Clean Water Rule Response to Comments – Topic 12: Implementation Issues

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Clean Water Rule Comment Compendium

Topic 12: Implementation Issues

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 implementation issues submitted by commenters. Comments have 

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

are taken directly from the comments.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

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TOPIC 12. IMPLEMENTATION ISSUES.......................................................................................... 26

SUMMARY RESPONSE................................................................................................... 26

SPECIFIC COMMENTS ................................................................................................... 29

National Association of State Foresters (Doc. #14636)........................................ 29

Committee on Space, Science, and Technology (Doc. #16386)........................... 29

Illinois House of Representatives (Doc. #7978)................................................... 32

State of Iowa Office of the Governor (Doc. #8377)............................................. 33

Georgia Department of Agriculture (Doc. #12351).............................................. 34

Riverside County Farm Bureau (Doc. #12729).................................................... 34

New Mexico Department of Agriculture (Doc. #13024)...................................... 34

Alaska State Legislature (Doc. #13566)............................................................... 36

State of Montana Department of Justice (Doc. #13625)....................................... 36

Illinois Farm Bureau (Doc. #14070)..................................................................... 37

Commonwealth Pennsylvania Department of Agriculture (Doc. #14465)........... 38

State of Oklahoma (Doc. #14625) ........................................................................ 40

North Carolina Department of Agriculture and Consumer Services (Doc. #14747)

............................................................................................................................... 41

South Carolina Forestry Commission (Doc. #14750)........................................... 42

Office of Water Management, Pennsylvania Department of Environmental 

Protection (Doc. #14845)...................................................................................... 42

Arctic Slope Regional Corporation (Doc. #15038) .............................................. 43

National Association of State Departments of Agriculture (Doc. #15389).......... 46

Georgia Environmental Protection Division (Doc. #16348) ................................ 47

Allen Boone Humphries Robinson LLP (Doc. #19614)....................................... 47

Georgia Environmental Protection Division (Doc. #16348) ................................ 47

State of Oklahoma et al. (Doc. #16560) ............................................................... 49

State of South Dakota (Doc. #16925)................................................................... 49

State of Alaska (Doc. #19465).............................................................................. 50

Lee County, Florida (Doc. #1346)........................................................................ 52

Marion County Board of Commissioners (Doc. #1450)....................................... 52

Hinsdale County Board of Commissioners (Doc. #1768) .................................... 52

Skamania County Board of Commissioners (Doc. #2469)................................... 53

Nye County Board of County Commissioners (Doc. #3255)............................... 53

Sheridan County Commission (Doc. #3271)........................................................ 53

Washington Association of Conservation Districts (Doc. #3272)........................ 54

Minnehaha County (South Dakota) Board of Commissioners (Doc. #4116)....... 55

Wayne County (Ohio) Commissioners (Doc. #4226)........................................... 55

Rio Blanco County, Colorado, Board of County Commissioners (Doc. #4679).. 56

Fairfield County, Ohio, Board of Commissioners (Doc. #4775).......................... 56

Bonner County Board of Commissioners (Doc. #4879)....................................... 56

Office of County Manager, New Hanover County, North Carolina (Doc. #5609)

............................................................................................................................... 57

White Pine County (Nevada) Board of County Commissioners (Doc. #6936).... 57

Black Hills Resource Conservation and Development (Doc. #7090)................... 58

Murray County (Minnesota) Board of Commissioners (Doc. #7528).................. 59

Iowa Department of Agriculture and Land Stewardship (Doc. #7642)................ 59
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Baldwin County (Alabama) Commission (Doc. #7940)....................................... 60

Moffat County (Colorado) Board of Commissioners (Doc. #7987)..................... 60

La Plata Water Conservancy District (Doc. #8318) ............................................. 61

Southern California Association of Governments (Doc. #8534).......................... 61

Director of Public Services for the City of Portland, Maine (Doc. #8659) .......... 61

Hampton Roads Planning District Commission (Doc. #9612)............................. 62

Pike Peak Area Council of Governments (Doc. #9732)....................................... 63

Dayton Valley Conservation District (Doc. #10198) ........................................... 63

Pleasant Vale Township Supervisor’s Office, Pike County, Illinois (Doc. #10200)

............................................................................................................................... 64

Kendall County Board, Illinois (Doc. #10965)..................................................... 64

City of Escondido Public Works Office (Doc. #11116)....................................... 65

Iowa Drainage District Association (Doc. #11924).............................................. 65

Urban Drainage and Flood Control District (Doc. #12263) ................................. 66

Mesa County, Colorado Board of County Commissioners (Doc. #12713).......... 66

Uintah County, Utah (Doc. #12720)..................................................................... 67

Board of Commissioners of Carbon County, Utah (Doc. #12738)....................... 67

California Central Valley Flood Control Association (Doc. #12858) .................. 68

Roosevelt Soil and Water Conservation District (Doc. #13202).......................... 69

Northeastern Soil and Water Conservation District (Doc. #13581) ..................... 70

County Commissioners Office of Big Horn County, Wyoming (Doc. #13599) .. 70

Pocahontas County, Iowa (Doc. #13666) ............................................................. 71

Palo Alto County Board of Supervisors (Doc. #14095) ....................................... 71

Pinellas County Board of County Commissioners (Doc. #14426)....................... 72

Waters of the United States Coalition (Doc. #14589) .......................................... 72

Marion County Board of County Commissioners (Doc. #14979)........................ 73

San Joaquin County Board of Supervisors (Doc. #15017.1)................................ 74

Ramsey County Public Works (Doc. #16665)...................................................... 75

Hot Springs County Commissioners (Doc. #16676) ............................................ 76

Dolores Water Conservancy District (Doc. #19461)............................................ 76

Quay County, New Mexico (Doc. #19558).......................................................... 77

Butte County Administration, County of Butte, California (Doc. #19593).......... 79

Montana Wool Growers Association (Doc. #5912) ............................................. 80

Area II Minnesota River Basin Projects, Inc. (Doc. #7185)................................. 80

Pennsylvania Department of Environmental Protection Water Management Office 

(Doc. #7985) ......................................................................................................... 81

Quapaw Tribe of Oklahoma (Doc. #7980) ........................................................... 81

Nebraska Association of Resources Districts (Doc. #11855)............................... 82

New York Farm Bureau et al. (Doc. #11922)....................................................... 83

Ground Water Protection Council (Doc. #13055)................................................ 83

Association of Clean Water Administrators (Doc. #13069)................................. 84

Western Coalition of Arid States (Doc. #14407).................................................. 84

Georgia Municipal Association (Doc. #14527.1)................................................. 85

Florida Rural Water Association (Doc. #14897).................................................. 88

Western Urban Water Coalition (Doc. #15178 and #15178.1) ............................ 89

Wyoming County Commissioners Association (Doc. #15434)............................ 92
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Idaho Association of Commerce & Industry (Doc. #15461)................................ 93

Massachusetts Water Resources Authority (Doc. #15573) .................................. 96

The United States Conference of Mayors et al. (Doc. #15784)............................ 96

Washington State Water Resources Association (Doc. #16543).......................... 97

Michigan Association of Conservation Districts (Doc. #16583).......................... 98

Oregon Association of Clean Water Agencies (Doc. #16613)............................. 99

Montana Association of Conservation Districts (Doc. #18628)......................... 100

Georgia Municipal Association (Doc. #14527.1)............................................... 101

Waters Advocacy Coalition (Doc. #0851).......................................................... 104

U.S. Chamber of Commerce (Doc. #2607)......................................................... 106

Greater North Dakota Chamber (Doc. #10850).................................................. 106

Northern Kentucky Chamber of Commerce (Doc. #13116)............................... 107

U.S. Chamber of Commerce (Doc. #14115)....................................................... 107

John Deere & Company (Doc. #14136) ............................................................. 109

Pennsylvania Chamber of Commerce and Industry (Doc. #14401) ................... 114

Georgia Chamber of Commerce (Doc. #14430)................................................. 115

California Building Industry Association et al. (Doc. #14523).......................... 116

Corporate Environmental Enforcement Council, Inc. (Doc. #14608)................ 117

New Mexico Association of Commerce and Industry (Doc. #14638)................ 118

Arizona Chamber of Commerce and Industry (Doc. #14639)............................ 123

Indiana Cast Metals Association (Doc. #14895.1) ............................................. 124

Golf Course Superintendents Association of America et al. (Doc. #14902)...... 124

American Foundry Society (Doc. #15148)......................................................... 125

Cooperative Network (Doc. #15184).................................................................. 126

Council of Industrial Boiler Owners (Doc. #15401) .......................................... 126

Idaho Association of Commerce & Industry (Doc. #15461).............................. 127

McPherson Law Firm, PC (Doc. #16397) .......................................................... 128

Association of Equipment Manufacturers (Doc. #16901).................................. 129

Water Advocacy Coalition (Doc. #17921.1) ...................................................... 130

American Society of Civil Engineers (Doc. #19572)......................................... 136

Minnkota Power Cooperative, Inc. (Doc. #19607)............................................. 137

Lundell Construction Company, Inc. (Doc. #2627) ........................................... 137

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

#7938) ................................................................................................................. 138

North Houston Association, et al. (Doc. #8537)................................................. 139

Land Improvement Contractors of America (Doc. #8541)................................. 141

The Elm Group, Inc. (Doc. #9688)..................................................................... 141

Shiels Engineering, Inc. (Doc. #13558).............................................................. 142

Hawaii Reserves, Inc. (Doc. #14732)................................................................. 142

Ames Construction, Inc. (Doc. #17045)............................................................. 143

Teichert Materials (Doc. #18866)....................................................................... 144

CEMEX (Doc. #19470) ...................................................................................... 145

National Association of Home Builders (Doc. #19540)..................................... 145

American Gas Association (Doc. #4980) ........................................................... 153

RiverStone Group, Inc. (Doc. #10742)............................................................... 154

Texas Mining and Reclamation Association (Doc. #10750).............................. 154
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American Exploration & Mining Association (Doc. #13616)............................ 156

National Stone, Sand and Gravel Association (Doc. #14412)............................ 157

Continental Resources, Inc. (Doc. #14655)........................................................ 158

Washington Forest Protection Association (Doc. #15030)................................. 159

National Mining Association (Doc. #15059)...................................................... 160

Independent Oil and Gas Association of West Virginia (Doc. #15406)............. 160

CountryMark Cooperative Holding Corporation, LLC (Doc. #15656).............. 162

Coeur Mining, Inc. (Doc. #16162)...................................................................... 163

American Gas Association (Doc. #16173) ......................................................... 164

Gas Processors Association (Doc. #16340)........................................................ 165

Utah Mining Association (Doc. #16349)............................................................ 165

Virginia Coal and Energy Alliance, Inc. (Doc. #18016) .................................... 166

Indiana Coal Council (Doc. #18495).................................................................. 166

Coastal Louisiana Levee Consortium (Doc. #19324)......................................... 167

Halliburton Energy Services (Doc. #19458)....................................................... 167

Family Farm Alliance (Doc. #1431)................................................................... 168

Montana Wool Growers Association (Doc. #5843) ........................................... 169

National Farmers Union (Doc. #6249) ............................................................... 169

San Joaquin Farm Bureau Federation (Doc. #8317)........................................... 170

Maryland Farm Bureau (Doc. #10755)............................................................... 170

Hancock County (Indiana) (Doc. #11980).......................................................... 171

United FCS (Doc. #12722) ................................................................................. 171

Bayless and Berkalew Co. (Doc. #12967).......................................................... 172

Nebraska Cattlemen (Doc. #13018).................................................................... 172

Milk Producers Council (Doc. #13022).............................................................. 173

Missouri Agribusiness Association (Doc. #13025) ............................................ 174

Monterey County Farm Bureau (Doc. #13045).................................................. 174

North American Meat Association (Doc. #13071)............................................. 175

Minnesota Agricultural Water Resource Center (Doc. #14284) ........................ 177

Kentucky Farm Bureau Federation (Doc. #14567)............................................. 177

American Farmland Trust (Doc. #14576)........................................................... 178

California Association of Winegrape Growers (Doc. #14593) .......................... 178

Wisconsin Pork Association (Doc. #14745)....................................................... 179

Windsong Farm Golf Club (Doc. #14746) ......................................................... 179

Missouri Soybean Association (Doc. #14986) ................................................... 180

Jackson Family Wines (Doc. #15019)................................................................ 181

National Alliance of Forest Owners (Doc. #15247)........................................... 182

US Dry Bean Council (Doc. #15256)................................................................. 183

Weyerhaeuser Company (Doc. #15392)............................................................. 184

Kitchen Cabinet Manufacturers Association et al. (Doc. #15418)..................... 185

New York Farm Bureau (Doc. #15616) ............................................................. 186

Oklahoma Grain and Feed Association (Doc. #16067)...................................... 186

American Horticultural Industry Association (Doc. #16359)............................. 187

United States Canola Association (Doc. #16361)............................................... 187

Kansas Corn Growers Association (Doc. #16398)............................................. 188

Riceland Foods (Doc. #16530) ........................................................................... 188
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Western Landowners Alliance (Doc. #16553).................................................... 188

Missouri Corn Growers Association (Doc. #16569) .......................................... 189

Michigan Blueberry Growers Association (Doc. #16587) ................................. 190

Florida Crystals Corporation (Doc. #16652) ...................................................... 191

Greene County Farm Bureau (Doc. #17007)...................................................... 191

Westlands Water Districts (Doc. #14414) .......................................................... 192

Maryland Farm Bureau (Doc. #10755)............................................................... 193

North Platte Valley Irrigators Association (Doc. #18963) ................................. 193

Wilkin County Farm Bureau (Doc. #19489) ...................................................... 194

New Mexico Cattle Growers Association et al. (Doc. #19595) ......................... 195

Iowa Poultry Association (Doc. #19589)............................................................ 195

North Carolina Aggregates Association (Doc. #6938)....................................... 196

New York State Association of Town Superintendents of Highways, Inc. (Doc. 

#7641) ................................................................................................................. 196

New Salem Township, Office of the Road Commissioner (Doc. #8365) .......... 197

Lake Charles Harbor and Terminal District (Doc. #14448) ............................... 198

Airlines For America (Doc. #15439).................................................................. 198

Airports Council International – North America (Doc. #16370)........................ 198

WateReuse Association (Doc. #1349)................................................................ 199

Department of Public Works, City of Harrisville (Doc. #4038.2)...................... 200

Red River Joint Water Resource District (Doc. #4227) ..................................... 200

Nye County Water District Governing Board (Doc. #5486).............................. 200

JEA (Doc. #10747) ............................................................................................. 201

County of San Diego (Doc. #14782) .................................................................. 202

SD1 (Doc. #15140)............................................................................................. 203

County of San Diego (Doc. #15172) .................................................................. 205

Utility Water Act Group (Doc. #0852)............................................................... 206

Clearwater Watershed District, et al (Doc. #9560.1).......................................... 206

Duke Energy (Doc. #13029)............................................................................... 207

WaterLaw (Doc. #13053) ................................................................................... 209

San Juan Water Commission (Doc. #13057)...................................................... 209

Ameren Corporation (Doc. #13608)................................................................... 210

NRG Energy, Inc. (Doc. #13995)....................................................................... 211

Southern Company (Doc. #14134) ..................................................................... 211

Spectra Energy Corp (Doc. #14273)................................................................... 213

National Lime Association (Doc. #14428)......................................................... 215

Responsible Industry for a Sound Environment (Doc. #14431)......................... 215

Colorado Water Congress Federal Affairs Committee (Doc. #14569)............... 215

Metropolitan Water District of Southern California (Doc. #14637)................... 216

Utility Water Act Group (Doc. #15016)............................................................. 218

Steptoe & Johnson LLP (Doc. #15242).............................................................. 218

Upper Trinity Regional Water District (Doc. #15728)....................................... 218

Lower Colorado River Authority (Doc. #16332) ............................................... 219

Anthracite Region Independent Power Producers Association (Doc. #16545).. 219

League of Oregon Cities (Doc. #16546)............................................................. 220

Xcel Energy, Inc. (Doc. #18023)........................................................................ 220
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Coalition of Renewable Energy Landowner Associations (Doc. #14626)......... 221

Ducks Unlimited (Doc. #11014)......................................................................... 221

Professional Landcare Network (Doc. #11831).................................................. 225

Chesapeake Bay Foundation (Doc. #14620) ...................................................... 225

Environmental Defense Fund (Doc. #14946)..................................................... 226

National Wildlife Federation (Doc. #15020)...................................................... 228

Environmental Council of the States (Doc. #15543).......................................... 229

American Association of Port Authorities (Doc. #13559).................................. 229

Center for Regulatory Reasonableness (Doc. #14416)....................................... 230

Protect Americans Now (Doc. #12726).............................................................. 231

Black Hills Regional Multiple Use Coalition (Doc. #14920)............................. 233

Lake County, Illinois Stormwater Management Commission (Doc. #15381) ... 233

Red River Waterway Commission (Doc. #15445) ............................................. 234

Michigan United Conservation Clubs (Doc. #16395) ........................................ 234

University of Missouri College of Agriculture, Food, and Natural Resources 

(Doc. #7942) ....................................................................................................... 235

Mercatus Center at George Mason University (Doc. #12754) ........................... 235

Florida Stormwater Association (Doc. #14613)................................................. 236

Water Environment Federation (Doc. #16584) .................................................. 238

American Legislative Exchange Council (Doc. #19468) ................................... 238

Illinois State Senate (Doc. #11995) .................................................................... 239

Committee on Transportation and Infrastructure, U.S. House of Representatives 

(Doc. #18018) ..................................................................................................... 240

Mary Landrieu, Chair, Committee on Energy and Natural Resources, U. S. Senate 

(Doc. #19301) ..................................................................................................... 240

The Property Which Water Occupies (Doc. #8610)........................................... 241

12.1. REGIONAL QUESTIONS/CONCERNS................................................................................. 242

SUMMARY RESPONSE................................................................................................. 242

SPECIFIC COMMENTS ................................................................................................. 247

Area II Minnesota River Basin Projects, Inc. (Doc. #7185)............................... 247

Pennsylvania Department of Environmental Protection Water Management Office 

(Doc. #7985) ....................................................................................................... 247

California State Association of Counties (Doc. #9692)...................................... 248

State of Idaho (Doc. #9834)................................................................................ 248

Washington State Association of Counties (Doc. #9976) .................................. 249

Interstate Mining Compact Commission (Doc. #14114).................................... 249

Wyoming House of Representatives (Doc. #14308) .......................................... 250

Commonwealth Pennsylvania Department of Agriculture (Doc. #14465)......... 250

State of Oklahoma (Doc. #14625) ...................................................................... 251

Western Governors Association (Doc. #14645)................................................. 252

South Carolina Forestry Commission (Doc. #14750)......................................... 252

Arizona Game and Fish Department (Doc. #14789) .......................................... 253

Office of the Governor, State of Kansas (Doc. #14794)..................................... 253

Arizona Department of Environmental Quality, et al. (Doc. #15096)................ 255

Arizona Department of Transportation (Doc. #15215)....................................... 256
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Delaware Department of Natural Resources and the Environment (Doc. #16558)

............................................................................................................................. 256

State of Idaho (Doc. #16597).............................................................................. 257

New York State Department of Environmental Conservation (Doc. #18895)... 258

State of Alaska (Doc. #19465)............................................................................ 259

Alaska State Legislature (Doc. #2531)............................................................... 264

Mayor’s Office - Aleutians East Borough, Alaska (Doc. #7618)....................... 265

City of Phoenix, Arizona, Office of Environmental Programs (Doc. #7986) .... 266

Pennsylvania Department of Environmental Protection Water Management Office 

(Doc. #7985) ....................................................................................................... 266

Anne Arundel County, Maryland (Doc. #8574)................................................. 267

Hampton Roads Planning District Commission (Doc. #9612)........................... 267

Pike Peak Area Council of Governments (Doc. #9732)..................................... 268

Custer County Commission (Doc. #10186)........................................................ 268

Clark County (Nevada) Regional Flood Control District (Doc. #11726)........... 269

Weld County (Doc. #12343)............................................................................... 270

Mesa County, Colorado Board of County Commissioners (Doc. #12713) ........ 276

Pocahontas County, Iowa (Doc. #13666) ........................................................... 277

Pinellas County Board of County Commissioners (Doc. #14426)..................... 277

Waters of the United States Coalition (Doc. #14589) ........................................ 278

Pima Natural Resource Conservation District (Doc. #14720)............................ 279

Maryland Association of Soil Conservation Districts (Doc. #14932)................ 280

City of Cape Coral (Doc. #14976)...................................................................... 280

Klamath Drainage District (Doc. #15139).......................................................... 281

San Bernadino County, California (Doc. #16489).............................................. 282

Central Utah Water Conservancy District (Doc. #17024).................................. 284

Clyde Snow Attorneys at Law (Doc. #15139).................................................... 285

Dolores Water Conservancy District (Doc. #19461).......................................... 286

California Central Valley Flood Control (Doc. #19571).................................... 286

Florida Association of Counties (Doc. #10193) ................................................. 287

Association of Clean Water Administrators (Doc. #13069)............................... 288

Western Coalition of Arid States (Doc. #14407)................................................ 289

Florida Rural Water Association (Doc. #14897)................................................ 290

Western Urban Water Coalition (Doc. #15178 and #15178.1) .......................... 291

Oklahoma Municipal League (Doc. #16526) ..................................................... 294

Washington State Water Resources Association (Doc. #16543)........................ 295

U.S. Chamber of Commerce (Doc. #14115)....................................................... 299

Pennsylvania Chamber of Commerce and Industry (Doc. #14401) ................... 300

Resource Development Council for Alaska, Inc. (Doc. #14649) ....................... 301

Greater Houston Partnership (Doc. #14726) ...................................................... 307

FMC Corporation (Doc. #15533) ....................................................................... 308

Water Advocacy Coalition (Doc. #17921.1) ...................................................... 309

Virginia Manufactures Association (Doc. #18821)............................................ 310

Southern Nevada Home Builders Association (Doc. #3251) ............................. 312

El Dorado Holdings, Inc. (Doc. #14285)............................................................ 313

CalPortland Company (Doc. #14590)................................................................. 315
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Business Alliance for a Sound Economy (Doc. #14898) ................................... 316

ERO Resources Corporation (Doc. #14914) ...................................................... 317

Perkinscoie (Doc. #15362).................................................................................. 319

Leigh Hanson, Inc. (Doc. #15781)...................................................................... 321

NAIOP, Commercial Real Estate Development Association (Doc. #16551)..... 322

Reclamation and Abandoned Mine Lands Divisions (Doc. #12857) ................. 324

Arizona Mining Association (Doc. #13951)....................................................... 325

Freeport-McMoRan Inc. (Doc. #14135)............................................................. 327

Virginia Coal and Energy Alliance and Virginia Mining Issues Group (Doc. 

#14619) ............................................................................................................... 328

The Mosaic Company (Doc. #14640)................................................................. 329

Nevada Mining Association (Doc. #14930) ....................................................... 329

New Mexico Mining Association (Doc. #15158)............................................... 331

Council of Alaska Producers (Doc. #15782)...................................................... 333

FMC Corporation (Doc. #16505) ....................................................................... 333

Petroleum Association of Wyoming (Doc. #18815)........................................... 334

Independent Petroleum Association of America (Doc. #18864)........................ 335

Washington Farm Bureau (Doc. #3254)............................................................. 343

Washington Cattlemen’s Association (Doc. #3723.2)........................................ 344

Montana Farm Bureau Federation (Doc. #12715).............................................. 345

Bayless and Berkalew Co. (Doc. #12967).......................................................... 345

Nebraska Cattlemen (Doc. #13018).................................................................... 346

Illinois Corn Growers Association (Doc. #13996) ............................................. 347

Westlands Water Districts (Doc. #14414) .......................................................... 347

LeValley Ranch, LTD (Doc. #14540) ................................................................ 348

California Association of Winegrape Growers (Doc. #14593) .......................... 349

Oregon Farm Bureau (Doc. #14727) .................................................................. 350

Tennessee Farm Bureau Federation (Doc. #14978) ........................................... 351

Colorado Agricultural Aviation Association (Doc. #15033).............................. 352

Arizona Farm Bureau Federation (Doc. #15064) ............................................... 352

Goehring Vineyards, Inc. (Doc. #19464)............................................................ 353

Charlotte-Mecklenburg Storm Water Services (Doc. #3431)............................. 355

Arizona Public Service Company (Doc. #15162)............................................... 355

Western States Water Council (Doc. #9842)...................................................... 356

Central Arizona Project (Doc. #3267) ................................................................ 356

WaterLaw (Doc. #13053) ................................................................................... 357

Central Utah Water Conservancy District (Doc. #14534).................................. 358

Colorado Water Congress Federal Affairs Committee (Doc. #14569)............... 358

EcoSynthesis Scientific & Regulatory Services (Doc. #14586)......................... 360

EcoSynthesis Scientific & Regulatory Services (Doc. #14586)......................... 360

Council of Country Club Presidents (Doc. #14919)........................................... 361

Utility Water Act Group (Doc. #15016)............................................................. 361

San Diego County Water Authority, California (Doc. #15089)......................... 362

Northern Colorado Water Conservancy District, Berthoud, Colorado (Doc. 

#15114) ............................................................................................................... 363

Association of Fish and Wildlife Agencies (Doc. #15399)................................ 363
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Grand Valley Water Users Association (Doc. #15467)...................................... 364

Cache La Poudre Water Users Association (Doc. #15499)................................ 365

Lower Arkansas Valley Water Conservancy District (Doc. #15767)................. 365

Cloud Peak Energy (Doc. #18010)..................................................................... 366

Coalition of Renewable Energy Landowner Associations (Doc. #14626)......... 366

Western Resource Advocates (Doc. #16460)..................................................... 367

The Association of State Wetland Managers (Doc. #14131) ............................. 368

National Parks Conservation Association (Doc. #15130) .................................. 369

Mercatus Center at George Mason University (Doc. #12754) ........................... 371

U.S. Congress, Barrasso et al. (Doc. # 4901) ..................................................... 372

U. S. Congress, Cartwright et al. (Doc. #4983).................................................. 372

United States House of Representatives (Doc. #17458)..................................... 372

Congress of the United States (Doc. #19302)..................................................... 374

12.2. 401.................................................................................................................................... 374

SUMMARY RESPONSE................................................................................................. 374

SPECIFIC COMMENTS ................................................................................................. 375

Virginia Department of Transportation (Doc. #12756)...................................... 375

California State Water Resources Control Board (Doc. #15213)....................... 375

Georgia Environmental Protection Division (Doc. #16348) .............................. 376

Water Advocacy Coalition (Doc. #17921.1) ...................................................... 376

National Association of Home Builders (Doc. #19540)..................................... 377

CONSOL Energy, Inc. (Doc. #14614)................................................................ 378

Continental Resources, Inc. (Doc. #14655)........................................................ 378

American Gas Association (Doc. #16173) ......................................................... 378

Nebraska Cattlemen (Doc. #13018).................................................................... 379

Missouri Corn Growers Association (Doc. #16569) .......................................... 379

Airports Council International – North America (Doc. #16370)........................ 379

Environmental Defense Fund (Doc. #14946)..................................................... 379

Society of American Foresters (Doc. #15075) ................................................... 380

Water Environment Federation Member Association Governmental Affairs 

Committees Representing EPA Region 7 (Doc. #15185)................................... 380

12.3. 402 - NPDES.................................................................................................................... 382

AGENCY SUMMARY RESPONSE.................................................................................. 382

SPECIFIC COMMENTS ................................................................................................. 385

Committee on Space, Science, and Technology (Doc. #16386)......................... 385

Pennsylvania Department of Environmental Protection Water Management Office 

(Doc. #7985) ....................................................................................................... 386

Virginia Department of Transportation (Doc. #12756)...................................... 387

California Association of Sanitation Agencies (Doc. #12832)........................... 387

State of Montana Department of Justice (Doc. #13625)..................................... 388

Alabama Department of Transportation (Doc. #13948)..................................... 388

Interstate Mining Compact Commission (Doc. #14114).................................... 388

County Commissioners Association of Pennsylvania (Doc. #14579)................ 389

Arizona Department of Environmental Quality, et al. (Doc. #15096)................ 389

National Association of State Departments of Agriculture (Doc. #15389)........ 391

Governor’s Office – State of Utah (Doc. #16534).............................................. 392
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

11

Allen Boone Humphries Robinson LLP (Doc. #19614)..................................... 393

New Hanover County, North Carolina (Doc. #5609)......................................... 393

City of Phoenix, Arizona, Office of Environmental Programs (Doc. #7986) .... 393

City of Aurora Water Department Administration (Doc. #8409)....................... 393

Southern California Association of Governments (Doc. #8534)........................ 394

Board of Commissioners, Carroll County, Maryland (Doc. #8667)................... 394

City of Chesapeake Department of Public Works (Doc. #9615)........................ 395

Somerset County (Pennsylvania) Commissioners (Doc. #9734)........................ 395

Board of Commissioners of Carbon County, Utah (Doc. #12738)..................... 395

Association of California Water Agencies (Doc. #12978)................................. 395

Pinellas County Board of County Commissioners (Doc. #14426)..................... 397

Waters of the United States Coalition (Doc. #14589) ........................................ 397

Klamath Drainage District - Clyde Snow Attorneys at Law (Doc. #15139)...... 397

Sacramento County, California (Doc. #15518) .................................................. 398

Montana Wool Growers Association (Doc. #5912) ........................................... 398

Western Coalition of Arid States (Doc. #14407)................................................ 398

Georgia Municipal Association (Doc. #14527.1)............................................... 398

The United States Conference of Mayors et al. (Doc. #15784).......................... 399

Washington State Water Resources Association (Doc. #16543)........................ 399

U.S. Chamber of Commerce (Doc. #14115)....................................................... 400

John Deere & Company (Doc. #14136.1) .......................................................... 401

Katy Area Economic Development Council, Inc. (Doc. #15182)...................... 402

Automotive Recyclers Association (Doc. #15343) ............................................ 402

Aluminum Association (Doc. #15388)............................................................... 405

Council of Industrial Boiler Owners (Doc. #15401) .......................................... 405

Indiana Manufacturers Association (Doc. #15704)............................................ 405

DBMC & Associates (Doc. #15770) .................................................................. 406

Federal Water Quality Coalition (Doc. #15822)................................................. 406

Water Advocacy Coalition (Doc. #17921.1) ...................................................... 407

North Houston Assoc., West Houston Assoc., Woodlands Development Co. (Doc. 

#12259) ............................................................................................................... 410

Pennsylvania Grade Crude Oil Coalition (Doc. #15773) ................................... 410

Hispanic Landscape Alliance (Doc. #15171.1) .................................................. 411

National Association of Home Builders (Doc. #19540)..................................... 412

Texas Mining and Reclamation Association (Doc. #10750).............................. 414

Kansas Independent Oil & Gas Association (Doc. #12249)............................... 415

Pennsylvania Coal Alliance (Doc. #13074)........................................................ 415

Tennessee Mining Association (Doc. #14582)................................................... 416

Continental Resources, Inc. (Doc. #14655)........................................................ 416

Nevada Mining Association (Doc. #14930) ....................................................... 418

National Mining Association (Doc. #15059)...................................................... 419

Ohio Oil & Gas Association (Doc. #15122)....................................................... 420

South Carolina Association of Counties (Doc. #15573)..................................... 420

Coeur Mining, Inc. (Doc. #16162)...................................................................... 420

American Gas Association (Doc. #16173) ......................................................... 421

Dominion Resources Services (Doc. #16338).................................................... 421
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

12

Kentucky Oil and Gas Association (Doc. #16527)............................................. 422

Pennsylvania Aggregates and Concrete Association (Doc. #16353).................. 422

Independent Petroleum Association of America (Doc. #18864)........................ 422

National Farmers Union (Doc. #6249) ............................................................... 423

California Agricultural Commissioners and Sealer Association (Doc. #9670).. 423

Riverside County Farm Bureau (Doc. #12729).................................................. 423

Colorado Farm Bureau (Doc. #12829) ............................................................... 424

AEP Ohio (Doc. #12847).................................................................................... 425

Bayless and Berkalew Co. (Doc. #12967).......................................................... 425

Nebraska Cattlemen (Doc. #13018).................................................................... 426

Missouri Agribusiness Association (Doc. #13025) ............................................ 427

North American Meat Association (Doc. #13071)............................................. 428

Iowa Corn Growers Association (Doc. #13269)................................................. 428

USA Rice Federation (Doc. #13998).................................................................. 428

Western Growers Association (Doc. #14130) .................................................... 428

Kentucky Farm Bureau Federation (Doc. #14567)............................................. 429

Oregon Farm Bureau (Doc. #14727) .................................................................. 429

Windsong Farm Golf Club (Doc. #14746) ......................................................... 430

Santa Barbara County Farm Bureau (Doc. #14966)........................................... 430

National Corn Growers Association (Doc. #14968)........................................... 431

Missouri Soybean Association (Doc. #14986) ................................................... 431

Department of Public Works, City of Chesapeake, Virginia (Doc. #5612.1) .... 432

Bayer CropScience (Doc. #16354) ..................................................................... 432

American Horticultural Industry Association (Doc. #16359)............................. 433

South Dakota Farm Bureau (Doc. #16524) ........................................................ 433

New York Farm Bureau (Doc. #16547) ............................................................. 433

Missouri Corn Growers Association (Doc. #16569) .......................................... 434

Florida Crystals Corporation (Doc. #16652) ...................................................... 435

Montana Stockgrowers Association et al (Doc. #16937) ................................... 435

West Virginia Farm Bureau (Doc. #17091)........................................................ 436

Fresno County Farm Bureau (Doc. #15085)....................................................... 436

Agribusiness Association of Kentucky (Doc. #18005)....................................... 436

Airlines For America (Doc. #15439).................................................................. 437

Beaufort County (South Carolina) Stormwater Utility (Doc. #7326)................. 439

Orange County Sanitation District (Doc. #16335.1) .......................................... 439

Alliant Energy Corporate Services (Doc. #18791)............................................. 440

Association of American Pesticide Control Officials (Doc. #1651)................... 440

NW Colorado Council of Governments Water Quality/ Quantity Committee (Doc. 

