likely 

woefully low, at least in Arizona. 

Recommendation: (1) The agencies should consider regional data (such as that 

discussed above) when trying to estimate the number of additional permits that would be 

required if the proposed rule were adopted, and the resulting economic impact. (2) The 

agencies also should acknowledge that many applicants have been conceding jurisdiction 

under PJDs, even where it may not exist, simply to expedite the permitting process. 

Failure to account for this fact leads to underestimating the change that would result from 

adoption of the proposed rule. (p. 51-52)

Agency Response: See Summary Response to Topic 11.2 on jurisdictional 

determinations, including PJDs.

11.2.104 c. Estimated additional mitigation cost estimates are too low: The Analysis (p. 

18) estimates that increased mitigation costs will be $8.7 million to $13 million per year 

nationwide, based on an estimated additional 49,075 feet of stream that would be 

regulated under the proposal. For the reasons noted above, the estimated additional 

number of permits, and therefore of mitigation associated with those additional permits, 

has likely been underestimated. At least in Arizona, so has the cost per acre of mitigation 

(typically, the Corps in Arizona has based mitigation on acreage of waters impacted, not 

linear stream feet) is high and increasing, even where (as is typical) the impacted water is 

an ephemeral wash.
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Arizona has no approved mitigation banks. There have been some approved in lieu fee 

(“ILF”) programs available in the past, with costs ranging up to around $25,000 per acre 

of credit. However, ILF programs currently are limited in Arizona because few have been 

approved under the agencies’ 2008 mitigation rule, which established more rigorous (and 

less flexible) requirements for approval of ILF programs. Moreover, for those under 

consideration, costs are likely to increase significantly if they are approved. For example, 

in a recent meeting, representatives of the Arizona Game and Fish Department told 

representatives of one of the joint commenters that based on the Department’s 

preliminary analysis, the cost of credit at a site it was working with the Corps to get 

approved under the ILF program was likely to be in range of $85,000 per acre.

Recommendation: The agencies’ estimated costs should be revised to reflect more 

realistic costs per acre that are likely to be required for mitigation under the Section 404 

program. (p. 52-53)

Agency Response: The agencies have updated mitigation costs as more reliable 

information has become available. See the Economic Analysis associated with the 

Final Rule.

11.2.105 d. Project design changes caused by having to obtain a Section 404 permit are 

not considered: If a Section 404 permit is required, it can be issued only if the applicant 

implements the least environmentally damaging practicable alternative, which includes 

avoiding and minimizing impacts to jurisdictional waters. See 40 C.F.R. § 230.10(a). 

Thus, if a permit is required, an applicant may be required to construct a different 

(typically smaller) project than would have been possible if no jurisdictional waters had 

been determined to be present at the site. A common example in Arizona is a mixed use 

development project in a location with many small ephemeral washes present; if those 

washes are identified as jurisdictional, the project’s density (and profitability) can be 

reduced significantly. Therefore, in cases where no permit would be required today but a 

permit would be required if the proposal is adopted, there will often be significant lost 

opportunity costs related to the requirement to obtain the permit. The agencies do not 

appear to have considered this cost, which can often be significant.

e. Some costs associated with obtaining a permit also have not been considered: In many 

cases, a Section 404 permit is the only federal permit associated with a particular activity. 

This is especially true of construction in states with delegated NPDES programs, like 

Arizona. In those cases, the determination that a Section 404 permit is required triggers 

other federal requirements, including the National Environmental Policy Act (“NEPA”), 

the National Historic Preservation Act, and the Endangered Species Act,72 none of which 

 

72 Even if there is no federal permit required, some requirements of the ESA would apply, such as the

prohibition on take of listed animal species. But if a federal permit is required, the scope of ESA analysis

expands (for example, critical habitat restrictions come into play, as do impacts to listed plant species), and

the formal Section 7 consultation process is triggered.
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would be implicated in the absence of the Section 404 permit. When these additional 

requirements are triggered, they can significantly increase the costs and time needed to 

accomplish a project (especially if an EIS is determined to be required under NEPA). An 

applicant typically will be required to retain consultants and prepare additional reports, 

followed by sometimes extensive give and take with a regulatory agency based on the 

results of those studies (e.g., with the State Historic Preservation Officer after cultural 

resource studies are prepared under the National Historic Preservation Act). These delays 

in permitting, in turn, lead to delays in an applicant’s ability to generate income at a site. 

The agencies have not acknowledged any of these costs in their proposed economic 

impact analysis.

Recommendation: The final analysis of costs should recognize that any expansion in 

Section 404 permit requirements has the potential to result in additional federal 

permitting and consultation costs, as well as delayed business opportunities, and should 

attempt to quantify those costs. (p. 53-54)

Agency Response: The agencies have quantified costs associated with a change 

relative to recent practice and identified where costs could not be monetized, though 

the rule is narrower than existing regulations and historical practice. See Summary 

Responses under Topic 11.3.1 for 404 costs and 11.4 for costs in other CWA 

programs.

Vulcan Materials Company (Doc. #14642)

11.2.106 Should rulemaking proceed despite widespread and significant objections from 

broad sectors of the U.S. economy, then prior to proceeding with the rulemaking, a 

comprehensive economic analysis of impacts should be prepared and the analysis used as 

a basis for re-review of the rule under the government oversight processes. (p. 3)

Agency Response: Agency Response: The rule is narrower in scope than existing 

regulations and historical practice. The accompanying economic analysis addresses 

changes in the assertion of jurisdiction that may occur relative to recent practice 

and the resulting impacts on CWA programs. See Summary Responses to Topics 

11, 11.2, 11.3, 11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns 

related to the economic analysis.

Home Builders Association of Mississippi (Doc. #19504)

11.2.107 Fails to Recognize the True Economic Impacts. Among numerous other 

procedural flaws, the proposal fails to sufficiently recognize and quantify the costs 

associated with the expanded definition of "waters of the United States." Indeed, many of 

these costs, including those associated with increased permitting, mitigation, and 

regulatory uncertainty, will be borne by home builders and other small businesses. Using 

inadequate data and improper baselines to assess the costs of the rule, however, the 

Agencies have wrongfully certified the rule will not impose a significant economic 

burden on small businesses. (p. 3)
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Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. In addition, the rule is definitional and does not 

impose any direct costs. See Summary Response to Topic 11.1 RFA/SBREFA.

National Association of Home Builders (Doc. #19540)

11.2.108 The Proposed Rule Fails to Recognize the True Economic Impacts. Among 

numerous other procedural flaws, the proposal fails to sufficiently recognize and quantify 

the costs associated with the expanded definition of "waters of the United States." Indeed, 

many of these costs, including those associated with increased permitting, mitigation, and 

regulatory uncertainty, will be borne by home builders and other small businesses. Using 

inadequate data and improper baselines to assess the costs of the rule, however, the 

Agencies have wrongfully certified the rule will not impose a significant economic 

burden on small businesses. (p. 3)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

11.2.109 VIII. The Economic Analysis Supporting the Proposed Rule is Inadequate.

Agencies are subject to a number of statutes and executive orders (E.0.s) that direct them 

to conduct specific types of economic analyses to accompany proposed rules. As EPA 

recognizes in its Economic Analysis of Proposed Revised Definition of Waters of the 

United States, "estimates of the economic costs and benefits that may indirectly be 

imposed on governments and regulated entities can help inform the public and 

policymakers of some of the implications associated with this proposal."73 Despite this 

recognition, the Agencies' have developed an economic analysis of the proposed rule that

relies on a flawed methodology for estimating the extent of newly-jurisdictional waters, 

uses dated and incomplete cost figures, and underestimates, the impact of the proposed 

definitional change. Contrary to the analysis, the proposal will have a significant impact 

on the home building industry and will negatively impact housing affordability.

a. EPA's Economic Analysis of the Proposed Rule is Fundamentally Flawed.

There are numerous problems with the methodology followed to complete the economic 

analysis that render it unreliable. For example, it only addresses and studies the "other 

waters" category of CWA jurisdiction and assumes the jurisdictional status of tributaries 

 

73 EPA Economic Analysis at 2.
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and wetlands will not change. To make this determination, the Corps performed a sample 

review of 262 project files from the Corps' ORM2 database "isolated waters" category. 

All 262 records are considered outside the scope of CWA jurisdiction under current 

regulatory guidance, but the Agencies predicted that only 17% of these "isolated waters" 

would be subject to CWA jurisdiction under the proposed rule. Further, given that very 

little detail is provided to describe exactly how this comparison was completed or how 

and if the ORM2 data is an appropriate source for making such an assessment, the public 

is left with virtually no recourse but to believe the agencies. This complies with neither 

the Administrative Procedure Act nor the "transparency" and "reproducibility" standards 

of the Federal Information Quality Act. Equally troubling, the Agencies did not conduct a 

similar sample review to determine how jurisdiction might change for other jurisdictional 

categories of waters (i.e., "tributaries" or "adjacent waters," as newly and broadly 

defined). This is unfortunate, as it is clear that the status of many of these areas will 

change, as well, including those wetlands located within floodplains that are not 

proximate to a traditional navigable water and would not have likely been considered 

jurisdictional before, but would be under the proposal.

Similarly, economist Dr. David Sunding, the Thomas J. Graff Professor at the University 

of California-Berkeley's College of Natural Resources, acknowledges the unreliable data 

sample the EPA uses in the Analysis: 

"The analysis uses FY 2009/2010 as the baseline year to estimate impacts. FY 

20091201 was a period of significant contraction in the housing market due to the 

financial crisis. Construction spending during these two fiscal years was 24% 

below that of the previous two-year period. In statistical terms, this is an issue of 

sample selection, where due to exogenous events the sample selected for the 

analysis is not representative of the overall population The report bases its finding 

on a period of extremely low construction activity, which will result in 

artificially-low number of applications and affected acreage. Even if the percent 

increase in added permits is correct, using the number or permits issued in 2010 

as a baseline is very likely a significant underestimation of the affected acreage in 

years not subject to a crisis in the building sector.'"74

Much of the other data used, however, is equally problematic, as many are dated and/or 

incomplete. Indeed, rather than collecting data specific to support this rulemaking, the 

Agencies are attempting to meld the data they have into the forms they need to fill. For 

example, the permit cost estimates are over 20 years old and have not even been adjusted 

for inflation. Many of the mitigation costs are so low as to be laughable. Further, those 

estimates were provided at a very different time in the housing industry, so are hardly 

reflective of today's realities. Likewise, although EPA acknowledges that the sponsors of 

many private sector as well as public sector projects that are subject to CWA Section 404 

 

74 Sunding Review of EPA’s Economic Analysis at 10.
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permitting can also incur non-trivial permitting time costs and/or impact avoidance and 

mitigation costs, the compliance costs for those categories are not estimated because 

"there is not a defensible, ready basis for estimating these costs."75 Just because the data 

are not readily available does not give the agencies an out. Such a response is absurd and 

results in the calculation of incremental costs that is wholly deficient.

Finally, EPA uses a flawed methodology for its calculation of benefits. EPA's Analysis 

adopts an all-or-nothing approach to assessing benefits by assuming that all wetlands 

affected by the proposed rule's definitional change would be filled. On the flipside, EPA 

makes the assumption that the proposed rule would preserve or mitigate land if federal 

jurisdiction is extended by the rule. These unrealistic assumptions contribute to an 

inflated benefits calculation.

It is clear that the Economic Analysis has major flaws in approach, methodology and 

data. Indeed, the fact that EPA readily states that "the economic analysis is necessarily 

based on readily available information and the resulting cost and benefit estimates are 

incomplete,"76 should give anyone pause. And it has. According to Dr. Sunding "the 

errors and omissions in EPA's study are so severe as to render it virtually meaningless."' 

EPA must withdraw the Economic Analysis and prepare an adequate study of this major 

change to the CWA. Yet again, the Agencies are painting an inaccurate picture of how 

this regulation will impact small businesses. (p. 135-137)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis. See also Topic 13 on Administrative Procedures.

11.2.110 b. The Agencies Use an Incorrect Baseline to Estimate the Economic Impacts 

of the Proposed Rule.

In the preamble of the proposed rule, the Agencies claim that because “this proposed rule 

is narrower than that under the existing regulations . . . fewer waters will be subject to the 

CWA under the proposed rule than are subject to regulation under the existing 

regulations,” and “[a]s a consequence , this action . . . will not have a significant adverse 

economic impact on a substantial number of small entities . . .”77 The “existing 

regulations” that the Agencies reference here is the 1986 rule defining “waters of the 

United States.”78 Yet, in EPA’s Economic Analysis, the Agencies assess the regulation 

with respect to current practice under the 2008 Rapanos Guidance and determine the rule 

 

75 EPA Economic Analysis at 14.

76 Id. at 2.

77 79 Fed. Reg. at 22,220

78 51 Fed. Reg. at 41,206.
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will increase CWA jurisdiction by approximately 3%. The Agencies’ claims in the 

preamble and the Economic Analysis contradict one another.

The proper baseline from which to assess the proposed rule’s economic impact, as 

guidance from OMB’s Office of Information and Regulatory Affairs (OIRA) 

substantiates, is that of current practice. OIRA’s Circular A-4 provides guidance to 

federal agencies on the development of regulatory analysis and states that “[t]he baseline 

should be the best assessment of the way the world would look absent the proposed 

action.”79 The 1986 regulation has been abrogated by both SWANCC and Rapanos and is 

no longer in use. Indeed, the Agencies are currently operating under guidance issued in 

December 2008 which sought to bring jurisdictional determinations in line with these 

cases. By using the 1986 regulation as the baseline to certify the proposed rule will not 

have a significant economic impact on a substantial number of small entities grossly 

underestimates the costs associated with the proposed rule. The Agencies must compare 

the costs associated with the proposal to those incurred under the status quo 2008 

Rapanos Guidance. (p. 137)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 10 and 11.

North Carolina Aggregates Association (Doc. #6938)

11.2.111 EPA's economic analysis is flawed, because it does not take into account the real 

costs of permitting and mitigation. The economic analysis relies on cost data that is 

almost 20-years old and is not adjusted for inflation. EPA and the Corps must also 

convene a Small Business Regulatory Flexibility Act panel as required by law to assess 

the impacts on small businesses. (p. 2)

Agency Response: The agencies did adjust for inflation. See Summary Response 

to Topic 11.3.1 and 11.4. See also Summary Response 11.1 on RFA/SBREFA.

Kansas Independent Oil & Gas Association (Doc. #12249)

11.2.112 Specific Comment to U.S. EPA and U.S. Army Corps of Engineers 

Regulatory Impact Analysis

Affected acreage. EPA's analysis uses FY 2009/2010 as the baseline year to estimate 

impacts, which was a period of significant contraction in the market due to the financial 

crisis. EPA makes an assumption that the new rule will not affect the agency's overall 

workload. Under the new rules, jurisdiction will increase and more projects will likely be 

 

79 Office of Management and Budget, Circular A-4, Subject: Regulatory Analysis (September 17, 2003) at 15, 

available at http://www.whitehouse.gov/sites/default/files/omb/assets/regulatory_matters_pdf/a-4.pdf
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seeking permits. EPA assumes the incremental impacts to Sec. 404 permitting can be 

applied to other CWA programs. EPA's analysis ignores important state- and sizespecific variations in permit applications.

Costs. EPA's analysis uses data on permitting costs that are nearly 20 years old and are 

not adjusted for inflation or any other changes in the permit system. EPA analysis omits 

the costs of avoidance and delay, which are likely the largest out-of-pocket expenses. 

EPA claims that they use the same methods as their 2011 analysis to estimate the amount 

of mitigation. However, the baseline mitigation level and per acre cost of mitigation does 

not match the 2011 analysis. Further, the upper bound mitigation costs estimates used in 

the 2013 analysis are significantly lower than the 2011 analysis, without any explanation 

as to why. Costs to some programs, like Section 303 (state water quality standards and 

implementation plans) and Section 402 (National Pollutant Discharge Elimination 

System), are assumed to be "cost-neutral or minimal" without providing any analysis to 

support this conclusion. The effects of a definitional change are likely to vary 

significantly from program to program, however careful assessment of program-specific 

effects is omitted in lieu of simplistic, generalized estimations. EPA suggests that 

additional permit applications may require increased consultation with other agencies, 

which would drive up the costs of a definitional change. These costs are omitted from this 

analysis.

Benefits. EPA utilizes third-party studies to estimate an average willingness to pay for 

wetland mitigation that are outdated and do not provide accurate estimates of benefits. 

Nine of the ten studies relied upon by EPA are more than a decade old (the oldest is 

nearly 30 years old) and many were not published in peer-reviewed journals. Benefits are 

calculated based on an unstated and an immediately issued interpretive rule to provide 

assurance to the agricultural sector of an effort to preserve their exemption 

notwithstanding the breadth of this new proposed definition modification. The agencies 

acknowledge the overly expansive regulatory result of this proposal and therefore are 

taking policy corrective measures even prior to implementation of the new definition. 

This supplemental effort is awkward and highlights the underlying problem of the 

administrative overreach of this proposal.

Water Quantity. The agencies suggest the new proposed definition is not intended to 

supersede, abrogate or otherwise impair states' authorities to allocate quantities of water. 

The agencies announce development of new tools to make jurisdictional determinations. 

Underlying the use of helpful tools is the question of whether water quality (as defined by 

the states consistent with federal recommended criteria) become so broadly applicable to 

all waters of the United States, the states are essentially paralyzed. A desktop default that 

concludes all waters are jurisdictional and therefore there are no allocations that are 

permissible is indeed an abrogation of state authorities. The agencies' unreasonable 

application of the Clean Water Act will result in unreasonable consequences such as a 

wholesale limitation on water quantity allocations. (p. 17-18)
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Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

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

11.2.113 The scope and reach of CWA jurisdiction has a direct impact on the costs of 

planning, financing, constructing, and operating an aggregates facility. Even under the 

current CWA regulatory scheme, opening a new aggregates operation is a very 

complicated process and often involves millions of dollars and often takes up to ten 

years. As reported by one NSSGA member, the expected sequence for opening a 

Greenfield (new) crushed limestone operation could take most of a decade and cost $50 

million dollars.

Even before investing the entire purchase price of a mining operation, aggregate 

producers expend tremendous amounts of time and money locating potential aggregate 

resources and determining their quantity and quality. They also spend large amounts of 

money and effort determining the feasibility of production; identifying potential 

environmental impacts from production; making certain their operations conform to the 

relevant laws; and obtaining the necessary permits to extract, process, and transport the 

aggregate.80 For example, one NSSGA member reported having spent over 10 years and 

$1 million dollars to obtain a Corps 404 permit. Further, even the Supreme Court in the 

Rapanos case recognized the tremendous costs and time required to obtain an individual 

Section 404 permit.81 During this process, operators incur additional costs to satisfy the 

permit and zoning requirements of states, counties, municipalities, and other 

governmental agencies.

In addition to the enormous capital investments needed to obtain the necessary permit 

approvals, an aggregates company would typically forgo other supply options, possibly 

close and reclaim other existing sources, develop markets and outlets, and, for vertically 

integrated companies, purchase, secure, or develop related operations that use and rely 

upon the mined material. These latter activities typically take years to plan, fund and 

implement. Although NSSGA takes issue with the jurisdiction increase percentage put 

forth by the EPA, even the artificially low EPA estimated increase of 3% for non-isolated 

wetland and a 17% in "other waters," will greatly increase the regulatory costs and delays 

 

80 Aggregate and the Environment, at 24.

81 In Rapanos, Justice Scalia, in the plurality opinion, even observed that "the average applicant for an individual

permit spends 788 days and $271,596 in completing the process and the average applicant for a nationwide permit

spends 313 days and $28,915, not counting costs of mitigation or design changes" (citing Sunding & Zilberman,)
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in obtaining permits. This will undoubtedly have a ripple adverse effect on a broad range 

of companies' business investments.82

The impact of the expansion of CWA jurisdiction under the proposed rule is especially

serious given the slow economic recovery from the recession. Aggregates production has

dropped 39% since 2006 (from 3.11 billion tons to 1.91 billion tons). EPA's 2014 

"Economic Analysis of the Proposed Revised Definition of Waters of the United States" 

estimates that an increase in the regulations of wetlands and isolated "other waters" will 

result in an increase in mitigation costs from a low estimate of $78.7 million to a high 

estimate of $222.1 million. However, a review of EPA's Economic Analysis by 

University of California at Berkeley Professor David Sunding concludes that EPA 

significantly underestimates the costs because EPA fails to consider many major 

categories of impacts properly, including impacts from increased NPDES permitting, 

section 401 water quality certification, and section 311 oil spill control requirements. Dr. 

Sunding also feels that EPA's preliminary economic analysis lacks credibility and is 

speculative and misleading.83

All told, it is undisputed that the already high costs of CWA regulation to aggregates

operators will clearly increase under the proposed rule at a time when the industry and 

the public it serves can ill afford it.84 One eastern U.S. aggregates producer finds that the 

expanded scope of the proposed rule significantly increases costs. The producer estimates 

that the new cost for mitigation would be $2.75 million compared to the estimated 

$200,000 under the current rule because the site is located within a floodplain and 

includes similarly situated waters that would likely be jurisdictional under the proposed 

rule. Another aggregates producer in the Midwest finds similar increases for site 

mitigation. The producer notes that expanding the current quarry will lead to additional 

mitigation costs of $1.67 million under the proposed rule, based on a wetlands 

consultant’s evaluation of the 14,000 linear feet of intermittent streams and potential 

connection to a nearby navigable river. A western producer estimates that because dry 

washes and ephemeral streams will now be jurisdictional, minable material will drop to 

half of the producer's original estimate of 30 million tons (Attachment 1). We base these 

examples on years of experience in dealing with on the ground Corps permitting and a 

careful review of the proposed rule.

Taken further, these examples show how the EPA cost estimates for the rule are vastly 

underestimated. For example, one aggregate producing company estimated a $30 million 

impact from this rule for just one region because of resources that will no longer be 

 

82 EPA, "Economic Analysis of Proposed Revised Definition of Waters of the United States" at 2 (Mar. 2014).

83 Dr. David Sunding, "Review of 2014 EPA Economic Analysis of Proposed Revised Definition of Waters of the

United States" for Waters Advocacy Coalition (May 15, 2014) found that EPA's analysis "systematically understates

the impact of the definitional changes" in the proposed rule.

84 NSSGA adopts the comments of the Waters Advocacy Coalition including Dr. Sunding's study that describes the

economic impacts in considerable detail.
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available, as well as the increased costs of transporting material over long distances. If 

resources are placed off limits, the costs to states will also increase dramatically and 

could reach billions as some resources become too expensive to access due to increased 

mitigation costs. (p. 12-14)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

11.2.114 EPA’s economic analysis of this rule does not accurately show what businesses 

like ours will end up paying if this rule is finalized. It is not even close. One NSSGA 

member calculated that to do the additional mitigation of a stream required under this rule 

would be more than $100,000; this is just for one site in our industry. This is more than 

EPA has estimated the stream mitigation costs are for entire states in its economic 

analysis. For our business, time is money. Any new requirements lead to a long learning 

curve for both the regulators and the regulated. Just getting a jurisdictional determination 

can take months - permits can take years; how much longer will it take to break ground 

with so many vague and undefined terms in this rule?

The proposed rule has no clear line on what is “in” and what is “out,” making it very 

difficult for our industry and other businesses to plan new projects and make hiring 

decisions. If it is determined development of a site will take too long or cost too much in 

permitting or mitigation, we won’t move forward. That means a whole host of economic 

activity in a community will not occur--all of this in the name of protecting a ditch or 

farm pond. 

Taken further, a significant cut in aggregates production could lead to a shortage of

construction aggregate, raising the costs of concrete and hot mix asphalt products for 

state and federal road building and repair, and commercial and residential construction. 

NSSGA estimates that material prices could escalate from 80% up to 180%. As material 

costs increase, supply becomes limited, which will further reduce growth and 

employment opportunities in our industry. Increases in costs of our materials for public 

works would be borne by taxpayers, and delay road repairs and other crucial projects. 

Given that infrastructure investment is essential to economic recovery and growth, any 

change in the way land use is regulated places additional burden on the aggregates 

industry that is unwarranted and would adversely impact aggregates supply and vitally 

important American jobs. (p. 74-75)

Agency Response: The agencies have taken into consideration comments and have 

modified the rule language to take into consideration uncertainty and clarity of 

jurisdiction. See the Preamble for the rule.
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Wyoming Mining Association (Doc. #14460)

11.2.115 Increased Costs and Delays

With the undoubted and significant expansion of jurisdiction that will come from the 

proposed definition of "WOUS" the volume of jurisdictional determinations and permits 

that will be required to comply with the rule will increase significantly. The proposed 

rule states that it will "... reduce time and resources demanding case specific analyses 

prior to determining jurisdiction...".85 This statement is found to be false by the WMA. 

Not only will there be added time delays in the permitting process due to the sheer 

number of waters that will be considered jurisdictional, there will also be costs associated 

with the time delays as well as additional permitting and compliance expenses. (p. 7)

Agency Response: The agencies have modified the rule language and economic 

analysis in response to comments, and expect the rule to reduce delays related to 

uncertainty of jurisdiction. See the Preamble to the rule.

The Mosaic Company (Doc. #14640)

11.2.116 Expansion of Jurisdiction Under the Proposed Rule will have Major 

Implications for all CWA Programs

The proposed rule would broaden the scope of numerous CWA programs and result in 

additional obligations for Mosaic and other stakeholders. The rule, by its terms, extends 

federal CWA requirements to ephemeral drainages, ditches (including roadside, flood 

control, irrigation, stormwater, and agricultural ditches), waterbodies in riparian or 

floodplain areas, industrial ponds, and isolated waters that have not previously been 

regulated as "waters of the U.S." The new definition of "waters of the U.S." would apply 

for all sections of the CWA. 79 Fed. Reg. at 22,188. As a result, Mosaic could face costly 

new obligations under CWA sections 404,402,401,303,304,305, and 311. Neither the 

EPA Economic Analysis nor the preamble address these implications or explain how the 

new definition of "waters of the U.S." will be implemented throughout the various CWA 

programs.

The Economic Technical Report provided in Appendix A describes some of the proposed 

rule's implications for certain CWA programs. As written, the proposed rule may foster 

uncertainty, lengthen delays, raise compliance costs, increase permitting requirements, 

lead to inapposite statutory results, expose stakeholders to a broader array of enforcement 

actions and citizen suits, and increase environmental compliance burdens under other 

statutes. Increased burdens on States could lead to even more delays and lost opportunity 

costs for Mosaic and other stakeholders. (p. 29)

 

85 79 Fed. Reg. at 22,191
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Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

11.2.117 The estimated costs and benefits in the study do not provide useful information 

for assessing the consequences of the proposed WOTUS rule. Indeed, EPA states that 

“[r]eaders should be cautious in examining these results in light of the many data and 

methodological limitations, as well as the inherent assumptions in each component of the 

analysis.”(EPA Study, pg. 2) Based on our assessment, we concur that caution is 

appropriate. The study contains methodological flaws, suffers from the absence of direct 

data, and incorrectly applies the data that is available. As a result, the study is based on 

unreliable data: overestimating benefits and underestimating costs. In a seminal article 

published in Science magazine, a team of economists articulated eight principles for the 

appropriate use of benefit-cost analysis. One instance they felt benefit-cost analysis 

would not be useful is when the benefits and costs are too uncertain (Arrow et al. 1996). 

The EPA’s cautioning note and this review clearly show that in this case, the benefits and 

costs are too uncertain, and as explained in Section 4, the benefits in particular are 

overestimated and do not meet the requisite standard of reliability. 

The approach relied on in the Study significantly understates costs. Key issues are:

 Use of non-representative permit data from 2009-10 during the “Great 

Recession”, which will underestimate future demand for permits

 Use of the ORM2 database, which could significantly underestimate the total 

acreage affected by the proposed rule

 Socio-economic costs and lost profits are not quantified

 Omits key Section 404 cost categories, which EPA notes could be significant.

In addition, because of the uncertainty of the magnitude and location of areas that would 

become jurisdictional, the Study assumes they have the same geographic distribution as 

current jurisdictional acres. This is a highly speculative assumption and could have a 

significant impact on costs given variation in mitigation credit prices both across and 

within states. 

The approach adopted overstates benefits associated with mitigating impacted wetland 

acres resulting from the proposed rule. Benefits are measured by using stated preference 

studies that are inherently unreliable. Moreover, this approach cannot account for the fact 

that ecological benefits from the isolated waters decline with increasing isolation from 

traditional navigable waters (TNWs), and decline with their size. The assumption that per 

acre benefits are constant, with no basis for assuming their purported benefit estimates 

can be applied to the small wetlands and waterbodies is central to the proposed WOTUS 
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rule. The benefit estimates are also subject to double-counting, as the Study’s calculations 

ignore that more than half of all states already claim jurisdiction and require mitigation 

for current federal non-jurisdictional (isolated) waters. Notably, the EPA warns that these 

benefit estimates are “illustrative”.

It is our recommendation that EPA develop reliable data and methods that reduce the 

need for caution and take the analysis beyond illustrative. Specifically, we suggest:

 Collecting adequate data required for robust projections of CWA permitting 

activity.

 Improving estimates of impacted acreage under the proposed rule and developing 

a more accurate inventory of the waters subject to the expanded CWA 

jurisdiction.

 Developing approaches for estimating the types and level of ecological benefits 

the waters provide, particularly those remote to TNWs.

 Including appropriate compliance costs currently omitted from the current EPA’s 

estimates.

 Discarding benefit estimates based on hypothetical values in favor of avoided 

costs, which shows the cost of developing and maintaining an engineered solution 

providing the same services.

 Developing approaches for considering incremental, not average, benefits and 

costs.

Only with the additional data can the regulated community and decision-makers begin to 

determine whether the proposed CWA jurisdiction provides benefits above costs. (p. 40-

41)

Agency Response: See Summary Responses to Topics 11, 11.2, 11.3, 11.3.1, 11.3.2 

and 11.4 on how the agencies have addressed concerns related to the economic 

analysis.

11.2.118 2 Projected Scope of Impact

A necessary component of any economic analysis of a regulatory change is a measure of 

the scope of the change using a metric that has a meaningful link to costs and benefits. 

The EPA study projects the incremental increase in Section 404 permits and impacted 

acreage it expects would result if jurisdictional determinations in FY 2009-10 had been 

made according to the WOTUS definition described in the proposed rule. However, use 

of an inadequate and unrepresentative permitting database leads to underestimates in the 

percent increase in CWA jurisdiction.

Compounding this error, applicability of the estimated percent increase based on a single 

year of permitting activity at the height of the global financial crisis, leads to 

compounded under-estimates of the incremental increase in Section 404 permits and 
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impacted acreage expected under the proposed rule. A more reliable approach would be 

to build a database designed specifically to meet the requirements of this study, and to 

use historical permitting data to normalize the baseline period for the effect of the recent 

economic downturn on development projects. (p. 42)

Agency Response: See Summary Response to Topic 11.2 on scope of jurisdiction.

11.2.119 2.1 Overview of Approach

To project the increase in Section 404 jurisdiction, EPA examined applications for 

Section 404 permits, approved jurisdictional determinations (JD), and wetland 

delineations submitted in FY 2009-2010 and stored in the United States Army Corps of 

Engineers’ (USACE) ORM2 database. Of the 141,965 applications, 133,756 were 

categorized as involving impacts to wetlands or streams. The remaining 8,209 were 

categorized as involving impacts to “other waters”, a term referring to waters least likely 

to have a connection with traditional navigable waters (TNW) in the CWA. These “other 

waters” are an important component of the proposed rule. Based on its review, EPA 

projects 100 percent of the applications that impact wetlands and streams will also have 

areas that meet the revised definitions of “adjacent” and “tributary”. This is projected to 

result in a 2 percent increase in jurisdiction of wetlands and streams. For other waters, 

based on review of 262 project files, the agencies determined the proposed WOTUS rule 

would impact the jurisdictional status of 17 percent of those projects. As illustrated in 

Exhibit 3 of the EPA Study, the analysis leads to an overall predicted 2.7 percent increase 

in CWA jurisdiction beyond current practices.

The next step in the EPA Study is to estimate the incremental increase in both the number 

of Section 404 permits that would be issued and the impacted acreage subject to 

compensatory mitigation under the proposed rule. Relying again on the ORM2 database, 

EPA multiplies the number of Section 404 permits issued in FY 2009/10 (51,917), by the 

2.7 percent projected increase. This yields an incremental increase of 1,402 Section 404 

permits that would need to be issued under this rule than under the 2008 Guidance. 

Multiplying these 1,402 incremental permits by the average number of acres impacted 

per permit (0.95 acres) results in an incremental increase of 1,332 acres of additional 

wetland impacts nationwide each year. Upon distributing the impacted acres to individual 

states in proportion to the actual JD acreages permitted in FY 2009-10, per acre cost and 

benefit estimates are used to arrive at total nationwide incremental cost and benefit 

associated with the proposed rule. 

Unfortunately, this method of projecting the incremental number of new Section 404 

permits and the corresponding increase in impacted acreage leads to a significant 

underestimation of the likely impact of the proposed rule. The drawbacks to the methods 

employed and the associated implications are discussed in the following sections, along 

with suggestions for improvement. (p. 42)

Agency Response: See Summary Response to Topic 11.2 on incremental 

jurisdiction.
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11.2.120 2.2 The Baseline Does Not Account for the Effect of the Financial Crisis on 

Development

The EPA study selected FY 2009/10 as a baseline because it encompassed projects 

subject to CWA jurisdiction based on both the Supreme Court’s SWANNC (2001) and 

Rapanos (2006) decisions. Unfortunately, that same period, October 2009 – September 

2010, represented the height of the recent sidential and commercial real estate were 

among the hardest hit sectors of the economy. Total construction spending averaged 

$0.86 billion in FY 2009/10, compared with $1.1 billion per year during the previous 7 

years (after adjusting for inflation per the U.S. Department of Commerce 2014a). Figure 

1 illustrates that fewer new residential housing units were authorized for construction in 

FY 2009/10 than for any time over the previous 54-year period (U.S. Department of 

Commerce 2014b).

Figure 1. New Residential Housing Units Authorized for Construction, United 

States, 1959-2013

This evidence confirms that FY 2009/10 was likely a period with an unusually low 

issuance rate of Section 404 permits. Further, projects that did continue likely did so at a 

reduced scale, as funding for development contracted. As a result, the baseline number of 

Section 404 permits issued along with the average impacted acres per permit, would be 
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underestimated, which in turn underestimates both projected annual costs and benefits, 

but not in equal amounts.

As one of several steps needed to address this concern, the analysis should be updated 

using permit data for more recent years when the U.S. economy was at more normal 

levels. Alternatively, EPA could analyze historic Section 404 permitting data, then 

compare and correlate it to various economic indices, to “normalize” the effect of the 

financial crisis. Each of these approaches would provide a more informative and direct 

sensitivity analysis of the EPA’s baseline. (p. 43-44)

Agency Response: The agencies updated the jurisdictional determination 

estimates for the final rule using data from 2013-2014. See Summary Response to 

Topic 11.2 on the 2009-2010 permit data.

11.2.121 2.3 The ORM2 Database is Unrepresentative of Proposed CWA Jurisdiction

As explained above, use of the FY 2009/10 period from the ORM2 database does not 

adequately represent the number of applications or acreage subject to potential 

jurisdiction under the proposed rule. As a result, it is expected that both the number of 

permits and the jurisdictional acreage is underestimated.

By its nature, ORM2 data cannot include instances when project proponents did not seek 

a jurisdictional determination because they believed no wetlands were present, or 

instances where project proponents have forgone a formal process by agreeing to treat all 

waterbodies as jurisdictional. Because these instances most likely correlate with the very 

waters that would be captured as jurisdictional under the new rule, it is unreasonable to 

expect the Section 404 permit application rate to remain unchanged after the new rule 

goes into effect. As a result, the actual number of Section 404 permits issued in FY 

2009/10 is expected to understate the baseline to which EPA applies its 2.7 percent 

projected increase factor.

In addition, ORM2 does not contain sufficient information to estimate the extent of 

potentially jurisdictional areas. Dr. David Sunding obtained records from the ORM2 

database through a Freedom of Information Act request to conduct a review of the EPA 

study on behalf of The Waters Advocacy Coalition. In his findings, Dr. Sunding 

highlights that ORM2 records include impacted acreage, but not total acreage of 

waterbodies on a project site (Sunding 2014). Because the proposed rule will expand 

CWA jurisdiction, ORM2 cannot be used to reliably estimate the average impacted acres 

per project under the proposed CWA jurisdiction. Consequently, the additionally 

impacted acreage presented in Exhibit 5 of the EPA Study is underestimated (by the ratio 

of the averages of impacted acreage under current jurisdiction to total jurisdictional 

acreage under the proposed rule).

This underestimation can be illustrated by a representative portion of a Mosaic project. 

For a Mosaic project with a completed formal jurisdictional, 4,877 acres were considered 

wetlands or other waters. A review of that information, however, leads to an expectation 

that approximately 5,660 acres would be jurisdictional under the proposed rule. The 
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ORM2 database, however, would only contain the 4,877 acres of currently jurisdictional 

wetlands, understating the potential impact area under the proposed new rule by 16 

percent. A significant fact that should be noted in this case, is that the proposed rule 

wouldn’t provide an actual increase in benefits because the wetlands and other waters at 

issue are already considered jurisdictional by the state of Florida and require mitigation.

Nonetheless, this information demonstrates the inadequacy of ORM2 to directly support 

the EPA’s economic analysis. If EPA intends to use ORM2, we recommend that other 

methodologies for estimating the expected number of additional permits resulting from 

the proposed rule be explored. To address the under-representation of jurisdictional 

waterbodies in the FY 2009-10 ORM2 records, EPA could compute the average impacted 

acreage per project using records that pre-date the SWANNC and Rapanos decisions. 

While jurisdictional guidelines differ from current and proposed guidelines, preSWANNC and pre-Rapanos projects more closely approximate the universe of 

waterbodies covered by the jurisdiction in the proposed rule than do projects in FY 2009-

10. Use of pre-SWANNC and pre-Rapanos project data would also likely compensate for 

the scaled back project acreages that occurred in the FY 2009-10 time frame in response 

to the global financial crisis. (p. 44)

Agency Response: The agencies do not have data for pre-SWANCC 

determinations to use for this analysis. See Summary Response to Topic 11.2 and 

the Economic Analysis on adjusting for underrepresentation of jurisdictional 

waterbodies.

11.2.122 3.3 Lost Profits and Socioeconomic Costs

The EPA’s Study estimate of compliance costs does not quantify lost profits in the 

private sector, nor does it account for associated reductions in spending on goods and 

services produced by other industries. If the proposed rule restricts operational flexibility 

and interrupts industry operations, it may also result in lowering output, jobs and wages. 

The resulting costs are demonstrated by a situation at one of Mosaic’s phosphate rock 

mining operations located in Florida, which may have been idled for about three years if 

not for the operational flexibility preserved through CWA jurisdiction in 2010. At the 

time, the existing mining operation was not expected to have sufficient permitted reserves 

to continue operation during the preparation of a Phosphate District Area wide 

Environmental Impact Study (AEIS) and the subsequent time needed to permit a new 

parcel. Reserves on an adjacent unpermitted parcel of land, however, could be permitted 

for mining because the wetlands were considered isolated and nonjurisdictional by the 

USACE, and the permitting through the state could be conducted while the AEIS was in 

progress. This preserved Mosaic’s ability to continue to operate and produce its needed 

phosphate rock supply. The mine generates approximately 1.7 million tons of phosphate 

rock annually, at a value of approximately $169 million comprised—among other 
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things—of profits for Mosaic, along with wages associated with approximately 100 direct 

jobs that stimulate the economy through household spending.86 In addition to direct 

economic benefits, the mine, its benefaction facility and Mosaic’s fertilizer production 

operations support the purchase of goods and services from other industries, indirectly 

resulting in profits, wages and associated household spending for other individuals and 

businesses, as well as tax revenue to state and local governments. However, if the 

proposed rule were in effect at the time, CWA jurisdiction over the isolated wetlands on 

the adjacent parcel would have likely triggered a temporary mine shutdown, while 

waiting for the USACE Section 404 permit to issue, since at the time the USACE would 

not issue permits before the AEIS was completed. This potential outcome would occur 

even with no corresponding wetland loss, as the state of Florida independently claimed 

jurisdiction and required mitigation for the isolated wetland at issue.

While this situation is specific to Mosaic, it clearly demonstrates the types of costs that 

could be borne by unknown permittee and non-permittee enterprises when operational 

flexibility is restricted by expanded CWA jurisdiction. These direct, indirect and induced 

effects of changes in industry output have been quantified and well-documented using 

IMPLAN data and software in hundreds of studies of the economic costs of 

environmental policy changes. These studies could be reviewed for approaches to 

estimating and incorporating such costs based on estimated changes in economic output 

and income by the regulated community. (p. 49-50)

Agency Response: See summary responses to topics 11, 11.3.1, and 11.4 on costs.

11.2.123 4.1 Values Reported in the Primary Studies are Hypothetical

The use of Stated Preference Survey (SPS) values in the EPA Study as a surrogate for 

“benefits” of the proposed rule are hypothetical in that they don’t reflect the value people 

actually place on wetlands. SPS studies derive values from statements about what people 

would pay, without data revealing what people actually have paid (EPA Study, p.20) or 

the value of benefits actually provided. SPS studies are plagued with a host of biases, as 

discussed in Daniel McFadden’s 1994 review of hypothetical bias in valuing wilderness 

areas in the Selway Bitterroot Wilderness Area, Contingent Valuation and Social Choice, 

as well as Daniel Kahneman’s 2011 book, Thinking Fast and Slow.

The use of SPS methods for valuing ecosystem services is particularly troublesome, 

because the survey questions assume the respondents are fully and accurately informed 

about the specific goods or services being valued. Because wetlands can provide a host of 

services, EPA uses a total value approach where “the values elicited account for the 

varying degree and interrelationships among services provided, assuming respondents 

are sufficiently informed” (EPA Study, p.21). However, it is well known in the 

 

86 Area-Wide Environmental Impact Statement on Phosphate Mining in the Central Florida Phosphate District, U.S. 

Army Corps of Engineers, April 2013, Appendix H.
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ecological literature that not even scientists and practitioners agree on a definition of 

ecosystem services, and values may vary depending on the distance from a TNW. 

Therefore, it is extremely unlikely that a typical respondent from a random household can 

properly value wetland function. (Fisher, Turner and Morling 2009; Barkmann et al. 

2008).87

The only reliable approach for estimating the functional benefit value provided by these 

waters of flood protection, water supply, and water quality, is based on actual 

investments made to engineer/create those services. This requires an inventory of the 

waters likely subject to CWA jurisdiction under the proposed rule, and some measure of 

the types and level of services provided. By developing the cost to create engineered 

solutions to provide the same types and level of services, EPA can begin to measure 

benefit values. This approach is not without limitations, as users are only willing to pay 

for engineered solutions, where they perceive an actual need, such that the location of the 

newly jurisdictional waters is an important determinant of the benefit value that EPA 

must consider. (p. 52)

Agency Response: See Summary Response to Topic 11.3.2 related to wetlands 

benefits.

11.2.124 4.2 Wetlands Valued in the Primary Studies are not Comparable with 

Wetlands Protected under the Proposed Rule

Putting aside the question of whether the SPS method is appropriate, at the very least, the 

wetlands valued in the primary studies must be similar in size and ecological function to 

the wetlands that are the subject of the proposed rule, in order for the “benefits transfer” 

approach to be reliable. A recent article that reviews the methodology and challenges of 

the benefits transfer approach points out that “[t]he heterogeneity of some environmental 

goods, such as wetlands, presents a challenge with respect to acquiring sufficient primary 

study data that satisfies the requirement for commodity consistency.” (Boutwell and 

Westra 2013). This is because wetlands have a high degree of heterogeneity between sites 

(and even within sites) that affects the characteristics of the services provided. For 

example, what constitutes an environmental improvement to wetland functionality in one 

area may not be applicable or even viable in another area. While EPA purports to have 

focused on studies that value a “bundle of services” or “total resource values” provided 

by wetlands, the high degree of heterogeneity between and within wetland sites means 

the services valued are likely to vary drastically from site to site (EPA Study, p.21).

Further, the values EPA extracts from the primary studies are unlikely to adequately 

 

87 Fisher, Turner and Morling state “while there have been several attempts to come up with a classification scheme 

for ecosystem services, there has not been an agreed upon, meaningful and consistent definition for ecosystem 

services”. Barkmann et al. state “lay respondents are usually unfamiliar with the implications of scientific 

descriptions of ecosystem functioning. Thus, the applicability of stated preference methods for the valuation of 

ecosystem functions is a matter of debate.”
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represent the varying type and function of the 1,332 wetland acres EPA estimates will be 

affected by the proposed rule across the entire United States. In addition, the 10 primary 

SPS studies cover only 13 states which account for less than 30 percent of the expected 

impacted acres (EPA Study, Exhibits 31 and 36; Heimlich et al. 1998). In fact, the 

entirety of the Mountain, Northeast and Southeast USDA ERS wetland regions utilized in 

aggregating household benefits are unrepresented by any of the primary SPS studies.

Even assuming all wetlands and their services are homogenous, the EPA’s benefits 

transfer approach is unreliable because the scope and scale of the wetlands at issue in 

SPS studies do not correlate to the incremental scope and scale of wetlands at issue in the 

proposed rule. For example, Loomis et al. 1991 values 85,000 to 125,000 acres of 

wetlands within California’s San Joaquin Valley, while Poor 1999 values expanding 

wetland areas within Nebraska’s Rainwater Basin by 41,000 acres (EPA Study, Exhibit 

36). Further, a SPS study by Land and Tobin in 1989 provide a value for approximately 

1,500 acres of wetlands close to the EPA’s estimated nationwide impact. That study area 

involved riparian corridors within Illinois and Iowa, very different from the fragmented 

wetland distribution pattern at issue in the proposed rule. The fact that none of the 

primary studies EPA relies upon value an area of wetlands as small and over a 

geographic area as large as in the EPA study, suggests the value of wetland preservation 

resulting from the proposed rule cannot be appropriately detected by SPS methods.

Finally, by assuming all of the acres impacted due to the proposed rule are wetlands, 

EPA’s benefits calculation fails to recognize that certain waterbodies described in the 

proposed rule may in fact diminish ecosystem service function, or otherwise degrade the 

environment. For example, some man-made drainage features (ditches) that will be 

claimed as jurisdictional under the proposed rule even though they actually degrade 

ecosystem function by draining natural hydrology from wetlands and landscapes. Such 

features can serve to transport sediment and pollutants to downstream waters that would 

otherwise be trapped or infiltrated under the natural condition. This exposes two flaws in 

the benefits transfer methodology: First, the method assumes that all waterbodies 

(regardless of size, type, location, or purpose) under the proposed rule exhibit the same 

positive ecological function as the wetlands valued in the cited SPS studies. Second, the 

method overestimates the benefits by assuming all waterbodies covered under the 

proposed rule equally benefit the ecosystem in which they are located. (p. 52-53)

Agency Response: The agencies used the information available to adjust how they 

calculate benefits deriving from wetlands for the final rule. See Summary Response 

for Topic 11.3.2 and the Economic Analysis for more details.

11.2.125 4.3 EPA’s Methodology Double-Counts Ecosystem Service Benefits Provided 

by State Wetland Regulations

The ecosystem benefit analysis presumes that without adoption of the proposed rule, the 

benefits being provided by the wetlands at issue would be lost with no mitigation 

provided as compensation. This assumption does not take into consideration that some 
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states already claim jurisdiction over the wetlands and waterbodies described by the 

proposed rule (EPA Study, p.3). The State of Florida, for example, claims jurisdiction 

over most, if not all, of the waterbodies that USACE currently does not consider 

jurisdictional. Consequently, in Florida, the ecosystem service benefits purportedly 

associated with the proposed rule are already being realized due to State mitigation 

requirements. The EPA economic analysis counts, but will not provide, any incremental 

benefit increase. Thus, the EPA Study overstates ecosystem service benefits to some 

degree, depending on the status of individual state claims with respect to wetland 

jurisdiction.

This fact is non-trivial for two reasons. First, the EPA study claims “that approximately 

half the states have some provisions that extend protections beyond waters of the U.S.” 

(EPA Study, p. 4). Second, recognizing state jurisdiction and mitigation requirements 

clearly means the regulated community will incur the costs of obtaining the USACE 

permit, for no incremental benefit over what is already achieved by state regulations. This 

imbalance is not explicitly recognized, nor adjusted for, in the EPA Study. Rather, the 

EPA Study states: “[t]o the extent states have elected to [implement CWA programs 

more broadly], the economic impacts may be smaller than presented here” [emphasis 

added] (EPA Study, p.3). The phrase “economic impacts” implies that both costs and 

benefits will be lower, when in fact, it is just the benefits that would be lower.

The implication of wetland protection through state-specific programs and requirements, 

indicates the EPA Study needs to be corrected to (as suggested in Section 3.1) to reflect 

the incremental acreage impacts associated with each state, instead of for the nation as a 

whole, and then to adjust the incremental benefits to recognize benefits that are already 

being achieved by state regulation. (p. 53)

Agency Response: The agencies consider impacts to be related to both costs and 

benefits, though a variety of factors could influence to what degree each might be 

smaller if states protect more broadly. See Summary Responses under Topic 11.

11.2.126 5 Conclusion

The EPA Study procedure has not produced reliable estimates of the cost and benefits 

associated with the proposed rule. Because the entire analysis is based on averages and 

large wetland systems, it does not account for the diminishing marginal benefit of 

wetland services and the increasing marginal cost of mitigation. Further, the Study relies 

on a permitting database designed for a different objective, with an unrepresentative 

baseline period. Thus, the new permitting activity projected from the baseline understates 

the projection of incremental CWA permitting and associated mitigation. This results in 

the inability to quantify significant components of permitting and mitigation costs and 

introduces such large uncertainties into the analysis, that the resulting cost estimates are 

unreliable. The EPA Study also uses hypothetical values for ecosystem services from 

unrepresentative SPS studies valuing incompatible resources. This results in what the 

EPA Study calls “illustrative” estimates of benefits associated with the proposed rule. 
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Given the significance of the proposed rule and its potential impact on stakeholders, a 

rigorous economic analysis of the associated costs and benefits is needed. Throughout 

this letter we have suggested ways for EPA and companion agencies to improve the 

reliability of the estimates presented in the economic analysis. Such revisions are needed 

to ensure full and fair disclosure of the potential costs and benefits the rule may impose 

and provide. (p. 54)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

Devon Energy Corporation (Doc. #14916)

11.2.127 The initial cost-benefit assessment accompanying the 2014 Proposed Rule grossly 

underestimates the number of impacted waters, claiming that only 2.7% increase of 

waters would become jurisdictional. 

The baseline for comparing the Proposed Rule appears to be based on pre-SWANCC and 

Rapanos which has a broader extent of Jurisdiction. Per the personal views of Mr. Barry 

Gale (attorney with the Corps) since the 2006 Rapanos Decision, the Corps not only 

developed an administrative process that completely negated both the Rapanos plurality 

and Kennedy opinions, but actually expanded its jurisdiction.88 The baseline for this 

economic analysis should have been taken with respect to the correct application of 

jurisdiction following both post-SWANCC and post-Rapanos. If these court decisions 

were reflected in the jurisdictional baseline that EPA relied on to establish impacts from 

the proposal, the increase in jurisdiction would certainly be much more than 2.7% EPA is 

claiming. (p. 4-5)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice (post-2008 

Guidance) and the resulting impacts on CWA programs. See Summary Responses 

to Topics 11, 11.2, 11.3, 11.3.1, 11.3.2 and 11.4 on how the agencies have addressed 

concerns related to the economic analysis.

Alaska Miners Association (Doc. #15027.1)

11.2.128 Finally, the proposed rule structure of jurisdiction, and the associated definitions, 

will have negative impacts to Alaska’s miners and to virtually any other economic 

 

88 Gale, Barry, “Six Years After Rapanos: What’s Changed” (Answer: Not Much), “Federal Regulation of Cultural 

Resources, Wildlife, and Waters of the U.S., Paper No. 13, Page No. 13-18 (Rocky Mt. Min. L. Fdn. 2012)
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development project. Categorizing many new water features as “waters of the U.S.” and 

determining that all adjacent features also qualify would consequently subject nearly 

every parcel of land to jurisdiction under the Act. In Alaska, 175 million acres are 

classified as wetlands; this constitutes 45% of the land base. Alaska is the only state in 

the Union with extensive permafrost and Alaska’s coastline and tidally influenced waters 

exceed that of the rest of the nation combined. Thus any regulation or rule changed 

addressing wetland and coastal environments will have a potentially greater effect in 

Alaska than anywhere else in the nation, particularly if ill conceived. The combination of 

these Alaskaspecific issues and those that all stakeholders must manage, and Alaska’s 

miners have an enormous burden at stake. Obscure and poorly defined c result in conflict 

with other Federal regulations, such as 43 C.F.R. 3809 reclamation regulations, and will 

undoubtedly result in significant delay and additional cost burden in permitting.

If the agencies aim to develop a meaningful, balanced, and supportable rule, they must 

take a more precise and methodical approach, one that is supported by science, informed 

by a robust understanding of the State and local laws that address water issues, and is true 

to Congress’ intent and Supreme Court precedent. The Alaska Miners Association 

recommends that the agencies table this proposed rule and engage in meaningful dialogue 

with the regulated community and with the states about more appropriate and clear 

changes to existing regulations. Only then should the agencies replace the proposed rule 

with one that reflects those consultations and is supported by science and case law. Doing 

so will ensure responsible, legally defensible rulemaking that captures the intent of 

Congress and the Supreme Court, and does not place unnecessary burden on Americans. 

(p. 2-3)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

EPA and the Corps have used stakeholder input received during public outreach 

events during the public comment period in combination with the written comments 

received during the public comment period to modify the terms and the definitions 

included in the final rule, ultimately with the goal of providing increased clarity for 

regulators, stakeholders, and the regulated public to assist them in identifying 

waters as “waters of the United States.” 

American Petroleum Institute (Doc. #15115)

11.2.129 To illustrate the scope of the true economic impacts of the 2014 Proposed Rule, 

API commissioned an economic analysis to demonstrate the expected scope of 

jurisdictional changes and the associated costs. The study also provides an assessment 

and documents the myriad issues associated with the Agencies’ economic analysis. This 
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analysis comprises the second part of API’s comment package. Extrapolating from this 

analysis to a national level using reasonable assumptions, the analysis shows that the 

2014 Proposed Rule will have GDP cost impacts of $8 billion. The 2014 Proposed Rule 

will delay and impede energy development across the country, leading to higher costs to 

produce energy, and likely job losses. (p. 4)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

11.2.130 The Agencies’ Economic Analysis of the 2014 Proposed Rule is Inaccurate 

and Flawed

Given the lack of clarity in the 2014 Proposed Rule, it is difficult to precisely assess the 

full extent of costs that this rule would impose. Nonetheless, it is clear that the Agencies 

have significantly underestimated the cost impacts of the 2014 Proposed Rule. The 

Agencies underestimate the costs of obtaining permits, and also underestimate the 

number of additional permits required by increased federal jurisdiction by using permit 

applications shortly following the Great Recession of 2008-2009, when overall economic 

activity in the country including oil and natural gas development had slowed 

significantly. This baseline assumption is particularly erroneous in light of the fact that 

oil and natural gas activity (and the need for associated permits under the Clean Water 

Act) has substantially increased in the following years.

The Agencies also overstate the benefits of the 2014 Proposed Rule. They use baseline 

data from the period immediately following the Great Recession, and erroneously assume 

that all new waters under federal jurisdiction are not already under state protection. (p. 4)

Agency Response: The agencies have adjusted the period of analysis to account 

for the economic downturn in recent years. See Summary Response to Topic 11.2, 

and elsewhere in Topic 11 for other aspects of the economic analysis.

11.2.131 A thorough examination of the Proposed Rule revealed that it is virtually 

impossible to develop a complete and reasonably accurate cost estimate of the Proposed 

Rule for several reasons.

First, definitions pivotal to understanding the Proposed Rule are absent or unclear. These 

terms include, but are not limited to “uplands,” “floodplain,” “subsurface connection,” 

“neighboring,” “riparian area,” “other waters,” and “waste treatment.”

Second, no quantifiable metrics currently exist for measuring the significance of a nexus 

so as to identify the “significant nexus” required to establish federal jurisdiction under the 

Proposed Rule. As of the writing of these comments, the scientific report charged with 

developing these metrics has not been finalized; however, the current version which has 
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been reviewed several times by the EPA’s Scientific Advisory Board contains no 

quantifiable guidance that policymakers or impacted stakeholders could use to determine 

the extent of nexus impacts under this Proposed Rule.

Third, the Agencies have issued changing and conflicting analyses89 of jurisdiction under 

the Proposed Rule multiple times – claiming that it will decrease jurisdiction even after 

releasing an economic impact analysis indicating a jurisdictional increase90 and offering 

conflicting terminology without explanation in subsequent Q&A documents sometimes 

not even entered into the docket.91 In August 2014, well after the Agencies issued the 

Proposed Rule, the Corps issued detailed, comprehensive guidance on the identification 

of an ordinary high water mark (OHWM), a key concept in the Proposed Rule for 

identifying jurisdictional tributaries.92 Issuing continually moving targets which cannot 

be reconciled with one another - not to mention placing the burden of discovering these 

changes wholly on stakeholders - creates an almost insurmountable barrier to both 

meaningful comment and a reasonably accurate economic analysis. (p. 49 – 50)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. The agencies have responded to comments on 

uncertainty, clarity, the economic analysis, and other issues in developing the final 

rule. See Preamble to the rule, accompanying Economic Analysis, and Summary 

Responses in Topic 11. EPA and the Corps have used stakeholder input received 

during public outreach events during the public comment period in combination 

with the written comments received during the public comment period to modify the 

terms and the definitions included in the final rule, ultimately with the goal of 

providing increased clarity for regulators, stakeholders, and the regulated public to 

assist them in identifying waters as “waters of the United States.”

11.2.132 3. Since the potential benefits of the Proposed Rule were overestimated and 

its costs were underestimated, it is unlikely to pass a cost-benefit analysis once 

multiple deficiencies in analytical methodology are addressed.

The March 2014 Economic Analysis of Proposed Revised Definition of Waters of the 

United States (“Economic Analysis” or “PEA”) understates the costs and overstates the 

benefits that would result from the Proposed Rule change. Other reviews of the Agencies’ 

report have come to the same conclusion. The Brattle Group states: “Unfortunately, the 

 

89 Remarks of Gina McCarthy at Agricultural Business Council of Kansas City on Clean Water Proposal (July 10, 

2014), available at http://go.usa.gov/xmh

90 The Agencies’, Economic Analysis of Proposed Revised Definitions of Waters of the United States at 12 (March 

2014), available at http://www.regulations.gov/#!documentDetail;D=EPAHQ-OW2011-0880-003.

91 See e.g., the definition of Ordinary High Water Mark in the Agencies’ June and September Q&A document 

92 http://www.usace.army.mil/Portals/2/docs/civilworks/regulatory/reg_supp/west_mt_finalsupp_aug2014.pdf and 

http://acwc.sdp.sirsi.net/client/search/asset/1036026
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EPA analysis relies on flawed methodology for estimating the extent of newly 

jurisdictional waters that systematically underestimates the impact of the definitional 

changes. This is compounded by the exclusion of several important types of costs and use 

of flawed benefits transfer methodology.”93 ARCADIS reviewed both the Economic 

Analysis and the Brattle Group’s report and has found that the analysis and conclusions 

in the Brattle Group’s report are correct.

The increase in federal jurisdiction (and the concomitant increase in the number of 

additional permits required) has been grossly underestimated due to exclusive reliance on 

incomplete data from one year of one regulatory database unavailable in the public 

domain. The database contained only projects for which jurisdictional determinations had 

been requested, during one of the most recessionary periods in modern history. The 

Agencies further assumed (incorrectly) that the Proposed Rule would not impact the 

number of permit filings. The resulting underestimate was subsequently used throughout 

the rest of the analysis. These are discussed in more detail below. 

On the cost side, the PEA’s cost estimates significantly underrepresent the costs of 

obtaining virtually every permit the Agencies analyzed, and wholly omit key costs.

Some sections of the Clean Water Act (CWA) were assumed to include little or no 

additional compliance costs (Sections 303 and 402) but lack analysis to support such 

assumptions. The costs of CWA permitting expenses and mitigation costs were 

incomplete and omitted essential activities such as field work. Similar issues accompany 

their analysis of NPDES permits, storm water permits, water quality certification permits, 

and SPCC plans.

Some of the most significant costs neglected in the Economic Analysis are the costs of 

permitting delay, opportunity cost of increased regulatory burden, and impact avoidance 

and minimization costs. “However, because there is not a defensible, ready basis for 

estimating these costs, the agencies did not estimate compliance costs for these categories 

as part of this economic analysis.”94

The potential benefits of the Proposed Rule were also overstated due to problematic data 

inputs and methodology. The estimated increase in jurisdictional scope led to a 

calculation that, annually, 1,332 acres (about 2 square miles) of wetlands would be 

additionally created or protected as a result of implementing the Proposed Rule. Though 

this incremental increase in absolute terms is vanishingly small compared to the 

estimated 110.1 million acres of wetlands in the conterminous United States,95 the benefit 

 

93 Sunding, David. Review of 2014 EPA Economic Analysis of Proposed Revised Definition of

Waters of the U.S.” (2014).

94 EPA and the Corps, Economic Analysis of Proposed Revised Definition of Waters of the United States, March 

2014.

95 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, Washington DC pp. 108.
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of it was inflated using largely hypothetical contingent valuation studies and a 

controversial benefits-transfer model. The ten studies that the Agencies relied upon in the 

analysis are dated, many are not peer reviewed, and one was even such an outlier that 

excluding its valuation estimate from the average lowers calculated benefits by roughly 

$100 million.

The Agencies should have conducted an original wetlands valuation study for the 

different regions of the country, as required by EPA’s Guidelines. The Agencies 

made no allowance for the fact that Proposed Rule will produce almost no benefit to the 

public in states that already protect “isolated waters.” Likewise, the benefits estimate 

from avoiding oil spills under CWA 311 is speculative and overstates the benefits of the 

Proposed Rule.

ARCADIS has built upon the Brattle Group’s conclusions in the following sections by 

providing appropriate estimates for the individual costs and benefits and discussing 

significant cost omissions from the Agencies’ analysis. (p. 56-57)

Agency Response: See Summary Responses to Topics 11, 11.2, 11.3, 11.3.1, 11.3.2 

and 11.4 on how the agencies have addressed concerns related to the economic 

analysis.

11.2.133 3.1 The Agencies’ cost-benefit assessment dramatically underestimates the 

costs of the Proposed Rule in multiple ways.

3.1.1 The Agencies’ original economic analysis fails to capture the full cost of the 

Proposed Rule by using a limited, internal government database and recessionary 

economic data.

In estimating the increased jurisdiction and accompanying costs, the Agencies used 

records contained in the Corps’ Operation and Maintenance Business Information Link, 

Regulatory Module (ORM2) database from fiscal years 2009 and 2010. The exclusive 

reliance on this one database significantly underestimates the potential increase in 

jurisdictional waters resulting from the Proposed Rule.

First, it includes information only on actual impacted areas for projects for which a 

jurisdictional determination or permit was requested by project proponents – i.e., it does 

not include or provide a means of estimating increases for areas outside the project 

impacts, or for those projects which did not require a permit, or would not have been 

envisioned as requiring a permit. It excludes all Preliminary Jurisdictional 

Determinations, i.e., those which project proponents have questions about jurisdiction but 

decline to pursue them in the interests of reducing permit processing time. This may help 

to explain why some 98 percent of tributaries and 98.5 percent of adjacent wetlands were 

found to be already jurisdictional, prompting the Agencies to assume (erroneously, as we 

will show) that any increase in jurisdiction for these classes of waters would be 

negligible. As a result, detailed analysis was conducted only on isolated waters, which 

were evaluated by a team of USACE experts using a subset (262) of ORM2 project files. 

The Agencies further assume that any waters heretofore not considered jurisdictional are 
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“...likely to be the most isolated and the least connected to other waters, and therefore the 

least likely to have their status changed under the Proposed Rule.”96

Unfortunately, that statement is an oversimplification and underestimation. Multiple 

scenarios and developments in the arid Southwest (e.g., discontinuous ephemeral 

drainage impacts) and the Midwest (e.g., isolated prairie pothole wetland impacts) 

currently do not require a permit but would require permits for impacts to newly 

regulated resources under the Proposed Rule.

Each of these developments not currently accounted for in the ORM2 database would add 

to the jurisdictional waters under the new rule.

It should be noted that the data is incomplete—roughly 18.4 percent of the data records 

for aquatic resources are blank—and the categories of water, defined under the 2008 

CWA guidance, does not align in practice with the new definitions of the Proposed Rule. 

Therefore, the ORM2 database does not comprehend the full sampling universe of water 

features that might be subject to the Proposed Rule, and so using it exclusively to 

determine the percent increase in jurisdictional waters understates the true impact of the 

Proposed Rule.

The ORM2 database is not accessible on-line nor is access provided through the 

rulemaking docket, so for a detailed review of ORM2 records and their application 

in this rulemaking, a FOIA request would be required. Given the importance of 

ORM2 to the Agencies’ cost-benefit analysis, the Agencies should have provided 

instructions for public access to ORM2 in their economic analysis of the Proposed 

Rule.

Significantly, the Agencies’ Economic Analysis used the ORM2 data records from fiscal 

years 2009 and 2010 – a time when the U.S. economy was in a recession with the lowest 

number of housing starts on record.97 Similarly, 2009-2010 was also characterized by a 

decrease in industrial development due to a reduction in capital expenditures. This time 

period included the only reduction in capital expenditure spending by the oil and gas 

majors in the past 20 years,98 and comes just prior to a dramatic and continuing upturn in 

drilling and production associated with shale gas and liquids development, which has 

transformed markets and prospects for U.S. energy security. The selection of data for 

2009-2010 may lead to an understatement in the number of permits submitted and the 

types of water evaluated; therefore, they would not be a true representation of the impacts 

under the current economic conditions.

 

96 EPA, 2014.

97 https://www.censu.gov/construction/nrc/pdf/startsan.pdf

98 Bloomberg - http://www.resilience.org/stories/2014-03-04/beginning-of-the-end-oil-companiescut- back-onspending
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The Agencies relied on ORM2 exclusively to calculate an increase in jurisdiction for 2 

percent of streams, 1.5 percent of adjacent wetlands, and (based on case-by-case analysis 

by Army Corps of Engineer specialists, checked by outside experts) 17 percent of 

isolated “other” waters. That increase results in the total number of jurisdictional records 

in ORM2 increasing by 2.7 percent. This number is used as the basis for all 

subsequent estimates of impacts and benefits arising from implementation of the 

Proposed Rule.

99 For example, the Agencies determined that a 2.7 percent increase in 

jurisdiction would lead to a 2.7 percent increase in permits required: 75 additional 

individual permits and 1,327 additional general permits. 

We will show later in this document some alternative analyses of potential jurisdictional 

increase that give far higher estimates than ORM2. Moreover, one of these analyses takes 

a “bottom-up” approach, looking specifically at the increase in permit requirements for 

oil and gas developments, and concludes that the increase is far higher than the 

proportional increase in jurisdiction owing to the non-linear, bracketed “threshold” nature 

of programmatic permit requirements. (p. 58-60)

Agency Response: See the Summary Response in this section and the Economic 

Analysis for how the agencies have adjusted the jurisdictional analysis since the 

proposed rule.

11.2.134 3.1.2 The Agencies significantly underrepresented the costs associated with 

obtaining virtually every type of permit analyzed.

The Agencies’ Economic analysis included a breakdown of the four types of CWA 

permitting costs: 1) permit application costs; 2) compensatory mitigation costs; 3) 

permitting time costs; and 4) impact avoidance and minimization costs. The Agencies 

recognized that the latter two could be significant “for some share of permit applicants,” 

however, they excluded these costs from the calculation on the assertion that no 

“defensible, ready basis for estimating these costs” exists.22 The oil and gas industry is 

certainly one of those for whom these costs will be significant, and this comment will 

endeavor to provide the estimates, lacking in the Economic Analysis.

Meanwhile, ARCADIS also estimates the first two costs, for permit applications and 

compensatory mitigation, to be considerably higher than those estimated by the Agencies. 

This section discusses issues with the Agencies’ methodology and provides more realistic 

cost estimates.

The Agencies’ Economic Analysis oversimplifies and understates the potential cost 

implications resulting from the Proposed Rule. As shown below, it is certain that the 

 

99 The PEA later provides a “sensitivity” calculation to estimates of increased permitting but it is applied subsequent 

to the estimate from the ORM2 database, and so addresses none of the shortcomings of reliance on this database, 

mentioned above.
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increased costs from permit application fees, compensatory mitigation, SPCC, and 

NPDES permits will be significantly higher than the Agencies’ current estimates. (p. 60)

Agency Response: See Summary Responses to Topics 11, 11.3.1 and 11.4 on costs.

11.2.135 3.1.3 Key costs associated from permitting were omitted from the economic 

analysis.

3.1.3.1 Opportunity costs of Permitting Delays were excluded from the Agencies’ 

Economic Analysis

For the oil and natural gas industry, one of the most significant cost impacts is likely to 

be the lost production due to increased permitting time requirements, as well as lost 

opportunity costs. These costs are entirely and unjustifiably omitted from the Agencies’ 

Economic Analysis.

For example, Sunding and Zilberman state that the average time to prepare and obtain an 

individual permit is 788 days, while the average time to obtain a general permit is 313 

days. 100As we anticipate the number of individual and general permits to increase 

significantly over current levels, so too will the impacts of this delay increase. Moreover, 

the required time periods to obtain these permits may also increase under the Proposed 

Rule for reasons that include but are not limited to the following: 1) more permits 

submitted for waters that are not currently jurisdictional, resulting in increased workload 

for Agencies’ personnel that is far in excess of that predicted by the Economic Analysis; 

and 2) USACE will require more time to conduct pre-application visits and complete 

significant nexus determinations for other waters. Additionally, the increased 404 

permitting requirements will require a commensurate increase in are already lagging 

behind the Corps in processing the 401 WQC applications. The increased permitting 

requirements will increase the burden on these agencies and may further create permitting 

delays for the applicants.

Simple short term delays may foreseeably extend beyond merely a longer permitting 

process. For example, slight delays may result in missed construction opportunities 

associated with suitable weather and/or special restrictions associated with sensitive 

resources (e.g., breeding season for amphibians or birds). Slightly longer delays can 

result in missed opportunities for rig scheduling, meaning that not all wells can be drilled 

at approximately the same time. Not only is this economically less efficient, it also 

extends the need to maintain some drilling infrastructure in the area and delays well 

completions, at which time the development assumes for the long term a lower profile to 

the community than the construction phase.

 

100 D. Sunding and D. Zilberman. 2000. Analysis of the Army Corps of Engineers’ NWP 26 Replacement Permit 

Proposal. Prepared for the National Association of Counties and the Foundation for Environmental and Economic 

Progress. (January).
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However, much more significant cost impacts will be associated with more significant 

delay. As an example, in Pennsylvania, permitting would be handled under PADEP 

ESCGP-2 and the General Permit System, which have a 60 day review period under the 

most stringent conditions. It would not be difficult to envision a permitting increase from 

6 to 9 months to over 2 years – especially if this responsibility is passed to the Corps. 

Significant increases in permitting timeframes will impact how the oil and gas industry 

manages projects and their risk. Given the volatility in the price of oil and gas, projects 

that are feasible today may not be feasible in two years, thus companies will potentially 

decrease spending which will have ramifications through the national economy in terms 

of job losses and less domestic production. Finally, given that typical lease terms are on 

the order of three years, a permit delay of two (or more) years could result in lost 

opportunity costs that include total loss of lease rights due to inactivity, resulting in 

foregone production, and lost revenues to the company, the landowner, and federal, state 

and local treasuries.

API estimates that the costs to the economy could reach $8 billion in the first year 

alone, due to $9.9 billion in forgone production and 67,200 lost jobs [see Section 6].

In the Economic Analysis, the Agencies recognize that these costs exist, however, they 

are not included because “...there is not a defensible, ready basis for estimating these 

costs.”101 This omission is unjustifiable. This additional permitting time and associated 

permitting delays must be addressed to accurately understand the cost impacts of the 

proposed rule change. API members are prepared to assist the Agencies in developing a 

basis for estimating these costs that is at least as defensible as that used for estimating 

benefits. A re-evaluation of the Economic Analysis should be conducted prior to 

finalization of the Proposed Rule. Once this significant cost is given fair consideration, 

there is every reason to expect that the Rule will fail the cost-benefit analysis. (p. 68-70)

Agency Response: See Summary Responses to Topics 11, 11.3.1 and 11.4 on costs.

11.2.136 3.1.3.2 Costs of Complying with New State Regulations were also excluded from 

the Agencies’ economic analysis – as were the costs to the States of creating those 

regulations.

The Agencies state in the Economic Analysis that a definitional change will have little to 

no effect on section 303 (state water quality standards and implementation plans) and 

section 402 (National Pollutant Discharge Elimination System (NPDES) permitting). 

This appears to be an unjustified assertion. Even in States where the State’s definition of 

waters may be broader than the Proposed Rule, an expanded federal definition will limit 

State regulatory ability and impose new costs on stakeholders. The Clean Water Act 

imposes a number of mandatory obligations on States that do not apply to purely “State” 

waters. These include, but are not limited to the following:

 

101 EPA and the Corps, 2014.
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 Monitoring water quality for WOTUS

 Controlling and permitting of discharges into WOTUS

 Setting effluent limits for discharges into WOTUS;

 Designating beneficial uses for WOTUS

 Establishing water quality standards for WOTUS

 Establishing Total Maximum Daily Loads (TMDL) for WOTUS

 Listing all impaired WOTUS and developing a strategy for each segment failing 

to meet water quality standards;

 Inventorying all point source discharges into WOTUS and

 Identifying non-point sources contributing to failure of a water quality standard in 

“Waters of the U.S.”