#10187) ............................................................................................................... 441

Professional Landcare Network (Doc. #11831).................................................. 441

Southeast Florida Utility Council (Doc. #11879)............................................... 442

Duke Energy (Doc. #13029)............................................................................... 443

Murray Energy Corporation (Doc. #13954) ....................................................... 444

Southern Company (Doc. #14134) ..................................................................... 444

American Public Power Association (Doc. #15008).......................................... 444

Eagle River Water & Sanitation District (Doc. #15116).................................... 445
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

13

Southern IL Power Cooperative (Doc. #15214) ................................................. 445

Automotive Recyclers Association (Doc. #15343) ............................................ 445

Washington County Water Conservancy District (Doc. #15536) ...................... 446

Yazoo Valley EPA (Doc. #15838)...................................................................... 446

Lake County, Illinois Stormwater Management Commission (Doc. #15381) ... 446

Florida Stormwater Association, Inc. (Doc. #7965)........................................... 447

Water Environment Federation Member Association Governmental Affairs 

Committees Representing EPA Region 7 (Doc. #15185)................................... 447

United States Senate, Senator David Vitter, et al. (Doc. #3536)........................ 448

12.3.1 Stormwater and MS4s............................................................................................... 448

SUMMARY RESPONSE................................................................................................. 448

SPECIFIC COMMENTS ................................................................................................. 448

District Department of the Environment, Government of the District of Columbia 

(Doc. #12716) ..................................................................................................... 448

State of Washington Department of Ecology (Doc. #13957)............................. 450

Georgia Municipal Association (Doc. #14527.1)............................................... 451

Waters of the United States Coalition (Doc. #14589) ........................................ 452

Arizona Department of Transportation (Doc. #15215)....................................... 453

Florida Department of Transportation (Doc. #18824)........................................ 454

Director of Public Works, City of Goose Creek, South Carolina (Doc. #18827)454

State of Alaska (Doc. #19465)............................................................................ 454

Skamania County Board of Commissioners (Doc. #2469)................................. 455

Wayne County (Ohio) Commissioners (Doc. #4226)......................................... 456

Board of County Commissioners, St. Mary’s County, Maryland (Doc. #4279) 456

Pennington County Board of Commissioners (Doc. #4384) .............................. 456

City of San Diego, Transportation & Storm Water Department (Doc. #7950.1)457

City of Chesapeake Department of Public Works (Doc. #9615)........................ 457

Board of Supervisors, Imperial County (Doc. #10259)...................................... 458

Maryland Association of Counties (Doc. #11120) ............................................. 458

Association of California Water Agencies (Doc. #12978)................................. 459

City of Artesia (Doc. #13043.2) ......................................................................... 459

Village of Palm Springs (Doc. #13217).............................................................. 459

North Palm Beach County Improvement District (Doc. #13218) ...................... 460

Pinellas County Board of County Commissioners (Doc. #14426)..................... 460

Riverside County Flood Control and Water Conservation District (Doc. #14581)

............................................................................................................................. 460

City of Buckeye, Arizona (Doc. #14591)........................................................... 463

Harris County Flood Control District (Doc. #15049)......................................... 464

Carroll County Board of Commissioners (Doc. #15190)................................... 464

Sacramento County, California (Doc. #15518) .................................................. 465

City of Oceanside (California) Water Utilities Department (Doc. #16509)....... 465

Department of Public Works, County of San Diego (Doc. #17920) .................. 465

City of St. Petersburg, Florida (Doc. #18897).................................................... 466

National Association of Flood & Stormwater Management Agencies (Doc. 

#13613) ............................................................................................................... 467

Iowa League of Cities (Doc. #18823)................................................................. 467
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

14

Georgia Municipal Association (Doc. #14527.1)............................................... 470

Massachusetts Water Resources Authority (Doc. #15546) ................................ 471

California Building Industry Association et al. (Doc. #14523).......................... 471

Greater Houston Partnership (Doc. #14726) ...................................................... 472

American Society of Civil Engineers (Doc. #19572)......................................... 472

National Stone, Sand and Gravel Association (Doc. #14412)............................ 473

Montana Mining Association (Doc. #14763) ..................................................... 474

American Gas Association (Doc. #16173) ......................................................... 474

Coon Run Levee and Drainage District (Doc. #8366)........................................ 474

New York Farm Bureau (Doc. #15616) ............................................................. 474

County Engineers Association of Ohio (Doc. #1997) ........................................ 475

North Carolina Water Quality Association (Doc. #12361) ................................ 475

Minnesota Cities Stormwater Coalition (Doc. #14647) ..................................... 475

Southeast Metro Stormwater Authority (Doc. #14935)...................................... 475

Department of Public Works, City of Northglenn, Colorado (Doc. #14990)..... 476

Orange County Public Works, Orange County, California (Doc. #14994)........ 476

SD1 (Doc. #15140)............................................................................................. 478

County of San Diego (Doc. #15172) .................................................................. 479

Minnesota Cities Stormwater Coalition (Doc. #16929) ..................................... 480

Sacramento Stormwater Quality Partnership (Doc. #17005) ............................. 480

Ventura Countrywide Stormwater Quality Management Program (Doc. #18762)

............................................................................................................................. 480

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

Water Users Association (Doc. #14928) ............................................................ 481

Kentucky Stormwater Association (Doc. #18912)............................................. 481

Association of State Floodplain Managers (Doc. #19452)................................. 482

United States House of Representatives (Doc. #17458)..................................... 482

12.3.1 Green Infrastructure ................................................................................................. 483

SUMMARY RESPONSE................................................................................................. 483

SPECIFIC COMMENTS ................................................................................................. 483

Allen Boone Humphries Robinson LLP (Doc. #19614)..................................... 483

Skamania County Board of Commissioners (Doc. #2469)................................. 484

City of San Diego, Transportation & Storm Water Department (Doc. #7950.1)484

City of San Diego, Transportation & Storm Water Department (Doc. #7950.2)484

Board of Commissioners of Carbon County, Utah (Doc. #12738...................... 484

City of Artesia (Doc. #13043.2) ......................................................................... 484

Carson Water Subconservancy District (Doc. #13573)...................................... 485

Waters of the United States Coalition (Doc. #14589) ........................................ 485

Harris County Flood Control District (Doc. #15049)......................................... 485

Sacramento County, California (Doc. #15518) .................................................. 486

Navajo County Board of Supervisors (Doc. #19569)......................................... 486

Washington State Water Resources Association (Doc. #16543)........................ 486

Iowa League of Cities (Doc. #18823)................................................................. 486

U.S. Chamber of Commerce (Doc. #14115)....................................................... 487

Katy Area Economic Development Council, Inc. (Doc. #15182)...................... 487

American Society of Civil Engineers (Doc. #19572)......................................... 487
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

15

North Houston Assoc., West Houston Assoc., Woodlands Development Co. (Doc. 

#12259) ............................................................................................................... 488

North American Meat Association (Doc. #13071)............................................. 488

Airports Council International – North America (Doc. #16370)........................ 488

Louisville and Jefferson County Metropolitan Sewer District (Doc. #15413)... 489

Lake County Stormwater Management Commission (Doc. #16893)................. 489

12.4. 404 – DREDGED AND FILL MATERIAL ............................................................................. 489

SUMMARY RESPONSE................................................................................................. 489

SPECIFIC COMMENTS ................................................................................................. 490

Rural County Representatives of California (Doc. #5537)................................. 490

Arizona Department of Transportation (Doc. #15215)....................................... 490

Skamania County Board of Commissioners (Doc. #2469)................................. 491

Lincoln County Conservation District, State of Washington (Doc. #4236)....... 491

Murray County (Minnesota) Board of Commissioners (Doc. #7528)................ 492

Dayton Valley Conservation District (Doc. #10198) ......................................... 492

Kansas Independent Oil & Gas Association (Doc. #12249)............................... 493

CONSOL Energy, Inc. (Doc. #14614)................................................................ 494

Association County Commissioners of Georgia (Doc. #5912) .......................... 495

Nebraska Cattlemen (Doc. #13018).................................................................... 495

County Engineers Association of Ohio (Doc. #1997) ........................................ 496

Minnesota County Engineers Association (Doc. #6996.2)................................. 496

Division of Transportation, Kane County, Illinois (Doc. #9831)....................... 497

NW Colorado Council of Governments Water Quality/ Quantity Committee (Doc. 

#10187) ............................................................................................................... 497

Professional Landcare Network (Doc. #11831).................................................. 498

United States Congress, Kildee et al. (Doc. #6846) ........................................... 498

12.4.1 Transition Process for Final Rule............................................................................. 499

SPECIFIC COMMENTS ................................................................................................. 499

State of Oregon (Doc. #15218)........................................................................... 499

State of Oregon (Doc. #15218)........................................................................... 499

Association of State Drinking Water Administrators (Doc. #15530)................. 499

City of San Diego, Transportation & Storm Water Department (Doc. #7950.2)500

Maricopa County Board of Supervisors (Doc. #14132)..................................... 500

Lee County, Florida (Doc. #15241).................................................................... 501

Snowmass Water and Sanitation District (Doc. #16529) ................................... 501

Western Urban Water Coalition (Doc. #15178) ................................................. 501

Association of State Drinking Water Administrators (Doc. #15530)................. 502

Minnesota Chamber of Commerce (Doc. #16473)............................................. 502

Water Advocacy Coalition (Doc. #17921.1) ...................................................... 502

El Dorado Holdings, Inc. (Doc. #14285)............................................................ 504

Associated General Contractors of America (Doc. #14602) .............................. 507

Vulcan Materials Company (Doc. #14642)........................................................ 508

O’Neil LLP (Doc. #14651)................................................................................. 508

Business Alliance for a Sound Economy (Doc. #14898) ................................... 509

CEMEX (Doc. #19470) ...................................................................................... 509

National Association of Home Builders (Doc. #19540)..................................... 509
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

16

Wyoming Mining Association (Doc. #14460).................................................... 511

The Mosaic Company (Doc. #14640)................................................................. 511

Ohio Oil & Gas Association (Doc. #15122)....................................................... 512

Vulcan Materials Company (Doc. #16566)........................................................ 513

Independent Petroleum Association of America (Doc. #18864)........................ 513

Transportation Corridor Agencies (Doc. #16897).............................................. 514

Arizona Public Service Company (Doc. #15162)............................................... 515

Spectra Energy Corp (Doc. #14273)................................................................... 516

CropLife America (Doc. #14630.1).................................................................... 517

Metropolitan Water District of Southern California (Doc. #14637)................... 517

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

Water Users Association (Doc. #14928) ............................................................ 517

Utility Water Act Group (Doc. #15016)............................................................. 518

Exxon Mobil Corporation (Doc. #15044)........................................................... 518

Northern Colorado Water Conservancy District, Berthoud, Colorado (Doc. 

#15114) ............................................................................................................... 519

Beaver Water District (Doc. #15405)................................................................. 519

Washington County Water Conservancy District (Doc. #15536) ...................... 519

Pennsylvania Independent Oil and Gas Association (Doc. #15167).................. 520

Association of State Floodplain Managers (Doc. #19452)................................. 520

The Association of State Wetland Managers (Doc. #14131) ............................. 520

12.4.1 Comments on How Proposed Rule would Affect Permit Processes and Evaluation of 

Impacts/Compensatory Mitigation......................................................................................... 521

SPECIFIC COMMENTS ................................................................................................. 521

Office of Advocacy, Small Business Administration (Doc. #7958)................... 521

Tennessee Valley Association (Doc. #17470).................................................... 522

Florida Department of Agriculture and Consumer Services (Doc. #10260) ...... 522

Gila River Indian Community (Doc. #13619).................................................... 524

State of Washington Department of Ecology (Doc. #13957)............................. 526

Office of the Governor, State of Kansas (Doc. #14794)..................................... 526

Office of Water Management, Pennsylvania Department of Environmental 

Protection (Doc. #14845).................................................................................... 527

Wyoming Department of Environmental Quality (Doc. #16393) ...................... 528

Governor’s Office – State of Utah (Doc. #16534).............................................. 530

Nebraska Department of Roads (Doc. #16896).................................................. 532

Arizona State Land Department (Doc. #16903) ................................................. 532

State of Illinois, State Representative’s Office, 94th District (Doc. #16994)...... 533

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

............................................................................................................................. 533

Wyoming Water Development Commission (Doc. #17059).............................. 534

Allen Boone Humphries Robinson LLP (Doc. #19614)..................................... 535

Skamania County Board of Commissioners (Doc. #2469)................................. 535

Sweetwater County (Wyoming) Board of County Commissioners (Doc. #6863)

............................................................................................................................. 535

County of Butler (Pennsylvania) Board of Commissioners (Doc. #6918.1)...... 536

White Pine County (Nevada) Board of County Commissioners (Doc, #6936.1)537
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

17

Office of the City Manager - City of Westminster (Colorado) (Doc. #7327) .... 537

Murray County (Minnesota) Board of Commissioners (Doc. #7528)................ 538

Board of Supervisors- Del Norte County, California (Doc. #8376)................... 538

Scott County Soil and Water Conservation District (Doc. #8410)..................... 539

Commissioners Office, Dickinson County, Kansas (Doc. #10257.1) ................ 539

Board of Commissioners of Carbon County, Utah (Doc. #12738)..................... 539

Pike County (Illinois) Soil and Water Conservation District (Doc. #12748)..... 540

California Central Valley Flood Control Association (Doc. #12858)................ 540

Carson Water Subconservancy District (Doc. #13573)...................................... 543

Brown County, Kansas (Doc. #13603)............................................................... 544

Cascade County Commissioners (Doc. #16904) ................................................ 544

City of Portsmouth, Virginia (Doc. #17057) ...................................................... 545

Nebraska Association of Resources Districts (Doc. #11855)............................. 545

Western Coalition of Arid States (Doc. #14407)................................................ 546

Western Urban Water Coalition (Doc. #15178.1) .............................................. 546

Wyoming County Commissioners Association (Doc. #15434).......................... 547

Idaho Association of Commerce & Industry (Doc. #15461).............................. 547

Massachusetts Water Resources Authority (Doc. #15573) ................................ 548

Washington State Water Resources Association (Doc. #16543)........................ 549

League of Oregon Cities (Doc. #16546)............................................................. 550

U.S. Chamber of Commerce (Doc. #14115)....................................................... 550

John Deere & Company (Doc. #14136.1) .......................................................... 553

California Building Industry Association et al. (Doc. #14523).......................... 556

Resource Development Council for Alaska, Inc. (Doc. #14649) ....................... 557

Cooperative Network (Doc. #15184).................................................................. 557

Automotive Recyclers Association (Doc. #15343) ............................................ 557

Council of Industrial Boiler Owners (Doc. #15401) .......................................... 558

Idaho Association of Commerce & Industry (Doc. #15461).............................. 559

Water Advocacy Coalition (Doc. #17921.1) ...................................................... 560

John Deere & Company (Doc. #14136.1) .......................................................... 564

Minnkota Power Cooperative, Inc. (Doc. #19607)............................................. 565

Building Industry Association of Washington (Doc. #13622) ........................... 566

Commercial Real Estate Development Association (Doc. #14621)................... 567

Leigh Hanson, Inc. (Doc. #15781)...................................................................... 568

Ames Construction, Inc. (Doc. #17045)............................................................. 569

National Association of Home Builders (Doc. #19540)..................................... 570

Texas Mining and Reclamation Association (Doc. #10750).............................. 573

Pennsylvania Coal Alliance (Doc. #13074)........................................................ 577

American Exploration & Mining Association (Doc. #13616)............................ 579

Alliance Coal, LLC (Doc. #14577)..................................................................... 580

County Commissioners Association of Pennsylvania (Doc. #14579)................ 580

Continental Resources, Inc. (Doc. #14655)........................................................ 585

Montana Mining Association (Doc. #14763) ..................................................... 588

Midway Gold US and MDW Pan (Doc. #15056)............................................... 588

National Mining Association (Doc. #15059)...................................................... 589

Illinois Coal Association (Doc. #15517) ............................................................ 591
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

18

Halliburton Energy Services, Inc. (Doc. #15509)............................................... 591

American Gas Association (Doc. #16173) ......................................................... 592

Dominion Resources Services (Doc. #16338).................................................... 594

Gas Processors Association (Doc. #16340)........................................................ 595

Utah Mining Association (Doc. #16349)............................................................ 597

FMC Corporation (Doc. #16505) ....................................................................... 598

Kentucky Oil and Gas Association (Doc. #16527)............................................. 598

Petroleum Association of Wyoming (Doc. #18815)........................................... 599

Independent Petroleum Association of America (Doc. #18864)........................ 601

Coon Run Levee and Drainage District (Doc. #8366)........................................ 603

North American Meat Association (Doc. #13071)............................................. 604

Iowa Corn Growers Association (Doc. #13269)................................................. 606

North Dakota Soybean Growers Association (Doc. #14121)............................. 606

Texas Farm Bureau (Doc. #14129)..................................................................... 607

Wyoming Farm Bureau Federation (Doc. #14406)............................................ 607

National Corn Growers Association (Doc. #14968)........................................... 608

Arizona Farm Bureau Federation (Doc. #15064) ............................................... 609

El Dorado Irrigation District (Doc. #15231)....................................................... 609

Kitchen Cabinet Manufacturers Association et al. (Doc. #15418)..................... 610

National Barley Growers Association (Doc. #15627)........................................ 611

Peltzer & Richardson LC (Doc. #16360)............................................................ 612

Loup Basin Reclamation District (Doc. #16474) ............................................... 612

Florida Crystals Corporation (Doc. #16652) ...................................................... 612

Calloway County Farm Bureau (Doc. #16158.1)............................................... 613

Agribusiness Association of Kentucky (Doc. #18005)....................................... 613

Kittson County, Minnesota (Doc. #1244)........................................................... 615

Lake Charles Harbor and Terminal District (Doc. #14448) ............................... 617

Union Pacific Railroad Company (Doc. #15254)............................................... 617

Airports Council International – North America (Doc. #16370)........................ 620

Airlines for America (Doc. #15439)................................................................... 621

Charlotte-Mecklenburg Storm Water Services (Doc. #3431)............................. 622

SD1 (Doc. #15140)............................................................................................. 622

Southern Illinois Power Cooperative (Doc. #15486).......................................... 623

NW Colorado Council of Governments Water Quality/ Quantity Committee (Doc. 

#10187) ............................................................................................................... 624

Duke Energy (Doc. #13029)............................................................................... 625

Duncan Valley Electric Cooperative, Inc. (Doc. #13033).................................. 626

Upper Niobrara White Natural Resources District (Doc. #13562)..................... 626

Murray Energy Corporation (Doc. #13954) ....................................................... 627

Southern Company (Doc. #14134) ..................................................................... 627

Colorado Water Congress Federal Affairs Committee (Doc. #14569)............... 628

The Clean Energy Group Waters Initiative (Doc. #14616)................................ 628

Metropolitan Water District of Southern California (Doc. #14637)................... 631

Exelon Corporation (Doc. #14641)..................................................................... 631

American Public Power Association (Doc. #15008).......................................... 632

Eagle River Water & Sanitation District (Doc. #15116).................................... 632
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

19

Cache La Poudre Water Users Association (Doc. #15499)................................ 633

South Metro Water Supply Authority (Doc. #16481) ........................................ 633

Texas Water Development Board (Doc. #16563)............................................... 634

Xcel Energy, Inc. (Doc. #18023)........................................................................ 635

Association of Illinois Electric Cooperatives (Doc. #16168)............................. 635

Cascade County - Board of County Commissioners (Doc. #17084).................. 636

Battelle Energy Alliance, LLC (Doc. #16448)................................................... 636

Tucson Electric Power Company (Doc. #19561) ............................................... 637

Partners in Amphibian and Reptile Conservation (Doc. #7499.1) ..................... 639

Association of State Floodplain Managers (Doc. #19452)................................. 639

The Association of State Wetland Managers (Doc. #14131) ............................. 641

Red River Waterway Commission (Doc. #15445) ............................................. 643

Water Environment Federation Member Association Governmental Affairs 

Committees Representing EPA Region 7 (Doc. #15185)................................... 643

U.S. House of Representatives – Iowa, Second District (Doc. #1375) .............. 644

United States House of Representatives (Doc. #17458)..................................... 644

Committee on Transportation and Infrastructure, U.S. House of Representatives 

(Doc. #18018) ..................................................................................................... 645

12.4.2 Jurisdictional Determination Process ...................................................................... 645

SUMMARY RESPONSE................................................................................................. 645

SPECIFIC COMMENTS ................................................................................................. 646

Committee on Space, Science, and Technology (Doc. #16386)......................... 646

New Mexico Department of Agriculture (Doc. #13024).................................... 648

Kansas Senate Committee on Natural Resources (Doc. #15022.1).................... 649

State of Oregon (Doc. #15218)........................................................................... 650

Southern Ute Indian Tribe Growth Fund (Doc. #15386).................................... 650

West Virginia Department of Environmental Protection (Doc. #15415) ........... 651

Wyoming Department of Environmental Quality (Doc. #16393) ...................... 651

Governor’s Office – State of Utah (Doc. #16534).............................................. 652

State of Idaho (Doc. #16597).............................................................................. 653

Arkansas Attorney General (Doc. #16899) ........................................................ 654

State of Alaska (Doc. #19465)............................................................................ 655

Consolidated Drainage District No. 1, Mississippi County, Missouri (Doc. #6254)

............................................................................................................................. 657

Murray County (Minnesota) Board of Commissioners (Doc. #7528)................ 658

City of Phoenix, Arizona, Office of Environmental Programs (Doc. #7986) .... 658

City of Chesapeake Department of Public Works (Doc. #9615)........................ 659

Somerset County, Pennsylvania, Commissioners (Doc. #9734) ........................ 659

Lea Soil and Conservation District Board of Supervisors (Doc. #15144).......... 660

Association of Clean Water Administrators (Doc. #13069)............................... 660

Association of Minnesota Counties (Doc. #3309).............................................. 661

Western Coalition of Arid States (Doc. #14407)................................................ 661

Great Lakes Indian Fish and Wildlife Commission (Doc. #15454) ................... 662

Western Urban Water Coalition (Doc. #15178.1) .............................................. 662

Washington State Water Resources Association (Doc. #16543)........................ 663

Iowa League of Cities (Doc. #18823)................................................................. 664
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

20

ERO Resources Corporation (Doc. #14914) ...................................................... 665

Teichert Materials (Doc. #18866)....................................................................... 666

CEMEX (Doc. #19470) ...................................................................................... 666

National Association of Home Builders (Doc. #19540)..................................... 667

American Exploration & Mining Association (Doc. #13616)............................ 668

Sinclair Oil Corporation (Doc. #15142) ............................................................. 669

Pennsylvania Grade Crude Oil Coalition (Doc. #15773) ................................... 670

Martin Marietta (Doc. #16356)........................................................................... 671

Oregon Cattlemen’s Association (Doc. #5273).................................................. 672

Santa Barbara County Farm Bureau (Doc. #14966)........................................... 672

New York Farm Bureau (Doc. #15616) ............................................................. 673

North Carolina Aggregates Association (Doc. #6938)....................................... 674

American Road and Transportation Builders Association (Doc. #15424) ......... 674

Airports Council International – North America (Doc. #16370)........................ 675

Clearwater Watershed District, et al. (Doc. #9560.1)......................................... 676

Minnesota Cities Stormwater Coalition (Doc. #14647) ..................................... 677

Lake County Stormwater Management Commission (Doc. #16893)................. 677

Western States Water Council (Doc. #9842)...................................................... 678

Colorado Water Congress Federal Affairs Committee (Doc. #14569)............... 679

Utility Water Act Group (Doc. #15016)............................................................. 679

American Electric Power, Inc. (Doc. #15079).................................................... 680

Pennsylvania Independent Oil and Gas Association (Doc. #15167).................. 680

Humboldt River Basin Water Authority (Doc. #15229)..................................... 682

Washington County Water Conservancy District (Doc. #15536) ...................... 682

East Kentucky Power Cooperative (Doc. #15402)............................................. 683

Tucson Electric Power Company, UNS Energy Corporation (Doc. #19561) .... 683

Ducks Unlimited (Doc. #11014)......................................................................... 685

Western Resource Advocates (Doc. #16460)..................................................... 687

Association of State Floodplain Managers (Doc. #19452)................................. 687

Committee on Space, Science, and Technology (Doc. #16386)......................... 687

12.4.3 Field Indicators......................................................................................................... 688

SPECIFIC COMMENTS ................................................................................................. 688

ERO Resources Corporation (Doc. #14914) ...................................................... 688

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

#7633) ................................................................................................................. 690

Michigan Farm Bureau (Doc. #10196)............................................................... 691

Coalition of Renewable Energy Landowner Associations (Doc. #14626)......... 691

National Council for Air and Stream Improvement, Inc. (Doc. #13627)........... 691

Waterkeeper Alliance et al. (Doc. #16413) ........................................................ 692

Society of American Foresters (Doc. #15075) ................................................... 693

12.5. 311 – OIL SPILL PREVENTION PLANS ............................................................................. 695

SUMMARY RESPONSE................................................................................................. 695

SPECIFIC COMMENTS ................................................................................................. 695

Allen Boone Humphries Robinson LLP (Doc. #19614)..................................... 695

Missouri Association of Municipal Utilities (Doc. #7931) ................................ 696

County Commissioners Association of Pennsylvania (Doc. #14579)................ 696
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

21

U.S. Chamber of Commerce (Doc. #14115)....................................................... 697

Cooperative Network (Doc. #15184).................................................................. 698

Water Advocacy Coalition (Doc. #17921.1) ...................................................... 698

National Association of Home Builders (Doc. #19540)..................................... 699

Kansas Independent Oil & Gas Association (Doc. #12249)............................... 700

Continental Resources, Inc. (Doc. #14655)........................................................ 701

Permian Basin Petroleum Association (Doc. #15378) ....................................... 702

Dominion Resources Services (Doc. #16338).................................................... 703

Gas Processors Association (Doc. #16340)........................................................ 704

Petroleum Association of Wyoming (Doc. #18815)........................................... 705

Independent Petroleum Association of America (Doc. #18864)........................ 707

Kentucky Oil and Gas Association (Doc. #16527)............................................. 708

Nebraska Cattlemen (Doc. #13018).................................................................... 708

Airports Council International – North America (Doc. #16370)........................ 709

Wabash Valley Power Association (Doc. #16336)............................................. 709

Duke Energy (Doc. #13029)............................................................................... 709

U.S. Chamber of Commerce (Doc. #14115)....................................................... 710

Oglethorpe Power Corporation (Doc. #14618)................................................... 710

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

Water Users Association (Doc. #14928) ............................................................ 711

Utility Water Act Group (Doc. #15016)............................................................. 712

Pennsylvania Independent Oil and Gas Association (Doc. #15167).................. 713

12.6. TRAINING NEEDS ............................................................................................................. 714

SPECIFIC COMMENTS ................................................................................................. 714

State of Washington Department of Ecology (Doc. #13957)............................. 714

State of Oklahoma (Doc. #14773) ...................................................................... 714

State of Idaho (Doc. #16597).............................................................................. 715

Colorado Clean Water Coalition (Doc. #1231) .................................................. 715

Catawba County North Carolina Board of Commissioners (Doc. #1763) ......... 716

Board of County Commissioners, Huerfano County, Colorado (Doc. #1771)... 716

Tennessee Association of Conservation Districts (Doc. #10162) ...................... 717

County of Henry, Collinsville, Virginia (Doc. #10949)..................................... 717

Association of California Water Agencies (Doc. #12978)................................. 717

Missouri Association of Municipal Utilities (Doc. #7931) ................................ 718

California State Association of Counties (Doc. #9692)...................................... 718

Association of Clean Water Administrators (Doc. #13069)............................... 718

Montana Association of Conservation Districts (Doc. #18628)......................... 719

CalPortland Company (Doc. #14590)................................................................. 719

Corporate Communications and Sustainability, Domtar Corporation (Doc. 

#15228) ............................................................................................................... 720

Kentucky Oil and Gas Association (Doc. #16527)............................................. 720

Pike and Scott County Farm Bureaus (Doc. #5519)........................................... 722

Wyoming Farm Bureau Federation (Doc. #14406)............................................ 722

North Dakota Soybean Growers Association (Doc. #14594)............................. 723

Iowa Farmers Union (Doc. #15007)................................................................... 724

Ducks Unlimited (Doc. #11014)......................................................................... 725
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

22

Association of State Floodplain Managers (Doc. #19452)................................. 729

The Association of State Wetland Managers (Doc. #14131) ............................. 731

Center for Rural Affairs (Doc. #15029).............................................................. 732

Western Landowners Alliance (Doc. #15380).................................................... 733

Kansas Natural Resource Council (Doc. #14599).............................................. 735

12.7. EMERGING TECHNOLOGIES OR APPROACHES THAT WOULD IMPROVE JD

EFFICIENCY/ACCURACY ............................................................................................................ 736

SPECIFIC COMMENTS ................................................................................................. 736

Committee on Space, Science, and Technology (Doc. #16386)......................... 736

Governor’s Office – State of Utah (Doc. #16534).............................................. 737

State of Nevada Department of Conservation et al (Doc. #16932) .................... 737

North Dakota Farmers Union (Doc. #16390.1) .................................................. 738

Agribusiness Association of Kentucky (Doc. #18005)....................................... 739

SD1 (Doc. #15140)............................................................................................. 741

Clearwater Watershed District, et al (Doc. #9560.1).......................................... 741

Western Landowners Alliance (Doc. #15380).................................................... 743

Galveston Bay Foundation (Doc. #13835) ......................................................... 744

Tulane Environmental Law Clinic; and Tennessee Clean Water Network; et al. 

(Doc. #15123) ..................................................................................................... 744

Center for Water Advocacy et al. (Doc. #15225) ............................................... 745

Lake County, Illinois Stormwater Management Commission (Doc. #15381) ... 746

Red River Waterway Commission (Doc. #15445) ............................................. 746

12.8. COMMENTS ON PERMITTING EXEMPTIONS .................................................................... 747

SPECIFIC COMMENTS ................................................................................................. 747

National Association of State Departments of Agriculture (Doc. #15389)........ 747

Skamania County Board of Commissioners (Doc. #2469)................................. 747

Hamilton County Engineer’s Office (Doc. #8669)............................................. 748

Board of Supervisors, Imperial County (Doc. #10259)...................................... 749

Nebraska Association of Resources Districts (Doc. #11855)............................. 749

National Association of Conservation Districts (Doc. #12349) ......................... 750

Corporate Communications and Sustainability, Domtar Corporation (Doc. 

#15228) ............................................................................................................... 750

Snell & Wilmer L.L.P. (Doc. #15206)................................................................ 750

Orange County Public Works, Orange County, California (Doc. #14994)........ 751

SD1 (Doc. #15140)............................................................................................. 753

Clearwater Watershed District, et al. (Doc. #9560.1)......................................... 753

Colorado Water Congress Federal Affairs Committee (Doc. #14569)............... 753

The Clean Energy Group Waters Initiative (Doc. #14616)................................ 753

Metropolitan Water District of Southern California (Doc. #14637)................... 754

Exxon Mobil Corporation (Doc. #15044)........................................................... 754

Environmental Defense Fund (Doc. #15352)..................................................... 755

Western Landowners Alliance (Doc. #15380).................................................... 757

Lake County, Illinois Stormwater Management Commission (Doc. #15381) ... 757

K. Mantay (Doc. #15192.1)................................................................................ 758

12.8.1 Current...................................................................................................................... 760

SPECIFIC COMMENTS ................................................................................................. 760
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

23

National Association of State Foresters (Doc. #14636)...................................... 760

Western States Water Council (Doc. #9842)...................................................... 760

Franconia Township (Doc. #8661) ..................................................................... 761

Vulcan Materials Company (Doc. #14642)........................................................ 761

Michigan Farm Bureau (Doc. #10196)............................................................... 762

Fresno County Farm Bureau (Doc. #15085)....................................................... 762

Kitchen Cabinet Manufacturers Association et al. (Doc. #15418)..................... 762

Richland Communities (Doc. #18793) ............................................................... 763

Agribusiness Association of Kentucky (Doc. #18005)....................................... 764

Pike County Highway Department (Doc. #6857)............................................... 765

North Carolina Aggregates Association (Doc. #6938)....................................... 765

Wisconsin Wildlife Federation (Doc. #5468)..................................................... 765

Western Resource Advocates (Doc. #16460)..................................................... 766

12.8.2 New ........................................................................................................................... 766

SPECIFIC COMMENTS ................................................................................................. 766

Office of Advocacy, Small Business Administration (Doc. #7958)................... 766

Committee on Space, Science, and Technology (Doc. #16386)......................... 767

International Erosion Control Association (Doc. #13174) ................................. 767

Department of Public Health and Environment – State of Colorado (Doc. #16342)

............................................................................................................................. 767

Office of the Governor, State of Montana (Doc. #16694).................................. 768

City of Aurora Water Department Administration Office (Doc. #8409)............ 768

San Bernadino County, California (Doc. #16489).............................................. 769

South Big Horn County Conservation District (Doc. #17264)........................... 769

City of Slidell, Louisiana, Planning Department (Doc. #19451)........................ 769

Wyoming County Commissioners Association (Doc. #15434).......................... 770

The United States Conference of Mayors et al. (Doc. #15784).......................... 771

Washington State Water Resources Association (Doc. #16543)........................ 771

Northwest Mississippi Delta Council (Doc. #5611)........................................... 772

North Carolina Water Quality Association (Doc. #12361) ................................ 772

John Deere & Company (Doc. #14136.1) .......................................................... 773

Vulcan Materials Company (Doc. #16566)........................................................ 775

Mississippi Farm Bureau Federation (Doc. #14464).......................................... 776

Florida Crystals Corporation (Doc. #16652) ...................................................... 777

American Farm Bureau Federation (Doc. #16850) ............................................ 777

Montana Stockgrowers Association et al (Doc. #16937) ................................... 777

Jensen Livestock and Land LLC (Doc. #15540) ................................................ 778

Agribusiness Association of Kentucky (Doc. #18005)....................................... 779

NW Colorado Council of Governments Water Quality/ Quantity Committee (Doc. 

#10187) ............................................................................................................... 779

Southeast Florida Utility Council (Doc. #11879)............................................... 780

Upper Trinity Regional Water District (Doc. #15728)....................................... 780

Waterkeeper Alliance et al. (Doc. #16413) ........................................................ 780

Iowa State University of Science and Technology (Doc. #7975)....................... 782

U. S. House of Representatives (Doc. #17474) .................................................. 783
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

24

Committee on Transportation and Infrastructure, U.S. House of Representatives 

(Doc. #18018) ..................................................................................................... 783

O’Neill LLP (Doc. #16559)................................................................................ 784

12.9. SUPPLEMENTAL COMMENTS ON IMPLEMENTATION...................................................... 785

SUMMARY RESPONSE................................................................................................. 785

SPECIFIC COMMENTS ................................................................................................. 786

Jackson County Board of Supervisors (Doc. #1449).......................................... 786

Anonymous (Doc. #3300.1)................................................................................ 786

W. V. Giniecki (Doc. #4262).............................................................................. 788

Mohave County Water Authority (Doc. #4346)................................................. 788

Kimble County Commissioners' Court, Kimble County, Texas (Doc. #4534) .. 788

Council of the Borough of Ferndale, Cambria County (Doc. #4825) ................ 789

L. Banks (Doc. #5554.2)..................................................................................... 789

St. Johns County Board of County Commissioners (Doc. #5598) ..................... 790

Black Hills Corporation (Doc. #6248)................................................................ 790

American Water Company (Doc. #6935)........................................................... 790

Sarasota County Commission (Doc. #7529)....................................................... 792

City of Brea, California (Doc. #7636.1) ............................................................. 793

Michael D. Schiffer (Doc. #7645) ...................................................................... 793

Chenier Plain Coastal Restoration & Protection Authority (Doc. #7976).......... 794

City of St. Marys, Georgia (Doc. #8144)............................................................ 795

Board of Douglas County Commissioners, Castle Rock, CO (Doc. #8145)...... 796

Olivenhain Municipal Water District (Doc. #8596) ........................................... 797

Andy Tilton (Doc. #9604)................................................................................... 798

Mecklenburg County Government, North Carolina Doc. #10946) .................... 798

Minnesota Association of County Agricultural Inspectors (Doc. #10970) ........ 798

Anonymous (Doc. #11350)................................................................................. 798

Board of County Commissioners, El Paso County, Colorado (Doc. #11487).... 799

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

#11587) ............................................................................................................... 800

Norton County Road & Bridge (Doc. #11746)................................................... 801

Anonymous (Doc. #11761)................................................................................. 801

Society for Freshwater Science (Doc. #11783) .................................................. 802

Commissioner’s Court, Collin County, Texas (Doc. #11989)............................ 803

City of Palo Alto, California (Doc. #12714)....................................................... 803

Sitka Economic Development Association (Doc. #13023) ................................ 804

Charlotte County Government (Doc. #13061).................................................... 804

Newmont Mining Corporation (Doc. #13596) ................................................... 804

Colorado Wastewater Utility Council (Doc. #13614) ........................................ 807

D. Fleming (Doc. #13654).................................................................................. 807

Interlocking Concrete Pavement Institute (Doc. #13952) .................................. 808

M. Smith (Doc. #14022)..................................................................................... 808

Plumas County Board of Supervisors (Doc. #14071)......................................... 809

Indiana Pork Advocacy Coalition (Doc. #14410)............................................... 809

Golden Spread Electric Cooperative, Inc., (Doc. #14422) ................................. 810

Hoosier Energy REC, Inc (D0c. #14561)........................................................... 811
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

25

Synagro Technologies, Inc. (Doc. #14565) ........................................................ 811

DMB White Tank, L.L.C. (Doc. #14578)........................................................... 811

Irvine Ranch Water District (Doc. #14774)........................................................ 812

Legislative Council on River Governance (Doc. #14791).................................. 814

Royalty Owners & Educational Coalition (Doc. #14795).................................. 814

The Wildlife Society (Doc. #14899)................................................................... 814

Association of American Pesticide Control Officials (Doc. #14940)................. 815

National Association of County Engineers (Doc. #14981) ................................ 815

Erika Brotzman (Doc. #15010)........................................................................... 816

National Pork Producers Council (Doc. #15023) ............................................... 817

North Carolina Farm Bureau Federation (Doc. #15078).................................... 818

National Association of Counties (Doc. #15081)............................................... 819

Association of Metropolitan Water Agencies (Doc. #15157) ............................ 819

Watershed Watch in Kentucky, Inc. (Doc. #15159)........................................... 820

J. Canfield, Jr. (Doc. #15237)............................................................................. 820

City of Greeley, Colorado, Water and Sewer Department (Doc. #15258)......... 821

Sealaska Corporation (Sealaska) (Doc. #15356) ................................................ 821

North Dakota Office of the Governor, et al. (Doc. #15365)............................... 822

William Schock (Doc. #15394) .......................................................................... 823

Wisconsin Electric Power Company and Wisconsin Gas LLC (Doc. #15407).. 824

National Association of Manufacturers (Doc. #15410)...................................... 824

Calcasieu Parish Police Jury, Louisiana (Doc. #15412)..................................... 826

United States Steel Corporation (Doc. #15450) ................................................. 827

Keweenaw Bay Indian Community (Doc. #15497)............................................ 828

Packaging Corporation of America (Doc. #15515)............................................ 828

Business Council of Alabama (Doc. #15538)..................................................... 829

Brown County Farm Bureau (Doc. #15576)....................................................... 830

K. Ransford (Doc. #15675)................................................................................. 830

City of Jackson, Mississippi (Doc. #15766)....................................................... 830

National Association of State Conservation Agencies (Doc. #15778)............... 831

Martin Marietta (Doc. #16356)........................................................................... 832

Wyoming Department of Environmental Quality (Doc. #16393) ...................... 833

Kentucky Waterways Alliance (Doc. #16581) ................................................... 833

Delaware County Department of Watershed Affairs (Doc. #16936) ................. 834

Cook County, Minnesota, Board of Commissioners (Doc. #17004).................. 835

Arizona Rock Products Association (Doc. #17055)........................................... 835

K. G. Oertel (Doc. #17317) ................................................................................ 839

Middle Snake Regional Water Resource Commission (Doc. #17380)............... 839

Jason Smith, House of Representative, Congress of the United States (Doc. 

#17454) ............................................................................................................... 840

Natural Resources Defense Council and Southern Environmental Law Center 

(Doc. #17477.14) ................................................................................................ 840

W. Stevens (Doc. #17663).................................................................................. 842

L. Schlothauer (Doc. #17946)............................................................................. 843

Warm Springs Watershed Association (Doc. #18019)....................................... 843

Donald Shawcroft (Doc. #18569)....................................................................... 844
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

26

Anonymous (Doc. #18770)................................................................................. 845

Anonymous (Doc. #18801)................................................................................. 845

Hickory Underground Water District 1, Texas (Doc. #18928) .......................... 845

Anonymous (Doc. #18955)................................................................................. 846

City of Olathe Kansas (Doc. #18982)................................................................. 846

Associated Industries of Florida (Doc. #19325)................................................. 847

Wright Soil and Water Conservation District (Doc. #19350)............................. 847

Jil Tracy, State Representative 94th District (Doc. #19518) ............................... 848

Des Moines Water Works (Doc. #19663)........................................................... 849

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

Santa Barbara County, California (Doc. #20491)............................................... 850

Alpine County Board of Supervisors, County of Alpine, California (Doc. #20492)

............................................................................................................................. 851

ATTACHMENTS AND REFERENCES............................................................................................. 852

Topic 12. IMPLEMENTATION ISSUES

Summary Response

The agencies believe the proposed rule will result in increased clarity and certainty regarding the 

identification of “waters of the U.S.” The agencies received many helpful comments on the 

proposed rule which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public. None of the existing procedures, permitting mechanisms, 

efficient permitting tools such as general permits, or activity exemptions under Section 404(f)(1) 

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. Furthermore, the final rule will not 

directly alter the content or implementation of other local, state, or federal mandates as the final 

rule applies solely to the Clean Water Act definition of waters of the U.S.

The rule is not designed to subject any entities of any size to any specific regulatory burden. 

Rather, it is designed to clarify the statutory scope of the “waters of the U.S.” consistent with 

existing regulations and Supreme Court precedent. In developing the rule, the agencies 

considered all relevant implications that will result from the rule implementation including legal, 

economic, and implementation considerations, as well as the resulting effect on the regulated 

public.

The goal of the CWA is to protect the chemical, physical, and biological integrity of our nation’s 

waters. The agencies have been implementing this mission since the inception of the CWA. The 

additional costs that may be incurred as a result of the rule were taken into account during its 

formulation; however, the updated Economic Analysis indicates the benefits of the rule outweigh 

any associated costs placed on the regulated public and on the agencies themselves. The scope 

of regulatory jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

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

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

tributaries. The rule limits CWA jurisdiction only to those types of waters that have a significant 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

27

nexus to downstream (a)(1)-(a)(3) waters, not just any hydrologic connection. It improves 

efficiency, clarity, and predictability for all landowners as well as permit applicants.

The rule only provides a definition for “waters of the U.S.” The rule does not affect the CWA 

statute in which authorization may be required for discharges of dredged and/or fill material into 

waters of the U.S., or other activities in jurisdictional waters of the U.S. such as NPDES permits, 

Section 401 certifications, water quality standards or section 311 requirements which require 

authorization. In addition, the rule does not affect activities that are currently exempt from CWA 

regulation. The rule also does not affect permitting tools such as the use of general permits that 

the Corps implements for expeditious review and efficiency in processing permit applications for 

discharges of dredged and/or fills material into waters of the U.S. The rule improves consistency 

and predictability for all CWA programs and provides needed clarity regarding jurisdictional 

determinations, thus reducing uncertainties and delays. 

The rule does not have an effect on farmers’ ability to make decisions about activities on their 

private lands. The statutory authority of the CWA does not convey to the Federal Government 

any ownership of or property rights in any private lands. Therefore, we do not believe that 

private property will be negatively impacted by the Federal Government as a result of the 

proposed rule. Consistent with current practice, the final rule does not obviate the requirement 

for landowners to operate in accordance Clean Water Act mandates which require landowners to 

be cognizant of potential waters of the U.S. within their property boundaries.

The agencies recognize that the state and local governments have well-defined and long-standing 

relationships in implementing affected CWA programs and these relationships will not be 

altered. This action does not have substantial direct effects on the states, on the relationship 

between the national government and the states, or on the distribution of power and 

responsibilities among the various levels of government. The agencies are not restricting the 

states’ efforts in developing or implementing statewide permits under CWA programs as a result 

of the rule.

The rule does not diminish or in any way detract from the intent and purpose of CWA sections 

101(b) and 101(g) regarding the states’ primary and exclusive authority over water allocation 

and water rights administration, as well as state-federal co-regulation of water quality. The 

agencies worked hard to ensure the rule reflects these fundamental principles.

The agencies understand that the definition of “waters of the U.S.” applies to all CWA programs. 

The agencies modified the final rule from the proposed rule in response to comments received in 

order to ensure unintended effects to those other CWA programs were reduced or eliminated. 

The Economic Analysis provides costs/benefits and predicted change in jurisdiction for all CWA 

programs.

The agencies believe with the clarity and certainty provided in the rule that there will be 

efficiencies gained in making jurisdictional determinations. The Corps will develop the tools 

necessary to assist its staff with the jurisdictional determination process specific to section 404 

during the implementation of the final rule to make the process predictable, efficient, and 

effective. The agencies are developing guidance specific to facilitate effective, consistent, and 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

28

efficient implementation of the final rule once it becomes effective. The agencies strive to 

achieve consistency across the country in all districts and regions in application of the rule for 

jurisdictional determinations. The agencies also recognize that there are variations that occur in 

geography, hydrology, climate, etc., which affect jurisdictional determinations. The initial phase 

of implementing the rule will require education and training for agency staff as well as other 

stakeholders and the regulated public. This training and outreach will be regionally-based to 

ensure appropriate consideration is given to ecoregional variation and to ensure consistent and 

efficient implementation of the rule. 

There are two types of jurisdictional determinations; preliminary and approved jurisdictional 

determinations. Preliminary jurisdictional determinations indicate which waters on a property 

may be waters of the U.S., presume all waters on a property are jurisdictional, are not legally 

binding instruments, and enable a landowner to set aside the issue of jurisdiction and move 

directly into the permit evaluation phase of the process. Preliminary jurisdictional 

determinations cannot be used to decline jurisdiction and are generally more expedient than 

approved jurisdictional determinations. Approved jurisdictional determinations are the official 

Corps determination that jurisdictional “waters of the United States,” or “navigable waters of the 

United States,” or both, are either present or absent on a particular site. An approved JD 

precisely identifies the limits of those waters on the project site determined to be jurisdictional 

under the Clean Water Act/Rivers and Harbors Act. The majority of jurisdictional determinations 

completed by the Corps are preliminary. Not every permit application requires a jurisdictional 

determination. The Corps will continue to provide the option to the landowner for both approved 

and preliminary jurisdictional determinations. There is not expected to be a required timeframe 

for completion of a jurisdictional determination, which can be dependent on a variety of factors 

including climate and weather patterns.

There are appropriate levels of regional variation in implementation of the regulations; however, 

the agencies strive for national consistency. This appropriate regional variation can make it 

appear that there are inconsistencies in program execution. The rule aims to reduce any 

inappropriate inconsistencies and provide a bright line of clarity for the agencies, state partners, 

and the regulated public. The agencies believe the clarity and certainty provided in the rule will 

result in further consistency, while still allowing for regional variation in implementation that 

may be necessary based on regional differences in aquatic resources; for example, the ordinary 

high water mark regional manuals or the regional supplements to the wetland delineation 

manual, both of which are outside the scope of this rulemaking but are related resources.

The rule does not diminish or in any way detract from the intent and purpose of CWA sections 

101(b) and 101(g) regarding the states’ primary and exclusive authority over water allocation 

and water rights administration, as well as state-federal co-regulation of water quality. The 

agencies worked hard to ensure the rule reflects these fundamental principles. The exemptions 

under Section 404(f)(1) of the Clean Water Act, as well as nationwide general permit thresholds 

for impacts, are outside the scope of this rulemaking. This rule does not impact the citizen suit 

provisions under the Clean Water Act.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

29

Specific Comments

National Association of State Foresters (Doc. #14636)

12.1 We recognize that the EPA proposed this new definition in response to direction from the 

Supreme Court of the United States and in hopes of providing more clarity for 

stakeholders. However, we have concerns that the proposal as written will do just the 

opposite and generate uncertainty and complicate existing procedures under the CWA. 

As such, NASF does not support the proposed rule as it currently is drafted and offers 

these comments on ways to improve the portions of the rule that we find particularly 

problematic. (p. 1)

Agency Response: EPA and the Corps have used the feedback we received from 

public outreach efforts as the source of early guidance and recommendations for 

refining the proposed rule. Specifically, stakeholder input received during public 

outreach events in combination with the written comments received during the 

public comment period have reshaped each of the definitions included in the final 

rule, ultimately with the goal of providing increased clarity for regulators, 

stakeholders, and the regulated public to assist them in identifying waters as 

“waters of the United States.”

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

12.2 Please provide detailed metrics related to the jurisdiction this rule claims:

a. How many miles of streams does this rule say the CWA covers?

b. How many miles of shoreline?

c. How many acres of “waters”?

d. How many acres of “wetlands”?

e. Are there any additional types of waters that may not be accounted for by those 

numbers? If so please provide appropriate metrics.

Agency Response: The rule does not project the miles or acres of waters that are 

or are not jurisdictional. That is outside the scope of the rulemaking. There is no 

existing ground-truthed wetland, stream, or water body mapping that 

comprehensively covers the entire area and thus no source of data from which to 

determine such metrics.

12.3 f. Does the EPA and CORPS have the resources to evenly and fairly enforce this rule 

across the entire country?

g. How many people enforce the CWA? (p. 9)

Agency Response: Since the rule provides greater clarity and reduces the extent 

of waters that may be jurisdictional based on a case-specific evaluation of significant 

nexus, the agencies do not anticipate a demand for increased resources for making 

jurisdictional determinations. Ideally, the greater clarity will also reduce the 

number of enforcement actions resulting from ignorance about regulatory 

requirements. State, tribal, and local governments have well-defined and 

longstanding relationships with the Federal government in implementing CWA 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

30

programs. CWA enforcement and agency funding/staffing are, however, outside the 

scope of this rule.

12.4 Has the EPA ever used drones for identification of “waters,” surveillance, enforcement or 

other purposes? Can you commit to that the EPA will never use drones of any type over 

private property? (p. 10)

Agency Response: This question is outside the scope of the rulemaking which is 

limited to defining “waters of the U.S.” Although EPA has access to various types of 

remote aerial imagery, EPA is not aware of drones being used for any purpose by 

the EPA. Future decisions to use or refrain from using developing technologies is 

beyond the scope of this rule and, accordingly, it incorporates no changes 

addressing such decisions.

12.5 How does EPA intend to regulate activity involving thousands of dry washes and arroyos 

in the West? Everyday activities like maintaining a private road by backfilling a 

persistent washout or replacing a culvert for a stream could require a permit. This seems 

to raise safety concerns if roads can’t be maintained without first obtaining permits. (p. 

12)

Agency Response: By clarifying the definition of “tributary,” the agencies’ intend 

to make the determination of jurisdictional waters independent of local 

nomenclature, such as “dry wash” and “arroyo.” Waters that flow in response to 

seasonal or individual precipitation events are jurisdictional tributaries if they 

contribute flow, either directly or indirectly, to a traditional navigable water, an 

interstate water, or the territorial sea, and they possess the physical characteristics 

of a bed, banks, and ordinary high water mark, which may be spatially 

discontinuous. Where such features do not contribute flow downstream and/or do 

not have a bed, banks, and ordinary high water mark, they are not jurisdictional 

tributaries. The rule does not change the fact that discharges of backfill, fill and/or 

excavated material into jurisdictional waters may require a permit under Section 

404 of the Clean Water Act. However, many activities associated with routine or 

emergency road maintenance or repair have been and continue to be either exempt 

from such permitting (see, e.g., 33 C.F.R. §§323.4(a)(2) and 323.4(a)(6)), already 

authorized by Corps of Engineers nationwide permit #3, or eligible for abbreviated 

emergency permitting procedures (pursuant to 33 C.F.R. §325.2(e)(4)).

12.6 Has the agency thought through the practical realities associated with what it is 

proposing? For example, how will line crews, construction crews, and the like string or 

replace power lines and poles, repair substations, etc. in the midst of all these 

“tributaries” without a permit? Please provide a detailed legal rationale and any 

supporting examples or precedent. (p. 12)

Agency Response: See the Technical Support Document. The rule does not 

change permitting requirements with regard to discharges of fill and other 

pollutants into jurisdictional tributaries and makes no change from the existing rule 

with regard to tributaries being jurisdictional. The rule does provide greater clarity 

and certainty by defining “tributary” and by requiring jurisdictional tributaries to 

possess the physical characteristics of a bed, banks, and an ordinary high water 

mark. Many activities associated with installation, replacement, or repair of utility 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

31

lines, poles, and substations are already authorized by Corps of Engineers 

nationwide permit #12; maintenance and emergency reconstruction of currently 

serviceable structures may be exempt from permitting pursuant to 33 C.F.R. 

§323.4(a)(2).

12.7 If people honestly don’t know that they need to get a permit, can they still be subject to 

penalties for violations of the Clean Water Act? (p. 12)

Agency Response: Enforcement is outside the scope of this rule. That said, the 

factors for determining a penalty are identified in Sections 309(d) and (g). The 

degree of culpability is a key factor in determining penalties under the Clean Water 

Act.

12.8 What jurisdiction does the Forest Service have under the Clean Water Act beyond 

assuring, as a land manager, that its employees aren’t violating the Act? (p. 13)

Agency Response: The U.S. Forest Service does not have any “jurisdiction” under 

the Clean Water Act, the regulatory authority of which rests only with the U.S. 

Army Corps of Engineers (Corps) and EPA, as well as any states or tribes to which 

EPA has delegated authority. As referenced, the Forest Service bears the same 

responsibility of any land manager—or landowner or project proponent—for 

complying with the Clean Water Act, to include requirements associated with 

permits issued by the Corps, EPA, or a delegated state, as well as requirements 

associated with exemptions from permitting requirements, such as the Clean Water 

Act Section 404(f) exemptions for discharges of dredged or fill material resulting 

from normal silviculture activities (see 33 C.F.R. §323.4(a)(1)) and for construction 

or maintenance of forest roads (see 33 C.F.R. §323.4(a)(6)). The latter, for example, 

requires design, construction, and maintenance of road crossings such that they not 

disrupt the migration or other movement of aquatic species inhabiting the water 

body. In addition, as a federal agency, the Forest Service also bears specific 

responsibilities for the protection of wetlands and management of floodplains under 

Executive Orders No. 11990 and 11988, respectively.

12.9 Has EPA consulted with any other federal agencies that have administrative 

responsibilities under the Clean Water Act? Please submit all written input that you 

solicited or received from other agencies thought this entire rulemaking process. (p. 13)

Agency Response: Under Executive Order 12866 (58 FR 51735, October 4, 1993), 

this action is a “significant regulatory action.” Accordingly the EPA and the Corps 

submitted this action to the Office of Management and Budget (OMB) for review 

and any changes made in response to OMB recommendations have been 

documented in the docket for this action. 

12.10 Are all enforcement decisions left up to EPA, the Corp, or a State Regulator?

a. If EPA says an individual is violating the Clean Water Act, who bears the burden of 

proof? Does the EPA have to first prove that the creek in your back yard is a “water” and 

therefore covered? Or does the homeowner bear the burden of proving that the water 

should not be under EPA jurisdiction?

b. If fines were levied for an alleged violation, when do they begin to accrue? After EPA 

proves its case? After EPA sends a notice to the homeowner? Or do they potentially 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

32

start at the time of the violation-before the homeowner even knows that the EPA or the 

Corps is asserting jurisdiction?

c. Can a neighbor or environmental group sue EPA to force the Agency to enforce against 

a person? Has this ever happened before? Please provide detailed statistics for all 

instances of third party complaints.

d. Who currently uses these third-party enforcement mechanisms?

e. Who pays for the legal fees when a third-patty sues EPA to enforce against someone?

f. If a court ultimately vindicates the accused, detail all remunerations paid to make the 

aggrieved accused whole. Where does this money come from?

g. Do third party complainants also compensate EPA and DOJ for resources the 

government has expended in defense of these suits? (p. 14-15)

Agency Response: While the decision to pursue an enforcement action rests with 

EPA, the Corps, or a delegated state or tribe, there are five elements of proof for 

which the responsible adjacency bears the burden, one of which is that the 

discharge occurred into a water of the United States. Clean Water Act Section 309 

establishes that penalties may accrue for each day of violation. For purposes of 

calculating a penalty, the violation begins on the day of the unauthorized discharge 

into waters of the United States EPA applies the statutory factors identified in 

Section 309. A citizen can only sue the EPA under the citizen suit provisions for 

failure to perform a non-discretionary duty. Enforcement is discretionary. A 

citizen can take action against a violator directly under the citizen’s suit provisions. 

Various entities use the citizen suit provisions. A third party cannot sue EPA to 

take enforcement actions. If a party sued is vindicated in court, they can seek 

attorney’s fees against the party suing them. If the government is sued, and the 

courts finds in favor of the government, the government could seek fees from the 

party that filed the suit.

12.11 If certain interpretations are beyond EPA and Corps intent, then how will you prevent 

third parties from suing to force a more expansive interpretation? (p. 15)

Agency Response: The clarity provided by the new and refined definitions should 

minimize the potential for misinterpretation of the rule language. In addition, the 

agencies have provided extensive discussion of rationale and intent in the preamble, 

Technical Support Document, and this document. The agencies do not, however, 

have the authority to “prevent” litigation seeking either a more expansive or a 

narrower interpretation of jurisdictional waters.

Illinois House of Representatives (Doc. #7978)

12.12 Most egregious is the fact that the rule throws into confusion extensive state regulation 

under various CWA programs. Implementation of this rule will have significant 

implications on most if not all of the 14 Statewide Permits authorized and under the 

administration of the Division of Water Resource Management, Illinois Department of 

Natural Resources. (p. 2)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

33

Agency Response: See the Final Summary of the Discretionary Consultation and 

Outreach to State, Local, and County Governments for the Revised Definition of 

Waters of the United States which is available in the docket for this rule.

State of Iowa Office of the Governor (Doc. #8377)

12.13 NPDES general permitting may be impacted by. This would result in much heavier 

workloads and resource demands for Iowa’s counties and the State – the rule as currently 

proposed would be an unfunded mandate on local, state, and private sector entities. 

Further, stakeholders are concerned that collaborative relationships, such as the 

relationship between the Natural Resources Conservation Service (NRCS) personnel and 

land owners would be jeopardized, as NRCS personnel would shift their focus from the 

promotion of best practices to the enforcement of Federal permits. Such a chilling effect 

would have negative consequences on advancing water quality efforts.

If the scope of the “waters of the U.S.” expands to include all intermittent and ephemeral 

waters, this would appear to expand the application of the rebuttable presumption that 

CWA section 101(a)(2) uses to apply to these waters. If so, Iowa may have 46,000 

intermittent and ephemeral stream miles which are suddenly presumed to be fishable and 

swimmable after EPA has previously approved a determination that they are not. This 

would create an incredible burden on our Water Quality Standards, NPDES Permitting, 

Water Quality Assessment (305b), Impaired Waters Listing (303d), and Total Maximum 

Daily Load (TMDL) programs in Iowa and across the country. Permits would be delayed 

for years while use attainability analyses were completed and streams re-designated, 

often back to their current designations. (p. 11)

Agency Response: The rule does not create any unfunded mandate under Title II 

of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), creates no 

enforceable duty on any state government, and contains no regulatory requirements 

that might significantly or uniquely affect small governments. Similarly, the rule 

creates no new or expanded enforcement responsibility for the NRCS. Concern 

related to the NRCS role in implementation of the Interpretive Rule is moot due to 

its withdrawal. The rule only provides a definition for “waters of the U.S.” 

Implementation of the rule is outside the scope of the rulemaking. That said, the 

scope of regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries. The Science Report and 

Science Advisory Board review confirmed that tributaries, including not only 

perennial, but also intermittent and ephemeral, streams, are chemically, physically, 

and biologically connected to downstream waters and affect the integrity of those 

waters (see the Technical Support Document). While the rule eliminates the need 

for case-specific evaluation of the significant nexus of ephemeral tributaries, it also 

includes a definition clarifying that, to be jurisdictional, tributaries must not only 

contribute flow, either directly or indirectly, to downstream traditional navigable 

waters, interstate waters, or the territorial seas, but must also exhibit the physical 

characteristics of a bed, banks, and ordinary high water mark. Given the first 

requirement—contribution of flow to downstream jurisdictional waters—the 

agencies disagree that the rule increases the number of facilities that would be 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

34

subject to NPDES permitting, because a discharge to a tributary would, by 

definition, also result in a discharge to a downstream jurisdictional water, meaning 

that the facility making such discharge is already subject to NPDES requirements.

Georgia Department of Agriculture (Doc. #12351)

12.14 Responsible policies for the conservation of our water resources are a priority for GDA. 

However, the impending regulatory burdens that our communities face under the revised 

rule severely outweigh its benefits. The elimination of water pollution should be 

considered a time-intensive objective that should be addressed in consideration of 

financial and social costs. Steps should be taken in moderation. (p. 3)

Agency Response: 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 to protect and conserve natural resources and water quality on 

agricultural lands. Consistent with Executive Orders 13563 and 12866, the agencies 

also conducted an economic analysis to provide the public with information on the 

potential indirect costs and benefits associated with this definitional rule. The 

agencies’ analysis indicates that indirect incremental benefits exceed indirect 

incremental costs.

Riverside County Farm Bureau (Doc. #12729)

12.15 Of (...) concern is the inconsistency that would be created by regional offices having 

discretion to interpret and apply the vague definitions in the proposed rule – “uplands,”

“floodplain,” “subsurface connection,” “waters” and “waste treatment.” This would 

create confusion and additional burdens, require more federal permits, and increase 

possible litigation for both state permit programs and individual landowners. (p. 1)

Agency Response: To provide greater clarity, the agencies deleted the term 

“uplands” from the rule in response to comments such as this one. Similarly, the 

agencies also eliminated subsurface hydrologic connectivity as a basis for adjacency. 

In addition, EPA has adopted the Corps of Engineers’ definitions of “ordinary high 

water mark” and “high tide line” to increase understanding of the lateral and 

upstream extent of non-wetland waters. With regard to waste treatment systems, 

the agencies proposed and made no substantive changes to the previous exclusion 

for such waters, so comments on that issue are outside the scope of the rule, and the 

final rule does not reflect such comments.

New Mexico Department of Agriculture (Doc. #13024)

12.16 Though the inclusion of tributaries is not a new jurisdictional feature of the definition of 

Waters of the U.S., the definitional inclusion of ditches is problematic for the Southwest’s 

agricultural community. (p. 5)

Agency Response: 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 to protect and conserve natural resources and water quality on 

agricultural lands. The final rule continues the current policy of regulating ditches 

that are constructed in tributaries or are relocated tributaries, or that science 

clearly demonstrates are functioning as a tributary. These waters affect the 

chemical, physical, and biological integrity of downstream waters. The rule further 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

35

reduces existing confusion and inconsistency regarding the regulation of ditches by 

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

precipitation and most roadside ditches, thereby appropriately reducing regulatory 

burdens.

12.17 The Agencies have not been consistent in the predicted changes of jurisdiction as a result 

of this proposed rule. The Agencies have variously said that jurisdiction will increase,1 2

decrease3and will not change.4 NMDA cites this inconsistency as proof of the ambiguity 

created by the creation of the other waters category among other problems with the 

wording of this proposed rule. 

The source of this confusion is that this category would require a prescribed action for 

every jurisdictional determination (i.e., the definition requires determinations to be made 

on “a case-specific basis.”). Currently, there is no such category that requires as 

extensive attention for every determination. This change would clearly result in less 

consistency and less clarity for waters that would belong in the new other waters 

category. One way to reduce uncertainty and increase clarity would be to provide a 

decision tree tool that demonstrates to the regulated public how jurisdictional 

determinations are made so that landowners and businesses can proactively become 

involved in the process.