For example, Kansas defines “waters of the State” broadly to include “all streams and 

springs, and all bodies of surface and subsurface water within the boundaries of the 

state...”102 This definition includes some areas like groundwater that fall outside of the 

Proposed Rule. Kansas, however, does not classify ephemeral streams as waters103and the 

state’s EPA-approved water quality standards do not encompass ephemeral streams.104

Under the Proposed Rule, Kansas estimates that ephemeral stream miles would increase 

460 percent - from 30,620 stream miles to 134,488 stream miles. Both the state and 

stakeholders would have to comply with CWA requirements for these ephemeral 

streams.105

Similar increases would occur in other states. In fact, comparing the WOTUS reported by 

States in reports available on EPA’s website106 to recent USGS maps released by EPA 

shows a 131 percent increase in federal waters.107

All States must set water quality standards for federally designated WOTUS or be subject 

to third party law suits; consequently, any increase in federal jurisdiction will require 

 

102 See K.S.A. 65-161a.

103 Kansas “finds it wholly unnecessary and wasteful of limited state programs resources to set water quality 

standards, issue wastewater permits, assess impairment, and develop TMDLs for surface drainage features that may 

have flowing or standing water no more than a few days each year.” See Comments of the Honorable Sam 

Browback, Governor of Kansas, EPA and Army Corps of Engineers Guidance Regarding the Identification of 

Waters Protected by the Clean Water Act, Docket ID No. EPA-HQ-OW-2011-0409 (July 14, 2011)

104 Letter from Leo J. Alderman, EPA Director, Waters, Wetlands, and Pesticides Division, to Roderick L. Bremby, 

Secretary, Kansas Department of Health and Environment (Nov. 3, 2003).

105 Presentation of Mike Tate and Tom Stiles, Kansas Department of Health and Environment, Waters of the U.S. 

(May 2, 2014).

106 http://water.epa.gov/lawsregs/guidance/cwa/305b/upload/2000_06_28_305b_98report_appenda.

pdf

107 http://science.house.gov/epa-maps-state-2013#overlay-context
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states to conduct expensive and time-consuming assessments to determine the applicable 

water quality standards. In some cases, if existing standards do not apply (e.g., existing 

“lakes” criteria inappropriate for industrial ponds), States will need to conduct expensive 

baseline data gathering to develop new water quality standards for these bodies. Mere 

EPA approval of not setting water quality standards has been shown to be insufficient to 

protect against litigation from third parties.108

The Coastal Zone Management Act (CZMA) provides for the management of the 

nation’s coastal resources, including the Great Lakes. The CZMA is intended to balance 

competing land and water issues through state and territorial coastal management 

programs and was passed to encourage coastal states to develop and implement coastal 

zone management plans. Consistency determinations are required for issuance of CWA 

permits in coastal zones and include requirements that the activities being permitted 

under the CWA also demonstrate compliance with applicable endangered species acts, 

state air protection policies, and many others. The cost assessment for CWA permits in 

coastal states should be separately assessed to ensure that the costs of compliance with 

the CZMA are fully represented in the Agencies’ cost impact analysis. (p. 70-72)

Agency Response: See Summary Responses to Topics 11, 11.3.1 and 11.4 on costs.

11.2.137 3.1.3.3 Litigation costs for both industry and states were excluded from the 

Agencies’ economic analysis.

Definitions of key terms including but not limited to “uplands,” “floodplain,” “subsurface 

connection,” “neighboring,” “riparian area,” “other waters,” and “waste treatment,” are 

absent from the Proposed Rule. Ambiguity within the Proposed Rule is likely to lead to 

confusion in implementation and also to increased litigation in enforcement scenarios as 

well as in third party litigation against the federal government, state governments, and 

industry.

The Proposed Rule seeks to use the Court decisions to clarify WOTUS definitions, and 

the Agencies sponsored the preparation of the Connectivity Report to define the 

connectivity between traditional navigable waters (TNWs) and waterbodies and wetlands 

as a basis for determining significant nexus. The Connectivity Report inclines to the 

conclusion that connections exist between the majority of the waterbodies and wetlands 

in a watershed and the downgradient streams/rivers in that watershed. The Science 

Advisory Board, in their review of the Connectivity Report, have likewise suggested that 

the significance of those connections occurs along a gradient based on variations in the 

frequency, duration, magnitude, predictability, and consequences of those connections. 

Justice Kennedy’s significant nexus test requires the connection of a wetland to be 

sufficient to have a significant effect on the physical, chemical, and biological 

 

108 Missouri defines “Waters of the State” to mean “[a]ll rivers, streams, lakes and other bodies of surface and 

subsurface water lying within or forming a part of the boundaries of the state which are not entirely confined and 

located completely upon lands owned, leased, or otherwise
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characteristics of a TNW. Although the Connectivity Report described connections 

between wetlands and TNWs, it does not include a definition of the point along the 

gradient of connectivity that separates significant from non-significant connections.

The Proposed Rule fails to define the physical, chemical, and biological characteristics 

described in the Kennedy concurrence that affirmatively demonstrate the significance of 

the connections categorized in the Connectivity Report for the determination of 

jurisdiction, or even to acknowledge that the “physical, chemical, or biological nexus” 

required by the Proposed Rule is a substantially and inexplicably lower threshold to meet 

(i.e., the substitution of “or” for “and” in the original Clean Water Act reference). 

Furthermore, the Proposed Rule was drafted prior to the finalization of the Connectivity 

Report, and does not use information in the Report to define what constitutes a 

“significant nexus.” In fact, the Proposed Rule only uses a circular reference to define the 

term “significant nexus” as a water, including wetlands, either alone or in combination 

with other similarly situated waters in the region, that significantly affects the chemical, 

physical, or biological integrity of waters more readily understood as navigable 

[emphasis added]. This is a consistent theme throughout the report as well. Without clear 

standards and definitions of significance, the definition of WOTUS provided in the 

Proposed Rule is incomplete, fails to clarify jurisdiction, and is expected to lead to 

litigation [see Section 5.4.8]. (p. 72-73)

Agency Response: EPA and the Corps have used stakeholder input received 

during public outreach events during the public comment period in combination 

with the written comments received during the public comment period to modify the 

terms and the definitions included in the final rule, ultimately with the goal of 

providing increased clarity for regulators, stakeholders, and the regulated public to 

assist them in identifying waters as “waters of the United States.” 

See Summary Responses to Topics 11, 11.3.1 and 11.4 on costs. See the preamble 

and Technical Support Document for further discussion of significant nexus and the 

science supporting the rule.

11.2.138 3.2 The Agencies’ benefit assessment is flawed in several respects and is 

inconsistent with EPA’s own Guidelines.

The Proposed Rule’s Economic Analysis estimates annual benefits ranging from $301 

million to $398 million, resulting mainly from avoiding losses of wetlands and 

preventing oil spills.

With respect to avoiding losses of wetlands, the Proposed Rule will produce almost no 

benefit to the public in states that already protect “isolated waters” that are not currently 

WOTUS. Even in states that do not currently protect the features that would be 

designated WOTUS under the Proposed Rule, the benefits are tenuous at best. In fact, the 

benefits transferred by the Agencies in their Economic Analysis do not meet the 

Agency’s own Guidelines for such an approach and it is clear that the Agencies should 

have conducted an original wetlands valuation study for the different regions of the 
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country (as required by EPA’s Guidelines). Even if the 10 wetland valuation studies in 

the Agencies’ Economic Analysis met EPA’s Guidelines for benefit transfer, the 

Agencies’ estimate of benefit would be reduced by more than $100 million (roughly 40 

percent) by excluding just one of the studies, which is a clear outlier from the rest. In 

addition to the flaws in the estimate of wetlands benefits, the benefits estimate from 

avoiding oil spills under CWA 311 is speculative and probably substantially overstates 

the benefits of the Proposed Rule. (p. 73-74)

Agency Response: See Summary Responses to Topics 11, 11.3.2, and 11.4 on 

benefits. See the Economic Analysis for further discussion of the changes that the 

agencies made to the benefits assessment.

11.2.139 4. Alternative geospatial mapping exercise indicates that the change in 

jurisdiction resulting from the Proposed Rule could be far greater than estimated by 

the Agencies.

This section discusses three separate mapping exercises conducted by Arcadis and/or API 

members. Although the results of these exercises varied widely, all resulted in 

substantially greater jurisdictional area due to the Proposed Rule and would likely require 

increased permitting as a result of the Proposed Rule.

4.1 ARCADIS Geospatial Mapping Exercise

To indicate the types and significance of potential changes in jurisdiction, this section 

compares the linear feet of streams and acreage of wetlands that are federally 

jurisdictional under current Clean Water Act definitions with areas that would likely 

become jurisdictional under the Proposed Rule.

The analysis was conducted on three hypothetical test areas selected as representative for 

oil and gas activities in areas where non-jurisdictional features (e.g., isolated wetlands 

and discontinuous ephemeral streams) are prevalent. The analysis was based on 

examination of certain on-line databases and aerial imagery only and did not include any 

field investigations. Quantification of the linear feet and acreages of identified features 

was conducted using geographic information system software to estimate changes in 

jurisdictional extent. The selected areas were chosen intentionally to allow for visual 

representation of anticipated areas of expanded jurisdiction associated with the proposed 

rule. These areas are not intended to represent all situations across the country. 

Nevertheless, they clearly illustrate the Agencies’ gross underestimation of the increase 

in jurisdictional areas that would occur should the Proposed Rule be finalized.

Although these test areas may not fully representative of the change nationwide, lessons 

learned from this exercise include:

 No decreases in jurisdictional area were observed anywhere.

 The increase is highly non-uniform. Some areas will see very high increases in 

jurisdictional area.
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 The Agencies’ assumption of no significant increase in tributary and adjacent 

waters jurisdiction is seriously flawed. In all three cases, the 2.7 percent increase 

in jurisdiction estimated by the Agencies was significantly lower than that 

estimated through the subject mapping exercise.

 The increase in jurisdiction for tributaries is highly sensitive to drainage 

discontinuity, i.e., man-made or natural breaks of any length, which constitute a 

difference between the Proposed Rule and current practice. Discontinuous 

drainage cannot be determined except by field work; consequently, it is unclear as 

to the added value of the Proposed Rule in providing clarity relative to the 2008 

Guidance.

 A more rigorous evaluation of potential increase in jurisdiction, such as through 

geospatial mapping, as opposed to the approach used by the Agencies (i.e., survey 

of areas where permits were catalogued in the ORM2 database), is a useful 

approach. The Agencies should rework the rule and complete a comparable 

geospatial analysis over a fully representative sample of lands to provide a more 

accurate estimate of the impact of the Proposed Rule before continuing with the 

rulemaking process.

4.1.1 Methodology

Publicly available national geospatial data managed and analyzed in geographic 

information system (GIS) was used to identify distributions of waters and wetlands, as 

well as to assess potential jurisdictional classifications under both current practices and 

the Proposed Rule. The analysis was conducted by experienced wetland delineators with 

experience across different areas of the U.S., who worked in conjunction with 

professional GIS technicians, to provide an assessment of jurisdictional areas under 

current practice and under the Proposed Rule that reflects the best professional judgment 

of practitioners with extensive experience in dealing with Clean Water Act jurisdictional 

aspects across the United States. Knowledge of current oil and natural gas activities 

developed from environmental professionals with several decades of experience in the oil 

and gas industry, as well as available database information, facilitated initial selection of 

test sites. Wetland professionals then reviewed the database information and aerial 

photography to identify current and proposed jurisdictional WOTUS for quantitative 

comparisons. Aerial imagery evaluation focused primarily on physical features including 

the likelihood of bed, bank, and ordinary high water mark (OHWM) presence as well as 

interruptions in physical connectivity to a traditional navigable water.

4.1.1.1 Area Selection

Three two-mile by two-mile square areas were selected to evaluate potential changes in 

federally jurisdictional WOTUS. The test areas are located in New Mexico, Utah, and 

North Dakota (Figures 4-1 through 4-10). Each test area is presented in the attached 

figures and specific features of the sites are discussed in the appropriate sections.
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Figure 4-1 Test Site Location Map

4.1.1.2 Data Review

 The following data sets were reviewed for applicability and used to build a GIS 

database:

 Hydrological – United States Geological Survey (USGS) National Hydrography 

Database (NHD) high resolution Wetlands – United States Fish and Wildlife 

Service (USFWS) National Wetlands Inventory (NWI)

 Elevation and derived contours – (USGS) National Elevation Dataset

 Aerial Photographs – Environmental Systems Research Institute (ESRI) Online 

Services

 Features presented in these databases formed the initial basis for evaluation of 

jurisdiction under both current practice and the Proposed Rule. 

Features presented in these databases formed the initial basis for evaluation of 

jurisdiction under both current practice and the Proposed Rule. 

The following data sets include additional information required to assess “other waters” 

and connectivity through a significant nexus:

 Floodplain – Federal Emergency Management Agency 
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o It should be noted that FEMA floodplain maps are not available for all 

streams, particularly for ephemeral and intermittent streams. Therefore, waters 

and wetlands within the floodplain of streams not included in FEMA mapping 

may not have been identified, thereby underestimating the amount of these 

features that would be jurisdictional by rule under the Proposed Rule.

 Riparian – United States Fish and Wildlife Service (“USFWS”)

 Soils – United States Department of Agriculture Web Soil Survey

The datasets below could assist in improving site assessments of connectivity though are 

not clearly defined in the Proposed Rule or have incomplete coverage:

 Light Detection And Ranging (LiDAR) – Elevation data

 Physical, chemical, and/or biological data

4.1.1.3 Desktop Review and Delineation

Wetland professionals evaluated features from the above-listed databases to assess 

potential for federal jurisdiction under both current practices and the Proposed Rule. 

Features were reviewed through assessment of aerial photography and elevation data 

using best professional judgment. In some cases, feature extent was reduced (e.g., 

tributary lines from the National Hydrography Database (NHD) were removed if the 

identified features were judged unlikely to have beds, banks, and OHWMs after aerial 

imagery examination) and in other cases features were added or expanded (e.g., open 

waters or wetlands not identified in the NHD and/or the National Wetlands Inventory ). 

Wetlands professionals also used the database information, elevation information, and 

aerial imagery to evaluate whether identified features possessed a continuous surface 

connection to downgradient TNWs. Open water or wetlands without a continuous surface 

water flow connection (either through streams with bed, bank, and OHWM or through 

upland or wetland swales) were classified as isolated. Streams without a continuous bed, 

bank, and OHWM connection to a downgradient TNW were classified as 

discontinuous/isolated.

4.1.1.4 Jurisdictional Evaluations

The existing GIS database was developed, processed, and supplemented by wetland 

professional review of current high resolution aerial and elevation data. The resulting GIS 

data set identified waters and wetland features that would be evaluated for potential 

WOTUS jurisdiction under both current Agency practice and the Proposed Rule. These 

results were then processed into quantitative summaries to establish the percent change in 

jurisdictional WOTUS under the Proposed Rule. The process was repeated for each of the 

three areas. 

Criteria for jurisdictional waters and wetlands under current CWA practice included:
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 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 (i.e., a traditional navigable water [TNW]).

 All interstate waters, including interstate wetlands.

 The territorial seas.

 All impoundments of a TNW, interstate water, the territorial seas.

 Wetlands adjacent to TNWs, interstate waters, the territorial sea, and 

impoundments of a TNW, interstate water, the territorial seas or a tributary

 Non-navigable tributaries (i.e., possessing bed, bank, and ordinary high water 

mark [OHWM]) to TNWs that are relatively permanent where tributaries typically 

flow year-round or have continuous flow at least seasonally (i.e., three months)

 Wetlands that directly abut such tributaries

In addition to the features listed above, the criteria for waters and wetlands under current 

CWA practice also included those waters and wetlands over which the Agencies typically 

assert jurisdiction using either explicit significant nexus evaluations or de facto 

assumptions of significant nexus: 

o For the purposes of this evaluation, waters and wetlands that were included in 

this category were:

 Ephemeral (i.e., flowing less than seasonally) tributaries to TNWs that have 

continuous bed, bank, and OHWM connections to TNWs.

 Waters and wetlands that have a continuous confined surface hydrologic 

connection (e.g., wetland or upland ditches/swales) to a tributary to one of the 

above defined features.

Criteria for jurisdictional waters and wetlands under the Proposed Rule included:

 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 (i.e., a TNW).

 All interstate waters, including interstate wetlands.

 The territorial seas.

 All impoundments of a TNW, interstate water, the territorial seas or a tributary.

 All tributaries (i.e., features with a bed, bank, and ordinary high water mark 

[OHWM]) of a TNW, interstate water, the territorial seas or impoundment.

o For the purposes of this evaluation, and in keeping with the Proposed 

Rule’s tributary definition, this includes wetlands that abut tributaries.
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 All waters, including wetlands, adjacent to a traditional navigable water, interstate 

water, the territorial seas, impoundment or tributary.

o For the purposes of this evaluation, adjacency was defined as those 

waters or wetlands within the 100 year floodplain of a tributary to a TNW. 

While it is unknown if this will be the final definition in the Proposed 

Rule, the discussions held by the Scientific Advisory Board imply that this 

will be the flood frequency selected.

 On a case-specific basis, other waters, including wetlands, provided that those 

waters alone, or in combination with other similarly situated waters, including 

wetlands, located in the same region, have a significant nexus to a traditional 

navigable water, interstate water or the territorial seas.

o For the purposes of this evaluation, this includes waters and wetlands 

that have a continuous confined surface hydrologic connection (e.g., 

wetland or upland ditches/swales) to a tributary to one of the above 

defined features.

o For the purposes of this evaluation, this includes physically isolated 

waters and wetlands (i.e., no continuous surface flow connection) that are 

in a single contiguous land form and hydrologically connected (i.e., 

similarly situated) in a single point of entry watershed for a TNW (i.e., in 

the same region).

The above criteria did not consider site-specific significant nexus evaluations through 

which the Agencies may assert jurisdiction over isolated waters or wetlands or 

discontinuous ephemeral streams. However, the criteria do consider the typical approach 

to significant nexus determinations for isolated/discontinuous features taken by the 

Agencies under current practices, based on the experience of the wetland professionals 

involved in this analysis.

4.1.1.5 Data Uncertainty

Professional experience regarding the Agencies’ typical use of significant nexus for 

CWA jurisdiction was used to identify certain features as jurisdictional (e.g., 

continuously connected ephemeral tributaries and wetlands not directly abutting 

tributaries to TNWs) or non-jurisdictional (e.g., ephemeral tributaries without continuous 

connections to TNWs and physically isolated wetlands).

In short, the WOTUS jurisdictional estimates herein are only as accurate as can be 

obtained from desktop evaluations and therefore contain an inherent margin of error. 

However, these methods are expected to provide a reasonable estimation of WOTUS 

under both current practices and the Proposed Rule.

4.1.2 Results
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The results for each test area are summarized below and accompanied by three figures 

each (Figures 4-2 through 4-10). In each case, applying the Proposed Rule increased 

jurisdictional areas. The New Mexico site demonstrated a relatively substantial increase 

in tributary jurisdiction by approximately 204 percent, whereas the Utah site illustrated a 

more modest increase of around 8 percent. The North Dakota site showed an increase in 

jurisdictional tributaries and featured an increase in jurisdiction over isolated wetlands by 

559 percent. The findings from each test area are described below in greater detail.
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Figure 4-2 Test Site 1 (New Mexico Example) Existing Data Map
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Figure 4-3 Test Site 1 (New Mexico Example) Jurisdictional Waters Per Current Guidance
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Figure 4-4 Test Site 1 (New Mexico Example) Jurisdictional Waters Per Proposed Rule
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Figure 4-5 Test Site 2 (Utah Example) Existing Data Map
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Figure 4-6 Test Site 2 (Utah Example) Jurisdictional Waters Per Current Guidance
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Figure 4-7 Test Site 2 (Utah Example) Jurisdictional Waters Per Proposed Rule
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Figure 4-8 Test Site 3 (North Dakota Example) Existing Data Map
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Figure 4-9 Test Site 3 (North Dakota Example) Jurisdictional Waters Per Current 

Guidance
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Figure 4-10 Test Site 3 (North Dakota Example) Jurisdictional Waters Per Proposed Rule

4.1.2.1 Test Area 1 New Mexico

With a landscape characteristic of dry regions, results in New Mexico found an increase 

of approximately 204 percent to the linear feet of jurisdictional features under the 

Proposed Rule due to the inclusion of discontinuous ephemeral streams. Test area 1 is 

located in the Permian Basin approximately 21 miles southeast of Loving, New Mexico. 

The area is located approximately 6.5 miles northeast of the Pecos River, which is the 

closest traditional navigable water (TNW). The area has numerousephemeral drainages 

and isolated wetlands are commonly encountered. In the southern portion of the site, 

some of the ephemeral drainages are discontinuous. It is unclear if the ephemeral 

drainages in the northern portion of the area have a continuous bed, bank, and ordinary 

high water mark (OHWM) connection to the Pecos River – aerial imagery indicates a 

possible loss of bed, bank, and OHWM connection River adjacent to where the drainage 

is crossed by State Line Road.
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Table 4-1 Test Area 1 New Mexico

Streams and wetlands in the southern portion of the New Mexico test area are isolated 

from a TNW, as are tributaries in the northeast. Therefore, these features are classified as 

non-jurisdictional under current practice. Streams in the northeast portion of the area are 

either discontinuous or likely do not have OHWM, and are classified as nonjurisdictional 

under current practice. Tributaries on the north and northwest of the New Mexico test 

area potentially have a continuous bed, bank, and OHWM connection drain to the Pecos 

River, and are classified as jurisdictional under current practice. All features on the area 

would be jurisdictional under the Proposed Rule, except the drainages in the northeast 

portion of the area that are unlikely to have OHWM, because they would meet the 

tributary definition or are fed directly by features that would be defined as tributaries.

The northern drainage may lose bed, bank, and OHWM connectivity approximately two 

miles away from the Pecos River near State Line Road. If this drainage is discontinuous 

and would not be jurisdictional under current practice, then the percent increase in 

jurisdictional streams under the Proposed Rule would increase significantly from 204 

percent as all features on the site would shift from non-jurisdictional to jurisdictional.

4.1.2.2 Test Area 2: Utah

Examination of conditions in Utah reveals similar additions to jurisdictional waters as 

New Mexico per the identification and delineation of ephemeral isolated tributaries, 

though to a lesser degree. While this area had a smaller increase than the New Mexico 

area, the increase is more than double the 2.7 percent increase identified by the Agencies. 

Test Area 2 is located in the Uinta Basin, approximately 34 miles southwest of Vernal 

Utah. The area is located approximately one mile northwest of the Green River, which is 

the closest TNW. The test area has numerous ephemeral drainages and 2 isolated wetland 

areas. Moreover, it is located in the arid west where ephemeral drainages and isolated 

wetlands are common features. Some of the smaller ephemeral drainages are 

discontinuous. It is unclear if the other ephemeral drainages have a continuous bed, bank, 
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and OHWM connection to the Green River – aerial imagery indicates possible loss of a 

bed, bank, and OHWM connection approximately 100 meters north of the Green River 

Flood Plain. 

Table 4-2 Test Area 2 Utah

Only the isolated stream and wetland features within the Utah test area would be 

classified as non-jurisdictional under current guidance as the remaining drainages 

demonstrate continuous bed, bank, and OHWM connection with the nearby Green River; 

this accounts for the relatively modest increase percentage in jurisdictional areas. After 

the Proposed Rule, all isolated features would be classified as jurisdictional with the 

exception of the small ponded feature which fails to demonstrate any connectivity.

The northern drainage may lose bed, bank, and OHWM connectivity approximately 100 

meters upgradient of the Green River floodplain. If this drainage is discontinuous and 

would therefore not be jurisdictional under current practice, then the percent increase in 

jurisdictional streams under the Proposed Rule would increase from 8 percent to 

approximately 135 percent. 

4.1.2.3 Test Area 3: North Dakota 

The increased jurisdictional features in North Dakota differed from previous test area 

with a 559 percent increase associated with isolated water bodies and wetland features as 

well as an increase in linear tributary features. Test Area 3 is located in the Williston 

Basin, approximately 5 miles southwest of McGregor, North Dakota. The area is located 

approximately 22 miles north of the Missouri River, which is the closest TNW.

The area has numerous isolated drainages, waters, and wetlands – the majority of these 

do not have surface water connections to a TNW. A few of the features in the Northeast 

portion of the area have continuous confined surface hydrologic connection (e.g., wetland 

or upland ditches/swales) connecting to the White Earth River (a tributary of the Missouri 

River). The area is located in the Northwestern Glaciated Plains ecoregion – a region 

named by the Agencies for consideration of de facto significant nexus jurisdiction of all 

“other waters” within an ecoregion.
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Table 4-3 Test Area 3 North Dakota

Wetland features in the northeastern portion of the North Dakota test area, north of 76th 

St NW, appear to have a continuous confined surface hydrologic connection, as captured 

through upland or wetland swales, to the White Earth River which eventually connects to 

the Missouri River. Therefore, these features may be considered jurisdictional WOTUS 

under current practice. The remaining streams, swales, and wetlands on the North Dakota 

test area are either themselves isolated or flow into insolated features that are not named 

as nor connected to a TNW. Therefore, these features would be non-jurisdictional under 

current practice. All wetland and NHD features on the North Dakota test area would be 

jurisdictional under the Proposed Rule, using the assumption that the Agencies will 

extend significant nexus to all waters and wetland features in the Northwestern Glaciated 

Plains ecoregion watersheds.

4.1.2.4 Conclusions

Quantitative analysis of the application of the Proposed Rule conducted at the three test 

areas found increases ranging from 8 percent to over 200 percent for linear tributary 

features and increases including 559 percent for isolated wetland features and an 

additional 3300 linear feet of tributaries. The three test areas clearly demonstrate that that 

the Agencies’ estimate of a 2.7 percent increase in jurisdiction is likely a gross 

underestimate. Each area demonstrated a substantial increase in jurisdictional status when 

considering area-specific significant nexus evaluations over isolated waters or wetlands 

or discontinuous ephemeral streams. These increases range from a minimum of 

approximately 8 percent to as much as approximately 550 percent or higher. While these 

test cases are not intended to be directly extrapolated to represent the amount of increase 

in jurisdictional waters that would occur nationwide under the Proposed Rule, they serve 

to highlight that even with fairly conservative assumptions regarding jurisdiction under 

current practice, the increase in jurisdictional features under the Proposed Rule is likely 
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significantly higher than the 2.7 percent estimated by the Agencies, especially in regions 

important to oil and gas development. (p. 85-107)

Agency Response: See Summary Responses to Topic 11.2 and Topic 14.1 on sitespecific examples.

11.2.140 4.3 A desktop study by another API member company in the mid-Continent 

demonstrated considerably increased infrastructure impacts under the Proposed 

Rule.

Another API member company independently conducted a desktop study to evaluate 

potential WOTUS under the Proposed Rule using infrastructure intersections with 1) the 

high resolution National Hydrography Dataset (“NHD”, 1:24,000 scale) representing 

what most District Corps offices currently use and 2) high-resolution Digital Elevation 

Models or Lidar (5m resolution) that identifies a greater number of ephemeral streams 

relative to the high-resolution NHD.

The first study concerned an area in the Mid-Continent with 379 miles of pipelines and 

63 well pads. Under the 2008 Guidance, pipelines intersected with mapped streams from 

the NHD data set at 418 locations (applicable NWPs applied). Under the Proposed Rule, 

pipelines would intersect Lidar-mapped features at 2,043 locations – nearly a 400 percent 

increase, and 5 times as much as under the 2008 Guidance; however, approximately 35 

percent of the Lidar mapped features fell within cultivated fields and likely would not be 

jurisdictional under the new rule leaving 1,327 locations. Of those, 43 well pad site 

locations were within cultivated fields and likely non-jurisdictional. No mapped streams 

appeared to have been located within well pad site locations. In short, under the Proposed 

Rule as written, over 1284 sites would be jurisdictional – over three times as many as 

under the 2008 Guidance. A second study in the Delaware Basin in the Southwest U.S. 

consisted of mapping three individual study areas consisting of 113 miles of pipelines 

and 222 well pad sites. Under the 2008 Guidance, pipelines intersected NHD dataset 

mapped streams at five locations that would likely be jurisdictional and fall within 

applicable NWPs. 

The Proposed Rule would feature a considerable increase:

 Pipelines would intersect a high-resolution DEM mapped features at 312 

locations;

 Based on aerial photographs relying on vegetation indicators, etc., 226 of the high 

resolution mapped crossings did not appear to meet the definition of a tributary 

and would likely not be jurisdictional under the new rule leaving 86 locations;

 High-resolution features were depicted to encroach within or cross 79 well pad 

sites; however, based on aerial photographs, 54 of the features did not appear to 

meet the definition of a tributary and would likely not be jurisdictional under the 

new rule;
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 No mapped streams appears to have been located within well pad locations; and

 No National Wetland Inventory wetlands were crossed by any pipelines or within 

the boundaries of pad sites.

 In each of these two studies, the high-resolution imagery picked up very subtle 

changes in topography including vegetation patterns, topographic gradients and 

indications of channelization. Upon closer examination of the corresponding 

aerial photos and topographic maps looking both upstream and downstream of the 

channel crossings, the highly trained wetlands consultant eliminated many of the 

high-resolution mapped features if they did not exhibit any indications of being a 

tributary.

 These two desktop studies indicate that, even under relatively conservative 

estimates, the Proposed Rule and its overly broad criteria for ephemeral streams 

would result in infrastructure intersecting with an increasing number of potential 

WOTUS, and likely requiring increased permits. (p. 121-122)

Agency Response: See Summary Responses to Topic 11.2 and Topic 14 on sitespecific examples

11.2.141 5. The Proposed Rule will cost the oil and natural gas industry at least 

several hundred million dollars annually and the costs could easily approach billions 

depending upon how the rule is implemented. 

The Proposed Rule will have a significant impact on the oil and natural gas industry.

5.1 Every sector of the oil and natural gas industry will be affected by this Proposed 

Rule. 

Every sector of the oil and natural gas industry will be affected by the Proposed Rule, and 

the increased costs and schedule delays associated with the new regulatory requirements 

would impact both new capital projects and ongoing operations and maintenance projects 

for existing facilities. These impacts would not be limited to the oil and gas industry as 

they would extend across the U.S. national economy.

5.1.1 The Upstream sector may bear the most significant costs due to sheer volume of 

permitting accompanying each oil or natural gas well site, and the increasing amount of 

onshore development.

It is anticipated that the upstream sector of the oil and natural gas industry would 

experience the most significant effects. The upstream sector includes the exploration and 

production of crude oil and natural gas. In contrast to stationary facilities such as 

refineries, which may have been sited decades earlier near major waterways and have had 

many years to conduct detailed environmental studies around them, upstream work is 

often conducted in remote headwater areas or arid regions, and on shorter timelines. The 

work generally entails the drilling of exploratory wells, as well as subsequently drilling 

and operating the wells that bring the crude oil and/or natural gas to the surface. 
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Upstream activities include the design and construction of exploratory and production 

areas – including access roads, well pads, pipelines, and temporary storage areas. In 

addition to direct impacts such as cost increases and schedule delays associated with 

project permitting, indirect impacts include more difficult access and production design 

over time as production areas develop. While the avoidance of jurisdictional areas 

initially may be practical, the increased density of development through time coupled 

with the increased extent of jurisdictional waters will result in increasingly difficult 

scenarios for avoidance of WOTUS. Alternative surface right acquisitions or other 

cooperative land use agreements may be required to avoid impacts to jurisdictional areas.

The direct cost impact is expected to be hundreds of millions of dollars and the indirect 

costs associated with lost production, lost jobs, and lost land/lease value, from permitting 

delays and litigation are expected to reach billions of dollars affecting major elements of 

the U.S. economy. (p. 121-123)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.3, 11.3.1, and 

11.4 on costs.

11.2.142 5.1.2 The Proposed Rule will also increase costs for midstream and 

downstream infrastructure and facilities.

Portions of the midstream sector will also be significantly affected by the Proposed Rule. 

Midstream activities involve transportation, storage, and wholesale marketing of crude 

oil. In particular, pipeline construction for distribution would be impacted by the 

increased jurisdictional area under the Proposed Rule, resulting in permit delays and/or 

possible nullification of the utility of nationwide permits for pipeline construction. 

Individual permit costs for pipelines would be extraordinarily high. Midstream facilities 

may also be significantly impacted economically if man-made ditches and surface 

impoundments used at their plant sites are determined to be WOTUS. Future plans for 

expansion, maintenance, or site remediation may be restricted due to application of 

jurisdiction over artificial impoundments, ditches, and canals.

The downstream sector involves the refining of crude oil and the processing of natural 

gas, as well as marketing and distribution of finished products such as gasoline and 

diesel. These facilities would be affected by the need for increased SPCC plans and 

associated facility changes to address containment structure construction and 

maintenance, as well as uncertainty concerning the extent and constraints of the Proposed 

Rule’s exemptions for ponds and lagoons. If the Agencies classify manmade ditches and 

impoundments used at refineries and chemical plants as WOTUS (which is currently 

unclear because of ambiguities in the defined exclusions), then such facilities could incur 

significant capital and operating costs and/or lose the utility of units such as ponds and 

lagoons owing to the necessity of meeting ambient water quality standards within them. 
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The continued exemption of waste treatment and wastewater facilities is critical to 

minimizing the impact of the Proposed Rule to both downstream facilities and oil and gas 

sector as a whole. (p. 124)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.3, 11.3.1, and 

11.4 on costs.

11.2.143 5.2 The costs of the Proposed Rule to the oil and natural gas industry will be 

magnified due to recently increased growth in production and infrastructure.

The Proposed Rule underestimates economic impacts to the oil and natural gas industry 

by relying on permitting data from a time predating significant growth in U.S. onshore 

energy production and associated infrastructure as well as data collected during the 

recession.

5.2.1 Current U.S. onshore production data indicates far greater impacts to the oil and 

natural gas industry than estimated by the Agencies due to the recent dramatic growth in 

domestic onshore development.

The time period from fiscal year 2009 to 2010 selected by the Agencies for analysis leads 

to dramatic underestimates of the impact of the Proposed Rule on the oil and natural gas 

industry. From 2008 to 2012, unconventional resource development allowed the U.S. to 

add nearly 1.2 million barrels per day in crude oil production capacity.109 Similarly, since 

2008, the U.S. has added over 50,000 barrels of oil equivalent (boe) per day of natural 

gas liquids (NGL) production.110 By 2012, the U.S. was the world’s second largest oil 

producer and the largest producer of natural gas, producing a total of 24.1 trillion cubic 

feet of dry natural gas.111 The U.S. is projected to overtake Saudi Arabia as the world’s 

largest oil producer around 2020.112 The cost impact should be re-estimated to rely on 

more representative values that reflect current production. (p. 125)

Agency Response: The agencies have updated the jurisdictional determinations 

and permit data years used in the economic analysis. See Summary Response to 

Topic 11.2 and the Economic Analysis.

 

109 Energy Information Administration (EIA) – Monthly Energy Review available at 

https://www.eia.gov/totalenergy/data/monthly/pdf/sec3_3.pdf

110 EIA - Monthly Energy Review available at

https://www.eia.gov/totalenergy/data/monthly/pdf/sec3_3.pdf

111 EIA - Monthly Energy Review available at https://www.eia.gov/totalenergy/data/monthly/pdf/sec3_3.pdf

112 International Energy Agency (IEA), November 2013.
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11.2.144 5.2.2 Infrastructure investments accompanying the additional growth in domestic 

energy production will also require additional permits that were not considered by the 

Agencies’ economic estimates.

To manage this growth, between 2010 and 2013, Information Handling Services, 

Incorporated (IHS) estimates that the capital spending in oil and natural gas midstream 

and downstream infrastructure has increased by 60 percent, from $56.3 billion in 2010 to 

$89.6 billion in 2013.113 As IHS noted, “Many of the major oil and gas infrastructure 

investments made for the past 30 years have been premised under the assumption of 

decreasing domestic production, increasing energy imports, and the need to move 

imported energy from coastal receiving ports to inland demand centers. A large portion of 

the projects developed during this sustained infrastructure investment from coastal 

receiving ports to inland demand centers. A large portion of the projects being developed 

during this sustained infrastructure investment period will shift the U.S. toward being 

energy trade balanced and add key infrastructure segments that will enable growing 

energy production in the Midcontinent region to reach demand centers on the US Gulf 

Coast and Eastern Seaboard.”114

IHS estimates that $85 – 90 billion of direct capital will be allocated toward oil and 

natural gas infrastructure in 2014, and that by 2025, cumulative spending could range 

from $890 billion in the base case to $1.15 trillion in the high production case.115 It 

should be noted that the base case does not assume restrictive development policies that 

enhance uncertainty. Permitting according to the Proposed Rule on Waters of the U.S. 

could jeopardize these developments by creating the delays and uncertainties that 

discourage investors. (p. 125-126)

Agency Response: The agencies believe the rule will expedite the permit review 

process in the long-term by clarifying jurisdictional matters that have been timeconsuming and cumbersome for field staff and the regulated community for certain 

waters in light of the 2001 and 2006 Supreme Court cases. The Corps’ Nationwide 

Permit program, which authorizes Clean Water Act Section 404 discharges that 

would have no more than minimal adverse impacts to aquatic resources, is available 

for activities that qualify.

11.2.145 5.4.2 Permitting will become more time-consuming and expensive due to both 

increased jurisdictional features and their lack of clarity.

As the number of jurisdictional features increase, so increases the probability that any 

given project will impact one or another jurisdictional feature, thus increasing its nominal 

‘impact’ as defined under the Proposed Rule and thus the need for additional permits 

 

113 IHS, “Oil and Natural Gas Transportation & Storage Infrastructure: Status, Trends, & Economic Benefits,” 2013.

114 IHS, “Oil and Natural Gas Transportation & Storage Infrastructure: Status, Trends, & Economic Benefits,” 2013, 

p. 3.

115 IHS, “Oil and Natural Gas Transportation & Storage Infrastructure: Status, Trends, & Economic Benefits,” 2013.
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(particularly Section 404 permits for well sites). Nationwide Permits (including NWP 12 

for linear transportation projects like roads and well pads) will continue to offer 

efficiencies over individual permits. However, as shown in the Section 4, the Proposed 

Rule will likely require operators to obtain many more permits than before. Projects that 

earlier qualified for a general permit may now require an individual permit; those that did 

not require a permit at all may now have to apply for prior construction notice under a 

general permit program. This gradual shifting in permit structure means an overall 

increase in time spent seeking permits, as well as costs for desktop and field work for site 

reviews, preparation of documentation, compensatory mitigation and other costs, as 

detailed in this document. The impacts are likely to be greater—and less predictable—for 

upstream exploration and production activities in remote areas far from traditional 

navigable waters.

This is true not only of federal dredge-and-fill (CWA §404) permits. Since a greater 

proportion of conveyances and wetlands are drawn into the Proposed Rule, the scope and 

number of, National Pollutant Discharge Elimination System (CWA §402) and other 

requirements and restrictions under water quality standards and total maximum daily load 

programs (CWA §303) could also increase significantly. (p. 133)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4.

11.2.146 5.4.3 Mitigation requirements will increase due to increased jurisdictional 

features. 

An increase in jurisdictional wetlands will also require an increase in compensatory 

mitigation for wetland impacts pursuant to a general permit or individual permit. 

Particularly for resource-dependent facilities such as upstream oil and gas operations that 

must be located over the target oil zone, the opportunity to avoid WOTUS is limited. The 

increased area of WOTUS will further restrict design and access opportunities and 

mitigation will be required where impacts are unavoidable. These costs are described in 

Section 3.1.2.2. (p. 133)

Agency Response: See Summary Responses to Topics 11.3 and 11.3.1 on 404 

mitigation costs.

11.2.147 5.4.5 Impoundment costs will increase.

The Proposed Rule would include all impoundments of a traditional navigable water, 

interstate water, the territorial seas or a tributary as WOTUS. The addition of tributaries 

upstream of irrigation diversion, dams, reservoirs and other impoundments as WOTUS 

will create additional jurisdictional areas that previously did not exist, particularly in 

western states where water is redistributed from its source watershed across vast upland 

areas to support farming and other activities. These newly created WOTUS are expected 
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to occur in oil and gas producing areas such as California’s central valley where 

significant oil and gas production occurs in close proximity to intense agricultural 

production. (p. 134)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The final rule includes several changes to provide the additional 

clarity requested. The changes include identifying the specific functions to be 

assessed in a significant nexus evaluation, providing more exclusions as part of the 

rule text for the first time, and reducing the number of case-specific determinations 

of jurisdiction required. See Summary Responses to Topics 11.2, 11.3, 11.3.1, and 

11.4 on costs.

11.2.148 5.4.6 Expanded remediation considerations are also likely to yield increased 

expenditures.

A significantly expanded WOTUS definition would result in a greater number of features 

requiring more stringent remediation and restoration. If remediation is required in an area 

supporting a jurisdictional water that previously would not have been considered 

jurisdictional, the regulatory requirements would increase significantly, though the 

change in the regulatory status of the feature would not be expected to change the 

cleanup goals. As such, the increase in regulatory oversight would increase the cost and 

time required to complete the remediation without providing any significant additional 

benefit to the environment. (p. 134)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The final rule includes several changes to provide the additional 

clarity requested. The changes include identifying the specific functions to be 

assessed in a significant nexus evaluation, providing more exclusions as part of the 

rule text for the first time, and reducing the number of case-specific determinations 

of jurisdiction required. See Summary Responses to Topics 11.2, 11.3, 11.3.1, and 

11.4 on costs.

11.2.149 5.5 Permitting Cost Breakdown

As discussed in Section 4, additional costs for any sort of new construction – be it roads, 

wells, pads, pipelines, tanks, facilities, crossings, discharges, intakes, flood control, etc. –

are expected to be significantly higher than the estimates in the Economic Analysis for 

the Proposed Rule.

The original Economic Analysis for the Proposed Rule is largely constrained to Section 

404 permitting and mitigation costs; consequently, it fails to recognize the myriad of 

related costs necessary to support that permitting. For example, biological surveys, 

Endangered Species Act (ESA) Section 7 documentation preparation, cultural resource 

studies, Section 106 review, and state permitting fees for Section 401 Water Quality 

Certification add significant cost to Section 404 permitting.
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Similarly, the habitat restoration costs appear to have excluded a number of required 

elements associated with high quality mitigation including the cost and time required to 

1) identify and assess potential mitigation sites, 2) prepare site specific restoration plans, 

and 3) conduct long-term maintenance, monitoring, and reporting. The Agencies’ 

identified costs appear to be primarily based on installation costs with minimal 

maintenance, monitoring and reporting. Maintenance, monitoring, and reporting costs are 

all significant. In fact, a lack of maintenance is widely recognized as the primary cause of 

failed mitigation restoration. (p. 137)

Agency Response: The agencies have taken into consideration costs associated 

with other CWA programs. See Summary Response for Topic 11.4.

11.2.150 7. Conclusions

The Proposed Rule should be reworked substantially to achieve the reported justification 

for the rulemaking. While seeking to clarify definitions of WOTUS, the Agencies have 

used vague unmeasured terms, excluded criteria for assessing conditions driving 

jurisdiction, and broadened the extent of jurisdiction over water bodies and wetlands 

beyond the limits of jurisdiction defined in the CWA as currently practiced. The basis 

and methodology of the Agencies analyses are flawed and incomplete. This extension of 

jurisdiction will have significant direct and indirect financial and developmental impacts 

on the regulated community costing billions of dollars, jeopardizing significant elements 

of the national economy and costing jobs and slowing attainment of national energy 

independence.

Developing a comprehensive economic impact analysis of the Proposed Rule is virtually 

impossible until the Agencies define and justify with supporting literature the 

measurable, quantifiable criteria that they are planning to use to determine jurisdiction. 

Once identified, these criteria need to be clearly presented in the Proposed Rule. Once 

defined, the economic impact can be quantified, using some of the methods demonstrated 

in this document.

Moreover, the Agencies’ approach in quantifying the potential increase in jurisdictional 

waters in the 2014 Economic Analysis significantly underestimates the potential increase 

in jurisdictional waters by relying solely on data records contained in a single 

government database, assuming the Proposed Rule would not impact the number of 

permit filings, and using data from 2009 to 2010 (which are not relevant to current 

stronger economic conditions). API case studies evaluated in preparation of this comment 

letter found a range of increased jurisdiction from 8 percent to greater than 559 percent in 

three active oil production areas following the Proposed Rule (See Section 4). Although 

these case studies should not be extrapolated to definitively represent the entire nation, 

the discrepancy between these independent estimates and the Agencies’ estimates are 

significant enough to call into question the 2.7 percent value cited by the Agencies –

particularly in light of the assumptions applied and procedural weaknesses discussed 

above. In order to develop a more representative nationwide cost estimate, the Agencies 
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should conduct a comparable nationwide assessment employing the approach used for 

these case studies.

With respect to permitting costs, the Agencies’ Economic Analysis noted the four types 

of CWA permitting costs: 1) permit application costs; 2) compensatory mitigation costs; 

3) permitting time costs; and 4) impact avoidance and minimization costs. It estimated 

only the first two of these.

Errors in the Agencies methodology resulted in the underestimation of the following: 1) 

the number of additional permits required under the Proposed Rule; 2) the increase in 

administrative costs for permit processing; 3) the average cost for permit application 

preparation; 4) the average cost for mitigation; and 5) the costs of other regulatory 

programs affected by the definition of WOTUS. In fact, the actual increase in costs 

resulting from permit application fees, compensatory mitigation, SPCC, and NPDES 

alone would be approximately three times greater than the Agencies’ proposed $133.7 -

$231 million.

The Agencies’ Economic Analysis also overestimated the public benefits of the Proposed 

Rule. The Proposed Rule will produce almost no public benefit in states that already 

protect “isolated waters” that are not currently WOTUS. Even in states that do not 

currently protect the waters that would be covered under the Proposed Rule, the benefits 

transferred in the Economic Analysis are largely speculative as they do not meet EPA’s 

own Guidelines for benefit transfer. The Agencies therefore should have conducted an 

original wetlands valuation study for the different regions of the country, as required by 

EPA’s Guidelines.

Even if the ten wetland valuation studies utilized met EPA’s Guidelines for benefit 

transfer, the Agencies’ estimate of benefit would be reduced by more than $100 million 

(roughly 40 percent) by excluding just one of the studies, which is a clear outlier from the 

rest. Similarly, the benefits estimate from avoiding oil spills under CWA 311 is highly 

speculative, completing lacking in proper support from realistic data, and substantially 

overstates the benefits of the Proposed Rule.

The potential increase in jurisdictional waters under the Proposed Rule was also 

independently evaluated analyzing actual jurisdictional determinations at various 

locations in the U.S. ARCADIS evaluated the potential increase in jurisdictional waters 

using 3 test areas in the U.S. and utilizing geographical information system (GIS) 

mapping (see Section 4). The scenarios demonstrated a range of jurisdictional increases 

from 8 percent to over 550 percent. All of these studies show increased jurisdiction 

significantly larger than the 2.7 percent nationwide increase reported in the Agencies’ 

report.

The stakes for the Proposed Rule are incredibly high. Even using the Agencies’ likely 

low estimate of a 2.7 percent increase in permitting, the Proposed Rule will likely cost 

industry, the states, local governments and home owners billions of dollars. Assuming 

that 2.7 percent of onshore wells are not drilled due to onerous permitting requirements, 
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in the first year alone the U.S. will lose $8 billion in GDP, including 67,200 jobs, $34.5 

billion in labor income, and $1.3 billion in government revenue. Production of oil could 

be expected to decrease by 229,000 barrels/day and natural gas production would 

decrease by 1.37 billion cubic feet per day.

The Proposed Rule should be suspended and reworked until the identified deficiencies in 

the ambiguous language of the rule and the methodologies employed to assess the 

impacts of the rule are thoroughly redeveloped to concisely and accurately represent the 

regulatory and cost impacts on the regulated community. Quantitative, measureable 

criteria must be provided such that the regulated public can effectively delineate WOTUS 

when planning and designing upcoming projects. This benefits both the environment as 

well as the regulatory agencies by facilitating proactive avoidance of impacts to WOTUS. 

When their criteria have been developed for all areas of the U.S., then a comprehensive 

economic analysis must be conducted. The analysis must start with a defensible study of 

the anticipated increase in jurisdictional waters nationwide. This should be based on 

analysis of actual surface features rather than extrapolated from historic jurisdictional 

determinations in the ORM2 database. The increase is expected to be significantly higher 

than 2.7 percent. 

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

11.2.151 Once a more accurate value for the increase in WOTUS has been developed, then 

a comprehensive economic analysis is appropriate to allow the public and the decision 

makers to fully understand the significant economic impacts the Proposed Rule would 

have on the U.S. economy. (p. 141-143)

Agency Response: The agencies prepared an economic analysis for informational 

purposes, and the final decisions on the scope of “waters of the United States” in this 

rulemaking are not based on consideration of the information or analysis in the 

economic analysis. The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 10 and 11.

Permian Basin Petroleum Association (Doc. #15378)

11.2.152 PBPA is concerned that the proposed rulemaking has significant negative 

economic consequences for the oil and gas industry – the predominantly affected activity 

sector in the arid west in terms of numbers of potential regulated facilities and associated 

compliance costs. The improper classification of erosional gullies (not jurisdictional) in 

the arid west as ephemeral streams has substantial costs for compliance and potential 
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permitting delays that would not provide a commensurate return in actual environmental 

protection. The additional costs and delays due to extensive permitting are simply 

unnecessary and overly burdensome. Additionally, David Sunding, Ph.D., an economist 

on the faculty of the University of California-Berkeley, has prepared and published a 

paper dated May 15, 2014, entitled “Review of 2014 EPA Economic Analysis of 

Proposed Revised Definition of Waters of the United States” for The Waters Advocacy 

Coalition. The Waters Advocacy Coalition represents a broad array of industries whose 

business activities are affected by the Clean Water Act, and ultimately, this proposal. The 

Executive Summary of this paper states in part “EPA is proposing an expansion of the 

definition of the term “waters of the United States” to include categories of waters that 

were previously never regulated as waters of the United States, such as all waters in 

floodplains, riparian areas, and certain ditches. The inclusion of these waters will broaden 

the scope of the CWA and will increase the costs associated with each program. 

Unfortunately, the EPA analysis relies on a flawed methodology for estimating the extent 

of newly jurisdictional waters that systematically underestimates the impact of the 

definitional changes. This is compounded by the exclusion of several important types of 

costs and the use of a flawed benefits transfer methodology, which EPA uses to estimate 

the benefits of expanding jurisdiction. The errors, omissions, and lack of transparency in 

EPA’s study are so severe as to render it virtually meaningless. The agency should 

withdraw the economic analysis and prepare an adequate study of this major change in 

the implementation of the CWA.” PBPA fully agrees with the conclusions of Dr. 

Sunding’s study. (p. 2)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4.

Texas Pipeline Association (Doc. #15404)

11.2.153 Not only would such a "catch-all" provision open the door for all manner of 

insignificant water or land features to qualify for CWA protection, it would also inject 

substantial confusion and potential for delay, as it would create the possibility for lengthy 

and detailed analyses, performed on a case-by-case basis, of whether a particular water or 

land feature had the potential to affect the chemical, physical, or biological integrity of a 

traditional navigable water located at some other location. We believe that this would be 

inappropriate and would impose undue burdens and unnecessary delays upon those 

wishing to engage in construction or development projects.

In comments filed on this docket, the Association of Electric Companies of Texas 

("AECT") provides a detailed explanation of how the expanded definition of "waters of 

the United States" proposed in this rule would exceed the legal authority of the EPA and 

the Corps of Engineers, would impose substantial new costs on industry, and would 
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create unnecessary ambiguity, uncertainty, and confusion as to what is and is not a water 

or land feature covered by CWA permitting requirements. TPA endorses and adopts the 

comments submitted by AECT on these issues. (p. 2)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis. See preamble and Technical Support Document for the legal 

basis for this rule.

Illinois Coal Association (Doc. #15517)

11.2.154 The Proposal also advances the position that a tributary can never lose its legal 

status as a jurisdictional tributary, regardless of the presence of man-made or natural 

structures. Id. This carte blanche "no de-federalization" approach could be extremely 

problematic, especially since the Agencies have proposed no geographic or temporal 

limits to its application. For the ICA and its members, the revised definition of tributaries 

is particularly troubling. The majority of eastern coal mine sites, including many 

currently owned and operated by the Associations' member companies, have been in 

active use for decades, during which time operators have relied on drainage ditches and 

culvert conveyances to manage stormwater flow and maintain compliance with the CWA 

section 402 and 404 authorizations, These features are common across surface coal 

mining sites and, and in many cases, would likely have once been part of a natural 

drainage or tributary. Because the locus of activities at surface mine sites is constantly in 

flux, mine operations frequently come into contact with these types of features and 

completion of routine operations and regular expansions will often necessitate some 

alteration or impact. This has posed few regulatory challenges for the Association's 

member companies as most of these features have historically been considered outside 

the realm of CWA jurisdiction. Suddenly bringing these historically exempt and nonjurisdictional features under the lens of CWA sections 402 and 404 would now translate 

into a significant added regulatory burden and cost for ICA members without any 

corresponding justification. (p. 10)

Agency Response: The rule does not affect or modify in any way the many 

existing statutory exemptions under CWA Sections 404, 402, and 502. The rule is 

narrower in scope than existing regulations and historical practice. The 

accompanying economic analysis addresses changes in the assertion of jurisdiction 

that may occur relative to recent practice and the resulting impacts on CWA 

programs. See Summary Responses to Topics 11, 11.2, 11.3, 11.3.1, 11.3.2 and 11.4 

on how the agencies have addressed concerns related to the economic analysis.
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Pennsylvania Grade Crude Oil Coalition (Doc. #15773)

11.2.155 The conventional exploration and development activities engaged in by PGCC 

members carry a small footprint. Well site locations generally involve a small fraction of 

an acre and under current regulations the permitting and notification requirements for the 

vast majority of conventional operations are minimal. However, the expanded scope of 

jurisdictional waters under the Proposed Rule will dramatically increase those 

requirements. That expanded scope will necessitate both complex general permitting. As 

noted, the additional costs associated with the permitting requirements will have a 

significant negative impact upon conventional operations.

In addition to additional costs the additional delay associated with obtaining an individual 

permit can presently be as much as a year or more. With the demand for individual 

permitting for many industries expected to increase due to the Proposed Rule, delays for 

permit approvals are likely to increase by an additional six months or more. Such lengthy 

delays have critical consequences for oil and gas development. For example, leases may 

expire before a permit is obtained, resulting in the loss of land position, the loss of 

signing bonuses and lease payments, and the need to re-sign the lessor (or find another 

tract of land) at potentially higher rates. Further, the inability to meet a rig schedule could 

result in the possible loss of a rig and/or the significant costs associated with shutting 

down and starting up the rig. (p. 7)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis. The agencies believe the rule will expedite the permit review 

process in the long-term by clarifying jurisdictional matters that have been timeconsuming and cumbersome for field staff and the regulated community for certain 

waters in light of the 2001 and 2006 Supreme Court cases. The Corps’ Nationwide 

Permit program, which authorizes Clean Water Act Section 404 discharges that 

would have no more than minimal adverse impacts to aquatic resources, is available 

for activities that qualify. 

Dominion Resources Services, Inc. (Doc. #16338)

11.2.156 (...) Through the definitions of “tributaries”, “adjacent waters” and “other 

waters”, the proposed rule would expand jurisdiction over features that are not currently 

jurisdictional. We are concerned that this expansion in jurisdiction will result in delays 

and increased costs for project planning and permitting for a range of infrastructure 

projects including natural gas transmission and distribution, electric transmission and 

distribution, as well as traditional and renewable electricity generation development. (p. 

2)
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Agency Response: The agencies have used the feedback we received from public 

outreach efforts as the source of early guidance and recommendations for refining 

the proposed rule. Specifically, stakeholder input received during public outreach 

events in combination with the written comments received during the public 

comment period have reshaped each of the definitions included in the final rule, 

ultimately with the goal of providing increased clarity for regulators, stakeholders, 

and the regulated public to assist them in identifying waters as “waters of the United 

States.”

The rule is narrower in scope than existing regulations and historical practice. The 

accompanying economic analysis addresses changes in the assertion of jurisdiction 

that may occur relative to recent practice and the resulting impacts on CWA 

programs. See Summary Responses to Topics 11, 11.2, 11.3, 11.3.1, 11.3.2 and 11.4 

on how the agencies have addressed concerns related to the economic analysis.

11.2.157 While the agencies intend to provide clarity, in practice the proposal would 

increase uncertainty regarding jurisdiction. We are concerned that this uncertainty will 

result in inconsistent application in the field. This uncertainty is a risk to the timing, cost 

and eventual development of our new infrastructure projects (e.g., natural gas 

transmission lines and renewable generation). The proposal also could result in 

uncertainty regarding requirements for existing facilities such as the point of compliance 

with discharge requirements for existing electricity generating stations and our electric 

and natural gas transmission and distribution facilities. (p. 2)

Agency Response: The final rule includes several changes to provide the 

additional clarity requested. The changes include identifying the specific functions 

to be assessed in a significant nexus evaluation, providing more exclusions as part of 

the rule text for the first time, and reducing the number of case-specific 

determinations of jurisdiction required. Along with a narrowing of jurisdiction, the 

final rule also significantly reduces the uncertainty and number of case-specific 

determinations that will required. The rule is narrower in scope than existing 

regulations and historical practice. The accompanying economic analysis addresses 

changes in the assertion of jurisdiction that may occur relative to recent practice 

and the resulting impacts on CWA programs. See Summary Responses to Topics 

11, 11.2, 11.3, 11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns 

related to the economic analysis.

Vulcan Materials Company (Doc. #16566)

11.2.158 Vulcan respectfully believes that the economic analysis associated with the rule is 

inadequate given the degree to which the rule will expand CWA jurisdiction. (p. 3)

Agency Response: The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 
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11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

Oregon Cattleman’s Association (Doc. #5273)

11.2.159 By expanding the scope of jurisdictional "waters of the United States," the 

Agencies are effectively increasing the number of acres that development projects carried 

out by landowners will impact. This, in turn, will dramatically increase the "per acre'' cost 

to landowners when applying for permits, making their day-to-day operations more 

expensive. As a matter of public policy, the Agencies should not exercise their authority 

in a way that imposes such a great burden on private landowners and the agricultural 

industry. (p. 7)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. This final rule interprets the CWA to cover those waters that 

require protection in order to restore and maintain the chemical, physical, or 

biological integrity of traditional navigable waters, interstate waters, and the 

territorial seas. This interpretation is based not only on legal precedent and the best 

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

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

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

through clearer definitions and increased use of bright-line rules. The agencies 

emphasize that, while the CWA establishes permitting requirements for covered 

waters to ensure protection of water quality, these requirements are only triggered 

when a person discharges a pollutant to the covered water. 

North Dakota Soybean Growers Association (Doc. #14121)

11.2.160 The North Dakota Soybean Growers Association simply does not believe a 

comprehensive and accurate economic analysis has been compiled to assess the true costs 

of the proposed exponential jurisdictional expansion for small entities, individuals, and 

local political subdivisions by the agencies. There will be enormous costs for permits; 

mitigation devices; time delays; agency reviews; and determinations to small entities, 

such as townships and counties, for road work and water--‐bridging activities, including 

the cleaning and repair of ditches, culvert repair or replacement, and a wide variety of 

other work that facilitates and relieves local drainage or water--‐inundation issues. The 

same requirements will impact rural cities and developments. Farmers and ranchers, 

along with other property owners, in every jurisdiction, will experience increasing 

revenue requirements in the form of property, or other, taxes and fee levies. The agencies 

cannot substantially multiply their jurisdictional authority without significantly increasing 

regulatory enforcement and oversight costs; that authority is not the agencies’ history and 

cannot be allowed as their future. (p. 6)

Agency Response: This final rule interprets the CWA to cover those waters that 

require protection in order to restore and maintain the chemical, physical, or 
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biological integrity of traditional navigable waters, interstate waters, and the 

territorial seas. This interpretation is based not only on legal precedent and the best 

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

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

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

through clearer definitions and increased use of bright-line rules. The agencies 

emphasize that, while the CWA establishes permitting requirements for covered 

waters to ensure protection of water quality, these requirements are only triggered 

when a person discharges a pollutant to the covered water. The rule is narrower in 

scope than existing regulations and historical practice. The accompanying economic 

analysis addresses changes in the assertion of jurisdiction that may occur relative to 

recent practice and the resulting impacts on CWA programs. See Summary 

Responses to Topic 11on how the agencies have addressed concerns related to the 

economic analysis. 

11.2.161 We fail to find a full discussion about the impacts of new jurisdictional 

terminology (“neighboring”) and revised definitions (“adjacent,” “tributary,” 

“riparian areas,” and “floodplain”) on the number of current or future permit 

applications. For example, the economic-impact assessment uses data from the 

Corps’ ORM2 (Operations and Maintenance Business information link - USACE) 

2009-10 database as the basis for future impact analysis; are the databases for 

jurisdictional waters compatible? Are they compatible with the EPA’s draft rule 

categories? Is the analysis smoke and mirrors? (p. 11)

Agency Response: See the Summary Response in Topic 11.2 regarding the ORM2 

database. See also the Preamble to the Rule and Topics 2, 3, 4 regarding specific 

definitions.

Dairy Cares (Doc. #16471)

11.2.162 The dairy industry and its operations are currently subject to detailed water 

quality requirements, and are required to comply with water quality standards, through 

NPDES permits and waste discharge requirements issued by various California Regional 

Water Quality Control Boards, the State Water Resources Control Board, and EPA. 

Implementation of these state and federal programs is costly and has profoundly affected 

dairies’ water resources and land management practices. Additional regulatory burdens 

on dairy facilities, which could result from an expansion of the definition of WOTUS 

under the CWA, will not further improve the goal of protecting water quality, but will 

only increase costs unnecessarily.

Unfortunately, the Proposed Rule’s attempt to clarify the definition of WOTUS 

introduces new uncertainty into how and under what circumstances CWA jurisdiction 

will be asserted to numerous “waters” throughout the nation. With regard to dairy farms, 

there is tremendous concern that the new definitions in the Proposed Rule could result in 

improper findings that dairy facilities, or components of dairy facilities, are now 
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considered to be WOTUS subject to CWA jurisdiction. Such a result would significantly 

impact the economic viability of California’s dairies. (p. 2)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. EPA and the Corps have used stakeholder input 

received during public outreach events during the public comment period in 

combination with the written comments received during the public comment period 

to modify the terms and the definitions included in the final rule, ultimately with the 

goal of providing increased clarity for regulators, stakeholders, and the regulated 

public to assist them in identifying waters as “waters of the United States.”

Ohio Farm Bureau Federation (Doc. #16609)

11.2.163 By the agency's own admission, it has been stated on numerous occasions that the 

proposed Federal regulation will only expand the scope of jurisdiction by approximately 

3 percent. We estimate the Ohio stream miles subject to jurisdiction would increase from 

the current status of approximately 59,000 miles of digital mapped streams to an 

estimated 92,000 miles, an increase of approximately 33,000 miles or an increase of 56%. 

This scope difference alone would vastly increase the costs of the proposed regulation, 

the duplication of authorities and create confusion for farmers in these geographic areas. 

(p. 2)

Agency Response: The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

Iowa Soybean Association (Doc. #17175)

11.2.164 3. We believe EPAs economic analysis does not represent the actual impact of the 

rule in each state. EPAs assessment states the rule will increase jurisdiction by 3.2 

percent, but apparently that is only a measure of the percentage of requested analyses that 

would be ruled jurisdictional under the new rule. We believe farmers need to see a 

graphic analysis of which waters the agency would consider jurisdictional, because we 

believe the stream miles and acres affected would far exceed a 3.2 percent increase. The 

economic analysis does not include permitting costs and delays nor the loss of ability to 

farm certain acres due to increased jurisdiction. We believe the economic analysis should 

include state by state impacts, including the number of stream miles, land area and 

location of new jurisdictional acres.

4. Since the rule will expand jurisdiction, we request that an administrative appeals 

process be developed at the state level to provide farmers the opportunity to question 

increased jurisdiction on their property and prevent costly legal battles. The process 
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might include establishing a body such as a State Water Jurisdictional Appeals Board -a 

science-based panel to provide unbiased recommendations to EPA. EPA would then 

consider the findings before rendering a final decision. Members of the Appeals Board 

could include State Water Quality Agencies, Land Grant University experts, and 

Conservation Districts -- all government units.. (USDA has an appeal process for 

Swampbuster decisions that EPA could look to as a template.) At present the only 

recourse for anyone who disagrees with a jurisdictional decision is to go to court; which 

is time consuming, costly, and engenders hard feelings. This appeal process could help 

alleviate concerns about regulatory overreach, and provide a constructive outlet to handle 

disputes. (p. 2)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis. Changing other existing regulations is beyond the scope of this 

rulemaking process. See also Technical Support Document I.C.

J.R. Simplot Company (Doc. #15062)

11.2.165 For the regulated community, the greatest implication is that waters and wetlands 

that are currently classified as nonjurisdictional (either on-site, adjacent, or within the 

same watershed) could become jurisdictional, and therefore, subject to CWA 

requirements. Costs could be associated with the following:

 Jurisdictional determination - The proposed rule expands the definition of 

waters of the U.S. and would likely result in the need for updated and new 

delineations (wetland delineations and assessments of water bodies). Expense 

includes consultants for delineation, staff time for re-evaluating facilities 

status and needs for permits, costs for interacting with Corps (including

attorney fees if a jurisdictional determination is challenged). While the 

purpose of the proposed rule was to provide greater clarification, the rule's 

"other waters" and significant nexus definitions broaden the interpretation of 

waters of the U.S., and in many ways, brings greater uncertainty, especially 

for non-tributary and non-adjacent waters and wetlands.

 Permitting - With changes in jurisdictional determinations, additional 

permitting may be required at facilities, including Section 311 oil spill 

prevention and response program; Section 401 state water quality certification 

process; Section 402 NPDES permit program; Section 404 permit program for 

the discharge of dredged or fill material into navigable waters. With an 

increase in jurisdictional waters, states will be required to update their 303(d) 

listings for streams, which could result in more listed waters, which will 

impact CWA permitting (i.e., NPDES and stormwater permitting).
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 Monitoring and Compensatory mitigation - Increase permitting includes 

monitoring, reporting, and mitigation requirements, including additional water 

treatment or, as often the case, avoiding the jurisdictional area (i.e. cancel or 

move a construction project to avoid CWA issues). A recent project 

implemented by Simplot had a cost of approximately $40,000 per acre of 

wetlands mitigated.

 Third-party involvement - With the broadened definitions, third parties could 

use the proposed rule to argue that certain waters or wetlands are jurisdictional 

and that certain activities should be regulated under the CWA. Potential suits 

against the federal agencies for not following the rule would result in project 

delays or cancelations.

 Stormwater permitting - A stormwater permit is only required if there is a 

potential to discharge stormwater to a waters of the U.S. With the expansion 

of what is considered "WOTUS", additional stormwater permits may be 

needed.

 SPCC requirements - The SPCC rule (40 CFR 112) applies to the owners and 

operators of non-transportation related onshore and offshore facilities that 

could reasonably be expected to discharge oil into navigable waters of the 

U.S. or adjoining shorelines in quantities that may be harmful. In general, a 

SPCC plan is required if a facility stores more than 1,320 gallons of oil and 

the facility has the potential to discharge to jurisdictional water. More 

facilities may be subject to the SPCC requirement and/or plans may need to be 

updated to reflect the location of jurisdictional water and reporting protocol. 

(p. 11-12)

Agency Response: JR Simplot Company raises several concerns on its different 

operations. The agencies have appropriately responded to each of these concerns in 

the record. The rule is narrower in scope than existing regulations and historical 

practice. The accompanying economic analysis addresses changes in the assertion of 

jurisdiction that may occur relative to recent practice and the resulting impacts on 

CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 11.3.1, 11.3.2 and 

11.4 on how the agencies have addressed concerns related to the economic analysis. 

11.2.166 4.A. Retail Fertilizer Operations

Retail fertilizer sites provide plant nutrient and crop protection chemicals to farmers; 

thousands of such sites are found in the U.S. Such sites also may have petroleum 

substances (either as fuel or as a part of crop protection formulations/application). 

Simplot alone has approximately 100 such facilities or warehouses. Most of these 

facilities are designed to control stormwater on site, but with an expansion of what is 

considered WOTUS, more facilities may be required to obtain stormwater permits and/or 

meet SPCC requirements. The potential range of costs on a per-facility basis is 
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summarized in Table 1. Cost estimates are approximate and represent a range of costs 

based on best professional judgment.

Table 1. Retail Fertilizer Operations

(p. 12)

Agency Response: See Summary Responses to Topics 11, 11.2, 11.3, 11.3.1, 11.3.2 

and 11.4 on how the agencies have addressed concerns related to the economic 

analysis. Topic 11.4 in particular covers Other non-404 CWA Programs.

11.2.167 4.B. Manufacturing and Food Processing Facilities

Similar to retail fertilizer operations, manufacturing and food processing facilities may 

have new regulatory requirements because of the expanded universe of what are "waters 

of the U.S." The potential range of costs on a per-facility basis is summarized in Table 2. 

Cost estimates are approximate and represent a range of costs based on best professional 

judgment. 

Agency Response: See Summary Responses to Topics 11, 11.2, 11.3, 11.3.1, 11.3.2 

and 11.4 on how the agencies have addressed concerns related to the economic 

analysis.

11.2.168 11.2.16 4.C. Farms and Ranches

For most farms and ranches, it will likely be difficult to identify a ditch that does not have 

the potential of entering a drain or canal that then flows to a TNW. Construction of a 

ditch can be exempt from needing a permit if NRCS's conservation practice 388 

Irrigation Field Ditch is followed (this is one of the 56 conservation practices). The 

practice includes the development of engineered plans and specifications along with a 

written operation and maintenance (O&M) plan. Engineered farm ditches with an O&M 

manual are not standard practice for most farmers. Thus, while exemptions are possible, 

following the requirements of the NRCS practices would result in greater costs to the 
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farmer. Furthermore, the use of these practices introduces uncertainty. For example, if a 

farmer followed Code 388 but did not have an O&M plan, is the CWA exemption void? 

In summary, with the proposed rule, Corps and USEPA argue they have clearer direction 

on classifying tributaries (which can be man-made features such as drains), adjacent 

waters, and "other waters" as well as defining ditches, and agricultural exemptions. 

However, the normal farming practice exemptions are tied to NRCS conservation 

practices (codes) that, in many cases, have engineering and O&M requirements that are 

not "typical" for farming operations. Furthermore, the list of NRCS practices presented in 

the interpretive rule is not all inclusive. With the proposed rule, farmers and ranchers will 

need to review day-to-day activities in detail to determine if activities are within waters 

of the U.S. or would have a discharge to a water of the U.S., and if such activities fall 

within the agricultural exemptions. The potential range of costs on a per-facility basis is 

summarized in Table 3. Cost estimates are approximate and represent a range of costs 

based on best professional judgment.

Table 3. Farming and Ranching Operations

(p. 13-14)

Agency Response: There is no change in the treatment of NRCS determinations. 

There is no requirement for NRCS program participation within this rule. NRCS 

management of their program is outside the scope of this rule. The See Summary 

Responses to Topics 11, 11.2, 11.3, 11.3.1, 11.3.2 and 11.4 on how the agencies have 

addressed concerns related to the economic analysis.

11.2.169 4.0. Mining

For mine sites, perhaps the most important aspect (impact) of the proposed rule is the 

definition of "other waters," which is related to geographically isolated waters and 

wetlands, and interpretation of significant nexus (see Box 1). Furthermore, the Agencies 

have made a clear distinction in the proposed rule that significant nexus can include a 
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hydraulic connection between "other waters" and waters of the U.S. through a

groundwater pathway. This interpretation could have significant impacts on mine site 

operations, including tailings pond, pit lakes, and stormwater ponds, in that these 

facilities could be deemed "other waters" through a significant nexus if it shown that the 

chemistry, biological, or hydrology of the man-made waters has an "affect" on 

downstream waters (Le., a pit lake that is connected through groundwater to surface 

water downstream; the pit lake in this case could be considered a water of the U.S. and 

subject to permitting under Section 404).

For mine sites, the following activities would be affected (anticipated increase activities) 

by the proposed rule:

 Jurisdictional determination - While the purpose of the proposed rule was to 

provide greater clarification, the rule's "other waters" and significant nexus 

definitions, broaden the interpretation of waters of the U.S. and in many ways, 

bring greater uncertainty especially for non-tributary and non-adjacent waters and 

wetlands. Additional efforts will be required when conducting delineations and 

the evaluation of waters of the U.S. In addition, challenges to Corps 

determinations may occur, especially as related to man-made features.

 Permitting - With changes in jurisdictional determinations, additional permitting 

may be required at mine sites relating to Section 311 oil spill prevention and 

response program; Section 401 state water quality certification process; Section 

402 NPDES permit program; Section 404 permit program for the discharge of 

dredged or fill material into navigable waters.

 Monitoring and compensatory mitigation - Increase permitting include 

monitoring, reporting, and mitigation requirements, including additional water 

treatment or, as often the case, avoiding the jurisdictional area (i.e. cancel or 

move a construction project to avoid CWA issues).

 Third-party involvement - With the broadened definitions; third parties could use 

the proposed rule to argue that certain waters (including man-made features) or 

wetlands are jurisdictional and that certain activities should be permitted under 

the CWA. Potential suits against the federal agencies for not following the rule 

would result in project delays or cancelations.

 Stormwater - Mining activities are covered under a MSGP for industrial activities. 

Furthermore, during some types of construction activities, the mine will need to 

obtain a General Permit for Discharges from Construction Activities (note some 

forms of construction are covered under the MSGP for mine sites). With the 

proposed rule, the SWPPP and NOI would have to be revisited to identify status 

of receiving waters, as the application requires that the receiving water be defined 

as either water quality limited or not (303 listed).
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 SPCC - Most mining facilities have an SPCC plan. The proposed rule is not 

expected to have a large impact on SPCC plan. However, the plan may be 

required to be updated to reflect the location of jurisdictional water and reporting 

protocol. 

 Mining Activities - With the proposed rule, the Corps will likely argue they have 

clearer direction on classifying tributaries (which can be man-made features such 

as drains), adjacent waters, and "other waters." As such, mine sites will likely be 

required to conduct a greater number of delineations and seek additional Section 

404 permits for mine activities, especially as it relates to "other waters" and 

significant nexus criteria. Important in this is the hydraulic connection between 

surface water and groundwater, as part of the significant nexus evaluation.

Potential range of costs on a per-activity basis is summarized in Table 4. Cost estimates 

are approximate and represent a range of costs based on best professional judgment.
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Table 4. General Mining Activities

Table 4. General Mining Activities

(p. 14-17)

Agency Response: See the Economic Analysis and see Summary Responses to 

Topics 11, 11.2, 11.3, 11.3.1, 11.3.2 and 11.4 on how the agencies have addressed 

concerns related to the economic analysis.

11.2.170 5. Summary

The proposed rule places no discernable limit on the federal government's authority over 

water. The increased regulatory requirements that would result from this rule would make 

it very difficult for the business sectors described in our comments to be sustainable: 

timelines to obtain approvals for any permits would hinder needed business development 

and the costs would make maintaining global competiveness very difficult. The costs of 
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implementing this rule have been greatly under estimated. For example, for just the three 

business sectors discussed in these comments (processing plants, mines, and 

ranches/farms), the cost of implementing the rule ranges from $120,000,000 to 

$334,000,000.1 These costs for just three business sectors potentially exceed the costs the 

Agencies estimated for the entire regulated community. Finally, the exclusions and 

exemptions in the proposed rule don't provide much regulatory certainty. Thus, based on 

these reasons the proposed rule should be withdrawn by the agencies. (p. 17)

Agency Response: Other commenters have likewise submitted information that 

has informed the development of the Final Rule, as well as the accompanying 

Economic Analysis. See Summary Responses to Topics 11, 11.2, 11.3, 11.3.1, 11.3.2 

and 11.4 on how the agencies have addressed concerns related to the economic 

analysis, and 14.1 on site-specific examples.

Colorado Agricultural Aviation Association (#15033)

11.2.171 11.2.19 Many questions remain about the scientific and economic 

implications of the proposed rule: The Science Advisory Board (SAB) is currently 

reviewing EPA’s Connectivity Report and the science on which the agencies based the 

proposed WOTUS expansion. The SAB has provided some preliminary observation, but 

has indicated it will not publish a final report until perhaps next year. Furthermore, the 

economic on which the agencies based the costs to small business - like aerial applicators 

- versus perceived benefits have been soundly criticized a based on outdated economic 

data, in many cases 20-year old data for which no cost-of-living adjustments were made. 

We believe the agencies should withdraw the proposed rule, complete the scientific 

evaluation and an appropriate evaluation of economic effect on small businesses and 

society, and then start over with state and all other affected stakeholders in an earnest 

manner to fashion a replacement rule. (p. 5-6)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis. See Topic 13 on overlap with the Connectivity Study.

Klamath Water Users Association (Doc. #15063)

11.2.172 III. The agencies have not provided an adequate or comprehensive economic 

analysis and must undertake a more complete economic analysis prior to finalizing a rule.

The agencies’ Economic Analysis for the proposed “waters of the United States” rule 

fails to provide a reasonable assessment of the proposed rule’s costs and benefits. The 

Economic Analysis suggests that the proposed rule will increase overall jurisdiction 

under the CWA only by about three percent. The agencies arrive at this percentage using 

a questionable methodology that only accounts for the Section 404 program, relies on 
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figures extrapolated from statistics from FY 2009-2010 (a period of extremely low 

construction activity during one of our nation’s greatest recessions), and fails to account 

for the universe of waters and features for which landowners have not previously sought 

CWA permits. Even the agencies note that “there is uncertainty and limitations associated 

with the results,” due to data and information gaps, as well as analytic challenges. The 

analysis does not quantify all possible costs and benefits, and values are meant to be 

illustrative, not definitive.116 Relying on this percentage throughout the Economic 

Analysis, the analysis hugely underestimates the impact of the proposed rule’s new 

definition of “waters of the United States.” 

The agencies’ calculations of incremental costs and benefits are also deficient. The cost 

analysis is focused on costs associated with the Section 404 program and largely ignores 

the cost impact of the changes to other CWA regulatory programs due to lack of data. 

Moreover, the benefit calculation is based on a problematic methodology that relies on 

studies that are largely irrelevant, do not provide accurate estimates of benefits, and were 

conducted 10-30 years ago.

As a result of the incompleteness and inaccuracies of the Economic Report, we believe it 

is necessary for the agencies to recalculate the economic analyses to more accurately 

project the impacts of the proposed rule and identify effects that the agencies failed to 

consider the first time. A rule of this magnitude deserves a much more accurate and 

defensible analyses and accounting of future costs and benefits. (p. 7-8)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

Riverport Levee District (Doc. #15655)

11.2.173 e. The costs of implementing the proposed rule are extensive and will be 

mostly born by local entities.

In estimating the proposed cost of implementing the rule, the Agencies have failed to 

perform a full accounting of its impacts. The methods and data sets used for estimating 

the increased costs of Section 404 permitting are not reflective of what may be 

reasonably anticipated to occur in the future. Perhaps more importantly, the cost 

estimates fail to consider the true impact across all of the programs derived from the 

authority of the CWA. In past years the question of CWA jurisdiction as determined by 

the definition of "waters of the U.S." has most often arisen with respect to Section 404 

 

116 Congressional Research Service (CRS), “EPA and the Army Corps’ Proposed Rule to Define ‘Waters of the 

United States’,” September 10, 2014 p. 11
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permitting actions. The proposed rule replaces the definition of "navigable waters" and 

"waters of the U.S." for all CWA programs, including: Sec. 404 - Dredge and Fill 

Permits, Sec. 402 - NPDES (stormwater) permitting, Sec. 311 - Spill Prevention Control 

and Countermeasure Plans (SPCC), and Sec. 303 - Water Quality Standards and Total 

Maximum Daily Loads (TMDL's.)

Of specific concern with respect to costs are those increases to stormwater permitting, 

including TMDLs. EPA has encouraged states to enhance water quality by implementing 

TMDLs through MS4 permits and other means, including for non-point source pollution. 

States presently have some authority to determine how to achieve this and can, and 

should, take into consideration the costs and benefits to their subdivisions of governments 

and businesses when deciding how to proceed. Under the proposed rule it is not clear that 

states will retain that authority, or if unfunded mandates for enhancing water quality will 

be imposed. By not clarifying in the proposed rule that CWA programs beyond Section 

404 would not be impacted by the new definition, the Agencies have left open that 

possibility. Then, not addressing potential cost impacts to those programs consistent with 

how the Agencies have described them evolving, especially implementation of TMDLs, 

leaves the Agencies negligent and at best inaccurate in their estimation of the financial 

impact of the proposed rule on local entities and businesses.

Due to the concerns expressed herein, and for the reasons explained, we urge the 

proposed rule be withdrawn and only proposed again upon correction of its many 

deficiencies. On behalf of the Riverport Levee District, thank you for considering these 

comments. Please contact David Human at (314) 480-1710 if you have questions or wish 

to discuss our concerns. (p. 5)

Agency Response: The agencies’ review of costs has considered all impacted 

CWA programs. The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

Ohio Farm Bureau Federation (Doc. #16609)

11.2.174 The Federal government's proposed approach, and the content of the proposed 

rule, will seriously impair ongoing advancements in water quality in the State of Ohio. 

Many Ohio farmers would be forced to gain Federal permits not only to conduct the 

everyday actions of planting and harvesting a crop but to install water quality 

infrastructure projects. These unrealistic, costly and time-consuming requirements would 

discourage agricultural producers from undertaking the very projects that would improve 

water quality throughout the State. This concerns us because at this critical time in Ohio 

there are numerous important actions ongoing by farmers in partnership with universities, 
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industry, conservation groups, state and local government to address our current water 

quality challenges. (p. 2)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

Earth City Levee District (Doc. #18910)

11.2.175 5. The costs of implementing the proposed rule are extensive and will be 

mostly born by local entities.

In estimating the proposed cost of implementing the rule the Agencies have failed to 

perform a full accounting of its impacts. The methods and data sets used for estimating 

the increased costs of Section 404 permitting are not reflective of what may be 

reasonably anticipated to occur in the future. Perhaps more importantly, the cost 

estimates fail to consider the true impact across all of the programs derived from the 

authority of the CW A. In past years the question of CWA jurisdiction as determined by 

the definition of "waters of the U.S." has most often arisen with respect to Section 404 

permitting actions. The proposed rule replaces the definition of "navigable waters" and 

"waters of the U.S." for all CWA programs, including: Sec. 404 - Dredge and Fill 

Permits, Sec. 402 - NPDES (stormwater) permitting, Sec. 311 - Spill Prevention Control 

and Countermeasure Plans (SPCC), and Sec. 303 –Water Quality Standards and Total 

Maximum Daily Loads (TMDL' s.) Of specific concern with respect to costs are those 

increases to stormwater permitting, including TMDLs. EPA has encouraged states to 

enhance water quality by implementing TMDLs through MS4 permits and other means, 

including for non-point source pollution. States presently have some authority to 

determine how to achieve this and can, and should, take into consideration the costs and 

benefits to their subdivisions of governments and businesses when deciding how to 

proceed. Under the proposed rule it is not clear that states will retain that authority, or if 

unfunded mandates for enhancing water quality will be imposed. By not clarifying in the 

proposed rule that CW A programs beyond Section 404 would not be impacted by the 

new definition, the Agencies have left open that possibility. Then not addressing potential 

cost impacts to those programs consistent with how the Agencies have described them 

evolving, especially implementation of TMDLs, leaves the Agencies negligent and at 

best inaccurate in their estimation of the financial impact of the proposed rule on local 

entities and businesses. (p. 5)

Agency Response: The agencies’ review of costs has covered all impacted CWA 

programs. The rule is narrower in scope than existing regulations and historical 

practice. The accompanying economic analysis addresses changes in the assertion of 

jurisdiction that may occur relative to recent practice and the resulting impacts on 
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CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 11.3.1, 11.3.2 and 

11.4 on how the agencies have addressed concerns related to the economic analysis.

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

11.2.176 Of importance is the agencies' cost-benefits analysis-Economic Analysis of 

Proposed Revised Definition of Waters of the U.S. (March 2013), acknowledges the data 

used and assumptions made to craft the analysis may be flawed. Proposed rule raises 

federalism concerns and could impose direct and indirect costs. Under Executive Order 

13132Federalism, federal agencies are required to work with state and local governments 

on proposed regulations that have substantial direct compliance costs.

The agencies' cost-benefits analysis contradicts the notion that there are no federalism 

concerns. The economic analysis acknowledges there may be additional Implementation 

costs for a number of CWA programs and cautions that the data used and the assumptions 

made to craft the analysis may be flawed. Since states, local governments such as 

drainage districts implement CWA programs; we believe the "waters of the U.S." 

definitional change will have a substantial direct effect on our district. (p. 2-3)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

Ingram Barge Company (Doc. #14796)

11.2.177 The Agencies' cost-benefit analysis of the Proposed Rule117 severely 

underestimates its associated costs. The Agencies' reliance on requests for jurisdictional 

determinations in fiscal years 2009-2010 as a baseline for the Proposed Rule's economic 

impacts skews the effects downward. It is widely known that economic activity was 

severely constrained and construction activity was at a low point during that time due to 

the recession. The Agencies' chosen baseline does not reasonably represent a normal 

level of permitting activity for purposes of evaluating the Proposed Rule's economic 

impact, and is therefore flawed. (p. 4)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

 

117 Economic Analysis of Proposed Revised Definition of Waters of the United States (Mar. 2014).
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11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

Elmore County Highway Department, Wetumpka, Alabama (Doc. #14072)

11.2.178 Agency's cost-benefit analysis assumptions and methodologies are flawed

As previously mentioned, while the agencies have performed cost-benefit analysis of the 

definitional changes on CWA programs, they have acknowledged that the data used and 

the assumptions made to craft the analysis may be flawed. Additionally, the 

methodologies used to determine economic costs and benefits to the proposed rule are 

misleading. In its economic cost analysis for the proposed rule, the agencies have 

indicated that 2.7 percent of new waters will be considered jurisdictional under the 

Section 404 program. However, the data used to compute costs for Section 404 comes 

from submitted Section 404 permit applications for FY2009-20 IO. The economic 

analysis does not acknowledge or recognize that, under the proposal, additional waters, 

currently not jurisdictional (and thus, no permits have been submitted), will become 

jurisdictional. This reasoning is flawed and does not give a true accounting of potential 

costs or benefits. (p. 6)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis. 

SD1 (Doc. #15140)

11.2.179 Analysis of Economic Impacts Appears to Be Flawed

The increased workload we envision the proposed rule would create for all elements of 

the CWA program would be accompanied with concurrent increases in costs and rate 

increases to our ratepayers. A review of EPA’s Economic Analysis (Sunding 2014) 

identified significant concerns about EPA’s conclusion that “the benefits justify the costs 

of this proposed action” (EPA estimated that the benefits of the rulemaking could range 

from $300.7 to $397.6 million whereas the costs were estimated to range from $133.7 to 

$231.0 million in 2010 dollars). The author was unable to recreate EPA’s analysis due to 

a lack of transparency and supporting documents. The review concluded that the 

USACE’s determination that an expanded definition of WOTUS would result in only a 

2.7% increase in jurisdictional waters determination, is based on a faulty methodology. 

The author provided the following reasons for this conclusion: only a small (262) subset 

of projects were evaluated; the selected projects underrepresent the universe of 

jurisdictional areas; there was limited evaluation of impacted areas and mitigation sites; 

and the selection of FY2009/2010 as a baseline year underestimates costs as there was a 

significant contraction of the housing market due to the national financial crisis. (p. 4)
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Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis. 

Arizona Public Service Company (Doc. #15162)

11.2.180 B. Insufficient Consideration of Costs Results in Unusable Economic Impact 

Analysis

To consider the economic impacts of this proposed rule, the Agencies evaluated data 

records from FY2009-2010 in the USACE’s Operation and Maintenance Business 

Information Link, Regulatory Module (ORM2),118 a USACE database developed with 

EPA and the U.S. Forest Service to provide information on mitigation conservation 

banking and in-lieu fee programs and used to manage jurisdictional status decisions 

associated with various aquatic resource types.119 The database tracks performance 

metrics associated with “total individual projects” (404 permits), total general permits 

(NWPs), and related mitigation activities to manage JDs.120 As described in a report 

prepared for WAC, the ORM2 data used includes only those situations where a regulated 

entity seeks a 404 permit, approved JD, or wetland delineation.121 As noted in the 

proposed rule, the scope of the revised WOTUS definition is much wider than these three 

instances.

122

 In fact, the new terms proposed by the Agencies, as well as those terms 

recommended by SAB, are not included in the information tracked by the ORM2 

database. For example, the proposed rule offers a first-time definition of “significant 

nexus”; therefore, it is impossible for the ORM2 database to reflect permits or related 

costs associated with the “significant nexus” concept as currently defined and discussed 

throughout the proposed rule.

The Agencies’ economic analysis concludes is it reasonable to expect that more facilities 

will have to prepare and implement SPCC plans based on the broader assertion of CWA 

jurisdiction. Since the ORM2 database is based on 404 permits, the effort related to the 

development and implementation of SPCC plans is not included in the Agencies’ analysis 

of cost. A fair estimate of economic impact of the proposed rule is clearly unknown. APS 

respectfully requests that the Agencies prepare a complete and fair economic impact 

 

118 http://geo.usace.army.mil/ribits/index.html.

119 Id.

120 Id.

121 David Sunding, PhD., Review of 2014 EPA Economic Analysis of Proposed Revised Definition of Waters of the

United States (May 15, 2014).

122 79 Fed. Reg. at 22262.
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analysis of any proposed revisions to the WOTUS definition, which can be evaluated and 

documented for the public’s review and comment. (p. 6-7)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

Department of Public Works, City of Harrisonville, Missouri (Doc. #4038.2)

11.2.181 We do not believe that either agency seriously intends that this new 'clarification' 

of EPA and USACOE view of 'Waters of the United States' intended to regulate routine 

activities as outlined above since the projected cost increases associated with this rule 

change to local entities was effectively non-existent. That analysis makes no operational 

sense either for cities or to the USACOE if we have to apply to the Corps for a vegetation 

removal permit every time we need to mow a dry section of right of way just because it 

carries rainwater after a storm and eventually drains into jurisdictional waters. We do not 

believe either the Corps or the EPA have appropriately factored the cost for anyone. (p. 

2)

Agency Response: The agencies have worked to review all comments and have 

made changes, including clarifications, to the regulatory language regarding CWA 

jurisdiction. The rule is narrower in scope than existing regulations and historical 

practice. The accompanying economic analysis addresses changes in the assertion of 

jurisdiction that may occur relative to recent practice and the resulting impacts on 

CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 11.3.1, 11.3.2 

and 11.4 on how the agencies have addressed concerns related to the economic 

analysis. See also Ditches Compendium.

Utility Water Act Group (Doc. #15016)

11.2.182 F. The Expansion of Jurisdiction That Would Result from the Proposed Rule 

Is Plain and Demonstrable.

Given the sweeping language of the Proposed Rule, coupled with the Agencies’ own 

confusion over how it would affect jurisdiction, see, e.g., supra pp. 9-11, a number of 

utilities have conducted their own evaluations of the effect that the broad definition of 

WOTUS under the Proposed Rule could have on future projects.

One utility conducted a siting evaluation for a new gas-fired electric generation facility 

that identified 31 wetlands or streams (ephemeral, intermittent, or perennial) within the 

potential project area. Under the current WOTUS regulations, the Corps determined that 

only two of the 31 features were jurisdictional. Fourteen of the 15 wetlands were 

classified as isolated, with no hydrologic connection or significant nexus to a relatively 
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permanent water or TNW. Fifteen of the 16 drainage ditches/drainage canals (i.e., 

ephemeral streams) were identified as nonjurisdictional because they are man-made 

drainages. If the Proposed Rule applied to this project area, all of the 31 areas would 

appear to meet the definition of jurisdictional waters based on the broad definition of 

tributary and adjacency. This is because, under the Proposed Rule, the Agencies’ 

jurisdiction based on the proposed definition of “tributary,” by rule, encompasses all 

ephemeral streams that are tributaries of TNWs regardless of whether a “significant 

nexus” is present. Additionally, under the Proposed Rule, the new definition for 

“neighboring” (applied to determine if a water is an “adjacent” water) includes all waters 

that have a shallow subsurface hydrologic connection or confined surface hydrologic 

connection to a jurisdictional water, which would include ephemeral streams. All of the 

isolated wetlands at the project site therefore would be adjacent waters.

What is an attractive project area for this new facility under the current WOTUS rule thus 

would probably no longer be a viable option for the facility under the proposed WOTUS 

definition due to the number of jurisdictional impacts, site layout constraints, costs of 

permitting, difficulty of obtaining a permit based on the Least Environmentally 

Damaging Practicable Alternative analysis, and mitigation costs. Under the current 

definition of WOTUS, the permit and mitigation cost is $0 because, after conducting a 

JD, the project proponent determined that there would be no jurisdictional impacts.123 

However, under the Proposed Rule, the cost just to obtain a Corps permit is estimated to 

be approximately $200,000 based on the utility company’s experience with this particular 

Corps district. The mitigation costs under the Proposed Rule would be an estimated 

$678,000 based on the acres of wetlands and linear feet of streams involved.

Another siting analysis, for a renewable energy facility, revealed similar significant 

impacts of the Proposed Rule on the areas that would be jurisdictional on a site because 

of the sweeping “neighboring” definition. At that site, which contains fourteen wetlands, 

the Corps had determined under existing regulations that seven of the 14 wetlands were 

jurisdictional. The Corps asserted jurisdiction over those seven “adjacent” wetlands 

because they were considered hydrologically connected to a relatively permanent water 

downstream of the site. The remaining wetlands were not considered to be jurisdictional 

because they were classified as isolated; according to the Corps, they had no hydrologic 

connection or significant nexus to a relatively permanent water or a TNW.

If the Proposed Rule were applied to the project site, all of the wetland areas would likely 

be deemed jurisdictional. The seven “isolated” wetlands could meet the definition of 

adjacent waters” because they could meet the definition of “neighboring.” This is because 

they could be seen to have a shallow subsurface hydrologic connection or a confined 

surface hydrologic connection to a jurisdictional water (i.e., the nearby swamps that flow 

 

123 The cost for preparation and submission of the JD (finding no jurisdiction) cost the proponent approximately 

$8,000.
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directly into a reasonably permanent water downstream of the site). If all 14 wetland 

areas were jurisdictional, the site would not be a viable option for siting a facility due to 

the costs and uncertainties associated with preparation of the individual permit 

application, challenging site layout constraints, and mitigation costs.

Applying the current definition of WOTUS, the permit cost would be between $30,000 

and $45,000, and the mitigation costs would be $36,000. Applying the Proposed Rule’s 

definition, the estimated permitting costs would be five times greater: between $150,000 

and $200,000 (for Corps and associated state permitting), and the mitigation costs would 

be $298,000. (p. 55-57)

Agency Response: The agencies have worked to review all comments and have 

made changes, including clarifications, to the regulatory language regarding CWA 

jurisdiction. The rule is narrower in scope than existing regulations and historical 

practice. The accompanying economic analysis addresses changes in the assertion of 

jurisdiction that may occur relative to recent practice and the resulting impacts on 

CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 11.3.1, 11.3.2 and 

11.4 on how the agencies have addressed concerns related to the economic analysis.

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

11.2.183 The Proposed Rule would expand the EPA's and the CORPS' regulatory 

jurisdiction under the CWA and impose significant additional regulatory costs

Adoption of the Proposed Rule would significantly expand the universe of the land and 

water features that constitute a WOTUS that is subject to regulation under the CWA. 

Even the EPA and the Corps in their analysis of costs and benefits of the Proposed Rule 

state that:

The agencies project that this proposed action to change the definition of 

[WOTUS] would increase assertion of CWA jurisdiction when compared to a 

baseline of current practices under the existing regulation, . , . As a result of this 

proposed action, costs to regulated entities will likely increase for permit 

application expenses, compensatory mitigation (if applicable), and installation of 

best management practices.

124

 (Emphasis added)

Enlarging the universe of land and water features that are characterized as WOTUS 

would increase the numbers of land and water features that are subject to the timeconsuming and costly regulatory requirements that apply to land and water features 

requirements and the time it takes to make an approved jurisdictional determination,125 

that are WOTUS. Although the EPA and the Corps state that the Proposed Rule is 

 

124 See 79 Fed. Reg. 22220; Economic Analysis of Proposed Revised Definition of Waters of the United States,

U.S. Environmental Protection Agency, primary author, U.S. Army Corps of Engineers, contributing author, at 32 

(March 20 14).

125 79 Fed. Reg. 221 94.
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expected to "reduce documentation the EPA's and the Corps' analysis of potential costs 

and benefits relating to the Section 404 and 401 of the CWA states that:

This [P]roposed [R]ule could result in new indirect costs on regulated entities 

such as the energy, agricultural, and transportation industries; land developers, 

municipalities, industrial operations . . . . These indirect costs may include 

application costs, associated environmental compliance costs, wetlands 

mitigation, stream mitigation, and project redesign and relocation expenses, , , . 

[T]he Corps may process more permit requests, conduct jurisdictional 

determinations (JDs) if needed, manage data, coordinate with federal and state 

resource agencies, and determine compensatory mitigation needs.126

Based on the EPA's and the Corps' own analysis, the Proposed Rule will result in more 

permits being required and will increase indirect costs by $231 million annually.127 

AECT asserts that many of the costs described by the EPA and the Corps as "indirect" 

costs are in reality direct costs for regulated entities such as AECT members. The costs 

that the EPA and the Corps describe as being associated with environmental compliance, 

wetlands mitigation, stream mitigation, and project redesign and relocation are anything 

but inconsequential. The U.S. Supreme Court in Rapanos recognized in 2006 that " [t]he 

average applicant for an individual permit [from the Corps] spends 788 days and 

$271,596 in completing the process, and the average applicant for a nationwide permit 

spends 313 days and $28,915 – not counting costs of mitigation or design changes.128 In 

addition, since the EPA and the Corps have grossly underestimated and understated the 

extent to which the Proposed Rule would expand CWA regulation to land and water 

features that have not been previously subject to CWA jurisdiction, as explained below, 

EPA's and the Corps' estimated costs are also grossly underestimated and understated.

There is a clear conflict between the EPA's and the Corps' aforementioned conclusions 

based on their analysis of costs and benefits that the Proposed Rule will expand the 

regulatory reach of the CWA, and their conclusions in the preamble that "the scope of the 

regulatory jurisdiction of the CWA in this [P]roposed [R]ule is narrower than that under 

existing regulations.129 Unless the EPA and the Corps reconcile those conflicting 

positions, AECT requests that the EPA and the Corps withdraw the Proposed Rule. (p. 2-

3)

Agency Response: The agencies have worked to review all comments and have 

made changes, including clarifications, to the regulatory language regarding CWA 

jurisdiction. The rule is narrower in scope than existing regulations and historical 

practice. The accompanying economic analysis addresses changes in the assertion of 

 

126 Economic Analysis of Proposed Revised Definition of Waters of the United States, at 5.

127 ld at 33 (Exhibit 16. Estimated Annual Indirect Costs and Benefits (2010 dollars in millions).

128 Rapanos 547 U.S. 715, at 721.

129 79 Fed. Reg. 22 t89 , 22192.
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jurisdiction that may occur relative to recent practice and the resulting impacts on 

CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 11.3.1, 11.3.2 and 

11.4 on how the agencies have addressed concerns related to the economic analysis.

Florida H2O Coalition (Doc. #19325)

11.2.184 The expanded reach of the new rule would also suggest that the cost of 

compliance may be much higher than the Agencies originally predicted. Indeed, a recent 

fiscal impact study completed in Florida indicates this to be the case. This study, prepared 

by Applied Technology and Management, Inc. (ATMI), uses government-based data to 

estimate the cost that local governments can expect to bear in the event the proposed rule 

is adopted. Focusing on four of Florida's sixty-seven counties, ATMI first determined the 

amount of additional water bodies that would be subject to CWA requirements under the 

proposed rule, and then calculated the cost to meet water quality criteria in these 

expanded areas. The compliance costs for these four counties are shown in the following 

table:

The compliance costs for these four counties

These costs are based on the historic median for reducing two widespread nutrients, 

nitrogen and phosphorus. Please note that these costs reflect only the costs imposed for 

local governments, and do not reflect compliance costs for private landowners. A 

complete copy of the ATMI study has been enclosed for your review. By comparison, the 

Agencies' economic analysis' calculated a potential range for the national cost of 

compliance to be $133,700,000 to $231,000,000. Clearly, when compliance costs for six 

percent of Florida's counties exceed the entire national estimate by $4,000,000,000, it is 

time for the Agencies to take a renewed and very hard look at its own economic analysis.

The overwhelming costs of compliance raise additional concerns. Contrary to enhancing 

the Florida's overall environmental quality, the expansion of CWA jurisdiction to 

marginal waters such as stormwater ditches and ponds will prevent financially 

constrained local governments from addressing other important environmental initiatives. 

Pinellas County, for example, is a member of a consortium with the sole mission of 

restoration and protection of Tampa Bay. As the report notes, should the proposed rule be 

adopted, "Pinellas County would have to divert funds from these critical waterbodies" to 

meet the numeric nutrient criteria in the newly-identified jurisdictional waters. Similar 

challenges would face a number of local governments that are dealing with the cost of 

sea-level rise and the restoration of critical natural waters, such as the Indian River 

Lagoon, the St. Lucie Estuary, or the renowned springs of North Florida. Instead of 
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funding these important efforts, limited resources would be forcibly directed toward 

municipal storm system upgrades. The Agencies should share our belief that 

environmental restoration, and not stormwater system expansion, is a more prudent use of 

taxpayer dollars. (p. 2)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

Exxon Mobil Corporation (Doc. #15044)

11.2.185 In this connection, and as outlined in detail in the comments referenced above, the 

Agencies have grossly underestimated the costs to the U.S. economy to implement this 

Rule, in terms of increased regulatory burden and damage to economic activity. The 

impact of delays, ranging from six months to two years in the case of individual permits 

for some types of routine construction activity, was not included in the Agencies' 

analysis. Had such an analysis been included, the Proposed Rule would clearly fail the 

cost benefit test. Permit issues can translate into delayed or reduced production of energy 

resources, impacting energy security, jobs, and revenues to landowners and local, state 

and federal governments. (p. 2)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis. 

ARIPPA (Doc. #16545)

11.2.186 6. EPA did not adequately identify and evaluate the economic impacts and 

subsequent uncertainties of the proposed rule

The following identifies areas that were not adequately evaluated as to their economic 

impacts and subsequent uncertainties:

 Economic impact to due increased area of waters of the US

 Economic impact from potential operational costs 

 Cost implications related to potentially new land holdings 

 Cost implications related to estimates of compensatory mitigation for lands 

impacted by jurisdictional boundary changes 
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 Cost implications related to the potential loss of current and future business 

activity in a newly created jurisdiction 

 Costs due to additional environmental and regulatory screening, wetland and 

waters delineation studies and permit acquisition 

 Costs due to permitting delays (from additional agency review) 

 Costs due to additional wastewater treatment needs 

 Costs due to changes in land management approaches (i.e.. pesticide application, 

water resource protection, infrastructure maintenance, fish and wildlife protection, 

historical (structure designations, safety structures, public access, etc.) 

 Costs due to additional insurance requirements (p. 6)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

Northern California Water Association (Doc. #17444)

11.2.187 I. The agencies have not provided an adequate or comprehensive economic 

analysis, and must undertake a more complete economic analysis prior to 

promulgating the rule.

The EPA's Economic Analysis for the proposed "waters of the United States" rule fails to 

provide a reasonable assessment of the proposed rule's costs and benefits. The Economic 

Analysis suggests that the proposed rule will increase overall jurisdiction under the CWA 

by only about 3 percent. But the EPA arrives at this percentage using a questionable 

methodology that only accounts for the Section 404 program, relies on figures 

extrapolated from statistics from FY 2009-2010 (a period of extremely low construction 

activity during one of our nation's greatest recessions), and fails to account for the 

universe of waters and features for which landowners have not previously sought CWA 

permits. Even the agencies note that "there is uncertainty and limitations associated with 

the results," due to data and information gaps, as well as analytic challenges. The analysis 

does not quantify all possible costs and benefits, and values are meant to be illustrative, 

not definitive.' Relying on this percentage throughout the Economic Analysis, the EPA 

systematically and hugely underestimates the impact of the proposed rule's new definition 

of "waters of the United States." 

The EPA's calculations of incremental costs and benefits are also deficient. The EPA's 

cost analysis is focused on costs associated with the section 404 program and largely 

ignores the cost impact of the changes to other CWA regulatory programs due to lack of 

data. Moreover, the benefit calculation is based on a problematic methodology that relies 
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on studies that are largely irrelevant, do not provide accurate estimates of benefits, and 

were conducted 10-30 years ago.

As a result of the incompleteness and inaccuracies of the EPA's Economic Report, we 

believe it is necessary for to recalculate the economic analyses to more accurately project 

the impacts of the proposed rule, and identify effects that the EPA failed to consider the 

first time. A rule of this magnitude deserves a much more accurate and defensible 

analyses and accounting of future costs and benefits. (p. 3-4)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis. 

Pacific Legal Foundation (Doc. #14081)

11.2.188 Because of the extreme land use restrictions that apply to property that contains 

“waters of the United States,” and the enormous, even punitive, costs for a permit under 

the Clean Water Act–averaging more than $270,000 for an individual permit130 and 

$28,000 for a nationwide permit –this new rule will grossly expand federal authority over 

everyday activities at a monumental cost to the national economy. According to the U.S. 

Supreme Court, sudden and expansive interpretations of long-standing laws are 

unreasonable and should be met with skepticism. (p. 2)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis. See also Technical Support Document, Section I.

Environmental Council of the States (Doc. #15543)

11.2.189 ECOS also requests that EPA and the Corps seek to secure federal funding for the 

states to cover the customary portion of costs associated with any new rule, and consider 

the availability of funding support in planning for new obligations. States have expressed 

concern that the economic analysis of the proposed rule is not accurate for all states. To 

the extent that states may have new regulatory obligations under any final rule, ECOS 

requests the inclusion of estimates of both state administrative costs and state direct 

 

130 See Rapanos, 547 U.S. at 721.
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implementation costs in recognition of the significant and wide-range of activities 

necessary to implement any new requirements (ECOS Resolution 14-3). (p. 2)

Agency Response: The agencies recognize the funding comment made by ECOS 

on behalf of its States. The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

Southeastern Legal Foundation (Doc. #16592)

11.2.190 E. The Errors in the Economic Analysis are So Severe that Its Results are 

Meaningless and Do Not Fulfill Executive Orders 12866 and 13563.

The Agencies recognize the Proposed Rule represents a "significant regulatory action," 

therefore Executive Orders 12866 and 13563 must be considered. The Agencies prepared 

an "Economic Analysis of Proposed Revised Definition of Waters of the United States" 

(the "Economic Analysis").131 The Economic Analysis concludes that the Proposed Rule 

will lead to an additional 3% of waters being subject to jurisdiction each year and an 

economic benefit of $100 million annually. Dr. David Sunding of the Brattle Group, a 

non-partisan economic group, reviewed the Economic Analysis.132 Dr. Sunding's 

conclusion is that the errors in the Economic Analysis are so severe as to render it useless 

for determining the true costs of the Proposed Rule. "[T]he EPA analysis is entirely 

insufficient at predicting the costs associated with a 'waters of the United States' 

definition change."133 Dr. Sunding states several problems with the Economic Analysis 

and SLF incorporates the well-reasoned Economic Review by reference into these 

comments. Despite that incorporation, SLF is highlighting some of the more egregious 

errors and assumptions made in the Economic Analysis:

 The Economic Analysis has an inherent sample selection bias because it was 

based on requests for jurisdictional determinations (JDs) for fiscal year 2009-

2010, the most economically depressed time in our country in nearly a century. 

Construction activity was close to an all-time low which artificially lowers the 

number of acres generally at issue. This is not a baseline time period to use to 

represent potentially affected acreage. 

 The Economic Analysis quantifies the 3% increase in jurisdictional area by 

reviewing only those situations in which a permittee applied for either a section 

 

131 March 2014, U.S. EPA (primary author) and U.S. Army Corps of Engineers (contributing author).

132 See Review of 2014 EPA Economic Analysis of Proposed Revised Definition of Waters of the United States,

David Sunding, The Brattle Group, May 15,2014 (the Economic Review).

133 The Economic Review at 20.
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404 jurisdictional determination or engaged in the section 404 permitting process. 

It fails to account for the many acres of land that never required a permit or JD 

but, if the Proposed Rule is promulgated, would require a permit. 

 The Economic Analysis looks only at jurisdictional increases in the "other waters" 

category of the WOTUS definition in the Proposed Rule. It does not account for 

the increase in jurisdictional areas that will result from the newly defined 

"tributary" and "adjacent waters" categories. 

 The Economic Analysis focuses on costs associated with section 404 of the CWA. 

The Proposed Rule, however, will also amend sections 301,303,311,401 and 

402,134 but the Economic Analysis either ignores the associated costs under these 

sections or relies on a methodology deeply flawed. 

 The Economic Analysis necessarily and implicitly assumes that all wetlands 

affected by the Proposed Rule would be compromised but for the Proposed Rule. 

And, it assumes that all wetlands will be preserved or mitigated if the Proposed 

Rule is promulgated. This false assumption does not account for state programs 

that already protect non-federally jurisdictional wetlands.

As demonstrated by this list of errors, a more thorough and transparent economic analysis 

is required to properly assess the economic impacts of the Proposed Rule. Because of 

this, the Proposed Rule must be withdrawn. (p. 26-28)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis. 

Coalition of Alabama Waterways (Doc. #15101)

11.2.191 The Agencies’ Economic Analysis Underestimates Costs

The agencies’ cost-benefit analysis of the Proposed Rule43 significantly underestimates 

its associated costs. The agencies rely on data concerning requests for jurisdictional 

determinations in fiscal years 2009–2010 to determine the Proposed Rule’s economic 

impacts. However, economic activity was constrained and construction activity was at a 

low point during that time due to the recession. For example, per U.S. Census Bureau 

data on seasonally adjusted monthly total construction, the average monthly spending on 

 

134 Examples of impacts outside of the Section 404 world include: an increase in the number of facilities subject to

the Spill Prevention, Control and Countermeasure Rule and the Facility Response Plan Rules under Section 31 1; an

increase in the number of facilities subject to storm water permitting and implementing best management practices 

under Section 402; and, an increase in the number of State certifications of water required under Section 401.
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construction for that two-year baseline period was lower than the monthly average of any 

previous year since 2002.135 Additionally, current (September 2014 (preliminary)) 

construction spending and the monthly average for 2014 are much higher than the 2009–

2010 average.

The choice to focus on 404 permitting activity during a recession may introduce another 

bias. Economic constraints during the recession likely led developers to avoid higher cost 

projects compared to others, and jurisdictional determinations result in delay and direct 

costs, in addition to costs associated with mitigation and avoidance. That suggests a

likelihood that jurisdictional determinations at that time may have fallen at an even 

greater rate than the overall slowdown in construction activity.

The agencies’ chosen baseline to measure economic effects does not reasonably represent 

a normal level of permitting activity for purposes of evaluating the Proposed Rule’s 

economic impact. The economic analysis is therefore fundamentally flawed. (p. 12-13)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See the economic analysis and the Summary 

Responses to Topics 11, 11.2, 11.3, 11.3.1, 11.3.2 and 11.4 on how the agencies have 

addressed concerns related to the economic analysis. 

Missouri and Associated Rivers Coalition (Doc. #15519)

11.2.192 5. The costs of implementing the proposed rule are extensive and will be 

mostly born by local entities.

In estimating the proposed cost of implementing the rule the Agencies have failed to 

perform a full accounting of its impacts. The methods and data sets used for estimating 

the increased costs of Section 404 permitting are not reflective of what may be 

reasonably anticipated to occur in the future. Perhaps more importantly, the cost 

estimates fail to consider the true impact across all of the programs derived from the 

authority of the CWA. In past years the question of CWA jurisdiction as determined by 

the definition of “waters of the U.S.” has most often arisen with respect to Section 404 

permitting actions. The proposed rule replaces the definition of “navigable waters” and 

“waters of the U.S.” for all CWA programs, including: Sec. 404 - Dredge and Fill 

Permits, Sec. 402 - NPDES (stormwater) permitting, Sec. 311 - Spill Prevention Control 

and Countermeasure Plans (SPCC), and Sec. 303 - Water Quality Standards and Total 

Maximum Daily Loads (TMDL’s.) Of specific concern with respect to costs are those 

 

135 U.S. Census Bureau, Construction Spending, Historical Data, Historical Value Put in Place: Monthly, Seasonally 

Adjusted (available at http://www.census.gov/construction/c30/historical_data.html, file (totsatime.xls) downloaded 

Nov. 6, 2014). All statements regarding construction spending amounts in this portion of the comments are derived 

from this same source.
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184

increases to stormwater permitting, including TMDLs. EPA has encouraged states to 

enhance water quality by implementing TMDLs through MS4 permits and other means, 

including for non-point source pollution. States presently have some authority to 

determine how to achieve this and can, and should, take into consideration the costs and 

benefits to their subdivisions of governments and businesses when deciding how to 

proceed. Under the proposed rule it is not clear that states will retain that authority or if 

unfunded mandates for enhancing water quality will be imposed. By not clarifying in the 

proposed rule that CWA programs beyond Section 404 would not be impacted by the 

new definition, the Agencies have left open that possibility. Then not addressing potential 

cost impacts to those programs consistent with how the Agencies have described them 

evolving, especially implementation of TMDLs, leaves the Agencies negligent and at 

best inaccurate in their estimation of the financial impact of the proposed rule on local 

entities and businesses. (p. 5-6)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis. 

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

11.2.193 The agencies also have greatly underestimated the costs that will be associated 

with their Proposed Rule. (p. 1)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis. 

11.2.194 The Agencies' Economic Analysis Underestimates Costs

The agencies' cost-benefit analysis of the Proposed Rule136 severely underestimates its 

associated costs. The agencies' reliance on requests for jurisdictional determinations in 

fiscal years 2009-2010 as a base line for the Proposed Rule's economic impacts skews the 

effects downward. It is widely known that economic activity was severely constrained 

and construction activity was at a low point during that time due to the recession. For 

example, per U.S. Census Bureau data on seasonally adjusted monthly total construction, 

the average monthly spending on construction for that two-year base line period was 

 

136 Economic Analysis of Proposed Revised Definition of Waters of the United States (Mar. 2014).
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185

lower than any month since 2002.137 Additionally, current (September 2012 

(preliminary)) construction spending and the monthly average for 2014 thus far are much 

higher than the 2009-2010 average.138

The choice to focus on 404 permitting activity during a recession may introduce another 

bias. Economic constraints during the recession likely led developers to avoid higher-cost 

projects compared to others, and jurisdictional determinations result in delay and direct 

costs, in addition to costs associated with mitigation and avoidance. That suggests a 

likelihood that jurisdictional determinations at that time may have fallen at an even 

greater rate than the overall slowdown in construction activity. 

The agencies' chosen baseline to measure economic effects does not reasonably represent 

a norm al level of permitting activity for purposes of evaluation the Proposed Rule' s 

economic impact. The economic analysis is therefore fundamentally flawed. (p. 10-11)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis. 

University of Florida (Doc. #16446)

11.2.195 The purpose of this study was to estimate the potential economic losses for the 

agriculture sector in Florida due to the proposed changes to the WOTUS jurisdictional 

rule change.

Estimation of the economic impacts on Florida agriculture from the proposed expansion 

of WOTUS jurisdiction involved four steps:

1. Estimation of the incremental proportion of agricultural lands in representative 

areas of the State that would become WOTUS under the new definition. This was 

carried out using GIS data and software by consulting engineers Breedlove, 

Dennis and Associates.

2. Extrapolation of the incremental change in WOTUS classification to all coastal 

low-land counties in the state, for agricultural land uses, based on information 

from the 2012 Census of Agriculture (USDA-NASS).

3. Estimation of the average annual revenue per acre for the agricultural land uses 

affected, and total industry revenue change.

 

137 U.S. Census Bureau, Construction Spending: Annual Rate for Total Construction: U.. Total Seasonally Adjusted 

Total Construct ion [Millions of Dollars], Period: 2006 to 20 14, Data Extracted on: May 14, 20 14.

138 U.S. Census Bureau , Construct ion Spending: Annual Rate for Total Construction: U.. Total Seasonally Adjusted 

Total Construction [Millions of Dollars], Period : Jan-2002 to Dec-20 14, Data Extracted on: May 14, 20 14.
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4. Estimation of regional economic impacts using an Input-Output model for the 

state of Florida developed using the IMPLAN economic impact analysis and 

social accounting software and region data (IMPLAN Group, LLC).

The potential change in area classified as jurisdictional WOTUS was evaluated for 

representative areas of agricultural lands in south Florida by consulting engineers 

Breedlove, Dennis and Associates, under contract to Florida Department of Agriculture 

and Consumer Services, Office of Agricultural Water Policy (FDACS-OAWP). The 

study area consisted of four sites, including two watershed basins and two farm-scale 

areas, encompassing a total of 61,175 acres. The consultant used Geographic Information 

System (GIS) coverages for hydrography, wetlands, floodplains, land use, and soils, to 

determine the areas that would become newly classified as WOTUS. The consultant’s 

full report is available within the comment submitted to the EPA docket by FDACSOAWP on Oct. 31, 2014. A summary of the consultant’s findings are provided in Table 

1. Across all land uses, a total of 1,738 acres, or 2.8 percent of the study area were 

determined to come under new WOTUS jurisdiction. Among the different agricultural 

land uses evaluated, improved pastures, unimproved pastures, woodland pastures, and 

mixed rangeland would see an increase in WOTUS area of 1.1 percent, 2.2 percent, 1.4 

percent, and 0.5 percent respectively, or a weighted average of 1.28 percent. Pasture and 

range lands in Florida are predominantly used for beef cattle production, so these changes 

would potentially affect cow-calf producers. Other agricultural land uses, such as 

sugarcane and row crops (vegetables) had smaller increases in WOTUS area (0.8%, 

0.3%, respectively), so these land uses were not evaluated for economic impacts. In 

addition, citrus groves, tree nurseries, and fallow cropland had negligible increases in 

WOTUS area. Upland hardwood forests had a significant increase in WOTUS area 

(2.8%), but were also not evaluated, since it was assumed that infrequent timber harvests 

would still be exempted from jurisdiction.
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The areas in South Florida evaluated by Breedlove, Dennis and Associates are believed to 

be representative of the coastal lowland physiographic region of the state of Florida, as 

indicated in blue in Figure 1. A set of 43 coastal lowland counties in the state shown in 

Figure 2 was selected for extrapolation of the incremental WOTUS area percentages for 

pasture/rangeland to a statewide basis for economic impact analysis.
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188

Figure 1. Map of Florida physiographic regions (used for selectin of coastal lowland 

counties)

Figure 2. Map of Florida counties included in impact analysis

It was assumed that the incremental WOTUS area in pasture and rangeland would be 

permanently removed from agricultural production. The estimated proportion of 

pasture/rangelands in the study areas that would be newly classified as WOTUS was then 

multiplied by the total area of pasture lands in the 43 selected lowland-coastal counties to 

estimate the total area affected in Florida. According to the 2012 Census of Agriculture 

(USDA-NASS), there was a total of 4.473 million acres of pastures in these selected 
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counties. Multiplying this by the 1.28 percent increase in WOTUS area for 

pasture/rangeland gives an estimated 57,206 acres in lost production (Table 2).

The annual revenues for cattle ranching and farming for Florida in 2012 were just over 

$669 million (IMPLAN). Dividing this figure by total pastureland in the State used that 

year (5.119 million acres) gives an average revenue per acre of $131. Multiplying the 

affected area (57,206 acres) by $131 per acre equals $7.494 million as the estimated 

annual revenue loss to beef cattle producers.

Table 2. Summary of changes in Florida pastureland and beef cattle production 

under expanded jurisdiction rule for Waters of the United States

The regional economic impacts of lost beef cattle industry revenues in Florida were 

estimated using multipliers from an IMPLAN economic model of the State of Florida. 

Input-Output/Social Accounting Matrix (IOSAM) models constructed with the IMPLAN 

software are mathematical representations of a regional economy formulated in terms of 

transactions between industries, employees, households, and governments that can be 

used to estimate how changes in economic activity in specific industries will broadly 

impact the regional economy as a whole (Miller and Blair, 2009). Economic impacts are 

estimated from regional models using economic multipliers, including three types of 

multiplier effects: direct, indirect and induced. The direct effects multipliers represent the 

change in direct economic activity within the State, while indirect and induced effects 

multipliers represent the additional change in regional economic activity due to input 

supply chain purchases, household and government spending. The total impact is 

captured by the sum of direct, indirect and induced effects. The IMPLAN model in this 

case was constructed for the state of Florida using 2012 region data, with the trade flows 

option, and included all social accounts in the model. For the beef cattle farming and 

ranching industry in Florida (IMPLAN sector #11), the total output (revenue) multiplier 

is 3.168, and the total employment multiplier is 24.84 fulltime and part-time jobs per 

million dollars output.
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The estimated economic impacts of lost revenues to the Florida beef cattle industry due to 

increased WOTUS area are summarized in Table 3. The annual industry output (revenue) 

impact is -$24.06 million, the value added impact to state GDP is $9.39 million, the labor 

income (wages, salaries, benefits, proprietor income) impact is $5.01 million, and the 

employment impact is -184 fulltime and part-time jobs.

Table 3. Summary of economic impacts of lost beef cattle production in Florida due 

to expanded jurisdictional rule for Waters of the United States on pastureland

The economic impacts of lost beef cattle industry output due to expanded WOTUS area 

in Florida are presented for major industry groups in Table 4. The largest impact occurs 

in the Agriculture, Forestry, Fisheries and Hunting sector, with total output impacts of -

$12.76 million, including the direct industry output change of -$7.49 million, plus 

indirect impacts for diminished supply chain activity, and induced impacts for reduced 

employee household and government spending. Significant impacts would also be 

experienced due to indirect and induced effects in the Real Estate and Rentals sector (-

$1.75 million), Finance and Insurance (-$1.62 million), Manufacturing ($925,925), and 

Health and Social Services ($961,022). 
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Table 4. Industry output impacts of lost beef cattle production in Florida due to 

expanded jurisdictional rule for Waters of the United States on pastureland, by 

major industry group

These estimated annual losses in economic activity in the agricultural sector in the State 

of Florida would continue in perpetuity as long as the proposed expanded federal 

jurisdiction of WOTUS is in place. It is recognized that the expanded jurisdiction of 

WOTUS would potentially have incremental nonmonetary benefits for wetland 

protection and water quality improvement, however, insufficient information is available 

to evaluate these benefits. (p. 1-8)

Agency Response: EPA and the Corps recognize the detail provided in the 

comment. It is noted the final regulation has clarified of the scope of “waters of the 

U.S.” The rule is narrower in scope than existing regulations and historical 

practice. The accompanying economic analysis addresses changes in the assertion of 

jurisdiction that may occur relative to recent practice and the resulting impacts on 

CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 11.3.1, 11.3.2 and 

11.4 on how the agencies have addressed concerns related to the economic analysis. 

See also Topic 14 on site-specific examples.
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Florida Stormwater Association, Inc. (Doc. #7965.1)

11.2.196 Fiscal Impacts

Based on the language as contained in the proposed rule, attached please find a series of 

estimated fiscal impacts using a very small fraction of the waters likely to be added to the 

list of what is “jurisdictional” or WOTUS in just a few Florida counties.

Hillsborough County

Lateral C stormwater conveyance

“Lateral C” discharges directly into Delaney Creek and eventually Hillsborough Bay. 

Delaney Creek is currently a jurisdictional waterbody or Water of the United States 

(WOTUS). Lateral C is a 1.3 mile channelized conveyance maintained by the 

Hillsborough County Public Works Department to provide stormwater drainage/flood 

control for the Clair Mel City neighborhood.

It would become WOTUS under the proposed regulations.

Image of "Lateral C"

Fiscal Impact

Estimated Total Maximum Daily Load (TMDL) reductions were calculated according to 

established percent reduction protocols and EMC based load estimates as follows:
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Estimated Total Maximum Daily Load (TMDL) reductions were calculated 

according to established percent reduction protocols and EMC based load estimates

The measured exceedances used in the percent reduction calculation are annual average 

Total Nitrogen (TN) and Total Phosphorus (TP) concentrations for Lateral C from 2012-

13. The target concentration was estimated based on the Numeric Nutrient Criteria as a 

biological target has not yet been established under the narrative criteria for ditches. 

Under these assumptions, reductions of 89.61 lbs/yr TN and 153.0 lbs/yr TP could be 

required for in stream conditions in Lateral C. Using FDEP’s retrofit estimates of 

$3,500/lb TN and $11,680/lb TP, the cost to bring Lateral C to in stream water quality 

standards is a combined total of approximately $2,100,675 for the 1.3 mile long ditch.

Osceola County

Stewart Street Drainage Area

The Stewart Street drainage area is primarily older rural and low density residential 

communities on septic systems which were built prior to stormwater attenuation and 

treatment requirements. The Stewart Street conveyance system is a series of man-made 

(typical trapezoidal) and maintained ditches. The system is bisected and adjacent to 

several wetlands and terminates into a regional stormwater pond which directly 

discharges to Lake Tohopekaliga. These ditches are subject to inundation year round due 

to the high water table in the area and backflow from Lake Tohopekaliga during the 

“dry” season (November-April) when the lake elevation stages up in accordance with the 

U.S. Army Corps Regulation Schedule.

Stewart Street Drainage Area

Under the proposed rule changes, the man-made conveyance ditches would be considered 

WOTUS and water quality regulations could be applied “in stream” instead of being 
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considered as a loading contributor to the overall WBID. This application is problematic 

for several reasons, as noted below:

1. The nutrient concentration of conveyance system increases during the “dry” 

season due to stagnant inundation caused by backflow from the lake, blackwater 

in the wetlands and the high ground water table.

2. As a WOTUS, the County MS4 could be required to address the loads in 

stream which are primarily a result of non-stormwater sources. Since the water is 

stagnant and shallow, a pump or circulation system would be needed.

3. The retrofit pond was designed to treat the ditch water prior to discharge into 

Lake Tohopekaliga; however, the ditch system could be required to meet water 

quality standards in stream, which is prior to the treatment facility.

4. Maintenance of the ditches would be subject to Federal permitting 

requirements.

Fiscal Impacts

Since a specific biological target has not been identified based on the narrative nutrient 

criteria applicable to ditches, the target concentration was estimated based on the 

Numeric Nutrient Criteria. The in-stream reduction requirements based on the existing 

projections to achieve the current post treatment concentration within the system 

treatment system are 2,667 lbs/yr of Total Nitrogen (TN) and 381 lbs/yr of Total 

Phosphorus (TP). Since there are no vacant uplands that remain in this basin, the FDEP 

retrofit cost estimates of $3,500/ lb. of TN and $11,680/lb. of TP were used. The cost for 

compliance of this system is estimated at $9,334,500 for TN and $4,450,080 for TP.

The majority of Osceola County’s 70+ miles of MS4 open conveyance “ditch” systems 

are subject to similar issues.

If the WOTUS designation leads to in-stream water quality requirements related directly 

to the ditch system, the County’s $2 million investment in the Stewart Street Regional 

Pond Retrofit would be devalued because the facility is located downstream in the system 

and will not reduce the loads along the entire length of the conveyance because it was 

designed to reduce loads to the downstream waterbody.

Palm Beach County

The following examples are from Palm Beach County, Florida. The proposed changes to 

WOTUS will have far-reaching implications for the County in terms of fiscal impacts, 

primarily due to the network of ditches, canals and interconnected floodplains. Two 

representative examples are provided, although it is likely that hundreds of similar 

examples exist throughout the County.

Village of Wellington – Palm Beach County
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The Village of Wellington (outlined below in yellow) is an incorporated town in Palm 

Beach County that operates an MS4 system of approximately 34 square miles. The 

stormwater management system includes five outfalls into current jurisdictional 

waterbodies or “WOTUS,” 91 miles of man-made canals, 270 acres of lakes, 365 acres of 

wetlands/preserves, eight pump stations, five control structures, 165 miles of pipes, 2,173 

catch basins and 37 miles of swales. Due to the creation of the award-winning Wellington 

Environmental Preserve (shown in the west of the map below), the existing canal 

network, and the installation of significant infrastructure to prevent flooding, much of 

Wellington is linked together as one floodplain.

Village of Wellington

Fiscal Impact

Under the current Total Maximum Daily Load of 13% for Total Phosphorus (TP) (EPA 

Proposed TMDL for the ACME North Sector), equates to approximately 400 pounds of 

TP. Under the TMDL, the receiving water is required to meet the load reduction, but the 

canal system is not required to meet the water quality standards in stream. Using FDEP’s 

retrofit estimate of $11,680/lb TP, the cost to bring the canal network in Wellington’s 

Basin B to current water quality standards in stream is approximately $4.6 million for TP. 

Costs for Wellington’s Basin A would be comparable, bringing total retrofit costs for the 

Village canal network to $9 million.

PGA National – Palm Beach County

PGA National’s stormwater and canal system is managed by Northern Palm Beach 

County Improvement District. The canals located within PGA National are for flood 

control purposes and are not currently considered jurisdictional waterbodies/WOTUS. 

The proposed regulatory changes (conservatively applied) would bring a minimum of 

two additional canal segments into jurisdictional status (adding an 8,400 linear feet, 

shown below in yellow), although another interpretation, based the definition of 

“floodplains” could essentially link most of PGA National into a network of jurisdictional 

waterbodies.
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PGA National – Palm Beach County

Fiscal Impact 

Several adjacent waterbodies are listed for upcoming TMDL development for PGA 

National’s Preserve, as defined under the new definition of WOTUS. Under a 

conservative estimate for a Total Maximum Daily Load, a 15% reduction for Total 

Nitrogen (TN) and a 40% reduction for Total Phosphorus (TP) could be required. These 

are slightly lower estimates than the EPA-adopted TMDL for Lake Ida/WBID 3262A in 

the same major watershed; it is likely that the TMDLs for this area will be much higher. 

This equates to reductions of approximately 975 pounds of TN and 132 pounds of TP. 

Using FDEP’s retrofit estimates of $3,500/lb TN and $11,680/lb TP, the cost to retrofit 

these canals to meet in stream water quality standards would be $3.4 million for TN and 

$1.5 million for TP. 

Pasco County

Dade City Canal

Dade City Canal is a manmade conveyance located in the Upper Withlacoochee River 

Watershed. The canal was originally dredged for flood control and drains to the Upper 

Withlacoochee River Swamp (UWRS) prior to discharging into the Withlacoochee River. 

The Withlacoochee River is a jurisdictional waterbody or Water of the United States 

(WOTUS). Prior to 2007, flow in Dade City Canal was dominated by point source 

discharges from the Dade City WWTP and the Lykes Pasco Beverage facility. Both of 

these point sources have been removed and the canal is now typically characterized by 

zero to very low flows even when the Withlacoochee River stage is high. Dade City 

Canal is not now considered to be WOTUS but would be considered such under the 

proposed regulations.
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Dade City Canal near its confluence with the UWRS (March 16, 2010)

Dade City Canal near its confluence with the UWRS (March 16, 2010)

Fiscal Impact

The total maximum daily load (TMDL) for the watershed was adopted in early 2007 and 

required a 70 percent reduction from point source, non-point source and MS4 loads for 

total nitrogen (TN) and total phosphorus (TP). If the Waste Load Allocation for the 

discontinued point source discharges is removed from the total existing loading, the 

remaining reductions required from the MS4 and other non-point sources in order to meet 

the TMDL are 40 percent for TN and 22 percent for TP. For the canal system, this 

equates to 3,758 pounds of TN and 274 pounds of TP. Using FDEP’s retrofit estimates of 

$3,500/lb TN and $11,680/lb TP, the cost to bring Dade City Canal into compliance with 

in stream water quality requirements is $13,153,000 for TN and $3,200,320 for TP.
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Numerous segments of Pasco County’s MS4 system would also likely be considered 

WOTUS under the proposed regulations. For example, the stormwater facilities for the 

Gulf View Mall include ditch and stormwater retention ponds that have a direct discharge 

into Salt Spring Run. Salt Spring Run is located behind the Gulf View Mall just north of 

Port Richey on the west coast of Pasco County (see below). Under the proposed 

regulations, these discharges would likely be required to meet in stream water quality 

criteria prior to discharge into Salt Spring Run, and routine maintenance activities would 

be subject to federal permitting policy. Retrofit of this stormwater facility to meet in 

stream water quality criteria in this highly urbanized environment would likely be costprohibitive for the County and provide little overall environmental benefit.

Stormwater management facilities at Gulf View Mall adjacent to Salt Spring Run

Pinellas County

Pinellas Park Ditch #5 (Bonn Creek)

Pinellas Park Ditch #5 (aka “Bonn Creek”) discharges directly into a wetland that 

discharges into “Joe's Creek.” Joe’s Creek is currently a jurisdictional waterbody or 

Water of the United States (WOTUS). The ditch is a conveyance managed as part of the 

Pinellas Park Water Management District, which was created in 1976 by the Florida 

Legislature to manage the primary stormwater drainage/flood control system for a portion 

of central Pinellas County. 

Ditch #5 provides no environmental or human benefits, other than flood control. It is not 

now considered to be WOTUS but would be considered to be such per the proposed 

regulations of EPA and the ACOE.
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Pinellas Park Ditch #5 (Bonn Creek)

Pinellas Park Ditch #5 (Bonn Creek)

Fiscal Impact

Based on the current Total Maximum Daily Load for the area, a 27% reduction is 

required for Total Nitrogen (TN) and a 64% reduction for Total Phosphorus (TP). When 

applied to the Pinellas Park Ditch #5, this equates to reductions of 3,795 pounds of TN 

and 1,547 pounds of TP. Using FDEP’s retrofit estimates of $3,500/lb TN and $11,680/lb 

TP, the cost to bring Ditch #5 to in stream water quality standards is $13,282,500 for TN 

and $18,068,960 for TP.

St. Johns County

Parker Canal

Parker Canal is a large constructed ditch that drains water east to west against natural 

land grade along Canal Road. Parker Canal discharges to Colson Branch, a tributary to 

the Lower St. Johns River (LSJR). The LSJR is currently a jurisdictional waterbody or 
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Water of the United States (WOTUS). Parker Canal is the primary drainage feature 

within the Elkton Drainage District (EDD) in St. Johns County, Florida. The EDD is an 

active, dependent drainage district established under Chapter 298, Florida Statutes in 

1917. The County is the responsible entity for stormwater in the EDD.

Parker Canal

Fiscal Impact

Based on the current Total Maximum Daily Load for the Lower St. Johns River Main 

Stem, a 30% reduction is required for both Total Nitrogen (TN) and Total Phosphorus 

(TP). When applied to the Parker Canal, this equates to a minimum in stream reduction of 

13,240 pounds of TN and 14,500 pounds of TP. Using FDEP’s retrofit estimates of 

$3,500/lb TN and $11,680/lb TP, the cost to bring Parker Canal to current water quality 

standards is $13,902,000 for TN and $50,808,000 for TP.

Volusia County

B-21 Drainage Basin

There are number of roadside ditches and canals that flow into the B-21 Canal, which is a 

jurisdictional water located in Volusia County. For example, there are approximately 

80,250 ft. of large roadside ditches on Tomoka Farms Road and approximately 31,650 ft. 

of canals draining into the B-21 Canal. The B-21 drainage basin is approximately 21,400 

acres, comprised of approximately 3,000 acres of urban land use, 1,400 acres of 

agricultural, 10,000 acres of uplands and 9,000 acres of wetlands.
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Tomoka Farms Roadside Ditch and B-21 canal

Fiscal Impacts

B-21 discharges to Spruce Creek which has a Total Maximum Daily Load (TMDL) for 

fecal coliform, Total Phosphorus (TP) and Biological Oxygen Demand (BOD). A TP 

reduction of 27% is required within the designated area, equating to 2,600 pounds of TP. 

Using FDEP’s retrofit estimates of $11,680/lb TP, the cost to bring the B-21 Canal to in 

stream water quality standards for TP (in the portion of the B-21 system that is 

maintained by Volusia County) is $30,368,000. (p. 9-27)

Agency Response: The agencies recognize the detail provided in the comment. It 

is noted the final regulation clarifies the scope of “waters of the U.S.” The rule is 

narrower in scope than existing regulations and historical practice. The 

accompanying economic analysis addresses changes in the assertion of jurisdiction 

that may occur relative to recent practice and the resulting impacts on CWA 

programs. See Summary Responses to Topics 11, 11.2, 11.3, 11.3.1, 11.3.2 and 11.4 

on how the agencies have addressed concerns related to the economic analysis. See 

also Topic 14 on site-specific examples, and see Ditches Compendium.

American Legislative Exchange Council (Doc. #19468)

11.2.197 (...) WHEREAS, the proposing agencies’ economic analysis for this rule did not 

consider impacts of the full range of CWA programs affected or of economic impacts to 

small businesses and the analysis relies on nearly 20-year old cost data that has not been 

adjusted for inflation and, in concluding that the proposed rule would increase the waters 

subject to permitting requirements by only 2.7 percent, the proposing agencies rely on a 

data base that is incomplete and not representative of those waters that are subject to 

jurisdiction under current regulation; and (...) (p. 4)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 
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11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

United States Senate (Doc. #1377)

11.2.198 (...) Lastly, it would appear that the economic impact of this rule is 

underestimated. Clearly if the rule were finalized as purposed, additional projects and 

actions would fall under CWA regulatory requirements that would not have otherwise. 

Concerns have been raised that mitigation costs cited in the economic study do not appear 

to reflect the current reality in Arizona or the immense costs that permitting under the 

CWA can entail. (p. 2)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

United States House of Representatives (Doc. #17464)

11.2.199 In early December of 2013, your agencies released a joint analysis stating that this 

rule would subject an additional three percent of U.S. waters and wetlands to CWA 

jurisdiction and that the rule would create an economic benefit of at least $100 million 

annually. This calculation may not be an accurate representation of the economic impact. 

In this analysis, the EPA evaluated the FY 2009-2010 requests for jurisdictional 

determinations – a period of time that was the most economically depressed in nearly a 

century. This period saw extremely low construction activity and should not have been 

used as a baseline to estimate the incremental acreage impacted by this rule. In addition, 

the derivation of the three percent increase calculation did not take into account the 

landowners who — often at no fault of their own – do not seek a jurisdictional 

determination, but rather later learn from your agencies that their property is subject to 

the CWA. These factors alone, which are just two of many assumptions, raise questions 

as to the reliability of the conclusions of the economic analysis. (p. 1 - 2)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

Congress of the Unites States (Doc. #1434)

11.2.200 In early December of 2013, your agencies released a joint analysis stating that this 

rule would subject an additional three percent of U.S. waters and wetlands to CWA 
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jurisdiction and that the rule would create an economic benefit of at least $100 million 

annually. This calculation is seriously flawed. In this analysis, the EPA evaluated the FY 

2009-2010 requests for jurisdictional determinations — a period of time that was the 

most economically depressed in nearly a century. This period, for example, saw 

extremely low construction activity and should not have been used as a baseline to 

estimate the incremental acreage impacted by this rule. In addition, the derivation of the 

three percent increase calculation did not take into account the landowners who — often 

at no fault of their own — do not seek a jurisdictional determination, but rather later learn 

from your agencies that their property is subject to the CWA. These errors alone, which 

are just two of many in EPA's assumptions and methodology, call into question the 

veracity of any of the conclusions of the economic analysis. (p. 1-2)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.

House of Representatives (Doc. #12751)

11.2.201 In early December of 2013, your agencies released a joint analysis stating that this 

rule would subject an additional three percent of U.S. waters and wetlands to CWA 

jurisdiction and that the rule would create an economic benefit of at least $100 million 

annually. This calculation is seriously flawed. In this analysis, the EPA evaluated the FY 

2009-2010 requests for jurisdictional determinations, a period of time that was the most 

economically depressed in nearly a century. This period, for example, saw extremely low 

construction activity, and should not have been used as a baseline to estimate the 

incremental acreage impacted by this rule. In addition, the derivation of the thee percent 

increase calculation did not take into account the landowners who, often at no fault of 

their own, do not seek a jurisdictional determination, but rather later learn from your 

agencies that their property is subject to the CWA. These events alone, which are just two 

of many in the EPA's assumptions and methodology, call into question the veracity of 

any conclusions drawn from the economic analysis. (p. 2)

Agency Response: The rule is narrower in scope than existing regulations and 

historical practice. The accompanying economic analysis addresses changes in the 

assertion of jurisdiction that may occur relative to recent practice and the resulting 

impacts on CWA programs. See Summary Responses to Topics 11, 11.2, 11.3, 

11.3.1, 11.3.2 and 11.4 on how the agencies have addressed concerns related to the 

economic analysis.
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11.3. SECTION 404

Agency Summary Response

Section 404 of the CWA establishes a program to regulate the discharge of dredged or fill 

material into waters of the United States, including wetlands. Activities in waters of the United 

States regulated under this program include fill for development, water resource projects (such as 

dams and levees), infrastructure development (such as highways and electricity transmission), 

and mining projects. Section 404 requires a permit before dredged or fill material may be 

discharged into waters of the United States, unless the activity is exempt from Section 404 

regulation. Proposed activities are regulated through a permit review process. An individual 

permit is required where impacts are more than minimal.

Individual permit applications are reviewed by the U.S. Army Corps of Engineers, which 

evaluates applications under a public interest review, as well as the environmental criteria set 

forth in the CWA Section 404(b)(1) Guidelines. However, for most discharges that will have 

only minimal adverse effects, a general permit may be suitable. General permits are issued on a 

nationwide, regional, or State basis for particular categories of activities. The general permit 

process eliminates individual review and allows certain activities to proceed with little or no 

delay, provided that the general or specific conditions for the general permit are met. The great 

majority of discharges are authorized under a general permit.

The Summary Response to Topic 11.2 (Scope of Change of Jurisdiction) addresses comments 

on, as well as changes the agencies made to, the way the Economic Analysis estimates the 

percentage of negative jurisdictional determinations (JDs) that would become positive JDs under 

the rule when compared to the baseline of current practice. An increase in assertion of CWA 

jurisdiction could produce costs of implementation of the Section 404 program as well as 

increased benefits. Regulated entities may face costs resulting from this rule through permit 

application costs, and associated compliance costs such as wetlands mitigation or stream 

mitigation, and project re-design and relocation expenses. There may also be program 

management costs and efficiencies associated with administering the Section 404 program. 

This rule may result in an increase in Section 404 permits with associated costs. Ecological 

benefits will accrue from those permitted losses being offset through compensatory mitigation. 

The Economic Analysis provides more detail on these benefits, based upon a benefits transfer 

analysis using studies measuring willingness to pay for preservation of wetlands similar to the 

type likely to be protected by this rule. The Summary Responses to Topics 11.3.1 and 11.3.2 

below respectively address comments on the costs and benefits to the Section 404 program.

Specific Comments
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Southern Nevada Home Builders Association (Doc. #3251)

11.2.202 The 404 permitting process is very costly to developers and is time consuming, 

delaying development. Land which was previously able to be developed under the current 

rules will now either be undevelopable or substantially more difficult and costly to 

develop. (p. 3)

Agency Response: The rule is narrower in scope than the existing regulations and 

historical practice. See Agencies’ Summary Response under Topic 11.3.1 (Costs) 

The Mosaic Company (Doc. #14640)

11.2.203 3.3 Lost Profits and Socioeconomic Costs

The EPA’s Study estimate of compliance costs does not quantify lost profits in the 

private sector, nor does it account for associated reductions in spending on goods and 

services produced by other industries. If the proposed rule restricts operational flexibility 

and interrupts industry operations, it may also result in lowering output, jobs and wages. 

The resulting costs are demonstrated by a situation at one of Mosaic’s phosphate rock 

mining operations located in Florida, which may have been idled for about three years if 

not for the operational flexibility preserved through CWA jurisdiction in 2010. At the 

time, the existing mining operation was not expected to have sufficient permitted reserves 

to continue operation during the preparation of a Phosphate District Areawide 

Environmental Impact Study (AEIS) and the subsequent time needed to permit a new 

parcel. Reserves on an adjacent unpermitted parcel of land, however, could be permitted 

for mining because the wetlands were considered isolated and non-jurisdictional by the 

USACE, and the permitting through the state could be conducted while the AEIS was in 

progress. This preserved Mosaic’s ability to continue to operate and produce its needed 

phosphate rock supply. The mine generates approximately 1.7 million tons of phosphate 

rock annually, at a value of approximately $169 million comprised—among other 

things—of profits for Mosaic, along with wages associated with approximately 100 direct 

jobs that stimulate the economy through household spending.139 In addition to direct 

economic benefits, the mine, its benefaction facility and Mosaic’s fertilizer production 

operations support the purchase of goods and services from other industries, indirectly 

resulting in profits, wages and associated household spending for other individuals and 

businesses, as well as tax revenue to state and local governments. However, if the 

proposed rule were in effect at the time, CWA jurisdiction over the isolated wetlands on 

the adjacent parcel would have likely triggered a temporary mine shutdown, while 

waiting for the USACE Section 404 permit to issue, since at the time the USACE would 

not issue permits before the AEIS was completed. This potential outcome would occur 

 

139 Area-Wide Environmental Impact Statement on Phosphate Mining in the Central Florida Phosphate District, U.S. 

Army Corps of Engineers, April 2013, Appendix H.
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even with no corresponding wetland loss, as the state of Florida independently claimed 

jurisdiction and required mitigation for the isolated wetland at issue.

While this situation is specific to Mosaic, it clearly demonstrates the types of costs that 

could be borne by unknown permittee and non-permittee enterprises when operational 

flexibility is restricted by expanded CWA jurisdiction. These direct, indirect and induced 

effects of changes in industry output have been quantified and well-documented using 

IMPLAN data and software in hundreds of studies of the economic costs of 

environmental policy changes. These studies could be reviewed for approaches to 

estimating and incorporating such costs based on estimated changes in economic output 

and income by the regulated community. (p. 49-50)

Agency Response: See Agencies’ Summary Response under Topic 11.3.1 (Costs)

Oregon Cattleman’s Association (Doc. #5273)

11.2.204 Federal regulation under the CWA imposes substantial burdens on landowners 

who want to conduct activities that may affect areas determined to be "waters of the 

United States." Much of this burden is financial in nature.

For example, applicants seeking to deposit fill material into "waters of the United States" 

spend on average 788 days and $271,596 to complete the required process for an 

individual permit. Additionally, these costs are directly correlated with the size of the 

project proposed. Applications for individual permits impose a baseline cost of $43,687 

plus an additional $1 1,797 for each acre of "waters of the United States" impacted by the 

project. (p. 7)

Agency Response: See Agencies’ Summary Response under Topic 11.3.1 (Costs)

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

11.2.205 Many activities that could previously have been carried out under a nationwide 

and/or statewide general permits may no longer qualify, and regulated entities (and state 

counterparts) will be forced to obtain individual permits, which are far more costly, time 

consuming and administratively resource intensive. The costs alone of obtaining a Corps 

404 permit are significant: averaging 788 days and $271,596 for an individual permit and 

313 days and $28,915 for a nationwide permit, which is not counting the costs of 

mitigation or design changes. (p. 1)

Agency Response: The agencies believe the rule will expedite the permit review 

process in the long-term by clarifying jurisdictional matters that have been timeconsuming and cumbersome for field staff and the regulated community for certain 

waters in light of the 2001 and 2006 Supreme Court cases. The Corps’ Nationwide 

Permit program, which authorizes Clean Water Act Section 404 discharges that 

would have no more than minimal adverse impacts to aquatic resources, is available 

for activities that qualify. See Agencies’ Summary Response under Topic 11.3.1 

(Costs)
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Consolidated Drainage District #1, Mississippi County, Missouri (Doc. #6254)

11.2.206 It also leaves individual farmers -in our jurisdiction mostly family farmers - in the 

highly difficult position of showing that their drainage ditches are not connected to some 

navigable body of water. Such a showing would require lengthy surveys and hydrological 

tests that, quite frankly, family farmers would not be able to afford. The economic and 

financial burdens would cut into the profitability of their land, making them less 

economically viable - and much more likely to claim a regulatory taking in the future. (p. 