Agency Response: Executive Order (E.O.) 13563, signed by President Obama in 

2011, requires the regulatory system to “promote predictability and reduce 

uncertainty” and “identify and use the best, most innovative, and least burdensome 

tools for achieving regulatory ends.”5 Therefore, it is important to increase clarity 

in actions taken by the Agencies. Currently, EPA conducts jurisdictional 

determinations based on the CWA itself, alongside three key Supreme Court 

precedents, which is confusing to the regulated public. The intention of the new 

definition of Waters of the U.S. was to increase clarity by combining the previous 

definition of Waters of the U.S. with these interpretations from the Supreme Court.

12.18 However, the language in the proposed definition, for reasons listed in sections above, 

may, in fact, reduce clarity and cause confusion and frustration among regulated 

stakeholders. (p. 14-15)

Agency Response: The agencies have made extensive changes to reduce ambiguity 

and increase clarity about jurisdiction beyond traditional navigable waters, 

interstate waters, the territorial seas, tributaries, adjacent waters, and 

 

1 U.S. Environmental Protection Agency and U.S. Army Corps of Engineers. “Economic Analysis of Proposed 

Revised Definition of Waters of the U.S.,” March 2014. http://www2.epa.gov/sites/production/files/2014-

03/documents/wus_proposed_rule_economic_analysis.pdf

2 The Brattle Group. “Review of 2014 EPA Economic Analysis of Proposed Revised Definition of Waters of the 

U.S.” May 15, 2014. Available at: http://www.brattle.com/news/-and-knowledge/publications/archive/2014. 

3

Stoner, Nancy. “Setting the Record Straight on Waters of the US.” EPA Connect, July 7, 2014.

http://blog.epa.gov/epaconnect/author/nancystoner/.

4 Environmental Protection Agency. “Clean Water Act Exclusions and Exemptions Continue for Agriculture,”

http://www2.epa.gov/sites/production/files/2014-03/document/cwa_ag_exclusions_exemptions.pdf.

5 Executive Order 13563: Improving Regulation and Regulatory Review. Signed January 18, 2011. 

http://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

36

impoundments. These changes include specifying five specific types of waters in 

certain parts of the country that are, by rule, similarly situated for purposes of 

significant nexus evaluations. The rule also incorporates a geographic limit—4,000 

feet—on jurisdiction over other waters. In addition, while the rule does not provide 

a decision tree for significant nexus evaluations, it does provide specific direction for 

determining which waters are similarly situated, defines the region in which the 

significant nexus evaluation will assess similarly situated waters together, specifies 

the functions to assess as part of that evaluation, and includes a detailed discussion 

of the process for considering the significance of the nexus. The agencies believe 

that the rule meets the goals of E.O. 13563.

Alaska State Legislature (Doc. #13566)

12.19 Additional expenses will occur because of CWA Section 404 permitting, permitting for 

development/construction activities, additional requirements for oil discharge and 

facilities needing to develop spill prevention, control and countermeasure plans. 

Information gaps and uncertainty lead many in the Senate to question whether the 

agencies alleged “calculated benefits” outweigh the burden imposed to our constituents. 

(p. 4)

Agency Response: This rule establishing the definition of “waters of the U.S.,” by 

itself, imposes no direct costs. The potential costs and benefits incurred as a result 

of this rule are considered indirect, because the rule involves a definitional change to 

a term that is used in the implementation of CWA programs. Entities currently are, 

and will continue to be, regulated under programs that protect “waters of the 

United States” from pollution and destruction. Each of these programs may 

subsequently impose direct or indirect costs as a result of implementation of their 

specific regulations. While the rule imposes no direct costs, the agencies prepared 

an economic analysis for informational purposes. In preparing the economic 

analysis to accompany the final rule, the agencies considered what should be the 

appropriate baseline for comparison. The existing regulations represent one 

appropriate baseline for comparison, and because the final rule is narrower in 

jurisdictional scope than the existing regulations, there would be no additional costs 

in comparison to this baseline. 

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

12.20 Our State [...] may choose to protect water quality in such broad areas as these in a 

different fashion than would be imposed on us by the “one size fits all” requirements of 

the CWA as implemented by your agencies. Hence, under your proposal, we lose the 

ability to fashion our own remedies on lands and waters that are truly remote from 

traditional navigable waters, a result that violates Congress’ expressed intent in enacting 

the CWA as well as the pronouncements of the U.S. Supreme Court. (p. 4)

Agency Response: EPA and the Corps recognize that the establishment of “bright 

line” thresholds in the rule does not in any way restrict states from considering state 

specific information and concerns, as well as emerging science to evaluate the need 

to more broadly protect their waters under state law. The CWA establishes both 

national and state roles to ensure that states’ specific-circumstances are properly 

considered to complement and reinforce actions taken at the national level. The 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

37

agencies are committed to working with states to more closely evaluate state-specific 

circumstances that may be present across the country and, as appropriate, 

encourage states to develop rules that reflect their circumstances and emerging 

science to ensure consistent and effective protection for waters in the states. As is 

the case today, nothing in this rule restricts the ability of states to more broadly 

protect state waters. 

Illinois Farm Bureau (Doc. #14070)

12.21 As proposed, the WOTUS rule fails to provide any clarity or predictability for farmers. It 

raises serious practical concerns with regard to its direct implementation by EPA and the 

Corps; its impact on the long-standing relationship between farmers and the U.S. 

Department of Agriculture; and on the ability of farmers to manage their land and grow 

the feed, food, fiber and fuel that are essential to America’s economy. Finally, the rule 

will have significant direct impacts in areas well beyond the scope of the proposal or the 

jurisdiction of EPA or the Corps. These include, but are not limited to, decisions on 

which crops to plant and which fertilizers and pesticides are best for those crops in light 

of ever-changing environmental and marketplace conditions; farmers’ ability to access 

credit and their relationship with bankers and lenders; and the nationalization of what 

have always been local decisions on the use of private lands. It also likely will subject 

farmers across the country to abusive activist lawsuits that benefit neither the 

environment nor local economies. (p. 2)

Agency Response: 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 to protect and conserve natural resources and water quality on 

agricultural lands. To that end, the rule establishes that not only are normal 

farming, ranching, and silviculture activities exempt from Section 404 permitting 

requirements, but also that wetlands, ponds, and other waters in use for those 

activities will no longer be jurisdictional by rule as “adjacent” waters; that ditches 

with only ephemeral flow are jurisdictional only where they are rerouted or altered 

streams; and that neither lawfully constructed grassed waterways nor groundwater 

directed through subsurface drainage systems such as tile drains are jurisdictional. 

It also retains the previous exclusion for prior converted croplands and codifies the 

previously uncertain exclusions for areas that are wetland only due to irrigation and

for lakes and ponds created in dry land that have a primarily agricultural use such 

as stock watering, irrigation, or rice growing. In contrast, the rule does not add new 

categories of waters that have not been jurisdictional before. Moreover, consistent 

with Executive Orders 13563 and 12866, the agencies also conducted an economic 

analysis to provide the public with information on the potential indirect costs and 

benefits associated with this definitional rule. The agencies’ analysis indicates that 

indirect incremental benefits exceed indirect incremental costs. The EPA cannot 

predict or control litigation.

12.22 There also is the uncertainty and potential liability from the likelihood that farmers will 

face citizen suits alleging that drainage features on their farms are, in fact, tributaries. 

Those suits will be able to claim, following the logic of the proposed rule, that such 

features not only are directly WOTUS, but that the agricultural fields surrounding them 

have a “significant nexus” to a WOTUS and are, therefore, critical to the “chemical, 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

38

physical and biological integrity” of the nation’s jurisdictional waters. Further following 

the logic of the proposed rule and the structure of the CWA, these suits also likely will 

claim that such drainage features require their own CWA “water quality standards,” that 

they must be “assessed” to determine whether they are “attaining” their “designated use”

and if “impaired,” must have a “TMDL” applied to them. Setting aside, for a moment, 

whether such suits have any legal merit, the costs to farmers to defend against such 

claims, merited or otherwise, would be enormous. Altogether, of course, this will 

fundamentally alter the manner in which farmers farm, removing significant tools farmers 

have used to make America the world’s leading agricultural producer. It also will change 

how lenders assess potential risk, both from direct litigation and potential enforcement 

actions, as well as from crop failures because of the lack of flexibility that farmers will 

have to address the impacts of constantly changing weather patterns on their crops and 

animals. (p. 2-3)

Agency Response: The rule promulgates a definition of “tributary” clarifying

that, to be jurisdictional, tributaries must not only contribute flow, either directly or 

indirectly, to downstream traditional navigable waters, interstate waters, or the 

territorial seas, but must also exhibit the physical characteristics of a bed, banks, 

and ordinary high water mark. The rule does not change the jurisdictional status of 

perennial and intermittent streams that flow through agricultural areas. It does

establish that ephemeral streams are no longer subject to case-specific significant 

nexus evaluation, because the Science Report and Science Advisory Board review 

confirmed that they are chemically, physically, and biologically connected to 

downstream waters and affect the integrity of those waters. However, the rule also 

clarifies that ditches with only ephemeral flow are not jurisdictional unless they are 

rerouted or altered streams and that neither lawfully constructed grassed 

waterways nor groundwater directed through subsurface drainage systems such as 

tile drains are jurisdictional. The rule also establishes that wetlands, ponds, and 

other waters in use for normal farming, ranching, and silviculture activities are not 

jurisdictional by rule as “adjacent” waters. Such waters could be jurisdictional if 

they, either alone or in combination with similarly situated waters in the region, 

have a significant nexus to a nearby traditional navigable water, interstate water, or 

territorial sea, and the contribution of flow via a jurisdictional tributary or nonjurisdictional conveyance would be a factor in the significant nexus evaluation. It is 

important to note that the significant nexus assessment applies only to the integrity 

of traditional navigable waters, interstate waters, or the territorial seas, rather than 

to other jurisdictional waters such as tributaries, and that it considers only wetlands 

and other waters, not all agricultural fields.

Commonwealth Pennsylvania Department of Agriculture (Doc. #14465)

12.23 Pennsylvania is not experiencing the purported confusion that is one of the drivers for the 

rule. Our state law jurisdiction is common-sense in application and does not generate 

confusion. As the foundation of our delegated NPDES program and the basis for the 

ACOE’s Pennsylvania State Programmatic General Permit, our state law based programs 

are effective. Clarification or expansion of federal CWA jurisdiction is not needed from 

Pennsylvania’s perspective. (p. 3)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

39

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. Chief Justice Roberts’ concurrence in Rapanos underscores the value of 

this rulemaking effort. In the final rule, the agencies are responding to those 

requests from across the country to make the process of identifying waters protected 

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

the law and peer-reviewed science. Nothing in this rule limits or impedes any 

existing or future state efforts to further protect their waters. In fact, providing 

greater clarity regarding what waters are subject to CWA jurisdiction will reduce 

the need for permitting authorities, including states with authorized section 402 and 

404 CWA permitting programs, to make jurisdictional determinations on a casespecific basis.

12.24 The proposed rule will have direct and substantial effects on other state programs, such 

assoil conservation, nutrient management, pesticide regulation, etc. Examples include the 

following:

State conservation programs that stress edge-of-field practices to limit flooding, 

contaminated runoff and soil erosion could be adversely affected if in-field conveyances 

are deemed WOTUS under one of the new categories or through BPJ determination of a 

“significant nexus.” Farm Bill stewardship programs administered at the state level will 

have to be evaluated to properly embrace the expansion of jurisdictional waters under this 

proposed rule. 

State pesticide programs and regulations will need to be reevaluated under the proposed 

WOTUS rule. Some labeled uses of pesticide products could be jeopardized by the 

proposed federalization of ephemeral conveyances and ditches; for example, when 

farmers, natural resource managers and others seek to use terrestrial pesticides with labels 

that state “do not apply to water” or require no-spray setbacks from jurisdictional waters 

to avoid potential spray drift. Confusion over what are federal “waters” may expose pestcontrol operators to legal uncertainty under CWA and/or FIFRA, and threaten effective 

pest management in certain topographies. (p. 6)

Agency Response: The final rule reflects the intent of the agencies to improve 

clarity over what waters are jurisdictional and to minimize potential regulatory 

burdens on the nation’s agriculture community, and recognizes the work of farmers 

to protect and conserve natural resources and water quality on agricultural lands. 

With regard to in-field conveyances, the rule promulgates a definition of “tributary” 

clarifying that, to be jurisdictional, tributaries must not only contribute flow, either 

directly or indirectly, to downstream traditional navigable waters, interstate waters, 

or the territorial seas, but must also exhibit the physical characteristics of a bed, 

banks, and ordinary high water mark. It also clarifies that ditches with only 

ephemeral flow are not jurisdictional unless they are rerouted or altered streams 

and that neither lawfully constructed grassed waterways nor groundwater directed 

through subsurface drainage systems such as tile drains are jurisdictional. Finally, 

the rule provides specific direction for conducting significant nexus evaluations, 

including a definition of “significant nexus” and descriptions of how to determine 

which waters are similarly situated, how to identify the region in which the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

40

significant nexus evaluation will assess similarly situated waters together, and which 

functions to assess as part of that evaluation. See the Final Summary of the 

Discretionary Consultation and Outreach to State, Local, and County Governments 

for the Revised Definition of Waters of the United States which is available in the 

docket for this rule. 

State of Oklahoma (Doc. #14625)

12.25 It is telling that the preeminent cases driving the Agencies’ decision to revise the 

WOTUS rule involve improper application of CWA authority under Section 404, yet the 

agency charged with primary responsibility for implementing this Section has been 

noticeably in the background or completely absent from the discussions that have taken 

place since the proposed rule’s release. Interestingly, it is the States that assign 

designated uses of regulated waters and the criteria to protect those uses under Section 

303 of the CWA, as well as work with watershed stakeholders to reduce nonpoint source 

impacts to water quality under Section 319. Under Section 401 of the CWA, it is the 

States that review Federal actions and certify whether those actions will meet State water 

quality standards. Under Section 402 of the CWA, Oklahoma and forty-five other States 

implement the NPDES permitting program. Yet under Section 404 of the CWA, only 

two States implement the dredge and fill permitting program. Perhaps the Agencies’

efforts would be better spent working with Corps of Engineers Divisions and Districts in 

order to avoid the misapplication of WOTUS protections that ultimately led to Supreme 

Court decisions in Bayview Homes, SWANCC and Rapanos that resulted in the confusion 

your Agencies are trying to address in this action. (p. 3)

Agency Response: EPA took the lead in developing the rule because the agency’s 

responsibilities related to waters of the United States are far broader than those of 

the Corps of Engineers. However, because, as noted, the Corps plays a substantial 

role in implementation of Section 404 of the Clean Water Act, EPA worked very 

closely with them in the rule’s development since well before publication of the 

proposal. Interagency coordination has extended to evaluating and responding to 

comments and will continue into the outreach, training, and implementation phases 

as the rule takes effect.

12.26 Instead of focusing on a more effective, efficient way to address disparate decisions by 

the Corps of Engineers in implementing Section 404, we fear this rulemaking will create 

additional disorder in implementing Sections 303, 319, 401 and 402 where none exists 

currently. Despite the Agencies’ stated intent to define more clearly the extent of 

WOTUS jurisdiction, the already fuzzy line of jurisdiction has been shifted without 

making the line any less fuzzy. We and most other States have learned to adapt, 

overcome confusion, and succeed in restoring water quality through our delegated 

authorities to implement Section 303, 319, 401 and 402 programs. However, this effort 

to fix problems that really only exist within Section 404 authorities will have 

repercussions in the other, more settled programs that States are largely responsible to 

implement. Rather, we suggest a national priority be placed on providing more clear 

guidance and training to Corps of Engineers Divisions and Districts on how to uniformly 

apply the provisions of Section 404. If coupled with deference to each State on WOTUS 

delineation that parallels the deference already shown to States on Section 401 

certifications, we believe confusion and litigation can be dramatically reduced. (p. 3)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

41

Agency Response: It is the agencies’ intent that implementation of the rule will 

include interagency training of field staff and, if necessary, development of 

additional guidance to the field. The rule also reflect an intent to clarify jurisdiction 

to reduce confusion and the potential for misinterpretation. The agencies also 

recognize that, in establishing “bright line” thresholds for tributary, adjacent, and 

case-specific jurisdictional waters, we are carefully applying the available science. 

As such, the agencies will work with states to evaluate more closely state-specific 

circumstances and, as appropriate, encourage states to develop rules that reflect 

their circumstances and emerging science to ensure consistent and effective 

protection for waters in the states. As is the case today, nothing in this rule restricts 

the ability of states to more broadly protect state waters. However, given the 

national applicability of the federal laws that address waters of the United States, it 

is necessary to establish a single, national definition thereof, rather than defer to 

each state for its own definition.

North Carolina Department of Agriculture and Consumer Services (Doc. #14747)

12.27 While EPA and USACE have stated that they intend to implement narrow interpretations 

of the proposed rule, there are citizen groups and individuals that could sue seeking 

broader interpretations of jurisdiction in the courts, resulting in many more waters 

coming under jurisdiction. This is another reason why the rule must be withdrawn or 

revised in order to clearly state which waters are under jurisdiction. (p. 4)

Agency Response: EPA and the Corps have used the feedback we received on the 

proposed rule both to identify more clearly the categories of jurisdictional waters 

and non-jurisdictional features and to clarify the definitions and concepts that apply 

to them.

12.28 In addition to exposure of private landowners to enforcement, an expansion of CWA 

jurisdiction, combined with confusion related to the Interpretive Rule, could potentially 

lead to a reduction in the implementation of conservation practices on agricultural lands. 

Landowners may avoid the use of conservation practices if they are concerned about 

potential permitting issues. Agricultural conservation practices are major factors in 

nutrient reduction strategies for several water bodies in North Carolina, including the 

Neuse and Tar-Pam river basins. A reduction in conservation practice implementation 

will delay cleanup of these vital water resources in North Carolina. (p. 5)

Agency Response: By more clearly defining jurisdictional waters, including 

“bright line” thresholds for tributaries, adjacent waters, and case-specific 

jurisdictional waters, the rule should reduce the likelihood of inadvertent 

unauthorized activities resulting from confusion about jurisdiction. In addition to 

adding the thresholds, the rule also establishes that not only are normal farming, 

ranching, and silviculture activities exempt from Section 404 permitting 

requirements, but also wetlands, ponds, and other waters in use for those activities 

will no longer be jurisdictional by rule as “adjacent” waters; that ditches with only 

ephemeral flow are jurisdictional only where they are rerouted or altered streams; 

and that neither lawfully constructed grassed waterways nor groundwater directed 

through subsurface drainage systems such as tile drains are jurisdictional. The rule 

also retains the previous exclusion for prior converted croplands and codifies the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

42

previously uncertain exclusions for areas that are wetland only due to irrigation and 

for lakes and ponds created in dry land that have a primarily agricultural use such 

as stock watering, irrigation, or rice growing. In contrast, the rule does not add new 

categories of waters that have not been jurisdictional before. Finally, withdrawal of 

the Interpretive Rule also eliminates confusion associated with it.

South Carolina Forestry Commission (Doc. #14750)

12.29 Not only does the proposed rule have the potential to impact forest managers and timber 

harvesters, but it also could be detrimental to the forest landowner. Site preparation and 

tree planting will be affected due to a more limited use of herbicides for vegetative 

control. Mechanical methods of site preparation for planting pines will be subject to 

greater scrutiny, especially in marginally wet areas, resulting in fewer acres of productive 

forestland. Expanded jurisdiction could also negatively a property values giving 

landowners less options for forest management and limiting them in their abilities to use 

their land as they desire. (p. 2)

Agency Response: The rule does not add new categories of waters that have not 

been jurisdictional before. Instead, the rule establishes that wetlands, ponds, and 

other waters in use for normal silviculture activities are not jurisdictional as 

“adjacent” waters; that ditches with only ephemeral flow are jurisdictional only 

where they are rerouted or altered streams; and that neither lawfully constructed 

grassed waterways nor groundwater directed through subsurface drainage systems 

such as tile drains are jurisdictional. In addition, the rule also retains the previous 

exclusion for prior converted croplands and codifies the previously uncertain 

exclusions for areas that are wetland only due to irrigation and for lakes and ponds 

created in dry land that have a primarily agricultural use such as stock watering, 

irrigation, or rice growing. Finally, the rule makes no change to the existing 

exemptions under Section 404(f) of the Clean Water Act for normal silviculture 

activities and, instead, establishes that wetlands and other waters under such use 

are not jurisdictional by rule as “adjacent” waters, but only if a case-specific 

evaluation determines—based on detailed direction provided in the rule—that those 

waters have a significant nexus to the integrity of a nearby traditional navigable 

water, interstate water, or territorial sea.

Office of Water Management, Pennsylvania Department of Environmental Protection (Doc. 

#14845)

12.30 Overcoming structural and authority limitations of the Clean Water Act through the 

revision of the definition of “Waters of the United States” is not appropriate. 

Pennsylvania recognizes that the challenges in protecting water resources have evolved 

since passage of the Clean Water Act in 1972. However, trying to address the problems 

of 2014 (which are largely wet weather driven and/or are associated with nonpoint 

sources) by changing the definition of “Waters of the United States” is not appropriate. 

The proposed definition will expand jurisdiction over stormwater related systems, which 

is particularly inappropriate after EPA has chosen not to proceed with the national 

stormwater rulemaking. Further, using this new definition in the existing permitting 

programs under Sections 402 and 404 will render both of these programs more 

cumbersome and confusing. Expansion of federal regulatory oversight through a 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

43

definitional change is not appropriate, but more significantly, will not be effective. The 

permitting authorities (state and federal) will be mired in litigation and disputes related to 

the proper interpretation of the proposed re-definition of “Waters of the United States.”

(p. 3)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. With respect to stormwater control features, please see summary 

response at 7.4.4. in Compendium 7.

Arctic Slope Regional Corporation (Doc. #15038)

12.31 At 172 million acres, Texas is a very big state, but its total acreage is still less than the 

number of acres of wetlands in Alaska. According to the U.S. Fish and Wildlife Service 

(“USFWS”), “Alaska encompasses an area of 403,247,700 acres, including offshore areas 

involved in this study. Total acreage of wetlands is 174,683,900 acres. This is 43.3 

percent of Alaska’s surface area. In the lower 48 states, wetlands only occupy 5.2 

percent of the surface area.”

6

 Put differently, nearly half of Alaska – the largest state in 

the United States, by a wide margin – stands to be affected by this Proposed Rule. 

Alaska has more wetlands than all of the other states combined.7(p. 4)

Agency Response: Thank you for this added perspective. The State of Alaska 

does indeed have a large and important role in protecting its wetlands. Nothing in 

this rule limits or impedes any existing or future state efforts to further protect their 

waters. In fact, providing greater clarity regarding what waters are subject to 

CWA jurisdiction will reduce the need for permitting authorities, including states 

with authorized section 402 and 404 CWA permitting programs, to make 

jurisdictional determinations on a case-specific basis.

12.32 Unlike the many exceptions in the Proposed Rule created for agricultural (among other) 

uses,8the Proposed Rule creates no exception for any material portion of the wetlands in 

Alaska. Yet Alaskan waters are unusual in many respects that make them unsuitable for 

this broad assertion of jurisdiction by the Agencies. Many of Alaska’s wetlands are 

frozen for nine months out of the year and lie on top of a layer of permafrost. Their 

hydrologic functions are different from those in other parts of the country. The water 

table is also commonly situated on permafrost, resulting in saturated soils that support 

hybrid vegetation, but there is no real connection to navigable waters, which leaves them 

outside of CWA jurisdiction under SWANCC. Unlike wetlands in temperate zones, arctic 

wetlands, lying above of thousands of feet of frozen permafrost, are not connected to 

aquifers. Because water on top of permafrost travels across the frozen tundra surface in 

“sheet flow,” these wetlands provide little function in controlling runoff.

 

6

Jonathan V. Hall, W.E. Frayer and Bill O. Willen, Status of Alaska Wetlands at 3 (U.S. Fish and Wildlife Service 

1994).

7

Id.

8

79 Fed. Reg. at 22,264.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

44

The Proposed Rule reflects no consideration for any of these unique aspects of Alaskan 

wetlands. Indeed, neither the word “tundra” nor the word “permafrost” appears 

anywhere in the 88 pages of the Proposed Rule. (p. 6-7)

Agency Response: The agencies recognize that there is substantial regional 

variability in the nature and extent of wetlands and other waters across the country, 

including Alaska, and that, just as elsewhere in the country, certain attributes of 

Alaska waters are unique. The agencies also recognize that the growing season is 

only three to six months long in the Alaska, as it is in other parts of the country (e.g., 

the upper Midwest and northern New England). While the changes in the rule will 

result in different classifications of jurisdictional waters (e.g., some waters currently 

considered tributaries will be adjacent instead, while others considered adjacent will 

be subject to case-specific evaluation of significant nexus), the rule will result in very 

little, if any, change in the overall extent of jurisdictional waters in Alaska. While 

permafrost functions as an aquitard that blocks the downward movement of water 

either regionally or locally, the same impermeability often cases a lateral redirection 

of flow, which, where the overlying substrate is sufficiently porous and/or there is 

water above ground, may move to the tributary network or other jurisdictional 

waters. Thus, while waters overlying continuous permafrost may be hydrologically 

isolated from regional aquifers underlying the permafrost, they often are not at all 

isolated from the surface water network. Accordingly, the agencies disagree not 

only that SWANCC requires a hydrologic connection to other jurisdictional waters, 

but also that wetlands overlying permafrost necessarily lack a hydrologic 

connection. The agencies also disagree that the nexus necessary for wetlands to be 

jurisdictional requires performance of any one particular function or suite of 

functions, such as controlling runoff. In fact, as confirmed in the Science Report 

and consistent with Justice Kennedy’s decision in Rapanos, functions that 

significantly affect nearby traditional navigable waters, interstate waters, or 

territorial seas may be either beneficial or detrimental. Many different functions, as 

described in the rule, factor into the significant nexus evaluation, and it may be any 

one or a combination of those functions that result in the waters in question, either 

alone or together with other similarly situated waters, having a significant nexus to 

the chemical, physical, or biological integrity of the nearby traditional navigable 

water, interstate water, or territorial sea. The agencies did recognize the potential 

for confusion created by the addition of “bright line” thresholds for adjacent waters 

and case-specific jurisdictional waters and the application of those thresholds in 

Alaska and other northern states. To minimize that ambiguity the agencies 

specifically identified two types of northern wetlands—low-centered polygonal 

tundra and patterned ground bogs—as examples of waters that the distance 

thresholds would not bifurcate.

12.33 The problems the Proposed Rule creates for Alaska Natives throughout the State of 

Alaska are especially stark on Alaska’s North Slope. The USFWS calculates that 46.9 

million acres in the Arctic Foothills and Coastal Plain are wetlands. Together these areas 

correspond roughly with the borders of the North Slope Borough. This is 83.1% of the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

45

total acreage (56.4 million acres) of those two areas.9In other words, more than fourfifths of the entire NSB is potentially affected by the Proposed Rule.

While 47 million acres on the North Slope are wetlands according to the USFWS, only a 

small fraction of these are “traditional navigable waters.” The North Slope has 23,300 

lakes, from a few yards to over 20 miles, and seldom deeper than 10 feet.10 There are 

2,450,858.5 acres of lakes on the North Slope larger than 50 acres.11 There are another 

260,629 acres of rivers.12 Not all of these larger lakes and rivers are “traditional 

navigable waters,” but their total acreage – 2.7 million acres – represents the outside limit 

of what conceivably could be regarded as “traditional navigable waters.”

This high-end estimate of “traditional navigable waters” is less than 6% of the total 

wetlands identified by the USFWS. The possibility that the Proposed Rule will expand 

USFWS’s jurisdiction from these 2.7 million acres of “traditional navigable waters” to 47 

million acres of jurisdictional or “other” waters is a demonstration of the massive 

overreach represented by the Proposed Rule. Put differently, the Proposed Rule has the 

potential to multiply the area of federally regulated “waters” by more than sixteen 

hundred percent (1600%)! (p. 9-10)

Agency Response: The agencies anticipate that the rule will result in little, if any, 

change in the extent of jurisdictional waters in the Arctic Foothills and Coastal 

Plain and certainly not an expansion of the scope described by the commenter. The 

agencies have never limited the definition of “waters of the United States” to 

traditional navigable waters and all three applicable Supreme Court decisions 

confirm the agencies’ approach. 

12.34 For those wetlands that are not jurisdictional waters, are they “other waters” because they 

are within a “single landscape” and are or may “opportunistically” be visited by 

migratory birds or insects? The North Slope – although it is larger than the State of Utah

– is largely a single unified, relief-free geographic area. Does that make it a “single 

landscape”? If not, what are the clear demarcations in the Proposed Rule that relieve 

these lands of that regulatory burden and that will prevent Agency officials from 

misconstruing the Proposed Rule?

How is it possible to plan development for the economic betterment of the people living 

on the North Slope, the majority of whom are Alaska Natives and ASRC shareholders, in 

the face of these uncertainties? (p. 10-11)

Agency Response: EPA and the Corps have used the feedback we received from 

written comments to provide both greater certainty and additional clarity not only 

in the descriptions of the categories of jurisdictional waters, but also in the 

definitions associated with those categories. For waters that are not traditional 

navigable waters, interstate waters, territorial seas, or tributaries of, adjacent to, or 

 

9

Status of Alaska Wetlands, at 20.

10 “Digital Data Base of Lakes on the North Slope, Alaska,” U.S. Geological Survey Water-Resources Investigations 

Report 86-4143 (1986).

11 Estimated by Marie Walker, a remote sensing consultant and principal author of the USGS Water Resources 

Division report cited above.

12 Estimated by the Arctic Slope Consulting Group based on Lands at image maps.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

46

impoundments of those waters, the rule identifies two limited categories of 

additional waters over which jurisdiction will depend on a case-specific significant 

nexus evaluation. The first of those two categories—waters that are similarly 

situated by rule—does not occur in Alaska. For both it and the other case-specific 

category of waters—those located at least in part within 4,000 feet of traditional 

navigable waters, interstate waters, territorial seas, or tributaries or impoundments 

thereof—the rule clarifies both how to identify which waters, if any, to consider 

together and how to evaluate significant nexus. Specifically, the rule includes a 

detailed discussion about determining what are “similarly situated waters,” 

describing them as those that perform similar functions and are located either 

sufficiently close together or sufficiently close to the other jurisdictional water to 

function together to affect the integrity of the nearby traditional navigable water, 

interstate water, or territorial sea. Similarly, the rule specifically identifies the 

geographic area in which the significant nexus evaluation would assess any similarly 

situated waters together as the watershed that drains to the traditional navigable 

water, interstate water, or territorial sea in question. Finally, the rule also 

specifically identifies the functions that the significant nexus evaluation will consider 

and describes how the agencies will conduct the evaluation. Thus, where possible, 

the rule provides much clearer demarcations than the proposed rule (i.e., the 4,000-

foot distance threshold and the watershed boundaries) and, where not possible, 

provides much more definitive direction on the significant nexus evaluation.

National Association of State Departments of Agriculture (Doc. #15389)

12.35 Should states be required to develop and enforce water quality standards under CWA 

§303, §304 and §305 for marginal waters newly (or potentially) regulated under the 

categories proposed by the agencies in this rule, this would become an impossible task. 

We have significant concerns that this proposal will dramatically expand the 

circumstances under which the federal requirement for development of numeric criteria, 

water quality standards, expanded monitoring and impairment determinations, and 

enforcement actions will be extended. (p. 6)

Agency Response: The agencies do not anticipate an increase in the extent of 

waters in agricultural areas that would be subject to water quality standards. While 

the rule eliminates the need for case-specific evaluation of the significant nexus of 

ephemeral tributaries—because the Science Report and Science Advisory Board 

review confirmed that they are chemically, physically, and biologically connected to 

downstream waters and affect the integrity of those waters—it also includes a 

definition clarifying that, to be jurisdictional, tributaries must not only contribute 

flow, either directly or indirectly, to downstream traditional navigable waters, 

interstate waters, or the territorial seas, but must also exhibit the physical 

characteristics of a bed, banks, and ordinary high water mark. In addition, the rule 

also clarifies that ditches with only ephemeral flow are not jurisdictional unless they 

are rerouted or altered streams and that neither lawfully constructed grassed 

waterways nor groundwater directed through subsurface drainage systems such as 

tile drains are jurisdictional.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

47

Georgia Environmental Protection Division (Doc. #16348) 

12.36 The proposed rule and preamble do not specifically address any potential implications of 

the rule on state water quality standards or TMDLs (CWA Section 303). The preamble 

merely acknowledges that “[s]tates and tribes, consistent with the CWA, retain full 

authority to implement their own programs to more broadly or more fully protect the 

waters in their state.” 79 F.R. 22194. A footnote to the preamble also provides a 

summary of the relevant regulations. Additionally, a July 1, 2014 press release from 

EPA stated that the proposed rule will not “federalize state waters and make states set 

water quality standards for them,” and recognized that states are “best equipped to 

determine” water quality standards based on designated uses. Without more specific 

information in the language of the proposed rule’s preamble, this still leaves some 

ambiguities. (p. 2)

Agency Response: The rule does not change how designated uses, water quality 

standards, TMDLs and permitting required by the CWA are implemented, and 

these comments are outside the scope of the rule. The scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

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

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

existing categories such as tributaries. 