3)

The rule does not shift the burden of proof; the federal government must demonstrate that 

a water is a "water of the United States" under the CWA and its implementing 

regulations.

Agency Response: See Agencies’ Summary Responses under Topic 6, Topic 7 and

under Topic 11.3.1

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

11.2.207 e. The costs of implementing the proposed rule are extensive and will be 

mostly born by local entities. 

In estimating the proposed cost of implementing the rule, the Agencies have failed to 

perform a full accounting of its impacts. The methods and data sets used for estimating 

the increased costs of Section 404 permitting are not reflective of what may be 

reasonably anticipated to occur in the future. Perhaps more importantly, the cost 

estimates fail to consider the true impact across all of the programs derived from the 

authority of the CWA. In past years the question of CWA jurisdiction as determined by 

the definition of "waters of the U.S." has most often arisen with respect to Section 404 

permitting actions. The proposed rule replaces the definition of "navigable waters" and 

"waters of the U.S." for all CWA programs, including: Sec. 404 - Dredge and Fill 

Permits, Sec. 402 - NPDES (stormwater) permitting, Sec. 311 – Spill Prevention Control 

and Countermeasure Plans (SPCC), and Sec. 303 - Water Quality Standards and Total 

Maximum Daily Loads (TMDL's.) 

Of specific concern with respect to costs are those increases to stormwater permitting, 

including TMDLs. EPA has encouraged states to enhance water quality by implementing 

TMDLs through MS4 permits and other means, including for non-point source pollution. 

States presently have some authority to determine how to achieve this and can, and 

should, take into consideration the costs and benefits to their subdivisions of governments 

and businesses when deciding how to proceed. Under the proposed rule it is not clear that 

states will retain that authority, or if unfunded mandates for enhancing water quality will 

be imposed. By not clarifying in the proposed rule that CWA programs beyond Section 

404 would not be impacted by the new defmition, the Agencies have left open that 

possibility. Then, not addressing potential cost impacts to those programs consistent with 

how the Agencies have described them evolving, especially implementation of TMDLs, 
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leaves the Agencies negligent and at best inaccurate in their estimation of the financial 

impact of the proposed rule on local entities and businesses. (p. 5-6)

Agency Response: See Agencies’ Summary Responses under Topic 11.3.1, Topic 

11.4, and Topic 7.

11.3.1. Costs

Agency Summary Response

In general, commenters to the proposed rule noted a number of cases where they believed that a 

particular subcomponent of permit costs was either overlooked completely or underestimated. 

Examples of this include increased on-site and off-site (alternate location) delineation costs, 

additional potential required studies under the 404 permitting process (e.g. biological surveys, 

ESA Section 7 documentation, and cultural resource studies), and under-estimation of restoration 

costs. The agencies recognize that there may be circumstances where specific individual permit 

applicants may be asked to do additional analyses or project redesign. The agencies 

acknowledge that these costs can be significant for affected permit applicants; however, these are 

very case-specific costs and lacking data to support a credible approach to estimating these costs, 

they are excluded from this analysis. The agencies for the final rule chose to characterize the 

considerable uncertainty surrounding our cost estimates by conducting “scenario analysis.” 

OMB Circular A-4 states that in some cases where the level of scientific uncertainty is so large 

that the analysis can only present discrete alternative scenarios without assessing the relative 

likelihood of each scenario quantitatively. In one scenario, the agencies combined a series of 

“high end” assumptions, including that twice as many jurisdictional determinations will be made 

for “other waters” as indicated in recent Corps data. The agencies believe that this “high end” 

assessment of total costs bounds the impact of uncertainty including the potentially under-costed 

and missed cost categories.

Commenters state that the EA for the Proposed Rule ignores any potential changes to the 

distribution of general permits (GPs) and individual permits (IPs). The note that the EA accounts 

for a full increase in IPs and GPs for the entire projected increase in jurisdiction, which is likely 

a conservative assumption as it is questionable that following this rule the agencies would 

receive a permit application for the same percentage of waters on an annual basis that are 

estimated to now be jurisdictional under this rule, and as such the agencies believe that this 

analysis adequately estimates the high-end of costs, including the possibility for permits 

switching between general permits and individual permits. In addition, in the EA for the Final 

Rule, the agencies conservatively assumed that the number of GPs and IPs issue per year would 

be the maximum number of permits issued in a year in each respective category in the ORM2 

fiscal years 2009 through 2014. For general permits this figure is 60,020 from fiscal year 2013, 

and for individual permits this figure is 4,672 from fiscal year 2009. The fiscal year 2014 permit 

figures are considerably lower than fiscal year 2013, as well as lower than the six year average, 

and figures for IPs dropped by a larger percentage than for GPs. Given that costs are higher for 
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IPs than GPs, this suggests that using the yearly maximum as described above for this analysis is 

even more conservative than originally anticipated.

Commenters express concern over the potential heterogeneity in impacted acreage within the 

general permit and individual permit categories. The EAs for both the Proposed and Final Rules 

use an average impact per permit to calculate total impacted acreage. However, the agencies 

updated the per permit figures to evaluate ORM2 fiscal year 2013 records for the Final Rule (the 

Proposed Rule used fiscal year 2010 records), and the Corps undertook a data quality assurance 

effort to thoroughly vet the per permit acreage impact figures for the Final Rule. As a result, the 

size of the average impact per general permit increased from 0.28 to 0.43, while the 

corresponding per permit acreage for individual permits decreased from 12.81 to 5.94.

The agencies agree with commenters that the costs of permitting fall on both new capital 

projects, and operations and maintenance projects at existing locations. 

Commenters argued that an appreciable fraction of agricultural land would become jurisdictional 

under the Rule. Removing this land from production would result in a substantial loss of 

agricultural production and ripple effects throughout the economy. The premise that agricultural 

land would necessarily come out of production because it could become jurisdictional is faulty. 

The Rule retains exemptions for certain agricultural uses and practices [see for instance, Topic 

7.2 on Prior Converted Cropland] and clarifies excluded waters. Agricultural land would most 

likely be affected under the 404 program, but the agencies’ analyses suggest that jurisdiction 

over only fairly modest areas nationwide would be asserted under the Rule. Moreover, the Rule 

is narrower in scope than existing regulations and historical practice. Any potential additional 

costs that would be incurred as a result of the Rule were likely already incurred under assertions 

of jurisdiction made in the late 1990s.

Commenters provided several case studies that took advantage of various site-mapping 

technologies to demonstrate that at specific sites for specific industries or municipalities the 

number of permits required and the type of permits required may increase under the proposed 

jurisdictional definition of WOTUS, when considered relative to recent practice. These case 

studies (as well as the changes to the proposed rule), though based on limited geospatial and 

industry specific data that is not nationally representative, encouraged the agencies to reassess

the proposal’s 2.7 percent increase in positive jurisdictional determinations. Some of these case 

studies had limited applicability to the Economic Analysis. For example, one cited study has 

assumptions that are inconsistent with the description of the rule, and cannot be compared to the 

accompanying economic analysis. In particular, the study overstates the impact of the proposed 

rule by assuming all man-made ditches and canals are currently non-jurisdictional waters but 

would become jurisdictional under the proposed rule. The study also assumes nutrient load 

reductions upstream have no effect on nutrient loads downstream, ignoring that areas draining to 

waters that are not waters of the U.S. may still need treatment under current practice, as water 

quality standards in downstream waters can’t be achieved unless upstream sources are reduced. 

In addition, the study uses numeric water quality criteria in the water quality standards to 

determine fiscal impact, when in some cases less costly narrative criteria could apply.
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Commenters also suggest that data on section 404 permit application costs from a 20 year old 

study have not been adjusted for inflation or any other changes. This is incorrect as the agencies 

have adjusted for inflation. In particular, the EA for the Final Rule adjusts data from D. Sunding 

and D. Zilberman. 2002. “The economics of environmental regulation by licensing: An 

assessment of recent changes in the wetland permitting process.” Natural Resources Journal. V. 

42, Winter, to 2014$ using the Consumer Price Index for all Urban Consumers (CPI-U).

Commenters indicated that some permit delays might result in opportunity costs and dissuade 

capital investment by both private and public entities. The agencies acknowledge the existence 

of opportunity costs associated with permitting time delays and discusses this qualitatively in the 

final rule EA. However, due to the variability in these costs, the unassessed potential for 

substitution, the lack of scalable data provided by commenters, and the difficulty in assessing 

these values at a national level in a meaningful way the agencies are unable to monetize these 

impacts. Commenters offered additional costs associated with delays, like increases in 

construction labor and materials costs, that may increase as a result of government agencies, at 

all levels, being burdened with additional permit applications. The agencies did not assess these 

costs for the same reasons as stated above. Additionally, the agencies’ assessment of the “high 

end” 4.65 percent increase in positive jurisdictional determination scenario indicates that the 

additional average burden on agencies will not increase to levels that would produce extended 

delays in the permitting process. This is particularly true as the final rule also significantly 

reduces the uncertainty and number of case-specific determinations that will be required, thereby 

reducing federal workload associated with jurisdictional determinations. 

Commenters questioned whether National Environmental Policy Act (NEPA) or costs from other 

federal statutes were incorporated into overall costs. This rule does not affect any existing 

requirements that may apply under other federal statutes, and their applicability will be sitespecific. Due to the variability in the applicability of such statutes, the lack of scalable data 

provided by commenters, and the difficulty in assessing these values at a national level in a 

meaningful way the agencies are unable to quantify these impacts. In any event, the agencies 

disagree with commenter’s assertion that the rule will result in significant expansion of 

jurisdiction leading to significantly greater obligations under other statutes that may apply on a 

case-by-case basis.

Commenters note that the EA for the Proposed Rule includes a lower estimate of compensatory 

mitigation, as well as a lower upper bound for state-level unit costs, when compared to EPA’s 

2011 analysis of a proposed guidance.140 Commenters further suggest this means the EA for the 

Proposed Rule likely underestimates the extent of mitigation in a normal year. These cost 

estimates are a result of the Corps examining published studies and survey results, making phone 

inquiries to Corps Districts and mitigation banks, and researching web sites. Corps experts used 

this information to develop a range of values for each state. The agencies have been able to 

 

140 EPA 2011. Potential Indirect Economic Impacts and Benefits Associated with Guidance Clarifying the Scope of 

Clean Water Act Jurisdiction.
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incorporate new wetland and stream mitigation cost information as it has become available after 

the release of the Proposed Rule. For example, the nationwide average unit wetland costs have 

increased from a range of $24,989 to $49,207 per acre of wetlands mitigated in the EA for the 

Proposed Rule, to $41,572 to $111,985 per acre for the Final Rule (the state-level unit cost 

estimates will demonstrate even more variation). Similarly, fiscal year 2013 data from ORM2 

and RIBITs allowed the agencies to estimate the total additional impacted acres of 2,490 in the 

EA for the Final Rule, which is an increase over the 2,042 acres in the Proposed Rule.

Several commenters argued and provided data for the idea that the increased need for permits, 

the increased costs, and the time delay in obtaining permits would result in larger scale indirect 

impacts including negative effects on regional development decisions and property values, 

decreased or delayed industry production, cost pass through to consumers, and decreased 

employment, GDP, and government revenues. The agencies did not assess these impacts and 

believes that, in the aggregate, they are small based on the agencies assessment of the size of the 

potential increase in permits that would result from the final rule (2.84 to 4.65 percent).

Some commenters on the proposed rule stated that a lack of clarity for terms like upland, riparian 

area, and significant nexus along with a lack of specific criteria would increase permitting risk 

and cost. The agencies believe that the final rule will reduce uncertainty and has made changes 

since the proposal to improve clarity further. The agencies have used the feedback we received 

from public outreach efforts as the source of early guidance and recommendations for refining 

the proposed rule. Specifically, stakeholder input received during public outreach events in 

combination with the written comments received during the public comment period have 

reshaped each of the definitions included in the final rule, ultimately with the goal of providing 

increased clarity for regulators, stakeholders, and the regulated public to assist them in 

identifying waters as “waters of the United States.”

Commenters, more specifically, noted that lack of clarity could result in increased litigation and 

administrative costs, for industry and state and federal governments related to contesting and 

settling a greater number of enforcement actions. The agencies do not believe that there will be a 

significant increase in enforcement issues and does not cost these types of impacts in EPA’s

economic analyses.

Some commenters stated that the costly and lengthy section 404 permit process would make 

certain projects, now jurisdictional under the rule, cost-prohibitive. The agencies acknowledge 

that there will be projects that will impact waters that become jurisdictional as a result of the 

rule, and that some of these projects may no longer be undertaken as a result. The agencies also 

acknowledge that some land intensive industries will have the highest relative proportion of 

effected projects. However, the agencies’ analysis of the incremental change in jurisdictional 

waters suggests that the impacts to any one particular industry will be relatively small given the 

small percentage increase in overall jurisdictional determinations.

Some commenters stated that 404 permit processing time, or whether the nature of the newly 

jurisdictional areas will increase the incidence of project redesign, should have been addressed in

the EA. The agencies acknowledge that permit processing time and the frequency of project 
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redesign may change as a result of the rule. However, the agencies have no reliable set of 

information to draw from to estimate how these might change. Additionally, the assessment of 

the “high end” 4.65 percent increase in positive jurisdictional determination scenario indicates 

that the effect on these two factors is not likely to be significant.

Some commenters provided their own industry specific cost analyses. The agencies’ cost 

analysis for the rule was not performed sector-by-sector. Nearly all sectors of the economy could 

potentially be affected by the rule directly through active land use or indirectly through the 

construction of new physical locations for their business activity. Attempting to make predictions 

for all the various activities that could be potentially be affected, including where, when and to 

what extent, is beyond the scope of what is reasonable for the rule’s economic analysis. In fact it 

would introduce additional uncertainty without improving the analysis. This is why the agencies

consider the use of the estimated incremental change in affected waters and then apply that 

incremental increase to the current levels of affected activity to be reasonable. The agencies

acknowledge that certain industries, such as the cement industry, may be disproportionately 

affected by the rule due to their land intensive nature, relative to other sectors of the economy. 

However, the agencies were unable to do sector specific analyses. In addition, the impacts in 

such analyses for land intensive industries would likely be disproportionately higher than for 

other less land intensive sectors of the economy. As a result, they would not provide an accurate 

way to measure the aggregate effect of the rule, given that their impacts would be greater than 

their relative contribution to the overall economic output.

Some commenters stated that the rule adds to the already high regulatory burden on industry and

that this rule along with existing federal regulations will lead to further reductions in economic 

growth. The agencies expect that the economy-wide effects of the rule are likely to be negligible 

given that the jurisdictional change under the rule is estimated to only increase the amount of 

permitted activity by 2.84 to 4.65 percent annually, and many states already have requirements 

equal or more protective than the CWA’s jurisdiction under the rule.

A commenter states that the cost analysis should account for state and regional variations in 

credit prices. The Corps worked with regions and states to derive state level high and low cost 

estimates for mitigating an acre of wetlands. They also were able to develop high and low cost 

estimates and linear foot of stream mitigation for every region and for most individual states.

A commenter states that mitigation cost estimates should use both representative credit prices 

and permittee-responsible mitigation. The agencies did use state and regional level mitigation 

bank and in-lieu fee program cost information to develop mitigation costs for the analysis. 

Mitigation banks and in-lieu fee programs are widely established throughout the country. In 

some cases, permittees may not purchase credits from a mitigation bank but rather complete a 

permittee-responsible mitigation project. The costs of this permittee-responsible mitigation 

project may be lower than the purchase of credits, particularly in circumstances where a 

mitigation project is constructed on the same tract of land as the permitted impacts. In this 

circumstance new land would not have to be acquired, potentially lowering the costs of the 

project. 
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Some commenters consider the assumption used for the EA that newly jurisdictional acres will

have the same geographic distribution as current jurisdictional acres is a highly speculative 

assumption and could have a significant impact on costs given variation in mitigation credit 

prices both across and within states. The agencies acknowledge the variability in mitigation 

credit prices and have revised the approach in the analysis to more accurately account for this 

variability across states. Commenters do not generally provide a basis for why the current 

geographic distribution and relative magnitude of current jurisdictional acres is not a good 

approximation for the relative magnitude and location of the incremental increase in 

jurisdictional acres due to the rule. In fact the agencies have every reason to believe that much of 

the newly jurisdictional acres will be in relatively close proximity to already jurisdictional 

waters, and affecting similar economic activities to the ones already now requiring permits. 

Given the connected nature of water features on the landscape the newly jurisdictional features 

are by definition in close proximity to already jurisdictional water features.

Some commenters suggested that the rule will result in an increased demand for mitigation 

credits, leading to higher credit prices. The agencies do not believe that the rule will have a 

significant effect on the availability of sites for mitigation or on average credit prices. Credit 

prices will be heavily influenced by local land prices. Local land prices are not likely to be 

sensitive to the rule given the relatively small expected change in the overall level of newly 

jurisdictional waters. The analysis does not account for states that have already extended 

jurisdiction in a similar way to the rule. As a result the agencies believe that it is likely 

overstating the incremental increase in mitigation that will be caused by the rule.

A commenter expressed concern regarding the costs of the rule to residential home builders. The 

agencies acknowledge that a portion of the projects affected by the incremental change in 

jurisdictional coverage will be new residential development projects. However, residential 

developers and home builders can often pass costs forward to new home purchasers or back to 

the initial owners of the undeveloped land. This doesn’t diminish the costs, but rather defrays it 

across a larger number of entities. Residential development tends to include a large amount of 

undisturbed land and green space relative to other types of development projects. This allows for 

more opportunities to minimize and avoid impacts, through changes in site design. As such this 

may lead to lower costs per acre relative to other sectors affected by the rule.

A commenter expressed concern regarding the impact of the rule on the affordable housing 

sector. The agencies did not perform a housing affordability analysis for the rule, and do not 

believe one is necessary. The rule should have no impact on existing housing, and the vast 

majority of home sales every year are for existing housing. This is particularly the case for first 

time and low income home buyers. A portion of the development that occurs every year is 

redevelopment where the site has already been developed and the potential to affect newly 

jurisdictional waters is extremely unlikely. The agencies do acknowledge that the rule may affect 

some new residential development projects that under recent practice may not have required a 

permit or not needed as much of their site covered by a permit. The agencies also acknowledge 

that these costs are likely to be passed through to the homebuyers. Most home buyers do not 

purchase the most expensive house that they qualify for, so many could still buy the new homes 
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affected by the rule. Some new home buyers may need to adjust their purchasing decision to still 

be able to afford their first choice. For example, they could save to put down a larger downpayment to offset the need to borrow the additional amount to afford the higher priced home. 

Another consideration is that the new homes that are most affordable for low income families 

will likely have a lower compliance cost. This is because lot size typically declines with price 

for new single-family homes, thereby reducing the compliance cost burden per unit built.

Some commenters state that the EA should have contained an UMRA analysis examining 

impacts to state or local governments. See the Summary Response to Topic 13 for more 

information. 

Specific Comments

New Mexico Department of Agriculture (Doc. #13024)

11.2.208 ESA does not take into consideration the costs on agricultural sectors that do not 

qualify for the Agricultural 404 (f)(1)(A) Exemption. An increase in jurisdiction would 

likely entail an increase in requirements for National Pollutant Discharge Elimination 

System (NPDES) permitting. Agriculture-related permits primarily affected by this 

potential permitting increase would be Concentrated Animal Feeding Operations (such as 

dairies) and Pesticide General Permits? Again, NMDA requests a thorough analysis on 

the costs this rule will have on various regulated industries. (p. 21)

Agency Response: See Agencies’ Summary Response Under Topic 11.2 (Change 

of Scope of Jurisdiction) and Topic 11.4 on other CWA programs.

Wyoming Association of Conservation Districts (Doc. #14068)

11.2.209 Further, as discussed below in the Rapanos decision, the cost of 404 permitting 

can be quite extensive adverse to claims made by EPA in this proposed rulemaking:

The burden of federal regulation on those who would deposit fill material in locations 

denominated “waters of the United States” is not trivial. In deciding whether to grant or 

deny a permit, the U.S. Army Corps of Engineers (Corps) exercises the discretion of an 

enlightened despot, relying on such factors as “economics,” “aesthetics,” “recreation,” 

and “in general, the needs and welfare of the people,” 33 CFR § 320.4(a) (2004).FN1 The 

average applicant for an individual permit spends 788 days and $271,596 in completing 

the process, and the average applicant for a nationwide permit spends 313 days and 

$28,915-not counting costs of mitigation or design changes. Sunding & Zilberman, The 

Economics of Environmental Regulation by Licensing: An Assessment of Recent 

Changes to the Wetland Permitting Process, 42 Natural Resources J. 59, 74-76 (2002). 

“[O]ver $1.7 billion is spent each year by the private and public sectors obtaining 

wetlands permits.” Id., at 81. These costs cannot be avoided, because the Clean Water 

Act “impose[s] criminal liability,” as well as steep civil fines, “on a broad range of 

ordinary industrial and commercial activities.” **2215 Hanousek v. United States, 528 

U.S. 1102, 1103, 120 S.Ct. 860, 145 L.Ed.2d 710 (2000) (THOMAS, J., dissenting from 
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denial of certiorari). In this litigation, for example, for backfilling his own wet fields, Mr. 

Rapanos faced 63 months in prison and hundreds of thousands of dollars in criminal and 

civil fines. See United States v. Rapanos, 235 F.3d 256, 260 (C.A.6 2000).141

Basically the rule is intended to eliminate the determination process that would require 

the agency to demonstrate a clear showing of jurisdiction. The Association does not 

believe that convenience to the agency, what is easiest and least costly to EPA, should be 

driving what is jurisdictional and what is not. (p. 7-8)

Agency Response: See Summary Response under this topic (Section 404), as well 

as Topics 11 (Costs/Benefits), 11.2 (Scope of Change of Jurisdiction), and 11.4 

(Other CWA Programs). See also the Technical Support Document, Section I.

State of Wyoming (Doc. #14584)

11.2.210 Under the proposed definitions of waters of the United States, specifically those 

related to tributaries and the "watershed," the Agencies would become responsible for 

significantly more Section 404 permitting. Additional resources will be required to 

complete requisite environmental analysis under the National Environmental Policy Act. 

The cost for those in business and the economic effects of delayed permitting would be 

staggering. (p. 6-7)

Agency Response: See Agencies’ Summary Responses under Topic 11.2 (Change 

of Scope of Jurisdiction) and Topic 11.3 (Section 404).

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

11.2.211 Within the Section 404 program, the analysis estimates the increase in the 

compensatory mitigation costs using a range of state-specific unit costs of mitigation. 

According to Exhibit 31 in Appendix A of the analysis, the range of unit costs per linear 

foot of stream mitigation for Tennessee is $50-$125. 105 The Tennessee Stream

Mitigation Program, the in-lieu fee stream mitigation program, currently charges $240 

per linear foot of stream for mitigation. Therefore, it appears the range of costs utilized 

for the analysis in this context may be outdated and inaccurate. The state agencies 

recommend EPA and the Corps revise the economic analysis to include accurate and 

updated cost information for mitigation costs. (p. 30)

Agency Response: See Agencies’ Summary Response under Topic 11.3.1 (Costs)

and the Economic Analysis for the final rule.

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

11.2.212 After conducting the alternatives analysis and complying with 

avoidance/minimization criteria, the applicant may be required to provide compensatory 

 

141 Rapanos v. United States, 547 U.S. 715, 720-22 (2006)
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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mitigation to “offset environmental losses resulting from unavoidable impacts to waters 

of the United States...” (Section 230.93(a), 40 CFR, Part 230). The 2008 Compensatory 

Mitigation Rule, as published in the Federal Register on April 10, 2008 (Vol. 73, No. 70), 

provides a preference hierarchy for proposed mitigation activities, with the use of 

mitigation bank credits established as the preferred mitigation alternative. The number of 

mitigation credits for proposed impacts can be determined using the Uniform Mitigation 

Assessment Method (UMAM).

The analyses completed for Watershed A and Watershed B in Sections 2.2.1 and 2.2.2 of 

this report projected an expansion of wetlands jurisdiction to include approximately 813.9 

acres and 763.4 acres of potentially isolated wetlands, respectively. The cost of 

mitigation bank credits in Florida ranges from $100,000 to $180,000 per credit, 

depending on the region. Based on this assumed range of costs and application of the 

UMAM using a conservative functional loss delta of 0.5:

 In Watershed A, if 10% (81.39 acres) of the newly captured wetlands were to 

undergo permitting under Section 404 of the CWA for the placement of dredged 

or fill material, the estimated number of mitigation credits needed would be 

40.695, and the associated cost would range from $4,069,500 to $7,325,100.

 In Watershed B, if 10% (76.34 acres) of the newly captured wetlands were to 

undergo the same permitting process, the estimated number of mitigation credits 

needed would be 38.17, and the associated cost would range from $3,817,000 to 

$6,870,600.

These potential mitigation costs would be in addition to expenses related to the 

alternatives analysis and minimization steps of the permitting process. (p. 50)

Agency Response: See Summary Responses under Topic 11.3 (Section 404), as 

well as Topics 11.3.1 and 11.3.2 (Costs/Benefits).

Mesa County Board of County Commissioners (Doc. #12713)

11.2.213 Maintenance of Roadside Ditches and Tributaries: For Mesa County to maintain 

roadside ditches and tributaries under the proposed rule, Mesa County would be required 

to obtain a 404 permit from the USACE for maintenance. The proposed rule and the 

resulting increased permitting will increase time and cost for Mesa County to conduct 

routine public safety maintenance projects on ditches, and carry out routine water quality 

and detention flood control pond maintenance. (p. 4)

Agency Response: See Agencies’ Summary Responses under Topic 11.2 (Change 

of Scope of Jurisdiction) and Topic 11.3 (Section 404).

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

11.2.214 According to the Waters Advocacy Coalition, private and public sectors spend 

$1.7 billion a year to obtain Section 404 permits. The timeline to obtain a 404 permit 
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through the Corps takes an estimated 788 days, with an average cost of over $271,000, 

excluding additional expenses such as mitigation. Expanding jurisdiction will cause 

delays and increase construction costs. Expanding federal authority over water and land 

use will increase the number of projects required to obtain a federal clean water act 

permit. The expanded federal permitting process will slow economic growth by 

increasing the cost of and delay necessary improvements to the public and private 

infrastructure that forms the foundation of our nation’s economy, such as: highways, 

bridges, airports, schools, and drinking and waste water facilities. In addition to increased 

permitting costs, the cost of implementing expansion of the 404 section will 

unnecessarily increase the federal government budget. (p. 3)

Agency Response: See Agencies’ Summary Responses under Topic 11.2 (Change 

of Scope of Jurisdiction) and Topic 11.3 (Section 404).

Golf Course Superintendent’s Association of America, et al. (Doc. #14902)

11.2.215 Section 404 allows the Corps to issue permits for discharges of “dredge and fill” 

material into WOTUS. Golf course development and renovation/expansion processes will 

require additional time-consuming and expensive hydrologic evaluations/hydrologic 

studies, wetlands delineations, stream assessments, project design, etc. and more 404 

permitting by the Corps and EPA and state equivalents. More permits may be needed for 

the design and construction of channelized areas, drainage, landscape features (wetlands), 

grassy bioswales, construction of bridges, culverts, etc.

Regarding the maintenance of golf courses, 404 permits are necessary for discharges that 

would result from moving soil, dredging ponds/wetlands, and fixing stream alignments or 

banks below the ordinary high water mark including rip rap for erosion protection. 

Expansion of the definition of WOTUS would require federal permits for activities 

including erosion control (rock and vegetation, grading and fill activities), planting trees 

and drainage maintenance.

If the proposed WOTUS definition is adopted, proposed golf course construction or 

renovation projects within jurisdictional areas now may require more individual, regional 

or nationwide Section 404 permits. The rule would give much greater authority for the 

federal government rather than the state to approve or deny these projects. 404 permits 

would be expanded to include ephemeral streams and other areas that are currently not 

under the jurisdiction of the CWA.

With the proposed changes to the rule, the time and costs involved in the development of 

a new or renovated golf course will expand greatly for a number of reasons. There will be 

a substantial increase in the administration time and cost to navigate a more complex and 

uncertain permit review and approval process. Design constraints will increase 

significantly as will mitigation requirements and costs necessitated by expanded 

jurisdiction of the CWA. Fewer projects would qualify for nationwide and general 

permits resulting in increased utilization of the individual permit process involving much 

more time and expense. With the jurisdiction of the CWA being greatly expanded to 
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cover such areas as man-made ditches, developing new golf course or other outdoor 

recreational facilities, as well as the renovation or updating of existing golf courses and 

other facilities, will be severely impacted in the future. (p. 9)

Agency Response: See Agencies’ Summary Responses under Topic 11.2 (Change 

of Scope of Jurisdiction) and Topics 11.3, 11.3.1 and 11.3.2 (Section 404, Costs, 

Benefits).

Coalition of Local Governments (Doc. #15516)

11.2.216 As was discussed supra Section V, the increased costs for having to obtain 

Section 404 permitting and the costs associated with permitting delays will significantly 

impact the agriculture, oil and gas, and renewable energy industries. It will have an 

adverse impact on the local governments in Wyoming as the Counties’ economies 

heavily rely on these industries. The local governments will also see increased costs 

associated with routine road maintenance or upgrades due to the inclusion of roadside 

drainage ditches as waters of the United States.

The EPA and Corps have issued thousands of permits annually for activities that may 

impact the “waters of the United States,” and with the Proposed Rule’s new definition, 

the amount of permits required will only increase and lead to more delays. This will also 

cause an increase in costs for the federal agencies in “responding to additional requests 

for jurisdictional determinations; an overall increase in workload-related tasks such as 

permit actions, consultations, and compliance and enforcement actions; and additional 

time to conduct significant nexus analyses.” Economic Analysis, at 18. They will further 

see an added cost from compliance oversight for the additional permits that may be 

issued under the new rules. Id. Despite the EPA and Corps coming to these conclusions 

in the Economic Analysis, the Proposed Rule states that there will be reduced confusion 

and transaction costs for the regulated community and the agencies. 79 Fed. Reg. at 

22192, 22198. These administrative costs associated with the Proposed Rule cannot be 

dismissed because it would require an increase in the federal agencies’ budget to 

maintain or enhance permitting efficiency. See Economic Analysis at 19. (p. 21-22)

Agency Response: See Agencies’ Summary Responses under Topic 11.2 (Change 

of Scope of Jurisdiction) and Topics 11.3, 11.3.1 and 11.3.2 (Section 404, Costs, 

Benefits).

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

11.2.217 Additionally, the potential effect of the proposed rule directly conflicts with the 

Administration's stated commitment to expedite infrastructure projects. Due to 

Louisiana's topography, more section 404 (the 'dredge and fill' permit) permits will be 

required. Section 404 permits are federal "actions" that trigger additional companion 

statutory reviews by agencies, other than the state permitting agency, including (but not 

limited to) reviews under the Endangered Species Act, the National Historic Preservation 

Act, and the National Environmental Policy Act. Longer permit preparation and review 
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times, when combined with the higher costs associated with additional reviews, would 

place both large and small businesses alike in a financially disastrous situation, as they 

will lead to higher costs overall and greater risks that can ultimately jeopardize the 

viability of a project. (p. 1-2)

Agency Response: See Summary Responses under Topic 11.3 (Section 404), as 

well as Topics 11.3.1 and 11.3.2 (Costs/Benefits).

Water Advocacy Coalition (Doc. #17921.15)

11.2.218 IV. Errors with EPA’s Incremental Cost Calculations

A. SECTION 404

EPA’s analysis calculates the costs of the proposed definitional change for several CWA 

regulatory programs, but emphasizes costs associated with section 404. Since many 404 

permits are issued for development near wetlands and small streams, the systematic 

inclusion of these waters in the CWA is expected to increase costs to developers and 

administrative entities. Authors of EPA’s analysis recognize four categories of costs 

associated with section 404 compliance. These include: permit application costs; 

compensatory mitigation costs; permitting time costs; and impact avoidance and 

minimization costs. Due to information constraints, the report quantifies only the first two 

types of costs.

Section 404 permit application costs are calculated by taking the number of individual 

and general section 404 permits that were issued in FY 2009/2010 and determining how 

many more would be issued under the new rule (2.7%).142 These additional permits are 

multiplied by the average geographic impact per permit to determine how many 

additional acres would be impacted under the revised definition.143 This incremental 

acreage of newly jurisdictional waters is multiplied by two different estimates of per-acre 

costs; a 1999 Corps review of permitting costs for “typical” projects up to three acres in 

size and a study by Sunding and Zilberman in 2000 that synthesized internal estimates of 

permitting costs from a sample of public and private developers. These calculations are 

summarized in Table 3.

 

142 Information about section 404 permits comes from the Corps’ ORM2 database.

143 Average impact per added permit reflects an average of permanent impacts from projects in FY2010 and 

excludes temporary impacts, ecological restoration and conversion activities.
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Table 3. Derivation of Permit Application Costs

The distinction between individual and general permits is important for the purpose of 

evaluating the cost of a definitional change. Individual permits are required for activities 

that are expected to have significant impacts on a nearby water body. General permits are 

issued for projects that will have minimally adverse effects and fit within specific 

categories (i.e., bank stabilization projects, hydropower projects, etc.). The EPA analysis 

ignores any potential changes to the distribution of individual and general permits. The 

addition of jurisdictional waters could force a restructuring in the permitting system 

where projects that were previously eligible for general permits must apply for individual 

permits. These changes would have notable implications to the overall cost of the 

definitional change, but they are omitted from the analysis.

The EPA analysis also ignores the heterogeneity in impacted acreage within these two 

categories. Instead, they calculate an average for each type of permit that provides a 

single estimate of project size. This estimate is derived from FY 2009/2010 ORM2 data 

and suffers from the same sampling limitations discussed above. Since projects 

developed during this period were likely smaller (in additional to less numerous), this has 

the effect of compounding the underestimation of project costs. To illustrate the 

implications of this methodology, suppose the incremental increase estimates are 

“updated” by increasing the number of new permits by 24% and the average size of 

impacts by 10%.144 The incremental acreage estimates would be 36% higher (1,812 

acres), with associated costs ranging from $24.5 million to $68.0 million (a 24-28% 

increase from EPA estimates). While this methodology still suffers from important 

shortcomings, this exercise reveals how sensitive section 404 permitting costs are to 

issues of sampling bias.

 

144 As discussed above, construction spending at the end of 2010 was 24% below spending at the end of 2008. A 

10% increase in project size is a reasonable adjustment to account for the use of FY 2009/2010 data in cost 

estimations.
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EPA’s analysis of section 404 permit application costs suffers from several additional 

deficiencies. The data on permitting costs from the Sunding and Zilberman study are 

nearly 20 years old and are not adjusted for inflation or any other changes in the permit 

system. Thus, they likely underestimate the present cost of the permitting process. This 

underestimation is enhanced by the exclusion of other costs addressed in the Sunding and 

Zilberman study. Specifically, the EPA analysis ignores the costs of avoidance and delay, 

which are likely to dominate the out-of-pocket expenses for permit application and 

mitigation. The study suggests that general permits cost $28,915 and take an average of 

313 days to complete, and individual permits cost $271,596 and take an average of 788 

days to complete, not counting the costs of mitigation or design changes.145 These delay 

estimates are likely to be larger if the influx of new permits is not offset by additional 

staff and infrastructure for processing. Delays and forced design changes stifle economic 

output and may prevent businesses from functioning at their full potential. Thus, the 

Sunding and Zilberman study is misused in the EPA analysis to generate upper bound 

estimates that markedly underestimate the cost of section 404 permitting.

The incremental costs of compensatory mitigation were calculated by taking the amount 

of wetland and stream mitigation that occurred in each state during FY 2010 and 

multiplying by EPA’s expected 2.7% growth in the acreage of jurisdictional waters. This 

incremental mitigation requirement is multiplied by an average unit cost for mitigation (a 

weighted average across all states) to get an estimate of the annual costs of compensatory 

mitigation. These calculations are summarized in Table 4. 

Table 4. Derivation of Compensatory Mitigation Costs

The EPA analysis derives estimates for the amount of mitigation using methods discussed 

in their 2011 economic analysis.146 It assumes that all non-jurisdictional streams would 

become jurisdictional, requiring 49,075 feet (9.3 miles) of mitigation. The 2011 estimate 

of incremental wetland mitigation where all non-“other” waters are jurisdictional and 

17% of “other” waters are jurisdictional (the same assumptions adopted in the current 

EPA analysis) is 2,517 acres. This value is more than 23% higher than the estimate 

 

145 Sunding and Zilberman, 2002. The Economics of Environmental Regulation by Licensing: An Assessment of 

Recent Changes to the Wetland Permitting Process , 42 Natural Resources Journal 59, pp 74-76.

146 EPA 2011. Potential Indirect Economic Impacts and Benefits Associated with Guidance Clarifying the Scope of 

Clean Water Act Jurisdiction.
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provided in Table 5. This discrepancy results from different estimations of baseline 

mitigation in the two analyses.147 Despite this difference, EPA suggests the current 

estimate “is consistent with the level of mitigation the Corps has estimated for the past 

10-15 years” and provides no justification of the discrepancy. For reasons discussed 

above, this is likely to underestimate the extent of mitigation in a “normal” year. 

The unit costs of mitigation also do not match 2011 EPA estimates. The weighted 

average utilized in the current analysis relies on state-level unit costs that are 

systematically lower than previously published. Table 5 provides a sample of these 

discrepancies for the first 10 states (listed alphabetically). While the lower bound 

estimates are the same between the two analyses, the upper bound estimates are 

depressed in the 2014 analysis. There is no discussion of these differences. If the higher 

estimates are accurate, this creates a strong downward bias of mitigation cost estimates in 

the 2014 analysis. Even if the lower estimates are more accurate, the exclusion of proper 

documentation and explanation is troublesome and reduces the validity of the current 

analysis.

Table 5. Discrepancies Between EPA Estimates for Unit Costs of Mitigation

EPA estimates administrative costs associated with a rule change to be between $7.4 and 

$11.2 million annually. This calculation is based on a 2.7% increase in the number of 

employee hours needed to make jurisdictional determinations, process permits, consult 

with various stakeholders, generate environmental impact statements, ensure program 

compliance, and enforce permit regulations. Additionally, EPA suggests that additional 

 

147 The 2014 analysis suggests there were approximately 32,500 acres of permittee-responsible mitigation 

documented in ORM2 records, 8,200 acres of bank mitigation documented in the Regional Internet Bank 

Information Tracking System (RIBITS) database, and 2,200 acres of in-lieu fee (ILF) mitigation in FY 2010 

(Description to Exhibit 7). The 2011 analysis suggests there were approximately 44,000 acres of permitteeresponsible mitigation, 7,000 acres of bank mitigation, and 2,000 acres of ILF mitigation in FY 2010 (EPA 2011, 

footnote 3).
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permit applications may require increased consultation with other agencies (to comply 

with the Endangered Species Act and other statutes). This would increase costs to these 

agencies and drive up the price tag of a definitional change. These costs are omitted from 

this analysis. (p. 65-69)

Agency Response: See Agencies’ Summary Response under Topic 11.3.1 (Costs)

and the Economic Analysis for the final rule.

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

11.2.219 The agencies understate the potential costs associated with the proposed rule, both 

by underestimating the number of additional permits that will be required and by 

underestimating Section 404 permitting and mitigation costs. A review of approved 

jurisdictional delineations completed in Arizona in 2013 and 2014 indicate that nearly all 

(12 of 13) of those delineations dealing with ephemeral washes possessing an OHWM 

found no significant nexus to a TNW. This suggests that the agencies’ estimate that the 

proposed rule will only result in a 3% increase in regulated activity may be a significant 

underestimation of the impact the proposed rule would have if adopted. (p. 8)

Agency Response: The rule definition of “tributary” requires that flow must be of 

sufficient volume, frequency, and duration to create the physical characteristics of 

bed and banks and an ordinary high water mark. If a water lacks sufficient flow to 

create such characteristics, it is not considered “tributary” under this rule. While 

some commenters expressed concern that a feature that flowed very infrequently 

could meet the proposed definition of “tributary,” it is the agencies’ judgment that 

such a feature is not a tributary under the rule because it would not form the 

physical indicators required under the definitions of “ordinary high water mark” 

and “tributary.” To further emphasize this point, the rule expressly indicates in 

paragraph (b) that ephemeral reaches that do not meet the definition of tributary 

are not “waters of the United States.” See Agencies’ Summary Response under 

Topic 11.3.1 (Costs) and see Tributaries Compendium.

Associated General Contractors of America (Doc. #14602)

11.2.220 Despite repeated assurances from the agencies that the proposal is merely a nonsubstantive definitional change, in reality the proposal would make it nearly impossible 

for AGC members to develop public or private land containing drainage ditches, 

stormwater control basins, ponds, or other isolated water features (that are arguably 

subject to the rule’s expansive jurisdictional reach) without first obtaining a costly federal 

CWA permit. This would amount to an expansion of federal jurisdiction that would add 

new layers of federal requirements to construction activities nationwide.

Under Section 404’s current framework, securing individual (as opposed to nationwide or 

programmatic) permit coverage typically takes at least a year and costs hundreds of 

thousands of dollars. Such direct and indirect costs include the need to hire expert 

technical consultants and often lawyers to prepare permits or plans; construction delays; 
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restrictions on land use; the cost of complying with permitting requirements, including 

mitigation, monitoring, and maintenance; insurance and bonding; and the risk of huge 

fines and penalties for noncompliance. The current 404 program also imposes certain 

avoidance, minimization, and mitigation requirements. In addition, the act of applying for 

permit coverage triggers mandatory consultation with multiple state and federal agencies 

under, for example, the National Environmental Policy Act, the Endangered Species Act, 

and the National Historic Preservation Act.

The agencies have not fully accounted for theses and other real-world costs and burdens 

that the proposal would impose on state and local governments, businesses, and 

American consumers. It is a critical error in this rulemaking that EPA has not provided 

any meaningful analysis of the unavoidable impacts this proposal would have on CWA 

programs other than the Section 404 program. In fact, the economic analysis 

accompanying the proposal downplays non-404 impacts, concluding that only an 

artificially small increase in jurisdictional waters will occur.148 Many questions remain 

about the definitions and ambiguous exclusions used in the proposal and the impacts to 

most CWA programs, leaving these to become known only after the proposed rule is 

finalized and implementation begins. (p. 3)

Agency Response: EPA and the Corps have used stakeholder input received 

during public outreach events during the public comment period in combination 

with the written comments received during the public comment period to modify the 

terms and the definitions included in the final rule, ultimately with the goal of 

providing increased clarity for regulators, stakeholders, and the regulated public to 

assist them in identifying waters as “waters of the United States.” 

See Agencies’ Summary Response under Topic 11.3.1 (Costs)

Lehigh Hanson, Inc. (Doc. #15781)

11.2.221 Lehigh Hanson strongly believes that this proposed rule if finalized as is will 

impose significant time delays and costs to many of our operations in the U.S. that we 

believe far exceeds the environmental benefits.

Costs for 404 permitting range widely based on the complexity and size of the site. 

Consulting and permit application expenses can range from $50K to $350K depending 

upon the specific project needs. We anticipate significantly increased uncertainty 

regarding wetland interpretation which, therefore, will increase the need for consulting 

 

148 See EPA’s September 2013 “Economic Analysis of Proposed Revised Definition of Waters of the United States” 

(EPA’s analysis relies on a flawed methodology for estimating the extent of newly-jurisdictional waters that 

systematically underestimates the incremental wetland acreage that will be impacted, excludes several important 

types of costs, and uses a flawed benefits transfer methodology.) Construction projects often avoid wetlands and 

waters during construction. During pipeline construction, in particular, companies will construct and add length to 

pipelines to avoid these regulated areas. EPA’s economic analysis does not capture any costs for avoidance, which 

occurs quite frequently.
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expertise to support the permitting process. Permitting expenses would be expected to 

rise by 25% to 50% just for wetland projects. This estimate does not include intangibles 

that typically arise outside of the regulatory process in wetland mitigations, such as those 

brought by community or other special interests.

While it is difficult to prepare a definitive estimate of overall surface wetland impacts, we 

can provide a few select examples. In the development of a limestone deposit in the 

midwest, we were required to mitigate 1.84 acres of jurisdictional wetlands with a 4:1 

replacement ratio. The cost to mitigate in a relatively favorable watershed was 

$151K/acre. A comparable wetland area on the west coast cost $392K/acre to mitigate in 

2013. These examples are relatively small acreage mitigation projects with significant 

costs under the current regulations. With the significant expansion of jurisdictional 

delineation under the proposed rule we will need significantly larger offsetting parcels 

against a limited or dwindling supply of available credits. In many counties, offsets 

would not be available or would need to be purchased and constructed at considerable 

expense. We estimate a 33% increase in cost for the midwest example between 2012 and 

today. Unit rates on the west coast parcel would be 18% higher in 2014 than 2013.

An increase in the need for 404 permits could trigger a greater number of 106 Review 

Actions to solicit input about endangered species and cultural resources. Each 404 Permit 

requires a review of cultural resources with an approximate cost of $6,000 and 

confirmation from the appropriate state agency. This typically adds at least 3 months to a 

permitting process if there are no adverse findings.

Findings under the Endangered Species Act (ESA) requiring approval from U:S Fish and 

Wildlife Service (USFWS) also will greatly affect costs and timing. For example, an 

ongoing study of habitat conservation regarding a wetland species in metro Chicago has 

suspended our ability to mine 38 million tons of previously permitted surface limestone 

reserves. Consulting costs have reached $l.4M over a 3 year period. Regulatory agencies 

USFWS, EPA, Corps, Illinois Environmental Protection Agency and Illinois Department 

of Natural Resources) cannot provide a definitive pathway for mitigation approval as 

wetland preservation is based upon a hydrological model which is so complex that 

consultants struggle to provide a clear cause and effect explanation for model variations. 

The lack of clarity of jurisdictional leadership and coordination will add tremendous 

expense and time to sites requiring 106 Reviews.

Finally, we believe that the proposed rule could actually have a net negative effect on 

environment and safety. In certain cases, primarily related to sand and gravel sites, 

reclamation could be substantially impacted. Many sand and gravel deposits mined by 

suction or ladder dredges are converted to ponds, lakes etc. at the end of the mine life. If 

these structures are considered jurisdictional, it could prevent the development of future 

uses for parks, flood control, water reservoirs, recreational or residential purposes. Most 

''waters'' created through mining and reclamation could be subject to development 

restrictions to the detriment of local communities and the mine operator.
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For the reasons stated above, Lehigh Hanson respectfully requests that the EPA and 

Corps consider these negative impacts to our operations. We recommend that the 

proposed rule be withdrawn and the agencies re-propose a rule which is clear, legally 

valid within the objectives of the Clean Water Act and court decisions, and does not 

impose an undue economic burden on our company and industry. (p. 5-6)

Agency Response: The rule is narrower in jurisdiction than existing regulations 

and historical practice. See Technical Support Document I.B. See Agencies’ 

Summary Responses under Topic 11.3.1 (Costs) and Topic 14.1.

National Association of Home Builders (Doc. #19540)

11.2.222 The picture becomes more stark when considering the time and cost it takes to 

obtain a CWA Section 404 permit. A 2002 study found that it takes an average of 788 

days and $271,596 to obtain an individual permit and 313 days and $28,915 for a 

“streamlined” nationwide permit. Over $1.7 billion is spent each year by the private and 

public sectors obtaining wetlands permits.149 Importantly, these ranges do not take into 

account the cost of mitigation, which can be exorbitant, ranging from an estimated 

$24,989 to $49,207 per acre nationwide.150 Perhaps even more costly, however, can be 

the act of discharging dredge or fill material (knowingly or not) into a water of the United 

States without a Section 404 permit.151 When considering these excesses and risk of noncompliance, it becomes clear that there needs to be a necessary balance between 

protecting the nation’s water resources and allowing citizens to build and develop their 

land.

Construction projects rely on efficient, timely, and consistent permitting procedures and 

review processes under the CWA programs and others. Builders and developers are 

generally ill-equipped to make their own jurisdictional determinations and must hire

outside consultants to secure necessary permits and approvals. This requires time and 

money. Delays often lead to greater risks and higher costs, which many developers would 

rather avoid given tight budgets and timeframes. Onerous permitting liabilities could 

delay or eventually kill a real estate deal, infrastructure upgrade, or construction of a new 

school or town hall. If the proposed rule is finalized in its current form, the ability to sell, 

build, expand, or retrofit structures and properties will suffer notable setbacks, including 

added cost and delays for development and investment.

Oftentimes, home builders will be at the mercy of the Agencies. Builders will have to 

request a jurisdictional determination from the Corps to ensure they are not disturbing 

 

149 Sunding and Zilberman Economics of Environmental Regulations at 81.

150 EPA Economic Analysis at 12.

151 See, e.g., Sackett v. U.S. EPA, 566 U.S. __, 132 S.Ct. 994 (2012) (property owner who planned to build a home 

and cleared land received a Compliance Order from EPA asserting that the property was jurisdictional wetlands in 

which the owner had placed illegal fill material. The property owner was ordered to restore the site to its original 

condition and pay up to $75,000 per day for the illegal discharge of pollution).
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land near an aggregated water. Consequently, an increase in the number of jurisdictional 

determination requests, across all industries, will result in greater permitting delays as the 

Agencies are flooded with paperwork.

In addition, many federal statutes tie their approval/consultation requirements to those of 

the CWA, i.e. if one has to obtain a CWA permit, he/she must also obtain other permits. 

If more areas are considered jurisdictional, more CWA permits will be required. More 

federal permitting actions will trigger additional statutory reviews – by agencies other 

than the permitting agency – under laws including the Endangered Species Act and 

National Historic Preservation Act (see Section VII. d.). Project proponents do not have a 

seat at the table during these additional reviews, nor are consulting agencies bound by a 

specific time limit. Lengthened permitting times will include an increased number of 

meetings, formal and informal hearings, and appeals. These federal consultations are just 

another layer of red tape that the federal government has placed on small businesses and 

it is doubtful the Agencies will be equipped to handle this inflow. (p. 138-139)

Agency Response: See Summary Responses under Topic 11.3 (Section 404), as 

well as Topics 11.3.1 and 11.3.2 (Costs/Benefits).

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

11.2.223 (2) Result in increased costs of the CWA section 404 permitting process, 

including the costs of mitigation--

 A Virginia operator stated, "The rule will cause more areas to be identified as 

wetlands and streams and a corresponding increase in mitigation costs. In 

Virginia, we pay roughly $500 a foot for stream mitigation and $50,000 - $60,000 

for an acre of wetlands mitigation. As an example, a recent permit had 4.5 acres 

of wetlands impacts and 6000 feet of stream impact. If the new rule increased 

these values by 25% then mitigation cost would have increased $800,000."

 An Indiana operator provided an example noting that, "in the development of a 

limestone deposit in Southern Indiana, we were required to mitigate 1.84 acres of 

jurisdictional wetlands with a 4:1 replacement ratio. The cost to mitigate in 

relatively favorable watershed was $151k/acres. With the significant expansion of 

jurisdictional delineation, we will need significantly larger offsetting parcels 

against a limited or dwindling supply of available credits...We estimate a 33% 

increase in cost for the Southern Indiana example between 2012 and today..." (p. 

42-43)

Agency Response: See Summary Responses under Topic 11.3 (Section 404), as 

well as Topics 11.3.1 and 11.3.2 (Costs/Benefits).

The Mosaic Company (Doc. #14640)

11.2.224 A. Section 404 Permitting Program
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With the expanded definition of "waters of the U.S.," there will be increased section 404 

permitting requirements. Section 404 requires a permit for the discharge of dredge or fill 

material into "waters of the U.S." 33 U.S.C. 9 1344. Although features such as 

agricultural ditches and isolated wetlands have not been considered jurisdictional in the 

past, they would now likely be deemed "waters of the U.S." under the proposed rule. Any 

mining, maintenance, development, or reclamation activities in these areas involving 

dredge or fill would now require Mosaic to go through the costly and lengthy section 404 

permit process. This would make operations more costly and could potentially make 

certain projects cost-prohibitive. See also Section 3.1 of the Economic Technical Report 

(Appendix A) for additional comments on implications of the proposed rule to the 

Section 404 permitting program. (p. 29)

Agency Response: See Summary Responses under Topic 11.3 (Section 404), as 

well as Topics 11.3.1 and 11.3.2 (Costs/Benefits).

11.2.225 3 Costs

The EPA Study estimates that the total costs associated with the proposed rule could 

range between $133.7 and $231.0 million annually. Compliance with Section 404 under 

the proposed CWA jurisdiction accounts for over two-thirds of the total estimated costs 

in the EPA study. Consequently if the projected increase in jurisdictional acreage caused 

the by proposed rule change is too low, the resulting additional costs will be too low as 

well. In the following sections we describe our concerns with the EPA Study’s approach 

to estimating Section 404 and 402 compliance costs, and highlight important aspects of 

costs that have been omitted, including socioeconomic costs, costs incurred by the private 

sector, costs incurred by taxpayers, and potential impacts on the prices and availability of 

mitigation credits. (p. 45)

Agency Response: See Summary Responses under Topic 11.3 (Section 404), as 

well as Topics 11.3.1 and 11.3.2 (Costs/Benefits).

11.2.226 3.1 Section 404

Section 404 of the CWA requires project proponents to obtain permits for activities 

involving the dredge and fill of jurisdictional wetlands and waterbodies. In the first step 

of the permitting process, projects may require alteration or redesign to avoid and 

minimize impact to jurisdictional waters. Upon completion of this exercise, permit 

approval will be conditional upon compensatory mitigation for unavoidable jurisdictional 

impacts. Mitigation can be accomplished by purchasing credits from third-parties, 

through permittee developed mitigation plans, or in-lieu fee payments.152

To yield a proper cost estimate for wetlands under the Section 404 program, four (4) 

factors must be considered: 1) financial and opportunity costs associated with delays in 

 

152 The EPA’s 2008 Compensatory Mitigation Rule encourages use of mitigation banks and in-lieu fee payments.
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project implementation due to permit processing time or project redesigns required to 

avoid or minimize a project’s impact on jurisdictional waters, 2) an assessment as to 

whether the incremental increase in permits due to the proposed rule are more likely to be 

Individual or General permits, 3) a projection of impacted acreage for each state or region 

is needed for reliable total cost estimates given regional variation in mitigation credit 

prices, and 4) compensatory mitigation cost estimates must use representative credit 

prices and costs associated with permittee-responsible mitigation. (p. 45)

Agency Response: See Agencies’ Summary Response under Topic 11.3.1 (Costs).

11.2.227 3.1.1 EPA Omits Important Components of Section 404 Compliance Costs

In its estimate of permit application and compensatory mitigation costs, the EPA Study 

omits financial and opportunity costs associated with project delays due to permit 

processing time, and reductions in project scale necessary to achieve avoidance and 

minimization requirements. A lack of a “defensible, ready basis for estimating these 

costs”, is cited as the reason for excluding them, even while acknowledging they can be 

significant. (EPA Study, p. 14).

Depending on the nature of the development activity, delays in permit processing can 

have significant impacts on economic returns. For example, a single-family housing 

project delay could mean higher prices or interest rates to prospective buyers, which in 

turn can affect demand, the price the market will bear, and ultimately the return to the 

developer. Further, changes in the scale of an operation required to minimize or avoid 

impacts, while helping to reduce the cost of compensatory mitigation, could result in lost 

profit or income to the permittee, and potential socioeconomic costs in the form of lost 

jobs and expenditures on goods and services in related industries.

These indirect costs can be significant depending on the permittee’s development project, 

length of the permit delay, and scale of project or operational redesign. Although seeming 

to recognize these facts, the EPA Study does not address if, or to what degree, the 

proposed rule will change the average Section 404 permit processing time, or whether the 

nature of the newly jurisdictional areas will increase the incidence of project redesign. (p. 

45-46)

Agency Response: See Agencies’ Summary Response under Topic 11.3.1 (Costs).

11.2.228 3.1.2 EPA Assumes the Distribution of Individual and General Permits will 

Remain Unchanged

As demonstrated in Exhibit 5 of the EPA Study, the Study projects the incremental 

increase in Section 404 permits and impacted acreage separately for Individual Permits 

(IP) and General Permits (GP). The weighted average of the two permit types then form 

the baseline for the incremental acreage increase resulting from the proposed rule. The 

Study also assumes that the distribution of Section 404 permits between IP and GP will 

remain unchanged under the proposed rule. However, since projects must meet certain 

criteria to qualify for GPs and since the proposed rules will likely increase the total 
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230

wetland acres on any given project, it seems unlikely that the number of projects utilizing 

GPs will remain in the same proportion as in FY 2009/10 as the Study assumes.

While this difference in the assumption sounds benign, it introduces considerable 

uncertainty into the estimates of Section 404 compliance costs. The study by Sunding and 

Zilberman cited by EPA, estimates the cost of IP permit applications as significantly 

higher than GP permit applications (EPA Study, Exhibit 6). Further, the average 

impacted acreage differs significantly between IPs and GPs. IPs, which represent 5 

percent of actual Section 404 permits issued in FY 2009/10, have an average of 12.81 

acres of wetland impact per permit. This compares with 0.28 acres of wetland impact per 

permit for the average GP project. GPs comprised 95 percent of the Section 404 permits 

issued in FY 2009/10. As Table 3-1 illustrates, if the number of IP permits increases from 

5% to 10% under the proposed rule, (using the same wetland impact acreage by permit 

type) the incremental impacted acreage would increase by 60 percent, from 1,332 to 

2,149 acres. In this case, projects would be expected to undergo a proportional increase in 

total estimated costs for Section 404 compliance.

Table 3-1. Implications of the Distribution of Section 404 Permit Types

(p. 46)

Agency Response: See Agencies’ Summary Response under Topic 11.3.1 (Costs).

11.2.229 3.1.3 EPA’s Cost Estimates Don’t Adequately Account for Regional 

Variation in Mitigation Credit Prices

While Exhibit 3-1 of the EPA Study purports to represent estimated incremental wetland 

(acres) and stream (linear feet) mitigation for each state, the estimates are not based on 

the landscape extent and location of isolated waters or industry characteristics of each 

state. Not knowing where impacts to these isolated waters are likely to occur, the EPA 

Study allocates the incremental increase in wetland and stream mitigation to individual 

states in proportion to the number of JDs by state in FY 2009/10, “assuming this serves 

as a proxy for permitting activity in each state” (EPA Study, p.23). Drawbacks to this 

approach include: 1) the global financial crisis had disproportionate impacts on 

development in certain states and 2) the landscape distribution of isolated waters may be 

altogether different than for current jurisdictionals reflected in the ORM2 database 

records for FY 2009/10. The actual incremental mitigation acreage in each state, 

however, is critical for reliably estimating the costs (and benefits) associated with the 
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proposed rule, because the cost of compensatory wetland mitigation varies so 

dramatically across regions and states; from $500 per acre in Alaska to $240,000 per acre 

in New Jersey.

In order to develop an accurate estimate of Section 404 associated costs, EPA would need 

a more accurate estimate of the number and acreage of jurisdictional areas under the 

proposed rule at the state level, rather than at the national level. (p. 46-47)

Agency Response: See Agencies’ Summary Responses under Topic 11.2 (Change 

of Scope of Jurisdiction) and Topic 11.3.1 (costs).

11.2.230 3.1.4 EPA Uses Unrepresentative Mitigation Credit Prices

The EPA Study uses a flat cost per mitigation credit regardless of where a project is 

located within the U.S., which is not likely to accurately represent actual costs. For 

example, it appears that wetland mitigation credit costs in North Carolina range from 

$23,000 to $42,000 per acre (EPA Study Exhibit 31) for non-riparian wetlands. If only 

isolated wetlands become jurisdictional under the proposed rule, this estimate may be 

accurate. However, many wetlands and waterbodies previously identified as isolated and 

non-jurisdictional will fall under the new definitions of “adjacent” and “neighboring”. 

Based on the price of mitigation credits from private banks, compensatory mitigation for 

riparian wetlands in North Carolina can range up to approximately $70,000 (North 

Carolina Department of Environment and Natural Resources 2014). Adjusted for 

inflation to 2010 price levels, for comparability to the EPA Study, this reflects a 50 

percent higher per acre wetland mitigation cost than provided in the EPA Study’s cost 

estimate. (p. 47)

Agency Response: See Agencies’ Summary Response under Topic 11.3.1 (Costs).

11.2.231 3.1.5 EPA’s Estimate of Compensatory Mitigation Ignores Costs Associated 

with Permittee-Responsible Mitigation

While the 2008 Guidance encourages use of mitigation banks and in-lieu fee payments, 

some share of projects may still require permittee-responsible mitigation. Indeed, EPA 

reports that 32,500 of the 43,000 acres of wetland mitigation during FY 2009/10 (80 

percent) were permittee-responsible as opposed to third-party wetland mitigation.153

Where mitigation credits are used, they must be purchased from banks located within the 

same watershed of the project. However, where the demand for credits exceeds the 

available supply,154 if the permittee wishes to proceed with the project as scheduled, 

 

153 Because EPA again relies only on FY 2010 to develop this statistic, it is unclear whether the economic downturn 

resulted in a shift from third-party (bank) to permittee-responsible mitigation. As previously stated, this is something 

EPA can address by examining permitting data prior to the SWANNC and Rapanos decisions

154 As the US economy improves, the incidence and scale of development projects will begin to increase in kind. 

With land values rising, the opportunity cost associated with land in mitigation banks will also increase. These 

forces, coupled with a greater share of development projects requiring mitigation due to the proposed CWA 

jurisdiction, may result in a short-run mitigation credit supply shortage, depending on the specific watershed.
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permittee-responsible mitigation may be the only option. While the EPA Study may have 

focused on the cost of mitigation credits, it cannot ignore the potential for some 

proportion of permittee-responsible mitigation, particularly as the economy improves, 

land values rise, and credits are used up. Direct financial costs of permittee responsible 

plans may be more or less costly than mitigation bank credits depending on the region, 

sophistication of the permittee, site-specific characteristics, and lost opportunity costs. (p. 

47)

Agency Response: See Agencies’ Summary Response under Topic 11.3.1 (Costs).

Continental Resources, Inc. (Doc. #14655)

11.2.232 To the extent that Continental must abandon its use of an NWP based on these 

quantitative and qualitative limits, the company must seek an individual permit. There are 

higher levels of effort required for compiling and submitting an individual Section 404 

permit application. The agencies' Economic Analysis estimates that the mean cost of an 

individual permit application is ten times higher than the costs associated with an NWP, 

Economic Analysis at 16. These costs do not consider the anticipated project delays, in 

terms of time and money: it will take Continental longer to prepare an individual permit 

application (particularly in an uncertain regulatory environment), and it takes the Corps 

of Engineers much longer to process and approve individual permits. (p. 17)

Agency Response: See Agencies’ Summary Response under Topic 11.3.1 (Costs)

American Petroleum Institute (Doc. #15115)

11.2.233 Under the agencies’ 2014 Proposed Rule, this activity would likely constitute a 

discharge of pollutants into a navigable water, for which the company would likely need 

to apply for a Section 404 permit. In some circumstances, a general permit may be 

available (at an average cost of $28,915 and delay of 313 days).155 In others, an 

individual permit may be necessary (at an average cost of $271,596 and delay of 788 

days).

156 Requiring permits for this activity does nothing to promote the objectives of the 

Clean Water Act, but does impose unreasonable costs, delays, and regulatory burdens on 

American economic activity. (p. 8)

Agency Response: See Agencies’ Summary Responses under Topic 11.2 (Change 

of Scope of Jurisdiction) and Topics 11.3, 11.3.1 and 11.3.2 (Section 404, Costs, 

Benefits) and Topic 14.

 

155 Rapanos, 547 U.S. at 721.

156 Id.
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Countrymark Cooperative Holding Corporation, LLC,Countrymark Refining and Logistics, LLC 

(Doc. #16656)

11.2.234 In addition to the impact on CountryMark's oil and gas operations, the Proposed 

Rule would likely impact CountryMark's pipeline operations. Finished petroleum 

products are delivered to customers via pipeline and CountryMark also utilizes crude oil 

gathering pipelines. The delivery of finished petroleum products requires the building, 

operation, and maintenance of pipelines and the rights-of-ways in which they are located. 

The construction, operation, and maintenance of pipelines often require permits under 

section 404 of the CWA for crossing streams or wetland areas. If, however, entire 

floodplains are considered waters of the United States, a new pipeline may in its entirety 

require permits, with ensuing costly permitting and mitigation requirements. These costs 

could reduce or eliminate the economic viability of many projects. (p. 3)

Agency Response: See Agencies’ Summary Response under Topic 11.2 (Change of 

Scope of Jurisdiction).

11.2.235 A. The Proposed Rule's Expansion and Ambiguities Will Add Cost and 

Uncertainty, Without Justification

If the new definition of "waters of the United States" is finalized as proposed, it is 

possible that any land disturbance activity would require a section 404 permit. And, it is 

likely that activities that currently are either exempt or covered by a Nationwide Permit 

will exceed the acreage limit and will require an individual permit.

According to a 2002 study by David Sunding, professor at UC Berkeley, the average 

applicant for an individual permit spends 788 days and $271,596 in completing the 

process, a the average applicant for a nationwide permit spends 313 days and $28,915-not 

counting costs of mitigation or design changes. Sunding & Zilberman, The Economics of 

Environmental Regulation by Licensing: An Assessment of Recent Changes to the 

Wetland Permitting Process, 42 Natural Resources J. 59, 74-76 (2002). Updated to 201 1 

dollars a nationwide permit would cost $35,954 and an individual permit would cost 

$337,577.

The costs and delays that the Proposed Rule would impose are significant. In addition, it 

would seem highly likely that these additional costs and delays would force many small 

producers out of business. Many decisions of small producers are dynamic, shifting, and 

time sensitive. Adding months and years to the permitting process would inhibit and 

prohibit many projects, and the additional cost burdens would likely not be absorbable. 

(p. 9)

Agency Response: The final rule is narrower in scope than existing regulations 

and historical practice. See Agencies’ Summary Response under Topic 11.3.1 

(Costs).
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Pennsylvania Grade Crude Oil Coalition (Doc. #15773)

11.2.236 5. The Proposed Rule's consideration of certain ditches, impoundments and 

storm water ponds as jurisdictional waters would hinder future development and 

increase operational/construction costs, without adding environmental value.

In addition to the conflicts with state law and regulation, the reclassification of certain 

ditches and impoundments as jurisdictional waters under the Proposed Rule, would 

severely limit and delay operations, maintenance and future development. Essentially, 

existing operations would be "fenced in" by jurisdictional waters. If ditches or 

impoundments are considered to be jurisdictional, they could not be modified, cleaned 

out, maintained, or otherwise changed without a Section 404 permit. As a result, under 

the Proposed Rule, either (1) operational processes or timelines would need to be 

modified to assess the presence of jurisdictional waters and conduct subsequent 

permitting, or (2) construction techniques would need to be modified to avoid the 

creation of jurisdictional waters. Construction modifications, such as the installation of 

underground piping around well pads (rather than gravel ditches) would require increased 

material and labor costs. It would also require increased engineering efforts. (p. 8-9)

Agency Response: See Agencies’ Summary Responses under Topic 11.2 (Change 

of Scope of Jurisdiction) and Topic 11.3 (Section 404).

Dominion Resources Services, Inc. (Doc. #16338)

11.2.237 A study referenced in the Supreme Court Rapanos case indicated that an applicant 

will on average spend more than twice as long, 788 days as compared to 313 days, and 

nearly ten times as much money, $271,596 compared to $28,915, obtaining an individual 

permit compared to obtaining a NWP. Our experience confirms these approximate 

relative increases in time and cost. These increases in time and cost could be further 

increased considering the fact that more individual permit processes will stretch the 

Corps’ existing resources. For some of our operations, these costs would be passed on to 

ratepayers under standard utility ratemaking. In summary, the proposed rule would add 

time, costs and otherwise substantially increase regulatory uncertainty associated with 

Section 404 permitting for a variety or our energy infrastructure projects. (p. 4)

Agency Response: See Summary Responses under Topic 11.3 (Section 404), as 

well as Topics 11.3.1 and 11.3.2 (Costs/Benefits).

American Petroleum Institute (Doc. #15115)

11.2.238 3.1.2.1 The Agencies’ analysis of CWA 404 permit applications underestimates 

the number of new permits required and the real cost of these permits.

In the PEA, the estimated 2.7 percent increase in jurisdiction is applied proportionately to 

the number of both individual and general permits issued in 2010 to estimate the 

additional number of permits arising from application of the Proposed Rule.
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The Agencies attempted to evaluate the costs for each type of permit based on 1) phone 

interviews with various personnel; and 2) a survey from Sunding and Zilberman in 

2000.157 The series of phone interviews with permitting consulting firms and Corps 

district regulatory staff demonstrated an average increased cost for a general permit to be 

$13,100 and an individual permit to be $31,400 (both in 2010 dollars). In contrast, the 

Sunding and Zilberman study relied on a survey of permitting costs for 103 nationwide 

permit and individual permit applications. This survey showed an average cost for a 

general permit to be $22,079 plus $12,153 per impacted acre for an average total cost of 

$25,482. Individual permits typically cost $57,280 plus $15,441 per impacted acre, 

leading to an average total cost of $254,979. The Sunding and Zilberman numbers are 

also expressed in 2010 dollars (indexed from a 1999 Consumer Price Index for All Urban 

Consumers (CPI-U) of 166.6 to a 2010 CPI-U of 218.056).24

From the phone interviews and the Sunding and Zilberman survey, the Agencies 

estimated a range of potential costs for each permit type, and applied those costs to the 

estimated increase in number of permits (determined using the total number of permits 

filed in 2010 in the ORM2 database and the estimated 2.7 percent increase). Exhibit 6 

demonstrates the Agencies’ estimates of the total increase in costs from the Proposed 

Rule as a range from $19.8 MM to $52.9 MM.

The Agencies’ analysis also included the additional administrative costs associated with 

the newly increased permitting workload (determined by using man hours and associated 

USACE fully loaded salary rates). Applying the 2.7 percent incremental increase in 404 

permits, the USACE determined their additional administrative costs to be $7.4 to $11.2 

million per year.

The Sunding and Zilberman estimate for individual permits are cost calculations and 

$75,000 - $155,000 for individual permits (see sample cost breakdowns below). These 

estimated costs not only include the preparation and submission of the permit application 

but also the associated field activities and costs necessary to provide information to 

support the permit package (e.g., wetland delineation, biological assessment reports, 

floodplain determination in areas not mapped by FEMA, Section 7 consultations, cultural 

resource survey reports, etc.).

The Agencies’ report considered CWA permitting expenses but made no provision for 

the cultural, historical, and archeological investigations that are also part of the permitting 

process. The CWA 404 permitting process includes USACE consultations with state 

historic preservation offices. A combination of these state and local agencies, with input 

from other stakeholders (e.g., any affected Native American tribes) will direct these 

investigations. The investigations are conducted over numerous phases; consequently, 

 

157 D. Sunding and D. Zilberman. 2000. Analysis of the Army Corps of Engineers’ NWP 26 Replacement Permit 

Proposal. Prepared for the National Association of Counties and the Foundation for Environmental and Economic 

Progress. (January).
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they are time-consuming and expensive. Based on the findings, an additional type of 

Archeological and Historical Compensatory Mitigation may be required. Like wetland or 

stream mitigation, this may involve additional studies of similar sites in the area or other 

project work that benefits local historic preservation efforts, museum displays, etc. If any 

of the above investigations are necessary, the resulting permitting costs would increase 

above the values in Table 3-1, therefore increasing the difference in costs between the 

Agencies’ estimate and real world cost.

Table 3-1 below provides a comparison of cost estimates for the different permit types.

Table 3-1. Comparison of Costs for Permits

An updated total increase in costs cannot be calculated until a more accurate increase in 

jurisdiction is developed than the current Economic Analysis. Moreover, as one analysis 

in the document shows, the additional number of permits may increase faster than the 

increase in jurisdiction (counter to Agencies’ assumptions) and the distribution of 

individual versus general permits is not expected to stay the same.

Since the increase in jurisdictional area is expected to be significantly larger than 

2.7 percent (Section 4) and more permits of both kinds (individual and general) will 

be necessary, ARCADIS believes that the Agencies have grossly underestimated the 

additional 404 permitting costs. In addition, as shown in Section 5.5, complete 

analysis of direct permitting and compliance costs for a project requiring one acre 

of wetland restoration shows that costs may exceed $405,000. (p. 61-63)

Agency Response: See Agencies’ Summary Response under Topic 11.3.1 (Costs).

11.2.239 3.1.2.2 The Agencies’ costs associated with CWA 404 compensatory mitigation 

underestimates the real cost of mitigation through unrealistically low implementation 

costs and limited acres.

The Agencies state that “a portion of the costs to applicants will result from 

compensatory mitigation of wetlands and streams.” Using information from published 

studies and survey results, phone inquiries to USACE Districts and mitigation banks, and 

relevant websites, the Agencies estimated per acre costs for wetland mitigation and per 

linear foot cost for stream mitigation. A team of USACE staff then determined the most 

applicable range of values per state, which the Agencies combined with their estimated 

increase in wetland acres and stream feet to develop the total annual estimated mitigation 

costs of $59.7 million to $113.5 million.
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There are a number of deficiencies with the Agencies’ approach. First, the unit costs 

shown in Appendix A of the PEA do not match the values used in the Agencies’ 2011 

analysis. The 2014 values for the lower bound costs are the same; however, the upper 

bound costs are at times approximately 50 percent below the costs shown in the 2011 

report. This discrepancy should be addressed and explained in the 2014 report. 

Second, there is a discrepancy in the additional number of wetland acres between the 

2011 and 2014 documents. Approximately 20 percent fewer wetland acres are used in the 

mitigation cost estimates for 2011 (2,517) than 2014 (2,042). This difference cannot be 

effectively explained with different baseline mitigation acres (53,000 in the Agencies’ 

2011 document and 43,000 in the 2014 report) because both values are cited to the same 

data sources, fiscal years, and methods.158 The Agencies’ 2014 report even states that “it 

is consistent with the level of mitigation the Corps has estimated over the past 10-15 

years.” If the Agencies truly feel that there has been a consistent level of mitigation over 

the past 15 years, there must be an additional discussion of the 20 percent discrepancy 

between the two reports.

Third, the Agencies’ estimated per acre costs for wetland mitigation (Appendix A: 

Supplemental Cost Analysis Information; Exhibit 31. State-Level Unit Costs for Wetland 

and Stream Mitigation; the Agencies, 2014) in the majority of states are significantly 

lower than real-world mitigation costs. The Agencies’ analysis included an average per 

acre cost ranging from $25,000 to $49,000. Although variability occurs among regions 

and states, ARCADIS recommends a more realistic range of mitigation costs at $100,000

to $150,000 per acre, and in some areas of the United States can reach as much as 

$300,000 per acre depending on demand for the habitat type, the availability of suitable 

mitigation land, the complexity of restoration, and the availability of approved mitigation 

bank credits. A realistic cost estimate must include all of the following:

 Site selection and preparation; 

 Acquisition/propagation of plant materials; 

 Irrigation design and installation; 

 Conservation easement/deed restriction; 

 Maintenance (3 years); 

 

158 The Agencies, 2011 (regarding the 53,000 acres) – based on approximately 44,000 acres of permittee responsible 

mitigation documented in the ORM2 database in FY 2010, approximately 7,000 acres of bank mitigation in the 

RIBITS database for FY2009, and 2000 of in lieu fee mitigation estimated from the ration of ORM2 entries for 

banks (26%) and ILF (7%) in FY 2010. The Agencies, 2014 (regarding the 43,000 acres) – Corps provided a 

baseline assessment of 43,000 acres of wetland mitigation. This estimate is based on approximately 32,500 acres of

permittee responsible bank mitigation documented in ORM2 database for FY2010, approximately 8,200 acres of 

bank mitigation in RIBITS database FY2010, and approximately 2,200 of in-lieu fee mitigation estimated from the 

ratio of ORM2 entries for banks (26%) and ILF (7%) for FY2010.
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 Monitoring (5 years);

 Reporting (5 years).

Fourth, the Agencies’ estimated per linear foot costs for stream mitigation in the majority 

of states are significantly lower than real-world mitigation costs. Similar to wetland 

projects, stream restoration projects frequently benefit from economies of scale, with 

smaller projects costing more per linear foot,159 and stream restoration projects involving 

extensive realignment being more expensive than those solely involving softer 

stabilization activities.160 In some cases, stream restoration costs can be as much as 

approximately $1,000 per linear foot. The Agencies’ analysis included an average per 

acre cost ranging from $200 to $300. Stream restoration project costs include all of those 

activities listed above for wetland mitigation, but also typically involve more complex 

engineering and stakeholder negotiations such as:

 Hydrogeomorphic evaluations;

 Structural bed and bank stability planning and design;

 Negotiations with local planners, land owners, and flood prevention agencies;

 Repair of erosion and/or structural elements following severe weather events.

When individual states are evaluated rather than average values, the Agencies 

underestimated restoration costs for approximately 80 percent of the states with only 10 

of 50 states identified as having even the high-end unit cost per acre for wetland 

restoration exceeding $100,000 (Appendix A, Exhibit 31 of the PEA, 2014).

Again, although these figures provide an indication of underestimates in the economic 

impact analysis for the Proposed Rule, the true increase in mitigation cost cannot be 

estimated until an accurate increase in jurisdiction is developed. What is certain, 

however, is that the overall increase in costs will be significantly larger than those 

currently included in the Agencies analysis. (p. 63-65)

Agency Response: See Agencies’ Summary Response under Topic 11.3.1 (Costs).

11.2.240 4.2 An individual analysis conducted by an API member company indicated 

that the Agencies’ estimate of increased permitting may be low by a factor of 10 or 

more for upstream oil and natural gas well sites.

To better understand the impacts of the Proposed Rule on oil and natural gas activity, one 

of API’s member companies analyzed their own well sites using detailed aquatic resource 

data available from actual, recent jurisdictional determinations with Agency field offices. 

This estimation was carried out independent of API’s geospatial mapping exercise 

 

159 Bonham and Stephenson, 2005 as referenced in the PEA.

160 Blair, 2000 as referenced in the PEA.
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described in the previous section, and will be referred to as the “API Regional Project 

Impact Analysis.”

A realistic baseline for current regulatory practice was established because all sites in this 

data set had received permits.161 Completing a “bottom-up” site-by-site analysis, 

environmental experts compared the amount of impacted jurisdictional waters (in streamfeet or acres of wetlands) that were permitted under current regulations with amounts 

projected to be impacted under the Proposed Rule, and identified the concomitant 

changes to the type of permit needed or its requirements.

Determining the requirements for Section 404 “dredge and fill” permitting is complex. If 

the project proponent can demonstrate only minimal amounts of jurisdictional waters are 

affected, work generally may begin upon notice to the Agencies. However, if impacts 

exceed certain threshold levels, the permit requirements also increase. These threshold 

“trigger” levels vary depending on the type of economic activity (i.e., does the project 

qualify under a Nationwide General Permit) or on the region or State in which the work 

takes place (i.e., does the project qualify for a Regional General Permit).

Figure 4-11 demonstrates that, for this well site, jurisdictional features from the 2008 

Guidance to the Proposed Rule will increase by more than a factor of ten. Two different 

diagrams are shown together on the next page as Figure 4-11, then enhanced separately 

on the following pages. 

 

161 Moreover, the data set provides a robust way to assess possible jurisdictional changes introduced by the Proposed 

Rule. For example, the Agencies may establish that an aquatic resource (water feature) exhibits bed, bank and high 

water mark, but has ephemeral flow and, if it fails a test for significant nexus, is thus non-jurisdictional. It can be 

reliably projected that the water feature in question will change in status to become jurisdictional under the Proposed 

Rule
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Figure 4-11 Well Site Comparison Between 2008 Guidance and Proposed Rule.

A sample well site, analyzed for impacts to waters considered jurisdictional under the 

current regulatory practice (light blue are relatively permanent tributaries, green are 

adjacent wetlands), and including waters considered newly jurisdictional under the 

Proposed Rule (red are non-relatively permanent tributaries and dark green their 

associated adjacent wetlands, purple are adjacent waters under riparian or floodplain 

definitions, and brown are ‘other’ waters, under assumptions that establish a significant 

nexus to jurisdictional waters).
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2008 Guidance. Actual non-arid wellpad/site.
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Proposed Rule. Actual non-arid wellpad/site.

In the example above, as currently permitted, the project intersects 45 linear feet of 

relatively permanent tributary and less than a tenth of an acre of adjacent wetland – it is 

therefore eligible to be permitted in this State under Nationwide Permit 39 for oil and gas 

facilities. Pre-Construction Notice (PCN) is required in this case, which means the project 

developer must provide advance notice to the Agencies of the project and wait up to six 

weeks for their acknowledgement to proceed. No mitigation is required (i.e., no need to 

pay money into a fund to create or restore wetlands in some other location as 

compensation).

The situation changes dramatically under the Proposed Rule (see Fig.4-11). Including 

new classes of water increased the stream length (or acreage) of jurisdictional waters for 

this well site by over a factor of ten, pushing the project far beyond the threshold levels 

under Nationwide Permit 39. (See Figures 5-1 and 5-2 for example photographs of some 

of the actual features from this analysis that are projected to be jurisdictional and thus 

federally-protected under the Proposed Rule.)

This project now requires:
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 An Individual Federal Permit (which has been estimated to take six months to two 

years and cost ten times more than a General Permit); 162

 Mitigation;

 Detailed review material for approval in handling threatened and endangered 

species issues, including but not limited to:

o Consultation with the U.S. Fish and Wildlife Service;

o Coordination with State Historical Preservation Office and tribes for 

protecting cultural resources; and

o A possible further Environmental Impact Assessment or Statement; and

o A potential public comment period.

Note that all these issues must be addressed to some extent under a General Permit as 

well, but the level of formal confirmation and documentation is significantly higher under 

the Individual Permit regime.

To maintain consistency with the simplified treatment of permits in the Agencies’ 

Economic Analysis, this analysis considered only two types of permits: 1) programmatic 

general permits with pre-construction notice (including both Regional General Permits 

and Nationwide Permits), which are considered the minimum permit requiring Agency 

action; and 2) the more effort-intensive Individual Federal Permit. 

However, regional differences in permit requirements can challenge this simplification 

For example, East Texas has a Regional General Permit system, with heightened 

protection for certain local threatened and endangered species, which may approach 

Individual Federal Permits in terms of acquisition difficulty. This factor should be borne 

in mind when looking at the regional differences in permitting.

Transporting production is an essential part of oil and natural gas facilities. Figure 4-12 

demonstrates a similar analysis conducted for a small buried pipeline, a class of oil and 

gas facilities known as “linear infrastructure,” (and generally covered under a separate 

Nationwide Permit, #12). One impact that should not be overlooked here is the increase 

in costs for “delineation,” which is the practice of having environmental specialists cover 

on foot the area surrounding a proposed disturbance area (for pipelines, generally twice 

the width of the proposed right-of-way) in order to identify all jurisdictional waters that 

may be impacted. It is no longer enough to simply find where the water starts in this area. 

The new tributary definition under the Proposed Rule includes man-made or natural 

breaks of any length. So a search will need go further up-gradient, beyond any potential 

 

162 D. Sunding and D. Zilberman. 2000. Analysis of the Army Corps of Engineers’ NWP 26 Replacement Permit 

Proposal. Prepared for the National Association of Counties and the Foundation for Environmental and Economic 

Progress. (January). 
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breaks, looking for evidence of bed, bank and ordinary high-water marks. In connection 

with the new definition of adjacent waters in terms of floodplain and riparian areas, these 

too will need to be scouted for any isolated waters they may contain. Two different 

diagrams are shown together on the next page as Figure 4-11, then enhanced separately 

on the following pages.

Figure 4-12 Pipeline Site Comparison Between 2008 Guidance and Proposed Rule.

A sample pipeline site, analyzed for impacts to waters considered jurisdictional under the 

current regulatory practice (light blue are relatively permanent tributaries, green are 

adjacent wetlands), and including waters considered newly jurisdictional under the 

Proposed Rule (red are non-relatively permanent tributaries and dark green their 

associated adjacent wetlands, purple are adjacent waters under riparian or floodplain 

definitions, and brown are ‘other’ waters, under assumptions that establish a significant 

nexus to jurisdictional waters). The pink area is the area of delineation, which in the 2008 

case is approximately double the width of the proposed disturbance area. Experts must 

cover the delineation area on foot to identify all WOTUS.
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2008 Guidance. Actual non-arid pipeline.
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Proposed Rule. Actual non-arid pipeline.

Under the 2008 guidance, the pipeline shown above would impact relatively permanent 

tributaries at only three points and be eligible for a special Linear Infrastructure 

Nationwide Permit (#12). In some but not all regions, a pre-construction notice might be 

required.

However, under the Proposed Rule, the impinged jurisdictional waters double. In this 

case, the pipeline is still eligible for a Nationwide Permit; however, it does now require a 

Pre-Construction Notification (PCN).

The increased delineation area (pink) also represents a significant new cost of 

compliance, which does not appear to be fully reflected in the Economic Analysis. 

Summing up these analyses for 247 such sites in two regions (East Texas and 

Appalachia), we learn that in both regions the number of sites containing newlyjurisdictional aquatic resources increases by roughly the same amount, between 40 and 

60 percent. The change in Section 404 “Dredge and Fill” permitting for the oil and gas 

industry is shown in the following Table.
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Table 4-4 API Member Example Jurisdictional Change Between Current Guidance 

and Proposed Rule

It may be concluded from this analysis that:

 The change in definition of jurisdictional waters under the Proposed Rule leads to 

a consistent increase in the number of jurisdictional aquatic features found within 

the well sites and an attendant increase in the amount (stream-feet or acres of 

wetlands) of total disturbance arising from impact to these newly-jurisdictional 

waters.

 The increase in disturbance leads to a consistent increase in permit requirements 

The number of sites needing a 404 “General” permit with PCN will double or 

nearly double. Well sites now requiring the more time-intensive Individual Permit 

can more than double.

The API Regional Project Impact Analysis focused on upstream oil and gas projects for 

only one company in two regions (portions of four states) over recent periods of time in 

which activity has been high. In contrast, the Agencies’ analysis purports to cover all 

types of economic activity over 30 states, during a period of time which represented a 

historic low in economic activity.

Thus, although the sample sizes and level of detail are comparable, one should be careful 

about extrapolating the Regional Project Analysis impact study results to general 

economic activity. Conversely, the API Regional Project Impact Analysis is likely a more 

accurate representation of the potential regulatory impacts to energy industry activities 

that, like oil and gas exploration and production, are built and operated in remote areas, 

than the more general results of the Agencies’ study.

That said, some general conclusions may be drawn from the fact that the results of the 

API analysis differ sharply, qualitatively and quantitatively, from the Agencies’ analysis.
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 API’s analysis casts doubt on the Agencies’ central assumption that little or no 

impact will arise from definitional changes to tributaries and adjacent waters.

 By contrast, API’s analysis found that the number of sites containing newlyjurisdictional aquatic resources increases by between 40 and 60 percent, 

consistently in both regions. This is an order of magnitude higher than the 2.7 

percent estimated by the Agencies.

 API’s more detailed analysis of 404 permitting requirements found that the 

number of sites requiring increased permits nearly doubled or more than doubled. 

This is roughly two orders of magnitude higher than the 2.7 percent 

estimated by the Agencies. This casts doubt on the Agencies’ simplified 

approach of assuming the increase in permits is directly proportional to the 

increase in jurisdictional cases, and may be an artifact of the non-linear ‘impact 

threshold’ nature of 404 permit requirements.

To extrapolate the results of the API study for a single company’s portfolio to the oil and 

gas industry as a whole, we multiply these portfolio percentages by the number of oil and 

gas wells drilled in the US each year (30-40,000, according to the Energy Information 

Administration of the US Department of Energy), assuming a conservative value for the 

number of multi-well sites. In a rough order-of-magnitude estimate, the number of 

Individual Permits per year could increase by a number in the mid-hundreds, 

concentrated in oil and gas regions. The increase in less time-intensive General permits 

will be in the mid-thousands.

For perspective, the Fort Worth district office of the Corps handles 500 cases a year, 

from all industries, with 6-8 key staff and one archaeologist. Other agencies (Fish and 

Wildlife Service, etc.) are similarly burdened. This simple comparison raises concerns 

that overworked field offices could begin to fall behind in permits, or require more 

resources on an unplanned basis, at a time when government budgets are uncertain or 

being cut back.

Delay is the most serious potential consequence arising from increased permitting – and 

one which the Agencies have failed to consider in its cost-benefit analysis. API’s 

Regional Project Impact Analysis reports that Individual Permits already require 6 to 24 

months processing time - which agrees well with the data point from a key study on 

permitting costs and time requirements, cited by the Agencies (788 days on average).55 

Any delay of months complicates scheduling of drill rigs and timing of operations. 

Considering that a typical drilling lease is three years, this magnitude of delay can easily 

put a well pad in jeopardy, entailing enormous impact on net present value and eventual 

resource recovery. It would be reasonable to expect a perceptible drop in U.S. oil and gas 

production, production revenues and job loss. Private land owners will also experience 

loss of royalty revenues. The federal government and state governments will also 

experience loss of tax revenues.
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Table 4-5 contrasts the API Regional Project Impact Analysis with the analysis done by 

the Agencies in the Economic Analysis for the Proposed Rule.

Table 4-5 Comparison of Agencies Economic Analysis and API Regional Project 

Impact Analyses (East Texas and Appalachia Sites)

[1] The Agencies’ analysis looked at 141,965 “aquatic resources” recorded within impact 

areas in the Army Corps of Engineers 2009-2010 ORM2 database. This number would 

not include cases in which the proponent chooses not to question jurisdiction, or does not 

realize jurisdiction is possible. It also excludes 18.4 percent of records that did not have 

any aquatic resource entered in ORM2. Of the remaining records, the Agencies claimed 

67 percent are streams and 98 percent were jurisdictional; 27 percent are wetlands and 

98.5 percent were jurisdictional; 6 percent are ‘other waters’ and none were 

jurisdictional. Increase of streams and wetlands to 100 percent jurisdictional was 

assumed, leading to this assumption of insignificant increase (98 percent and 98.5 percent 

to 100 percent). Thus the detailed analysis focused on 262 select cases to estimate an 

increase to 17 percent jurisdictional in the ‘other waters’ category (which differs in key 

regards from the Other Waters category in the Proposed Rule, e.g., increases due to 

“aggregation” were excluded.) Total increase in jurisdictional aquatic resource records 

was estimated at 2.7 percent. (p. 107 – 121) 
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Agency Response: See Agencies’ Summary Responses under Topic 11.2 (Change 

of Scope of Jurisdiction) and Topics 11.3, 11.3.1 and 11.3.2 (Section 404, Costs, 

Benefits).

11.2.241 (...) The discussion below provides typical costs for a reasonable cost scenario to 

acquire and comply with a Section 404 permit where both listed species and cultural 

resources issues are involved and where mitigation requires a site-specific restoration 

plan.

Table 5-1 One-Acre Site Section 404 Permit Compliance Costs Under Proposed 

Rule

(p. 137-138)

Agency Response: See Agencies’ Summary Response under Topic 11.3.1 (Costs).

Coastal Louisiana Levee Consortium (Doc. #19324)

11.2.242 Our prime concern is that under the proposed rule, more waters would become 

WOTUS, and as a result, more applicants will need to obtain an individual permit from 

the Corps. The increased utilization of individual permits will trigger more companion 

federal permitting processes; during these costly review procedures, consulting federal 

agencies are not bound by a specific time limit. Over $1.7 billion is spent each year by 
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the private and public sectors on administrative costs to obtain wetlands permits, without 

taking into account the cost of required mitigation, and it is our fear that this proposed 

rule will increase both this dollar amount and the time required to obtain these permits. 

(p. 3)

Agency Response: See Agencies’ Summary Responses under Topic 11.2 (Change 

of Scope of Jurisdiction) and Topic 11.3.1 (costs).

The Mosaic Company (Doc. #14640)

11.2.243 3.1 Section 404

Section 404 of the CWA requires project proponents to obtain permits for activities 

involving the dredge and fill of jurisdictional wetlands and waterbodies. In the first step 

of the permitting process, projects may require alteration or redesign to avoid and 

minimize impact to jurisdictional waters. Upon completion of this exercise, permit 

approval will be conditional upon compensatory mitigation for unavoidable jurisdictional 

impacts. Mitigation can be accomplished by purchasing credits from third-parties, 

through permittee-developed mitigation plans, or in-lieu fee payments.163

To yield a proper cost estimate for wetlands under the Section 404 program, four (4) 

factors must be considered: 1) financial and opportunity costs associated with delays in 

project implementation due to permit processing time or project redesigns required to 

avoid or minimize a project’s impact on jurisdictional waters, 2) an assessment as to 

whether the incremental increase in permits due to the proposed rule are more likely to be 

Individual or General permits, 3) a projection of impacted acreage for each state or region 

is needed for reliable total cost estimates given regional variation in mitigation credit 

prices, and 4) compensatory mitigation cost estimates must use representative credit 

prices and costs associated with permittee-responsible mitigation.

3.1.1 EPA Omits Important Components of Section 404 Compliance Costs

In its estimate of permit application and compensatory mitigation costs, the EPA Study 

omits financial and opportunity costs associated with project delays due to permit 

processing time, and reductions in project scale necessary to achieve avoidance and 

minimization requirements. A lack of a “defensible, ready basis for estimating these 

costs”, is cited as the reason for excluding them, even while acknowledging they can be 

significant. (EPA Study, p. 14).

Depending on the nature of the development activity, delays in permit processing can 

have significant impacts on economic returns. For example, a single-family housing 

project delay could mean higher prices or interest rates to prospective buyers, which in 

turn can affect demand, the price the market will bear, and ultimately the return to the 

 

163 The EPA’s 2008 Compensatory Mitigation Rule encourages use of mitigation banks and in-lieu fee payments.
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developer. Further, changes in the scale of an operation required to minimize or avoid 

impacts, while helping to reduce the cost of compensatory mitigation, could result in lost 

profit or income to the permittee, and potential socioeconomic costs in the form of lost 

jobs and expenditures on goods and services in related industries.

These indirect costs can be significant depending on the permittee’ s development 

project, length of the permit delay, and scale of project or operational redesign. Although 

seeming to recognize these facts, the EPA Study does not address if, or to what degree, 

the proposed rule will change the average Section 404 permit processing time, or whether 

the nature of the newly jurisdictional areas will increase the incidence of project redesign.

3.1.2 EPA Assumes the Distribution of Individual and General Permits will Remain 

Unchanged

As demonstrated in Exhibit 5 of the EPA Study, the Study projects the incremental 

increase in Section 404 permits and impacted acreage separately for Individual Permits 

(IP) and General Permits (GP). The weighted average of the two permit types then form 

the baseline for the incremental acreage increase resulting from the proposed rule. The 

Study also assumes that the distribution of Section 404 permits between IP and GP will 

remain unchanged under the proposed rule. However, since projects must meet certain 

criteria to qualify for GPs and since the proposed rules will likely increase the total 

wetland acres on any given project, it seems unlikely that the number of projects utilizing 

GPs will remain in the same proportion as in FY 2009/10 as the Study assumes.

While this difference in the assumption sounds benign, it introduces considerable 

uncertainty into the estimates of Section 404 compliance costs. The study by Sunding and 

Zilberman cited by EPA, estimates the cost of IP permit applications as significantly 

higher than GP permit applications (EPA Study, Exhibit 6). Further, the average 

impacted acreage differs significantly between IPs and GPs. IPs, which represent 5 

percent of actual Section 404 permits issued in FY 2009/10, have an average of 12.81 

acres of wetland impact per permit. This compares with 0.28 acres of wetland impact per 

permit for the average GP project. GPs comprised 95 percent of the Section 404 permits 

issued in FY 2009/10. As Table 3-1 illustrates, if the number of IP permits increases from 

5% to 10% under the proposed rule, (using the same wetland impact acreage by permit 

type) the incremental impacted acreage would increase by 60 percent, from 1,332 to 

2,149 acres. In this case, projects would be expected to undergo a proportional increase in 

total estimated costs for Section 404 compliance.
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Table 3-1. Implications of the Distribution of Section 404 Permit Types

3.1.3 EPA’s Cost Estimates Don’t Adequately Account for Regional Variation in 

Mitigation Credit Prices

While Exhibit 3-1 of the EPA Study purports to represent estimated incremental wetland 

(acres) and stream (linear feet) mitigation for each state, the estimates are not based on 

the landscape extent and location of isolated waters or industry characteristics of each 

state. Not knowing where impacts to these isolated waters are likely to occur, the EPA 

Study allocates the incremental increase in wetland and stream mitigation to individual 

states in proportion to the number of JDs by state in FY 2009/10, “assuming this serves 

as a proxy for permitting activity in each state” (EPA Study, p.23). Drawbacks to this 

approach include: 1) the global financial crisis had disproportionate impacts on 

development in certain states and 2) the landscape distribution of isolated waters may be 

altogether different than for current jurisdictionals reflected in the ORM2 database 

records for FY 2009/10. The actual incremental mitigation acreage in each state, 

however, is critical for reliably estimating the costs (and benefits) associated with the 

proposed rule, because the cost of compensatory wetland mitigation varies so 

dramatically across regions and states; from $500 per acre in Alaska to $240,000 per acre 

in New Jersey. In order to develop an accurate estimate of Section 404 associated costs, 

EPA would need a more accurate estimate of the number and acreage of jurisdictional 

areas under the proposed rule at the state level, rather than at the national level.

3.1.4 EPA Uses Unrepresentative Mitigation Credit Prices

The EPA Study uses a flat cost per mitigation credit regardless of where a project is 

located within the U.S., which is not likely to accurately represent actual costs. For 

example, it appears that wetland mitigation credit costs in North Carolina range from 

$23,000 to $42,000 per acre (EPA Study Exhibit 31) for non-riparian wetlands. If only 

isolated wetlands become jurisdictional under the proposed rule, this estimate may be 

accurate. However, many wetlands and waterbodies previously identified as isolated and 

non-jurisdictional will fall under the new definitions of “adjacent” and “neighboring”. 

Based on the price of mitigation credits from private banks, compensatory mitigation for 

riparian wetlands in North Carolina can range up to approximately $70,000 (North 

Carolina Department of Environment and Natural Resources 2014). Adjusted for 
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inflation to 2010 price levels, for comparability to the EPA Study, this reflects a 50 

percent higher per acre wetland mitigation cost than provided in the EPA Study’s cost 

estimate.

3.1.5 EPA’s Estimate of Compensatory Mitigation Ignores Costs Associated with 

Permittee-Responsible Mitigation

While the 2008 Guidance encourages use of mitigation banks and in-lieu fee payments, 

some share of projects may still require permittee-responsible mitigation. Indeed, EPA 

reports that 32,500 of the 43,000 acres of wetland mitigation during FY 2009/10 (80 

percent) were permittee-responsible as opposed to third-party wetland mitigation.164

Where mitigation credits are used, they must be purchased from banks located within the 

same watershed of the project. However, where the demand for credits exceeds the 

available supply,165 if the permittee wishes to proceed with the project as scheduled, 

permittee-responsible mitigation may be the only option. While the EPA Study may have 

focused on the cost of mitigation credits, it cannot ignore the potential for some 

proportion of permittee-responsible mitigation, particularly as the economy improves, 

land values rise, and credits are used up. Direct financial costs of permittee-responsible 

plans may be more or less costly than mitigation bank credits depending on the region, 

sophistication of the permittee, site-specific characteristics, and lost opportunity costs. (p. 

45-47)

Agency Response: See Agencies’ Summary Responses under Topic 11.2 (Change 

of Scope of Jurisdiction) and Topics 11.3, 11.3.1 and 11.3.2 (Section 404, Costs, 

Benefits).

11.2.244 3.4 Distribution of Impacts

Federal guidance documents establish that evaluating the distribution of impacts is an 

important component of an economic analysis. Most prominently, The Unfunded 

Mandates Reform Act of 1995 (UMRA) requires an examination of the potential 

disproportionate impacts on state, local, and tribal governments; urban or rural or other 

types of communities; or particular segments of the private sector. OMB Best Practices 

require that when distributional effects are thought to be important, the analysis should 

include their magnitude, likelihood, and incidence of effects on particular groups. The 

EPA Study does not address the distribution of compliance costs associated with 

incremental Section 404 permits required under proposed CWA jurisdiction on the 

 

164 Because EPA again relies only on FY 2010 to develop this statistic, it is unclear whether the economic downturn 

resulted in a shift from third-party (bank) to permittee-responsible mitigation. As previously stated, this is something 

EPA can address by examining permitting data prior to the SWANNC and Rapanos decisions.

165 As the US economy improves, the incidence and scale of development projects will begin to increase in kind. 

With land values rising, the opportunity cost associated with land in mitigation banks will also increase. These 

forces, coupled with a greater share of development projects requiring mitigation due to the proposed CWA 

jurisdiction, may result in a short-run mitigation credit supply shortage, depending on the specific watershed.
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private sector. Because the EPA Study projects the incremental increase in permits for the 

United States as a whole, the fact that certain regions may be characterized by higher or 

lower degrees of isolated wetlands and other waters was not taken into consideration.7 

Projecting the incremental impact acreage based on the hydrologic, development and 

industry characteristics of each state or region, the study would provide at a minimum, a 

discussion about the likely distribution of incremental Section 404 compliance costs 

across affected private industry. In addition, because state jurisdiction is required to be at 

least as inclusive as federal jurisdiction, states with the highest incidence of impact and 

the least inclusive jurisdiction will bear a disproportionate share of costs to state 

regulatory agencies. (p. 50)

Agency Response: See Agencies’ Summary Response under Topic 11.2 (Change of

Scope of Jurisdiction) and Topic 11.3.1.

Iowa Farm Bureau Federation and American Farm Bureau Federation (Doc. #7633)

11.2.245 We believe a serious consequence of the proposed assertion of jurisdiction over 

ephemeral drains and small, isolated wetlands is the inability of new or younger farmers 

and ranchers to begin operations on lands containing these features without a section 404 

permit. Even if section 404 permitting were required “only for the first year,” this is a 

major roadblock to new farming or ranching operations. EPA’s own figures (adjusted for 

inflation) put the cost of individual section 404 permit application at $62,166, plus 

$16,787 per acre of impacts to “waters of the U.S.” For nationwide permits, costs are 

estimated at $24,004, plus $13,212 per acre of “waters of the U.S.” impacted. Few new 

farmers and ranchers would be able to take on this burden – and yet, given the scope of 

the features to be regulated under the proposed rule, in most parts of the country it 

literally would be impossible to avoid these features. They are simply too prevalent 

across the landscape to “farm around” them. (p. 3)

Agency Response: The agencies recognize the vital role of farmers in providing 

the nation with food and fiber and are sensitive to their concerns. The final rule 

reflects the intent of the agencies to minimize potential regulatory burdens on the 

nation’s agriculture community, and recognizes the work of farmers and 

landowners to protect and conserve natural resources and water quality on 

agricultural lands. The rule reflects this framework by clarifying the waters subject 

to the activities Congress exempted under CWA Section 404(f). See Agencies’ 

Summary Response under Topic 11.3 (Section 404).

North Dakota Soybean Growers Association (Doc. #14121)

11.2.246 Incremental and Section 404 Mitigation-Cost Calculations 

A concern we have in the provided cost calculations is the lack of permit-application and 

issuance analysis in terms of dollars or time. Values from the Sunding and Zilberman 

study are nearly 20 years old and are unadjusted for the proposed programmatic changes 

and inflation. The economic analysis concludes that there is little additional cost to 
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federal entities while failing to address likely increased application and permitting costs 

for states and citizens; or avoidance, minimization or full compliance enforcement costs. 

“Other Waters” occur in fully three-quarters of North Dakota (See the attached 

EPA/Corps map.) and will await future jurisdictional determinations residing with an 

ever-evolving series of EPA/Corps decision makers. The presented analysis is based on a 

17% ratio of “other waters” being determined as fully jurisdictional. We believe that the 

large amount of “other waters” land in North Dakota will lead to more than a 17% 

jurisdictional inclusion ratio in our state, increasing costs and mitigation requirements. 

The EPA/Corps’ selection of studies on which to base its analysis and conclusions is a 

significant concern for us. Nine of the 10 studies cited are more than a decade old, and 

one is almost 30 years old. Additionally, several cited studies are not published in peerreviewed journals. North Dakota’s farmers and ranchers have successfully implemented 

significant technological and environmentally friendly practice adaptations during the 

period since these studies were initiated and the conclusions made. 

An additional concern is the cost factors for individual farmers and ranchers with the 

potential for third-party lawsuits and an ever-growing threat to America’s agriculture 

community. Our specific concern is the available resources for many special-interest 

groups that have targeted American agriculture. (p. 12)

Agency Response: The agencies recognize the vital role of farmers in providing 

the nation with food and fiber and are sensitive to their concerns. The final rule 

reflects the intent of the agencies to minimize potential regulatory burdens on the 

nation’s agriculture community, and recognizes the work of farmers and 

landowners to protect and conserve natural resources and water quality on 

agricultural lands. The rule reflects this framework by clarifying the waters subject 

to the activities Congress exempted under CWA Section 404(f).Although the EPA 

cannot preclude third parties from filing suit pursuant to the Clean Water Act’s 

citizen suit provisions, the EPA and the Corps plan to clearly articulate the concepts 

embodied in any final rule in order to provide maximum clarity to permit 

applicants, agencies, and the public. We believe that doing so will reduce, not 

increase, the possibility that these provisions may be misunderstood by permittees, 

third parties, or other stakeholders, thereby leading to less litigation. Such clarity 

will also aid courts in responding consistently to citizen suits. See Agencies’ 

Summary Response under Topic 11.3.1 (Costs)

Florida Crystals Corporation (Doc. #16652)

11.2.247 Before the Army Corps can act on any CWA § 404 permits, it must engage in a 

series of procedural actions. Those actions include complying with other procedural laws 

such as the National Environmental Policy Act ("NEPA") and the Endangered Species 

Act. These procedures dominate the permitting process, and impose significant costs on 

private landowners forced to participate. (p. 10)
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Agency Response: See Agencies’ Summary Response under Topic 11.3.1 (Costs)

and Topic 13.

Department of Public Works, City of Northglenn, Colorado (Doc. #14990)

11.2.248 The Proposed Rule expands the definition of the term "Waters of the United 

States" to include categories of waters that were previously never regulated as WOTUS, 

such as all waters in floodplains, riparian areas, and certain ditches. The inclusion of 

these waters will broaden the scope of the CWA and will increase the costs associated 

with each regulated program. In support of the Proposed Rule, the Agencies provided The 

Economic Analysis of Proposed Revised Definition of the Waters of the United States 

(Economic Analysis). The Economic Analysis is of particular concern to Northglenn 

because of the limited discussion on MS4s. Under the Proposed Rule, many stormwater 

systems and features themselves could now be classified as WOTUS. The Economic 

Analysis does not address or quantify the increased permitting requirements for 

stormwater conveyances that would result from the Proposed Rule. In fact, the Economic 

Analysis states on Page 26 that "It is unclear specifically how a broader assertion of 

CWA jurisdiction under this Proposed Rule would affect MS4 permits," and "...MS4 

outfalls tend not to be in wetlands". MS4s may, at times, develop manmade wetlands for 

water quality features and also may need to remove features in order to protect the 

infrastructure's functional purpose, such as controlled release for water quality. Any 

work on the stormwater conveyances, work aimed at achieving environmental best 

management practices, as well as routine improvements required by stormwater permits, 

will trigger section 404 permitting requirements under the Proposed Rule. The 404 

permitting process is a time consuming and expensive process. As local USACE offices 

are inundated with an increase in 404 permit applications state wide, we are concerned 

about the immediate associated construction delays and cost increases for projects after 

the Proposed Rule is final. (p. 4)

Agency Response: See Agencies’ Summary Responses under Topic 11.2 (Change 

of Scope of Jurisdiction), Topic 11.4, and Topic 7.

Orange County Public Works, Orange County, California (Doc. #14994) 

11.2.249 5. The Economic Analysis ("Analysis") does not capture all of the impacts and 

cost of the Proposed Rule. The Analysis evaluates only the potential increase of 

previously identified waters of the U.S. and does not consider new and additional waters 

of the U.S. that would be captured by the Proposed Rule, thereby underestimating the 

economic impacts. The Analysis does not acknowledge the inappropriate expansion of 

waters of the U.S. over MS4s, and hence, ignores the major economic costs of 

compliance under the CWA, particularly with respect to meeting additional total 

maximum daily load ("TMDL") allocations. EPA should analyze the full impacts and 

costs from the Proposed Rule to all programs in the CWA affected by the revised 

definition; otherwise, the Proposed Rule does not comply with the cost-benefit analyses 

of Executive Order 12,866. (p. 4)
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Agency Response: See Agencies’ Summary Responses under Topic 11.2 (Change 

of Scope of Jurisdiction), Topic 11.4, and Topic 7.

Mohave Electric Cooperative, Inc. (Doc. #10953)

11.2.250 The cost of securing a Section 404 permit can be substantial, even if a general 

permit (such as a Nationwide Permit) is available. A 2002 article in the Natural Resource 

Journal estimated that "the cost of preparing a nationwide permit application averages 

$28,915" nationwide. This estimate is 12 years old and therefore likely very low 

compared to today's costs. Securing an individual permit is a considerably more onerous 

and expensive task. The Section 404 permitting process often results in significant time 

delays, which can be more injurious to cooperatives than the direct costs associated with 

permitting. (p. 8)

Agency Response: See Summary Responses under Topic 11.3 (Section 404), as 

well as Topics 11.3.1 and 11.3.2 (Costs/Benefits).

Arizona’s Generation and Transmission Cooperative (Doc. #14901)

11.2.251 If the Proposed Rule were to be implemented, any activity that will result in the 

discharge of fill material to an ephemeral wash, no matter how small, will require a Clean 

Water Act (CWA) Section 404 permit. This includes activities ranging from the 

construction of a substation to maintenance of an unpaved road.

The cost of securing a Section 404 permit can be substantial, even if a general permit 

(such as a Nationwide Permit) is available. A 2002 article in the Natural Resource 

Journal estimated that “the cost of preparing a nationwide permit application averages 

$28,915” nationwide. This cost, escalated at 3 percent per year for inflation, equates to 

$41,000 in 2014 dollars. This substantial cost can impact the viability of many small 

projects. Securing an individual permit is a considerably more onerous, and expensive, 

task. (p. 8)

Agency Response: See Summary Responses under Topic 11.2 (Change of scope of 

Jurisdiction), Topic 11.3 (Section 404), as well as Topics 11.3.1 and 11.3.2 

(Costs/Benefits)

Salt River Project Agricultural and Power District and the Salt River Valley Water Users 

Association (Doc. #14928)

11.2.252 Currently, Nationwide Permit {NWP} 12 is used to address locations where 

SRP's projects cross TNW's or tributaries that were identified through a Corps 

jurisdictional determination. If the agencies determine ephemeral waters are categorically 

jurisdictional as proposed, SRP projects may no longer qualify for NWP 12, resulting in 

the need to obtain individual §404 permits.

The extra burden associated with applying for and obtaining an individual permit for 

utility line construction is substantial. The average cost for preparing a NWP application 
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259

in 2011 was $35,954, while the average cost for preparing an individual permit 

application in 2011 was $337,577.4 In addition, it typically takes 10 months to obtain 

authorization under a NWP, but 2 years to obtain an individual permit.166 (p. 7-8)

Agency Response: See Agencies’ Summary Responses under Topic 11.2 (Change 

of Scope of Jurisdiction) and Topic 11.3.1 (costs).

Utility Water Act Group (Doc. #15016)

11.2.253 In addition to feasibility concerns, there is the matter of cost and resulting 

economic impact. Replacing waste treatment systems that use man-made or man-altered 

water features with alternative technology is exceptionally costly. Capital costs of 

installing an effluent treatment facility could be hundreds of millions of dollars, with tens 

of millions in annual operating and maintenance (“O&M”) costs. One UWAG member 

estimated that the capital costs and O&M costs of replacing ponds used to treat low 

volume waste with a physical-chemical treatment system would cost millions of dollars. 

Additional economic impacts would include added costs for permitting work within the 

ponds (e.g., Corps CWA § 404 permitting for the placement of treatment equipment and 

structures within the ponds) and increased costs to maintain these ponds. All of these 

costs would be incurred and likely passed to electric utility ratepayers, with no added 

environmental benefit.

In Section I.C.4 above, we described the implications of the Proposed Rule for the SPCC 

program. The waste treatment system exclusion serves as an important tool for avoiding 

intractable conflicts with that program as well. Steam electric plants, like other industrial 

facilities, often rely on on-site ditches, basins, and other water features to capture and 

contain oil and other substances that may spill. Their SPCC plans contemplate that the 

facility will use such features, along with either portable or fixed equipment placed in 

those water features, to contain spills. When spills occur, they must be cleaned up 

promptly, involving work in those features. As is the case for the NPDES program,

absent a robust waste treatment exclusion of the sort applied under current law, the 

burdens and costs of providing alternative spill containment and countermeasures would 

be enormous. (p. 75-76)

Agency Response: See Agencies’ Summary Response under Topic 11.3, 11.3.1, 

11.3.2, and 11.4. See also Topic 7.

American Wind Energy Association (Doc. #15208)

11.2.254 Through redefining what is a "water of the United States,” the proposal would 

increase of streams under CWA jurisdiction by 49,075 additional feet and result in an 

additional $200-300 per unit, or an additional $8.7 to $13 million annually. Due to the 

 

166 These figures do not include mitigation or design change costs associated with permitting.
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additional 2,042 acres of wetlands that come under agency jurisdiction under the 

proposed rule, per unit costs rise by $25,000 to $49,200 with an additional $51.1 to 

$100.5 million in annual costs.167 EPA’s economic analysis, which many consider to 

severely underestimate costs, estimates that this proposal would add 75 more individual 

permits per application under section 404, adding costs anywhere between $2.4 to $19.1 

million annually to the cost project permitting. This proposal also would add 1,327 more 

general permits per application and add costs ranging from $17.4 to $33.8 million 

annually; breaking this number down shows a cost of $22,079 per unit plus $12,153 per 

acre. Mitigation costs must be considered as well because the Army Corps requires 

compensatory mitigation, which may be accomplished in three ways: mitigation banks, 

in-lieu fee mitigation, or permittee responsible mitigation.168 These compensatory 

mitigation rules can take up to 225 days to be reviewed and 330 days if there is a 

dispute.169 The impact of avoidance and minimization costs, such as construction of 

bridges, docks, roads, etc., would necessarily increase to avoid discharges of pollution to 

the newly defined waters. The maintenance and upkeep of these measures would also add 

to expenditures. (p. 3-4)

Agency Response: See Agencies’ Summary Responses under Topic 11.2 (Change 

of Scope of Jurisdiction) and Topic 11.3.1 (costs).

Tri-State Generation and Transmission Association, Inc. (Doc. #16392)

11.2.255 III. (Unintended) Consequences of Proposed Rule

The expansion of CW A jurisdiction as written in the proposed rules will have farreaching consequences for the power generation, transmission, and mining industries, and 

regulators alike. Tri-State is also concerned about how the proposed rule will impact 

obligations under numerous CW A programs and other environmental and safety statutes.

Many activities, e.g., construction of sediment ponds on mine sites and overland access 

routes for transmission line corridors, are already subject to comprehensive Section 404 

permitting requirements. Section 404 permitting often involves lengthy and expensive 

consultations among federal and state agencies to evaluate the impacts of proposed 

discharges. Permit applicants are also required to obtain Section 401 state water quality 

certifications as part of the permitting process, in some cases. If the proposed rule results 

 

167 E.P.A., Economic Analysis of Proposed Revised Definition of the Waters of the United States 17 (2014),

168 Mitigation banks are credits gained by a permittee when they restore, establish, enhance or preserve an aquatic 

resource; these credits are then set aside to compensate for future impacts, with wetland mitigation bank credits 

costing $15,000 or more per credit. In-Lieu Fee Mitigation is a payment made by a permittee to a government

agency or non-profit organization which will then restore, create, enhance or preserve an aquatic resource. Permittee 

responsible mitigation is mitigation through an aquatic resource restoration, establishment, enhancement, or 

preservation provided by and the full responsibility of the permittee.

169 9E.P.A., U.S. Army Corps of Engineers, Compensatory Mitigation Rule: Improving, Restoring, and Protecting 

the Nation’s Wetlands and Streams 6 (2008), available at 

http://water.epa.gov/lawsregs/guidance/wetlands/upload/2008_03_28_wetlands_Mit_rule_QA.pdf.
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in the expansion of CW A jurisdiction, facilities will face even more permitting 

requirements for routine activities and new construction, potentially imposing substantial 

costs and operational delays.

Such permitting would also bring with it additional mitigation requirements, which adds 

substantial cost to projects. Recent quotes from Colorado wetland banks indicate costs 

between $75,000 and $85,000 per credit-acre,170 which is substantially higher than the 

stated range of $32,000 to $66,000 for Colorado in Appendix A of the economic analysis 

of the proposed rule. 171These ranges for mitigation banking in Colorado should be 

updated to better reflect actual estimated cost ranges. The Brattle Group made a similar 

point in their review of the EPA's economic analysis for this rule. As noted in Table 5 of 

the Brattle report, the unit mitigation cost range for Colorado estimated by the EPA in 

2011 for their proposed clarifying guidance document was $32,000-$100,000.172 While 

the lower bound number remained the same in EPA's 2013 analysis for this rule, the 

upper bound for Colorado was reduced by $34,000 per acre without explanation. The 

upper bound number for Colorado from EPA's 2011 analysis ($100,000) is a better 

estimation of the actual mitigation cost range and should be used in a revised economic 

analysis of this proposed rule. In addition, as a result of the proposed rule, mitigation 

costs are almost certain to rise to the point where at least some facility operations and 

expansions become cost prohibitive if there becomes a need to mitigate for features that 

are currently non-jurisdictional. (p. 3-4)

Agency Response: See Agencies’ Summary Responses under Topic 11.2 (Change 

of Scope of Jurisdiction) and Topics 11.3, 11.3.1 and 11.3.2 (Section 404, Costs, 

Benefits).

Greater Lafourche Port Commission (Doc. #8411)

11.2.256 Additionally, the proposed large scale expansion of WOTUS means that more 

Section 404 permits will be needed. Section 404 permits are federal "actions" that trigger 

additional companion statutory reviews by other agencies, in addition to the state 

permitting agency, including reviews under the Endangered Species Act, the National 

Historic Preservation Act, and the National Environmental Policy Act. Longer permit 

preparation and review times, when combined with the higher costs associated with these 

additional reviews, place small businesses in an impossible situation, as they lead to 

higher costs overall and greater risks that can ultimately jeopardize a project. As a 

stakeholder who applies for numerous Section 404 and other permits from the Corps, we 

 

170 Personal Communication. Chris Reichard, Tri-State Generation and Transmission Association, Inc.,

with Riverdale Mitigation Bank and Middle South Platte Mitigation Bank, September 2014

171 U.S. Environmental Protection Agency and U.S. Army Corps of Engineers. "Economic Analysis of

Proposed Revised Definition of Waters of the United States". March 2014.

172 The Brattle Group, David Sunding, Ph.D. "Review of 2014 EPA Economic Analysis of Proposed

Revised Definition of Waters of the United States". 15 May 2014
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are keenly aware of how overwhelmed the regulatory branches of the Corps currently are, 

without the proposed large-scale expansion of WOTUS. Our experience tells us that the 

likely effect of the proposed rule directly conflicts with the Administration's stated 

commitments to expediting infrastructure projects as well as assisting smaller businesses 

and individuals climb the ladder of opportunity. (p. 2)

Agency Response: See Summary Responses under Topic 11.3 (Section 404), as 

well as Topics 11.3.1 and 11.3.2 (Costs/Benefits).

Iowa Waters Advocacy Coalition (Doc. #14120)

11.2.257 (...) Ultimately, the rule would put more areas under the federal government’s 

jurisdiction, which will lead to more litigation and project delays; more landowners 

needing permits; and higher costs for permitting, avoidance and mitigation. These 

expenses are not insignificant. The cost of obtaining a § 404 permit can range from tens 

of thousands to hundreds of thousands of dollars – and that does not include the costs for 

mitigation or project delay, which can be considerable. (p. 2)

Agency Response: The final rule is narrower than the existing regulations and 

historical practice. See Agencies’ Summary Response under Topic 11.2 (Change of 

Scope of Jurisdiction).

11.3.2. Benefits

Agency Summary Response

The agencies prepared an economic analysis for informational purposes, and the final decisions 

on the scope of “waters of the United States” in this rulemaking are not based on consideration 

of the information or analysis in the economic analysis. However, the analysis shows that under 

each scenario, benefits exceed costs.

Commenters suggest that the approaches and studies used to calculate the Section 404-related 

benefits are of concern. The general methods used in the analysis such as contingent valuation 

and benefits transfer are established and accepted valuation tools with well-defined guidelines 

for implementation as outlined in the Office of Management and Budget’s Circular A-4, EPA’s 

Guidelines for Preparing Economic Analysis, and numerous academic articles and conferences. 

The agencies’ benefit transfer meets the requirements of all OMB and EPA guidance. Similarly, 

the agencies chose to focus on studies that best represented the types of wetlands similar to those 

expected to be incrementally protected under the final rule. Studies that assessed overseas, tidal, 

and coastal wetlands were not included as part of this analysis by design. 

The most applicable studies are predominantly from the 1980s and 1990s. The agencies 

recognize that there have been methodological advances for studies of this kind. Some of these 

methodological improvements, such as techniques to remove hypothetical biases, have resulted 

in general in lower estimates of willingness to pay (WTP) in resent studies. However, since the 
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early 1990s there may also have been other changes such as increased awareness of wetland 

services and changes in household income that could increase WTP. Therefore, there is 

uncertainty as to whether the overall effect of these methodological improvements and other 

changes would result in an underestimate or overestimate of WTP. While it would be preferable 

to include more recent studies reflecting the current state of the art in stated preference analysis, 

the agencies were unable to do so for this analysis as there have not been recent publication of 

applicable studies. In this case, the agencies believe that basing the benefit transfer on studies

that more closely value the resource in question versus studies that may have methodological 

improvements offers less overall uncertainty and error. In response to comments, the agencies 

did re-examine the application of the studies considered in the benefits transfer exercise, making 

several changes to how these studies were utilized to improve the standardized WTP values.

The agencies made several other changes in the EA for the Final Rule in an attempt to respond to 

commenters and improve the benefits estimates. For example, commenters note that the 

agencies assume wetlands included in contingent valuation studies have identical functions as the 

wetlands that are being considered in the EA for the Proposed Rule, and that this is a flaw that 

undermines the attempt at benefit transfer. The agencies attempted to address this issue by 

completing a more precise benefits transfer exercise. The agencies determined that the vast 

majority of the wetlands that could become jurisdictional under this rule would fall into National 

Wetlands Inventory categories of Freshwater Forested/Shrub and Freshwater Emergent, and 

therefore assigned estimates from relevant benefits studies into one of these two categories. The 

projected increase in impacted acres now offset via mitigation and therefore from which benefits 

will accrue was also divided into forested and emergent wetlands by state, using state-level data 

from the National Wetlands Inventory on the prevalence of each of these wetland types.

Commenters also state that the value of benefits from individual wetlands are likely to be highly 

localized. In the EA for the Proposed Rule, the agencies allowed benefits from wetlands to 

accrue to households within the same wetland region (regions identified by the USDA Economic 

Research Service). Alternatively, benefits could accrue only to households within the same state 

as a given wetland. Depending on natural characteristics, the size of the state or the region, the 

amount of wetlands in each, and the population in each, one approach may make more sense than 

the other. There are no clear boundaries determining to whom benefits should accrue, and this is 

confounded when adding in use/nonuse components to valuation (while use values may more 

sense at a smaller scale, nonuse values may not). To avoid this additional level of complication, 

while still addressing questions to the analysis, the agencies determined to pursue a blended 

approach for the Final Rule, incorporating both the state and regional level approaches to 

valuation. 

Commenters also indicated that because of the effect of state protection programs the number of 

wetland acres mitigated by the proposed rule changes would be less than the agencies estimated. 

The agencies disagree. The EA used values from the ORM2 database to calculate impacted 

acres per permit. The ORM2 database uses information from sites already covered by state 

programs so the impact of these programs in the aggregate is included in the assessment of acres 

protected and the estimated benefits values. 
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A commenter makes the claim that the benefit estimates is subject to double counting because 

the analysis takes credit for the benefits of mitigated acres that states would already require 

mitigation for. Although the extent of a state’s CWA jurisdiction may not be smaller than the 

definition of waters of the U.S., states and tribes may elect to implement their water quality 

protection programs more broadly, according to a definition of “waters of the state” or “waters of 

the tribe.” Where individual states have elected to regulate waters more broadly, the estimated 

costs and benefits of this rule would be smaller than presented here (because states may already 

be asserting jurisdiction over waters for which this analysis presumed jurisdiction was not 

generally asserted in practice). Therefore it is not a case of double counting benefits, as 

overestimating both the benefits and costs of the rule.

A commenter suggests the benefit estimates should be discounted, or weighted less than costs 

due to the greater uncertainty associated with them. While the agencies agree that the uncertainty 

related to any cost or benefits estimate should be accurately characterized, and uncertainty 

bounds should be quantified if possible, the agencies do not consider putting less weight on an 

estimate because of uncertainty to be an acceptable practice. The greater the uncertainty for a 

given estimate, the less information that is available to create an acceptable weighting scheme.

See section 9 of the EA for the Final Rule, “CWA Section 404 Benefits” for a full discussion of 

how the benefits from the implementation of the CWA section 404 program were calculated.

Specific Comments

Water Advocacy Coalition (Doc. #17921.15)

11.2.258 V. Errors with EPA’s Incremental Benefits Calculations

A. SECTION 404

EPA lists several section 404 benefits that will result from a change in the “waters of the 

United States” definition. These include avoidance and minimization of permit impacts, 

which result from improved clarity in the CWA, and ecosystem benefits associated with 

additional compensatory mitigation that will now be required. Since quantifying the 

former is difficult, its analysis focuses on benefits from incremental compensatory 

mitigation requirements.173 The authors use a benefits transfer approach and adopt 

estimates of the value of wetland mitigation from previous studies. Specifically, they 

select 10 contingent valuation studies that provide willingness to pay (WTP) estimates for 

wetland preservation. Those studies span 12 states and yield estimates for wetlands that 

“provide a suite of services expected to be similar to those provided by waters 

incrementally protected under the proposed rule”. The results from these studies were 

standardized by determining WTP at the per-household per-acre level.174 The authors 

 

173 EPA only addresses benefits associated with wetland mitigation and omits benefits from stream mitigation.

174 For studies that reported annual WTP, total present value was determined over a period of 50 years using a 3% 

and 7% discount rate. For studies that reported WTP per individual, one individual per household was assumed.
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then calculate an average WTP, weighted by the number of respondents in each study. 

This yields values of $0.016 and $0.012 per household per acre using a 3% and 7% 

discount rate, respectively.

EPA calculates benefits for incremental compensatory mitigation by multiplying WTP 

estimates by the number of households and the number of acres impacted in eight 

different “wetland regions.” These regions were developed by the US Department of 

Agriculture’s Economic Research Service, and the analysis operates under the 

assumption that “per acre benefits values accrue to all citizens in the region.”175 The 

calculations used to generate incremental compensatory mitigation benefits are presented 

in Table 6.

Table 6. Derivation of Compensatory Mitigation Benefits

The benefit transfer analysis used to approximate section 404 benefits is poorly 

documented and not consistent with best practices in environmental economics. EPA 

synthesizes ten previous studies to estimate an average WTP for each acre of wetland 

mitigation. Those studies are largely irrelevant and do not provide accurate estimates of 

benefits. Nine of the ten studies were conducted more than a decade ago, and the earliest 

was written nearly 30 years ago. Several of the studies EPA relies on were never 

published in peer-reviewed journals. Given these shortcomings, it is reasonable to suspect 

that WTP estimates may not reflect the actual preferences of individuals for expanding 

jurisdiction over various types of waters.

While EPA attempts to value ecological services provided by wetland mitigation, it 

assumes that the wetlands included in the contingent valuation studies have identical 

functions as the wetlands that are being considered in the current analysis. This is an 

important flaw that undermines EPA’s benefit transfer analysis. Benefit transfer analysis 

operates under the presumption that benefits calculated for a specific geography and time 

 

175 Heimlich, R.E., R. Claassen, K.D. Wiebe, D. Gadsby, and R.M. House. 1998. Wetlands and

Agriculture: Private Interests and Public Benefits. AER-765, U.S. Dept. Agr. Econ. Res. Serv., Aug.
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can be readily applied elsewhere. This oversimplification comes at the expense of 

accuracy. For example, the Loomis et al. study used in the EPA analysis examined WTP 

to reduce contamination from agricultural drainage in wetlands in California. While this 

service may have considerable value, this value is likely highly localized. Indeed, Loomis 

found that respondents near the wetlands in question had WTPs approximately 15% 

higher than respondents elsewhere in the state.176 This pattern is likely to be more 

pronounced when extrapolating benefits to regions containing multiple states and 

heterogeneous patterns of wetlands.

EPA’s analysis rests on an unstated assumption that all of the incremental wetlands 

affected by the definitional change would be compromised if federal jurisdiction is not 

expanded. Conversely, it also assumes that all would be preserved or mitigated if federal 

jurisdiction is extended. The reality is likely to be quite different. State and local 

regulatory programs frequently protect wetlands even in the absence of federal 

jurisdiction. State-level planning, monitoring, and enforcement activities can be carried 

out with state-specific concerns in mind, and may be better-suited to effectively preserve 

wetland resources. Thus, the benefits associated with expanding federal jurisdiction over 

wetlands could be partially offset by programmatic changes that pass control from states 

to federal agencies. 

EPA makes little effort to account for changes in economic trends, recreational patterns, 

and stated preferences over time. It simply applies a multiplier based on the growth (or 

decrease) in permit applications. This suffers from the same error discussed above, where 

growth is based only on the subset of individuals who have already sought a permit. It 

does not address those who may seek a permit under the proposed rule. Even in the 

sensitivity analysis, which was conducted to address this issue, alternative calculations 

are carried out using the same multipliers and many of the same assumptions from the 

initial analysis. EPA concludes: “because estimated benefits would also rise with more 

wetland protection, benefits would continue to justify costs.”

This amounts to a doubling down on the original benefits estimates, which contain all of 

the original biases and shortcomings. This is insufficient for evaluating the benefits 

associated with programmatic changes of this scale. (p. 76-79)

Agency Response: See Summary Response under the current section (Topic 11.3.2 

Benefits).

The Mosaic Company (Doc. #14640)

11.2.259 4 Benefits

 

176 Respondents in the San Joaquin Valley had a WTP of $174 annually to prevent the degradation of an 85,000 acre 

tract of wetlands. Respondents in the rest of the state had a WTP of $152.
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The EPA Study quantifies the incremental benefits of compensatory wetland mitigation 

under the proposed rule using “benefits transfer”.177 “Benefits transfer” refers to using 

valuations of benefits for other, comparable resources to value the subject resource. The 

method is commonly used in policy analysis as an alternative to more rigorous 

site/resource-specific valuations. However, while generally accepted as appropriate for 

policy analysis, there are well-recognized limitations to the benefits transfer 

methodology. The guiding principle for reliable benefits transfer is that resource values 

used in the primary studies relied upon must be comparable to the subject resource in 

terms of the types and level of services provided. Further, when valuations are elicited 

using stated preference surveys (SPS), the tastes and preferences of the survey 

respondents must be representative of the population to which benefits will accrue from 

the subject resource (EPA Study, p. 20).

Based on our review, the benefits transfer approach used in the EPA Study does not 

provide meaningful or reliable information about the benefits of the proposed rule. The 

Study acknowledges that the benefit estimates used in this case should be viewed as only 

“illustrative” (EPA Study, p. 20). It is not clear, however, how “illustrative” values 

should be used in benefit-cost analysis. For example, giving $1 of “illustrative” benefits 

the same weight as $1 of compliance costs is likely to overstate the benefit side of the 

equation. Rather, due to the uncertainty of “illustrative” benefits, we would expect a 

discount value be applied to illustrative values before making direct comparisons to 

actual costs.178

The reference studies used to develop wetland function value also overstate potential 

benefits because the types of wetlands and corresponding functions evaluated in those 

studies are vastly different than the types of wetlands EPA aims to protect under the 

proposed rule. The expansion of wetland jurisdiction under the proposed rule 

encompasses many wetlands that are only marginally considered wetlands under today’s 

rules, many of which could be said to add little if any incremental functional value to the 

wetlands already claimed under the 2008 Guidance. Further, values from the studies 

represent dollar amounts households stated they would be willing to pay to protect or 

enhance wetlands. Respondents do not actually have to pay that amount, which could 

result in an overstatement of wetland value, and respondents do not understand that all 

wetlands are not the same aesthetically or functionally, which could also influence the 

amount respondents would be willing to pay. Finally, the quantification assumes that all 

 

177 The EPA Study recognizes other benefits including cost savings associated with enforcement of CWA 

jurisdiction, the burden of which EPA asserts will be reduced after the WOTUS definition is clarified. While EPA 

quantifies benefits associated with Section 402, the method is simply an extension of its cost estimation approach, 

meaning that incremental benefits are proportional to incremental costs.

178 The term discount is not to be confused with the financial concept of discount future streams of money. In this 

scenario, discount means to give less weight to the estimated benefits given the admittedly illustrative nature of the 

benefits estimates when comparing to costs.
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households in all states receive the same degree of ecosystem service benefits from 

wetland protection.

As described further below, the EPA study needs to include a discussion about the 

appropriate role of illustrative values in cost-benefit analysis, and how or if the 

uncertainty surrounding “illustrative” values can be quantified and incorporated in a 

meaningful way to inform decision-makers and the regulated community. (p. 51)

Agency Response: See Summary Response under the current section (Topic 11.3.2 

Benefits). In addition, the term “illustrative” is used to indicate that EPA conducted 

a “scenario” analysis; this concept is explained in Topic 11.3.1 Costs. 

11.2.260 4.1 Values Reported in the Primary Studies are Hypothetical

The use of Stated Preference Survey (SPS) values in the EPA Study as a surrogate for 

“benefits” of the proposed rule are hypothetical in that they don’t reflect the value people 

actually place on wetlands. SPS studies derive values from statements about what people 

would pay, without data revealing what people actually have paid (EPA Study, p.20) or 

the value of benefits actually provided. SPS studies are plagued with a host of biases, as 

discussed in Daniel McFadden’s 1994 review of hypothetical bias in valuing wilderness 

areas in the Selway Bitterroot Wilderness Area, Contingent Valuation and Social Choice, 

as well as Daniel Kahneman’s 2011 book, Thinking Fast and Slow.

The use of SPS methods for valuing ecosystem services is particularly troublesome, 

because the survey questions assume the respondents are fully and accurately informed 

about the specific goods or services being valued. Because wetlands can provide a host of 

services, EPA uses a total value approach where “the values elicited account for the 

varying degree and interrelationships among services provided, assuming respondents are 

sufficiently informed” (EPA Study, p.21). However, it is well known in the ecological 

literature that not even scientists and practitioners agree on a definition of ecosystem 

services, and values may vary depending on the distance from a TNW. Therefore, it is 

extremely unlikely that a typical respondent from a random household can properly value 

wetland function. (Fisher, Turner and Morling 2009; Barkmann et al. 2008).179

The only reliable approach for estimating the functional benefit value provided by these 

waters of flood protection, water supply, and water quality, is based on actual 

investments made to engineer/create those services. This requires an inventory of the 

waters likely subject to CWA jurisdiction under the proposed rule, and some measure of 

the types and level of services provided. By developing the cost to create engineered 

solutions to provide the same types and level of services, EPA can begin to measure 

 

179 Fisher, Turner and Morling state “while there have been several attempts to come up with a classification scheme 

for ecosystem services, there has not been an agreed upon, meaningful and consistent definition for ecosystem 

services”. Barkmann et al. state “lay respondents are usually unfamiliar with the implications of scientific 

descriptions of ecosystem functioning. Thus, the applicability of stated preference methods for the valuation of 

ecosystem functions is a matter of debate.”
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benefit values. This approach is not without limitations, as users are only willing to pay 

for engineered solutions, where they perceive an actual need, such that the location of the 

newly jurisdictional waters is an important determinant of the benefit value that EPA 

must consider. (p. 52)

Agency Response: See Summary Response under the current section (Topic 11.3.2 

Benefits).

11.2.261 4.2 Wetlands Valued in the Primary Studies are not Comparable with 

Wetlands Protected under the Proposed Rule

Putting aside the question of whether the SPS method is appropriate, at the very least, the 

wetlands valued in the primary studies must be similar in size and ecological function to 

the wetlands that are the subject of the proposed rule, in order for the “benefits transfer” 

approach to be reliable. A recent article that reviews the methodology and challenges of 

the benefits transfer approach points out that “[t]he heterogeneity of some environmental 

goods, such as wetlands, presents a challenge with respect to acquiring sufficient primary 

study data that satisfies the requirement for commodity consistency.” (Boutwell and 

Westra 2013). This is because wetlands have a high degree of heterogeneity between sites 

(and even within sites) that affects the characteristics of the services provided. For 

example, what constitutes an environmental improvement to wetland functionality in one 

area may not be applicable or even viable in another area. While EPA purports to have 

focused on studies that value a “bundle of services” or “total resource values” provided 

by wetlands, the high degree of heterogeneity between and within wetland sites means 

the services valued are likely to vary drastically from site to site (EPA Study, p.21). 

Further, the values EPA extracts from the primary studies are unlikely to adequately 

represent the varying type and function of the 1,332 wetland acres EPA estimates will be 

affected by the proposed rule across the entire United States. In addition, the 10 primary 

SPS studies cover only 13 states which account for less than 30 percent of the expected 

impacted acres (EPA Study, Exhibits 31 and 36; Heimlich et al. 1998). In fact, the 

entirety of the Mountain, Northeast and Southeast USDA ERS wetland regions utilized in 

aggregating household benefits are unrepresented by any of the primary SPS studies.

Even assuming all wetlands and their services are homogenous, the EPA’s benefits 

transfer approach is unreliable because the scope and scale of the wetlands at issue in 

SPS studies do not correlate to the incremental scope and scale of wetlands at issue in the 

proposed rule. For example, Loomis et al. 1991 values 85,000 to 125,000 acres of 

wetlands within California’s San Joaquin Valley, while Poor 1999 values expanding 

wetland areas within Nebraska’s Rainwater Basin by 41,000 acres (EPA Study, Exhibit 

36). Further, a SPS study by Land and Tobin in 1989 provide a value for approximately 

1,500 acres of wetlands close to the EPA’s estimated nationwide impact. That study area 

involved riparian corridors within Illinois and Iowa, very different from the fragmented 

wetland distribution pattern at issue in the proposed rule. The fact that none of the 

primary studies EPA relies upon value an area of wetlands as small and over a 
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geographic area as large as in the EPA study, suggests the value of wetland preservation 

resulting from the proposed rule cannot be appropriately detected by SPS methods.

Finally, by assuming all of the acres impacted due to the proposed rule are wetlands, 

EPA’s benefits calculation fails to recognize that certain waterbodies described in the 

proposed rule may in fact diminish ecosystem service function, or otherwise degrade the 

environment. For example, some man-made drainage features (ditches) that will be 

claimed as jurisdictional under the proposed rule even though they actually degrade 

ecosystem function by draining natural hydrology from wetlands and landscapes. Such 

features can serve to transport sediment and pollutants to downstream waters that would 

otherwise be trapped or infiltrated under the natural condition. This exposes two flaws in 

the benefits transfer methodology: First, the method assumes that all waterbodies 

(regardless of size, type, location, or purpose) under the proposed rule exhibit the same 

positive ecological function as the wetlands valued in the cited SPS studies. Second, the 

method overestimates the benefits by assuming all waterbodies covered under the 

proposed rule equally benefit the ecosystem in which they are located. (p. 52-53)

Agency Response: See Summary Response under the current section (Topic 11.3.2 

Benefits), as well as Section 9 of the Economic Analysis.

11.2.262 4.3 EPA’s Methodology Double-Counts Ecosystem Service Benefits Provided 

by State Wetland Regulations

The ecosystem benefit analysis presumes that without adoption of the proposed rule, the 

benefits being provided by the wetlands at issue would be lost with no mitigation 

provided as compensation. This assumption does not take into consideration that some 

states already claim jurisdiction over the wetlands and waterbodies described by the 

proposed rule (EPA Study, p.3). The State of Florida, for example, claims jurisdiction 

over most, if not all, of the waterbodies that USACE currently does not consider 

jurisdictional. Consequently, in Florida, the ecosystem service benefits purportedly 

associated with the proposed rule are already being realized due to State mitigation 

requirements. The EPA economic analysis counts, but will not provide, any incremental 

benefit increase. Thus, the EPA Study overstates ecosystem service benefits to some 

degree, depending on the status of individual state claims with respect to wetland 

jurisdiction.

This fact is non-trivial for two reasons. First, the EPA study claims “that approximately 

half the states have some provisions that extend protections beyond waters of the U.S.” 

(EPA Study, p. 4). Second, recognizing state jurisdiction and mitigation requirements 

clearly means the regulated community will incur the costs of obtaining the USACE 

permit, for no incremental benefit over what is already achieved by state regulations. This 

imbalance is not explicitly recognized, nor adjusted for, in the EPA Study. Rather, the 

EPA Study states: “[t]o the extent states have elected to [implement CWA programs 

more broadly], the economic impacts may be smaller than presented here” [emphasis 
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added] (EPA Study, p.3). The phrase “economic impacts” implies that both costs and 

benefits will be lower, when in fact, it is just the benefits that would be lower.

The implication of wetland protection through state-specific programs and requirements, 

indicates the EPA Study needs to be corrected to (as suggested in Section 3.1) to reflect 

the incremental acreage impacts associated with each state, instead of for the nation as a 

whole, and then to adjust the incremental benefits to recognize benefits that are already 

being achieved by state regulation. (p. 53-54)`

Agency Response: See Summary Response under the current section (Topic 11.3.2 

Benefits).

American Petroleum Institute (Doc. #15115)

11.2.263 3.2.1 The Agencies’ benefits for avoiding wetlands losses rely upon a problematic 

estimate of wetland acres and a benefits-transfer approach that fails to meet EPA’s own 

guidelines.

Of the annual benefits from the Proposed Rule, the Agencies attribute $258 million to 

$345 million to preserving or replacing of wetlands under CWA Section 404 (86 percent 

of the estimated annual benefits). In calculating these numbers, the Agencies used the 

following: 1) the annual incremental number of wetland acres that would be preserved or 

replaced by mitigation after implementing the Proposed Rule (hereafter “benefit acres”), 

assumed to be the same as the number of acres impacted; 2) an annual average value per 

acre of wetlands per household; and 3) the number of households in the U.S. We 

summarize the problems with the first two elements below. 

3.2.1.1 Most of the inputs to the Agencies’ estimate of benefit acres are problematic.

The Economic Analysis’ annual incremental estimate of impacted wetlands in Exhibit 5 

(1,332 acres) is based on the number of individual and general permits in FY 2010, the 

percentage annual increase in individual and general permits under the Proposed Rule, 

and the acreage of each type of permit in 2010. ARCADIS found the annual estimate of 

impacted wetlands problematic for several reasons. 

First, the Agencies underestimated the impacts of current state protection, with the 

implicit and problematic assumption that these benefits arise only from Federal 

protection. The 1,332 acres of wetland losses avoided by the Proposed Rule in Exhibit 5 

is likely an overestimate because many states protect natural resources that are not 

currently WOTUS under federal law. In those states where waters/wetlands are fully 

protected under state law (such as California), the proposed expansion of WOTUS will 

produce no benefits – i.e., the newly designated WOTUS will receive no additional 

effective protection beyond that which is currently in place under state law.

Second, the average acreage per individual and general permit in the Economic Analysis 

cannot be verified without access to the ORM2 database. If the average acreage per 

permit is different for projects affected by the Proposed Rule than projects in FY2010, 
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then the estimates in the Economic Analysis’ Exhibit 5 will not reflect the actual 

economic impacts of the Proposed Rule. The Agencies need to provide access to the 

ORM2 database for transparency reasons. Increased acreage devoted to development and 

so needing permits means decreased benefits attributable to avoiding loss of wetlands. (p. 

74-75)

Agency Response: See Summary Response under the current section (Topic 11.3.2 

Benefits) and Topic 11.2 (Scope of Change of Jurisdiction). Transparency is of 

great importance to the Corps as it executes its regulatory mission. Much 

information can be found on its public webpage at 

http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits.as

px . Further, the Corps provides public access to specific data sets at 

http://geo.usace.army.mil/egis/f?p=340:1:0::::: and is considering the addition of 

expanded data sets, in addition to those already provided. Public access to ORM2, 

which is the internal Corps regulatory program database, is not being considered at 

this time.

11.2.264 3.2.1.2 The Agencies’ estimate of benefits per acre relies upon a benefits-transfer 

approach that fails to meet the agency’s own guidelines.

The Economic Analysis uses a problematic benefits-transfer approach to estimate the 

average annual value per acre of wetlands per household. The approach used an average 

value from several existing wetland valuation studies to determine benefit estimates, 

rather than conducting an original wetland valuation study.

While the benefits-transfer approach may save time and money, it also poses 

disadvantages by reducing the reliability of the benefit estimates. To this end, a special 

section of Water Resources Research in 1992 contained eleven (11) articles that provided 

guidelines for conducting valid benefits transfer. Those guidelines provided the basis for 

EPA’s Guidelines for Preparing Economic Analyses” (“EPA’s Guidelines”), which states 

that the benefits transfer approach “should only be used as a last resort and a clear 

justification for using this approach over conducting original valuation studies should be 

provided.”180 The Economic Analysis of the Proposed Rule provides no such 

justification.

Table 3-2 provides summary information on the 10 studies used by the Agencies in their 

benefits transfer. EPA’s Guidelines identify two basic criteria for the benefits transfer 

approach: applicability and quality.181 The applicability criterion ensures that values from 

the case studies are relevant for the policy cases. It focuses on the similarity of existing 

valuation studies (known as study cases) and the policy case with respect to: 1) 

environmental commodity being valued (including scale and presence of substitutes); 2) 

 

180 EPA and the Corps 2014, p. 7-45

181 EPA and the Corps 2014, p. 7-46.
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baseline and extent of environmental changes; and 3) characteristics of affected 

populations.182

 

182 EPA and the Corps 2014, p. 7-46.
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Table 3-2 Summary Information on the 10 Wetland Valuation Studies in the 

Agencies’ Economic Analysis

In analyzing applicability, the Proposed Rule focuses on “isolated waters” that are not 

currently WOTUS. However, several of the 10 studies address WOTUS. For example, 

Dillman, Beran, and Hook (1993) focus on wetlands to be added to an existing wetland 

preserve. Lant and Tobin (1989) focus on riparian wetlands and forests in a river basin. 

These wetlands are WOTUS. Similarly, the wetlands valued in Bloomquist and 

Whitehead (1998) and Whitehead and Bloomquist (1991) are mostly WOTUS. The 

remaining 6 valuation studies include a mixture of WOTUS and non-WOTUS. If 

WOTUS, as defined under current guidance, provide more services and/or higher quality 

services than non-WOTUS, the former would presumably have higher value to the public 
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than the latter in a scenario where other things were equal. Consequently, it is likely that 

the 10 studies are overstating the value of the wetlands potentially affected by the 

Proposed Rule.