Allen Boone Humphries Robinson LLP (Doc. #19614)

12.37 The expansion of jurisdictional waters of the U.S. is also likely to result in a greater 

number of “impaired” federal waters under section 303, with additional burdens on States 

to evaluate and list these waters, and a greater likelihood that facilities with runoff will 

fall under Total Maximum Daily Load 11budgets” that may significantly impact facility 

operations. (p. 6)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. 

Georgia Environmental Protection Division (Doc. #16348)

12.38 Obtaining a permit under Section 404 of the CWA is a complex process that often takes 

years and is extremely costly. Discharging into “waters of the U.S.” can subject a 

property owner to costly fines and penalties. These factors are a concern to the citizens 

of Georgia, particularly as they relate to Georgia’s agricultural industry (features on 

farmland such as wetlands, farm ponds and ditches), transportation infrastructure 

(stormwater infrastructure), private property impacts and the increased burden to EPD’s 

workforce. (p. 3)

Agency Response: The agencies disagree that obtaining a Section 404 permit 

“often” entails extensive time and expense. While a small proportion of permit 

applications involve large, complex, or otherwise controversial projects that require 

lengthier evaluation periods, the Corps of Engineers issues or verifies the vast 

majority of authorizations in fewer than four months, and many activities are 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

48

eligible for already-issued nationwide or other general permits, for which 

verification is usually even quicker. With regard to unauthorized activities, the 

agencies anticipate that the greater clarity provided in the rule’s definition of 

jurisdictional waters will reduce the occurrence of inadvertent unauthorized 

discharges. It is also important to note that penalty amounts are tied in part to the 

degree of culpability of the respondent. Some of the additional clarity provided by 

the rule relates to agricultural and transportation activities. Specifically, the rule 

establishes that not only are normal farming, ranching, and silviculture activities 

exempt from Section 404 permitting requirements, but also wetlands, ponds, and 

other waters in use for those activities will no longer be jurisdictional by rule as 

“adjacent” waters. (Instead, they will subject to case-specific evaluation of 

significant nexus.) In addition, the rule establishes that ditches with only ephemeral 

flow are jurisdictional only where they are rerouted or altered streams; and that 

neither lawfully constructed grassed waterways nor groundwater directed through 

subsurface drainage systems such as tile drains are jurisdictional. It also retains the 

previous exclusion for prior converted croplands and codifies the previously 

uncertain exclusions for areas that are wetland only due to irrigation and for lakes 

and ponds created in dry land that have a primarily agricultural use such as stock 

watering, irrigation, or rice growing. As for transportation infrastructure, it is 

important to note that many such activities have been and continue to be either 

exempt from Section 404 permitting (see, e.g., 33 C.F.R. §§323.4(a)(2)) or eligible for 

any of a number of nationwide and other general permits that authorize such 

activities, including nationwide permits #3 (maintenance), 6 (survey activities), 13 

(bank stabilization), 14 (linear transportation projects), 15 (U.S. Coast Guardapproved bridges), 18 (minor discharges), 19 (minor dredging), 23 (approved 

categorical exclusions), 25 (structural discharges), 33 (temporary construction, 

access, and dewatering), 41 (reshaping existing drainage ditches), 43 (stormwater 

management facilities), and 46 (discharges in ditches). In addition, the rule 

continues the long-standing exclusion of waste treatment systems from jurisdictional 

waters and codifies the previously uncertain exclusions for artificial lakes and ponds 

created in dry land primarily for use as settling basins and for water-filled 

depressions created in dry land incidental to construction activity. It also adds new

exclusions for ditches with less than perennial flow that drain roads maintained by 

federal, tribal, state, county, or municipal agencies, as long as such ditches are not 

rerouted or altered streams and for features constructed in dry land to convey, 

treat, or store stormwater. The clearer definitions of jurisdictional and nonjurisdictional waters and the expanded list of exclusions will also benefit private 

property owners and state environmental programs. Besides the clarifications

noted above, the rule also reduces uncertainty about jurisdictional waters by 

providing “bright line” thresholds for identifying tributaries, adjacent waters, and 

case-specific jurisdictional waters, while also limiting the extent of waters subject to 

case-specific evaluation and providing detailed direction for conducting case-specific 

significant nexus evaluations. In addition, it also codifies previously uncertain 

exclusions for reflecting pools, swimming pools, and small ornamental waters 

constructed in dry land and establishes exclusions for ditches with only ephemeral 

flow that aren’t rerouted or altered streams and ditches that do not contribute flow 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

49

to another jurisdictional water. For additional information on consultation with 

states, see the Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 

United States which is available in the docket for this rule.

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

12.39 Instead of focusing on a more effective, efficient way to address disparate decisions by 

the Corps of Engineers in implementing Section 404, we fear this rulemaking will create 

additional disorder in implementing Sections 303, 319, 401 and 402 where none exists 

currently. Despite the Agencies’ stated intent to define more clearly the extent of 

WOTUS jurisdiction, the already fuzzy line of jurisdiction has been shifted without 

making the line any less fuzzy. We and most other States have learned to adapt, 

overcome confusion, and succeed in restoring water quality through our delegated 

authorities to implement Section 303, 319, 401 and 402 programs. However, this effort 

to fix problems that really only exist within Section 404 authorities will have 

repercussions in the other, more settled programs that States are largely responsible to 

implement. Rather, we suggest a national priority be placed on providing more clear 

guidance and training to Corps of Engineers Divisions and Districts on how to uniformly 

apply the provisions of Section 404. If coupled with deference to each State on WOTUS 

delineation that parallels the deference already shown to States on Section 401 

certifications, we believe confusion and litigation can be dramatically reduced. (p. 3)

Agency Response: The agencies are developing guidance to facilitate 

implementation of the final rule when it becomes effective, which will provide for 

consistent determinations. The agencies strive to achieve consistency across the 

country in all districts and regions in application of the rule for jurisdictional 

determinations. The rule only provides a definition for “waters of the U.S.” The 

rule only provides a definition for “waters of the U.S.” The rule does not affect the 

CWA programs for discharges of dredged and/or fill material into waters of the 

U.S., or other activities in jurisdictional waters of the U.S. including for example, 

NPDES permits, water quality standards, or Section 311 requirements which also 

require authorization.

State of South Dakota (Doc. #16925)

12.40 (...) while I appreciate EPA’s efforts to reach out to the agricultural community 

following the rule’s release, the “Ditch the Myth” campaign appears to be more about 

selling a proposal than enhancing understanding of a complex rule. The agencies’

proposal has created significant concerns for South Dakota’s farmers and ranchers that 

these attempted explanations have not eased. I can appreciate that statements made by 

EPA officials have been intended to clarify the rule; however, these statements provide a 

new interpretation of key terms that should have been included in the proposed rule itself. 

Future legal challenges and regulatory decisions will turn on the actual language of the 

final rule, not an EPA blog post. (p. 3)

Agency Response: EPA and the Corps have used the feedback we received from 

public outreach efforts as the source of early guidance and recommendations for 

refining the proposed rule. Specifically, stakeholder input received during public 

outreach events in combination with the written comments received during the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

50

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 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 to protect and conserve natural resources and water 

quality on agricultural lands. For example, the rule codifies the previously 

uncertain exclusions for areas that are wetland only due to irrigation and for lakes 

and ponds created in dry land that have a primarily agricultural use such as stock 

watering, irrigation, or rice growing. It also establishes that not only are normal 

farming, ranching, and silviculture activities exempt from Section 404 permitting 

requirements, but also wetlands, ponds, and other waters in use for those activities 

will no longer be jurisdictional by rule as “adjacent” waters. (Instead, they will 

subject to case-specific evaluation of significant nexus, for which the rule provides 

extensive detailed direction.) In addition, the rule establishes that ditches with only 

ephemeral flow are jurisdictional only where they are rerouted or altered streams 

and that neither lawfully constructed grassed waterways nor groundwater directed 

through subsurface drainage systems such as tile drains are jurisdictional. Finally, 

the rule includes a definition clarifying that, to be jurisdictional, tributaries must 

not only contribute flow, either directly or indirectly, to downstream traditional 

navigable waters, interstate waters, or the territorial seas, but must also exhibit the 

physical characteristics of a bed, banks, and ordinary high water mark.

State of Alaska (Doc. #19465)

12.41 EPA and the Corps failed to consider the consequences of a proposed rule that seeks to 

impose a broad array of CWA requirements.

EPA and the Corps have promulgated a rule that applies not only to Section 404 

permitting, but to other aspects of the CWA, including 402 permitting and regulatory 

requirements under Section 303. Thus, for example, for every water (including wetland) 

that the proposed rule would sweep under CWA jurisdiction as a water of the U.S., state 

water quality standards would then apply. That is because there is the potential that the 

states will have to classify the uses of newly jurisdictional waters for application of State 

water quality standards. (p. 17)

Agency Response: The rule does not change how designated uses, water quality 

standards, TMDLs and permitting required by the CWA are implemented, and 

these comments are outside the scope of the rule. The scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

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

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

existing categories such as tributaries.

12.42 Will new jurisdictional waters require preparation of Spill Prevention, Control, and 

Countermeasures (SPCC) plans? Will green infrastructure projects, not exempted under 

the rule, also become subject to CWA requirements? Will existing jurisdictional 

determinations and uses in waters that will fall under the proposed rule be grandfathered 

in, or will new jurisdictional determinations or CWA requirements be imposed? What 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

51

regulatory costs and burdens will be created for states in light of their 401 certification 

authority in approving projects requiring either a 402 or 404 permit? What will be the 

costs and impacts to the state and federal regulatory authorities for enforcing compliance 

under CWA programs? (p. 17)

Agency Response: This action does not change an owner/operator's ability to 

determine whether there is a reasonable expectation that an oil discharge from a 

facility could reach waters of the U.S. or adjoining shorelines, as part an 

applicability evaluation if the facility's aggregate oil storage capacity exceeds the 

applicable thresholds in Spill Prevention, Control and Countermeasure (SPCC) rule 

at 40 CFR part 112. This determination is a site-specific evaluation by the 

owner/operator and is important consideration in determining whether a facility is 

subject to the SPCC rule. However this determination must exclude man-made 

features such as existing secondary containment structures (dikes or remote 

impoundments) that may serve to restrain, hinder, contain or otherwise prevent an 

oil discharge to waters of the U.S. See 40 CFR part 112.1(d)(1)(i). The 

owner/operator should consider the potential oil pathways once discharged oil has 

left the facility, including an evaluation of oil traveling along non-jurisdictional 

pathways (e.g., ditches or other features) and reaching jurisdictional waters. 

Further, the scope of regulatory jurisdiction in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. Partially 

to address green infrastructure projects, the rule adds two new exclusions, one for 

features constructed in dry land to convey, treat, or store stormwater and the other 

for features such as detention and retention basins, groundwater recharge basins, 

and percolation ponds created in dry land for purposes of wastewater recycling. In 

accordance with Regulatory Guidance Letters 2005-02 and 2008-02, approved 

jurisdictional determinations under Section 404 of the Clean Water Act are valid for 

five years from the date of the letter conveying the determination to the requesting 

party. (The expiration date does not apply to preliminary jurisdictional 

determinations.) Accordingly, existing approved jurisdictional determinations that 

are five years old or less will remain in effect until they expire. The same is true of 

existing, unexpired Clean Water Act permits. With regard to the effects of the rule 

on state programs, the clearer definitions of jurisdictional and non-jurisdictional 

waters and the expanded list of exclusions will assist state regulatory agencies in 

making jurisdictional determinations and reduce the number that require a casespecific evaluation. The agencies recognize that, in establishing “bright line” 

thresholds for tributary, adjacent, and case-specific jurisdictional waters, we are 

carefully applying the available science. As such, the agencies will work with states 

to evaluate more closely state-specific circumstances and, as appropriate, encourage 

states to develop rules that reflect their circumstances and emerging science to 

ensure consistent and effective protection for waters in the states. As is the case 

today, nothing in this rule restricts the ability of states to more broadly protect state 

waters. See the Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

52

United States which is available in the docket for this rule, for additional 

information on state programs.

Lee County, Florida (Doc. #1346)

12.43 The proposed rule will replace the definition of “navigable waters” and “waters of the 

United States” in the regulations for all CWA programs, including Section 404 

discharges of dredge or fill material, the Section 402 National Pollutant Discharge 

Elimination System (“NPDES”) permit program, the Section 401 state water quality 

certification process, and Section 303 water quality standards and total maximum daily 

load (“TMDL”) programs. We do not believe the agencies have fully considered the 

implications of these changes to all of the CWA programs. (p. 2)

Agency Response: The rule only provides a definition for “waters of the U.S.” 

The rule does not change how designated uses, water quality standards, TMDLs and 

permitting required by the CWA are implemented, and these comments are outside 

the scope of the rule.

Marion County Board of Commissioners (Doc. #1450)

12.44 It is our belief that changes to the Clean Water Act (CWA) definition of “waters of the 

U.S.” will have far-reaching effects and could have unintended consequences to a number 

of our CWA programs, including the National Pollutant Discharge Elimination System, 

total maximum daily load (TMDL) and other water quality standards programs, arid Spill 

Prevention, Control, and Countermeasure (SPCC)·programs. Our agency needs 

additional time to further evaluate and assess the impact on our community. (p. 1)

Agency Response: The clearer definitions of jurisdictional and non-jurisdictional 

waters and the expanded list of exclusions will assist state regulatory agencies in 

making jurisdictional determinations and reduce the number that require a casespecific evaluation. The agencies recognize that, in establishing “bright line” 

thresholds for tributary, adjacent, and case-specific jurisdictional waters, we are 

carefully applying the available science. As such, the agencies will work with states 

to evaluate more closely state-specific circumstances and, as appropriate, encourage 

states to develop rules that reflect their circumstances and emerging science to 

ensure consistent and effective protection for waters in the states. As is the case 

today, nothing in this rule restricts the ability of states to more broadly protect state 

waters. See the Final Summary of the Discretionary Consultation and Outreach to 

State, Local, and County Governments for the Revised Definition of Waters of the 

United States which is available in the docket for this rule, for additional 

information on state programs.

Hinsdale County Board of Commissioners (Doc. #1768)

12.45 The Draft Guidance Fails to Consider the Effects on All Clean Water Act (CWA) 

Programs. According to the Draft Guidance, the definition of “waters of the U.S.”

applies consistently to CWA programs. We are very concerned that the Draft Guidance 

and supporting economic analysis focuses primarily on the 404 permit program but fails 

to give consideration to the effects the change will have on other CWA programs, such as 

the National Pollution Discharge Elimination System (NPDES), Total Maximum Daily 

Load (TMDL) and other water quality standards programs, or Spill Prevention, Control 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

53

and Countermeasure (SPCC) programs. We believe an omission of this magnitude will 

have significant unintended financial consequences for federal, state and local 

governments, as well as businesses and private entities. We urge you to withdraw the 

Draft Guidance until a comprehensive and detailed analysis is made on how the proposed 

changes would impact all CWA programs beyond the·404 permit program. (p. 1)

Agency Response: The rule does not change how designated uses, water quality 

standards, TMDLs and permitting required by the CWA are implemented, and 

these comments are outside the scope of the rule.

Skamania County Board of Commissioners (Doc. #2469)

12.46 Water reuse facilities are being built across the country to generate an additional water 

supply for irrigation purposes and sometimes drinking water. It is unclear how the 

proposed definitional changes would impact the pesticide general permit program, which 

is used to control weeds and vegetation around ditches, water transfer, reuse and 

reclamation efforts and drinking and other water delivery systems. Additional 

clarification is needed by the agencies. (p. 5-6)

Agency Response: The rule adds a new exclusion clarifying that features such as 

detention and retention basins, groundwater recharge basins, and percolation ponds 

created in dry land for purposes of wastewater recycling are not waters of the 

United States. The final definitional rule does not change CWA permitting 

requirements regarding the application of pesticides, or establish new requirements 

for complying with the pesticide general permit (PGP). However, the rule adds a 

new exclusion clarifying that features such as detention and retention basins, 

groundwater recharge basins, and percolation ponds created in dry land for 

purposes of wastewater recycling are not waters of the United States. The final rule 

also includes revised and expanded exclusions for many ditches. See summary 

responses for Topic 6: Ditches and Topic 7: Features and waters not jurisdictional, 

for more information about excluded waters in the final rule. 

Nye County Board of County Commissioners (Doc. #3255)

12.47 It is not clear how the proposed changes will impact the pesticide general permit 

program, which is used to control weeds and vegetation around ditches, among other 

things. Additional permitting requirements will add unnecessary time and cost to the 

maintenance of ditches and control of weeds. (p. 2)

Agency Response: The final definitional rule does not change CWA permitting 

requirements regarding the application of pesticides, or establish new requirements 

for complying with the pesticide general permit (PGP). The final rule includes 

revised and expanded exclusions for many ditches. See summary responses for 

Topic 6: Ditches and Topic 7: Features and waters not jurisdictional, for more 

information about excluded waters in the final rule. The Clean Water Act 

404(f)(1)(C) exemption for maintenance of irrigation and drainage ditches will 

remain in effect, when applicable.

Sheridan County Commission (Doc. #3271)

12.48 The proposed rule would apply not just to Section 404 permits, but also to other Clean 

Water Act programs. These programs would subject county governments to increasingly 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

54

complex and costly federal regulatory requirements under the proposed rule which 

impacts local stormwater and pesticide application programs, state water quality 

standards designations, green infrastructure and water reuse. (p. 2)

Agency Response: See Summary Response. See exclusions for stormwater control 

wastewater control features. This rule is a definitional rule, intended to clarify the 

scope of waters subject to the CWA, and does not change existing CWA regulatory 

and permitting requirements, including NPDES permitting for stormwater systems 

and discharges of pesticides directly into waters of the U.S., many of which are 

covered by a pesticide general permit (PGP). However, many ditches, stormwater 

conveyances, water reuse systems are excluded from waters of the U.S. See 

summary responses for Topic 6: Ditches and Topic 7: Features and waters not 

jurisdictional, for further discussion of excluded waters. See also summary 

response essays 12.3.1, 12.3.2, and 7.4.4 regarding stormwater, MS4s, and green 

infrastructure. 

Washington Association of Conservation Districts (Doc. #3272)

12.49 Clearly, conservation districts prefer (and even require) that cooperators implement 

conservation practices according to NRCS technical standards when working with 

conservation programs (e.g., EQIP contracts). However, not every practice is installed 

under a cooperator contract. Many states have conservation practice standards of their 

own. Further, voluntary conservation programs do not include sufficient resources to 

allow follow-up at a regulatory scope and scale at every site where a practice is installed 

upon which to base a determination that the practice is implemented in conformance with 

[listed] NRCS technical standards. Neither rule should be structured or construed to 

mandate a regulatory compliance role by NRCS (or others) in voluntary programs or 

independent producer activities employing NRCS practices. WACO understands that 

nothing is proposed to be changed in terms of certification for exemptions. Again, these 

conservation activities exemptions are self-implementing. (p. 3)

Agency Response: See Summary Response. The Interpretive Rule for 

conservation practices under 404(f)(1)(A) has been withdrawn, per Section 112 of 

the Consolidated and Further Continuing Appropriations Act of 2015. The final 

rule does not affect the existing statutory activity-based exemptions under Section 

404(f)(1) of the Clean Water Act, including those for ongoing agricultural activities. 

The rest of this comment is outside the scope of this rulemaking.

12.50 Our national affiliate, NACO, has recommended that the agencies consider applying the 

general permit concept to conservation districts and their cooperating landowners in 

performing conservation work in WOTUS. WACO supports your consideration of that 

tool as a less confusing means of promoting landowners conservation efforts and 

recognizing the benefits of NRCS and locally-recognized conservation practices. (p. 4)

Agency Response: See Summary Response. The rule only provides a definition 

for “waters of the U.S.” The rule does not affect the CWA statute in which 

authorization may be required for discharges of dredged and/or fill material into 

waters of the U.S., or other activities in jurisdictional waters of the U.S. which 

require authorization. In addition, the rule does not affect activities that are 

currently exempt from CWA regulation. The rule also does not affect permitting 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

55

tools such as the use of general permits that the Corps implements for expeditious 

review and efficiency in processing permit applications for discharges of dredged 

and/or fills material into waters of the U.S. The rule will improve consistency and 

predictability for all CWA programs. The rule will provide needed clarity 

regarding jurisdictional determinations, thus reducing uncertainties and delays. 

This comment is outside the scope of this rulemaking; however, the Corps 

Nationwide permits will be reauthorized in 2017 via the public notice and comment 

rulemaking process and comments regarding appropriate activities for inclusion are 

welcomed during that process. In addition, regional general permits can be 

discussed with local Corps districts.

Minnehaha County (South Dakota) Board of Commissioners (Doc. #4116)

12.51 Regarding TMDL standards and potential regulation thereof, the only nutrient loading 

that I am concerned about is salt. This is the only nutrient we apply to our roadways. 

However, what comes off of farmer’s fields is a different story and out of our control. (p. 

1)

Agency Response: The final rule does not establish any regulatory requirements. 

Instead, it is a definitional rule that clarifies the scope of “waters of the United 

States” consistent with the Clean Water Act (CWA), Supreme Court precedent, and 

science. This rule will not affect the current implementation of the various CWA 

programs in regulating discharges of pollutants into waters of the United States. 

These comments are outside the scope of the rule. The agencies are not affecting 

permitting mechanisms under this rule; this rule only defines “waters of the U.S.” 

and does not impact any permitting tools, such as National Pollutant Discharge 

Elimination System permits regarding TMDL standards. This comment is outside 

the scope of this rulemaking

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

12.52 Currently, counties face tremendous challenges in receiving federal permits approved in a 

timely manner. This (proposed rule) would intensify, as additional waters falling under 

federal jurisdiction would force us to submit more permits, which would cause confusion 

and longer delays in the determination and permitting process. The permit itself is not a 

problem, but the process used can be challenging, as they are time-consuming and 

expensive to obtain. Many counties experience delays in the years – three to five – with

significant overhead costs associated with consultants, lawyers, engineers, and special 

conditions attached to the permit. This also makes counties vulnerable to citizen suits if 

the federal permit process is not streamlined. (p. 1)

Agency Response: See Summary Response. The rule only provides a definition 

for “waters of the U.S.” The rule does not affect the CWA statute in which 

authorization may be required for discharges of dredged and/or fill material into 

waters of the U.S., or other activities in jurisdictional waters of the U.S. which 

require authorization. In addition, the rule does not affect activities that are 

currently exempt from CWA regulation. The rule also does not affect permitting 

tools such as the use of general permits that the Corps implements for expeditious 

review and efficiency in processing permit applications for discharges of dredged 

and/or fills material into waters of the U.S. The rule will improve consistency and 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

56

predictability for all CWA programs. The rule will provide needed clarity 

regarding jurisdictional determinations, thus reducing uncertainties and delays. 

The citizen suit provisions of the CWA are unaffected by the final rule.

Rio Blanco County, Colorado, Board of County Commissioners (Doc. #4679)

12.53 The proposed rule will replace the definition of “navigable waters” and “waters of the 

United States” in the regulations for all CWA programs, including Section 404 

discharges of dredge or fill material, the Section 402 National Pollutant Discharge 

Elimination System permit program, the Section 401 state water quality certification 

process, and Section 303 water quality standards and total maximum daily load programs. 

We do not believe the agencies have fully considered the implications of these changes to 

all of the CWA programs. (p. 1)

Agency Response: See Summary Response. The agencies understand that the 

definition of “waters of the U.S.” applies to all CWA programs. The rule only 

provides a definition for “waters of the U.S.” The rule does not affect the CWA 

statute in which authorization may be required for discharges of dredged and/or fill 

material into waters of the U.S., or other activities in jurisdictional waters of the 

U.S. such as NPDES permits, Section 401 certification, water quality standards or 

Section 311 requirements which require authorization. The agencies modified the 

final rule from the proposed rule in response to comments received in order to 

ensure unintended effects to those other CWA programs were reduced or 

eliminated. The Economic Analysis provides costs/benefits and predicted change in 

jurisdiction for all CWA programs. 

Fairfield County, Ohio, Board of Commissioners (Doc. #4775)

12.54 The proposed rule relates to Section 404 permits and other Clean Water Act programs. 

These programs would subject county governments to increasingly complex and costly 

federal regulatory processes. (p. 1)

Agency Response: See Summary Response. The agencies recognize that the state 

and local governments have well-defined and long-standing relationships in 

implementing affected CWA programs and these relationships will not be altered. 

This action will not have substantial direct effects on the states, on the relationship 

between the national government and the states, or on the distribution of power and 

responsibilities among the various levels of government.

Bonner County Board of Commissioners (Doc. #4879)

12.55 In general, the federal system of mapping and identifying wetlands is already inadequate. 

Further expansion of the wetlands definition will make it even more difficult for 

landowners to predict where wetlands may be encountered. The gap in accurate mapping 

will widen with the proposed amendment to the wetlands definition, putting landowners 

at risk of disturbing wetlands unknowingly and unintentionally. (p. 1)

Agency Response: See Summary Response. Consistent with the more than 40-

year practice under the Clean Water Act, the agencies make determinations 

regarding the jurisdictional status of particular waters in response to a request from 

a landowner asking the agencies to make such a determination. The rule does not 

address or change already established wetland identification and delineation 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

57

methodology under the Corps1987 Wetland Delineation Manual and its regional 

supplements but rather addresses jurisdiction of waters of the U.S. The agencies 

note that they do not have the authority to map all waters of the U.S. The final rule 

was developed to increase CWA program predictability and consistency by 

increasing clarity as to the scope of “waters of the United States” protected under 

the Act.

Office of County Manager, New Hanover County, North Carolina (Doc. #5609)

12.56 The definition of what is considered “tributary” under the proposed rule is extremely 

broad. The declaration of non-navigable tributaries to traditional navigable waters that 

are relatively permanent, meaning they contain water at least seasonally is broad reaching 

and would affect most of New Hanover County. Waters that fall under the “other waters”

category of the regulations is even more broad-reaching and casts a very large net. Under 

the proposed rule “a water may be tributary if it contributes flow to a traditional 

navigable water or interstate water, either directly or indirectly by a means of other 

tributaries. A tributary can be natural, man-altered, or man-made water body.” This 

could place all man-made stormwater conveyances within New Hanover County under 

the control of jurisdictional waters. (p. 2-3)

Agency Response: See Summary Response. Refer to the tributary, ditch, and 

exclusion sections of the proposed rule and preamble for further information and 

clarification on tributaries and man-made stormwater conveyances. The final rule 

includes specific characteristics that must be met in order to meet the definition of 

“tributary,” including bed and banks and ordinary high water mark. These 

parameters ensure that only water features that meet the definition of “tributary” 

contained in paragraph (c) qualify as a tributary and are jurisdictional by rule. The 

science demonstrates that all tributaries, as defined by the rule, have a significant 

nexus when considered individually or in combination with other tributaries to the 

(a)(1) to (a)(3) waters. The scope of regulatory jurisdiction in this rule is narrower 

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The final rule provides specific parameters that must be met in order to 

fall under the (a)(7) or (a)(8) category of waters which require case-specific 

significant nexus determinations. The preamble sections specific to case-specific 

determinations provides further discussion of such case-specific waters. The 

Economic Analysis provides discussion on changes in jurisdiction.

White Pine County (Nevada) Board of County Commissioners (Doc. #6936)

12.57 This measure of identifying upland streams and deciding to implement regulation that 

will cause additional permit fees and processes to the business community needs to be 

debated by all interested parties to insure all view points and potential hurdles have been 

fairly discussed and mitigated. 

It is important to not put the burden on industry and local farmers and ranchers to defend 

their view points at a time an issue is raised due to the lack of clarity of new regulation 

being imposed on business. The burden needs to be placed on the federal government to 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

58

prove damages are incurring or the potential of damage can incur within realistic 

conditions that may be developed with future growth. (p. 3)

Agency Response: See Summary Response. The agencies recognize the 

importance of public input on the content of the rule; thus, input was solicited via 

the public comment process and the proposed rule was disseminated to the widest 

audience possible. The public notice comment period was extended twice to ensure 

sufficient time for comment by all interested parties. The final rule was modified, 

based on public input, and improves CWA program predictability and consistency 

by increasing the clarity of the scope of “waters of the United States” covered by the 

Act. The Economic Analysis provides information on the potential costs/benefits to 

landowners and businesses. Also, when requesting a jurisdictional determination 

from the Corps, a landowner can provide information for consideration.

Black Hills Resource Conservation and Development (Doc. #7090)

12.58 The proposed expansion would significantly and negatively impact our six county area of 

the Black Hills region. In addition to tourism, agriculture is a critical and vital piece of 

our local economy. We promote conservation practices in the agricultural community 

through the Conservation Districts, non-governmental organizations, etc. This proposal 

would cause significant hardships to local farmers and ranchers by taking away local 

control of land uses. The costs to the local agricultural community would be enormous. 

This would lead to food and cattle prices increasing significantly. It significantly 

expands the scope of government oversight, effectively restricts the normal farming 

exemption, and creates new regulatory hurdles. In addition, it increases time and costs to 

landowners, and would require additional federal funding, not previously required, to 

provide technical assistance to insure compliance with new requirements. Unintended 

consequences of the application of this IR will be a net reduction in conservation 

activities. Individuals will face additional time, cost, and complexity in planning and 

applying conservation practices in farming and ranching operations, if they wish to have 

assurance that they are in compliance with agency requirements. The hurdles created are 

a hindrance to applying any of the identified practices. The effects will continue to 

magnify from there. The overall costs to the counties, municipalities and ultimately the 

taxpayers will be disadvantageous. 

Let local government regulate themselves. We know what our localized needs are better 

than the Federal Government. Our counties would experience a major impact as more 

waters would become federally protected and subject to the new rules, regulations, or

standards. We acknowledge that being proactive in protecting water quality is far more 

cost-effective than remediation. We have taken a proactive approach to protecting our 

water resources and are committed to continue to into the future, without the need for 

additional federal regulation. We supported and funded water projects throughout the 

Black Hills Region and are currently involved with Spring Creek, Rapid Creek, and 

Spearfish Creek watershed projects. Black Hills RC&D is strongly opposed to further 

regulations as proposed in the Clean Water Act expansion. (p. 2)

Agency Response: See Summary Response and the Economic Analysis which 

discusses costs/benefits and changes in jurisdiction. The agencies believe the final 

rule will result in increased clarity and certainty regarding the identification of 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

59

“waters of the U.S.” The agencies received many helpful comments on the proposed 

rule which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public. None of the existing procedures, permitting 

mechanisms, efficient permitting tools such as general permits, or activity 

exemptions will be modified as a result of this rulemaking; therefore, existing 

procedures should not be further complicated by this rule. The final rule was 

developed to increase CWA program predictability and consistency by increasing 

clarity as to the scope of “waters of the United States” protected under the Act. 

Definitions of certain terms are provided for the first time (e.g. tributary), or are 

further clarified (e.g. adjacent). The final rule provides for certain categories of 

waters that are jurisdictional by rule, which will result in a more efficient process. 

See the updated Economic Analysis for additional discussion. Comments specific to 

conservation practices are outside the scope of this rulemaking. Please note that the 

Interpretive Rule for conservation practices under Section 404(f)(1)(A) has been 

withdrawn, per Section 112 of the Consolidated and Further Continuing 

Appropriations Act of 2015. 

Murray County (Minnesota) Board of Commissioners (Doc. #7528)

12.59 The general tone of the proposed rule is to achieve clarity through over-inclusiveness 

based on categorical determinations. We caution the agencies’ approach in the proposed 

rule as it exacerbates an already existing problem: over regulation of non-navigable 

waters under the Clean Water Act and costly and time consuming over exertion of 

jurisdiction. (p. 3)

Agency Response: See Summary Response. The rule limits CWA jurisdiction 

only to those types of waters that have a significant nexus to downstream (a)(1)-

(a)(3) waters, not just any hydrologic connection. It improves efficiency, clarity, and 

predictability for all landowners as well as permit applicants.

Iowa Department of Agriculture and Land Stewardship (Doc. #7642)

12.60 We want to avoid putting the Natural Resources Conservation Service (NRCS) in a 

stronger regulatory role than they already are. We value NRCS partnerships in 

promoting conservation in local communities and making them serve a stronger 

regulatory role erodes the trust farmers put into them. They handle a great deal of private 

information in their work that is essential to getting conservation on the ground.