Additionally, the 10 valuation studies provide values for wetlands in just 12 states – less 

than one-quarter (1⁄4) of all states. As shown in Table 3-3, no wetlands values exist for 

states in 3 regions and there are wetlands for just 1 state in each of the 4 other regions 

containing between three and five states. In effect, the Economic Analysis is applying 

wetland values for the Midwest and Prairie Pothole regions to the remainder of the U.S. 

The number of substitutes is likely to differ in those regions, and that would also affect 

the public’s value for wetlands. Similarly, the characteristics of affected populations (e.g., 

average household income and preferences toward environmental goods) are likely to 

differ in the Midwest and Prairie Potholes regions compared to other regions in the 

country. Other things being equal, people with higher incomes might be expected to set 

higher values for wetland services than people with lower incomes; however, the value of 

wetlands per household acre is also expected to vary by regional use. The Economic 

Analysis ignores regional differences in wetland values and assumes that all regions 

value wetlands the same – which is not realistic or appropriate.
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Table 3-3 Comparison of States in Valuation Studies to States in Regions in 

Economic Analysis of the Proposed Rule

In short, these studies are not applicable for two reasons. First, the environmental 

commodity being valued in the 10 studies is not applicable to the newly designated 

WOTUS under the Proposed Rule. Additionally, the assumption that all regions in the 

U.S. have the same value for the newly designated WOTUS is not realistic or 

appropriate.

The second criterion addresses the quality of the valuation studies because the “quality of 

value estimates in the study cases will in large part determine the quality of the benefit 

transfer.”183 The quality criterion considers factors including: 1) the design of the 

valuation studies; 2) survey of development and structure; 3) sampling approach; 4) value 

 

183 EPA and the Corps 2014, p. 7-46.
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elicitation question; 5) data processing of survey responses; and methodology for 

analyzing the responses to the valuation questions.

In addition to failing the applicability criterion, the 10 wetland valuation studies are also 

problematic for the quality criterion in several ways.

First, the response rates for 9 of the studies varied from 31 percent to 62 percent. Such 

low response rates may produce substantial non-response biases, which could vary 

greatly over the 10 studies. Although EPA’s Guidelines describe two methods to evaluate 

potential non-response biases,184 the 10 studies do not mention the use of either method 

to test for non-response bias.

Second, the 10 studies all use the contingent valuation method (CVM) to estimate the 

public’s value for wetland services. Responses to CVM questions may suffer from 

hypothetical biases – which are especially likely when respondents are asked to value 

commodities that are not well known or understood by the general public (e.g., wetlands). 

While EPA’s Guidelines describe several tests for such biases,185 none of the 10 studies 

indicate that they implemented and passed such tests. 

In addition to hypothetical biases, CVM responses can exhibit other types of bias. These 

include, but are not limited to the following:

 Strategic responses – responses intended to influence the “policy” associated with 

the environmental commodity rather than reflect the respondent’s willingness to 

pay for the commodity;

 Protest responses – responses based on a rejection of the valuation scenario or 

payment vehicle for the environmental commodity (e.g., increased taxes);

 Yea saying – the tendency for respondents in personal interviews to accept the 

valuation scenario in an attempt to please the interviewer;

 Anchoring bias – the tendency for respondents to state a value influenced by a 

value provided in the valuation scenario; and

 “Warm glow” responses – a value provided by respondents that reflects their 

enjoyment of supporting a worthy cause rather than their value for the 

environmental commodity.

Due to significant controversies about these and other biases in CVM responses, the 

National Oceanic and Atmospheric Administration (NOAA) formed a Blue Ribbon Panel 

in the early 1990s to develop guidelines on the use of the methodology. The Panel issued 

its guidelines in early 1993,186 indicating that no CVM studies up to that point met its 

 

184 See p. 7-43, and 7-44.

185 See p. 7-41 to 7-43.

186 58 Federal Register 4,601 (January 15, 1993).
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guidelines. Six of the 10 valuation studies in the Economic Analysis for the Proposed 

Rule were implemented prior to the issuance to the Panel’s guidelines and do not meet 

them. Thus, it is very unlikely that the 10 valuation studies produce valid results for 

wetlands.

Additional problems with the benefits transfer of the 10 studies include:

 The 10 studies also have different payment frequencies and payment vehicles 

(e.g., trust fund donation, sales tax, and income tax). Past research has shown that 

these factors influence valuation responses. It is unlikely that the mix of payment 

frequencies and payment vehicles reflected in the 10 studies produces a valid 

estimate of wetland values for the Proposed Rule.

 Only 5 of the 10 studies are peer-reviewed journal articles (a well-known 

indicator of high-quality studies). The other studies include 1 book chapter, 3 

reports, and 1 presentation. These “studies” may lack any peer review or may 

have minimal peer-review – the extent of peer review for 5 of the 10 valuation 

studies is simply unknown.

 The value in one of the 10 studies is clearly an outlier. Specifically, the Mularkey 

and Bishop (1999) value per acre per household is more than 100 times the 

geomean value per acre per household for the 10 studies. Removing that one 

study reduces the geomean value per acre per household by 40 percent for both 

discount rates. In other words, removing the 1 outlier value for the 10 studies 

would lower the Agencies’ benefit estimate for avoiding the loss of wetland acres 

by more than $100 million.

In conclusion, the Economic Analysis produces an overstatement of the benefits per acre 

of protecting wetlands for three important reasons:

1. Most of the valuation studies involve WOTUS, which produce more services and 

presumably have a higher value than non-WOTUS, the focus of the Proposed Rule.

2. Many studies have demonstrated that CVM methodology produces inflated values for 

environmental commodities that are not well known or understood by the public, such as 

wetlands.

3. One of the 10 valuation studies has a value that is more than 100 times the average 

value for all 10 studies – removing that one study decreases the average value by 40 

percent.

Given all the issues discussed above, the Agencies’ benefits estimates for 

preserved/mitigated wetlands are not appropriate for use in this evaluation. The 

Agencies should perform an updated benefits evaluation taking all these concerns 

into consideration. Without these revisions, the cost-benefit analysis performed is of 

little value. (p. 75-82)
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Agency Response: See Summary Response under the current section (Topic 11.3.2 

Benefits)

Western Landowners Alliance (Doc. #16553)

11.2.265 2. Illustrate Benefits to Agriculture - There have been some strong concerns 

expressed about this proposal from some segments of the agricultural community, despite 

the broad exemptions granted to agriculture in the CWA. These perspectives would 

benefit from illustration of the number and effect on downstream waters of CWA-related 

actions. Many 404 permit actions related to development, oil and gas, and CAFO 

activities benefit downstream water quality, water supplies, and stream health. Broader 

and more specific examples of these benefits would be beneficial to the dialogue on this 

proposal. (p. 3)

Agency Response: See Summary Response under the current section (Topic 11.3.2 

Benefits) and Section 9 of the final rule EA.

11.4. OTHER CWA PROGRAMS

Agency Summary Response

Several commenters asked the agencies to carefully consider costs to Clean Water Act (CWA) 

programs other than Section 404 dredge and fill permitting, including 303, 305, 401, and 402. 

The agencies did indeed address these other programs in the economic analysis (EA) 

accompanying the proposed rule, and has carefully reconsidered potential impacts to all these 

programs for the EA accompanying the final rule. Some commenters believed that there would 

be costs to states to administer the Section 303(c) water quality standards program because states 

would need to develop new standards for the new categories of waters becoming jurisdictional as 

a result of the rule. The agencies stand by the assertion that states should not incur these costs 

because states already have standards in place for streams (often multiple types of streams) and 

wetlands. Under current practice, the agencies already assert jurisdiction over most waters in the 

categories at issue for this rule, so it is more a matter of whether or not the standards in place 

apply to a particular water or not. The agencies also point out that prior to the 2001 SWANCC and 

2006 Rapanos Supreme Court cases addressing CWA jurisdiction, by and large the same water 

quality standards were in place to cover all waters at issue for this rule. 

Some commenters also suggested that it is wrong for the agencies to assume states would not 

incur more costs to monitor the increased number of waters where the agencies would assert 

jurisdiction under the proposed rule. The agencies do not anticipate nor expect that states will 

significantly alter their monitoring expenditures or strategies as a result of this final rule. In the 

unlikely case that a state does alter its monitoring to include, for example, more ephemeral 

streams or remote wetlands with a significant nexus to navigable waters, and less monitoring at 

other sites, the agencies acknowledge that there would be opportunity costs associated with such a 

shift.

Commenters similarly suggested that the agencies did not consider potential costs to wastewater 
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discharge permit holders carefully enough. The agencies stand by the logic behind the assertion 

that current permit holders have not let their permits lapse because of assumed non-jurisdiction 

after the Supreme Court cases addressing CWA jurisdiction. The agencies did not receive any 

comment with evidence to the contrary.

Some commenters suggested that costs associated with Section 311 SPCC plans would affect a 

great many local entities and the costs would be greater than estimated. The agencies 

acknowledge the uncertainty behind the estimate of the number of entities affected, but 

unfortunately do not have a reliable census of the specific number of facilities without SPCC 

plans that would now need them. The agencies relied on unit cost information from previous 

rule-making efforts and was not presented a compelling reason to suggest they were no longer 

accurate. Some commenters believed the benefits assessment for Section 311 was wholly 

speculative and lacked a basis for key assumptions. In particular, some commenters believed that 

it was wrong to assume a facility was doing nothing to prevent an oil spill just because they may 

believe they are not subject to Section 311 requirements. The agencies believe there are strong 

benefits associated with Section 311 programs, yet acknowledge the difficulty in quantifying 

them using the methodology presented in the EA accompanying the proposed rule. As such, the 

agencies opted to omit this quantified benefits category and leave them unquantified for the EA 

accompanying the final rule. 

Some commenters believed that there would be additional costs associated with implementing the 

MS4 portion of the Section 402 program and other Phase I stormwater controls. Examples of 

these costs include additional treatment cost of stormwater conveyances to meet numeric nutrient 

criteria, and enforcement fines and penalties and opportunity costs of maintenance projects 

delayed that would require additional permitting. The agencies continue to believe that the 

stormwater program implementation related efforts will not be greatly affected by the final rule 

because of their location and the area-wide scope of implementing BMPs. Commenters are 

referred to EA document for a further discussion and response. Commenters also questioned the 

validity of the approach taken to quantify costs and benefits to certain 402 programs. The 

agencies continue to assert it is reasonable to rely on the estimates of change in jurisdictional 

determinations related to 404 activity as a starting point, and to rely on previous efforts to 

quantify costs and benefits undertaken for other rulemaking. Construction-related stormwater 

discharges, CAFO discharges, and permit application of pesticides are more likely to occur in 

similar locations as CWA Section 404 dredge and fill discharge with respect to proximity to 

“isolated waters”, small streams, and their adjacent wetlands. Additionally, in an effort to 

accurately estimate the potential increase in permit costs, when applying the estimated increase 

in jurisdictional waters as a proxy for an increase in Clean Water Act permits, the agencies 

examine each respective program to adjust for growth or shrinkage since the original regulatory 

impact analysis was completed.

Some commenters said the agencies analysis of Section 401 implementation costs did not 

account for cost to industry to obtain certification or the cost of delays. The agencies 

acknowledge that the cost of delay was not addressed, yet are unable to provide an estimate. The 

agencies assume that industry does not incur separate costs to obtain certification apart from the 

permit costs already accounted for.

A commenter suggested that the 1994 to 2011 time period used for estimating growth in 402 

stormwater permit activity were not an accurate representation, referring to them both as 
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recession years. The agencies acknowledge that there are fluctuations in annual levels of 

construction activity; however, the economy was not in recession in either 1994 or 2011 and the 

agencies consider the estimates from these years to be reasonably representative. Some 

commenters suggested the data set used for estimating 402 stormwater permit costs was too 

limited. They suggested using a data set covering more years to estimate activity levels and more 

recent data to estimate unit costs. The agencies acknowledge that the commenter’s suggestions 

are a reasonable approach to estimating costs. However, the agencies consider the cost estimates 

from the Economic Analysis of Final Phase II Storm Water Rule to be appropriate, and they have 

the added advantage of the benefits estimates for the same set of activity.

A commenter pointed out that although the number of CAFOs has declined the average size of 

CAFOs has become larger, and that the 49 percent reduction made for the EA may have over 

compensated and the estimate may not be accurately reflecting the impact to the industry. The 

agencies acknowledge that as the number of CAFOs declined the average size of the CAFOs, in 

terms of animal units, may have increased. This would not necessarily lead to an under 

representation of the number of permitted CAFOs affected by the rule, but possibly an under 

representation of the number of acres impacted. The under representation of area would be 

difficult to estimate because a CAFO may have increased in average size with regards to animal 

units, since they are by definition concentrated in a small area. Therefore, without knowing if 

there was a change in animal density, the increase in average animal units cannot be translated 

directly into area and waters impacted. Furthermore, a primary reason that CAFOs have become 

larger is to capture economies of scale and presumably these economies of scale would apply to 

compliance costs as well. Not taking into account the economies of scale for larger CAFOs to 

some extent makes the cost estimates from the CAFO rule conservative.

See sections 5-8 of the EA for the Final Rule for a discussion of the costs and benefits of non404 CWA programs.

Specific Comments

Tennessee Valley Association (Doc. #17470)

11.2.266 III. Issues of Concern - Consequences and Financial Impacts

a. Projected Consequences of the Rule - General Concerns

TVA has concerns about how the Proposal and the associated regulatory requirements 

will be applied and interpreted in the context of Clean Water Act programs other than 

Section 404. In amending the definition of "navigable waters" to expressly include 

“waters of the United States, including territorial seas" in conjunction with the expanded 

definition of WOTUS, the proposal will impact many specific programs and would 

change the definition for all sections of the CWA. Nevertheless, the Proposal and 

supporting economic analysis focuses primarily on the 5404 permit program and fails to 

give consideration to the effects the change will have on other CWA programs. There is 

inadequate consideration as to how the Proposal will affect non-404 Clean Water Act 

programs (i.e. prohibition of discharges of pollutants (§ 301), permitting requirements for 

point source discharges (5402), water quality standards and measures to attain them 

(§303), oil spill prevention and control (531 I), state certifications (5401), and 
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enforcement (5309)). This is a major concern, especially from the standpoint of economic 

impacts to both state regulators and the regulated public. In the case of TVA, we have 

strong reservations about how these non-404 program changes may hinder our ability to 

operate and maintain 13,000 miles of transmission lines and 75 electric power generating 

facilities. (p. 4)

Agency Response: Please refer to the summary response provided at the 

beginning of section 11.4. 

The United States Conference of Mayors, et al. (Doc. #15784)

11.2.267 3. The Economic Analysis of Proposed Revised Definition of Waters of the U.S. 

is flawed because it does not include a full analysis of the proposed rule’s impact on all 

CWA programs beyond the 404 program (including the National Pollutant Discharge 

Elimination System (NPDES), total maximum daily load (TMDL) and other water 

quality standards programs, state water quality certification process, and Spill Prevention, 

Control and Countermeasure (SPCC) programs). Since of number of these CWA 

programs directly affect state and local governments, it is imperative the analysis provide 

a more comprehensive review of the actual costs and consequences of the proposed rule 

on these programs. (p. 3)

Agency Response: Please refer to the summary response provided at the 

beginning of section 11.4 and the summary responses for Topic 11.3.1 (Costs) and 

Topic 7.

11.2.268 Perform a thorough economic analysis inclusive of an examination of impacts of 

the proposed rule on all CWA programs using deeper and more relevant data. We urge 

the agencies to interact with issue-specific national associations to collect these data sets.

(p. 4)

Agency Response: Please refer to the summary responses provided at the 

beginning of section 11.4 and Topic 11.3.1 (Costs). The agencies believe sufficient 

data were available to present a credible analysis.

Greater Houston Partnership (Doc. #14726)

11.2.269 Underestimated Implementation Costs

Estimated implementation costs don't appear to include costs associated with changes to 

CWA Section 303- Water Quality Standards, CWA Section 311- Oil Spill Prevention, 

CWA Section 401- Water Quality Certifications, and CWA Section 402- National 

Pollutant Discharge Elimination System. GHP urges EPA to update the economic 

analysis of the rule to include these other costs. (p. 4)

Agency Response: Please refer to the summary response provided at the 

beginning of section 11.4 and see Sections 5-8 of the Economic Analysis.
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Water Advocacy Coalition (Doc. #17921.15)

11.2.270 B. OTHER (NON-404) PROGRAMS

EPA calculated costs associated with other CWA programs by adopting previous 

estimates and accounting for growth in jurisdictional waters and changes in program size. 

The cost analysis of other CWA programs is simplistic and relies on the same 2.7% 

acreage increase figure derived for section 404. This is especially problematic given the 

errors associated with the derivation of this estimate. Unsubstantiated assumptions from 

the incremental acreage calculations are revisited and recycled in subsequent sections to 

generate other cost estimates. Some of these errors could be avoided through a careful 

assessment of program-specific effects. Unfortunately, the EPA analysis falls short in this 

regard.

In its sensitivity analysis regarding the incremental acreage estimate, EPA recalculates 

costs and benefits under the alternative assumptions for project files related to other 

waters. Depending on the scenario, upper or lower bound designation, and type of 

doubling, they acknowledge costs could be as high as $422 million (compared to its 

working upper-bound estimate of $231 million). EPA’s most-likely alternative estimate is 

that costs could be $278 million, a 20% increase from current estimates. The variation 

between these values reveals how relatively small changes in the assumptions used to 

generate incremental acreages can have substantial impacts on the cost estimates. Since 

the validity of these assumptions is highly suspect, it becomes clear that the EPA analysis 

is entirely insufficient at predicting the costs associated with a “waters of the United 

States” definition change.

EPA explicitly omits costs to some programs that may be affected due to lack of data. 

EPA asserts that other programs are likely to be “cost-neutral or minimal” without 

providing an analysis to support this conclusion. Specifically, EPA states that a 

definitional change will have little to no effect on section 303 (state water quality 

standards and implementation plans) and section 402 (National Pollutant Discharge 

Elimination System (NPDES) permitting). These are bold claims that should be 

substantiated with a thorough analysis. (p. 70)

Agency Response: Please refer to the summary responses provided at the 

beginning of section 11.4 and Topic 11.2 (Scope of Change of Jurisdiction). 

11.2.271 B. OTHER (NON-404) PROGRAMS

Much like its cost estimates, EPA calculates benefits to other CWA programs by scaling 

up previous estimates according to the growth in jurisdictional waters and program size. 

Incremental benefits associated with section 402 stormwater permitting are estimated to 
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be between $25.4 and $32.3 million per year. This is based on programmatic growth of 

30% and a jurisdictional expansion of 2.7% from original 1998 estimates.187

Incremental benefits from additional section 402 CAFO permitting range from $3.4 to 

$5.9 million per year, and are based on a 50% contraction in program size from 2001 

estimates.188 These estimates reflect benefits to large CAFOs, which comprise 85% of the 

operator costs and 66% of the administrative costs. Incremental benefits associated with 

section 311 (oil spill prevention plans) are calculated by summing expected annual 

benefits of $14,255 per spill over 1,000 non-complying facilities.189 This calculation 

yields annual benefits of approximately $14.3 million.

The EPA analysis does not quantify benefits derived from expanded state certification of 

waters (section 401). It recognizes the lack of uniformity in section 401 implementation 

across states, and suggests: “[t]o the extent that states condition permits, added costs to 

permittees and environmental benefits associated with compensatory mitigation would be 

accounted for in the methodology for assessing those incremental impacts: they would 

accrue to the same extent as represented in the baseline.”

Benefits to some programs that may be affected are explicitly omitted due to lack of data. 

EPA suggests there may be “across the board” savings in program enforcement related to 

increased clarity in the CWA. While there may be some legitimacy to this claim, it 

remains unquantified and thus plays little value in the economic analysis. Whatever 

enforcement benefits are realized may be offset by programmatic changes that expand 

permitting and administrative requirements. A summary of costs and benefits associated 

with a change in the “waters of the United States” definition are provided in Table 7.

 

187 See footnote 14.

188 See footnote 15.

189 Average spill volume of 1,290 gallons (2000-2005 National Response Center data) multiplied by average cleanup costs of $221/gallon, assuming a 1/20 chance of a spill.
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Table 7: Summary of Costs and Benefits (2010$ millions)

(p. 79-80)

Agency Response: Please refer to the summary responses provided at the 

beginning of section 11.4 and Topic 11.3.1 (Costs).

Lydig Construction Inc. (Doc. #14147)

11.2.272 Additionally, EPA`s economic analysis seriously underestimates impacted 

acreage and completely ignores impacts to non-404 programs. Recognizing that state and 

local governments are managing water resources that are not under federal control, it is 

unclear why the agencies rushed through these and other important procedural steps 

designed to ensure that businesses like mine are protected. (p. 2)

Agency Response: Please refer to the summary responses provided at the 

beginning of section 11.4 and Topic 11.2 (Scope of Change of Jurisdiction). The 

agencies carefully considered costs to states, local governments, and businesses. 
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Halliburton Energy Services, Inc. (Doc. #15509)

11.2.273 In reality, what certainty is being provided comes at a high price - most 

landowners can be almost certain any feature that captures rain during rain events will 

fall under federal jurisdiction, no matter how fleeting, and they can be certain that the 

permitting process will be long, expensive and burdensome. If a landowner is fortunate 

enough to have any remaining doubt about certain features, the jurisdictional 

determination process to gain the benefit of any of vague exemptions will be slowed even 

beyond what is experienced today. There is no indication that the Corps has the resources 

to handle the fallout from this proposed rule. Moreover, the expansion of jurisdiction 

under the proposed rule would also impose significant additional burdens on states, 

which will see their costs associated with implementation of various CWA programs -

including programs under Sections 303(d) and 402 - increase even though the states have 

had limited input regarding the proposed rule. (p. 10)

Agency Response: Please refer to the summary responses provided at the 

beginning of section 11.4 and Topics 11.2, 11.3.1, 11.3.2, and 14. 

Along with a narrowing of jurisdiction, the final rule also significantly reduces the 

uncertainty and number of case-specific determinations that will required, reducing 

state and federal workload associated with jurisdictional determinations. 

Illinois Coal Association (Doc. #15517)

11.2.274 But the implications go well beyond 404 permitting alone. For one, bringing these 

features within CWA jurisdiction would, pursuant to section 301 of the Act, force states 

to devote limited resources toward the development and enforcement of water quality 

standards for these man-made and, in many cases, temporary water features. Equally 

absurd would be the significant amount of Company resources required to comply with 

these "ditchwater" standards. At the same time, the Proposal's broad definitions of the 

terms "tributary," "neighboring" and "significant nexus" would multiply the number of 

regulated outfalls under CWA section 402 at large mine sites. This would significantly 

increase 402 compliance costs, particularly when viewed in light of the additional 

requirements under EPA's currently proposed 2013 MultiSector General Permit for 

stormwater discharges (which serves as a model for corresponding permits in delegated 

states). (p. 11-12)

Agency Response: The final rule is narrower in scope than the existing 

regulations and historical practice. Please refer to the summary responses provided 

at the beginning of section 11.4 and Topics 14 and 7.

Family Farm Alliance (Doc. #1431)

11.2.275 Although the EPA's Economic Analysis purports to analyze the costs of 

overlaying this new "waters of the United States" definition onto other CWA programs, 

the analysis largely focuses on the section 404 program and essentially concludes that 

there will be no additional costs for other CWA programs. This cursory analysis is seems 
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inadequate. The agencies have not considered, for example, that many stormwater ditches 

and features may now meet the definition of "waters of the United States," thereby 

requiring the features to achieve water quality standards, including numeric effluent 

limitations. The agencies have not looked at how this type of change may create 

confusion over whether an NDPES permit is required for certain features or may place an 

increased burden on states administering stormwater programs and setting water quality 

standards. The EPA and the Corps have not truly considered how the proposed rule may 

affect the states implementing the various CWA programs or the stakeholders regulated 

by these programs. Nor have the agencies analyzed how the proposed definition of 

"waters of the United States" will affect their own administration of each of the CWA 

regulatory programs. (p. 3)

Agency Response: Please refer to the summary responses provided at the 

beginning of section 11.4 and Topics 11.2, 11.3.1, 11.3.2, 7 and Topic 14. 

Mohave Electric Cooperative, Inc. (Doc. #10953)

11.2.276 Beyond Section 404 permitting, the Proposed Rule would also impose significant 

costs associated with compliance obligations under multiple CWA programs that rely on 

the definition of Waters of the U.S. For example, CWA Section 311 relates to the spill of 

petroleum products to Waters of the U.S., and requires development of a formal Spill 

Prevention Control and Countermeasure (SPCC) plan for operations that utilize 

petroleum products above a certain threshold. The SPCC plan has a particular set of 

requirements and is subject to federal audit. However, cooperatives, whether or not they 

meet the threshold to require an SPCC plan, incorporate best management practices into 

their operations to minimize or eliminate costly petroleum spills, making an SPCC plan 

redundant and unnecessary. This expansion would apply equally to CWA Sections 303 

(impaired waters) and 402 (stormwater discharges), all at an additional expense 

cooperatives. (p. 8)

Agency Response: Please refer to the summary responses provided at the 

beginning of section 11.4 and Topic 11.2, 7 and Topic 14.

11.4.1. 303 and 305

Agency Summary Response

Please refer to the summary response provided at the beginning of section 11.4. 

Specific Comments

Wyoming Association of Conservation Districts (Doc. #14068)

11.2.277 (...) Further, the cost analysis discussion as it relates to sections 303 and 305 in 

essence claims that since states typically incorporate what may have been non-
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jurisdictional into their water quality standards, water quality assessment reports and 

TMDL/watershed programs, the rule would essentially have no impact.

While the Association concurs that the state and local governments do address water 

quality efforts within their local watershed(s) on what would arguably be considered nonjurisdictional waters, this currently is a matter of practice due to EPA’s expectations. 

There are a number of waters being addressed within these programmatic processes that 

the Association would argue are non-jurisdictional.

The Association believes the cost analysis fails to recognize the significant cost savings 

to the federal, state and local governments should those waters appropriately nonjurisdictional be left to state and local government entities to address. For example, as 

indicated earlier, due to EPA requirements the state currently spends on average 

$150,000 per TMDL. Many of these would encompass waters that the Association 

believes would fall outside EPA jurisdiction and therefore may not require the costly and 

expensive processes. Yet all of these tributaries are evaluated and best management 

practices are implemented locally at a much more efficient rate. (p. 7)

Agency Response: Please refer to the summary response provided at the 

beginning of section 11.4. The agencies did not consider potential impacts of cost 

savings of relying solely on state and local authorities because that was not 

proposed.

11.4.1.1 Costs

Agency Summary Response

Please refer to the summary response provided at the beginning of section 11.4. 

Specific Comments

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

11.2.278 D. Expansion of the Scope of State Regulatory Programs

Another consequence of the proposed rule that the Agencies have overlooked is the 

impact on States’ water quality standards programs. Like the impacts on permitting 

programs, the economic analysis accompanying the rule asserts, without analysis, that 

impacts on water quality programs implementing Section 303 of the Act will be minimal.

Currently, not all States include ephemeral waters in their regulatory programs. In 

comments on the 2011 guidance, Kansas noted that expanding federal jurisdiction to 

include ephemeral water would bring approximately 100,000 miles of dry erosion 

features into their State clean water act program, and Kansas would then be compelled to 

assign water quality standards and develop total maximum daily loads (TMDLs) for 

“what amounts to surface depressions that function only during sufficient 
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precipitation.”190 After an extensive stakeholder process, the State of Missouri recently 

adopted changes to its stream classification program, expanding it to include all streams 

represented in the 1:100,000 scale of the USGS National Hydrology Dataset.191 The 

decision to exclude default classification of smaller streams (those represented at the 

1:24,000 scale) was based on an evaluation of the aquatic resources of the state.192

This increase is not limited to Kansas and Missouri. Indeed, it would be similar in most 

States. States are required under Section 305(b) of the Act to submit to EPA a description 

of the water quality of all federal waters within their borders. The most recent State 

reports can be found on the EPA’s website.193 Comparing the “waters of the United 

States” reported by States to recent USGS maps released by EPA shows a 131% increase 

in federal waters.

The Agencies have failed to quantify the burden on State regulators from this increased 

federal jurisdiction. EPA’s ATTAINS database that tracks TMDL development reports a 

total of 3,533,205 river and stream miles in the United States based on data reported by 

States using the National Hydrography Dataset (NHD). The NHD is a database that 

interconnects and uniquely identifies the millions of stream segments or reaches that

comprise the Nation’s surface water drainage system and is based on the USGS 1988 

1:100,000-scale Digital Line Graph (DLG) hydrography dataset integrated with reachrelated information from the USEPA Reach File Version 3.0-Alpha release (RF3-

Alpha).194

According to EPA’s report on “The Ecological and Hydrological Significance of 

Ephemeral and Intermittent Streams in the Arid and Semi-arid American Southwest” 

(EPA/600/R-08/134) (Nov. 2008), even the high resolution NHD “may grossly 

underestimate the number and length of drainage networks,” i.e., ephemeral streams. 

(“Heine et al. (2004) reported that USGS 1:24,000-scale maps under-represented 

drainage networks by 64.6 percent in a study in Kansas”).

EPA’s currently approved Information Collection Request (ICR) (EPA ICR No. 1560.10, 

Nov. 2011) for both water quality reporting and TMDL development activities estimate 

the cost to States for those programs at $193,568,080 a year. Of that amount, $21,390,991 

 

190 July 14, 2011 Comments of the State of Kansas on EPA and Army Corps of Engineers Guidance Regarding the

Identification of Waters Protected by the Clean Water Act.

191 See 10 CSR 20-7.031(2)(A) (adopting fishable, swimmable standards for: “1. All perennial rivers and streams; 2.

All streams with permanent pools; 3. All rivers and streams included within the 1:100,000 scale National

Hydrography Dataset (NHD) described in subsection (1)(R) of this rule.”). This decision expanded the miles of

classified streams in Missouri from 25,025 to a total of 109,870. Missouri Department of Natural Resources,

Regulatory Impact Report, In Preparation for Proposing, An Amendment to 10 CSR 20- 7.031, Missouri Water

Quality Standards (June 3, 2011), at 26.

192 Missouri Department of Natural Resources, Regulatory Impact Report, In Preparation for Proposing, An

Amendment to 10 CSR 20- 7.031, Missouri Water Quality Standards (June 3, 2011), at 35.

193 http://water.epa.gov/lawsregs/guidance/cwa/305b/upload/2000_06_28_305b_98report_appenda.pdf

194 EPA’s ATTAINS database also reports a total of 107,700,000 wetlands acres. 
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is for assessment activities. The remaining costs of $172,267,089 are for TMDL 

development and EPA assumes 4000 TMDLs a year, averaging $43,000 per TMDL.

If a final rule includes all ephemeral drainages and all “adjacent water” as waters of the 

U.S., then the cost to States to include these in their water quality programs will increase 

significantly. While the Agencies have failed to include these costs in the regulatory 

impact analysis of the proposed rule, some States have provided cost estimates. 

According to the State of Missouri, if it had to regulate all stream miles discernible at the 

1:24,000 scale of the National Hydrology Dataset, it would add an additional 158,565 

miles of stream (183,591 miles total) to its existing classified waters network and would 

more than double the State’s monitoring costs from about $11.2 million a year to $24.2 

million.195

The Agencies may argue that EPA will not require States to set standards for these waters 

or include them in monitoring programs; however, Section 303 of the Act applies to all 

waters of the U.S., and citizen plaintiffs could sue EPA for failing to force States to take 

such actions.196

This is a real impact of the rule on State regulatory programs that the Agencies must 

include in their economic analysis and take into account in the amount of federal funding 

provided for State programs under Section 106 of the Clean Water Act. (p. 8-9)

Agency Response: Please refer to the summary response provided at the 

beginning of Topic 11.4 and11.2. The agencies did not rely on hydrology dataset 

maps as a proxy for jurisdiction because there are other more relevant indicators 

that, in many cases, must be assessed on a case-specific basis. 

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

11.2.279 The economic analysis estimates indirect costs to the Section 404, 401, 402 and 

311 programs, but does not include any indirect costs to the programs within Section 303 

of the CWA due to the expanded jurisdiction assumed.197" The analysis assumes that 

because states have always been required to have designated uses, criteria to protect those 

uses, and antidegradation policies-and that requirement is not changing-that there would 

be no additional administrative cost increases to implement Section 303.198 The analysis 

 

195 See supra n.12 at 25, 35. If existing standards do not apply to the newly regulated waters, States also will have to

incur significant costs developing new water quality standards.

196 Indeed, such a lawsuit was filed in Missouri. Missouri Coalition for the Environment v. Lisa P. Jackson, Case 

No.

10-04169-CV-C-NKL. In that case, the court agreed with EPA that imposing federal standards was a discretionary

action. However, the same issue currently is being litigated in the Fifth Circuit in Gulf Restoration Network v. EPA,

Case No. 12-cv-677.

197 Id. at 3-33.

198 Id. at 6.
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simply assumes the required standards will already exist and states will be able to simply 

apply the standards to additional waters.

As a general matter, it seems highly unlikely EPA and the Corps actively took 

jurisdiction over almost all waters across the U.S. prior to 2009 in the implementation of 

all the relevant programs under the CWA and the analysis provides no citation or support 

for this assertion. If this is the case, the state agencies assume there would be data 

supporting the conclusion in the historic records associated with the Section 404 or other 

CWA programs and requests that the economic analysis be revised to include this data. If, 

in fact, a sub-set of all waters were actively regulated as federal waters, then it is possible 

that long-standing CWA programs like those under Section 303 of the CWA will 

experience as much impact as any of the other CWA programs. In such a case, EPA and 

the Corps must estimate the indirect cost impacts associated with Section 303 programs 

as well. (p. 30)

Agency Response: Please refer to the summary response provided at the 

beginning of section 11.4. The agencies asserted jurisdiction broadly prior to the 

2001 and 2006 Supreme Court decisions. 

Water Advocacy Coalition (Doc. #17921.15)

11.2.280 4. Section 303 Water Quality Standards

EPA claims that a definitional change will have little to no effect on section 303 (state 

water quality standards and implementation plans). This is a bold claim that should be 

substantiated with a thorough analysis. For example, section 303(c) requires states to 

establish water quality standards (consisting of uses, criteria, and an anti-degradation 

policy) for all navigable waters. EPA (p. 6) assumes that states may simply apply uses 

and criteria developed for other categories of waters (e.g., freshwater rivers and streams 

used by the public for fishing, swimming, boating, and as sources of drinking water) for 

ditches, ephemeral streams, and other newly jurisdictional waters for which those uses 

and criteria would seem to be wholly inappropriate. In reality, though, states will have to 

designate uses and set water quality criteria for new waters and features that now meet 

the agencies’ expanded definition of “waters of the United States.” This process is 

extremely costly and burdensome for the states. Indeed, if states do not designate water 

quality standards for these newly jurisdictional waters, they are likely to be sued by third 

parties. In the past, states have been sued for failure to assign uses and set water quality 

criteria for all jurisdictional waters located within the state. EPA’s analysis does not 

account for these obligations that will be forced upon the states and the states’ increased 

litigation risk created by the proposed rule.

Similarly, Section 303(d) requires states to generate a list of impaired waters that do not 

meet specific water quality standards. States also must calculate total maximum daily 

loads (TMDLs) of various pollutants that are necessary to bring these waters into 

compliance. It stands to reason that the addition of newly-jurisdictional waters would 

increase the surveying, planning, monitoring, and enforcement necessary to achieve these 
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tasks. EPA claims: “[t]o the extent that this proposed rule may increase the coverage 

where a state would wish to apply its monitoring resources, states are likely to adjust 

sampling locations or sampling frequency without a net cost increase.”199 This is 

simultaneously disingenuous and discouraging, suggesting states must make important 

decisions about water quality from a less-comprehensive scientific investigation by 

spreading already scarce resources even thinner. (p. 74-75)

Agency Response: Please refer to the summary response provided at the 

beginning of section 11.4.

Nevada Mining Association (Doc. #14930)

11.2.281 But there is more. Arguably, the State (or EPA) would have to establish, and 

member companies would have to meet, water quality standards and Total Maximum 

Daily Loads ("TMDL) for these artificial ponds and their associated ditches, even though 

no one would ever think to fish in these ponds or channels, to recreate in them, or to use 

them for any purpose other than as industrial ponds. See CWA 5 303(d). Indeed, an 

operator might be required to make its ponds "fishable/swimmable," an absurd 

proposition especially with respect to tailings impoundments, which are designed as 

waste disposal units.

Mining companies would also have to go to enormous effort and expense to try to prove 

to regulators that a particular pond or channel was not an "other water." This would entail 

significant investigatory and advocacy costs to show that there is no "significant nexus" 

to deep groundwater from a pond or channel to a TNW, or that rainfall that is captured in 

the ponds and channels would not otherwise have flowed to a TNW in the absence of 

these ponds or ditches. In fact, mining companies would have to prove not only that their 

specific ponds and channels have no such nexus to a TNW but that no other pond or ditch 

operated by anyone else in the same watershed have such a nexus - something that would 

be extremely expensive, if not impossible, to show. (p. 15)

Agency Response: Please refer to the summary response provided at the 

beginning of section 11.4. Commenter assumes certain waters would be impaired 

and prioritized for TMDL development. Waste treatment systems are excluded 

from jurisdiction. 

Independent Petroleum Association of America (Doc. #18864)

11.2.282 Association member companies estimate a 50-60 percent increase in jurisdictional 

waters affecting operations in West Texas - well beyond the alleged 3 percent increase 

asserted by EPA and USACE in the proposal.

 

199 This quote is in reference to Section 305(b), which requires states to issue a report about the water quality in all 

navigable waters and how they meet specific water quality goals. However, it appears to reflect the EPA’s position 

about all programs where water quality monitoring in necessary.
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One Permian Basin operator has estimated an increase from the 20 SPCC plans currently 

in effect to an additional 10,000 new SPCC plans under the proposal. Such plans 

typically cost an estimated $5,000 per plan. This proposed definition and related 

regulatory impact analysis do not address such significant broadening of the "waters of 

the United States" program.

Another Permian Basin operator estimates that the cost of merely updating current SPCC 

plans in the Permian Basin in two relatively small fields (15 multi-well batteries and 20 

multi-well batteries), would result in $1,000 per well (field and office work) for a total of 

$35,000.200

Based upon past implementation of SPCC, few hydrocarbon liquid storage facilities in 

the Permian Basin are adjacent to "waters of the United States," however, such operations 

typically have protective berms. These existing berms are not always constructed to meet 

the requirements of secondary containment pursuant to the SPCC regulatory program. 

Based upon the assessment of the proposed definition for "waters of the United States" it 

is estimated that for one company over 1,000 new SPCC plans (for 1,200 sites) would be 

required. The incremental cost for bringing those related facilities into the SPCC program 

would result in an expenditure of over $11.4 million per year. Upgrading those sites 

would cost an estimated $10,000 per site for a total of $12 million. (p. 7-8)

Agency Response: Please refer to the summary response provided at the 

beginning of section 11.4.

County Engineers Association of Ohio (Doc. #1997)

11.2.283 Proposed changes in the definition of Waters of the United States have many 

potential impacts on our ability to deliver maintenance and capital improvements to our 

constituents. Costs of ensuing changes, in our opinion, far outweigh the benefits of 

perceived water quality, especially without more detailed scientific reasons. (p. 2)

Agency Response: The agencies believe the rule will expedite the permit review 

process in the long-term by clarifying jurisdictional matters that have been timeconsuming and cumbersome for field staff and the regulated community for certain 

waters in light of the 2001 and 2006 Supreme Court cases. The Corps’ Nationwide 

Permit program, which authorizes Clean Water Act Section 404 discharges that 

would have no more than minimal adverse impacts to aquatic resources, is available 

for activities that qualify. For example, Nationwide Permit 3 (“Maintenance”), 

Nationwide Permit 12 (“Utility Line Activities”), and Nationwide Permit 14 

(“Linear Transportation Projects”) may specifically apply.

 

200 For this example, these wells are currently equipped with berms, so there is no additional cost for installation of

berms.
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The final rule reflects that the scientific evidence unequivocally demonstrates that 

the stream channels and riparian/floodplain wetlands or open waters that together 

form river networks are clearly connected to downstream waters in ways that 

profoundly influence downstream water integrity. The health of rivers, lakes, bays, 

and coastal waters depends on the streams and wetlands where they begin. Streams 

and wetlands provide many benefits to communities – they trap floodwaters, 

recharge groundwater supplies, remove pollution, and provide habitat for fish and 

wildlife. They are also economic drivers because of their role in fishing, hunting, 

agriculture, recreation, energy, and manufacturing.

Approximately 60 percent of stream miles in the U.S. flow only seasonally or after 

rain, but have a considerable impact on the downstream waters. And approximately 

117 million people – one in three Americans – get drinking water from public 

systems that rely in part on these streams. These are important waterways for which 

EPA and the Army Corps is clarifying protection.

Arizona Public Service Company (Doc. #15162)

11.2.284 E. Options Available to Streamline Determinations of “Other Waters”

The Agencies have requested comment on ways to avoid case-by-case JDs for other 

waters. One option would be to determine by rule that other waters are similarly situated 

if they are located within certain ecoregions of the country. The rulemaking docket 

includes a map entitled “Level III Ecoregions of the United States” that shows 

approximately one-third of the state of Arizona lies within the Sonoran Basin and Range 

ecoregion (No. 81), one of the ecoregions included for consideration.201 Ecoregion 81, 

which includes the Sonoran Basin & Range, is the landscape in which APS’s Phoenix 

metro facilities and the Yucca Power Plant in southwest Arizona are located. The 

Agencies’ proposed use of such ecoregions for per se jurisdictions would directly affect 

these facilities. The greatest impact to APS would be within Ecoregion 81 where 262 

substations, switchyards, solar plants, and service centers, as well as a nuclear plant and 

at least one gas-fired plant, would be impacted and required to prepare SPCC plans and 

maintain compliance with such plans. The cost to bring these 262 facilities into 

compliance with SPCC requirements would be nearly $9,000,000 for the first year alone. 

Quarterly inspections, future plan updates for the life of the facility, and required training 

costs add to the cost of compliance. Additionally, in the event that a release ever occurred 

at one of the facilities, depending on the actual location and the size the release, the costs 

could escalate dramatically. 

An additional concern with the use of ecoregions for basing a jurisdictional determination 

relates to the management of transformers in the electric industry. If a leak were to occur 

in a transformer, this would require an outage to repair. Since an outage is a significant 

 

201 79 Fed. Reg. at 22215.
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event that requires planning to re-route energy to ensure no customers are affected by the 

planned outage, outages are not typically done on small leaks that have not triggered any 

environmental requirement. Using the ecoregion and floodplain concepts proposed by the 

Agencies, any leak from a transformer located on a power pole in a corridor located in a 

floodplain of one of the two ecoregions (Nos. 20 and 81) would result in a violation of 

the CWA. The violation itself brings hefty penalties, but it would also prompt an outage 

to remedy the situation. APS strongly opposes the use of ecoregions as jurisdiction by 

rule. APS also strongly opposes the use of the entire floodplain (with the size of event 

undetermined) as the boundaries of WOTUS. Finally, APS strongly opposes the use of 

“best professional judgment” for the Agencies to determine whether a floodplain should 

be defined by a 10-year storm event, 50-year storm event, 500-year storm event, or any 

other storm event. APS supports project-driven JDs so that current information can be 

used to make case-by-case determinations.

As noted above, APS’s Four Corners Power Plant is located within the landscape of the 

Colorado Plateau ecoregion (No. 10). APS opposes the per se jurisdictional determination 

based on ecoregion and believes that this is also inconsistent with related Supreme Court 

precedent as sitespecific or project-specific information is not considered for all areas. 

The Agencies offer other options, such as using hydrologic-landscape regions as a 

determination of similarly situated waters, or even concluding that other waters as a class 

of waters do not have a significant nexus and, therefore, may not be jurisdictional. While 

APS’s preference is for project-specific determinations that are supported by recent 

Supreme Court precedent, if an ecological region versus a hydrologic region were the 

only option, then APS would prefer the hydrologic region approach. The request for 

comment on these various options leaves the regulated community with no clarity or 

certainty about the scope and extent of a potential final rule with respect to this issue. 

Thus, APS requests that the proposed rule be withdrawn and re-proposed after the public 

has had a meaningful opportunity to better understand and comment on these options. (p. 

12-14)

Agency Response: Please refer to the summary response provided at the 

beginning of section 11.4. For purposes of clarity and to provide regulatory 

certainty, the agencies decided to use distance limits with the 100-year floodplain to 

define adjacency for floodplain waters. In addition, The proposed rule included a 

broad provision (paragraph (a)(7) of the proposal) that allowed for a case-specific 

determination of significant nexus for any water that was not categorically 

jurisdictional or excluded. In consideration of comments expressing concern over 

the proposed approach, the agencies made changes to provide for case-specific 

determinations under more narrowly targeted circumstances based on the agencies’ 

assessment of the importance of certain specified waters to the chemical, physical, 

and biological integrity of traditional navigable water, interstate waters, and the 

territorial seas address concerns in the approach to “other waters.” 
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Utility Water Act Group (Doc. #15016)

11.2.285 A 2011 EPA estimate of the annual cost borne by states, territories, and tribes for 

reviewing and updating state water quality standards found that the process costs a total 

of roughly $9,558,800 per year. See EPA, Information Collection Request for Water 

Quality Standards Regulation (Renewal) at 26, 29 (Oct. 11, 2011), EPA-HQ-OW-2011-

0465-0003 (“2011 WQS ICR Renewal”) (providing a rough estimate based on input from 

eleven states). Because EPA’s estimates are provided in aggregate terms, it is not clear 

how much of that cost involves conducting UAAs. But given the disincentives for states 

to conduct UAAs, and the fact that EPA’s estimate does not encompass the costs to the 

regulated community of conducting UAAs, there is no reason to believe that EPA’s cost 

estimates include much in the way of UAA costs, much less the costs of performing 

UAAs for the types of industrial waters that the Proposed Rule could reclassify as 

jurisdictional.

Notably, EPA’s cost estimates do not include the costs of the development of water 

quality criteria guidance, which the Agency strongly encourages states to adopt.21 2011 

WQS ICR Renewal at 21. EPA’s pollutant-specific and biological criteria were 

developed to protect fishable/swimmable uses. They are not relevant for industrial water 

features and cannot appropriately be applied to such features. Nor do the rules and 

guidance under which states set site-specific criteria solve the problem, since such criteria 

simply adapt, rather than replace, aquatic criteria designed to protect fishable/swimmable 

uses. The Agencies have not accounted for the costs of developing criteria guidance 

better adapted to the types of waters the Proposed Rule would capture.

The Economic Analysis also assumes that the Proposed Rule will not affect state 

responsibilities to assess and report on the quality of waters under CWA § 305, and to 

identify, list, and develop total maximum daily loads (“TMDLs”) for impaired waters as 

required by § 303(d). Economic Analysis at 6-7. With respect to water quality monitoring 

and assessment, the Agencies recognize that the Proposed Rule could increase the 

number of waters to be assessed, but assume that states will “adjust sampling locations or 

sampling frequency without a net cost increase.” Id. at 6. In other words, the Agencies 

assume that the states will be able to rob Peter to pay Paul, reworking their monitoring 

programs to cover more waters by sacrificing more robust data collection at existing 

monitoring sites in favor of less frequent and more farflung monitoring driven by the 

Agencies’ expansion of jurisdiction. The Agencies provide no foundation for their 

assumption such adaptations are workable or beneficial, nor do they consider the cost to 

states of changing their programs in this fashion.

With respect to TMDLs, the Agencies make the wholly unfounded assumption that the 

only segments likely to be affected are those already classified as jurisdictional, and any 

water features newly captured by the Proposed Rule will lie upstream of segments 

already listed as impaired and thus will be covered by, or at least benefit from, TMDLs 

already required. Id. at 7. No data or analysis are provided to support this proposition, 

which is at best unexplained and, UWAG believes, wrong. Given the costs and other 
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burdens imposed by TMDLs, which are expensive and time-consuming to prepare202 and 

can impose enormous costs on point and nonpoint sources if prepared incorrectly, 

UWAG urges the Agencies to re-evaluate this assumption in the analysis that would 

support a new WOTUS proposal after the Proposed Rule is withdrawn. (p. 25-27)

Agency Response: Please refer to the summary response provided at the 

beginning of section 11.4. EPA does not anticipate an increased number of UAAs as 

a result of this rule. 

11.4.1.2 Benefits

The Agencies did not identify any comments under this topic area.

11.4.2. 311 Program

Agency Summary Response

Please refer to the summary response provided at the beginning of section 11.4. 

Specific Comments

Pennsylvania Grade Crude Oil Coalition (Doc. #15773)

11.2.286 6. The Proposed Rule would cause unnecessary increased in costs and efforts 

regarding spills.

The identification of additional jurisdictional waters would increase the likelihood that 

spills on oil and gas sites would be federally reportable, raising the costs and complexity 

of spill response. In particular, the reclassification of diversion ditches as jurisdictional 

waters would significantly increase the likelihood that a spill would reach a "water of the 

United States," and therefore, could require federal reporting to EPA and/or the National 

Response Center. When agencies, such as the EPA, become involved in spill response 

that is currently managed under Pennsylvania law, the cost and complexity for reporting 

such spills increases, even though the spill response measures generally do not change.

(p. 9)

Agency Response: Please refer to the summary response provided at the 

beginning of section 11.4. 

 

202 According to a 2001 EPA estimate, preparing a single pollutant-specific TMDL costs an average of about 

$52,000, with actual costs ranging from $26,000 to $500,000 in 2001 dollars. See EPA, EPA 841-F-01-004, Fact 

Sheet on the National Costs of the Total Maximum Daily Load Program (Draft Report) (Aug. 1, 2001), available at

http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/costfact.cfm.
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Independent Petroleum Association of America (Doc. #18864)

11.2.287 Spill Prevention Control and Countermeasures ("SPCC") (CWA Section 311 and 

its Related Regulatory Program) - Taking into consideration new proposed emphasis 

upon adjacent waters, and natural or manmade ditches, the Associations assessed whether 

there are operations that would be required to maintain a SPCC plan which previously 

had no such regulatory duty. Undiked areas are required to have drainage systems flow 

into ponds, lagoons, or catchment basins to retain oil and return such runoff to the 

facility. With the proposed rule, if such catchment basins are within areas subject to 

periodic flooding causing those facilities now to be adjacent to an "other water," SPCC 

plans would be required to be implemented or renewed. Such areas impacted by rain 

events may be deemed a water of the United States and become a protected ephemeral 

stream/tributary. The agencies' Economic Analysis only references anecdotal 

information, but concedes that "some potentially regulated facilities believe that they are 

not covered by the applicable SPCC regulations because they do not have the potential to 

discharge to a water of the U.S ..... it is reasonable to assume that a broader assertion of 

CW A jurisdiction may affect some of those facilities." Economic Analysis, p. 29. The 

agencies suggest the per year incremental costs for the SPCC program changes under the 

proposal is approximately $11.7 million without providing sufficient information upon 

which to make this claim. This anecdotal estimate is not sufficient to satisfy the agencies' 

duty and obligation to determine the economic impact of the rulemaking.203 (p. 5)

Agency Response: Please refer to the summary response provided at the 

beginning of section 11.4. 

Kansas Independent Oil & Gas Association (Doc. #12249)

11.2.288 Undiked areas are required to have drainage systems to flow into ponds, lagoons, 

or catchment basins to retain oil and return such runoff to the facility. With the proposed 

rule, if such catchment basins are within areas subject to periodic flooding causing those 

facilities now to be adjacent to an "other water," SPCC plans would be required to be 

implemented or renewed. Such areas impacted by rain events may be deemed a water of 

the United States and become a protected ephemeral stream/tributary. The agencies' 

Economic Analysis only references anecdotal information, but concedes that "some 

potentially regulated facilities believe that they are not covered by the applicable SPCC 

regulations because they do not have the potential to discharge to a water of the U.S.. . . . 

it is reasonable to assume that a broader assertion of CWA jurisdiction may affect some 

of those facilities." Economic Analysis, p. 29. The agencies then suggest the per year 

incremental costs for the SPCC program changes under the proposal is approximately 

$11.7 million without providing sufficient information upon which to make this claim. 

This anecdotal estimate is not sufficient to satisfy the agencies' duty and obligation to 

 

203 Executive Order, 12866,58 Fed. Reg. 51735 (1993).
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determine the economic impact of the rulemaking. The following examples explain a far 

more significant economic impact. The agencies are urged to revise the study and provide 

more appropriate economic analyses. The agencies are directed to the Report of the 

Government Accounting Office ("GAO") of July 2014 titled, Environmental Regulation: 

EPA Should Improve Adherence to Guidance for Selected Elements of Regulatory 

Impact Analyses in which the GAO recommended that EPA both improve adherence to 

OMB guidance and enhance the usefulness of its RIAs. The GAO conclusion included 

the following statement, "Without improvements in its estimates, EPA's RIAs may be 

limited in their usefulness for helping decision makers and the public understand these 

important effects." The following is a summary of "important effects" underestimated by 

the agencies.

• Western Kansas - As a result of dry conditions within the oil and gas producing 

areas of western Kansas, the current regulatory implementation of the SPCC 

program is some areas is narrowly proposed regulatory management of tributaries 

and their adjacent waters and the introduction of vague concepts such as "relative 

strength of downstream effects" could result in significantly expanded regulatory 

obligations. One Kansas operator has estimated an increase from the 20 SPCC 

plans currently in effect to an additional 3,000 new SPCC plans under the 

proposal. Such plans typically cost an estimated $5,000 per plan. This proposed 

definition and related regulatory impact analysis does not address such significant 

broadening of the "waters of the United States" program.

Another Kansas operator estimates that the cost of merely updating current SPCC 

plans in one relatively small Kansas oil field (18 wells), would result in $1,000 

per well for a total of $18,000.

Based upon the assessment of the proposed definition for "waters of the United 

States" it is estimated that for one company over 1,000 new SPCC plans (for 

1,200 sites) would be required. The incremental cost for bringing those related 

facilities into the SPCC program would result in an expenditure of over $11.4 

million a year. Upgrading those sites would cost an estimated $10,000 per site for 

a total of $12 million. (p. 3-4)

Agency Response: Please refer to the summary response provided at the 

beginning of section 11.4 and Topic 11.2. 

11.4.2.1 Costs

Agency Summary Response

Please refer to the summary response provided at the beginning of section 11.4. 

Specific Comments
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Water Advocacy Coalition (Doc. #17921.15)

11.2.289 3. Section 311 Oil Spill Prevention Plans

Under section 311, inland non-transportation oil facilities of a certain size that have 

potential to discharge to “waters of the United States” must prepare and implement a 

Spill Prevention, Control, and Countermeasures (SPCC) Plan. See 40 C.F.R. § 

112.1(d)(1). EPA calculated incremental costs to Section 311 oil spill prevention plans by 

using average annual costs from production and storage facilities, and scaling up based 

on an estimate of 1,000 new facilities that will need to spend money on compliance. The 

average annual clean-up cost is $9,128 for production facilities and $13,038 for storage 

facilities.16 Production facilities make up approximately 35% of all facilities, while 

storage facilities make up the remaining 65%. After adjusting for inflation, this yields 

approximately $11.7 million annually in incremental costs.

The expansion of the “waters of the United States” definition will mean a significant 

increase in the number of facilities that could “reasonably be expected” to discharge oil to 

jurisdictional waters. As a result, many facilities not previously subject to the SPCC 

program requirements (because they did not previously have potential to discharge to 

“waters of the United States”) will now be required to develop and implement an SPCC 

plan. This is particularly true in the arid west, where companies generally do not maintain 

SPCC plans because their operations are not located near navigable waters. (p. 74)

Agency Response: Please refer to the summary response provided at the 

beginning of section 11.4. 

American Petroleum Institute (Doc. #15115)

11.2.290 3.1.2.5 The Agencies’ underestimated the true costs associated with CWA 311 Oil 

Spill Prevention, Control, and Countermeasure Plans.

Section 311 of the CWA requires inland non-transportation oil facilities or storage 

infrastructure exceeding 1,320 gallons’ capacity to prepare and implement a Spill 

Prevention, Control, and Countermeasure (SPCC) Plan if they are in proximity to 

jurisdictional waters. The Agencies estimated incremental costs using the average annual 

costs of $9,128 for production facilities (35 percent of total facilities) and $13,038 for 

storage facilities (65 percent of total facilities). The Agencies assumed that 1,000 new 

facilities would need to comply with SPCC plans at a total cost of $11.7 million per year.

The Agencies’ estimated SPCC costs are at least 50 percent lower than the true costs in 

ARCADIS’s experience. Section 311 requires facilities to install (and maintain in 

perpetuity) secondary containment around certain facility components. These costs are 

difficult to estimate given the different locations and requirements of each facility, but are 

significantly greater than the cost of the initial SPCC plan. For the cost estimates 

provided above, ARCADIS assumed the following cost allocation: 
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 Upstream facility, midstream infrastructure project (new pipeline/temp storage or 

transfer facility): $3500/site to prepare SPCC; $20,000 in secondary containment 

(a berm or dike) using locally sourced earthen material, and $5000/year in 

maintenance. 

 Downstream facility: $8500/site to prepare SPCC; $45,000 in secondary 

containment structures, and $5000/year in maintenance. • Cost of regularly 

scheduled inspections and recordkeeping should be added to the estimates 

previously listed.

Note that this ongoing maintenance cost is completely absent from the Economic 

Analysis.

Secondly, the expansion of the jurisdictional waters under the proposed rule would 

obviously increase the number of facilities that would require SPCC plans. This increase 

would be especially prevalent in the more arid regions in the west where features having 

only intermittent or ephemeral flow dominate, and where current facilities that are now 

located miles from the nearest traditional navigable water would suddenly find 

themselves in proximity to newly-jurisdictional features. In short, the increase in facilities 

has the potential to be significantly greater than the 1,000 assumed by the Agencies.

Finally, the Agencies did not consider the costs associated with additional spill reporting 

required by OPA-90 for facilities that require SPCC plans. The costs that were not 

included in the Agencies’ estimate are spill response plans, spill response personnel, 

response equipment and infrastructure, and spill drills. These costs are difficult to 

estimate across the industry, but could be significant. Again, once the appropriate 

modifications are made, the associated costs will increase. (p. 67 -68)

Agency Response: Please refer to the summary response provided at the 

beginning of section 11.4. 

11.2.291 5.4.4 Costs for the Spill Prevention, Control, and Countermeasure Rule will 

increase – possibly without providing any additional environmental protection.

Under Section 311 of the Clean Water Act and EPA regulations, non-transportation 

related petroleum storage facilities are subject to spill prevention requirements if the 

facility exceeds minimal storage thresholds and there is a reasonable expectation that a 

spill could reach a jurisdictional water under the CWA. With more geographic features 

being deemed jurisdictional waters, the number of facilities subject to SPCC 

requirements will increase – particularly in the arid west. Facilities on lands draining to 

basins previously considered closed now may require cost-prohibitive significant nexus 

evaluations to determine whether they are jurisdictional, and receiving water bodies may 

be extended significantly by the inclusion of tenuous ephemeral streams. (p. 134)

Agency Response: Please refer to the summary response provided at the 

beginning of section 11.4. 
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11.4.2.2 Benefits

Agency Summary Response

Please refer to the summary response provided at the beginning of section 11.4. 

Specific Comments

American Petroleum Institute (Doc. #15115)

11.2.292 3.2.2 The Agencies’ estimated benefits of avoiding oil spills are largely illusory 

due to the lack of actual referenced data.

The Agencies’ Economic Analysis also estimates that the Proposed Rule would provide 

benefits from avoiding oil spills under CWA 311 due to increasing SPCC plans required 

for the newly designated WOTUS. Using National Response Corporation (NRC) data, 

the Economic Analysis concludes that the average oil spill from 2000-2005 was 1,290 

gallons. The remainder of their analysis is purely speculative:

 No reference data is provided for the average cleanup cost, which the Agencies 

estimated at $221 per gallon to arrive at an average oil spill cost of $285,090.

 Again, without referencing the source of the data, the Economic Analysis assumes 

that the incremental risk associated with hypothetical inaction is 1 in 20. Dividing 

$285,090 by 20 yields $14,255 as the estimated total cost of the average oil spill.

 Without providing a basis for their assumption, the Economic Analysis assumes 

1,000 facilities are non-complying each year. Multiplying 1,000 by their 

speculatively estimated total cost of the average oil spill produces a $14.3 million 

estimate of the annual benefit for avoiding oil spills.

In short, references and/or support for 3 of the 4 major elements of this benefit estimation 

eliminate the possibility of replicating that estimate. Since the quantity of spilled oil and 

the cost of cleaning up spills vary greatly, a median estimate of the two elements is 

probably more appropriate than an average.

Perhaps most importantly, the incremental risk of hypothetical inaction is likely to be far 

smaller than 1 in 20. The correct incremental risk is the difference between the risk of a 

spill in the absence of a SPCC plan and the risk of a spill with a SPCC plan. All 

companies take steps to avoid oil spills for a variety of reasons – including complying 

with requirements under state law, meeting industry standards for spill prevention, 

avoiding damage to a company’s reputation, the high cost of cleanup, various liabilities 

from oil spills (e.g., natural resource damages), and the resulting loss of product and/or 

production. Consequently, oil spills are relatively rare because of these steps. 

Nevertheless, it is possible that secondary containment installation as a direct 

consequence of SPCC plan implementation might marginally reduce spill risk. For 
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example, if the risk of a spill without an SPCC Plan is 1 in 1,000 and the risk of a spill 

with a SPCC plan is 1 in 5,000, then the incremental risk reduction from the SPCC Plan 

in this hypothetical example would be 4 in 5,000 – or about 0.0008. In contrast, the 

Economic Analysis assumes the incremental risk is 0.05, or about 2 orders of magnitude 

higher.

Finally, the Agencies propagate misperception by implying that the Proposed Rule in any 

way improves protection against oil spills (or any unregulated discharge) for waters that 

are not Federally-protected. The Clean Water Act already prohibits unregulated 

discharges of pollutants that ultimately flow into navigable waters, regardless of whether 

the point of discharge is a navigable water. As noted earlier, Federal protection in some 

cases only duplicates protection provided by State laws. And finally, for all the reasons 

stated above, it is in the interest of API member companies to take steps to avoid spills—

and to clean them up promptly in the unlikely event of an occurrence. The EPA initially 

published on its website three enforcement “challenges” to illustrate the need for the 

Proposed Rule; one of these was an oil spill in Texas that was subsequently removed 

because records show there was, in fact, no enforcement “challenge” –the responsible 

party (an API member) cleaned up the release and mitigated under EPA supervision as 

soon as it was notified. (p. 82-83)

Agency Response: Please refer to the summary response provided at the 

beginning of section 11.4. 

The Mosaic Company (Doc. #14640)

11.2.293 4 Benefits

The EPA Study quantifies the incremental benefits of compensatory wetland mitigation 

under the proposed rule using “benefits transfer”.204 “Benefits transfer” refers to using 

valuations of benefits for other, comparable resources to value the subject resource. The 

method is commonly used in policy analysis as an alternative to more rigorous 

site/resource-specific valuations. However, while generally accepted as appropriate for 

policy analysis, there are well-recognized limitations to the benefits transfer 

methodology. The guiding principle for reliable benefits transfer is that resource values 

used in the primary studies relied upon must be comparable to the subject resource in 

terms of the types and level of services provided. Further, when valuations are elicited 

using stated preference surveys (SPS), the tastes and preferences of the survey 

respondents must be representative of the population to which benefits will accrue from 

the subject resource (EPA Study, p. 20).

 

204 The EPA Study recognizes other benefits including cost savings associated with enforcement of CWA 

jurisdiction, the burden of which EPA asserts will be reduced after the WOTUS definition is clarified. While EPA 

quantifies benefits associated with Section 402, the method is simply an extension of its cost estimation approach, 

meaning that incremental benefits are proportional to incremental costs.
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Based on our review, the benefits transfer approach used in the EPA Study does not 

provide meaningful or reliable information about the benefits of the proposed rule. The 

Study acknowledges that the benefit estimates used in this case should be viewed as only 

“illustrative” (EPA Study, p. 20). It is not clear, however, how “illustrative” values 

should be used in benefit-cost analysis. For example, giving $1 of “illustrative” benefits 

the same weight as $1 of compliance costs is likely to overstate the benefit side of the 

equation. Rather, due to the uncertainty of “illustrative” benefits, we would expect a 

discount value be applied to illustrative values before making direct comparisons to 

actual costs.205

The reference studies used to develop wetland function value also overstate potential 

benefits because the types of wetlands and corresponding functions evaluated in those 

studies are vastly different than the types of wetlands EPA aims to protect under the 

proposed rule. The expansion of wetland jurisdiction under the proposed rule 

encompasses many wetlands that are only marginally considered wetlands under today’s 

rules, many of which could be said to add little if any incremental functional value to the 

wetlands already claimed under the 2008 Guidance. Further, values from the studies 

represent dollar amounts households stated they would be willing to pay to protect or 

enhance wetlands. Respondents do not actually have to pay that amount, which could 

result in an overstatement of wetland value, and respondents do not understand that all 

wetlands are not the same aesthetically or functionally, which could also influence the 

amount respondents would be willing to pay. Finally, the quantification assumes that all 

households in all states receive the same degree of ecosystem service benefits from 

wetland protection.

As described further below, the EPA study needs to include a discussion about the 

appropriate role of illustrative values in cost-benefit analysis, and how or if the 

uncertainty surrounding “illustrative” values can be quantified and incorporated in a 

meaningful way to inform decision-makers and the regulated community. (p. 51)

Agency Response: Please also refer to Agency responses in other comment 

summary sections that pertain more generally to benefits (11.3.2).

11.4.3. 401 Program

Agency Summary Response

 

205 The term discount is not to be confused with the financial concept of discount future streams of money. In this 

scenario, discount means to give less weight to the estimated benefits given the admittedly illustrative nature of the 

benefits estimates when comparing to costs.
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Please refer to the summary response provided at the beginning of section 11.4. Please also 

refer to Agency responses in other comment summary sections that pertain more generally to 

benefits (11.3.2).

Specific Comments

Tennessee Valley Association (Doc. #17470)

11.2.294 Based upon the Economic Analysis document accompanying the Proposal the 

Agencies' project an increase of approximately 3 percent in overall jurisdiction under the 

proposed rule. This does not reflect the magnitude of potential for jurisdictional 

expansion which we anticipate, as described above. It is our opinion that the actual 

increase will be at least a double digit percentage increase and could be much higher 

depending upon how the Proposal is implemented in the field. Below is a summary of 

what we consider a more realistic estimate of cost and schedule impacts based on a recent 

project initiated by TVA.

TVA has reservations with the Agencies' position that the Proposal is not an expansion of 

jurisdictional waters under the CWA. The Agencies have stated publicly and have posted 

on the USEPA website that "The proposed rule does not add protection to any new types 

of waters that have not historically been covered by the CWA, nor does the rule in any 

way limit current regulatory and statutory exemptions and exclusions." Specifically, and 

as described above, the newly proposed definition of tributaries includes waters and 

features well beyond those that have been deemed jurisdictional based on current 

practices under existing guidance from the Agencies. The proposed rule defines" 

tributary" as "a water physically characterized by the presence of a bed and banks and 

ordinary high water mark . . . which contributes flow, either directly or through another 

water" to a TNW, interstate water, territorial sea, or impoundment. 79 Fed. Reg. 22, 263. 

In addition, wetlands, lakes, and ponds can be treated as tributaries if they contribute flow 

to a TNW, interstate water, or territorial sea, even if they lack a bed, banks, and ordinary 

high water mark (OHWM). In our experience, this represents a major expansion over 

recent determinations of jurisdiction. Also, the Proposal specifically includes "ditches" in 

the definition of tributary, meaning that ditches with a bed, bank, and OHWM that 

contribute flow will be considered jurisdictional unless they meet one of the narrow 

exclusions. This change conflicts with the 2008 Rapanos Guidance which provided that 

ditches "are generally not waters of the United States...". We believe that, in spite of the 

Agencies’ stated position, the breadth of this definition for tributaries leaves room for 

regulating a considerable number of water features not previously considered to be 

"waters of the United States," including ephemeral drainages, wet weather conveyances, 

ditches, and streams carrying minimal water volumes and which are remote from any 

navigable-in-fact water. 

In our opinion, the Proposal is very likely to create not only greater numbers of regulated 

water features but also will inordinately increase the number of potentially regulated 

discharge points within any given parcel associated with an activity or project. TVA is 
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concerned that the increase in assertion of categorical jurisdiction will subject more 

projects and activities to CWA authority. As a result, some projects that otherwise 

should have qualified for relatively streamlined permitting processes under Nationwide or 

regional general permits will be required to undergo lengthier and costlier individual 

permit procedures. To the extent that more electric utility projects and, activities will be 

subject to CWA authority, these projects and activities are likely to face greater 

mitigation costs. TVA is especially concerned that as a result of the proposed rule electric 

utilities will continue to experience negative project scheduling impacts at a critical time 

when we are trying to meet the need to update the generating fleet to lower emission 

alternatives and upgrade the associated transmission infrastructure to support these 

ongoing changes and ensure system reliability.

Based upon the Economic Analysis document accompanying the Proposal the Agencies' 

project an increase of approximately 3 percent in overall jurisdiction under the proposed 

rule. This does not reflect the magnitude of potential for jurisdictional expansion which 

we anticipate, as described above. It is our opinion that the actual increase will be at least 

a double digit percentage increase and could be much higher depending upon how the 

Proposal is implemented in the field. Below is a summary of what we consider a more 

realistic estimate of cost and schedule impacts based on a recent project initiated by 

TVA.

b. Projected Consequences - TVA Specific Example

As an example of the estimated magnitude of the Proposal on the costs and timing of a

typical landfill construction project, we are providing a historical summary of the Corps

permitting process as it evolved over the initial stages of a TVA project in Gallatin,

Tennessee. The landfill construction was necessitated by air pollution control upgrades 

with a definitive deadline imposed by the Mercury and Air Toxics Standards rule 

finalized by USEPA in December 201 1. The associated Corps individual permit was one 

of several regulatory and permitting steps required to initiate and complete construction 

of the landfill unit in order to maintain the Gallatin Fossil Plant's operability and 

compliance with the upcoming regulatory requirements. In our opinion, TVA's

experience is representative of how the current Proposal could impact the regulated

community. It should be noted that the bases for jurisdictional determinations in the

governing Corps District has evolved over the recent past to be more expansive and to

encompass additional water features. Historically, all intermittent streams were deemed 

jurisdictional while most ephemeral streams and wet weather conveyances were no;-

jurisdictional - with limited exceptions. TVA and other permittees have noted that in the 

past couple of years the jurisdictional determination process has blurred and become less 

predictable. Whether this development is a result of more detailed guidance, more 

restrictive headquarters policy, or changes in District personnel and/or management 

cannot be determined. Nevertheless, the changes are real and had serious implications for 

the landfill project schedule and costs as summarized below:
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i. Impact on Project Timeline - Based on longstanding permitting

experience, TVA estimated a typical internal processing time of 60 days to 

complete the Corps permitting process with an additional 90-120 days for 

agency response/issuance of the permit - depending upon project

complexity. This has historically been adequate for projects when wetland 

mitigation credits are available. Longer durations are required if no 

wetlands credits are available and we have to find a supplier or develop 

our own. In addition, state requirements have often been more sweeping 

than the Corps'. With changes in the Corps' interpretation of jurisdiction, 

management staff, and permit processes over the last couple of years, the 

time required to apply for and receive a permit has increased. As a result it 

is difficult to quantify the necessary time to procure a Corps permit now. 

In this specific case, the state Aquatic Resources Alteration Permit 

(Tennessee's equivalent to 401 Certification) permit was issued on 

September 10, 2013, and the Corps permit was issued on July 14, 2014. 

This would indicate a delay in the project timeline of nearly 10 months. 

This delay has resulted in unforeseeable and unanticipated additional 

project costs because the landfill will not be complete in time to meet the 

air compliance deadline.

ii. Impact on Costs -Based on the Corps Aquatic Resources Spreadsheet 

(ARS) associated with the Preliminary Jurisdictional Determination (PJD) 

of the site, stream mitigation costs were $751,080. The initial 

environmental assessment by a qualified hydrologic professional indicated 

a total of 2243 lineal feet of jurisdictional streams. This number expanded 

to 4364 lineal feet once the Corps elected to include ephemeral streams 

and other stormwater features. TVA believes that had the Corps asserted 

jurisdiction over only the non-ephemeral streams in accordance with a 

baseline of previous practice under existing regulations and the 2003/2008 

EPA-Corps guidance the stream mitigation cost would have been 

$420,480. However, given the uncertainties of the additional scheduling 

required to conduct a full Jurisdictional Determination, TVA elected the 

more certain, but costlier route incurring a premium of $330,600. This 

additional cost is approximately 80% more than the 'normal' mitigation 

costs. It is our opinion that this amount is representative of what the 

Proposal costs would be over the 'current' jurisdictional waters for the 

landfill project and generally reflects the magnitude of impacts anticipated 

as a result of the broader assertion of jurisdiction. While this number 

represents the direct cost increase due to mitigation requirements, there 

were additional costs incurred to the project as a result of the delay in 

initiating landfill construction. TVA's construction contractor has 

estimated the additional costs to be $975,000. 
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iii. CostIBenefit Implications -TVA recognizes and acknowledges that

headwater streams and wetlands are critical aquatic resources. They serve 

numerous functions and help ensure the integrity of downstream waters. In 

this case, however, the overall environmental benefit resulting from the 

mitigation costs and effort associated with this project were limited at best. 

Based on this we believe it is likely that the benefits discussed in EPA's 

Economic Analysis provided in support of the Proposal are overstated and 

the costs of mitigation and associated impacts to project schedules are 

very much understated. (p. 5-7)

Agency Response: Please refer to the summary responses provided at the 

beginning of section 11.4, and 11.2, 11.3.1, 11.3.2, and 14.1. In addition, please refer 

to other responses relevant to the many points expressed above. The agencies thank 

TVA for providing this detailed example of the case-specific nature of implementing 

the rule and the difficulties of generalizing costs.