We would encourage use of state or regional advisory boards, utilizing input from local 

sources such as Soil and Water Conservation Districts, to expedite any permitting process 

at the initial level in circumstances where WOTUS have not been clearly defined. This 

advisory board could also be convened in a case of appealing determinations. (p. 1-2)

Agency Response: See Summary Response. The rule will not have an effect on 

the relationship between the Natural Resources Conservation Service (NRCS) and 

landowners. The NRCS does not administer any part of the Clean Water Act and 

therefore the rule cannot directly affect any of their missions. Please note that the 

Interpretive Rule for conservation practices under Section 404(f)(1)(A) has been 

withdrawn, per Section 112 of the Consolidated and Further Continuing 

Appropriations Act of 2015. Comments on the NRCS are outside the scope of this 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

60

rulemaking. Only the Corps and EPA have the authority to determine jurisdiction 

under the CWA. The agencies efficient permitting mechanisms will not be affected 

by this rule. Only affected parties as discussed in 33 CFR part 331 can 

administratively appeal a jurisdictional determination and administrative appeals 

are handled solely by the Corps.

Baldwin County (Alabama) Commission (Doc. #7940)

12.61 Because the proposed rule applies to all Clean Water Act programs, not just the Section 

404 program, Baldwin County would be subject to increasingly complex and costly 

federal regulatory requirements, including local storm water and pesticide programs, state 

water quality standards designations, green infrastructure and water reuse. (p. 1)

Agency Response: See Summary Response. Refer to the exclusions in paragraph 

(b) of the rule and the preamble section “Waters and Features that Are Not Waters 

of the United States” for further information regarding excluded features such as 

stormwater control features, ditches, and water recycling features. The agencies 

recognize that the state and local governments have well-defined and long-standing 

relationships in implementing affected CWA programs and these relationships will 

not be altered. This action will not have substantial direct effects on the states, on 

the relationship between the national government and the states, or on the 

distribution of power and responsibilities among the various levels of government.

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

12.62 It has been our experience that EPA and Army Corps regulators regularly interpret the 

same rule differently. We have experienced very similar road construction projects being 

regulated differently based on which office or regulator we are interacting. Similar 

concerns have risen from other agencies dealing with the Corps and the EPA. Clarity in 

rules and leaving less interpretation to field regulators can be a double edged sword, in 

that it reduces flexibility but also provides more consistent application of rules. (p. 4)

Agency Response: See Summary Response. The agencies are developing guidance 

to facilitate effective, consistent, and efficient implementation of the final rule once it 

becomes effective. The agencies strive to achieve consistency across the country in 

all districts and regions in application of the rule for jurisdictional determinations. 

The agencies also recognize that there are variations that occur in geography, 

hydrology, climate, etc., which affect jurisdictional determinations. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public. This training and outreach 

will be regionally-based to ensure appropriate consideration is given to ecoregional 

variation and to ensure consistent and efficient implementation of the rule. There 

are appropriate levels of regional variation in implementation of the regulations; 

however, the agencies strive for national consistency. This appropriate regional 

variation can make it appear that there are inconsistencies in program execution. 

The rule aims to reduce any inappropriate inconsistencies and provide a bright line 

of clarity for the agencies, state partners, and the regulated public. The agencies 

believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources; for example, the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

61

ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

La Plata Water Conservancy District (Doc. #8318)

12.63 The LPWCD respectfully requests that the Agencies withdraw the proposed Rule and 

draft a new rule that (1) lawfully adheres to the plurality opinion of the Supreme Court in 

Rapanos and asserts jurisdiction on much narrower, more predictable grounds and (2) 

acknowledges the nature of water use and infrastructure in the western United States by 

categorically distinguishing between man-made water delivery structures for agricultural 

and other purposes and excluding such structures from jurisdiction, consistent with the 

intent of Congress espoused in Section 404(f) of the Clean Water Act. (p. 2)

Agency Response: See Summary Response and the Technical Support Document. 

In addition, the final rule includes several water features that are excluded from 

jurisdiction by rule; see the preamble section, “Waters and Features that Are Not 

Waters of the United States” for further information regarding excluded features 

such as water recycling features.

Southern California Association of Governments (Doc. #8534)

12.64 The definition of “tributary” in the proposed rule is likely inappropriate as applied to 

stormwater discharges from property throughout Southern California. The Proposed 

Rule will categorize roadside drains and ditches as Waters of the U.S. if they have 

perennial flow, or the EPA or Army Corps determines that there is a significant nexus to 

a traditional navigable water. (p. 2)

Agency Response: See Summary Response. In addition, see the Tributary section 

in the preamble for further discussion on tributaries and the characteristics 

required to meet the definition. Also, see the preamble section, “Waters and 

Features that Are Not Waters of the United States” for further information 

regarding excluded features such as stormwater control features. 

Director of Public Services for the City of Portland, Maine (Doc. #8659)

12.65 Increasing the broad regulatory reach seems counterproductive to integrated planning, 

which EPA has been promoting as a means for a municipality or utility to combine all of 

its CWA permits into a single permit and determine priorities that best meets CWA goals 

for a community. (p. 3)

Agency Response: See Summary response. Overall, the scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

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

the existing regulations, in part because the rule includes provisions for a number of 

excluded waters, some of which are excluded by rule for the first time. See 

summary responses for Topic 7: Features and waters not jurisdictional, for further 

discussion of exclusions. The EPA continues to recommend integrative planning for 

communities to meet CWA requirements and achieve water quality goals. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

62

Hampton Roads Planning District Commission (Doc. #9612)

12.66 The HRPDC does not support the Waters of the US Rule as proposed. Staff has reviewed 

the proposed Rule and is concerned that it extends the EPA’s and U.S. Army Corps of 

Engineers’ (Corps) regulatory oversight further into the watershed, extending across 

uplands through groundwater and ephemeral pathways, systems that were not previously 

regulated as Waters of the US (WOTUS). The proposed definitions may cause conflicts 

amongst the various federal regulatory programs mandated through the Clean Water Act 

(CWA). Because the proposed exemptions to the Rule are not comprehensive, localities 

fear that the Rule may inhibit their ability to effectively maintain their public stormwater 

infrastructure and comply with federal and state stormwater regulations. (p. 1)

Agency Response: See Summary Response. The preamble section “Waters and 

Features that Are Not Waters of the United States” for further information 

regarding excluded features such as groundwater and erosional features including 

ephemeral features that don’t meet the definition of tributary. See the activity 

exemptions under section 404(f)(1) of the Clean Water Act regarding exemptions for 

certain maintenance activities. The agencies believe the exclusions in the rule are 

comprehensive and note that the exclusions are applicable to all Clean Water Act 

programs. The rule only provides a definition for “waters of the U.S.” The rule 

does not affect the CWA statute in which authorization may be required for 

discharges of dredged and/or fill material into waters of the U.S., or other activities 

in jurisdictional waters of the U.S. such as NPDES permits or Section 311 

requirements which require authorization. The agencies do not regulate dry land, 

only those aquatic resources that are “waters of the U.S.” See tributary definition in 

rule and discussion in preamble.

12.67 The Rule places too much reliance on individual COE staff members’ best professional 

judgment when making jurisdictional determinations. Over many years, the Region’s 

localities have experienced a lack of consistency between different regulators within the 

Norfolk District. The HRPDC is concerned that the Rule relies on interpretation by local 

Corps staff in the field which may lead to less clarity, certainty and predictability for the 

regulated public, possibly leading to resource demanding case-specific analyses. (p. 3)

Agency Response: See Summary Response. The agencies are developing guidance 

to facilitate effective, consistent, and efficient implementation of the final rule once it 

becomes effective. The agencies strive to achieve consistency across the country in 

all districts and regions in application of the rule for jurisdictional determinations. 

The agencies also recognize that there are variations that occur in geography,

hydrology, climate, etc., which affect jurisdictional determinations. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public. This training and outreach 

will be regionally-based to ensure appropriate consideration is given to ecoregional 

variation and to ensure consistent and efficient implementation of the rule. There 

are appropriate levels of regional variation in implementation of the regulations; 

however, the agencies strive for national consistency. This appropriate regional 

variation can make it appear that there are inconsistencies in program execution. 

The rule aims to reduce any inappropriate inconsistencies and provide a bright line 

of clarity for the agencies, state partners, and the regulated public. The agencies 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

63

believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources; for example, the 

ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

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

12.68 Adoption of these new rules requires an increase in funding and staff for both the federal 

agencies who implement these rules and their state counterparts. State health 

departments will face the burden of additional section 401 certifications and, in certain 

situations, additional standard setting proceedings, TMDL allocations, and section 402 

permit actions. If such funding is not forthcoming, it will cause projects to be delayed 

even further. (p. 3)

Agency Response: See Summary Response. See the Economic Analysis for 

discussion on costs/benefits and jurisdictional changes. The rule is a definitional 

rule and does not affect the current implementation of the various CWA programs 

such as the development of water quality standards or sections 303, 402 and 404, 

which are outside the scope of the rule. However, overall the scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

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

the existing regulations, in part because the rule includes provisions for a number of 

excluded waters, some of which are excluded by rule for the first time. Therefore, 

the agencies do not anticipate an increase in CWA regulatory actions during 

implementation of the rule.

Dayton Valley Conservation District (Doc. #10198)

12.69 DVCD is concerned that the proposed rule changes will extend the jurisdiction of the 

Corps’ regulatory authority and thereby increase their workload and duplicate regulations 

that the State of Nevada currently administers. (p. 1)

Agency Response: See Summary Response. The scope of regulatory jurisdiction 

in this rule is narrower than that under the existing regulation. Fewer waters will 

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

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

categories such as tributaries. The agencies believe with the clarity and certainty 

provided in the rule that there will be efficiencies gained in making jurisdictional 

determinations. The Corps will develop the tools necessary to assist its staff with the 

jurisdictional determination process specific to section 404 in the implementation of 

the final rule to make the process predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule. The 

agencies recognize that the state and local governments have well-defined and longstanding relationships in implementing affected CWA programs and these 

relationships will not be altered. This action will not have substantial direct effects 

on the states, on the relationship between the national government and the states, or 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

64

on the distribution of power and responsibilities among the various levels of 

government. The final rule does not restrict the states’ efforts in developing or 

implementing statewide permits under CWA programs as a result of the rule.

12.70 We are aware of projects in our area that are dependent upon Corps’ permits, which have 

been delayed because the Corps was unable to issue permits in a timely manner due to its 

workload. In the past I 0 years there have been several times when proposed water 

quality improvement projects in the Carson River were delayed a year or two because of 

the Corps’ backlog of pending permits. If the current backlog is one to two years, what 

will the backlog be when additional projects identified by the proposed rule will need 

Corps approval? (p. 2)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries The agencies believe with the clarity and certainty provided in the rule 

that there will be efficiencies gained in making jurisdictional determinations. The 

agencies will develop the tools necessary to assist with the jurisdictional 

determination process in the implementation of the final rule to make the process 

predictable, efficient, and effective. The initial phase of implementing the rule will 

require education and training for agency staff as well as other stakeholders and the 

regulated public, which will include regionally-based training to ensure consistent 

and efficient implementation of the rule.

Pleasant Vale Township Supervisor’s Office, Pike County, Illinois (Doc. #10200)

12.71 Statewide permits for certain construction and maintenance activities within ‘waters of 

Illinois’ will no longer be available for use by townships. (p. 2)

Agency Response: See Summary Response. Statewide permits are outside the 

scope of this rulemaking effort. The agencies recognize that the state and local 

governments have well-defined and long-standing relationships in implementing 

affected CWA programs and these relationships will not be altered. This action will 

not have substantial direct effects on the states, on the relationship between the 

national government and the states, or on the distribution of power and 

responsibilities among the various levels of government. The final rule does not 

restrict the states’ efforts in developing or implementing statewide permits under 

CWA programs as a result of the rule.

Kendall County Board, Illinois (Doc. #10965)

12.72 We are concerned that the already tedious, time consuming and expensive process of 

establishing jurisdiction will become less defined by the proposed rule and open Kendall 

County to potential litigation in order to maintain or improve the county highway system.

(p. 2)

Agency Response: See Summary Response. The Clean Water Act Section 

404(f)(1) exemptions still remain available for use when applicable. The final rule 

was developed to increase CWA program predictability and consistency by 

increasing clarity as to the scope of “waters of the United States” protected under 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

65

the Act. Definitions of certain terms are provided for the first time (e.g. tributary), 

or are further clarified (e.g. adjacent). The final rule provides for certain categories 

of waters that are jurisdictional by rule, which will result in a more efficient process. 

See the updated Economic Analysis for additional discussion.

City of Escondido Public Works Office (Doc. #11116)

12.73 We are required through our 401 permit to install BMPs to protect water quality. 

However under the 404 permit this is considered to be “temporary fill” thereby requiring 

regulation. The implementation of proper BMPs should not trigger more Clean Water 

Act requirements. It also causes confusion with the public who see an application for 

“temporary fill” and think that we are damaging a watercourse. This aspect of the 404 

permit should be eliminated. Will the revision in the definition of Waters of the U.S. also 

result in the provision of additional staffing to manage the increased demand for permits? 

In an attempt to keep applications progressing we have paid consultants to complete work 

that should be provided by the resource agencies. (p. 3)

Agency Response: The rule only provides a definition for “waters of the U.S.” 

The rule does not affect the CWA statute in which authorization may be required 

for discharges of dredged and/or fill material into waters of the U.S., or other 

activities in jurisdictional waters of the U.S. such as NPDES permits or Section 311 

requirements which require authorization. In addition, the rule does not affect 

activities that are currently exempt from CWA regulation. The rule also does not 

affect permitting tools such as the use of general permits that the Corps implements 

for expeditious review and efficiency in processing permit applications for 

discharges of dredged and/or fills material into waters of the U.S. The rule will 

improve consistency and predictability for all CWA programs and provide needed 

clarity regarding jurisdictional determinations, thus reducing uncertainties and 

delays. The scope of regulatory jurisdiction in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. The 

agencies are developing guidance to facilitate effective, consistent, and efficient 

implementation of the final rule once it becomes effective. The agencies strive to 

achieve consistency across the country in all districts and regions in application of 

the rule for jurisdictional determinations. The agencies also recognize that there 

are variations that occur in geography, hydrology, climate, etc., which affect 

jurisdictional determinations. The initial phase of implementing the rule will 

require education and training for agency staff as well as other stakeholders and the 

regulated public. This training and outreach will be regionally-based to ensure 

appropriate consideration is given to ecoregional variation and to ensure consistent 

and efficient implementation of the rule.

Iowa Drainage District Association (Doc. #11924)

12.74 In Iowa, the state has recently put in place a Nutrient Reduction Strategy, which involves 

voluntary practices by landowners and farmers to clean up their water. Our interpretation 

of the rule is that these practices would cease because they would require a CWA permit. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

66

The net result will be that the Nutrient Reduction Strategy, and the benefits of cleaner 

water that it is designed to achieve, will grind to a halt. (p. 1)

Agency Response: See Summary Response. See the preamble section “Waters 

and Features that Are Not Waters of the United States” for further information 

regarding excluded features such as groundwater and erosional features including 

ephemeral features that don’t meet the definition of tributary and grassed 

waterways. The activity exemptions under section 404(f)(1) of the Clean Water Act 

regarding exemptions for normal farming, silviculture, and ranching activities 

provide additional information that may be helpful pertaining to exclusions 

regarding ditches, erosional features, and grassed waterways. The rule only 

provides a definition for “waters of the U.S.” The rule does not affect the CWA 

statute in which authorization may be required for discharges of dredged and/or fill 

material into waters of the U.S., or other activities in jurisdictional waters of the 

U.S. which require authorization. In addition, the rule does not affect activities that 

are currently exempt from CWA regulation.

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

12.75 The proposed rule would broaden the geographic scope of waters that can be 

jurisdictional through establishment of a significant nexus. This would result in a heavier 

workload on the already-overtaxed regional USACE offices and on the communities who 

must request a determination for each project and will delay work done by agencies like 

UDFCD to protect streams. (p. 2)

Agency Response: See Summary Response. The scope of regulatory jurisdiction 

in this rule is narrower than that under the existing regulation. Fewer waters will 

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

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

categories such as tributaries. The agencies believe with the clarity and certainty 

provided in the rule that there will be efficiencies gained in making jurisdictional 

determinations for certain categories of waters jurisdictional by rule. The agencies 

are developing guidance to facilitate effective, consistent, and efficient 

implementation of the final rule once it becomes effective. The agencies strive to 

achieve consistency across the country in all districts and regions in application of 

the rule for jurisdictional determinations. The agencies also recognize that there 

are variations that occur in geography, hydrology, climate, etc., which affect 

jurisdictional determinations. The initial phase of implementing the rule will 

require education and training for agency staff as well as other stakeholders and the 

regulated public. This training and outreach will be regionally-based to ensure 

appropriate consideration is given to ecoregional variation and to ensure consistent 

and efficient implementation of the rule.

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

12.76 The EPA is moving forward with a pesticide/herbicide permit for all “Waters of the U.S.”

within threshold guidelines. This means anytime a pesticide/herbicide is applied on or 

near a “Waters of the U.S.” a permit will be required. This permit includes tight 

documentation requirements for communities of over 10,000. Under the proposed rule, if 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

67

counties have “Waters of the U.S.” ditches, they will be required to follow strict program 

and paperwork requirements for pesticide use. (p. 4)

Agency Response: See Summary Response. The rule would not change existing 

CWA permitting requirements regarding the application of pesticides. Discharges 

from the application of pesticides, which includes applications of herbicides, into 

irrigation ditches, canals, and other waterbodies that are themselves waters of the 

U.S., are not exempt as irrigation return flows or agricultural stormwater, and do 

require NPDES permit coverage. The EPA has a pesticides general permit (PGP) 

that covers many discharges for areas in which EPA is the NPDES permitting 

authority. In addition, all states with permitting authority have a PGP. However, 

the final rule includes exclusions for many ditches and certain other waters. For 

further discussion of these exclusions, see summary responses for Topic 6: Ditches

and Topic 7: Features and waters not jurisdictional. Discharges to features that are 

not waters of the U.S. would not require NPDES permit coverage. 

Uintah County, Utah (Doc. #12720)

12.77 In the arid climates of the western United States this proposed rule will add to the 

complexity of many proposed projects. Prior to the proposed rule, in Uintah County, 

there were only two conditions which needed to be evaluated as part of a proposed 

project. It was quite simple to identify potential impacts on navigable waters or identify 

exempted uses. (p. 3)

Agency Response: See Summary Response. The rule will provide greater 

predictability and certainty regarding which waters are jurisdictional. Consistent 

with case law and historical interpretation, the jurisdiction of “waters of the U.S.” 

extends beyond navigable waters. The Clean Water Act Section 404(f)(1) available 

exemptions do not change as a result of the final rule and additional exclusions have 

been provided in the final rule. The Corps will develop the tools necessary to assist 

its staff with the jurisdictional determination process specific to section 404 in the 

implementation of the final rule to make the process predictable, efficient, and 

effective. The initial phase of implementing the rule will require education and 

training for agency staff as well as other stakeholders and the regulated public, 

which will include regionally-based training to ensure consistent and efficient 

implementation of the rule. The agencies recognize that regional variations occur in 

water resources and may need to be addressed in implementation guidance; 

however, the rule language is applicable nationwide.

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

12.78 Under current regulations, some counties have been required to obtain federal permits for 

any type of construction or maintenance activities on these ditches, appallingly called 

jurisdictional ditches. Obtaining the federal permits can be very expensive, cumbersome 

and time-consuming. Some counties have waited years for federal permits at a 

significant cost. Counties have been unable to issue permits for structures and missed 

building seasons waiting for federal permits to be approved. Federal permit requirements 

for ditch maintenance activities also vary from area to area. No real consistency exists to 

help streamline this process. The National Association of Counties (NaCo) has 

documented numerous examples of problems that exist under the current “Waters of the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

68

U.S.” regulations. The new addition of areas to permit will further worsen an already 

stationary bureaucracy. (p. 5)

Agency Response: See summary response. The tributary and ditch definitions in 

the final rule and discussions of those subjects in the preamble under the 

“Tributary” section and the “Waters and Features that Are Not Waters of the 

United States” section provides discussion on tributaries and ditches. The final rule 

has included additional clarity regarding ditches that are excluded by rule and 

ditches that may be considered a tributary. The agencies believe with the clarity 

and certainty provided in the rule that there will be efficiencies gained in making 

jurisdictional determinations for certain categories of waters jurisdictional by rule. 

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 in the implementation of the final rule 

to make the process predictable, efficient, and effective. The initial phase of 

implementing the rule will require education and training for agency staff as well as 

other stakeholders and the regulated public, which will include regionally-based 

training to ensure consistent and efficient implementation of the rule. 

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

12.79 The Sacramento-San Joaquin River Delta contains approximately 738,000 acres. Of 

these, just 266,000 acres (less than 37% of the Delta) have been characterized as 

“uplands.” This means at least 63% percent of the Delta is either lowlands or actually 

underwater.13 The first two prongs of the proposed exclusion permit only uplands 

drainage ditches to be excluded. Thus, solely because of their elevation, drainage ditches 

in at least 63 percent of the region would become automatically jurisdictional –

regardless of any actual nexus to a navigable waterway. (p. 3-4)

Agency Response: See the Summary Response. The tributary and ditch 

definitions in the final rule and discussions of those subjects in the preamble under 

the “Tributary” section and the “Waters and Features that Are Not Waters of the 

United States” section provides discussion on tributaries and ditches. The final rule 

has included additional clarity regarding ditches that are excluded by rule and 

ditches that may be considered a tributary. The term “upland” was removed from 

the ditch exclusion language, based on comments received, and to provide increased 

clarity. 

12.80 Because much of the Delta consists of lands reclaimed a hundred years ago being used 

for farming, and because Delta farmers rely on ditches to both irrigate and drain their 

crops, there is often “perennial flow” in Delta ditches. This flow is necessary because the 

Delta requires constant drainage to make the land usable for crop production. 

Additionally, failure to keep these lands drained could lead to public health risks from the 

presence of stagnant water, which contributes to West Nile and other ailments. Finally 

and most importantly, constant flows may be needed in order to accommodate and 

address flood flows. Here, the “perennial flows” aspect of the definition penalizes the 

 

13 Department of Water Resources Report on 1956 Cooperative Study program - Water Use and Water Rights Along 

Sacramento River and in Sacramento-San Joaquin Delta, Vol. 1 (March 1957)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

69

very conditions that protect the Delta’s economic well-being, physical health, and public 

safety. (p. 4)

Agency Response: See Summary Response. The tributary and ditch definitions in 

the final rule and discussions of those subjects in the preamble under the 

“Tributary” section and the “Waters and Features that Are Not Waters of the 

United States” section provides discussion on tributaries and ditches. The final rule 

has included additional clarity regarding ditches that are excluded by rule and 

ditches that may be considered a tributary. Certain ditches with perennial flow, 

and those excavated from a tributary, may be considered a tributary; the rule has 

concluded that ditches that are not excluded and do meet the definition of tributary 

have a significant nexus with (a)(1) to (a)(3) waters. 

12.81 The Corps and EPA stated in their “Supplementary Information” document that 90 

percent of Delta lands were diked or leveed.14 The document goes on to say that 

construction of a levee or dike does not remove the “adjacent waters” status of the 

waters.15 This potentially means that 90 percent of the Delta or more can be governed 

under the “adjacent waters” segment of the definition despite the presence of levees often 

constructed more than 100 years ago. (p. 4)

Agency Response: See Summary Response. The final rule and associated 

preamble sections contain discussion specific to for further discussion on which 

waters are considered adjacent with the addition of “bright lines” to allow the 

agencies and the regulated public further predictability and consistency. It is 

correct that adjacent waters include those separated by constructed dikes, barriers, 

natural river berms, beach dunes, and other similar features.

Roosevelt Soil and Water Conservation District (Doc. #13202)

12.82 Inclusion of ephemeral gullies is problematic because of the nature of such gullies. 

Depending on soils and location the Total Maximum Daily Load (TMDL) may be 

exceeded during isolated events (rainfall and/or snowmelt) from bank to bank erosion 

regardless of the condition of the upper watershed (p. 1)

Agency Response: See exclusions regarding erosional features. The final rule 

does not change how TMDLs and permitting required by the CWA are 

implemented, which is outside the scope of this rule. Ephemeral streams that meet 

the definition of “tributaries” are regulated as waters of the U.S. under the final 

rule. However, many ephemeral waters are excluded from waters of the U.S., 

including ephemeral ditches that are not excavated in or relocating a tributary, and 

ephemeral erosional features that lack bed and banks and ordinary high water 

mark, including gullies, rills and non-wetland swales. See summary response essays 

for Topic 6.2: Excluded ditches and Topic 7.3.7: Gullies, rills and non-wetland 

swales, for more information.

12.83 The Amendment will affect state permitting actions for pollution discharge as well as 

water quality standards and oil spill programs. While it is claimed that agriculture 

 

14 79 FR 22243 

15 Id. See more discussion of levee adjacency, supra. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

70

(farming and ranching) will be protected the amended definitions will allow regulation by 

EPA and Corp of Engineers on small waterways on private property. Current practices 

on cropland such as deep breaking, root plowing, and even grazing could result in 

regulation preventing agriculturists from providing affordable food and fiber to a hungry 

America. (p. 2)

Agency Response: See Summary Response. The rule does not affect longstanding 

permitting exemptions in the CWA for farming, silviculture, ranching and other 

specified activities. Where are determined jurisdictional under the Clean Water Act, 

applicable exemptions in the CWA would continue to preclude application of CWA 

permitting requirements. The rule is a definitional rule to clarify the scope of 

waters of the U.S., and the final rule does not change state permitting requirements 

and processes for the CWA regulatory programs. The final rule includes expanded 

exclusions from waters of the U.S. for many ditches, and certain features 

constructed in dry land, erosional features and artificially irrigated features that 

would revert to dry land if irrigation were to cease. See summary responses for 

Topic 6.2: Excluded Ditches and Topic 7: Features and waters not jurisdictional, for 

further discussion, for more discussion. Agricultural practices that do not result in 

discharges to waters of the U.S. are not regulated by the CWA. Finally, there are a 

number of agricultural activities exempted from CWA 404 permit requirements, 

under CWA 404(f)(1)(A), which are not changed by the rule. 

Northeastern Soil and Water Conservation District (Doc. #13581)

12.84 This interpretative rule does not make clear which agency will be the enforcers of 

compliance. If the NRCS is made to be the enforcers of this rule we fear that the 

relationship between the agricultural producers and the NRCS, which is strong and 

beneficial to both, will be eroded and strained. Currently, the NRCS provides excellent 

technical guidance on a wide range of farming practices. As was stated by NRCS field 

personnel at a recent meeting in New Mexico, their job is to assist agricultural 

producers. The NRCS field personnel have not traditionally had a regulatory or policing 

role, rather they have helped farmers solve technical problems, improve farming practices 

and access resources of the United States Department of Agriculture (USDA). This 

provides benefits to farmers and ranchers, the natural resources upon which farming and 

our nation depend. (p. 2)

Agency Response: See Summary Response. The Interpretive Rule for 

conservation practices under 404(f)(1)(A) has been withdrawn, per Section 112 of 

the Consolidated and Further Continuing Appropriations Act of 2015. The EPA, 

the Corps, and applicable states and tribes, are the only agencies with authority to 

implement the Clean Water Act. The final rule does not affect the authorities of the 

NRCS under their programs and NRCS does not have any authority under the 

Clean Water Act.

County Commissioners Office of Big Horn County, Wyoming (Doc. #13599)

12.85 When federal agencies new rule has the power to grant, deny, or veto a federally 

enforceable permit to plow, plant, build a fence, apply fertilizer or spray pesticide or 

disease-control products on crops, that is regulatory authority over land use, and qualifies 

as A Major Federal Action. (p. 2)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

71

Agency Response: See Summary Response. The rule only provides a definition 

for “waters of the U.S.” The rule does not affect the CWA statute in which 

authorization may be required for discharges of dredged and/or fill material into 

waters of the U.S., or other activities in jurisdictional waters of the U.S. which 

require authorization. In addition, the final rule does not affect the existing 

statutory activity-based exemptions under Section 404(f)(1) of the Clean Water Act, 

including the longstanding permitting exemptions in the CWA for farming, 

silviculture, and ranching. The agencies do not have authority to regulate a 

landowner’s property. The agencies only have authority to regulate jurisdictional 

activities in jurisdictional waters of the U.S. under the Clean Water Act.

Pocahontas County, Iowa (Doc. #13666)

12.86 Concern for the competency of the USEPA to do what it seeks: We are convinced that 

the US EPA does not have an inkling of understanding for how it will identify new 

waters of the United States and manage the expanded jurisdiction they seek over isolated 

farmed wetlands. The NRCS, has an office and staff in our county, has had the same job 

for more than 25 years and it is still stumbling to get it done. How is it that an agency 

with no Iowa presence or knowledge can expect to do better? You cannot due to the lack 

of knowledge and understanding! (p. 1)

Agency Response: See Summary Response. The agencies have been identifying 

waters of the US for over 30 years and will continue to implement a national 

program at the local level via Corps district offices and EPA Regional offices. The 

EPA, the Corps, and applicable states and tribes, are the only agencies with 

authority to implement the Clean Water Act. The final rule does not affect the 

authorities of the NRCS under their programs and NRCS does not have any 

authority under the Clean Water Act. 

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

12.87 Concern that regulatory takings will occur. The subversion of vested drainage rights 

by farm program rules have routinely been justified by the claim that farm program 

participation is voluntary. But identical Clean Water Act subversions of the same rights 

cannot be poo-pooed in that way because it does not offer voluntary participation. We 

assert that a regulatory taking will occur when the new rules first prevent the improved 

drainage of a single, long-ago converted and continuously cropped farmed wetland 

assessed for relative benefits by an Iowa drainage district. We note that the proposed 

rules give no consideration to how the rule may adversely impact owners of wetlands 

hydrologically altered to allow conversion to crop production and other beneficial uses. 

(p. 2)

Agency Response: See Summary Response. See Technical Support Document. 

The rule only provides a definition for “waters of the U.S.” The rule does not affect 

the CWA statute in which authorization may be required for discharges of dredged 

and/or fill material into waters of the U.S., or other activities in jurisdictional waters 

of the U.S. which require authorization. In addition, the final rule does not affect 

the existing statutory activity-based exemptions under Section 404(f)(1) of the Clean 

Water Act, including the longstanding permitting exemptions in the CWA for 

farming, silviculture, and ranching. The agencies do not have authority to regulate 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

72

a landowner’s property. The agencies only have authority to regulate jurisdictional 

activities in jurisdictional waters of the U.S. under the Clean Water Act.

Pinellas County Board of County Commissioners (Doc. #14426)

12.88 If the proposed new definition requires that water quality standards and TMDLs be 

applied to stormwater conveyances and storage systems not currently classified as 

WOTUS, the additional costs may make TMDL compliance unattainable. Furthermore, 

construction and maintenance of stormwater BMPs needed to meet TMDLs will require 

additional permitting under the proposed rule, increasing both time and expense for 

complying with TMDLs as described in the following sections. (p. 3)

Agency Response: See Summary Response. This rule will not affect the current 

implementation of the various CWA programs including water quality standards 

program, TMDLs and permitting required by the CWA, which are outside the 

scope of the rule. Overall, the scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

part because the rule includes provisions for a number of excluded waters, some of 

which are excluded by rule for the first time. Many stormwater conveyance, water 

reuse and waste treatment systems constructed in dry land are excluded from 

waters of the U.S. under paragraph (b) of the rule. However, features constructed 

in waters of the U.S. would remain jurisdictional and are subject to CWA 

permitting. For further discussion of exclusions, see summary responses for Topic 

6.2: Excluded ditches and Topic 7: Features and waters not jurisdictional.

Waters of the United States Coalition (Doc. #14589)

12.89 Critically, states are prohibited from adopting “waste transport or waste assimilation as a 

designated use for any waters of the United States.” (40 C.F.R. § 131.10(a).) The 

prohibition is designed to ensure that waters of the United States are not used for waste 

treatment and that the basic fishable swimmable standard can be attained. However it 

prevents treatment systems that could improve water quality from being constructed 

within waters of the United States. As a result, inappropriately designating water 

infrastructure, and specifically flood control infrastructure, as waters of the United States 

will severely hinder the ability of downstream waters to ever attain the applicable Water 

Quality Standards.

What is more, when waters of the United States do not attain their designated Water 

Quality Standards, the states or EPA are required by Clean Water Act section 303(d) to 

adopt a TMDL for the pollutant causing nonattainment. TMDLs are a zero sum game 

between the Waste Load Allocation (limits on NPDES discharges); the Load Allocation 

(non-NPDES discharges); and a margin of safety. States are required to impose limits on 

activities that do not require Clean Water Act permits to ensure that the Load Allocation 

of any applicable TMDL is attained. So again, even if an NPDES or other permit is not 

required for a given activity, through the TMDL process, designation of a water body as 

waters of the United States can result in significant limitations. (p. 17-18)

Agency Response: See Summary Response. The rule does not change how 

designated uses, water quality standards, TMDLs and permitting required by the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

73

CWA are implemented, and these comments are outside the scope of the rule. 

Overall, the scope of regulatory jurisdiction in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

includes provisions for a number of excluded waters, some of which are excluded by 

rule for the first time. Many stormwater conveyance, water reuse and waste 

treatment systems constructed in dry land are excluded from waters of the U.S. 

under paragraph (b) of the rule. However, features constructed in waters of the 

U.S. would remain jurisdictional and are subject to CWA permitting. For further 

discussion of exclusions, see summary responses for Topic 6.2: Excluded ditches and 

Topic 7: Features and waters not jurisdictional. TMDLs do not impose regulatory 

requirements or controls on discharges. A TMDL is a calculation of the maximum 

amount of a pollutant that a waterbody can receive and still meet water quality 

standards, and an allocation of that load among the various sources of that 

pollutant. Pollutant sources are characterized as either point sources that receive a 

wasteload allocation (WLA), or nonpoint sources that receive a load allocation (LA). 

Approved wasteload allocations for point sources must be implemented in 

applicable NPDES permits (CWA Section 402). Load allocations for nonpoint 

sources are implemented through a wide variety of state, local, and Federal 

programs, which are primarily voluntary or incentive-based (e.g., CWA Section 

319).

12.90 Moreover, the Proposed Rule’s broad and expansive definition of a “tributary” would 

potentially trigger the consultation requirements of section 7 of the Endangered Species 

Act (“ESA”), which provide that federal agencies that propose to take a federal actions 

that may affect endangered species must consult with the U.S. Fish and Wildlife Service 

(“FWS”), which is authorized to impose alternatives to avoid such effects. (16 U.S.C. § 

1536.) (p. 24)

Agency Response: See Summary Response. Obtaining a jurisdictional 

determination from the agencies does not trigger Section 7 of the Endangered 

Species Act, a federal action, such as a permit decision, does. While it is the 

responsibility of the Corps as the agency evaluating permit applications under 

section 404, to determine if Endangered Species Act and the National Historic 

Preservation Act requirements are being met, there are cases where these laws or 

other federal, state or local laws may still require review absent a CWA action. The 

404 permit action does not remove the requirement to get other permits, if required 

by law. However, private landowners are also required to comply with Section 10 of 

the Endangered Species Act absent a federal action. The agencies work to ensure 

this compliance with other federal laws is completed in the most efficient and 

effective manner, and may include programmatic agreements or local operating 

procedures to streamline the process.

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

12.91 In addition, it is our belief that changes to definitions within WOTUS will affect a 

number of state and local Clean Water Act programs, including the National Pollutant 

Discharge Elimination System (NPDES) and total maximum daily loads (TMDL). The 

Florida Department of Environmental Protection has confirmed there will be impacts but 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

74

has not communicated to the regulated community the details of what that will entail. (p. 

2)

Agency Response: See Summary Response. The rule does not change how water 

quality standards, TMDLs and permitting required by the CWA are implemented, 

and these comments are outside the scope of the rule. Overall, the scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

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

rule than under the existing regulations, in part because the rule includes provisions 

for a number of excluded waters, some of which are excluded by rule for the first 

time. For further discussion of exclusions, see summary responses for Topic 6.2: 

Excluded ditches and Topic 7: Features and waters not jurisdictional.

San Joaquin County Board of Supervisors (Doc. #15017.1)

12.92 The Agencies have not adequately analyzed the proposed rule’s implications of the 

multiple CWA programs affected by the proposal. The proposed rule will replace the 

definition of “navigable waters” and “waters of the U.S.” in the regulations for all CWA 

programs, including section 404 discharges of dredge or fill material, the section 402 

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

401 state water quality certification process, and section 303 water quality standards and 

total maximum daily load (TMDL) programs. 

We do not believe the agencies have truly considered the complex implications that this 

proposed rule will have for the various CWA programs.

Although the EPA’s Economic Analysis purports to analyze the costs of overlaying this 

new “waters of the U.S.” 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 seems inadequate. The

agencies have not considered, for example, that many ditches and other water features, 

including intermittent or ephemeral streams and washes, may now meet the definition of 

“waters of the U.S.,” thereby requiring these water 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 U.S.” will affect their own 

administration of each of the CWA regulatory programs. (p. 1-2)

Agency Response: See updated Economic Analysis for the final rule. The agencies 

understand that the definition of “waters of the U.S.” applies to all CWA programs. 

The agencies modified the final rule from the proposed rule in response to 

comments received in order to ensure unintended effects to those other CWA 

programs were reduced or eliminated. The Economic Analysis provides 

costs/benefits and predicted change in jurisdiction for all CWA programs. The rule 

defines the scope of waters of the U.S. subject to the CWA. It will not affect the 

current implementation of the various CWA programs; implementation of those 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

75

programs are outside the scope of this rule. Overall, the scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

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

the existing regulations, in part because the rule includes provisions for a number of 

excluded waters, some of which are excluded by rule for the first time, including 

many ditches and certain stormwater conveyance features. For further discussion 

of exclusions, see summary responses for Topic 6.2: Excluded ditches and Topic 7: 

Features and waters not jurisdictional. The agencies have thoroughly considered the 

implications of the final rule on the CWA programs and the agencies, states and 

tribes responsible for implementing CWA regulations, and the agencies believe that 

revisions in the final rule respond to a number of concerns expressed by states and 

other stakeholders. In addition, the economic analysis has been updated for the 

final rule. See summary response for Topic 11: Costs/Benefits and the Agencies 

Economic Analysis document for details on the estimated costs and benefits of the 

rule.

Ramsey County Public Works (Doc. #16665)

12.93 [Regarding “simplification of the permit process”] The LGAC report states that the 

making of WOTUS jurisdictional decisions whether a water resource is exempt or not In 

a timely manner is critical to both protecting the water resource and providing 

predictability to local governments. LGAC recommendations include EPA and U.S. 

Army Corps of Engineers (USACE) developing a tool for use by local governments to 

assess jurisdictional status; EPA working with stormwater associations to provide 

guidance to address MS4 agencies, stormwater controls, and their jurisdictional 

determination; and EPA articulating jurisdictional waters in an outreach plan which 

describes these areas with a clear statement of why they need protection. The LGAC 

report recommends that the rule stipulate time frames for permit review and WOTUS 

jurisdictional determination. The EPA should work with the USACE to reduce delays in 

issuing Section 404 dredge and fill permits. The LGAC report identifies an ineffective 

permit process consumes local, state and federal staff and financial resources and 

recommends the EPA engage the USACE to ensure the permit process is predictable and 

value-added. Ramsey County supports these LGAC recommendations. (p. 2)

Agency Response: See Summary Response. Refer to the exclusions in paragraph 

(b) of the rule and the preamble section “Waters and Features that Are Not Waters 

of the United States” for further information regarding excluded features such as 

stormwater control features, ditches, and water recycling features. There are two 

types of jurisdictional determinations; preliminary and approved jurisdictional 

determinations. Preliminary jurisdictional determinations indicate which waters on 

a property may be waters of the U.S., presume all waters on a property are 

jurisdictional, are not legally binding instruments, and enable a landowner to set 

aside the issue of jurisdiction and move directly into the permit evaluation phase of 

the process. Preliminary jurisdictional determinations cannot be used to decline 

jurisdiction and are generally more expedient than approved jurisdictional 

determinations. Approved jurisdictional determinations are the official Corps 

determination that jurisdictional “waters of the United States,” or “navigable 

waters of the United States,” or both, are either present or absent on a particular 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

76

site. An approved JD precisely identifies the limits of those waters on the project site 

determined to be jurisdictional under the Clean Water Act/Rivers and Harbors Act. 

The majority of jurisdictional determinations completed by the Corps are 

preliminary. Not every permit application requires a jurisdictional determination. 

The Corps will continue to provide the option to the landowner for both approved 

and preliminary jurisdictional determinations. There is not expected to be a 

required timeframe for completion of a jurisdictional determination, which can be 

dependent on a variety of factors including climate and weather patterns.

Hot Springs County Commissioners (Doc. #16676)

12.94 The EPA (...) failed to consider in its analysis the economic impact of required 

Endangered Species Act (ESA) consultations, National Environmental Policy Act 

(NEPA) directives requisite when a federal permit is issued. Wyoming is ground zero for 

the pending decision from the U.S. Fish and Wildlife Service on the listing of the greater 

sage grouse, and is home to several other threatened or endangered species. A county’s 

ability to complete road and bridge work or other infrastructure projects is already 

hindered by the mitigation of impacts on these species. Any additional triggers imposed 

by this proposed rule that require further ESA and NEPA analysis is an unwelcome 

hindrance and poses an increased cost. (p. 9) 

Agency Response: See Summary Response. See the updated Economic Analysis 

for additional information on costs/benefits of the final rule. It is the responsibility 

of the Corps as the agency evaluating permit applications under section 404, to 

determine if Endangered Species Act and the National Historic Preservation Act 

requirements are being met. There are cases where these laws or other federal, 

state or local laws may still require review absent a CWA action. The 404 permit 

action does not remove the requirement to get other permits, if required by law. 

Obtaining a jurisdictional determination from the agencies does not trigger Section 

7 of the Endangered Species Act, a federal action does, such as a section 404 permit 

decision. However, private landowners are also required to comply with Section 10 

of the Endangered Species Act absent a federal action. The agencies work to ensure 

this compliance with other federal laws is completed in the most efficient and 

effective manner, and may include programmatic agreements or local operating 

procedures to streamline the process.

Dolores Water Conservancy District (Doc. #19461)

12.95 Application of those regulatory provisions designed for bona fide “waters of the U.S.” to 

dry arroyos, irrigation ditches, and other ephemeral or intermittent waters commonly 

found in the western U.S. will result in adverse economic impacts to landowners and 

communities in a vain attempt to “protect” non-navigable, intrastate waters that Congress 

nowhere evinced an intent to regulate in the Clean Water Act. Such waters will be subject 

to impairment listings and the imposition of TMDLs under Section 303 of the Act, 

restrictive effluent limitations under the Section 402 NPDES program, restrictive storm 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

77

water BMP requirements under Section 402(p ), and compliance costs and restrictions 

under the Section 404 permitting requirements of the Act.16

Again, these issues were also identified by the Bureau of Reclamation in its 2008 letter to 

the Agencies:

The guidance adopts overly broad jurisdiction over seasonal flow tributaries and 

“ephemeral waters,” declaring that water flow for only three months of the year is a 

sufficient basis for jurisdiction. Reclamation believes that the asserted jurisdiction over 

seasonal flow tributaries and ephemeral washes should be much narrower .... 

Though this paragraph [about ephemeral waters] provides a good description of the 

function of ephemeral waters in the arid west, it does not state how the jurisdictional 

question will be applied to them. As this issue is relevant to many of the states within 

Reclamation’s area of jurisdiction, it would be helpful if the paragraph ended with a clear 

statement regarding how the agencies will assert jurisdiction. Without clarification, 

additional consultations may need to be conducted.17 (p. 9-10)

Agency Response: See Summary Response. See the Technical Support Document 

for a summary of the scientific and legal basis of the final rule. See the tributary 

and ditch definitions in the final rule and discussions of those subjects in the 

preamble under the “Tributary” section and the “Waters and Features that Are Not 

Waters of the United States” section for discussion on ditches, erosional features, 

and wastewater recycling features. To be considered a “tributary” under the final 

rule, a water feature must demonstrate both bed/banks and an ordinary high water 

mark, regardless of flow regime, which would distinguish them from nonjurisdictional features. The agencies believe such characteristics indicate sufficient 

volume and frequency of flow for a tributary to have a significant nexus to the 

downstream (a)(1) to (a)(3) waters.

Quay County, New Mexico (Doc. #19558)

12.96 The regulated community must still rely on the EPA or USACE to determine: (i) whether 

a water is jurisdictional by rule; (ii) if not, whether the water is an “other” water; and (iii) 

whether any exceptions apply. This is not a predictable, consistent or clear process and 

in the end it remains potentially arbitrary and onerous. (p. 4)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. Definitions of 

certain terms are provided for the first time (e.g. tributary), or are further clarified 

(e.g. adjacent). The final rule provides for certain categories of waters that are 

jurisdictional by rule, which will result in a more efficient process. See the updated 

 

16 We cannot help noting the irony of the Agencies expanding the jurisdiction asserted pursuant to the Rivers and 

Harbors Act, now Section 404 of Clean Water Act, through this administrative rulemaking. The entire purpose, and 

thus jurisdictional underpinning, of the Rivers and Harbors Act was for the U.S. Army to improve the navigability of 

genuinely navigable waterways through regulating dredging and filling activities, not to create a federal 

jurisdictional hook for any waters that might discharge a pollutant to a water tenuously connected to those genuinely 

navigable waterways.

17 BOR 2008 Guidance Comments, at pp. 3 and 4. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

78

Economic Analysis for additional discussion. The agencies believe the final rule will 

result in increased clarity and certainty regarding the identification of “waters of 

the U.S.” The agencies received many helpful comments on the proposed rule which 

resulted in refinement of the final rule to provide further clarity and certainty to the 

regulated public. None of the existing procedures, permitting mechanisms, efficient 

permitting tools such as general permits, or activity exemptions will be modified as a 

result of this rulemaking; therefore, existing procedures should not be further 

complicated by this rule. The Corps will develop the tools necessary to assist its 

staff with the jurisdictional determination process specific to section 404 in the 

implementation of the final rule to make the process predictable, efficient, and 

effective.

12.97 Implications regarding the Endangered Species Act (ESA): We express extreme concern 

regarding the additional regulatory and economic burden that will be placed on Quay 

County, our landowners, businesses and residents in being forced complying with ESA 

Section 7 consultation requirements as a result of the Proposed Rule. When the Proposed 

Rule as written is broadly enforced by the EPA and USACE regarding permitting 

requirements, the ensuing federal nexus will require ESA Section 7 consultation across 

New Mexico for normal and customary county activities, road maintenance, construction, 

agricultural and ranching practices that is not required today, as there are no agricultural 

or ranching exemptions contained within the ESA. The additional burden and potential 

ESA take findings will undoubtedly cause irreparable economic harm to Quay County 

and threaten and potentially eliminate the customs and culture of their rural communities. 

(p. 4-5)

Agency Response: See Summary Response. See the updated Economic Analysis 

for information on costs/benefits. While it is the responsibility of the Corps as the 

agency evaluating permit applications under section 404, to determine if 

Endangered Species Act and the National Historic Preservation Act requirements 

are being met, there are cases where these laws or other federal, state or local laws 

may still require review absent a CWA action. The 404 permit action does not 

remove the requirement to get other permits, if required by law. Obtaining a 

jurisdictional determination from the agencies does not trigger Section 7 of the 

Endangered Species Act, a federal action does, such as a section 404 permit decision. 

However, private landowners are also required to comply with Section 10 of the 

Endangered Species Act absent a federal action. The agencies work to ensure this 

compliance with other federal laws is completed in the most efficient and effective 

manner, and may include programmatic agreements or local operating procedures 

to streamline the process.

12.98 There are hundreds of miles of roads maintained and repaired by the county that will fall 

under the control and jurisdiction of the broad and subjective authority of the proposed 

rule. These roads are essential to our residents for access to their homes and property, 

emergency services, fire protections and normal transportation and travel required by 

their lives and livelihoods. (p. 5)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. See the preamble 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

79

section “Waters and Features that Are Not Waters of the United States” for further 

information regarding excluded features. The agencies believe the exclusions in the 

rule are comprehensive and note that the exclusions are applicable to all Clean 

Water Act programs. The final rule includes exclusions for certain ditches which 

are not jurisdictional even if they met the definition of “tributary”. The agencies 

only have authority to regulate “waters of the U.S.” and are not regulating all land. 

12.99 There are thousands of other pre-existing, necessary and essential improvements both 

public and private that are built on or over land that will be affected by the control of the 

agencies under the proposed rule. These include the public infrastructure, public and 

private roads, transmission lines, power lines, telephone lines, pipelines, railroads, 

highways, water lines, fences and erosion control structures. These would all become 

subject to the arbitrary and subjective opinion and enforcement activities of EPA, 

USACE and others. The adverse and unreasonable effect of the proposed rule and 

enforcement actions would be harmful and counterproductive. (p. 5)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. See the preamble 

section “Waters and Features that Are Not Waters of the United States” for further 

information regarding excluded features, such as certain ditches and stormwater 

control features. The agencies believe the exclusions in the rule are comprehensive 

and note that the exclusions are applicable to all Clean Water Act programs. The 

agencies are not regulating all land, but only “waters of the U.S.”. The statutory 

authority of the CWA does not convey to the Federal Government any ownership of 

or property rights. Therefore, we do not believe that private property will be 

negatively impacted by the Federal Government as a result of the proposed rule. 

The agencies believe the clarity and certainty provided in the rule will result in 

better identification of what is/is not a water of the U.S. which may result in reduced 

enforcement actions for unauthorized activities and reduced opportunity for 

litigation based on what is/is not a water of the U.S.

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

12.100 The Agencies Have Not Adequately Analyzed the Proposed Rule’s Implications on the 

Multiple CWA Programs Affected by the Proposal.

The proposed rule will replace the definition of “navigable waters” and waters of the 

United States in the regulations for all CWA programs, including section 404 discharges 

of dredge or fill material, the section 402 National Pollutant Discharge Elimination 

System (NPDES) permit program, the section 401 state water quality certification 

process, and section 303 water quality standards and total maximum daily load (TMDL) 

programs. We do not believe the agencies have truly considered the complex 

implications that this proposed rule will have for the various CWA programs. (p. 3)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. The agencies 

understand that the definition of “waters of the U.S.” applies to all CWA programs. 

The rule only provides a definition for “waters of the U.S.” The rule does not affect 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

80

the CWA statute in which authorization may be required for discharges of dredged 

and/or fill material into waters of the U.S., or other activities in jurisdictional waters 

of the U.S. such as NPDES permits or Section 311 requirements which require 

authorization. The agencies modified the final rule from the proposed rule in 

response to comments received in order to ensure unintended effects to those other 

CWA programs were reduced or eliminated. The Economic Analysis provides 

costs/benefits and predicted change in jurisdiction for all CWA programs. 

Montana Wool Growers Association (Doc. #5912)

12.101 Neither the Proposed Rule nor its Preamble explains which regulations the Proposed Rule 

would replace. The Proposed Rule duplicates the definition twelve times, once for each 

section of regulatory text it would replace. The duplication is the only indication in the 

Federal Register that twelve regulations would be amended. The list of citations in the 

Federal Register header (print version) refers only to general parts in the Code of Federal 

Regulation. Similarly, the Preamble simply mentions that two current regulations define 

WOTUS and that “counterpart and substantively similar regulatory definitions appear” at 

ten other (named) locations. 79 Fed. Reg. at 2219S. The EPA does provide a separate 

copy of the Proposed Rule on its website with a list of the regulations the Proposed Rule 

will replace, but this explanation is reduced to a single sentence at the bottom of the 

document. The introductory text to the Proposed Rule should clearly state which 

regulations the Proposed Rule will replace. (p. 12)

Agency Response: The following entries in the Code of Federal Regulations 

(CFR) will be replaced: 33 CFR Part 328, 40 CFR Parts 110, 112, 116, 117, 122, 

230, 232, 300, 302, and 401.

Area II Minnesota River Basin Projects, Inc. (Doc. #7185)

12.102 The Corps of Engineers, particularly the St. Paul District, cannot handle more permitting. 

The St. Paul District posted a news release on May 9, 2014 stating: “ ... timeframes for 

general permit decisions, those with impacts generally less than 0.5 acres are averaging 

85 days. Timeframes for individual permit decisions, which include letters of permission, 

range from 4 months to more than a year, but are currently averaging around 8 months.”

Given a short construction season in Minnesota of about five to six months, three to eight 

months for permit review by the Corps of Engineer is not only unacceptable, but not 

necessary for conservation practices that are vital to our landscape and agricultural 

economy. We cannot support further overload of a permitting system that is already 

overloaded and extremely slow. The St. Paul District office of the U.S. Army Corps of 

Engineers is three hours away from southwestern Minnesota making site visits and timely 

responses very difficult. (p. 2)

Agency Response: See Summary Response. The agencies believe with the clarity 

and certainty provided in the rule that there will be efficiencies gained in making 

jurisdictional determinations. The Corps will develop the tools necessary to assist 

its staff with the jurisdictional determination process specific to section 404 during 

the implementation of the final rule to make the process predictable, efficient, and 

effective. The initial phase of implementing the rule will require education and 

training for agency staff as well as other stakeholders and the regulated public, 

which will include regionally-based training to ensure consistent and efficient 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

81

implementation of the rule. There are many desktop tools that can aid in making a 

jurisdictional determination; examples of those tools are described in the 

“Tributary” section of the preamble.

Pennsylvania Department of Environmental Protection Water Management Office (Doc. #7985)

12.103 Overcoming structural and authority limitations of the Clean Water Act through the 

revision of the definition of “Waters of the United States” is not appropriate. 

Pennsylvania recognizes that the challenges in protecting water resources have evolved 

since passage of the Clean Water Act in 1972. However, trying to address the problems 

of 2014 (which are largely wet weather driven and/or are associated with nonpoint 

sources) by changing the definition of “Waters of the United States” is not appropriate. 

The proposed definition will expand jurisdiction over stormwater related systems, which 

is particularly inappropriate after EPA has chosen not to proceed with the national 

stormwater rulemaking. Further, using this new definition in the existing permitting 

programs under Sections 402 and 404 will render both of these programs more 

cumbersome and confusing. Expansion of federal regulatory oversight through a 

definitional change is not appropriate, hut more significantly, will not be effective. The 

permitting authorities (state and federal) will be mired in litigation and disputes related to 

the proper interpretation of the proposed re-definition of “Waters of the United States.”

(p. 4)

Agency Response: See Summary Response and the Technical Support Document 

for a summary of the legal and scientific basis of the final rule. See the updated 

Economic Analysis for additional discussion on the potential costs/benefits 

associated with all authorities under the Clean Water Act. See the preamble section 

“Waters and Features that Are Not Waters of the United States” for further 

information regarding excluded features such as those for stormwater control 

features. The agencies believe with the clarity and certainty provided in the rule 

that there will be efficiencies gained in making jurisdictional determinations.

Quapaw Tribe of Oklahoma (Doc. #7980)

12.104 There are a number of differences between existing regulations and the proposed rule that 

may result in higher costs for the regulated community, while increasing the burden on 

regulatory agencies whose staffing and budgets are already strained. The proposed 

change to the definition of “Waters of the U.S.” will impact other CWA programs such as 

the Water Quality Standards program and the National Pollution Discharge Elimination 

System program, potentially adding regulatory requirements over a larger number of 

water bodies than are currently regulated. This may have the unintended consequence of 

actually increasing the risk to currently regulated waterways due to the added burden on 

regulatory agencies who are finding it difficult to effectively enforce, and/or facilitate 

compliance with, existing requirements related to the CWA. (p. 1)

Agency Response: See Summary Response. See the updated Economic Analysis 

for additional discussion. The agencies believe with the clarity and certainty 

provided in the rule that there will be efficiencies gained in making jurisdictional 

determinations. The rule intends to clarify the scope of waters of the U.S. under 

CWA regulation, and provide greater certainty to the regulated community and 

states and tribes implementing CWA regulations, thereby reducing uncertainty in 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

82

CWA compliance. Overall, the scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

part because the rule includes provisions for a number of excluded waters, some of 

which are excluded by rule for the first time. For further discussion of exclusions, 

see summary responses for Topic 6.2: Excluded ditches and Topic 7: Features and 

waters not jurisdictional. The agencies have thoroughly considered the implications 

of the final rule on the CWA programs and the agencies, states and tribes 

responsible for implementing CWA regulations; however, the rule imposes no direct 

costs, but each of these programs may subsequently impose direct or indirect costs 

as a result of implementation of their specific regulations. The economic analysis 

has been updated for the final rule. See summary response for Topic 11: 

Costs/Benefits and the Economic Analysis document for details on the estimated 

indirect costs and benefits of the rule.

Nebraska Association of Resources Districts (Doc. #11855)

12.105 Furthermore, [aside from changes associated with the 404 program] changes to the 

federal definition of WOTUS will impact the administration of CWA permit programs 

administered by NDEQ (section 402 NPDES permits, sections 303 and 305 Water 

Quality Standards and TMDLs, and section 401 State Certification). The Proposed 

Rule’s broad expansion of jurisdiction will not only require an in-depth review of

NDEQ’s rules, regulations, and CWA permitting procedures, but will also result in 

significant cost increases for the regulated community and overall delay in the 

development process. (p. 3)

Agency Response: See Summary Response. See the updated Economic Analysis 

for additional discussion. The agencies believe with the clarity and certainty 

provided in the rule that there will be efficiencies gained in making jurisdictional 

determinations. The rule intends to clarify the scope of waters of the U.S. under 

CWA regulation, and provide greater certainty to the regulated community and 

states and tribes implementing CWA regulations. The rule does not change existing 

CWA regulatory requirements for the various CWA permit programs. Overall, the 

scope of regulatory jurisdiction in this rule is narrower than that under the existing 

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

rule than under the existing regulations, in part because the rule includes provisions 

for a number of excluded waters, some of which are excluded by rule for the first 

time. For further discussion of exclusions, see summary responses for Topic 6.2: 

Excluded ditches and Topic 7: Features and waters not jurisdictional. The agencies 

have thoroughly considered the implications of the final rule on the CWA programs 

and the agencies, states and tribes responsible for implementing CWA regulations; 

however, the rule imposes no direct costs, but each of these programs may 

subsequently impose direct or indirect costs as a result of implementation of their 

specific regulations. The economic analysis has been updated for the final rule. See 

summary response for Topic 11: Costs/Benefits and the Economic Analysis 

document for details on the estimated indirect costs and benefits of the rule.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

83

New York Farm Bureau et al. (Doc. #11922)

12.106 The proposed rule does not take into account the full effects it will have on other 

regulatory programs and the financial consequences to federal, state, and local 

governments, as well as the business community, will be tremendous. The proposed rule 

does not just apply to section 404 permits, but other Clean Water Act programs, such as 

Section 402 – National Pollution Discharge Elimination System (NPDES) Permits, 

Section 303 – Water Quality Standards (WQS) program and other programs including 

stormwater, green infrastructure, and pesticide permits. These additional layers of 

regulation will have unintended consequences and will be disruptive to our 

comprehensive water quality programs now in place and will stymie development and 

potentially hurt already precarious infrastructure projects in our rural communities. (p. 2)

Agency Response: See Summary Response. See the updated Economic Analysis 

for additional discussion. The agencies believe with the clarity and certainty 

provided in the rule that there will be efficiencies gained in making jurisdictional 

determinations. The rule intends to clarify the scope of waters of the U.S. under 

CWA regulation, and provide greater certainty to the regulated community and 

states and tribes implementing CWA regulations. The rule does not change existing 

CWA regulatory requirements for the various CWA permit programs. Overall, the 

scope of regulatory jurisdiction in this rule is narrower than that under the existing 

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

rule than under the existing regulations, in part because the rule includes provisions 

for a number of excluded waters, some of which are excluded by rule for the first 

time. For further discussion of exclusions, see summary responses for Topic 6.2: 

Excluded ditches and Topic 7: Features and waters not jurisdictional. The agencies 

have thoroughly considered the implications of the final rule on the CWA programs 

and the agencies, states and tribes responsible for implementing CWA regulation, 

and do not agree that the rule will prevent infrastructure development in 

communities, for the above reasons. 

Ground Water Protection Council (Doc. #13055)

12.107 In the proposal preamble EPA recognizes the importance of connections provided by 

shallow subsurface groundwater and deeper groundwater. GWPC suggests that as EPA 

implements the proposed rules, a comprehensive and holistic grant guidance approach 

should allow for state groundwater protection projects that could contribute to the overall 

health and water quality in an impaired watershed. In addition, providing support for 

state requests for groundwater projects would allow for enhanced protection of aquatic 

resources and result in significant cost effectiveness in the prevention of contamination. 

In addition, many §319 funded prevention projects can coordinate well with source water 

protection efforts under the Safe Drinking Water Program, resulting in an additional 

water quality benefit for public health from all programs. (p. 2)

Agency Response: See Summary Response. The agencies only regulate those 

aquatic resources that are “waters of the U.S.” and cannot extend agency authority 

to uplands or groundwater. Groundwater protection is outside the scope of this 

rule. The EPA agrees that protecting sourcewater, including groundwater, is an

important component of water quality protection. However, the various EPA grant 
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84

programs and associated guidance are beyond the scope of this rule, which defines 

the scope of waters of the U.S. subject to the CWA.

Association of Clean Water Administrators (Doc. #13069)

12.108 ACWA would like to stress that for both significant nexus determinations and the desired 

clarifications described above, development of regional expectations (ecologically 

delineated) is a potential means of providing greater certainty. But in order for this to be 

useful, states must be involved in the development. As has been done for identification 

of regional hydric soils under the Section 404 program, we encourage the formation of 

regional committees, made up of EPA, the Corps and state partners, to develop any 

further definitions and guidance that may be needed in order to consistently implement 

the final rule. In addition to suggested guidance stated earlier, this should include 

guidance on water quality standards applicable to ephemeral streams. This is important 

because many of those streams are dry the great majority of the time and do not generally 

support the CWA rebuttably presumed uses under Section 101(a)(2) (i.e., “fishable and 

swimmable”), unlike streams and rivers that run for sustained periods (intermittent) or 

continuously (perennial) throughout the year. (p. 4)

Agency Response: See Summary Response. The agencies have and do engage in 

sustained coordination and partnerships with states and other partners. The rule 

public comment period was extended twice to ensure adequate time for comment 

and during that time the EPA hosted hundreds of stakeholder and outreach 

meetings, including some with state agencies. The agencies recognize that the state 

and local governments have well-defined and long-standing relationships in 

implementing affected CWA programs and these relationships will not be altered. 

This action will not have substantial direct effects on the states, on the relationship 

between the national government and the states, or on the distribution of power and 

responsibilities among the various levels of government. The final rule does not 

restrict the states’ efforts in developing or implementing statewide permits under 

CWA programs as a result of the rule. The rule does not diminish or in any way 

detract from the intent and purpose of CWA sections 101(b) and 101(g) regarding 

the states’ primary and exclusive authority over water allocation and water rights 

administration, as well as state-federal co-regulation of water quality. The agencies 

worked hard to ensure the rule reflects these fundamental principles. The Corps 

will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 in the implementation of the final rule 

to make the process predictable, efficient, and effective. The comment about water 

quality standards is outside the scope of this rulemaking effort.

Western Coalition of Arid States (Doc. #14407)

12.109 As proposed, the rule contains many defined and undefined terms that may 

inappropriately include many man-made features, man-made conveyances, and manmade impoundments as jurisdictional waters. These same man-made features are used by 

many WESTCAS members to carry out daily responsibilities, such as transmitting and 

distributing irrigation water, diverting and storing stormwater, and recharging or 

“banking” excess water for future use. Surely, the rulemaking did not intend to include 

groundwater recharge basins, even those located “adjacent” to tributaries or TNWs, as 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

85

jurisdictional waters. Also, groundwater recharge is an inherent activity performed in 

most arid States to manage water resources. (p. 3)

Agency Response: See Summary Response. Refer to the exclusions in paragraph 

(b) of the rule and the preamble section “Waters and Features that Are Not Waters 

of the United States” for further information regarding excluded man-made 

features such as stormwater control features, certain ditches, and water recycling 

features.

Georgia Municipal Association (Doc. #14527.1)

12.110 During recent presentations about the rule, EPA staff have stated projects “will be 

reviewed on a case by case basis jurisdictionally”. When presenting information about 

the proposed rules to city officials, EPA representatives have indicated that “this is what 

we think will be covered”, “we don’t see that as being a scenario”, or “we anticipate the 

rule will...” If EPA staff do not have a clear understanding of the terms and requirements 

in the rule, how can GMA provide guidance to cities to inform them of their 

responsibilities if the rule is implemented as written? This does not provide local 

officials with any clarity over the current process, and the rules could easily be 

interpreted to significantly expand the definition of Waters of the U.S. (p. 3)

Agency Response: See Summary Response. The agencies believe the final rule 

will result in increased clarity and certainty regarding the identification of “waters 

of the U.S.” The agencies received many helpful comments on the proposed rule 

which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public. The final rule was developed to increase CWA 

program predictability and consistency by increasing clarity as to the scope of 

“waters of the United States” protected under the Act. Definitions of certain terms 

are provided for the first time (e.g. tributary), or are further clarified (e.g. 

adjacent). The final rule provides for certain categories of waters that are 

jurisdictional by rule, which will result in a more efficient process. See the updated 

Economic Analysis for additional discussion.