State of Iowa (Doc. #8377)

11.2.295 Disconnect between Content and Intent: We do not doubt the Federal 

government’s intentions to advance water quality throughout our nation; however, the 

Federal government’s proposed approach, and the content of the proposed rule, would 

seriously impair advancements in water quality in the State of Iowa. As an example, too 

many Iowa farmers would be forced to gain Federal permits to advance water quality 

infrastructure projects, which would discourage agricultural producers from undertaking 

the very projects that would improve water quality throughout the State. Small towns, 

cities and private sector entities, most with limited resources, would face similar 

challenges. (p. 2)

Agency Response: Please refer to the summary response provided at the 

beginning of section 11.4. The agencies recognize the vital role of farmers in 

providing the nation with food and fiber and are sensitive to their concerns. The 

final rule reflects the intent of the agencies to minimize potential regulatory burdens 

on the nation’s agriculture community, and recognizes the work of farmers and

landowners to protect and conserve natural resources and water quality on 

agricultural lands. The rule reflects this framework by clarifying the waters subject 

to the activities Congress exempted under CWA Section 404(f).

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

11.2.296 Adverse Effects in Urban Watersheds

The expansion of WOTUS has the potential to result in significant costs to urban areas. 

The costs will be borne primarily by Municipal Separate Storm Sewer System (MS4) 

permittees through MS4 and Corps dredge and fill permitting requirements. The Florida 

Stormwater Association (FSA) and Florida H20 Coalition developed separate estimates 

of these potent costs. The FSA estimate, which was based on a representative set of water 
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309

bodies in seven significantly urbanized Florida counties, concluded that potential 

restoration costs could range from about $2 million to greater than $50 million for each 

water body. The Florida H20 Coalition estimate, which was based on four Southwest 

Florida counties, concluded that potential median costs for those counties could range 

from hundreds of millions of dollars to greater than a billion dollars. In both cases, the 

costs would be incurred in an attempt to restore highly altered and sometimes wholly 

artificial water bodies to the same nutrient standards applicable to Florida’s lakes and 

streams. However, there would be no environmental benefit achieved, since the biology 

of the water body is driven largely by the highly altered nature of the system and not by 

nutrient concentrations in the systems. As noted above, these estimates apply only to a 

subset of Florida’s water bodies and counties, and statewide costs would be significantly 

higher. (p. 57–58)

Agency Response: Please refer to the summary responses provided at the 

beginning of section 11.4 and Topic 7. In addition, the analysis referred to assumes 

that no load reduction or stormwater BMPs would be required for land areas that 

surround stormwater conveyances that connect to downstream waters (as opposed 

to land areas that intersect rivers and streams themselves). However, loads to 

conveyances become loads to downstream waters (streams, lakes, estuaries, and 

coastal waters), and it may be necessary to pursue load reduction in areas adjacent 

to conveyances to meet WQS in downstream waters. Second, it assumes that these 

conveyances are not jurisdictional under the current rule, which may be incorrect. 

Finally, it assumes that the same numeric nutrient criteria that applies to Florida’s 

natural streams will apply to the conveyances themselves, which they may not. 

11.4.3.1 Costs

Agency Summary Response

Please refer to the summary response provided at the beginning of section 11.4.

Specific Comments

Water Advocacy Coalition (Doc. #17921.15)

11.2.297 1. Section 401 State Certification

Section 401 of the CWA requires any applicant for a federal license or permit to conduct 

any activity that will result in a discharge to waters of the United States to obtain a state 

water quality certification from the state where the discharge will occur. 33 U.S.C. § 

1341(a)(1). With the proposed rule’s expanded definition of “waters of the United 

States,” more activities that require federal licenses (in particular, activities requiring 

section 404 permits) are likely to discharge into “waters of the United States” and will 

therefore require section 401 certification. EPA estimated that state certification under 
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section 401 would experience increased annual costs of $737,100 as a result of the 

proposed rule. This figure is the result of a 2.7% increase in full time employees (FTE) 

needed to staff state permitting offices. This figure may partially account for the 

increased amount of state resources needed to accommodate additional state certification 

requests, but it does not account for the increased costs to applicants that must now obtain 

401 state certification. EPA’s analysis recognizes that there will be additional section 404 

permits required under the proposed rule, but it does not account for the increased costs 

of obtaining 401 certification that are triggered by those additional section 404 permits. 

Nor does it address the cost of delay caused by increased Section 401 certification 

requirements. (p. 71)

Agency Response: Please refer to the summary responses provided at the 

beginning of section 11.4 and Topic 11.3.1.

American Petroleum Institute (Doc. #15115)

11.2.298 3.1.2.4 The Agencies’ analysis underestimates the change in CWA 401 Water 

Quality Certification (WQC) Permitting cost by using the unrealistically low 2.7 percent 

increase in jurisdictional waters.

The Agencies’ analysis estimated current staffing needs for 401 WQC at 312.5 full time 

equivalents with fully loaded average salaries of $87,360206. Using these values, the 

Agencies estimated annual certification expenditures at $27.3 million with increased 

annual costs of $737,000 associated with the 2.7 percent increase in jurisdiction. Though 

ARCADIS could not verify the number of required full time employees, the Agencies 

underestimate the true costs – which will significantly increase when the percent increase 

in jurisdictional waters is accurately reflected. Additionally, many of the State agencies 

currently enacting the Section 401 WQC program are significantly under-funded and 

already lag months behind the Corps in completing the permitting process. The increase 

in workload does not come with a guaranteed increase in funding. This may compound 

staffing challenges for these agencies across their obligations, potentially exacerbating 

lost opportunity costs (which the Agencies did not include in their cost of the Proposed 

Rule [see Section 3.1.3.2) resulting from even further delays in obtaining permits. (p. 61)

Agency Response: Please refer to the summary responses provided at the 

beginning of section 11.4 and 11.3.1.

The Clean Energy Group Waters Initiative (Doc. #14616)

11.2.299 In addition to the regulatory revisions detailed above, we believe a comprehensive 

approach to expediting the permitting process for energy projects is necessary to ensure 

full and timely implementation of the Administration’s clean energy and infrastructure 

 

206 The fully loaded salary was based on a mix of occupations (scientists, engineers, economists, and managers) from 

the Bureau of Labor Statistics OES Report providing an average hourly rate of $42/hr. 
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priorities. If the language in the proposed rule is not clarified for the final rule, we are 

concerned about the potential implications for current practices at power plants and for 

permitting renewables and related transmission projects, which are critical for achieving 

the Administration’s clean energy goals. If projects can no longer qualify for existing 

NWPs due to this proposal, companies will need to obtain individual permits. While costs 

can vary depending on the type of project and other associated costs, based on our 

member companies’ experience, an individual permit may cost on average $340,000 

while on average a NWP may cost approximately $36,000. Mitigation costs associated 

with projects will also increase under an individual permit process. For example, the 

current permit and mitigation costs associated with a pipeline project are estimated to be 

about $500,000.

If WOTUS jurisdiction increases by as little as three percent over 2009-2010 field 

practices as indicated by the agencies, we can expect cost of compensatory mitigation to 

increase by at least three percent (although we would anticipate more, as there would be 

an increase in demand for an already-scarce resource).207 Current mitigation costs range 

by geographic location from approximately $70,000 to $300,000; thus, a three percent 

increase would be at least an additional $2,000 to $9,000 per acre. (p. 13-14)

Agency Response: Please refer to the summary responses provided at the 

beginning of section 11.4 and 11.3.1.

11.4.3.2 Benefits

There were no identified comments under this topic area.

11.4.4. 402 Program

Agency Summary Response

See summary response in section 11.4.

Specific Comments

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

11.2.300 As a result, if finalized, the rule could vastly expand the number of waste 

management units and land-based activities and point sources under the Clean Water Act, 

greatly increasing the workload and budget constraints of the forty-six States 

 

207 EPA and US Army Corp of Engineers, Economic Analysis of Proposed Revised Definition of Waters of the 

United States, at 2 (March 2014,) (Available at: http://www2.epa.gov/sites/production/files/2014-

03/documents/wus_proposed_rule_economic_analysis.pdf).
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implementing the permitting program.208 We emphatically note that the Agencies did not 

acknowledge the impact of this increased workload in their economic analysis of the 

proposed rule.209 (p. 6)

Agency Response: Please see essays in Topics 11.4, 12, and 7. See also Economics 

Analysis section 8.

Colorado Clean Water Coalition (Doc. #1231)

11.2.301 The document prepared for the proposed rule, The Economic Analysis of 

Proposed Revised Definition of the Waters of the United States prepared March 2014 by 

the USEPA and USACE Pg. 26 states -"It is unclear specifically bow a broader assertion 

of CWA jurisdiction under this proposed rule would affect MS4 permits." Upon 

completion of the peer review and incorporated peer comments of this economic analysis, 

we would like to know the economic impacts from the proposed rule to identify objective 

financial measurements of impacts to MS4 permits. (p. 1)

Agency Response: See essays 11.4 and 7. The EPA considers MS4s to be systems, 

and in terms of jurisdiction MS4s should be thought of as component parts and not 

a singular entity. MS4s can include jurisdictional and non-jurisdictional features 

and the Agencies have committed to clarifying which are jurisdictional and which 

are not. The jurisdictional status of such systems involves a case-by-case 

assessment, taking into account the specific characteristics of each system. The 

agencies generally discourage using jurisdictional waters for waste treatment. 

However, it may be appropriate in certain circumstances where the Corps of 

Engineers issues a permit for the construction of such a treatment system, based on 

an application of the 404(b)(1) guidelines. See the preamble for further discussion 

of MS4s.

Butler County Pennsylvania (Doc. #6918.1)

11.2.302 Moreover, impact cost analysis on how the proposed definitional changes may 

impact the pesticide general permit program, including EPA and DEP spraying programs, 

to control weeds and vegetation around ditches, water transfer, reuse and reclamation 

efforts, drinking and other water delivery systems have not been considered. These issues

directly impact states and local government budgets. Had the proposed rule complied 

with the Executive Order, an opportunity to address significant concerns over the 

 

208 This increase in the universe of regulated point sources could be the straw that breaks the back of State water

quality permitting programs that already are struggling to meet the workload demands of regulating pesticide

spraying and implementing new regulations, while funding decreases.

209 The March 2014 Economic Analysis of Proposed Revised Definition of Waters of the United States fails to

analyze or even consider any impacts on section 402 permitting programs and yet concludes that such impacts will

be minimal.
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preemption of traditional state and local government authority concerning management of 

state and local waters and land use would have been provided. (p. 9)

Agency Response: See essays in Topics 11.4 and 12.3. Additionally, the rule 

neither changes nor imposes new requirements for complying with the pesticides 

general permit (PGP).

Mesa County Board of County Commissioners (Doc. #12713)

11.2.303 Mesa County respectfully requests that the United States Environmental 

Protection Agency (EPA) and USACE:

Stay the rulemaking process until the EPA’s Economic Analysis is revised and the EPA 

is able to conduct a complete cost-benefit study. 

We request the above actions because:

The Economic Analysis of the Proposed Rule is of concern because of the discussion on 

Municipal Separate Stormwater Sewer Systems (MS4s). Under the Proposed Rule, many 

stormwater systems and features could now be classified as WOUS. The Economic 

Analysis does not address or quantify the increased permitting requirements for 

stormwater conveyances that would result from the Proposed Rule. In fact, the Economic 

Analysis states on Page 26 that "it is unclear specifically how a broader assertion of 

CWA jurisdiction under this Proposed Rule would affect MS4 permits," and "MS4 

outfalls tend not to be in wetlands." Any work on the stormwater conveyances, work 

aimed at achieving environmental best management practices, as well as routine 

improvements will require section 404 permitting. (p. 1)

Agency Response: See essays 11.4 and 7.4.4, as well as Section 8 of the Economics 

Analysis.

11.2.304 Mesa County uses herbicide and pesticides in a number of ways including 

treatment of weeds in ditches on the side of the road and treatment of mosquitoes and 

other pests. The increased time and expenses to reduce noxious weeds required by weed 

control programs under the Colorado Noxious Weed Act Title 35, Article 5.5 is unclear at 

this time, and we request the EPA to research and document additional United States 

regional specific impacts to the proposed rule to clarify these additional new programs 

for required herbicide and pesticide use prior to the finalization of the proposed rule. (p.

4)

Agency Response: See essays 11.4 and 12.3. Additionally, the rule neither changes 

nor imposes new requirements for complying with the pesticides general permit 

(PGP).

Board of Douglas County Commissioners, Castle Rock, Colorado (Doc. #8145)

11.2.305 The Economic Analysis is of particular concern to Douglas County because of the 

discussion on Municipal Separate Storm Sewer Systems (MS4s). Under the Proposed 
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Rule, many stormwater systems and features themselves could now be classified as 

WOUS. The Economic Analysis does not address or quantify the increased permitting 

requirements for stormwater conveyances that would result from the proposed rule. In 

fact, the Economic Analysis states on Page 26 that “[i]t is unclear specifically how a 

broader assertion of CWA jurisdiction under this Proposed Rule would affect MS4 

permits,” and “...MS4 outfalls tend not to be in wetlands”. MS4s may, at time, develop 

manmade wetlands for water quality features and also may need to remove features in 

order to protect the infrastructure’s functional purpose, such as controlled release for 

water quality. Any work on the stormwater conveyances, work aimed at achieving 

environmental best management practices, as well as routine improvements required by 

stormwater permits, will trigger section 404 permitting requirements under the Proposed 

Rule. The 404 permitting process is a time consuming and expensive process. As local 

offices are inundated with the 404 permit process state wide, Douglas County is 

concerned about the immediate associated construction delays for projects after the 

Proposed Rule is final.

Additionally, if stormwater conveyances are deemed WOUS, they will be subject to 

water quality standards. The costs of complying with water quality standards may also be 

exponential. These issues are troubling to Douglas County because maintaining 

compliance with MS4 permit requirements, and any potential associated penalties, are 

substantial budget line items. If permitting costs for MS4 maintenance and construction 

activities increase due to expanded jurisdiction of the CWA, these budgets will need to 

similarly increase. Under EO 13563, these potential costs need to be evaluated by the 

Agencies prior to adoption of the Proposed Rule. (p. 6)

Agency Response: See essays in 11.4 and 7. 

Georgia Municipal Association (Doc. #14527)

11.2.306 Potential implications if the rule is implemented as written include:

1. Increased costs: Polluted stormwater runoff is commonly transported through 

Municipal Separate Storm Sewer Systems (MS4s), from which it may be discharged 

untreated into local water bodies. To prevent harmful pollutants from being washed or 

dumped into an MS4, operators must obtain a NPDES permit. Each regulated MS4 i s 

also required to develop and implement a stormwater management program (SWMP) to 

reduce the contamination of stormwater runoff and prohibit illicit discharges. GMA is 

concerned that the proposed rule could bring MS4s infrastructure and other stormwater 

system under regulation including drains, roads, pipes, curbs, gutters, ditches, and other 

components that channel runoff, resulting in tremendous direct and indirect costs for 

cities, including:

(a) Added permit application costs (ranging from tens of thousands of dollars to 

much higher, per EPA estimates).
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(b) Wetlands and stream mitigation costs (EPA has indicated that these costs vary 

widely, with average costs nationwide ranging from $24,989 to $49,207 per acre 

of wetlands mitigated and from $177 to $265 per linear foot of stream mitigation).

(c) If ditches, curbs, gutters, and other system components throughout Georgia are 

jurisdictional, GMA is concerned that the Corps simply does not have enough 

manpower to review and make a determination for these facilities throughout the 

state. Significant delays are inevitable. Appendix A that accompanies this letter 

outlines local examples from the City of Griffin, Georgia, that illustrate the time 

and costs currently involved with a typical local project.

The potential costs of redesign, relocation and litigation would be significant, especially 

since they will be borne by taxpayers and ratepayers.

2. The potential impact to the state and local economy if the rule is implemented is 

unknown. According to the EPA and Army Corps, the full economic impact of the 

propose d rule is largely unknown because the findings are "incomplete" due to the 

"many data and methodological limitations, as well as the inherent assumptions in each 

component of the analysis." The National League of Cities reports that the EPA has not 

analyzed the cost of the proposed rule on all Clean Water Act programs beyond the 404 

program, including NPDES, Water Quality Standards, TMDLs, stormwater, and green 

infrastructure. 

Recommendations:

(...)EPA should either withdraw the proposed rule or issue a revised proposed rule with 

an additional comment period pending completion of the economic impact analysis. It is 

important that EPA and the Corps engage the states in this process and listen to local 

government experts who are on the front lines. (p. 3-4)

Agency Response: Please see essays 11.4, 12.3, and 7.4.4. See also section 8 of the 

Economics Analysis.

Colorado Clean Water Coalition (Doc. #3533)

11.2.307 The document prepared for the proposed rule, The Economic Analysis of 

Proposed Revised Definition of the Waters of the United States, prepared March 2014 by 

the USEPA and USACE, states on Pg. 26 - "It is unclear specifically how a broader 

assertion of CWA jurisdiction under this proposed rule would affect MS4 permits." Upon 

completion of the peer review and incorporated peer comments of this economic analysis, 

we would like to know the economic impacts from the proposed rule to identify objective 

financial measurements of impacts to MS4 permits. (p. 2)

Agency Response: Please see essays 11.4, 12.3, and 7.4.4. See also section 8 of the 

Economics Analysis.
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American Society of Civil Engineers (Doc. #19572)

11.2.308 ASCE Recommends Improvement to the Economic Analysis

Simply stated, the Economic Analysis provided by EPA and USACE does not 

sufficiently address the potential economic impacts on MS4’s. In fact the Economic 

Analysis explicitly states that the agencies do not know what the economic impact is: “It 

is unclear specifically how a broader assertion of CWA jurisdiction under this proposed 

rule would affect MS4 permits.”210 Considering the proposed rule affects all sections of 

the Clean Water Act, and the potential impact on municipalities operating MS4’s is 

significant, we urge EPA and USACE to revise the Economic Analysis and take a hard 

look at the costs on MS4 operators. (p. 10)

Agency Response: Please see essays 11.4, 12.3, and 7.4.4. See also section 8 of the 

Economics Analysis.

North Carolina Aggregates Association (Doc. #6989)

11.2.309 We believe the projected cost-benefit analysis is fatally flawed. It is 

incomprehensible to project a mere 3% increase in permitting workload. However, 

regardless of the percentage increase in total permitting, the proposal has no accounting 

for the decrease in the utility of Nationwide Permits and the migration of projects to 

Individual Permits. While the increased costs incurred to secure an Individual Permit 

should be factored in to the cost-the agencies must also realize the time required to secure 

Individual Permits will substantially stymie real estate development. Should EPA and 

the Corps move forward with this proposed rule in its current form, many development 

projects would become cost prohibitive. The process to obtain a permit would become so 

that many projects will never get off the-ground. Additionally, the rule would place a 

significantly increased burden on the municipalities that are required to maintain and 

improve the drainage system on a consistent basis. There will be so many more waters 

that become regulated that the backlog in the Corps' permitting offices will increase tenfold. Development and regular ongoing maintenance could come to a screeching halt. (p.

3)

Agency Response: See Summary Responses 11.2, 11.3.1, 11.4, and 12.4.

The Mosaic Company (Doc. #14640)

11.2.310 3.2 Section 402

Section 402 of the CWA requires proponents to obtain NPDES permits to discharge to 

jurisdictional waters. Aside from the development of pollutant discharge management 

plans, the specifics of NPDES permit requirements vary for different types of point and 

 

210 Economic Analysis of the Proposed Revised Definition of Waters of the United States. U.S Environmental 

Protection Agency, March 2014, pg. 26.
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non-point sources. The EPA Study develops an estimate of administrative and 

implementation costs associated with NPDES permits for three types of point sources on 

which the proposed expansion of CWA jurisdiction may impose incremental costs: a) 

polluted storm water runoff from construction sites, b) runoff from Concentrated Animal 

Feeding Operations (CAFOs), and c) runoff containing pesticides generated by biological 

and pesticide applicators that obtain Pesticide General Permits (PGPs). EPA’s estimate of 

incremental costs associated with Section 402 compliance total $37.7 million, which is 21 

percent of the estimated incremental costs associated with Section 404 compliance (EPA 

Study, Exhibit 16). Below we describe our concerns with the EPA’s estimation procedure 

and suggest ways in which the accuracy and reliability of the estimates may be improved.

3.2.1 EPA’s Projected Jurisdictional Increase in NPDES Permitting

The EPA Study estimates incremental cost increases in NPDES permits for all three 

categories of point source discharges by applying the 2.7 percent projected increase in 

CWA jurisdiction under Section 404 permitting, to a historical measure of NPDES costs 

or permitting activity specific to point source activity. Due to the difference in the 

purpose of Section 404 and 402, however, there is no relationship or basis for using the 

same increment of increase. Further, the EPA study does not provide examples or data. 

Rather, the Study states: “a portion of these entities may be subject to an assertion of 

jurisdiction to a similar extent of those seeking 404 permits” because their activities 

“likely occur in similar locations as CWA 404 dredge and fill discharge with respect to 

proximity to “isolated waters,” small streams, and their adjacent wetlands” (EPA Study, 

p.6). This approach, however, is too important to stakeholder outcomes to handle so 

lightly, and additional data or analysis is needed to determine the validity of this claim.

3.2.2 Costs of Incremental Stormwater NPDES Permits

The EPA Study method of estimating incremental stormwater NPDES permit related 

costs begins with cost estimates from 1998, then applying the same estimated 2.7 percent 

incremental increase in CWA jurisdiction. These 1998 costs are adjusted based on the 

percentage increase of stormwater NPDES permits issued in 1994 compared against the 

number of stormwater NPDES permits issued in 2011. The resulting incremental costs 

are converted to 2010 dollars. This method likely underestimates actual “program 

growth.” Both 1994 and 2011 were recession years, when construction activity would be 

depressed relative to other periods in the NPDES permitting program. This is evidenced 

by the data presented in Figure 1. Further, the limited data set is not conducive to the use 

of best methodological practices, but rather defaults to historical stormwater NPDES 

permit and construction costs for a given year, based merely on availability.

A more reliable approach would be to: 1) use the average number of annual stormwater 

NPDES permits over a historical period, 2) compute the actual Section 402 permit rate, 3) 

project the expected number of applications, 3) apply the appropriate percent incremental 

increase based on expected increase in CWA jurisdiction, and 4) use “per permit” 

processing and construction costs from more recent permits. This approach has the 
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advantage of both accounting for variability in construction activity, an industry wellrecognized as highly cyclical, and the use cost data from more recent plans that better 

reflect the nature of stormwater plans and associated costs, than would construction sites 

from the mid-1990s.

3.2.3 Costs of Incremental CAFO NPDES Permits

The EPA Study estimates incremental CAFO NPDES permit implementation costs 

starting with 2001 cost estimates, and applying the estimated 2.7 percent incremental 

increase in CWA jurisdiction. This is adjusted to reflect the decrease in permit holders 

that occurred between 2001 and 2011. The resulting incremental costs are then converted 

to 2010 dollars. While the number of CAFOs has declined over the period considered, the 

consolidation in the U.S. livestock industry has led to fewer, but much larger operations. 

Figure 2 contains data published in a study by the United States Department of 

Agriculture Economic Research Service on the U.S. Dairy Industry illustrating this trend 

(MacDonald et al. 2007). As shown in Figure 2, the sharpest increase in the average size 

of dairy operations occurred between 2000 and 2006.211 By using program costs from

2001, the cost of current CAFO NPDES permits associated with larger operations may be 

understated. We recommend that EPA investigate whether the average cost of CAFO 

NPDES permits has increased over the period in which the number of CAFOs and 

corresponding permits decreased. (p. 47-49)

 

211 Of note is that increases in the size of dairy farms have been the most dramatic in the Western and Southwestern 

United States relative to the United States as a whole.
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Number of dairy farms is declining, while average size is growing

(p. 47-49)

Agency Response: See essay 11.4 above. See also essay 12.3, explaining that the 

final rule does not change or impose new requirements for complying with section 

402/NPDES, including CAFO and pesticides general permit (PGP) permitting 

requirements. With regard to the final rule’s policy on stormwater control features, 

see essay 7.4.4. See Economics Analysis Section 8 regarding costs and benefits for 

the NPDES program, including individual and general NPDES permits, CAFOs, 

pesticides, and stormwater.

Golf Course Superintendent’s Association of America, et al. (Doc. #14902)

11.2.311 If almost all water bodies on a golf course are deemed a WOTUS, many routine 

golf course maintenance activities (such as fertilizer and pesticide applications) will be 

deemed to result in a “discharge” to those so called WOTUS. Activities that result in a 

“discharge” cannot legally go forward without a required Section 402 National Pollutant 

Discharge Elimination System (NPDES) permit. Most important, there is no legal right to 

a permit to “discharge” into WOTUS, or any deadline on EPA’s process to issue a 

permit. Permitting could take months or even years, or permits may simply be 

unavailable. 

Golf facilities could be required to get permits for all activities in or near WOTUS and 

that will mean a substantial increase in costs to our small businesses for permits, 
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mitigation, monitoring and assessments as well as increased costs for permit review and

issuance to be borne by state governments. It also increases our liability to manage the 

property due to the threat of citizen action lawsuits. This rule could be a significant 

vehicle for lawsuits on golf courses because it presumes that all waters are subject to 

federal jurisdiction. (p. 9-10)

Agency Response: Please see essays 11.2, 11.4, and 12.3. The final rule does not 

change or impose new requirements for complying with the pesticides general 

permit (PGP). See also section 8 of the Economics Analysis.

11.4.4.1 Costs

Agency Summary Response

Please refer to the summary response provided at the beginning of Topic 11.4.

Specific Comments

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

11.2.312 In St. Johns County the stormwater management is funded by the county general 

fund. If stormwater costs significantly increase due to the proposed rule, not only will it 

potentially impact our ability to focus available resources on real, priority water quality 

issues, but it may also require that funds be diverted from other government services such 

as education, police, fire, etc. (p. 2)

Agency Response: See Summary Responses to Topics 11.4 and 7.4.4.

Natural Resources (Doc. #14426.1)

11.2.313 The County owns and operates 149 wet detention pond facilities, each of which 

discharges into the MS4 and eventually to WOTUS or directly into a WOTUS. Assuming 

the cost to comply with water quality standards and TMDLs in Joe’s Creek Detention 

Pond #1 represents an average for all County ponds, the proposed definition of WOTUS 

could cost the County TMDL and NPDES programs and additional $85 million. This 

estimate does not include complying with water quality standards in ditches or other 

similar stormwater conveyances. (p. 4)

Agency Response: See Summary Responses to Topics 11.4, 12.3, and 7.4.4, and 

section 8 of the Economics Analysis.

11.2.314 PERMITTING REQUIREMENTS FOR MS4 MAINTENANCE

The County currently utilizes the services of consultants to prepare permit applications 

and requests for permit exemptions to conduct maintenance activities on the MS4 system 

that may have impacts to WOTUS under current rules. The costs associated with 

preparing these permit applications or exemption requests do not differ significantly per 
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linear foot due the fact that the permitting agencies require, in most cases, the same 

information be submitted for application for permit or exemptions. Examples of these 

applications are attached for reference. The current costs that the County incurs in these 

applications range from $16 to $23 per linear foot and only include the cost for preparing 

the application and do not include survey costs. The two recent examples below include 

projects from the higher and lower range of these estimates.

Site 1: B7 Ch. B Hanby

This site received an exemption from the FDEP. The total linear foot (LF) of aintenance 

sediment removal is 450 LF. The cost to collect the data necessary for the permit 

application for this location was $10,331. This resulted in a cost of approximately 

$23/LF.

Site 2: Ch. R – South Creek – Steeplechase

This site received an exemption from the FDEP. The total linear feet of maintenance 

sediment removal is 673 LF. The cost to collect the data necessary for the permit 

application for this location was $10,238. This resulted in a cost of approximately 

$16/LF.

Based on the sites listed above and other similar sites that the County is currently 

obtaining maintenance related permits, below are the anticipated costs that would result 

from the proposed changes to the WOTUS rule. The costs presented below do NOT 

include the survey costs associated with the permit or exemption request and use the 

lower estimate of $16/LF.

Ditches:

• Total mapped (not including major channels) within our MS4 = 1,318,867 LF 

(250 miles)

• Average cost to compile permit applications or exemptions is approx. $16/LF 

resulting in total cost of $21,101,872 every five years.

• Total mapped (not including major channels) in FEMA floodplains = 440,648 

LF (83 miles) which is 33% of all the ditches in our MS4

• Average cost to compile permit applications or exemptions is approx. $16/LF 

resulting in total cost of $7,050,368.

Pipes:

• Total mapped within our MS4 = 3,563,411LF (675 miles)

• Average cost to compile permit applications or exemptions is approx. $16/LF 

resulting in total cost of $57,014,576.

• Total mapped in FEMA floodplains = 833,023 LF (158 miles) which is 23% of 

all pipes in our MS4
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• Average cost to compile permit applications or exemptions is approx. $16/LF 

resulting in total cost of $13,328,368.

The County has costs associated with compliance with the current WOTUS rules 

primarily in areas designated as Major Channels. These existing costs are expected to 

increase since only some of the Major Channels require permits for maintenance related 

activities. Under the proposed rule, all of the County’s Major Drainage channels will be 

expected to go through some level of permitting. The numbers presented below are the 

anticipated costs associated with this effort and do not include survey costs.

Major Channels within our MS4:

• Total mapped within our MS4 = 849,946 LF (161 miles)

• Average cost to compile permit applications or exemptions is approx. $16/LF 

resulting in total cost of $13,599,136.

• Total in FEMA floodplains = 667,516 LF (126 miles) which is 78% of all Major 

Channels in our MS4

• Average cost to compile permit application is approx. $16/LF resulting in total 

cost of $10,680,256.

Presented below is a list of sample projects that are in the design and permitting phase or 

that have been completed by Pinellas County that would require permitting under the 

proposed rule, but are exempt under the current rule. Maps showing the project limits are 

attached.

Please note this list is not all inclusive, and the intent is to demonstrate the types of 

projects the County implements to improve water quality and natural systems, and to 

provide flood protection, that will most likely require an USACE permit if the proposed 

rule is promulgated.

Crystal Bay Mobile Home Park (Exhibit B)

The Crystal Bay mobile home park project involves removing sediment and invasive 

species of plants from an existing manmade drainage system. Currently, the site will 

qualify for an exemption from federal permitting through authority delegated to the 

FDEP. Under the proposed rule, the site would likely be determined to have a significant 

nexus as it is within the floodplain of a jurisdictional water and has a normal connection 

at high tide through a series of culverts.

The anticipated additional cost for work to be completed at Crystal Bay Mobile Home 

Park as a result of the proposed rule is approximately $25,920 based on similar current 

projects.

Joe’s Creek Pond 3 (Exhibit C)

This existing stormwater pond was constructed in the late 1980’s to provide flood 

protection within the Joe’s Creek watershed. This existing pond received a permit from 
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the SWFWMD. The pond is currently being maintained to be in compliance with the 

approved SWFWMD permit. Current maintenance activities consist of spraying for 

nuisance vegetation and mechanical removal of nuisance aquatic vegetation. Sediment 

removal activities are anticipated in the near future. Under the proposed rule, this site will 

be considered a WOTUS because it is directly connected to Joe’s Creek, which is 

currently a WOTUS.

The anticipated additional cost for maintenance of Joe’s Creek Pond 3 as a result of the 

proposed rule is approximately $21,000 based on similar current projects.

Lake Seminole Bypass Canal Tributaries (Exhibit D and E)

The County regularly inspects and removes sediment or excessive vegetation in ditches to 

maintain conveyance capacity and reduce flood risks in the area. The Bypass Canal 

tributary ditches flow into the Lake Seminole Bypass Canal, which was constructed in 

1976 to divert flows around Lake Seminole for flood control. The Bypass canal 

discharges into Long Bayou, a current WOTUS, thus the Bypass Canal tributaries will 

also be considered WOTUS under the proposed rule.

The anticipated additional cost of maintaining these canals as a result of the proposed rule 

is approximately $51,840 based on the $16/LF estimate described above.

Lake Seminole Ditches and Tributaries (Exhibits D, F and G)

The County regularly inspects and removes sediment or excessive vegetation in ditches to 

maintain conveyance capacity and reduce flood risks in the area. Ditches that discharge to 

Lake Seminole will be considered WOTUS under the proposed rule because they are 

directly connected to Lake Seminole which is currently a WOTUS.

The anticipated additional cost for maintaining these ditches as a result of the proposed 

rule is approximately $35,200 based on the $16/LF estimate described above.

Tanglewood Trail Sidewalk and Drainage Improvements (Exhibit H)

This project modified an existing stormwater management system. The work included 

improvements to upland cut roadside ditches that are located within a floodplain and that 

discharge into Brooker Creek. This project was permitted by SWFWMD, but the USACE 

did not respond to the application.

The anticipated additional cost of this project as a result of the proposed rule is 

approximately $46,864 based on the $16/LF estimate described above. (p. 5-7)

Agency Response: See Summary Responses to Topics 11.4, 12.3, 14.1 and 7.4.4, 

and section 8 of the Economics Analysis. While the agencies cannot speculate about 

the jurisdictional nature and permitting needs for specific waters and projects, essay 

7.4.4. and the responses thereunder describe the final rule’s policy on stormwater 

conveyances. See also Compendium 6 regarding the jurisdictional policies for 

ditches.
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Florida Stormwater Association (Doc. #14613)

11.2.315 Fiscal Impacts - Contrary to the conclusions reached in EPA’s Economic Analysis 

of the Proposed Regulations, FSA has determined that there will be very profound 

negative fiscal impacts on MS4 permit holders in Florida. Please see the attached 

documents, which are incorporated by reference herein.

Our analysis concludes that the cost of implementing the provisions of the proposed 

regulations would easily exceed $1 million per mile of roadside ditch and that the 

cumulative impact on selected county geographic areas would exceed several hundred 

million dollars each, and in some cases more than $1 billion. (p. 5)

Agency Response: Please see Summary Responses to Topics 11.4. See also 

Summary Response to Topic 7.4.4 regarding the final rule’s policy on stormwater 

conveyance features, and Compendium 6 regarding the final rule’s policy on 

ditches.

City of Golden Public Works (Doc. #14617)

11.2.316 The proposed rule making should be delayed until a revised cost benefit analysis 

which accurately captures the cost to MS4 regulated agencies is produced and published, 

and time is afforded to impacted entities to review and comment. (p. 3)

Agency Response: Please see Summary Responses to Topics 11.4. See also 

Summary Response to Topic 7.4.4 regarding the final rule’s policy on stormwater 

conveyance features, and Compendium 6 regarding the final rule’s policy on 

ditches.

Water Advocacy Coalition (Doc. #17921.15)

11.2.317 2. Section 402 NPDES Permits

The CWA section 402 National Pollutant Discharge Elimination System (NPDES) permit 

program controls water pollution by regulating point sources that discharge pollutants 

into “waters of the United States.” As discussed in further detail below, EPA states that 

the proposed rule would be cost-neutral or minimal with respect to traditional section 402 

discharge permits such as those for municipal wastewater treatment facilities or industrial 

operations. 

To calculate the incremental costs of the rule with respect to section 402 construction 

stormwater permitting, EPA used the October 1999 Economic Analysis of Final Phase II 

Storm Water Rule. EPA then adjusted for a 2.7% increase in jurisdictional waters and a 

30% increase in program size.212 Accounting for inflation, this yields costs of $25.6 to 

 

212 30% program growth is derived from 130,000 “construction starts” in 1994 (from 1999 Economic Analysis) to 

169,000 construction sites with permit coverage in 2011 (from EPA’s GPRA management measures tracking).
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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$31.9 million per year. EPA concluded that the cost impacts for Municipal Separate 

Storm Sewer Systems (MS4s) would be negligible. However, under the agencies’ 

proposed rule, which, for the first time, includes a regulatory definition of “tributary” that 

explicitly includes ditches and extends jurisdiction to “adjacent waters,” including 

adjacent non-wetlands, many of the stormwater systems and features themselves could 

now be classified as “waters of the United States.” EPA’s economic analysis does not 

address or quantify the increased permitting requirements for stormwater conveyances 

that would result from the proposed rule. For example, work on the stormwater 

conveyances, including work aimed at achieving environmental best management 

practices (BMPs) as well as routine improvements required by stormwater permits, will 

trigger section 404 permitting requirements. Additionally, if stormwater conveyances are 

deemed “waters of the United States,” then they will be subject to water quality 

standards. The costs of complying with water quality standards are discussed in more 

detail below.

EPA calculated incremental costs from section 402 Concentrated Animal Feeding 

Operations (CAFO) permitting in a manner similar to EPA’s calculations for construction 

stormwater costs. It scaled up values from a 2003 rulemaking by 2.7% to account for 

increase in jurisdictional waters, but reduced them by 50% to account for a reduction in 

program size.213 After converting to 2010 dollars, the incremental costs totaled 

approximately $5.5 million per year.

EPA calculated costs associated with increased numbers of Pesticide General Permits 

(PGP) to be between $2.9 and $3.2 million annually for operators, but made no attempt to 

calculate the increased impact on government entities. Growth in PGP permitting was 

determined to be almost 1000%, from 35,376 affected entities where EPA administers 

permits to a potential group of 365,000 entities where states administer permits.

EPA claims that a definitional change will have little to no effect on traditional Section 

402 NPDES discharge permits such as those for municipal wastewater treatment facilities 

or industrial operations. The exclusion of potential section 402 costs associated with the 

NPDES permitting is troubling. EPA provides several possible explanations for its 

observation that discharging entities are likely to acquire permits regardless of the 

jurisdictional status of the receiving water, and will not be impacted by a definitional 

change. One explanation is that EPA has authorized 46 states to administer section 402 

permitting. Because state-level jurisdictional waters must be at least as inclusive as 

“waters of the United States,” many states already have implemented the sort of 

programmatic changes being proposed in this analysis. However, this explanation has 

limited merit, given EPA’s assertion that “approximately two-thirds of all states place 

 

213 Benefit values taken from Federal Register volume 68 number 29. 50% decrease in program growth derived from 

~15,000 CAFOs considered in 2003 analysis to 7,318 permit holders in 2011 (from EPA’s GPRA management 

measures tracking).
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some legal constraint on the authority of state and local government officials to adopt 

aquatic resource protections beyond waters of the U.S.” Either way, all states will need to 

revisit their programs and EPA will need to reassess whether states comply with the 

definitional changes. As a result, both federal and state agencies will incur additional 

costs. Moreover, EPA completely fails to acknowledge or account for the fact that the 

proposed rule could affect compliance feasibility and costs for facilities that already have 

NPDES permits, by classifying as jurisdictional ditches, ponds, and other water features 

on facility sites, that facilities use for plant operations and/or compliance, and for which 

no discharge permit has been required previously. EPA does not account for additional 

costs that facilities will incur to comply with effluent limits and implement BMPs for 

these newly jurisdictional features. Nor does EPA’s analysis account for the fact that 

work done to comply with NPDES permits for these newly jurisdictional ditches, ponds, 

and other water features (e.g., installation of structures for sediment removal) will trigger 

costly section 404 permitting requirements and requirements to comply with water 

quality standards. (p. 71-73)

Agency Response: See Summary Responses to Topics 11.4 and 12.3. See also 

economics analysis section 8.

Texas Mining and Reclamation Association (Doc. #10750)

11.2.318 (...) If not, the Agencies should specify that outfall and receiving water 

designations in previously issued NPDES permits cannot be modified based on the new 

rule. If so, the Agencies have not considered these costs in their economic analysis, and 

must do so. (p. 12)

Agency Response: See Summary Responses to Topics 11.4 and 12.3. See also 

economics analysis section 8.

American Petroleum Institute (Doc. #15115)

11.2.319 3.1.2.3 The Agencies’ analysis underestimates the change in CWA 402 

Stormwater Permitting compliance cost by using the unrealistically low 2.7 percent 

increase in jurisdictional waters.

The Agencies used the Economic Analysis of the Final Phase II Stormwater Rule to 

estimate the potential incremental increase in construction stormwater permits under the 

Proposed Rule.214 The Agencies used the 1998 costs for construction, the aforementioned 

2.7 percent estimated increase in jurisdictional waters, and 30 percent increase in 

program growth215 to determine an overall annual cost for construction of $25.6 to 31.9 

million. The actual costs are expected to be significantly higher than what was presented 

 

214 EPA, October 1999.

215 30% program growth is the increase from the number of construction starts in 1994 (130,000, EPA 1999 

Economic Analysis) to 2011 (169,000 EPA’s GPRA Data).
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when the percentage increase in jurisdictional waters is correctly estimated (i.e., the 

Agencies’ estimate of percent increase of 2.7 percent in jurisdictional waters is much 

lower than what is expected to result from the Proposed Rule [see Section 4]). (p. 66)

Agency Response: See Summary Responses to Topics 11.2 11.4, 12.3, and 7.4.4, 

and see Section 8 of the economics analysis.

City of Goose Creek, South Carolina (Doc. #18827)

11.2.320 Due to the significant potential fiscal impact of the proposed new definition of 

Waters of the United States on MS4 communities with no clear demonstration of 

environmental benefits, the City of Goose Creek would like to go on record as objecting 

to the proposed rule and definition as currently proposed. (p. 2)

Agency Response: See Summary Responses to Topics 11.4 and 7.4.4.

11.4.4.2 Benefits

There were no identified comments under this topic area.

11.4.5. Other

There were no identified comments under this topic area.

11.5. SUPPLEMENTAL COMMENTS ON COSTS AND BENEFITS

Specific Comments

11.2.321 Medina County Commissioners (Doc. #2718) is our contention that the increase 

financial costs associated with this expansion of regulatory compliance with Clean Water 

Act regulations will provide little or no corresponding improvement in water quality in 

our county. We believe that regulation of the nation's waterways must be done in a 

manner that responsibly protects the environment. However, it should not involve the 

unnecessary and costly expansion of the federal government to the detriment of the 

nation's economy, the imposition of massive costs on local governments, nor the 

abrogation of private property rights that are rooted within the proposed rule changes. (p. 

2)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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consistent with the law and peer-reviewed science. See summary responses to Topic 

11 and the Economic Analysis.

W. V. Giniecki (Doc. #4262)

11.2.322 The costs to municipalities and their highway departments, economic 

development projects in Upstate New York and a multitude of businesses will be high in 

order to comply with a significantly expanded CWA. One Upstate county estimated that 

its highway department alone would need an additional $1 million from taxpayers just to 

keep up its current maintenance protocols: How do our communities begin to afford this 

type of overregulation? (p. 1)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See summary responses to Topic 

11 and the Economic Analysis.

Council of the Borough of Ferndale, Cambria County (Doc. #4825)

11.2.323 (...) WHEREAS, the financial impact of the proposed regulation to the Town will 

create significant ongoing maintenance costs and delays to Town citizens due to the need 

for jurisdictional determinations and expanded jurisdictional authority of the EPA and 

Corp; and (...) (p. 1)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See summary responses to Topic 

11 and the Economic Analysis.

Nevada County Resource Conservation District (Doc. #4830)

11.2.324 More importantly, the agencies' cost-benefits analysis-Economic Analysis of 

Proposed Revised Definition of Waters of the U.S. (March 20 1 3), acknowledges the 

data used and assumptions made to craft the analysis may be flawed. A review of the 

proposed rule entitled 'Review of 2014 EPA Economic Analysis of Proposed Revised 

Definition of Waters of the United States' by Economist David Sunding, Ph.D. with The 

Brattle Group notes that "The errors, omissions, and lack of transparency in EPA~ 

study are so severe as to render It virtually meaningless." (p. 2)
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Agency Response: The agencies have improved their economic analysis in 

response to comments. See summary response to Topic 11 and the Economic 

Analysis, as well as additional responses under Topics 11.2, 11.3, and 11.4.

Bonner County Board of Commissioners (Doc. #4879.1)

11.2.325 Counties, communities and private landowners will continue to be financially 

burdened to greater extents if the expansion of the rules is approved as written. All these 

entities deserve the right to timely decisive actions by federal agencies, which have not 

been provided for decades, to proceed with land rights, management of local properties 

development and public right-of-ways. Local agencies will suffer tremendous addition 

costs and public disputes because of increased federal management. (p. 3)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See summary responses to Topic 

11 and the Economic Analysis.

11.2.326 Counties and local landowners could suffer more than a 25% increase in 

management expenses if the proposed expansion of the definition is approved. There are 

decades of evidence that local agencies have effectively managed current non-navigable 

waterways and wetlands efficiently without the need for federal agency expansion or 

permits. Most property owners would agree that "Waters of the U.S." should be only 

those waters leaving state boundaries that flow continuously the entire year. (p. 3)

Agency Response: Members of Congress, developers, farmers, state and local 

governments, energy companies, and many others requested new regulations to 

make the process of identifying waters protected under the CWA clearer, simpler, 

and faster. In this final rule, the agencies are responding to those requests from 

across the country to make the process of identifying waters protected under the 

CWA easier to understand, more predictable, and more consistent with the law and 

peer-reviewed science. 

The agencies prepared an illustrative economic analysis comparing the scope of this 

new regulation to the agencies’ recent field practices in making jurisdictional 

determinations after the Supreme Court decisions of 2001 and 2006 to see how this 

rule may affect the costs and benefits of specific CWA programs. See summary 

responses to Topic 11 and the Economic Analysis.
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330

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

11.2.327 The Regulatory Flexibility216 Act requires proposed Major Federal Actions to be 

based upon adequate information, a good understanding of downstream consequences, 

and demonstration that the least net cost alternative to local governments has been 

selected. (p. 2)

Agency Response: See also summary response to Topic 11.1 RFA/SBREFA.

Congress of the United States (Doc. #4983)

11.2.328 The Chesapeake Bay is an economic engine for our region, with an estimated 

value in the tens of billions of dollars range, based on the fishing and shipping industries, 

real estate, recreation, and tourism. (p. 1)

Agency Response: Protecting the long-term health of our nation’s waters is 

essential. The Clean Water Rule strengthens the protection of waters for the health 

of our families, our communities, and our businesses. Our nation’s businesses 

depend on clean water to operate. Streams and wetlands are economic drivers 

because they support fishing, hunting, agriculture, recreation, energy, and 

manufacturing. Pollution threatens these economic drivers and we all know the 

dangers of pollution upstream: water flows downstream and carries pollutants with 

it. Right now, many streams and wetlands lack clear protection from pollution and 

destruction. One in 3 Americans, 117 million of us, get our drinking water from 

streams that are vulnerable. Sixty percent of the nation’s stream miles – the vital 

headwaters that flow downstream after rain or in certain seasons – aren’t clearly 

protected. Millions of acres of wetlands that trap floodwaters, remove pollution, and 

provide habitat for fish and wildlife are at risk.

L. Banks (Doc. #5554.1)

11.2.329 3. I attended an EPA meeting in Winnsboro in which Mr. Curry, the Region 6 

Administrator was present. I want to extend appreciation on behalf of our local farmers 

for Mr. Curry taking time to personally hear our concerns and trust that minutes of the 

meeting were documented to reflect that most all in attendance seemed to be against the 

new rule being approved. I have also read the EPA website which defines the impacts of 

the new rule. Some of the statements on impacts are: 

(...) B. The EPA contends that the new rule 'doesn't broaden coverage under the CWA'—

THIS IS NOT CORRECT! The new rule's extension of jurisdiction will exponentially 

expand EPA jurisdictional authority. Proof of this is reflected even in EPA's projected 

additional costs for additional permitting activity (up to $279,000,000.00/yr). Also- who 

 

216 40 CFR $1501 - 1502
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331

will pay this-has to be us cash-strapped farmers and folks out in the rural areas where 

most of the newly ruled jurisdictional ditches will be! (p. 1)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See summary responses to Topic 

11 and the Economic Analysis. The Rule retains exemptions for certain agricultural 

uses and practices [see for instance, Topic 7.2 on Prior Converted Cropland] and 

clarifies excluded waters. 

11.2.330 (...) F. The EPA contends that the new rule 'saves business time and money'—

HOW CAN THIS BE TRUE? Just look at EPA's own annual cost of additional 

$279,000,000.00 which will be paid by landowners. Doesn't sound like savings to me. 

(p. 1)

Agency Response: The agencies believe the rule will expedite the permit review 

process in the long-term by clarifying jurisdictional matters that have been timeconsuming and cumbersome for field staff and the regulated community for certain 

waters in light of the 2001 and 2006 Supreme Court cases. See Summary Response 

to Topics 11, 11.2, 11.3, 11.3.1, and 11.4 on costs.

11.2.331 (...) G. The EPA contends that the new rule provides more benefits than costs.' 

While this is what the Economic Analysis states, I would argue that the CWA 404 

Wetlands Mitigation benefits of up to $345,000,000.00 annually should also have been 

considered as a cost since most of the costs for this mitigation benefit would have to be 

borne by the owners of the additional 1332 acres which will be impacted by this rule 

change. I believe all these cost numbers are extremely low if EPA interprets the new rule 

to extend up ditches and drainage waterways on the farm. The remainder of the benefits 

are supposedly cost savings for Government Agencies who will be able to save money by 

not having to think and consider what their regulatory jurisdiction limits will be under the 

new rule? (p. 1 – 2)

Agency Response: See the Economic Analysis and summary responses to Topics 

11.3, 11.3.1, and 11.3.2 on wetlands mitigation costs and benefits.

L. Banks (Doc. #5554.2)

11.2.332 6. Has the Corps/EPA/NRCS and other Fed and state agencies determined the 

impact of the proposed rule on future flood control, highway construction and 

infrastructure improvements, erosion control or other ag conservation projects? I believe 

that with extended jurisdiction(supported by the added $279,000,000.00 annually to 

evaluate permits), the mitigation requirements for the added jurisdictional areas of impact 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

332

will be of such magnitude that it will render the benefits/costs of any of the new 

improvements as infeasible. (p. 1)

Agency Response: See the Economic Analysis and summary responses to Topics 

11.3, 11.3.1, and 11.3.2 on wetlands mitigation costs and benefits. City and Regional 

Planning, University of North Carolina at Chapel Hill (Doc. #7006)

11.2.333 I am very supportive of the proposed expansion of the Clean Water Act's 

definition of waters of the united states. I have attached peer-reviewed research - both my 

own and from colleagues - showing that unified and stable ecological restoration 

requirements under the Clean Water Act's definition of Waters of the United States 

(WOTUS) actually increase certainty in the development industry and ecological quality. 

The attached Robertson/Hayden (2008) article reveals the damages of eliminating Clean 

Water Act jurisdiction in 2001 SWANCC case. Here, we see the direct, negative impacts 

on the development and mitigation banking industries due to reductions in the coverage 

of the CWA. In the attached BenDor et al. (2001) paper, we explore the impacts of 

uncertainty on these industries; se learn that uncertainty is the enemy of jobs and 

economic growth (both for development and ecological restoration), not regulations 

themselves. Creating uniform federal jurisdiction simplifies market activity. (p. 1)

Agency Response: Thank you for the comment and additional information. See 

summary responses under Topic 11 and subsections, as well as the Economic 

Analysis.

11.2.334 Ecological restoration is not a dead weight economic loss. I have attached a final 

paper ("Estimating the Size and Impact of the Ecological Restoration Economy" + 

technical appendices), which is currently in peer review at a scholarly journal, 

demonstrating that ecological restoration actually produces $25.4 billion in economic 

output ($9.5 billion direct, and $15.5 billion induced effect on other industries). Increases 

in required ecological restoration will increase the economic **benefits** of enhanced 

ecological landscapes, as well as produce larger economic impacts (i.e. increased jobs) in 

a unique industry that hires a large number of workers in a highly educated workforce. 

Restoration ecology represents the fastest growing area of ecology largely because 

ecological restoration has become a for-profit enterprise. (p. 1 – 2)

Agency Response: Thank you for the comment and additional information. See 

the Economic Analysis and summary responses to Topic 11.3.2 and the Technical 

Science Report.

Iowa State University (Doc. #7975)

11.2.335 Economic analysis: The EPA's economic analysis states the proposed rule will 

result in jurisdictional waters of the United States increasing by 3.2 percent. Numerous 

questions have been raised about this economic analysis- for example, how it was 

conducted, what methodology was used, what will be the specific impact in each state 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

333

and whether it is representative of the actual situation in each state. The methodology 

does not produce the true measure of the actual impact of the proposed rule.

Action: We ask that a thorough analysis of the impact of the proposed rule be conducted, 

with specific information provided by state that includes the number and location of new 

jurisdictional acres. Also, we ask that clarification be provided on the assumed marginal 

impact on costs and revenue of these acres. Are these acres that are taken out of 

production, or acres that will have higher costs due to requiring permits and changes in 

practices, or both? (p. 2)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See summary responses to Topic 

11 and the Economic Analysis. See Summary Response to Topics 11, 11.2, 11.3, 

11.3.1, and 11.4 on costs.

Pike County (IL) Republican Central Committee, Pike County Republican Party, Illinois (Doc. 

#7984)

11.2.336 Ordinary activities of small businesses would immediately become subject to a 

wide variety of federal regulations, including permitting requirements, notifications and 

recordkeeping, modeling and monitoring, and use approvals. These requirements would 

impose direct costs, delays, and uncertainty in planning. (p. 1)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See summary responses to Topic 

11 and the Economic Analysis. See Summary Response to Topics 11, 11.2, 11.3, 

11.3.1, and 11.4 on costs. See also summary responses to Topic 11 and 11.1 

RFA/SBREFA.

Home Builders Association of Michigan (Doc. #7994)

11.2.337 The Agencies, by understating the economic impact on small businesses 

particularly construction and development firms, have erroneously claimed the proposed 

rule will not impose a significant economic burden on small businesses.
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Using inadequate data and improper baselines to assess the costs of the rule, however, the 

Agencies have wrongfully certified the rule wd not impose a significant economic burden 

on small businesses as the Agencies' own extremely limited economic analysis clearly 

indicates that this rule is likely to have a significant economic effect on small businesses.

In their analysis, the agencies examine the anticipated changes to permitting under CWA 

Section 404 (development projects that discharge dredge or fill materials into waters of 

the U.S.). They find that in current practice 98 percent of streams and 98.5 percent of 

wetlands meet the definition of waters of the U.S. Under the revised definition these 

figures rise to 100 percent.

They find zero percent of "other waters" (the seventh category in the revised definition) 

to be covered in current practice, but the revised definition would cover 17 percent of this 

category.

The agencies have stated this increase in jurisdiction will lead to greater costs for both 

regulators and regulated entities. "A change in assertion of CWA jurisdiction could result 

in indirect costs of implementation ofthe CWA 404program: a greater share of 

development projects would intersect with jurisdictional waters, thus requiring the 

sponsors of those additional projects to obtain and comply with CWA 404 permits."

The agencies estimated CWA 404 permit costs would increase between $19.8 million and 

$52.0 million dollars annually, and they estimate that section 404 mitigation costs would 

rise between $59.7 million and $1 13.5 million annually. These amounts do not reflect 

additional possible cost increases associated with other Clean Water Act programs, such 

as Section 402 permitting or Section 31 1 oil spill prevention plans.

The agencies further stated the economic analysis done with respect to the 404 program 

increase is likely not representative of the changes that may occur with respect to 402 and 

311 permitting, leaving regulators and the regulated community without a clear idea of 

the additional costs they are likely to incur for these Clean Water Act programs.

Many of these underestimated and unconsidered costs, including those associated with 

increased permitting, mitigation, and regulatory uncertainty, d be borne by home builders 

and other small businesses. (p. 3 – 4)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See summary responses to Topic 

11 and the Economic Analysis. See Summary Response to Topics 11, 11.2, 11.3, 

11.3.1, and 11.4 on costs.
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Eddy County Board of Commissioners (Doc. #9693)

11.2.338 Proposed regulations would have a large impact by increasing cost direct or 

indirect. EPA's cost benefit analysis of assumptions and methodologies are poorly done. 

Agencies just added 3.2 percent of waters will be jurisdictional. This analysis is 

misleading when EPA did not attempt to determine the new numbers of acres of 

watersheds, ephemeral drains, ditches, and isolated wetlands that will be regulated under 

the new rule. EPA should have done a full blown analysis of the increased areas and a 

cost benefit analysis to the county, but also the federal government. If EPA had done this, 

the numbers would have increased all factors dramatically. Proposed regulations will not 

only affect the county, but our economic drivers such as oil and gas, farming and 

ranching. (p. 1 – 2)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See summary responses to Topic 

11 and the Economic Analysis. See Summary Response to Topics 11, 11.2, 11.3, 

11.3.1, and 11.4 on costs.

11.2.339 EPA needs to comply with the Regulatory Flexibility Act. €PA should address 

entities affected by the proposed rule, including but not limited to, local counties, cities, 

towns and villages. The act, Section 553, Title 5 USC, requires the federal agency to 

analyze the degree of impact. EPA should also re-analyze the degree of impact of 

regulations. Agencies' study of the cost and impact is misleading and arbitrary and 

capricious, not only on cost, but a regulatory burden for the people and business. EPA has 

asserted that this will clarify the jurisdiction of the "Waters of the US" but the proposed 

definitions are inadequately explained and raises important concerns and questions, if not 

answered will result in further legal challenges. (p. 2)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See summary responses to Topic 

11 and the Economic Analysis. See Summary Response to Topics 11, 11.2, 11.3, 

11.3.1, and 11.4 on costs. See also summary response to Topic 11.1 RFA/SBREFA.
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United States Senate (Doc. #10625)

11.2.340 I strongly support the intent of the CWA and its longstanding role in protecting 

our water resources. Montanans rely on access to clean water for agriculture and outdoor 

tourism, both of which generate billions of dollars of economic activity in my state. I 

continue to hear from Montanans, from sportsmen to producers and businesswomen to 

those who work in our tourism industry, that the proposed Waters of the United States 

rule goes a long way in protecting our clean water. However, some have raised 

legitimate questions about how pieces of the proposed rule would be implemented. Any 

final rule must be practically implemented on the ground and should reflect the 

constructive comments you receive during this rulemaking process. (p. 1)

Agency Response: EPA and the Corps have used stakeholder input received 

during public outreach events during the public comment period in combination 

with the written comments received during the public comment period to modify the 

terms and the definitions included in the final rule, ultimately with the goal of 

providing increased clarity for regulators, stakeholders, and the regulated public to 

assist them in identifying waters as “waters of the United States.” None of the 

existing procedures, permitting mechanisms, efficient permitting tools such as 

general permits, or activity exemptions under Section 404(f) of the Clean Water Act, 

will be modified as a result of this rulemaking; therefore, existing procedures should 

not be further complicated by this rule. For more discussion, see summary essay for 

Topic 11.2 and Compendium #12 on implementation issues. 

Anonymous (Doc. #11304)

11.2.341 Though I am not thoroughly convinced that the Small Business Administration's 

Office of Advocacy fairly conducted a round table discussion to assess the EPA's

proposed rules, or portrayed the rules in a productively critical way, I think that perhaps 

completing an IRFA and a SBAR panel could only further help their case. Many small 

and large businesses are in support of cleaner water and clearer regulation jurisdiction, 

such as those who have a clearer conscience about what they dump or use on their land 

near bodies of water. The proposed rule would benefit from engaging their voices in the

discussion more, especially those businesses in the agricultural sector. (p. 2)

Agency Response: See Summary Response for Topic 11.1 RFA/SBREFA.

Anonymous (Doc. #11481)

11.2.342 The new rule does not promote reduction in transaction costs for either the 

regulated community and the agencies because it promotes evaluation of jurisdictionality 

on a case-specific basis even more than the current rules do. This benefits neither the 

agencies which are already operating on a threadbare budget, nor the regulated 

community because it ties their hands and limits their decision making abilities. (p. 1)
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Agency Response: EPA and the Corps have used stakeholder input received 

during public outreach events during the public comment period in combination 

with the written comments received during the public comment period to modify the 

terms and the definitions included in the final rule, ultimately with the goal of 

providing increased clarity for regulators, stakeholders, and the regulated public to 

assist them in identifying waters as “waters of the United States.” The final rule 

includes several changes to provide the additional clarity requested. The changes 

include identifying the specific functions to be assessed in a significant nexus 

evaluation, providing more exclusions as part of the rule text for the first time, and 

reducing the number of case-specific determinations of jurisdiction required. See 

summary responses to Topic 11 and the Economic Analysis. See summary 

responses to Topic 11.3, 11.3.1 and 11.4 on costs.

Board of County Commissioners, El Paso County, Colorado (Doc. #11487)

11.2.343 (...) WHEREAS, the "Waters of the United States" rule, as currently proposed 

will impose additional regulatory burdens on local communities and economies without 

any demonstrated long-term environmental benefits; and

WHEREAS, the proposed rule should it become effective, will hamper beneficial 

development, increase cost of infrastructure and maintenance, and exacerbate the current 

unacceptable level of uncertainty in the permitting process; and

WHEREAS, the proposed rule would further complicate the permitting and approval 

process, negatively impacting the ability of local jurisdictions to timely and cost 

effectively respond to the significant challenges noted above; and

WHEREAS, the proposed rule change, if adopted, will cause significant impact on public 

safety and economic prosperity and will harm local farmers, ranchers, and business and 

will negatively impact County owned and maintained infrastructure and the cost to our 

taxpayers will be enormous; and (...) (p. 2)

Agency Response: In this final rule, the agencies are making the process of 

identifying waters protected under the CWA easier to understand, more 

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

summary responses to Topic 11 and the Economic Analysis. 

Board of County Commissioners, County of El Paso, State of Colorado (Doc. #11587)

11.2.344 (...) WHEREAS, the "Waters of the United States" rule, as currently proposed 

will impose additional regulatory burdens on local communities and economies without 

any demonstrated long-term environmental benefits; and

WHEREAS, the proposed rule should it become effective, will hamper beneficial 

development, increase cost of infrastructure and maintenance, and exacerbate the current 

unacceptable level of uncertainty in the permitting process; and
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WHEREAS, the proposed rule would further complicate the permitting and approval 

process, negatively impacting the ability of local jurisdictions to timely and cost 

effectively respond to the significant challenges noted above; and

WHEREAS, the proposed rule change, if adopted, will cause significant impact on public 

safety and economic prosperity and will harm local farmers, ranchers, and business and 

will negatively impact County owned and maintained infrastructure and the cost to our 

taxpayers will be enormous; and (...) (p. 2)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See summary responses to Topic 

11 and the Economic Analysis. 

Commissioner’s Court, Collin County, Texas (Doc. #11989)

11.2.345 Furthermore, stormwater management is not funded as a water utility in Collin 

County, but rather through the county general fund. If stormwater costs significantly 

increase due to the proposed rule, not only will it potentially impact our ability to focus 

available resources on real, priority water quality issues, but it may also require that funds 

be diverted from other government services such as transportation, police, justice, etc.

Collin County cannot assume additional unnecessary or unintended costs. (p. 2)

Agency Response: See summary response to Topic 11.4 on costs, and Topic 7 on 

Features and waters not jurisdictional.

Office of the Board Attorney, Board of Supervisors Jackson County, Mississippi (Doc. #12262)

11.2.346 III. The economic analysis supporting the study is riddled with errors and 

omissions, making it an unsound basis for expanding the CWA's jurisdictional scope. 

The EPA's March 2014 Economic Analysis presents the Agency's estimates of the

probable costs and benefits associated with a definitional change to the term "waters of 

the United States." U.S. EPA & U.S. ARMY CORPS OF ENGINEERS, ECONOMIC 

ANALYSIS OF PROPOSED REVISED DEFINITION OF THE WATERS OF THE 

UNITED STATES (2014) ("Economic Analysis." Unfortunately, the Agencies' study 

relies on a flawed methodology for estimating the extent of newly jurisdictional waters 

that systematically underestimates the impact of a definitional change. This failing is 

compounded by the exclusion of several important types of costs. See generally DAVID 

SUNDING, THE BRATTLE GROUP, REVIEW OF 2014 EPA ECONOMIC

ANALYSIS OF PROPOSED REVISED DEFINITIONS OF WATERS OF THE 
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UNITED STATES (2014) ("Review"). The agencies should re-consider carrying out this 

major change in the considered jurisdictional, and four others ruled that only "relatively 

permanent waters" are jurisdictional. Rapanos v. United States, 547 U.S. 715, 757, 787 

(2006). Justice Kennedy, in the middle, split the difference and rejected both tests—

stating that waters are jurisdictional if they have a "significant nexus" to navigable 

waters. Id. at 759. His opinion is the prevailing view of the Supreme Court on what 

wetlands are jurisdictional under the Act and serves as the basis for the proposed rule. 79 

Fed. Reg. at 22192. (p. 4 – 5)

Agency Response: The agencies have improved their economic analysis in 

response to comments. The improved illustrative economic analysis compares the 

scope of this new regulation to the agencies’ recent field practices in making 

jurisdictional determinations after the Supreme Court decisions of 2001 and 2006 to 

see how this rule may affect the costs and benefits of specific CWA programs. In 

this final rule, the agencies are making the process of identifying waters protected 

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

the law and peer-reviewed science. See summary responses to Topic 11 and the 

Economic Analysis. See also the Technical Support Document for a discussion of 

the legal basis for the rule. California Central Valley Flood Control Association 

(Doc. #12858)

11.2.347 Currently, the Economic Analysis for this rule states, “Any incremental costs for 

routine maintenance of waterways (such as drainage ditches that might newly meet the 

definition of tributary as proposed in this rule) incurred by local, state, or federal 

authorities would likely be minimal because of the general permits that the Corps issues 

to reduce the regulatory requirements for these minor activities.” Simply, this is not true. 

The Association in this letter has identified multiple additional costs incurred by the 

likely increase in landside levee permitting. Additionally, there are likely to be economic, 

public safety, and public health costs associated with the proposal that have not been 

recognized or explored in the analysis.

The Association also begs that perspective be applied to considerations of cost. An 

increase of project costs by $1 million may seem minor, in the scheme of public works 

projects. However, recall that flood control agencies may have maintenance budgets of 

$50,000 or less. Flood control agencies must borrow the money for special projects from 

commercial banks. An additional $1 million could mean the difference between loan 

approval and loan denial.

It is not clear from the rule package as proposed that the Corps will be issuing new 

general permits or a Regulatory Guidance Letters for local governments working on 

public safety projects. The economic impacts analysis states that coverage by general 

permits is “routine”; however, that has not been the experience of the local agencies that 

operate and maintain California’s flood control efforts. Particularly for “special projects,” 

such as plant remediation, project-specific permits are nearly always required. In 
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340

combination, these rules mean that levee projects will more often require permitting, and 

costs will not be minimal. 

As stated earlier, the Association objects to this rule, which will expand the Corps’ and 

EPA’s jurisdiction to the entirety of California’s Central Valley and Delta. The economic 

analysis provided by EPA simply fails to capture the full costs, and fails to provide 

perspective as to the impacts of these costs on flood control and reclamation districts. 

Minimally, the Association requests and requires that the rule be withdrawn and repromulgated alongside more permitting assistance and more general permits, as well as 

additional, helpful guidance from the Corps that is specific to drainage ditches in 

California’s Central Valley and Delta. (p. 7 – 8)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. 

The agencies believe the rule will expedite the permit review process in the longterm by clarifying jurisdictional matters that have been time-consuming and 

cumbersome for field staff and the regulated community for certain waters in light 

of the 2001 and 2006 Supreme Court cases. The Corps’ Nationwide Permit 

program, which authorizes Clean Water Act Section 404 discharges that would have 

no more than minimal adverse impacts to aquatic resources, is available for 

activities that qualify. See summary responses to Topic 11 and the Economic 

Analysis. See also summary responses to Topics 6 and 6.2 on ditches.

Family Farm Alliance (Doc. #12983)

11.2.348 2. The agencies have not provided an adequate or comprehensive economic 

analysis, and must undertake a more complete economic analysis prior to 

promulgating the rule.

The EPA’s Economic Analysis for the proposed “waters of the United States” rule fails to 

provide a reasonable assessment of the proposed rule’s costs and benefits. The Economic 

Analysis suggests that the proposed rule will increase overall jurisdiction under the CWA 

by only about three percent. But the EPA arrives at this percentage using a questionable 

methodology that only accounts for the Section 404 program, relies on figures 

extrapolated from statistics from FY 2009-2010 (a period of extremely low construction 

activity during one of our nation’s greatest economic recessions), and fails to account for 

the universe of waters and features for which landowners have not previously sought 

CWA permits. Even the agencies note that “there is uncertainty and limitations associated 

with the results,” due to data and information gaps, as well as analytic challenges. The 

analysis does not quantify all possible costs and benefits, and values are meant to be 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

341

illustrative, not definitive.217 Relying on this percentage throughout the Economic 

Analysis, the EPA systematically and hugely underestimates the economic impact of the 

proposed rule’s new definition of “waters of the U.S.”

The EPA’s calculations of incremental costs and benefits are also deficient. The EPA’s 

cost analysis is focused on costs associated with the Section 404 program and largely 

ignores the cost impact of the changes to other CWA regulatory programs due to lack of 

data. Moreover, the benefit calculation is based on a problematic methodology that relies 

on studies that are largely irrelevant, do not provide accurate estimates of benefits, and 

were conducted between 10 and 30 years ago.

As a result of the incompleteness and inaccuracies of the EPA’s Economic Report, we 

believe it is necessary to recalculate the economic analyses to more accurately project the 

impacts of the proposed rule, and identify effects that the EPA failed to consider the first 

time. A rule of this magnitude deserves a much more accurate and defensible analyses 

and accounting of future costs and benefits. (p. 5)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See summary responses to Topic 

11 and the Economic Analysis.

Duncan Valley Electric Cooperative, Inc. (Doc. #13033)

11.2.349 In support of the Proposed Rule, the Agencies rely on the Economic Analysis of 

Proposed Revised Definition of Waters of the United States (March 2014; Analysis), 

which suggests that the total jurisdiction of the Agencies would only be expanded by 2.7 

percent with the promulgation of the Proposed Rule. While the expansion of federal 

jurisdiction nationally is in question, the expansion in Arizona will be substantially 

greater than that.

To demonstrate how much the Agencies have underestimated the degree to which the 

Proposed Rule will expand federal jurisdiction, DVEC's member owned generation and 

transmission entity Arizona’s G&T Cooperative (AzGT) reviewed the most recent 24 

Approved Jurisdictional Delineations (AJD) in the state of Arizona (2013 and 2014) 

posted on the U.S. Army Corps of Engineers Los Angeles District’s webpage 

(http://www.spl.usace.army.mil/Missions/Regulatory/FinalRegulatoryActions.aspx).

 

217 Congressional Research Service (CRS), “EPA and the Army Corps’ Proposed Rule to Define ‘Waters of the 

United States’”, September 10, 2014 p. 11
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Of the 24 Arizona AJDs that were completed in 2013 and 2014 (and that have been 

posted to the U.S. Army Corps of Engineers website), the U.S. Army Corps of Engineers 

asserted jurisdiction over surface water features in only 7 of them (or 29%). Therefore, 17 

of the 24 JDs had negative determinations for waters of the U.S., i.e. no surface water 

features were identified.

Of the 7 JDs that had positive determinations, 6 had jurisdiction asserted only over 

relatively permanent waters (RPWs, which refer only to intermittent or perennial waters). 

As such, in only 1 of 24 (or 4%) of approved JDs for Arizona, completed in 2013 or 

2014, did the U.S. Army Corps of Engineers assert jurisdiction over ephemeral washes.

This is in contrast with the Proposed Rule, wherein the Environmental Protection Agency 

states that most ephemeral streams will likely be considered tributaries, i.e. waters of the 

U.S. It is reasonable to conclude therefore that most or all of the 17 negative 

determinations described above would have some degree of federal jurisdiction under the 

new rule. Based on the number of recently approved JDs alone, the extent of federal 

jurisdiction could increase by as much as 240% in Arizona.

This analysis is based on readily available public information and clearly illustrates that, 

at least regionally, the increase in the extent of waters of the U.S. under the Proposed 

Rule would be much larger than that assumed by the Agencies in their Analysis. The 

Agencies expansion of authority is woefully underestimated in the Analysis.

If the Proposed Rule were to be implemented, any activity that will result in the discharge 

of fill material to an ephemeral wash, no matter how small, will require a Clean Water 

Act Section 404 permit. This includes activities ranging from the construction of a 

substation to maintenance of an unpaved road. The cost of securing a Section 404 permit 

can be substantial, even if a general permit (such as a Nationwide Permit) is available. A 

2002 article in the Natural Resource Journal estimated that “the cost of preparing a 

nationwide permit application averages $28,915” nationwide. This cost, escalated at 3% 

per year for inflation, equates to $41,000 in 2014 dollars. This substantial cost can impact 

the viability of many small projects. Securing an individual permit is a considerably more 

onerous, and expensive, task. (P. 1 -2)

Agency Response: The agencies had access to JD records for over 1,000 streams 

in Arizona for the baseline period, and indeed the percent negative JD was the 

highest for the nation (about two-thirds negative). However, the baseline mitigation 

levels in Arizona are also quite low (i.e., even where JD are positive in Arizona, not 

much if any mitigation is required), so the relatively larger percent increase in 

assertion of jurisdiction did not result in much larger total stream mitigation costs 

compared to other states (between $185 and $344 thousand per year). The agencies 

also estimated costs for obtaining additional permits. See summary responses 

under Topic 11 and the Economic Analysis. See also Topic 14.1 on site-specific 

examples.
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Sitka Economic Development Association (Doc. #13023)

11.2.350 WHEREAS, additional federal permitting and regulations resulting from the 

proposed rule will create substantial direct and indirect costs for compliance that will 

burden the already fiscally challenged communities of SEAK, including CBS; and

WHEREAS, any additional permitting regulations and their associated costs will impede 

the development of residential and commercial property and further restrict the ability of

communities to build housing that is affordable to their residents and workforce; and

WHEREAS, the proposed rule would adversely affect the ability of CBS to market and 

sell its raw water resource for bulk export; and (...) (p. 1)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See summary responses to Topic 

11 and the Economic Analysis.

Todd Wilkinson (Doc. #13443)

11.2.351 The Agencies improperly certified the WOTUS proposal under the Regulatory 

Flexibility Act. The rule will clearly result in a significant economic impact on a 

substantial number of small entities. The Agencies must investigate the impact the 

revised definition would directly impose on small entities and consider less burdensome 

regulatory alternatives. The U.S. Small Business Administration office of Advocacy 

agreed with this conclusion. Because the Agencies certification is not valid they are 

obligated to comply with the RFA. (p. 2)

Agency Response: See summary response for Topic 11.1 RFA/SBREFA.

Legislative Council on River Governance (Doc. #14791)

11.2.352 (...) WHEREAS, the U.S. Environmental Protection Agency (EPA) and U.S. 

Army Corps of Engineers (Corps) have a proposed rule to redefine “Waters of the U.S,” 

that could significantly increase the cost and regulatory requirements for state and local 

governments; and

WHEREAS, when conducting the economic analysis, the EPA evaluated data records 

from FY 2009-2010 in the Corps’ ORM2 (Operation and Maintenance Business 

Information Link, Regulatory Module) database; and

WHEREAS, the EPA’s use of the ORM2 numbers to calculate how much the draft rule 

will increase CWA jurisdiction is problematic because the ORM2 database was not 

designed for this purpose and its data does not fit this exercise; and
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WHEREAS, the EPA cannot accurately quantify increases in jurisdiction by relying 

solely on the Corps’ ORM2 database because the categories of ORM2 records do not 

correspond with the draft rule’s categories of jurisdictional waters; and

WHEREAS, the EPA’s use of the ORM2 data throughout its economic analysis to 

quantify the increase in jurisdiction has resulted inaccurate projections, and (...) (p. 1 –

2)

Agency Response: See summary response to Topic 11.2 and the Economic 

Analysis on how the agencies use the ORM2 database for the final rule.

Clean Water Action (Doc. #15015)

11.2.353 In closing, we urge the agencies to swiftly finalize a strong rule that will take 

us back closer to the original intent of the Clean Water Act, by restoring protections 

to all of our small streams and wetlands. Millions of small streams and wetlands 

provide most of the flow to our most treasured rivers. If we do not protect these streams 

and wetlands, we cannot protect and restore the lakes, rivers and bays on which 

communities and local economies depend. Leaving critical water resources vulnerable 

jeopardizes jobs and revenue for businesses that depend on clean water, including 

outdoor activities like angling and water-based recreation. The public benefits of the rule 

– in the form of flood protection, filtering pollution, providing wildlife habitat, 

supporting outdoor recreation and recharging groundwater – far outweigh the costs. 

When finalized, this rule will provide the regulatory assurance that has been absent for 

over a decade, eliminate permit confusion and delay, and better protect the critical water 

resources on which our communities depend. (p. 12)

Agency Response: See Preamble and Technical Support Document for details on 

the Final Rule. See the Economic Analysis and summary responses under Topic 11 

on costs and benefits.

The Heritage Foundation (Doc. #15055)

11.2.354 Economic Development. The cost and time required to secure more permits will 

create disincentives for economic development. The compliance costs and the confusion 

regarding compliance will create additional barriers. Major projects may be foregone if 

the regulations were to become law, and this will have harmful and costly impacts on 

jobs and the economy. (p. 8)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

345

consistent with the law and peer-reviewed science. See the Economic Analysis and 

summary responses to Topics 11, 11.2, 11.3, 11.3.1, and 11.4.

Destin Water Users, Inc. (Doc. #15357)

11.2.355 The cost to upgrade the plant from making high quality effluent to NPDES quality 

effluent is pretty high. Approximately $6,000,000 will be needed for that upgrade. The 

cost could be higher but it will not be any lower. That is a significant adverse impact on 

an otherwise well run and financially sound utility. (p. 1)

Agency Response: See summary responses to Topics 11 and 11.4 on costs.

Missouri and Associated Rivers Coalition (Doc. #15528)

11.2.356 The costs of implementing the proposed rule are extensive and will be mostly 

born by local entities.

In estimating the proposed cost of implementing the rule the Agencies have failed to 

perform a full accounting of its impacts. The methods and data sets used for estimating 

the increased costs of Section 404 permitting are not reflective of what may be 

reasonably anticipated to occur in the future. Perhaps more importantly, the cost 

estimates fail to consider the true impact across all of the programs derived from the 

authority of the CWA. In past years the question of CWA jurisdiction as determined by 

the definition of "waters of the U.S." has most often arisen with respect to Section 404 

permitting actions. The proposed rule replaces the definition of "navigable waters" and 

"waters of the U.S." for all CWA programs, including: Sec. 404 - Dredge and Fill 

Permits, Sec. 402 - NPDES (stormwater) permitting, Sec. 311 - Spill Prevention Control 

and Countermeasure Plans (SPCC), and Sec. 303 - Water Quality Standards and Total 

Maximum Daily Loads (TMDL's.) Of specific concern with respect to costs are those 

increases to stormwater permitting, including TMDLs. EPA has encouraged states to 

enhance water quality by implementing TMDLs through MS4 permits and other means, 

including for non-point source pollution. States presently have some authority to 

determine how to achieve this and can, and should, take into consideration the costs and 

benefits to their subdivisions of governments and businesses when deciding how to 

proceed. Under the proposed rule it is not clear that states will retain that authority or if 

unfunded mandates for enhancing water quality will be imposed. By not clarifying in the 

proposed rule that CWA programs beyond Section 404 would not be impacted by the 

new definition, the Agencies have left open that possibility. Then not addressing potential 

cost impacts to those programs consistent with how the Agencies have described them 

evolving, especially implementation of TMDLs, leaves the Agencies negligent and at 

best inaccurate in their estimation of the financial impact of the proposed rule on local 

entities and businesses. (p. 5-6)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

346

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See the Economic Analysis and 

summary responses to Topics 11, 11.2, 11.3, 11.3.1, and 11.4.

Countrymark Cooperative Holding Corporation, LLC; Countrymark Refining and Logistics, 

LLC (Doc. #15656)

11.2.357 In addition to the impact on CountryMark's oil and gas operations, the Proposed 

Rule would likely impact CountryMark's pipeline operations. Finished petroleum 

products are delivered to customers via pipeline and CountryMark also utilizes crude oil 

gathering pipelines. The delivery of finished petroleum products requires the building, 

operation, and maintenance of pipelines and the rights-of-ways in which they are located. 

The construction, operation, and maintenance of pipelines often require permits under 

section 404 of the CWA for crossing streams or wetland areas. If, however, entire 

floodplains are considered waters of the United States, a new pipeline may in its entirety 

require permits, with ensuing costly permitting and mitigation requirements. These costs 

could reduce or eliminate the economic viability of many projects. (p. 3)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. The agencies note that under 

final the rule, the only floodplain waters that are specifically identified as being 

jurisdictional as adjacent are those located in whole or in part within the 100-year 

floodplain and not more than 1,500 feet of the ordinary high water mark of 

jurisdictional waters. See the Economic Analysis and summary responses to Topics 

11, 11.3, and 11.3.1 on costs. See also Topic 3.2.1 on floodplains. 

11.2.358 If the new definition of "waters of the United States" is finalized as proposed, it is 

possible that any land disturbance activity would require a section 404 permit. And, it is 

likely that activities that currently are either exempt or covered by a Nationwide Permit 

will exceed the acreage limit and will require an individual permit. According to a 2002 

study by David Sunding, professor at UC Berkeley, the average applicant for an 

individual permit spends 788 days and $271,596 in completing the process, and the 

average applicant for a nationwide permit spends 313 days and $28,915 - not counting 

costs of mitigation or design changes. Sunding & Ziberman, The Economics of 

Environmental Regulation by Licensing: An Assessment of Recent Changes to the 

Wetland Permitting Process, 42 Natural Resources UJ. 59, 74-76 (2002). Updated to 

2011 dollars a nationwide cost $35,954 and an individual permit would cost $337,577.
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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The costs and delays that the Proposed Rule would impose are significant. In addition, it 

would seem highly likely that these additional costs and delays would force many small 

producers out of business. Many decisions of small producers are dynamic, shifting, and 

time sensitive. Adding months and years to the permitting process would inhibit and 

prohibit many projects, and the additional cost burdens would likely not be absorbable. 

(p. 8-9)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. Along with a narrowing of 

jurisdiction, the final rule also significantly reduces the uncertainty and number of 

case-specific determinations that will required, reducing state and federal workload 

associated with jurisdictional determinations. See the Economic Analysis and 

summary responses to Topics 11, 11.2, 11.3, 11.3.1, and 11.4.

City of Jackson, Mississippi (Doc. #15766)

11.2.359 III. The Agencies' economic analysis is flawed, providing an inadequate basis 

for expanding CWA jurisdiction.

The Agencies present their estimates of probable costs and benefits associated with a 

definitional change to the term "waters of the United States" in their March 2014 

ECONOMIC ANNALYSIS OF PROPOSED REVISED DEFINITION OF THE 

WATERS OF THE UNITED STATES (2014) (“Economic Analysis”). However, the 

Agencies' analysis relies on a flawed methodology for estimating the extent of newly 

jurisdictional waters that systematically underestimates the impact of a definitional 

change. This defect is exacerbated by a failure to adequately consider several important 

types of costs. See generally DAVID SUNDING, THE BRATTLE GROUP, REVIEW 

OF 2014 EPA ECONOMIC ANALYSIS OF PROPOSED REVISED DEFINITIONS OF 

WATERS OF THE UNITED STATES (2014) (“Review”). The agencies should not 

finalize this major change in the implementation of the CWA, at least until after the 

Agencies have prepared, and responded to public comments on, an adequate cost-benefit 

analysis.

A major shortcoming in the Agencies’ analysis is that it deals only with "other waters” of

CWA jurisdiction. Economic Analysis, at 11. Specifically, the analysis focuses on how 

jurisdiction might change for “isolated waters" that are not jurisdictional under the 

current CWA framework but are likely to become jurisdictional under the expanded 

definition of "other waters”). Id at 12. The Agencies failed to conduct a similar analysis 

to determine how jurisdiction might change for other categories of waters (e g., newlydefined "tributaries" and "adjacent waters"). Id, at 11. As a result of this failure, the 
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Economic Analysis fails to consider the universe of areas and features that could become 

jurisdictional under the proposed rule. Review at 4. In fact, the Agencies’ draft rule does 

much more than expand the scope of the "other waters" category-it also includes several 

new categories and definitions of regulatory terms, which could result in regulation of 

new features and areas that are not jurisdictional under the current CWA framework. Id. 

As a result of this shortcoming, the Economic Analysis does not adequately support the 

proposed rule.

The Agencies' Economic Analysis accounts only for situations where regulated entities 

seek a Section 404 permit, approved jurisdictional determination, or wetland 

determination. Id at 7. The Economic Analysis does not recognize or take into account 

instances where landowners do not engage in the permitting process, either because they 

have not sought to fill areas of their land and/or because their property is not 

jurisdictional. Id at 8. The Economic Analysis assumes without justification that the only 

waters without permits are so isolated that they would not be jurisdictional regardless of 

the proposed rule. However, the proposed rule, by capturing ditches, intermittent streams, 

and adjacent waters, would affect many waters that no reasonable person ever previously 

would think of as jurisdictional. Id. For this reason also, the Economic Analysis is fatally 

flawed.

In addition to these errors in methodology, the Economic Analysis also includes other 

errors in the calculation of incremental costs. For example, the analysis do not 

sufficiently account for the incremental costs and delays associated with a rapid increase 

in permit applications and related paperwork. Id at 17. In addition, the Agencies’ 

estimates of application costs are nearly 20 years old and unadjusted for inflation. These 

substantial underestimations are intensified by the exclusion of other costs, such as outof-pocket expenses associated with avoidance and delay. Id.

The Economic Analysis systematically underestimates the costs of the proposed rule, 

creating a downward bias in the study’s estimates. Further, there are errors in the 

Agencies' benefit calculations. For example, the errors associated with Section 404 

represent approximately 40% of' the total cost and 85% of the total benefits. Id, at 3 1-32. 

This suggests the entire analysis is fraught with enough uncertainty as to render it 

insufficient evaluating programmatic impacts of this scale. (p. 6)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See the Economic Analysis and 

summary responses to Topics 11, 11.2, 11.3, 11.3.1, 11.3.2, and 11.4.
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Martin Marietta (Doc. #16356)

11.2.360 As a member of the National Stone, Sand and Gravel Association, Martin 

Marietta has participated in numerous high-level meetings with representatives of the 

current administration to discuss our concerns over this proposal. Steve Whitt, Martin 

Marietta Director of Environmental Services, met with Deputy Assistant Administrator 

Nancy Stoner, EPA Office of Water, on April 4, 2013 and presented information 

concerning a 1,600-acre site Martin Marietta is developing in North Carolina that 

highlights the time and effort that it now takes to obtain jurisdictional determinations and 

404 Permits for impacts.218

For this project, the effort required to obtain the jurisdictional determination included 4 

years of site work and 2,100 man-hours of consultant time at a cost of $250,000. In total, 

seven field visits were made to the site by local Corps representatives and another five 

meetings were held in their offices. All of h s effort was for an impact that totals less than 

7 acres of wetlands. This process began in early 2004 and more than 10 years later we are 

still waiting for our permit to be issued. Under this proposal, every step in this process 

will become more difficult, more costly and the delays will increase as USACOE field 

offices get further and further behind in their reviews. (p. 1-2)

Agency Response: Thank you for sharing your particular experience. In this final 

rule, the agencies are making the process of identifying waters protected under the 

CWA easier to understand, more predictable, and more consistent with the law and 

peer-reviewed science. The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. See the Economic Analysis and summary responses to Topics 11, 11.3, 

and 11.3.1 on 404 costs. See also Topic 14.1 on site-specific examples.

L. L. Hughes (Doc. #16687)

11.2.361 The proposed rule has no prescribed limits to federal jurisdiction and does not 

clearly define what waters are to be regulated by the federal government and these 

regulations will place burdensome new regulations on farmers and industries causing 

farmers to incur considerable expense to obtain permits to conduct farming activities in 

these newly defined areas as water. The proposed changes do not include the provision of 

federal funds to offset the additional cost to local governments and thus, would divert 

resources from other essential public services. (p. 1 – 2)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

 

218 This paragraph was included to provide context to the second paragraph, already included in the final #11 

Compendium.
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making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. . See the Economic Analysis and 

summary responses to Topics 11, 11.2, 11.3, 11.3.1, and 11.4.

11.2.362 More importantly, the agencies cost-benefits analysis Economic Analysis of 

Proposed Revised Definition of Waters of the U.S. (March 2013), acknowledges the data 

used and assumptions made to craft the analysis may be flawed. This is of supreme 

concern to local governments who may serve as both the regulator and the regulated 

under Clean Water Act. If costs and implications of the changes are not recognized ahead 

of time, it will have a negative impact on local governments. (p. 2)

Agency Response: The agencies have improved their Economic Analysis in 

response to comments. The illustrative economic analysis compares the scope of this 

new regulation to the agencies’ recent field practices in making jurisdictional 

determinations after the Supreme Court decisions of 2001 and 2006 to see how this 

rule may affect the costs and benefits of specific CWA programs. In this final rule, 

the agencies are making the process of identifying waters protected under the CWA 

easier to understand, more predictable, and more consistent with the law and peerreviewed science. See the Economic Analysis and summary responses to Topics 11, 

11.2, 11.3, 11.3.1, and 11.4.

D. Gillham (Doc. #16906)

11.2.363 (...) D. Sound economic analysis across all affected communities, industries, and 

states (including rural, agricultural communities in the West) is especially vital in this 

challenging time of attempting to rebuild America’s economy and infrastructure. The 

new rule should not be applied in any form until the economic impacts are fully

understood. (p. 2)

Agency Response: The Clean Water Rule clarify that the Clean Water Act 

protects certain streams and wetlands. Protection for approximately 60 percent of 

the nation’s streams and millions of acres of wetlands has been confusing and 

complex as the result of Supreme Court decisions in 2001 and 2006. For nearly a 

decade, EPA and the Corps have received numerous requests for a rulemaking to 

provide clarity on protections under the Clean Water Act from members of 

Congress, state and local officials, industry, agriculture, environmental groups, 

scientists, and the public. 

The agencies prepared an illustrative economic analysis comparing the scope of this 

new regulation to the agencies’ recent field practices in making jurisdictional 

determinations after the Supreme Court decisions of 2001 and 2006 to see how this 

rule may affect the costs and benefits of specific CWA programs. In this final rule, 

the agencies are making the process of identifying waters protected under the CWA 
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351

easier to understand, more predictable, and more consistent with the law and peerreviewed science. . See the Economic Analysis and summary responses to Topics 

11, 11.2, 11.3, 11.3.1, and 11.4.

Shasta County Farm Bureau (Doc. #16924)

11.2.364 By expanding the number of waters deemed jurisdictional, activities on farms and

ranches may require Clean Water Act permits. Getting a permit to plant grapes, build a

fence, or clear out brush is not a simple task. It could require consultation with state and

federal agencies, hiring consultants, and waiting for approvals. If the permit is obtained,

it often includes paperwork and reporting requirements in addition to any requirements

aimed at protecting water quality. Violations of these paperwork or reporting obligations

carry potential penalties up to $37,500 per violation per day-and may be enforced by

EPA, the state, or even interested citizens groups. Farmers just want to continue to farm

and be stewards of the land, leaving it in better shape for future generations. (p. 2)

Agency Response: The Clean Water Rule will clarify that the Clean Water Act 

protects certain streams and wetlands. Protection for approximately 60 percent of 

the nation’s streams and millions of acres of wetlands has been confusing and 

complex as the result of Supreme Court decisions in 2001 and 2006. For nearly a 

decade, EPA and the Corps have received numerous requests for a rulemaking to 

provide clarity on protections under the Clean Water Act from members of 

Congress, state and local officials, industry, agriculture, environmental groups, 

scientists, and the public. 

The Rule retains exemptions for certain agricultural uses and practices [see for 

instance, Topic 7.2 on Prior Converted Cropland] and clarifies excluded waters. 

See the Economic Analysis and summary responses to Topics 11, 11.2, 11.3, 11.3.1, 

and 11.4. See also responses related to which types of activities generally need a 

permit and which do not.

11.2.365 Full consideration has not been given to the impacts and burdens farmers and 

ranchers will face, including increased permitting requirements, farming delays that may 

be encountered when implementing the Proposed Rule, and the costs of new land use 

restrictions resulting from this Proposed Rule. (p. 2)

Agency Response: The agencies recognize the vital role of farmers in providing 

the nation with food and fiber and are sensitive to their concerns. The final rule 

reflects the intent of the agencies to minimize potential regulatory burdens on the 

nation’s agriculture community, and recognizes the work of farmers and

landowners to protect and conserve natural resources and water quality on 

agricultural lands. The rule reflects this framework by clarifying the waters subject 

to the activities Congress exempted under CWA Section 404(f). The agencies 

prepared an illustrative economic analysis comparing the scope of this new 

regulation to the agencies’ recent field practices in making jurisdictional 

determinations after the Supreme Court decisions of 2001 and 2006 to see how this 
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352

rule may affect the costs and benefits of specific CWA programs. In this final rule, 

the agencies are making the process of identifying waters protected under the CWA 

easier to understand, more predictable, and more consistent with the law and peerreviewed science. The Rule retains exemptions for certain agricultural uses and 

practices [see for instance, Topic 7.2 on Prior Converted Cropland] and clarifies 

excluded waters. See the summary responses to Topics 11, 11.2, 11.3, 11.3.1, and 

11.4.

Colusa County Board of Supervisors (Doc. #17002)

11.2.366 Cost Benefit Analysis: CSAC believes the Economic Analysis for the proposed 

rule is insufficient because it only accounts for federal agency costs, The Economic 

Analysis did not account for increased federal agency costs associated with the need to 

increase the agencies' staffing levels to handle the increased workload resulting from the 

potential we see for expanding CWA authority. The Economic Analysis also did not 

account for the likelihood that the agencies' staffs will not be increased to handle the 

increase4 workload, resulting in costs on counties associated with delays caused by 

permit processing. The analysis contends that the new definition of WOUS would have 

minimal costs lo MS4 permittees and agriculture, but they did not take into account 

various costs and activities. CSAC believes at a minimum the Economic Analysis should 

be amended to account for the following additional co& at the state, regional and local 

lands due to the expanded definition of WOUS: increased federal, state and local agency 

staffing levels to process the increased number of permits; lost capacity and/or Function 

of infrastructure due to delays caused by additional permit processing times and the 

likelihood of federal, state and local agencies being unable to get the funding needed to 

handle the increased permit load; increased permit compliance tasks, such as monitoring, 

assessment, program realignment, training and outreach, and BMPs reporting; and 

permitting cask, including, compensatory mitigation. (p. 4)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See the Economic Analysis and 

summary responses to Topics 11, 11.2, 11.3, 11.3.1, and 11.4.

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

11.2.367 (...) WHEREAS, additional regulatory costs associated with changes in 

jurisdiction and increases in permits will erect bureaucratic barriers to economic growth; 

negatively impacting rural roads, road construction, loggers, farms, ranches, small 

businesses, real estate agents, commercial development, and energy production, to name 

a few; and
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WHEREAS, the Agencies' estimate of the costs and benefits associated with the 

regulatory redefinition of "waters of the United States" has not been adequately addressed 

in the proposed rule and cannot be substantiated, the analysis suffers from a lack of 

transparency; and

According to a May 15, 2014 report by David Sunding, Ph.D. of the Waters Advocacy 

Coalition, the numerous errors, omissions, and lack of transparency render the analysis 

virtually meaningless. Estimates of economic impact to other programs rely on an 

incremental jurisdictional determination that is deeply flawed. The systematic exclusion 

of various costs and benefits ignores important impact to permit applicants and permitting 

agencies. The analysis suffers from a lack of transparency. Explanations of calculations, 

basic assumptions, and discrepancies between various EPA analyses are rarely provided; 

the entire report is based on records from the Corps' internal ORM2 database, which is 

unavailable to the public, and thus the validity of the underlying data cannot be 

determined due to lack of requisite transparency; and

WHEREAS, the language in the proposed rule alleges, "Because fewer waters will be 

subject to the CWA under the proposed rule than are subject to regulation under the 

existing regulations, this action will not affect small entities to a greater degree than the 

existing regulations," it is seen as patently self-contradictory. Expansion of the scope of 

the EPA and Corps' jurisdictional authority to include practically any and all surface 

waters of the territorial United States will obviously impact many more small businesses 

that are already impacted, not fewer. The impact of regulatory overreach of these 

agencies on small businesses cannot simply be dismissed by pretending that more is less 

through twisting language and doublespeak; and

WHEREAS, The EPA and Corps' bid for increased jurisdictional authority would have 

exponentially expanding impacts on small businesses, and these impacts will have 

significant adverse economic impacts on the general public, including but not limited to 

reduced land value and, increased costs of doing business due to regulatory burdens (e.g. 

having to hire consultants to prepare permits, costs of permits, project delays, restrictions 

on land use and the cost of complying with permitting requirements, including mitigation 

and failure of projects to make a profit); and

WHEREAS, property owners, particularly loggers, farmers, ranchers and citizens in rural 

areas, count their land as their principal asset—their land often used as collateral for 

loans and other capital purchases needed for business operation or capital 

improvements—the tremendous direct and indirect adverse impacts and cumulative 

impacts of this proposed rule on small businesses cannot simply be dismissed as the EPA 

and Corps have decided to do; and (...) (p. 4 – 6)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 
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354

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. . See the Economic Analysis and 

summary responses to Topics 11, 11.2, 11.3, 11.3.1, 11.3.2, and 11.4. See also Topic 

11.1 on RFA/SBREFA.

Arizona Rock Products Association (Doc. #17055)

11.2.368 The proposed rule is so expansive that it will trigger numerous additional 

environmental reviews to address such issues as endangered species and historic 

preservation, which will make it even more difficult and costly for ARPA member 

companies to ensure timely supply of aggregates for public works projects essential to 

economic recovery. (p. 3)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See the Economic Analysis and 

summary responses to Topics 11, 11.2, 11.3, 11.3.1, and 11.4. See Topic 13 on ESA 

and other questions about requirements.

11.2.369 The Economic Impacts of the Proposed Rule Will be Significant.

Speaking of costs, while we pride ourselves as being environmentally responsible, the 

broadened scope of the rule would directly impact member operations, with little 

environmental benefit. These impacts would increase costs on public works projects, so 

these increased costs are borne by the taxpayer. The ability of our member companies to 

efficiently provide needed materials for critical infrastructure such as roads, bridges and 

flood control projects essential to protect public health and safely will be greatly 

impaired. It is also a great concern that EPA will have a dramatic increase in permitting 

and applications for jurisdictional delineations further delaying key projects.

Jurisdictional determinations cost member companies between $25,000 and $50,000 per 

site and moving forward to obtain a Corps 404 permit can cost as much as $500,000. 

Now, under the proposed revisions, many previously non-jurisdictional areas like 

floodplains, wet weather conveyances, upland headwaters, ephemeral streams, dry 

washes or riparian areas could be considered jurisdictional. As a result, nearly any area 

companies try to access will now be regulated and require additional permits. These areas 

will now be subject to jurisdiction either by rule or via the vague significant nexus 

determination. In either case, navigating the process to obtaining a Corps 404 permit or a 

jurisdictional determination through a significant nexus study is cumbersome, timeconsuming, and financially burdensome to companies.
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EPA should undertake a full evaluation of the effects this rule will have on businesses. 

The proposed rule will put even small businesses at risk of fines of up to $37,500 per day 

if a permit is required and not obtained. This could wipe out a business that did not 

realize a permit was needed for work far from "navigable" water. As stated previously, 

this is especially true in the arid West, where ephemeral streams and "other waters" can 

be a considerable distance from traditionally navigable waters.

EPA is also required to comply with the Regulatory Flexibility Act and must seek input 

from small businesses before proposing this rule.

EPA's economic analysis of this rule does not accurately show what businesses like those 

of our members will end up paying if this rule is finalized. It is not even close. One 

industry member calculated that to conduct the additional mitigation of a stream required 

under this rule could cost more than $100,000 for a single site. This exceeds EPA's 

estimated stream mitigation costs for entire states in its economic analysis. For our 

industry, time is money. Any new requirements lead to a long learning curve for both the 

regulators and the regulated. Just getting a jurisdictional determination can take months. 

Permits can take years. It remains unclear how much longer it will take to break ground 

with the many vague and undefined terms in this proposed rule.

These additional regulatory steps also take significant time and prevent the timely and

cost efficient production of construction materials. The increased time and cost will, in 

turn, raise the cost of construction materials and consequently raise construction costs for 

private and public entities. The economic analysis does not analyze the cost of reducing 

the supply of construction materials would have with respect to private and public entities 

attempting to purchase construct materials, and thus on the end-users of such materials. 

(p. 7)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See the Economic Analysis and 

summary responses under Topic 11 on costs, and Topic 11.1 on RFA/SBREFA.

Walsh Centennial, LLC (Doc. #17056)

11.2.370 Under the vague and undefined terms of the proposed rules, traditional farming 

and ranching activities which have never been subject to regulation under the CWA will 

become "jurisdictional." Common features on our ranch such as on-farm ponds, retention 

basins, water courses, ditches, streams, potholes and wetlands may all become subject to 

federal regulation under the CWA. We represent one of many small family-run farms and 

ranches which cannot withstand the expense and delay associated with CWA permits or 

fines for non-compliance while performing traditional farming practices such as the 
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356

application of fertilizer, pesticides, herbicides, or even performing such common tasks as 

ditch cleaning, earth moving, plowing and fencing. Nor can we economically engage in 

water conservation and irrigation improvement projects on the ranch if we must endure 

the cost and delay of finding our way through the labyrinth of the EPA's or the Corps' 

various permit requirements. The CWA was never intended to regulate such typical and 

traditional farming and ranching activities where water from such work does not flow 

directly into navigable streams or which does not otherwise have a significant nexus to 

waters already under the CWA's jurisdiction. (p. 2)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. The Rule retains exemptions for 

certain agricultural uses and practices [see for instance, Topic 7.2 on Prior 

Converted Cropland] and clarifies excluded waters. See the Economic Analysis and 

summary responses to Topics 11, 11.2, 11.3, 11.3.1, and 11.4. See also Topic 7 on 

Features and waters not jurisdictional, including prior converted cropland (7.2).

Atlantic Legal Foundation (Doc. #17361)

11.2.371 4. Economic Report

The economic report relied upon for the proposed rule states that the revised definition of

"waters of the United States" will only increase federal jurisdiction by three (3%) 

percent.

219 Furthermore, the rulemaking documents assert that the proposed rule will 

impose few indirect costs and that those costs are easily outweighed by the potential 

benefits. The evidence supporting these claims is scant. Moreover, the economic report 

repeatedly stresses that its cost/benefit estimates are incomplete.220 Nowhere is there any 

meaningful attempt to capture the potential costs of expanded jurisdiction. Instead, the 

report mainly focuses on possible benefits including "ecosystem services" such as 

biodiversity, wildlife habitat, and recreational use.221 Most of these alleged economic 

 

219 U.S. ENVIRONMENTAL PROTECTION AGENCY & U.S. ARMY CORPS OF ENGINEERS, ECONOMIC 

ANALYSIS OF PROPOSED REVISED DEFINITION OF WATERS OF THE UNITED STATES 12 (2014) 

(hereafter "Economic Analysis").

220 See id at 2 ("The economic analysis is necessarily based on readily available information and the resulting cost 

and benefit estimates are incomplete." (emphasis added)); id at 17 ("The Corps also provided an estimate of 43,000 

acres of wetland mitigation and 530 miles of stream mitigation period . . . This total may be incomplete." (emphasis 

added)); see also, id at 14 ("The agencies recognize that time and impact avoidance and minimization costs can be 

significant for some share of permit applicants. However .. . . the agencies did not estimate compliance costs for 

these categories as part of the economic analysis.").

221 See id at 8.
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benefits are vague and difficult to monetize, as the report concedes222, and provide little 

to justify the potentially unlimited jurisdictional authority the agencies propose. We 

believe any proposed regulation should be supported by a rigorous cost/benefit analysis. 

The economic report for the proposed rule is unpersuasive. (p. 5 – 6)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See the Economic Analysis and 

summary responses to Topics 11, 11.2, 11.3, 11.3.1, 11.3.2, and 11.4.

11.2.372 a. Increase in Jurisdictional Waters.

The three (3%) percent increase in jurisdictional wetlands estimated by the agencies was

based on a limited study; however, that study fails to account for (1) the proposed rule's 

expanded definition of "waters of the United States" and (2) the agencies' enhanced 

incentives to increase substantially the number of "other waters."223

Jurisdiction was considered for three separate categories of water bodies: streams, 

wetlands, and "other waters." According to the report, "other waters" are defined as nonnavigable waters that lack a direct surface connection to other waterways.224 During the 

two-year period none of the "other waters" were considered jurisdictional, as opposed to 

nearly 100% of streams and wetlands. The economic report's authors then measured 

1,000 individual "other waters" during the two-year period and found 17% of them to be 

jurisdictional.225

It is highly probable that the baseline data during the two-year period contains an 

artificially low number of reported "other waters." Under the original framework no 

"other waters" could be determined to be jurisdictional; thus, neither the agencies, 

landowners, nor developers felt compelled to seek permit determinations because during 

the study period this form of "reporting" was deemed unnecessary, and this would 

explain the relatively low number of "other waters" recorded.226

 

222 See id ("The ecosystem services identified ... have no market values. Some are closely related to market goods, 

which may facilitate valuation, whereas others are far removed from the end product of market value.").

223 The baseline data supporting the economic report is derived from a two-year period (2009-2010), which was the 

most economically depressed since the Great Depression of the 1930s and was characterized by extremely low 

construction activity. Using period that as a baseline to estimate may skew the incremental acreage impacted by the 

proposed rule.

224 See Economic Analysis. at 11.

225 See id at 12.

226 Total reported agency records showing jurisdictional status of aquatic resources: 95,476 streams; 38,280 

wetlands;
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The authors of the report concede that the category of "other waters" may be 

unrepresentative, stating, "if a significant amount of the [other] waters are not included in 

the FY 2009-2010 data because of presumed non-jurisdiction on the part of landowners 

and developers, then the overall percent increase in [other] waters that become 

jurisdictional would be somewhat greater" (emphasis added).227 This is an 

understatement. Even a modest increase in the amount of "other waters" recorded would 

result in a significant expansion of jurisdiction. The small number of reported "other 

waters" reflects a previously understood standard that property owners could rely upon. 

The proposed framework for determining jurisdiction may call into question the 

categorization of almost any body of water and thus landowners will have an incentive to 

seek permit determinations to reduce the uncertainty regarding the status of their 

property. The two-fold increase in "other waters" the EPA estimated does not capture the 

severity of this problem. If the number of "other waters" reported were to approach that 

of streams and wetlands (which is plausible), expansion of jurisdiction would be 

considerable. (p. 6 – 7)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See summary response to Topic 

11.2 on change in jurisdiction.

11.2.373 b. Estimated Costs

Under the proposed rule, estimated permit application costs are projected to impact only

1,332 additional acres. The agencies derived this number by manipulating and excluding 

several potential sources of permit costs and acreage. First, this estimate is based upon 

the artificially low projected three (3%) percent increase in jurisdiction. Thus, if the 

amount of "other waters" rises, the quantity of impacted acreage would likewise increase. 

Second, the acreage estimation only takes into account section 404 permits, ignoring any 

permits issued under other sections that may be impacted by the proposed rule, such as 

section 402.228 Finally, this estimate only pertains to permits issued for permanent 

impacts and excludes "ecological restoration and conversion activities, as well as 

temporary impacts."229 We believe all of these additional sources or permit jurisdiction 

 

8,209 "other waters." See id.

227 Economic Analysis at 43.

228 See id at 6 ("Permitting for construction and development stormwater, concentrated animal feeding operations

(CAF0s), and pesticide application are three areas of CWA 402 implementation where there may be potential new

costs.").

229 Id at 14.
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should be included in the calculation in order to make an accurate projection of the 

impact of the proposed rule. (p. 7)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See summary responses in Topic 

11, 11.3, 11.3.1, and 11.4 on costs.

11.2.374 c. Estimated Benefits

To calculate "benefits" of the proposed rule, the report took a benefits transfer approach 

that combined data from ten different studies that had attempted to "assess the value of 

waters expected to provide services similar to the waters incrementally protected under 

the proposed rule."230 These studies employed the contingent valuation method (CVM), 

where "willingness to pay" (WTP) per household was measured via surveys that assessed 

respondents' stated WTP to preserve certain wetlands.231 Based on these studies, the 

agencies determined that the annual WTP for all regional acres ranged from $0.36 to 

$3.86 depending on the region, with a mean of $2.30.232 Extrapolating from these figures, 

the agencies claimed that, "on a per acre basis, benefits vary by region, ranging from 

approximately $26,000 to $287,000 per year with an overall average of $ 193,000."233

This method is fundamentally flawed. First, the studies relied upon are outdated: the most

recent study used was published in 2000 with the rest were published from 1986 to 

1999.234 Next, many in the scientific community find CVM to be both inaccurate and 

improper for large scale evaluations?235 These studies often suffer from hypothetical 

response biases which lead to inflated values, strategic questioning, large disparities 

between willingness to pay and willingness to avoid, and difficulties in verifying data.236

 

230 Id at 21.

231 See id. at 20.

232 See id. at 29.

233 Id

234 See id, app. B at 54-58.

235 See, e.g., Jerry Hausman, Contingent Valuation: From Dubious to Hopeless, 26 J. OF ECON. PERSPECT. 43,44 

(2012) ("Responses to contingent valuation surveys for a single environmental issue are typically based on little 

information, given the limited time involved for each survey respondent. Thus, the results of such surveys are 

unlikely to be accurate predictors of informed opinion. . . Contingent valuation does not provide a good basis for 

either informed policymaking or accurate damage assessments in judicial proceedings."); see also David W. Eberle 

& Gregory F. Hayden, Critique of Contingent Valuation and Travel Cost Methods for Valuing Natural Resources 

and Ecosystems, J. ECON. ISSUES 649, 683 (1991) ("The CV [contingent valuation] and TC approaches lack 

methodological, theoretical, and empirical grounding. Their continued use will mislead valuation attempts and 

frustrate policy intended to restore a viable environment.").

236 See Hausman, supra, at 43.
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Finally, even the agencies acknowledge that in general, CVM "elicits 'stated preferences' 

rather than revealed (or actual) preferences, which is not ideal for quantifying benefits" 

237 and that "it is important to recognize up front that there is uncertainty and limitations 

associated with the [report's] results."238 Furthermore, the report concedes that WTP may 

be incomparable between the respondents from the older studies and the individuals who 

actually use the services in areas potentially affected by increased assertion of 

jurisdiction.239 Aggregating household WTP from a few outdated sources to arrive at a 

nationwide average ignores these methodological flaws, allowing the agencies to arrive at 

a convenient number that may bear little resemblance to the actual value of an acre of 

mitigated land. We believe basing a broad expansion in federal jurisdiction on such a 

flawed analysis is unsound. (p. 7 – 8)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See the Economic Analysis and 

summary responses to Topics 11, 11.3.2, and 11.4 on benefits.

Vermilion Parish Police Jury (Doc. #17362)

11.2.375 The proposal would create vast amounts of undue hardship on local government 

entities, to include increases to the cost of infrastructure construction and maintenance, 

increased uncertainty in the permitting process, and inevitable project delays due to 

additional procedures required. The effects would also be felt throughout the local 

economy. The broadening of the Waters of the U. S. definition would adversely impact 

state and local governments, farmers, businesses, and land owners. (p. 1)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See the Economic Analysis and 

summary responses to Topics 11, 11.2, 11.3, 11.3.1, and 11.4.

 

237 Economic Analysis at 20.

238 Id at 21.

239 See id. at 20.
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361

W. Stevens (Doc. #17663)

11.2.376 Burdens to small producer/operators and marginal production would be 

substantial. The expanded geographic jurisdiction of the definition would require SPCC 

plans on some existing and future production and facilities unnecessarily with little 

environmental benefit. The cost ($500 - $10,000 per lease location) is unwarranted and 

would lead to premature plugging of marginal production. It also carries a cost of 

increased reporting and annual renewals. The cumulative effect in the aggregate could 

cost the industry in Texas, alone, millions of dollars annually in filings, loss of time, 

construction and premature pluggings. (p. 2)

Agency Response: In this final rule, the agencies are making the process of 

identifying waters protected under the CWA easier to understand, more 

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

Economic Analysis and summary responses to Topics 11 and 11.4.

L. Schlothauer (Doc. #17946)

11.2.377 Though designed with good intentions overregulation of producers will 

financially cripple operations. No one in the agriculture community can afford to spend 

over $39,000 per regulation violation that even with prevention and planning can occur 

due to the volatility of the environment. To ensure producers remain able to operate it is 

essential to inform you of the negative implications the CWA and other bills like it will 

have upon agriculture from an economic standpoint. In addition to this producers make 

decisions on a daily basis and do not have time to wait for a permit for something as 

simple as to build a ditch or move cattle. These permits are also extra costs out of the 

producer’s pocket which will in turn drive up food prices. I am asking you to withdraw 

the proposed rule. Not only are there negative implications this bill would have upon 

agriculture from a national standpoint, but if passed this will dramatically impair 

producers in the Southwest. (p. 2)

Agency Response: In this final rule, the agencies are making the process of 

identifying waters protected under the CWA easier to understand, more 

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

agencies recognize the vital role of farmers in providing the nation with food and 

fiber and are sensitive to their concerns. The final rule reflects the intent of the 

agencies to minimize potential regulatory burdens on the nation’s agriculture 

community, and recognizes the work of farmers and landowners to protect and 

conserve natural resources and water quality on agricultural lands. The rule reflects 

this framework by clarifying the waters subject to the activities Congress exempted 

under CWA Section 404(f). See the Economic Analysis and summary responses to 

Topics 11, 11.2, 11.3, 11.3.1, and 11.4.
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Anonymous (Doc. #18801)

11.2.378 (...) 2) Given the confusion and concerns listed by many sectors of the public and 

private sectors, convening a Small Business Advisory Review Panel (SBREFA panel) 

would seem to be prudent. Although EPA, through review by other federal entities, has 

determined that a SBREFA is not required, the broad based concerns regarding lack of 

clarity of the proposed rule, would be very helpful in solving the concerns. (...) (p. 1)

Agency Response: See summary response to Topic 11.1.

11.2.379 (...) 3) The proposed rule has been discussed in many forums on a large scale 

thanks to the hard work of EPA and the USACE. The rule, with the help of a SBREFA, 

can be modified to address most of the concerns and proceed forward as a rule that can 

assist, not hinder, economic development, protect small businesses, and protect the

environment. (...) (p. 1)

Agency Response: See summary response to Topic 11.1.

11.2.380 (...) 4) Revision of the rule to address specific business sectors would help with 

clarification. EPA has taken this approach with other rulemaking in the past with the 

Multi-Sector Storm Water Permit (MSGP) being a good example. (...) (p. 1)

Agency Response: See summary response to Topic 11.1 and 11.3.

Donald Shawcroft (Doc. #18569)

11.2.381 As noted in comments filed by the Small Business Administration’s Office of 

Advocacy, EPA and the Corps have failed to take into account small business impacts, 

including impacts on small business farmers. See, October 1, 2014 letter to Administrator 

McCarthy and Major General Peabody from Winslow Sargeant, Chief Counsel for 

Advocacy. Due to this failure, SBA recommends that EPA and the Corps withdraw the 

rule. (p. 3)

Agency Response: See summary response to Topic 11.1.

Independent Petroleum Association of America, et al (Doc. #18864)

11.2.382 Affected Acreage. EPA's analysis uses FY 2009/2010 as the baseline year to 

estimate impacts, which was a period of significant contraction in the market due to the 

financial crisis. EPA makes an assumption that the new rule will not affect the agency's 

overall workload. Under the new rules, jurisdiction will increase and more projects will 

likely be seeking permits. EPA assumes the incremental impacts to Section 404 

permitting can be applied to other CW A programs. EPA's analysis ignores important 

state and size-specific variations in permit applications. (p. 33)

Agency Response: See summary response to Topic 11.2 and the Economic 

Analysis.
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Anonymous (Doc. #18943)

11.2.383 3. As the above two comments illustrate, the proposed redefinition will 

significantly expand the coverage of waters, contrary to the unsupported assertion in the 

Regulatory Flexibility portion of the preamble. This will add significant costs to small 

entities, because all waters and water structures in the U.S. will now be covered under the 

definition aside from the few listed exceptions. This will require costly immediate 

reporting of contained spills having no environmental impact, as well as costly 

modification of spill prevention, control and countermeasure (SPCC) plans and/or 

industrial stormwater permits. These additional costs cannot be justified by any 

demonstrable reduction in environmental impact. We therefore suggest that a cost 

analysis of the inclusion of private drainage structures and private rainwater puddles be 

explicitly included in the Regulatory Flexibility portion of the preamble. (p. 2)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. The rule has expanded the 

section on waters that are not considered waters of the United States, including 

many of the features listed in the comments, such as artificial lakes and ponds 

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

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

wastewater detention basins constructed in dry land. In addition, the final rule adds 

an exclusion for puddles. See the Economic Analysis and summary responses to 

Topics 11, 11.1 and 11.4. See also Topic 7.

Kevin and Nicole Keegan (Doc. #19128)

11.2.384 (...) While the proposed rule is intended to relate to polluting the Waters of the 

United States, as presently written, it is excessive and would unnecessarily curtail 

economic activity. (...) (p. 3)

Agency Response: Protecting the long-term health of our nation’s waters is 

essential. The Clean Water Rule strengthens the protection of waters for the health 

of our families, our communities, and our businesses. Our nation’s businesses 

depend on clean water to operate. Streams and wetlands are economic drivers 

because they support fishing, hunting, agriculture, recreation, energy, and 

manufacturing. Pollution threatens these economic drivers and we all know the 

dangers of pollution upstream: water flows downstream and carries pollutants with 

it. Right now, many streams and wetlands lack clear protection from pollution and 

destruction. One in 3 Americans, 117 million of us, get our drinking water from 

streams that are vulnerable. Sixty percent of the nation’s stream miles – the vital 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

364

headwaters that flow downstream after rain or in certain seasons – aren’t clearly 

protected. Millions of acres of wetlands that trap floodwaters, remove pollution, and 

provide habitat for fish and wildlife are at risk. In this final rule, the agencies are 

making the process of identifying waters protected under the CWA easier to 

understand, more predictable, and more consistent with the law and peer-reviewed 

science. See the Economic Analysis and summary responses to Topics 11, 11.2, 11.3, 

11.3.1, and 11.4.

United States Senate (Doc. #19309)

11.2.385 Practically speaking, this rule would have a devastating impact on job creators 

across the nation, among them farmers, ranchers, and small businesses. In fact, on 

October 1, 2014, the Small Business Administration Office of Advocacy wrote to the 

EPA and the Corps to recommend that, “the agencies withdraw the rule and that the EPA 

conduct a Small Business Advocacy Review panel before proceeding any further with 

this rulemaking,” due to the significant impact this rule would have on small businesses. 

The Office of Advocacy went on to note that the certification by the Corps and EPA that 

this rule would have no small business impact was inappropriate. (p. 1)

Agency Response: See summary response for Topic 11.1 RFA/SBREFA.

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

11.2.386 There is significant concern that additional federal revenue or assistance in the 

future to help meet the cost of this rule will not be forthcoming. Expansion of federal 

jurisdiction under the Clean Water Act will in fact be an unfunded mandate on the public 

and private sectors. Much of the anticipated cost of this rule would be financed from state 

and municipal resources and will divert limited resources from other essential public 

services.

Your analysis stating the rule would subject an additional three percent of U.S. waters 

and wetlands to CWA jurisdiction and that the rule would create an economic benefit of 

at least $100 million annually. This calculation is seriously flawed. Expanding CWA 

jurisdiction would subject communities, property owners, farmers, and businesses to 

stringent new permitting requirements and use restrictions. The process of obtaining 

permits and approvals under the CWA is very costly and time-consuming. Historically, 

obtaining a permit to develop in jurisdictional area can take longer than a year and cost 

hundreds of thousands of dollars. (p. 2)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See the Economic Analysis and 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

365

summary responses to Topics 11, 11.2, 11.3, 11.3.1, and 11.4. See also Topic 13.2.4 

on unfunded mandates.

M. Sedlock (Doc. #19524)

11.2.387 8: Improper dismissal of negative impact (small business)

FR page 22220, columns 1-2: The Regulatory Flexibility Act (RFA) generally requires an 

agency to prepare a regulatory flexibility analysis of any rule subject to notice-and 

comment rulemaking requirements under the Administrative Procedure Act or any other 

statute unless the agency certifies that the rule will not have a significant economic 

impact on a substantial number of small entities. Small entities include small businesses, 

small organizations, and small governmental jurisdictions....

Because fewer waters will be subject to the CWA under the proposed rule than are 

subject to regulation under the existing regulations, this action will not affect small 

entities to a greater degree than the existing regulations

Discussion: The above statement in the rule is patently self-contradictory. Expansion of 

the scope of the Agencies’ jurisdictional authority to include practically any and all 

surface waters of the territorial United States will obviously impact many more small 

businesses than are already impacted, not fewer. The impact of regulatory overreach of 

the Agencies on small businesses cannot simply be dismissed by pretending that more is 

less through twisting language and doublespeak.

Apparently the Agencies expect the public (particularly farmers, ranchers and the no 

doubt millions of other small business owners that would be impacted by this propose 

rule) to believe that increasing the scope of jurisdiction, i.e. defining all waters as “waters 

of the United States”, somehow means that fewer individual waters would be involved. 

This would be like saying that a bushel of apples is a smaller amount of apples than the 

125 apples in the bushel basket, just because a bushel is one unit whereas the second 

description includes many units.

The Agencies’ bid for increased jurisdictional authority would have exponentially 

expanding impacts on small businesses, and these impacts will have significant adverse 

economic impacts on the general public, including but not limited to reduced land value 

and, increased costs of doing business due to regulatory burdens (e.g. having to hire 

consultants to prepare permits, cost of permits, project delays, restrictions on land use and 

the cost of complying with permitting requirements, including mitigation and failure of 

projects to make a profit).

Property owners, particularly farmers and ranchers and citizens in rural areas, count their 

land as their principal asset. Land is often used as collateral for loans and other capital 

purchases needed for business operations or capital improvements.
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The tremendous direct and indirect adverse impacts and cumulative impacts of this 

proposed rule on small businesses cannot simply be dismissed as the Agencies have 

decided to do.

Recommendation: Withdraw the proposed rule. Should the Agencies put forth another 

proposed rule, the true impacts of expansion of waters under the CWA on small 

businesses must be fully disclosed for the public to analyze and evaluate. (p. 14 – 15)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See the Economic Analysis and 

summary responses to Topics 11 and 11.1.

11.2.388 9: Failure to address economic impact

FR page 22220, column 1: [The Agencies] prepared an analysis of the potential costs 

and benefits associated with this action. This analysis is contained in ‘‘Economic 

Analysis of Proposed Revised Definition of Waters of the United States.’’

Discussion: The Agencies’ estimate of the costs and benefits associated with the 

regulatory redefinition of "waters of the United States" has not been adequately addressed 

in the proposed rule or in the associated document cited above. The inclusion of 

categories of non-navigable waters that were previously never regulated by the Agencies 

under CWA, such as waters in floodplains, riparian areas, and certain ditches, will 

broaden the jurisdictional authority of the Agencies and will significantly increase the 

costs associated with each program; however the above cited document severely 

underestimates the impact of the definitional changes, excludes important costs, and uses 

a flawed benefits transfer methodology to estimate the benefits of expanding jurisdiction.

According to a May 15, 2014 report by David Sunding, Ph.D. of the Waters Advocacy 

Coalition, the numerous errors, omissions, and lack of transparency render the analysis 

virtually meaningless. Estimates of economic impacts to other programs rely on an 

incremental jurisdiction determination that is deeply flawed. The systematic exclusion of 

various costs and benefits ignores important impacts to permit applicants and permitting 

agencies. The analysis suffers from a lack of transparency. Explanations of calculations, 

basic assumptions, and discrepancies between various EPA analyses are rarely provided; 

the entire report is based on records from the Corps' internal ORM2 database, which is 

unavailable to the public, and thus the validity of the underlying data cannot be 

determined due to lack of requisite transparency.

Recommendation: Withdraw the proposed rule. Withdraw the economic analysis. If the 

Agencies wish to resubmit a proposed rule, it must be based on an adequate economic 

analysis. (p. 15)
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Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See the Economic Analysis and 

summary responses under Topic 11 and related subtopics.

Spring City, Utah (Doc. #19662)

11.2.389 Your proposed regulations, however, broaden the accepted definition to also 

include waters in floodplains, riparian areas, and certain ditches. Federal control over 

these categories could severely limit or restrict current usage; especially on our local 

economy among those working in farming and livestock maintenance. This, of course, 

could have far reaching effects in other aspects of our economy as well. (p. 1)

Agency Response: EPA and the Corps have used stakeholder input received 

during public outreach events during the public comment period in combination 

with the written comments received during the public comment period to modify the 

terms and the definitions included in the final rule, ultimately with the goal of 

providing increased clarity for regulators, stakeholders, and the regulated public to 

assist them in identifying waters as “waters of the United States.” See Topic 6 on 

ditches, Topic 3.2.1 on floodplains, and Topic 7 on features and waters not 

jurisdictional. 

Alpine County Board of Supervisors, County of Alpine, California (Doc. #20492)

11.2.390 The rulemaking should not have been initiated before the issuance of the draft 

science report. Your agencies have stated that the draft science report, "Connectivity of 

Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific 

Evidence" is informing the proposed rule. However, you are moving forward with the 

rulemaking before the report has been finalized and released, making it impossible to 

truly use the conclusions from the report to inform this proposal. Moving forward with 

the proposed rule before the science report is finalized is bad public policy and premature 

at best, particularly when the proposal has the far-reaching impact that this one does. (p. 

2 – 3)

Agency Response: See Compendium #9, the rule preamble, and Technical 

Support document, for discussion of the role of science in rule development.

Mayor and Hannibal City Council, City of Hannibal, Missouri (Doc. #20495)

11.2.391 WHEREAS, the draft rule would significantly increase cost to the city and its 

citizens to maintain ground structures without any additional compensation to the city. 

(p. 1)
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Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. . See the Economic Analysis and 

summary responses to Topics 11, 11.2, 11.3, 11.3.1, and 11.4.

Highlands Ranch Metropolitan District, Highlands Ranch, Colorado (Doc. #20499)

11.2.392 The District is also supportive of the Proposed Rule having a scientific foundation 

and therefore requests that the timeline allow for consideration of the Connectivity 

Report. This will allow a clear basis for defining WOUS in the Proposed Rule. The 25-

day extension to the comment period is appreciated, however, it is inadequate for the 

District and other stakeholders to thoroughly review the SAB peer review report and 

provide meaningful comments. Please extend the comment time 60 days following the 

publication and acceptance of the Science Advisory Board's peer review of the 

Connectivity Report. (p. 1)

Agency Response: The agencies are committed to a rulemaking built on the bestavailable, peer-reviewed science, and the agencies recognized the importance of 

ensuring that this supporting science was available to the public as they reviewed 

and commented on the Proposed Rule. In order to afford the public greater 

opportunity to review the SAB's reports on the Proposed Rule and on the EPA's 

draft Science Report, and to respond to requests from the public for additional time 

to provide comments on the Proposed Rule, the agencies extended the public 

comment deadline on the Proposed Rule from July 21, 2014 to November 14, 2014. 

The SAB completed its review of the scientific basis of the Proposed Rule on 

September 30, and the SAB completed its review of the EPA's draft Science Report 

on October 17, 2014. The process for developing the Science Report also included 

many opportunities for the public to provide comments and input. In September 

2013, EPA released a draft of the Science Report for an independent SAB review 

and invited submissions of public comments for consideration by the SAB panel. 

Over 133,000 public comments were submitted for the SAB panel's consideration. 

In October 2014, after several public meetings, the SAB completed its peer review of 

the draft Science Report. EPA revised the draft Science Report based on comments 

from the public and recommendations from the SAB panel. The final peer review 

report is available in the docket for this rulemaking, as well as on the SAB website 

(available at: 

http://yosemite.epa.gov/sab/sabproduct.nsf/AF1A28537854F8AB85257D74005003D

2/$File/EPA-SAB-15-001+unsigned.pdf). For more discussion, see Compendium #9.
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369

Empire District Electric Company (Doc. #20501)

11.2.393 Though EPA and the Corps have said they are seeking to provide clarity and 

certainty and to reduce litigation in implementation of the act through the proposed rule, 

EDE believes the proposed rule in its current form actually reduces clarity, increases 

uncertainty, and will potentially increase the cost to provide services to our customers. 

(p. 2)

Agency Response: EPA and the Corps have used stakeholder input received 

during public outreach events during the public comment period in combination 

with the written comments received during the public comment period to modify the 

terms and the definitions included in the final rule, ultimately with the goal of 

providing increased clarity for regulators, stakeholders, and the regulated public to 

assist them in identifying waters as “waters of the United States.” See Topic 6 on 

ditches, Topic 3.2.1 on floodplains, and Topic 7 on features and waters not 

jurisdictional. See the Economic Analysis and summary responses to Topics 11, 

11.2, 11.3, 11.3.1, 11.3.2, and 11.4.

11.2.394 The delivery of electricity requires the construction, operation, and maintenance 

of transmission and distribution lines and the rights-of-ways in which they are located. 

The construction, operation, and maintenance of transmission lines often require pe1mits 

under section 404 of the CW A for crossing streams or wetland areas. If, however, entire 

floodplains are considered waters of the United States, a new transmission route may in 

its entirety require individual section 404 permit(s) rather than less burdensome 

nationwide permits, with ensuing increases in cost and time association with pe1mitting 

and mitigation requirements. These proposed expansions of the rule could reduce or 

eliminate the economic viability of many energy projects. (p. 4 – 5)

Agency Response: The agencies believe the rule will expedite the permit review 

process in the long-term by clarifying jurisdictional matters that have been timeconsuming and cumbersome for field staff and the regulated community for certain 

waters in light of the 2001 and 2006 Supreme Court cases. The Corps’ Nationwide 

Permit program, which authorizes Clean Water Act Section 404 discharges that 

would have no more than minimal adverse impacts to aquatic resources, is available 

for activities that qualify. In this final rule, the agencies are making the process of 

identifying waters protected under the CWA easier to understand, more 

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

Technical Support Document I.B, and Topic 3.2.1 on floodplains.

Michigan House of Representatives (Doc. #20504)

11.2.395 (...) WHEREAS, The proposed rule would actually expand federal jurisdiction to 

more waters and wetlands, rather than limiting or simply clarifying jurisdiction as 

outlined by the U.S. Supreme Court. The EPA's economic analysis estimates that the 

proposed rule would increase jurisdiction by 3 percent, potentially leading to 1,400 more 

permits required and nearly $220 million in additional costs to farmers, businesses, and 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

370

homeowners. Fur1hcrmore, the economic analysis' assumptions and methodology 

significantly underestimate the potential jurisdictional expansion; and (...) (p. 2)

Agency Response: The agencies prepared an illustrative economic analysis 

comparing the scope of this new regulation to the agencies’ recent field practices in 

making jurisdictional determinations after the Supreme Court decisions of 2001 and 

2006 to see how this rule may affect the costs and benefits of specific CWA 

programs. In this final rule, the agencies are making the process of identifying 

waters protected under the CWA easier to understand, more predictable, and more 

consistent with the law and peer-reviewed science. See the Economic Analysis and 

summary responses to Topics 11, 11.2, 11.3, 11.3.1, and 11.4.

REFERENCES/ATTACHMENTS

Comments included above in this document discuss the Proposed Rule, and some include 

citations to various attachments and references, which are listed below. The agencies do not 

respond to the attachments or references themselves, rather the agencies have responded to the 

substantive comments themselves above, as well as in other locations in the administrative 

record for this rule (e.g., the preamble to the final rule, the TSD, the Legal Compendium). In 

doing so, the agencies have responded to the commenters’ reference or citation to the report or 

document listed below as it was used to support the commenters’ comment. Relevant comment 

attachments include the following:

Utility Water Group Act, Further Information About Cost Estimation. (Doc. # 15016.2, p. 13)

In addition, commenters submitted the following relevant references. These are copied into this 

document as they were submitted by commenters. The agencies have not verified the references, 

or the validity of hyperlinks.

5 U.S.C. §§ 601(3)-(5). (Doc. #14115, p. 38)

5 U.S.C. 609(a) (Panel comprised of representatives of EPA and the SBA's Office of Chief 

Counsel for Advocacy as well as a representative from OMB). (Doc. #14412, p. 48)

33 CFR § 320.4(a) (2004). (Doc. #14068, p. 7)

Applied Technology & Management, Inc., Estimated Fiscal Impacts on Selected Municipal 

Separate Stom1 Sewer System Permittees (Aug. 29, 2014). The four counties include 

Manatee. Pinellas, Sarasota and Seminole counties. (Doc. #10193, p. 9; #14466, p. 2)

American Trucking Associations v. EPA, 175 F.3d 1027 (D.C. Cir. 1999) (Doc. #14115, p. 38; 

#14763, p. 10; #7958,p. 5)

Breedlove, Dennis & Associates. Evaluation of the proposed definition of Waters of the United 

States under the Clean Water Act, submitted to EPA on behalf of FDACS, 50 pages, 

October 31, 2014. (Doc. #16446)
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

371

Carver, E. 2008. Economic impact of waterfowl hunting in the United States. Addendum to the 

2006 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation. U.S. Fish 

and Wildlife Service, Report 2006-2, 13pp. (Doc. #11014, p. 69)

Carver, E. 2009. Birding in the United States: A Demographic and Economic Analysis. 

Addendum to the 2006 National Survey of Fishing, Hunting, and Wildlife-Associated 

Recreation. U.S. Fish and Wildlife Service, Report 2006-4, 15pp. (Doc. #11014, p. 69)

Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855 (D.C. Cir. 2001) (Doc. #14115, p. 38; 

#14763, p. 10)

Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. 

United States and Carabell v. United States, December 2, 2008, 

http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm. (Doc. #7958, p. 5)

Colorado River Outfitter’s Association, Commercial River Use in the State of Colorado, 1988-

2013: 2013 Year End Report, available at http://www.croa.org/wpcontent/uploads/2014/05/2013-Commercial-Rafting-Use-Report.pdf. (Doc. #15020, p. 

105)

Colorado Whitewater Competition, http://www.coloradowhitewater.org/racing-competition. (last 

visited on Oct. 1, 2014). (Doc. #15020, p. 105)

Comments of Gina McCarthy, EPA Administrator, reported in The Hill online (July 8, 2014), 

available at: www.thehill.com/policy/energy-environment/211548-epa-promoting-waterrule-to-farmers-in-mo. (Doc. #14115, p. 39)

Comments of the Portland Cement Association to Proposed Rule: Definition of “Waters of the 

United States” Under the Clean Water Act; Docket No. EPA‐HQ‐OW‐2011‐0880 ( Doc. 

#13956, p. 12)

Congressional Research Service (CRS), “EPA and the Army Corps’ Proposed Rule to Define 

‘Waters of the United States’”, September 10, 2014 p. 11 (Doc. #15017, p. 1)

Costanza, R., R. De Groot, P. Sutton, S. Van Der Ploeg, S.J. Anderson, I. Kubiszewski, S. 

Farber, and R.K. Turner. 2014. Changes in the global value of ecosystem services. Global 

Environmental Change 26:152-158. (Doc. #11014, p. 69)

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, Washington, D.C. 108 pp. 

(doc. #15115, p. 57, 84)

Dahl, T.E. 2006. Status and trends of wetlands in the conterminous United States 1998 to 2004. 

U.S. Department of the Interior, Fish and Wildlife Service, Washington, D.C. p. 112 

(doc. #15115, p. 84)

Dailey. G.C., S. Alexander, P. R. Ehrlich, L. Goulder, J. Lubchenco, P.A. Matson, H.A. Mooney, 

S. Postel, S. H. Schneider, D. Tilman, and G. M. Woodwell. 1999. Ecosystems services: 

benefits supplied to human societies by natural ecosystems. Issues in Ecology. Ecological 

Society of America. 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

372

http://www.hillcountryalliance.org/uploads/HCA/Ecosystem_Services_Daily.pdf (Doc. 

#11014, p. 70)

Dr. Winslow Sargeant, Chief Counsel for Advocacy, Small Business Administration. October 1, 

2014. http://www.sba.gov/advocacy/1012014-definition-waters-united-states-underclean-water-act (Doc. #11552, p. 2; #14308, p. 2)

Dodds, W.F., W.W. Bouska, J.L. Eitzmann, T.J. Pilger, K.L. Pitts, A.J. Riley, J.T. Schloesser, 

and D.J. Thornbrugh. 2009. Eutrophication of U.S. freshwaters: Analysis of potential 

economic damages. Environmental Science and Technology 43:12-19. (Doc. #11014, p. 

70)

Energy Information Administration (EIA) – Monthly Energy Review available at

https://www.eia.gov/totalenergy/data/monthly/pdf/sec3_3.pdf (Doc. #15115, p. 125)

Facts About the Waters of the U.S. Proposal at 3 (July 2014), available at 

http://www2.epa.gov/uswaters/facts-about-waters-us-proposal-pdf (Doc. #15016, p. 20)

Fairbank, Maslin, Maulin, Metz and Assoc. Public Opinion Strategies. Why invest in conserving 

natural areas? Minnesota Environmental Partnership. 2pp. (Doc. #11014, p. 71)

Florida H2O Coalition. Estimated Fiscal Impacts on Selected Municipal Separate Storm Sewer 

System Permittees”, August 29, 2014. (Doc. #16584, p. 6)

Frayer, W.E., T.J. Monahan, D.C.Bowden, and F.A. Graybill. 1983. Status and trends of 

wetlands and deepwater habitats in the conterminous United States, 1950’s to 1970’s. 

Colorado State University, Fort Collins, CO. p. 31 (doc. #15115, p. 84)

Gale, Barry, “Six Years After Rapanos: What’s Changed” (Answer: Not Much), “Federal 

Regulation of Cultural Resources, Wildlife, and Waters of the U.S., Paper No. 13, Page 

No. 13-18 (Rocky Mt. Min. L. Fdn. 2012) (Doc. #14916, p. 5)

Gauvin, Pete, & Wendy Lautner, California’s Dearth of Whitewater Parks, CALIFORNIA’S 

ADVENTURE SPORTS JOURNAL, May 4, 2010, available at 

http://adventuresportsjournal.com/water_sports/kayaking/california%E2%80%99sdearth-of-whitewater-parks. (Doc. #15020, p. 105)

Hanousek v. United States, 528 U.S. 1102, 1103, 120 S. Ct. 860, 145 L.Ed.2d 710 (2000) (Doc. 

#14068, p. 7)

Heimlich, R.E., R. Claassen, K.D. Wiebe, D. Gadsby, and R.M. House. 1998. Wetlands and

Agriculture: Private Interests and Public Benefits. AER-765, U.S. Dept. Agr. Econ. Res. 

Serv., Aug. (Doc. #17921.15, p. 77)

Hodges, Alan W., Mohammad Rahmani, and Thomas J. Stevens, 2014. Economic Contributions 

of Agriculture, Natural Resources, and Related Food Industries in Florida in 2012, 

available at http://edis.ifas.ufl.edu/pdffiles/FE/FE95400.pdf (Doc. #16446)

IHS, “Oil and Natural Gas Transportation & Storage Infrastructure: Status, Trends, & Economic 

Benefits,” 2013. (Doc. #15115, p. 125)
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

373

IMPLAN Group, LLC. IMPLAN impact analysis and social accounting software (version 3.1) 

and Florida state/county data for 2012. Huntersville, NC, available at 

http://www.implan.com (Doc. #16446)

Letter from Larry Bell, Director of the New Mexico Department of Game and Fish to EPA 

(NMDGF comment letter on the 2003 ANPRM), April 15, 2003, at 6. (Doc. #15346, p. 6)

Letter from Larry Naake, Exec. Dir., Nat’l Ass’n of Counties to Lisa Jackson, Adm’r, EPA & Jo 

Ellen Darcy, Assistant Sec’y for Civil Works, U.S. Dep’t of the Army, “Waters of the 

U.S.” Guidance (July 29, 2011) available at 

http://www.naco.org/legislation/policies/Documents/Energy,Environment,Land%20Use/

Waters%20US%20Draft%20guidance%20NACo%20Comments%20Final.pdf. (Doc. 

#15081, p. 4)

Letter from Larry Naake, Exec. Dir., Nat’l Ass’n of Counties to Lisa Jackson, Adm’r, EPA, 

Federalism Consultation Exec..Order 13132: “Waters of the U.S.” Definitional Change 

(Dec. 15, 2011) available at 

http://www.naco.org/legislation/policies/Documents/Energy,Environment,Land%20Use/

Waters%20US%20Draft%20guidance%20NACo%20Comments%20Dec%2015%20201

1_final.pdf. (Doc. #15081, p. 4)

Letter from Leo J. Alderman, EPA Director, Waters, Wetlands, and Pesticides Division, to 

Roderick L. Bremby, Secretary, Kansas Department of Health and Environment (Nov. 3, 

2003). (Doc. #15115, p. 71)

Letter from members of the Senate Committee on Environment and Public Works to the 

President. April 9, 2014 (Exhibit E). (Doc. #14420, p. 8)

Letter from SBA to the Hon. Gina McCarthy and Maj. Gen. John Peabody re: Definition of 

“Waters of the United States” Under the Clean Water Act (October 1, 2014), available at 

http://www.sba.gov/sites/default/files/Final_WOTUS%20Comment%20Letter.pdf. (Doc. 

#19305, p. 2)

Letter from Tom Cochran, CEO and Exec. Dir., U.S. Conf. of Mayors, Clarence E. Anthony, 

Exec. Dir., Nat’l League of Cities, & Matthew D. Chase, Exec. Dir., Nat’l Ass’n of 

Counties to Howard Shelanski, Adm’r, Office of Info. & Regulatory Affairs, Office of 

Mgmt. and Budget, EPA’s Definition of “Waters of the U.S.” Under the Clean Water Act 

Proposed Rule & Connectivity Report (November 8, 2013) available at 

http://www.naco.org/legislation/policies/Documents/Energy,Environment,Land%20Use/

NACo%20NLC%20USCM%20Waters%20of%20the%20US%20Connectivity%20Respo

nse%20letter.pdf. (Doc. #15081, p. 4)

Letter from Winslow Sargeant, Chief Counsel for Advocacy, to Gina McCarthy, Administrator, 

EPA and General John Peabody, Deputy Commanding General, Corps of Engineers, on 

Definition of “Waters of the United States” Under the Clean Water Act (October 1, 2014) 

at 4. (Doc. #14115, p. 39; #13956, p. 13; #14412, p. 48;#15064, p.4)
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

374

Mid-Tex Elec. Co-op, Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 1985) (Doc. #14115, p. 38; #14763, 

p. 10; #7958, p. 5)

Miller, R.E. and P.D. Blair. Input-Output Analysis: Foundations and Extensions, Second Edition, 

Cambridge University Press, Cambridge, UK, 2009. (Doc. #16446)

National Association of Home Builders, “State and Metro Area House Prices: the “Priced Out” 

Effect” (August 2014). (Doc. #14115, p. 21)

National Association of Home Builders. Housing’s Contribution to Gross Domestic Product, 

National Association of Home Builders Web Page, last accessed Nov. 14, 2014, available 

at www.nahb.org/generic.aspx?sectionID=784&genericContentID=66226&print=true

(Doc. #19540, p. 139)

National Association of Home Builders. Impact of Home Building and Remodeling on the U.S. 

Economy, National Association of Home Builders Web Page, last accessed Nov. 14, 

2014, available at http:www.nahb.or~~enerjc.aspx?sectionlP784&~e1~ericCou~nt~= 

(Doc. #19540, p. 140)

National Federation of Independent Business, Letter Asking the OMB to Return a Clean Water 

Act Rule to the EPA (Sept. 24, 2013), http://www.nfib.com/article/letter-asking-the-ombto-return-a-clean-water-act-rule-to-the-epa-63895/. (Doc. #15057, p. 4)

National Mitigation Banking Association website and members list available at 

http://www.mitigationbanking.org/index.html (last visited November 14, 2014). (Doc. 

#15020, p. 104)

Northwest Mining Ass’n v. Babbitt, 5 F. Supp. 2d 9 (D.D.C. 1998). (Doc. #14115, p. 39)

Ogden’s Kayak Park – Ogden City, 

http://www.ogdencity.com/en/community/parks/kayak_park.aspx (last visited Oct. 3, 

2014). (Doc. #15020, p. 105)

Office of Management and Budget, Circular A-4, Subject: Regulatory Analysis (September 17, 

2003) at 15, available at 

http://www.whitehouse.gov/sites/default/files/omb/assets/regulatory_matters_pdf/a-4.pdf 

(Doc. #19540, p. 137; #7958, p. 5)

Personal Communication. Chris Reichard, Tri-State Generation and Transmission Association, 

Inc., with Riverdale Mitigation Bank and Middle South Platte Mitigation Bank, 

September 2014 (Doc. #16392, p. 3)

Polasky, S. and B. Ren. 2010. Minnesota water sustainability framework water valuation 

technical work team report. 

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224665.pdf (Doc. #11014, p. 70)

Presentation of Mike Tate and Tom Stiles, Kansas Department of Health and Environment, 

Waters of the U.S. (May 2, 2014). (Doc. #15115, p. 71)
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

375

Profits, Costs, and the Changing Structure of Dairy Farming, Economic Research Report No. 47, 

Available online at: http://www.ers.usda.gov/publications/err-economic-researchreport/err47.aspx (Doc. #14640, p. 49)

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final report: phase V of a 5 phase environmental education needs assessment. Report 

prepared for the Florida Advisory Council on Environmental Education. Responsive 

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Responsive Management. 1998b. Public attitudes toward fish and wildlife management in 

Indiana. Report prepared for the Indiana Division of Fish and Wildlife. Responsive 

Management, Harrisonburg, VA, USA. (Doc. #11014, p. 70)

Responsive Management. 1998c. West Virginia residents’ attitudes toward the land acquisition 

program and fish and wildlife management. Report prepared for the West Virginia 

Division of Natural Resources. Responsive Management, Harrisonburg, VA, USA. (Doc. 

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Responsive Management. 2001. Public awareness of, attitudes toward, and propensity to 

become a member of Ducks Unlimited in the United States. Report prepared for Ducks 

Unlimited. Responsive Management, Harrisonburg, VA, USA. (Doc. #11014, p. 70)

Sackett v. EPA, 566 U.S. __, 132 S. Ct. 994 (2012) (Doc. #14115, p. 20)

SBA Office of Advocacy, A Guide for Government Agencies: How to Comply with the 

Regulatory Flexibility Act (May 2003) (“SBA RFA Guidance”) at 8-10. (Doc. #19540, p. 

156)

Seelinger, Marc Jr., An Analysis of the USEPA's Economic Analysis of Proposed Revised 

Definition of Waters of the United States, (Doc. #13271, p. 40)

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available at http://www.sba.gov/sites/default/files/rfaguide_0512_0.pdf. (Doc. #17921, p. 

93)

Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 

U.S. 159, 174 (2001); Rapanos v. United States, 547 U.S. 715, 729 (2006).(Doc. #7958, 

p. 5)

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39; #19540, P. 169)

Sunding, David L. and Zilberman, David, The Economics of Environmental Regulation by 

Licensing: An Assessment of Recent Changes to the Wetland Permitting Process. Natural 
Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

376

Resources Journal, Vol. 42, No. 1, Winter 2002. Available online: 

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Sunding, D. and D. Zilberman. 2000. Analysis of the Army Corps of Engineers’ NWP 26 

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#10952, p.4; #16392, p.4; #15162, p.7)

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Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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#10193, p.10; #15208, p.3; #15624, p.14; #16433, p. 2; #15115, p. 57; #16353, p. 7; 

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Clean Water Rule Response to Comments – Topic 11: Cost/Benefits (Volume 2)

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Supplemental Reference:

Congressional Research Service (CRS), “EPA and the Army Corps’ Proposed Rule to Define 

‘Waters of the United States’”, September 10, 2014 p. 11 (Doc. #12983, p. 5)