12.111 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. (p. 3)

Agency Response: See Summary Response. The agencies believe with the clarity 

and certainty provided in the rule that there will be efficiencies gained in making 

jurisdictional determinations. See the updated Economic Analysis for additional 

discussion on costs/benefits. Refer to the exclusions in paragraph (b) of the rule and 

the preamble section “Waters and Features that Are Not Waters of the United 

States” for further information regarding excluded features such as stormwater 

control features, ditches, and wastewater recycling structures.

12.112 The proposed rule will result in the loss of local control over home rule authority to 

maintain, improve, and construct new facilities. GMA and city leaders throughout the 
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86

state are strongly supportive of the protection of water quality, public health, and the 

environment. Cities have demonstrated diligence in protecting bodies of water, streams 

and rivers. Cities try to be environmental leaders by following regulations, providing 

training and certification for public works officials, and engaging in innovative designs 

that are environmentally sensitive. Many cities are using green infrastructure as a 

stormwater management tool to lessen flooding and protect water quality by using 

vegetation, soils and natural processes. Georgia’s local public works officials engage in 

best practices, working through professional organizations such as the Georgia 

Association of Water Professionals and Georgia Rural Water Association. Unfortunately, 

the Corps and EPA did not engage any of the states or local providers, the experts on the 

ground about how to fix these rules. (p. 4)

Agency Response: See Summary Response. Refer to the exclusions in paragraph 

(b) of the rule and the preamble section “Waters and Features that Are Not Waters 

of the United States” for further information regarding excluded features such as 

stormwater control features, ditches, and wastewater recycling structures. The 

agencies recognize the importance of public input on the content of the rule. The 

agencies adequately allowed for such input through public participation in the 

nationwide comment process and the proposed rule was disseminated to the widest 

audience possible. The public notice comment period was extended twice to ensure 

sufficient time for comment by all interested parties. The agencies received many 

helpful comments on the proposed rule which resulted in refinement of the final rule 

to provide further clarity and certainty to the regulated public. Additional outreach 

efforts were extensive and included over 400 meetings nationwide with states, small 

businesses, farmers, academics, miners, energy companies, counties, municipalities, 

environmental organizations, other federal agencies and many others. The agencies 

recognize that the state and local governments have well-defined and long-standing 

relationships in implementing affected CWA programs and these relationships will 

not be altered. This action will not have substantial direct effects on the states, on 

the relationship between the national government and the states, or on the 

distribution of power and responsibilities among the various levels of government. 

The final rule does not restrict the states’ efforts in developing or implementing 

statewide permits under CWA programs as a result of the rule. The rule does not 

diminish or in any way detract from the intent and purpose of CWA sections 101(b) 

and 101(g) regarding the states’ primary and exclusive authority over water 

allocation and water rights administration, as well as state-federal co-regulation of 

water quality. The agencies worked hard to ensure the rule reflects these 

fundamental principles.

12.113 GMA believes that the ambiguous terms in the proposed rule will result in more ditches, 

channels, conveyances, and treatment approaches being federally regulated. The 

outcome will be significant delays in completing projects, increased project costs, and the 

burden to pay will fall to the rate payers and taxpayers. (p. 5)

Agency Response: See Summary Response. See the updated Economic Analysis 

for additional discussion on predicted change in jurisdiction and costs/benefits. 

Refer to the exclusions in paragraph (b) of the rule and the preamble section 

“Waters and Features that Are Not Waters of the United States” for further 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

87

information regarding excluded features such as stormwater control features, 

ditches, and wastewater recycling structures. The agencies received many helpful 

comments on the proposed rule which resulted in refinement of the final rule to 

provide further clarity and certainty to the regulated public, including refinement 

and expansion of the features excluded from jurisdiction. It is important to note 

that unless a water body is explicitly identified in paragraph (a) as being 

jurisdictional by rule [(a)(1)-(6) waters] or subject to a case-specific significant 

nexus determination to ascertain its jurisdictional status [(a)(7) and (a)(8) waters], a 

water body or landscape feature is excluded from jurisdiction under the CWA even 

if it is not explicitly listed in paragraph (b). 

12.114 Under the proposed rule if a ditch is considered a Water of the United States then a 

sanitary sewer overflow to a dry ditch could create an enormous burden on the local 

utility. CWA regulates TMDL’s and discharges to the Waters of the United States. 

Currently, if a system has an overflow reaching a stream it is required to follow protocol 

procedures in clean up and notification, and if significant a consent decree will be issued 

by state regulators. The protocol requires sampling and monitoring for an extended 

period of time, which is costly but usually easy to perform. If the overflow goes to a dry 

ditch but does not reach the stream, what new or additional requirements would the local 

provider be subject to if the proposed rule is adopted? If the proposed rule is adopted, 

what COE permit would be required in this case, how long would it take to address the 

spill in a dry ditch, and what parameters would be required for sampling and for and how 

long? Remember that to excavate the ditch would involve off-fall of dredging. (p. 8)

Agency Response: See Summary Response. Refer to the “Tributary” and “Waters 

and Features that Are Not Waters of the United States” sections of the proposed 

rule and preamble for further information and clarification on tributaries, ditches, 

and man-made stormwater conveyances. The final rule includes specific 

characteristics that must be met in order to meet the definition of “tributary,” 

including bed and banks and ordinary high water mark. The Clean Water Act 

404(f)(1)(C) exemption for maintenance of irrigation and drainage ditches will 

remain in effect, when applicable. None of the existing procedures, permitting 

mechanisms, efficient permitting tools such as general permits, or activity 

exemptions will be modified as a result of this rulemaking; therefore, existing 

procedures should not be further complicated by this rule.

12.115 How does a local jurisdiction maintain a dirt road and ditch under the proposed rule 

without getting a permit? Roads are bladed, creating off-fall many times into the ditch, 

and the ditch usually has to have sediment removed for the runoff to move in a positive

direction, which is usually a stream or at minimum a channel that is dry and when wet 

lead s to the stream. As proposed it would appear to me that 402 permits would be 

required for maintenance of dirt roads. Permitting would become a nightmare for the 

local jurisdiction. (p. 9)

Agency Response: See Summary Response. Refer to the “Tributary” and “Waters 

and Features that Are Not Waters of the United States” sections of the proposed 

rule and preamble for further information and clarification on tributaries, and 

excluded features such as certain ditches and man-made stormwater conveyances. 

The final rule includes specific characteristics that must be met in order to meet the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

88

definition of “tributary,” including bed and banks and ordinary high water mark. 

The Clean Water Act 404(f)(1)(C) exemption for maintenance of irrigation and 

drainage ditches will remain in effect, when applicable. None of the existing 

procedures, permitting mechanisms, efficient permitting tools such as general 

permits, or activity exemptions will be modified as a result of this rulemaking; 

therefore, existing procedures should not be further complicated by this rule.

12.116 Under the proposed rule the floodplains could and many cases would be redefined. Local 

government has spent an enormous amount of effort, time, and funds mapping and 

engineering floodplain management programs. Potentially building codes would have to 

be modified and land use in many cases be redefined. (p. 9)

Agency Response: See Summary Response. Refer to the “Adjacent Waters” 

section of the proposed rule and preamble for further information and clarification 

on the use of floodplain information in making determinations of jurisdiction. 

Floodplain, as used in the final rule, applies only to the Clean Water Act definition 

of waters of the U.S. and as such, the agencies do not anticipate impacts to other 

local, state, or federal floodplain management programs. The agencies intend to 

utilize available floodplain mapping and floodplain determination methodologies for 

use in making jurisdictional determinations, including the FEMA 100-year flood 

risk zone maps as discussed in the preamble.

Florida Rural Water Association (Doc. #14897)

12.117 FRWA member water utilities are concerned about the scope of what waters fall under 

federal regulation since many communities own and maintain public infrastructure ditch, 

swale and water channeling systems, flood control channels, storm water, and drainage 

that are used to channel water away from low-lying areas and water treatment 

infrastructure and prevent flooding. 

In the proposed rule, EPA and the Corps offer new definitions for “tributaries,” “other 

waters,” etc. We are concerned that under ambiguous or undefined terms, definitions, 

and concepts used in the proposal, routine operation and maintenance of drinking water, 

wastewater, and storm water conveyances, aqueducts, canals, impoundments, and 

treatment facilities could potentially be subject to jurisdiction. The ACOEL analysis 

finds a similar dilemma in their reading of the proposed rule. 

“Practitioners disagree about the extent to which the case-by-case determinations and 

exclusions outlined above reduced CWA jurisdiction as a practical matter. Some 

practitioners argue that, even with case-by-case determinations, the Agencies continued 

to assert jurisdiction over most if not all of the tributary system and only limited their 

jurisdiction over wetlands and other waters. Other practitioners believe that the case-bycase determinations resulted in more limited assertions of jurisdiction over more remote, 

less permanent tributaries, as well as wetlands and other waters that would be reversed by 

the proposed rule.” (p. 3-4) 

Agency Response: See Summary Response. See the Economic Analysis for 

additional discussion on changes in jurisdiction. Refer to the “Tributary” and 

“Waters and Features that Are Not Waters of the United States” of the proposed 

rule and preamble for further information and clarification on tributaries and 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

89

excluded waters and features including certain ditches, stormwater control features, 

and wastewater recycling structures. Features that meet the exclusions under the 

final rule cannot be jurisdictional even if they meet the terms of paragraph (a) 

waters. The agencies received many helpful comments on the proposed rule which 

resulted in refinement of the final rule to provide further clarity and certainty to the 

regulated public. The final rule includes specific characteristics that must be met in 

order to meet the definition of “tributary,” including bed and banks and ordinary 

high water mark. These parameters ensure that only certain water features qualify 

as a tributary and are jurisdictional by rule. The science demonstrates that all such 

tributaries have a significant nexus when considered individually or in combination 

with other tributaries to the (a)(1) to (a)(3) waters. 

Western Urban Water Coalition (Doc. #15178 and #15178.1)

12.118 The Proposed Rule represents a significant expansion of the historical scope of federal 

jurisdiction. Under the proposal, all tributary and adjacent waters would now be 

“jurisdictional by rule,” the definition of “tributary” and the scope of what is “adjacent”

would both expand, a new concept of “neighboring waters” would be incorporated, and 

the significant nexus test would allow for a watershed scale determination of jurisdiction. 

Many of the dry arroyos, washes, ditches and ephemeral or intermittent water bodies so 

common in the arid West would become the subject of federal oversight. 

This expansion of jurisdiction will significantly increase the burden on the regulated 

community, especially in the western U.S., as compared to the current rules and agency 

guidance for identifying waters subject to CWA protection. In the arid portions of the 

West, numerous ephemeral and intermittent drainages and wetlands exist that under the 

current agency guidance have been determined to be isolated or lacking a significant 

nexus to traditional navigable waters and thus are not subject to jurisdiction under 

Section 404 and other provisions of the CWA. The Proposed Rule is a marked departure 

from past practice because it would make ephemeral and intermittent tributaries 

jurisdictional and eliminate the concept of an isolated water or wetland, a concept that 

has been part of the agencies’ approach to determining geographic jurisdiction since the 

2003 agency guidance following the SWANCC decision. 

The importance of this change to municipal utilities lies primarily in its relationship to 

sections 404 and 402 of the CWA. If a water feature is determined, either per se or on a 

case-by-case basis, to be a “water of the U.S.”, the dredge and fill permit provisions of 

section 404 and the point source permit provisions of section 402 are potentially triggered 

by a variety of municipal undertakings. Invoking these provisions can, in turn, implicate 

the need for a section 401 water quality certification from the state and, more 

importantly, may necessitate a costly and time consuming review of the local initiative 

under the National Environmental Policy Act. Finally, the need for the issuance of 

federal approvals may, in turn, also trigger consultation requirements under the federal 

Endangered Species Act. 

To meet water supply and wastewater treatment needs, as well as stormwater control 

requirements, Western municipal utilities must make substantial infrastructure 

investments, often requiring creative and innovative approaches. These investments will 

include new or expanded storage reservoirs; reuse facilities; desalinization plants; water 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

90

collection, delivery and distribution pipelines; pump-back projects; groundwater recharge 

facilities; and reverse osmosis water treatment plants. Many of these facilities will, of 

necessity, be in somewhat close proximity to the types of “waters” discussed in the 

current rule proposal. It is essential that these critical activities, many of which may be 

undertaken in direct response to emergency conditions related to drought, fire, or postfire damage, do not unnecessarily trigger a federal nexus and its concomitant lengthy and 

costly permitting procedures. (Doc. #15178, p. 3-4)

Agency Response: See Summary Response. See the Economic Analysis for 

additional discussion on changes in jurisdiction. Refer to the “Tributary”, 

“Adjacent Waters”, and “Case-Specific Waters of the United States” sections of the 

proposed rule and preamble for further information and clarification on tributaries, 

adjacent waters including neighboring waters, and significant nexus determinations 

for case-specific waters. Refer to the exclusions in paragraph (b) of the rule and the 

preamble section “Waters and Features that Are Not Waters of the United States” 

for further information regarding excluded features such as certain ditches, 

stormwater control features, wastewater recycling structures, and erosional 

features. The agencies believe that the characteristics required to meet the definition 

of “tributary” are indicators of sufficient volume, flow, and duration such that the 

tributaries have a significant nexus, either alone or in combination with other 

tributaries in the region, to the downstream (a)(1) to (a)(3) waters. Erosional 

features that do not meet the definition of tributary that lack such indicators are 

excluded under paragraph (b) of the final rule. The final rule provides for specific 

parameters that must be met in order to fall under the (a)(7) or (a)(8) category of 

waters which require case-specific significant nexus determinations. Although 

outside the scope of the rule, the agencies continue to work to ensure accurate 

ordinary high water mark and bed and bank identification across the nation and 

particularly in the Arid West, including the manual for identifying the ordinary 

high water mark in the Arid West. The agencies recognize that there are 

appropriate levels of regional variation in implementation of the regulations; 

however, the agencies strive for national consistency. The agencies believe the 

clarity and certainty provided in the rule will result in further consistency, while 

still allowing for regional variation in implementation that may be necessary based 

on regional differences in aquatic resources; for example, the ordinary high water 

mark regional manuals or the regional supplements to the wetland delineation 

manual, both of which are outside the scope of this rulemaking but are related 

resources. The Corps will develop the tools necessary to assist its staff with the 

jurisdictional determination process specific to section 404 during the 

implementation of the final rule to make the process consistent, predictable, 

efficient, and effective. The initial phase of implementing the rule will require 

education and training for agency staff as well as other stakeholders and the 

regulated public, which will include regionally-based training to ensure consistent 

and efficient implementation of the rule. While it is the responsibility of the Corps 

as the agency evaluating permit applications under section 404, to determine if 

Endangered Species Act and the National Historic Preservation Act requirements 

are being met, there are cases where these laws or other federal, state or local laws 

may still require review absent a CWA action. The 404 permit action does not 
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91

remove the requirement to get other permits, if required by law. Obtaining a 

jurisdictional determination from the agencies does not trigger Section 7 of the 

Endangered Species Act, a federal action does, such as a section 404 permit decision. 

However, private landowners are also required to comply with Section 10 of the 

Endangered Species Act absent a federal action. The agencies work to ensure this 

compliance with other federal laws is completed in the most efficient and effective 

manner, and may include programmatic agreements or local operating procedures 

to streamline the process. The Corps regulations define an “emergency” under the 

nationwide permit program as “a situation which would result in an unacceptable 

hazard to life, a significant loss of property, or an immediate, unforeseen, and 

significant economic hardship if corrective action requiring a permit is not 

undertaken within a time period less than the normal time needed to process the 

application under standard procedures.” In emergency situations, Corps Division 

Engineers, in coordination with the Corps District Engineers, are authorized to 

approve special processing procedures to expedite permit issuance. The Corps also 

uses alternative permitting procedures, such as general permits and letters of 

permission, when appropriate, to expedite processing of permit applications for 

emergencies. The Corps emergency permitting procedures can be found in 33 CFR 

325.2(e). Certain nationwide permits do not require pre-construction notification 

and such activities can be completed without notification as long as they comply 

with the terms and conditions of such permits. In addition, certain discharges of 

dredged and/or fill material are exempt from regulation under section 404(f)(1)(b) 

under the Clean Water Act that are “for the purpose of maintenance, including 

emergency reconstruction.”

12.119 The “jurisdictional by rule” presumption for all tributaries will have substantial 

unintended consequences, particularly in the arid West. Currently, when evaluating 

alternatives, many project proponents consider the ramifications of federal permitting as 

part of their project planning and alternatives evaluation and carefully weigh alternatives 

that do not require a federal action. Project proponents choose to avoid federal actions 

when they can because of the expense and time to process the reviews by multiple federal 

agencies triggered by a single federal nexus. The federal approval process also provides 

a forum for litigation and frequently undermines the predictability of the planning 

process. The only federal action for many proposed projects is authorization from the 

Corps for the discharge of dredged and fill material into a WUS. (Doc. #15178.1, p. 7)

Agency Response: See Summary Response. Refer to the “Tributary” section of 

the proposed rule and preamble for further information and clarification on 

tributaries and ditches. The final rule includes specific characteristics that must be 

met in order to meet the definition of “tributary,” including bed and banks and 

ordinary high water mark. These parameters ensure that only certain water 

features qualify as a tributary and are jurisdictional by rule. The science 

demonstrates that all tributaries have a significant nexus when considered 

individually or in combination with other tributaries to the (a)(1) to (a)(3) waters. 

Refer to the exclusions in paragraph (b) of the rule and the preamble section 

“Waters and Features that Are Not Waters of the United States” for further 

information regarding excluded features such as certain ditches and erosional 

features. None of the existing procedures, permitting mechanisms, efficient 
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92

permitting tools such as general permits, or activity exemptions will be modified as a 

result of this rulemaking; therefore, existing procedures should not be further 

complicated by this rule. The rule is not designed to subject any entities of any size 

to any specific regulatory burden. Rather, it is designed to clarify the statutory 

scope of the “waters of the U.S.”, consistent with Supreme Court precedent. While 

it is the responsibility of the Corps as the agency evaluating permit applications 

under section 404, to determine if Endangered Species Act and the National Historic 

Preservation Act requirements are being met, there are cases where these laws or 

other federal, state or local laws may still require review absent a CWA action. The 

404 permit action does not remove the requirement to get other permits, if required 

by law. Obtaining a jurisdictional determination from the agencies does not trigger 

Section 7 of the Endangered Species Act, a federal action does, such as a section 404 

permit decision. However, private landowners are also required to comply with 

Section 10 of the Endangered Species Act absent a federal action. The agencies 

work to ensure this compliance with other federal laws is completed in the most 

efficient and effective manner, and may include programmatic agreements or local 

operating procedures to streamline the process.

Wyoming County Commissioners Association (Doc. #15434)

12.120 It is important to note that waters not currently found to be waters of the U.S. are in most 

cases claimed as “waters of the state.” These waters are still subject to regulation by state 

departments of environment like Wyoming’s Department of Environmental Quality 

(DEQ). As is the case in the entire semi-arid West, in Wyoming numerous innovative 

conservation practices have been employed by the state, local governments and private 

entities to ensure water quality and conservation. A federal presumption of this 

magnitude is counterproductive to these locally-driven efforts, and may in fact serve to 

diminish the public’s willingness to employ voluntary conservation efforts. Individuals 

will be less likely to accept flexible regulations placed on water use and disturbance by 

the state or local jurisdictions because they cannot be assured that they will not also bear 

the burdens of a costly and lengthy federal permitting process. Further, a federal 

presumption places the burden on counties and landowners to prove that a water 

previously managed as non-jurisdictional is still classified as such. (p. 3)

Agency Response: See Summary Response. The rule is not designed to subject 

any entities of any size to any specific regulatory burden. Rather, it is designed to 

clarify the statutory scope of the “waters of the U.S.”, consistent with existing 

regulations and Supreme Court precedent. Furthermore, the final rule will not 

directly alter the content or implementation of other local, state, or federal 

mandates as the final rule applies solely to the definition of waters of the U.S. The 

agencies recognize that the state and local governments have well-defined and longstanding relationships in implementing affected CWA programs and these 

relationships will not be altered. This action will not have substantial direct effects 

on the states, on the relationship between the national government and the states, or 

on the distribution of power and responsibilities among the various levels of 

government. The final rule does not restrict the states’ efforts in developing or 

implementing statewide permits under CWA programs as a result of the rule. The 

rule does not diminish or in any way detract from the intent and purpose of CWA 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

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sections 101(b) and 101(g) regarding the states’ primary and exclusive authority 

over water allocation and water rights administration, as well as state-federal coregulation of water quality. The agencies worked hard to ensure the rule reflects 

these fundamental principles.

12.121 ...the EPA has not defined what aerial photography, “reliable” remote sensing data, or 

“other appropriate information” will be allowed. The WCCA and its member counties 

have significant experience (both positive and negative) with the United States 

Department of Interior regarding the development (or lack thereof) of accurate, on-theground information used to develop federal policy. We strongly believe that any 

determination of land or water must first be vetted and proven by the local government as 

co-regulators. (p. 6)

Agency Response: The Corps will develop the tools necessary to assist its staff 

with the jurisdictional determination process specific to section 404 during the 

implementation of the final rule to make the process predictable, efficient, and 

effective. The authority to make a jurisdictional determination lies with the 

agencies, or applicable state or tribe. Refer to the rule preamble discussion in the 

“Tributary” section for information on use of remote sensing data for making 

determinations of jurisdiction. The agencies have been using remote sensing and 

desktop tools to delineate tributaries for many years where data from the field are 

unavailable or a field visit is not possible. Desktop reviews are sufficient in cases 

where the district has a high degree of confidence in the information used to identify 

the limits of jurisdictional waters. For example, desktop reviews may be based on 

detailed delineation reports prepared by professional wetland consultants. In 

addition, such desktop tools are critical in circumstances where physical 

characteristics waters are absent in the field, often due to unpermitted alteration of 

waters. The majority of this information is available for the public’s use; these tools 

can allow for greater consistency with currently available and accessible data 

sources.

12.122 In addition, the WCCA is also concerned that an expansion of federal jurisdictional 

waters will have the further unintended consequence of conflicting or duplicating 

floodplain development permits enforced by the Federal Emergency Management 

Agency (FEMA). (p. 10)

Agency Response: See Summary Response. Refer to the “Adjacent Waters” 

section of the proposed rule and preamble for further information and clarification 

on the use of floodplain information in making determinations of jurisdiction. 

Floodplain, as used in the final rule, applies only to the Clean Water Act definition 

of waters of the U.S. and as such, the agencies do not anticipate impacts to other 

local, state, or federal floodplain management programs. The agencies intend to 

utilize available floodplain mapping and floodplain determination methodologies for 

use in making jurisdictional determinations, including the FEMA 100-year flood 

zone maps as discussed in the preamble.

Idaho Association of Commerce & Industry (Doc. #15461)

12.123 Mining activities are covered under a MSGP for industrial activities. Furthermore, 

during some types of construction activities, mining operators would need to obtain a 
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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). In many instances these other waters are created to comply with CWA 

requirements by managing water to avoid discharges to navigable waters. (p. 10)

Agency Response: The rule will be effective 60 days after publication in the 

Federal Register. Under existing Corps’ regulations and guidance, Corps’ approved 

jurisdictional determinations generally are valid for five years. The preamble 

addresses the status of final JDs and permits as well as pending JDs and permits. 

See the preamble section “Waters and Features that Are Not Waters of the United 

States” for further information regarding excluded features. The final rule does not 

alter implementation of the NPDES program, including MSGPs. See summary 

response at 12.3. With respect to the jurisdictional status of stormwater control 

features, please see summary response at 7.4.4.

12.124 Most mining facilities have an SPCC plan. The plan, will need to be updated to reflect 

the location of jurisdictional water and reporting protocol. (p. 10)

Agency Response: This action would not necessarily require facilities that have 

prepared SPCC plans to update these plans outside of the normal 5-year review 

cycle or complete a technical amendment to the plan unless there is a change in 

facility configuration, etc. that affects its potential for an oil discharge to waters to 

the U.S. or adjoining shorelines. See 40 CFR part 112.5 in the SPCC rule. The 

owner/operator of a facility that has an SPCC plan in place has already determined 

that there is a "reasonable expectation" of an oil discharge as per 40 CFR part 

112.1(b). Also, this action does not change the requirement under 40 CFR part 110 

for a facility owner/operator to notify the National Response Center when an oil 

discharge to waters of the U.S. or adjoining shorelines has occurred.

12.125 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, and the amount of 

additional studies that will be required to comply with the proposed significant nexus 

evaluation. (p. 10)

Agency Response: See Summary Response. See the “Tributary,” “Adjacent 

waters,” definitions and descriptions of (a)(7) and (a)(8) water bodies subject to 

case-specific significant nexus evaluations in the final rule and discussions of the 

tributaries, adjacent waters, case-specific waters, and significant nexus 

determinations in the preamble. Refer to the exclusions in paragraph (b) of the rule 

and the preamble section “Waters and Features that Are Not Waters of the United 

States” for further information regarding excluded features such as water-filled 

depressions created in dry land incidental to mining activities, stormwater control 

features, certain ditches, and wastewater recycling structures. The final rule 
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further clarifies “significant nexus” by providing a definition under paragraph (c) 

of the term as well as a list of factors to be considered when making such a 

determination for additional clarity and predictability for the regulated public. It is 

important to note that unless a water body is explicitly identified in paragraph (a) as 

being jurisdictional by rule [(a)(1)-(6) waters] or subject to a case-specific significant 

nexus determination to ascertain its jurisdictional status [(a)(7) and (a)(8) waters], a 

water body or landscape feature is excluded from jurisdiction under the CWA even 

if it is not explicitly listed in paragraph (b).

12.126 The SPCC Rules are not jurisdictional when it has been determined, based on natural, 

unaltered topography, that there is not a likelihood, or pathway, of a spill reaching a 

WOTUS. However, the current proposal would require electric utilities to either reassess 

those facilities or determine they are jurisdictional based on a significant nexus of 

features, such as manmade ditches or other ephemeral features that were previously not 

WOTUS, but may be deemed jurisdictional by the Agencies where they discern a bed, 

bank, and ordinary high water mark or, in the absence of such, whether the feature is a 

wetland, lake, or pond and contributes overland or subsurface flow. The cost impact of 

creating and maintaining additional plans based on current estimates of these activities is 

projected to be at least $750,000 upfront and $150,000 annually. This is a limited 

analysis based on a single utility, and costs are likely to be higher. When extrapolated for 

each industry in Idaho, as well as nationally, the cost impact is significantly greater than 

imagined by EPA. (p. 14)

Agency Response: See Summary Response. See the “Tributary,” “Adjacent 

waters,” and “Case-Specific Water of the United States” definitions in the final rule 

and discussions of tributaries, regulated and excluded ditches, case-specific waters, 

and significant nexus determinations in the preamble. The final rule includes 

specific characteristics that must be met in order to meet the definition of 

“tributary,” including bed and banks and ordinary high water mark. These 

parameters ensure that only certain water features qualify as a tributary and are 

jurisdictional by rule. The science demonstrates that all tributaries have a 

significant nexus when considered individually or in combination with other 

tributaries to the (a)(1) to (a)(3) waters. The scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The final rule provides for specific parameters that 

must be met in order to fall under the (a)(7) or (a)(8) category of waters which 

require case-specific significant nexus determinations. Refer to the exclusions in 

paragraph (b) of the rule and the preamble section “Waters and Features that Are 

Not Waters of the United States” for further information regarding excluded 

features such as ditches and erosional features. See the Economic Analysis for 

additional discussion on changes in jurisdiction. Certain ditches and man-made 

impoundments may not considered waters of the U.S. in this final action. However, 

for applicability determinations, the owner/operator must determine if there is a 

reasonable expectation of an oil discharge to waters of the U.S. or adjoining 

shorelines, and this determination must be based solely upon consideration of the 

geographical and location aspects of the facility (such as proximity to waters of the 
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96

U.S. or adjoining shorelines, land contour, drainage, etc.) and must exclude 

consideration of man-made features such as dikes, equipment or other structures, 

which may serve to restrain, hinder, contain or otherwise prevent a discharge to 

waters of the U.S. See 40 CFR part 112.1(d)(1)(i). Once subject to the SPCC rule, 

an owner/operator to the SPCC rule is required to provide a prediction of the 

direction, rate of flow, and total quantity of oil which could be discharged from the 

facility as a result of major equipment failure per 40 CFR part 112.7(b). EPA 

provided cost estimates in the most recent ICR renewal for the SPCC rule (2012) for 

plan preparation and maintenance. See EPA ICR No. 0328.15, OMB Control No. 

2050-0021. Plan preparation costs generally range from $4,000 to $7,000 and plan 

maintenance costs range from around $900 to $1,200 annually for small- to 

medium-size facilities.

Massachusetts Water Resources Authority (Doc. #15573)

12.127 Water reuse facilities are being built across the country to generate an additional water 

supply for irrigation purposes and sometimes drinking water. It is unclear how the 

proposed definitional changes would impact the pesticide general permit program, which 

is used to control weeds and vegetation around ditches, water transfer, reuse and 

reclamation efforts and drinking and other water delivery systems. Additional 

clarification is needed by the agencies. Contrary to the agencies’ assertions, the proposed 

rule does not provide certainty for our member counties. (p. 6)

Agency Response: See Summary Response. Refer to the exclusions in paragraph 

(b) of the rule and the preamble section “Waters and Features that Are Not Waters 

of the United States” for further information regarding excluded features such as 

water- stormwater control features, ditches, and water recycling features. Please 

see summary response 12.3. The final definitional rule does not change CWA 

permitting requirements regarding the application of pesticides, or establish new 

requirements for complying with the pesticides general permit (PGP). However, the 

rule adds a new exclusion for features such as detention and retention basins, 

groundwater recharge basins, and percolation ponds created in dry land for 

purposes of wastewater recycling, which are not waters of the United States. The 

final rule also includes revised and expanded exclusions for many ditches. See 

summary responses for Topic 6.2: Excluded ditches and Topic 7: Features and 

waters not jurisdictional, for more information about excluded waters in the final 

rule. 

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

12.128 Key terms used in the proposed rule such as “uplands,” “tributary,” “floodplain,”

“significant nexus,” “adjacent,” and “neighboring” will be used to define what waters are 

jurisdictional under the proposed rule. However, since these terms are either broadly 

defined, or not defined at all, this will lead to further confusion over what waters fall 

under federal jurisdiction, not less, as the proposed rule aims to accomplish. The lack of 

clarity will lead to unnecessary project delays, added costs to local governments and 

inconsistency across the country.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

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Request: Provide more specificity for proposed definitions such as “uplands,”

“tributary,” “floodplain,” “significant nexus,” “adjacent,” “neighboring,” and other such 

words that could be subject to different interpretations. (p. 4)

Agency Response: See Summary Response. Refer to the “Tributary”, “Adjacent 

Waters,” and paragraphs (a)(7) and (8) sections of the proposed rule and preamble 

for further information and clarification on tributaries, floodplains, significant 

nexus, adjacent, and neighboring. The term “uplands” has been removed from the 

final rule language related to excluded ditches in response to public comments 

requesting clarification. The agencies received many helpful comments on the 

proposed rule which resulted in refinement of the final rule to provide further 

clarity and certainty to the regulated public. The Corps will develop the tools 

necessary to assist its staff with the jurisdictional determination process specific to 

section 404 in the implementation of the final rule to make the process predictable, 

efficient, and effective. Also, see responses to comments on suggested definitions, 

Compendium 14.3. 

12.129 Many of the definitions in the proposed rule are incredibly broad and may lead to further 

confusion and lawsuits. To lessen confusion, we recommend the agencies implement a 

transparent and understandable appeals procedure for entities to challenge agency 

jurisdictional determinations with having to go to court. (p. 7)

Agency Response: See Summary Response. The appeal procedure detailed in 33 

CFR Part 331 is unchanged by the proposed rule. The Corps current regulations 

allow an affected party to appeal an approved jurisdictional determination, permit 

applications denied with prejudice, and declined proffered permits Please see 33 

CFR Part 331 – Administrative Appeal Process for further information. As of the 

date of publication of the final rule, approved jurisdictional determinations are not 

considered “final agency action” and therefore cannot legally be challenged under 

the Administrative Procedures Act. Also, see responses to comments on 

jurisdictional determinations, section 12.4.3. As a definitional rule, the final rule 

does not establish a new process for appealing jurisdictional determinations. 

Washington State Water Resources Association (Doc. #16543)

12.130 As more waters are deemed jurisdictional, state agency budgets may prove inadequate. 

More monitoring will need to be performed, more NPDES permits will need to be issued, 

more CAFOs will need to be regulated, more section 401 certification applications must 

be reviewed, and more TMDL calculations will need to be completed. (p. 8)

Agency Response: See Summary Response. See the Economic Analysis for 

costs/benefits and jurisdictional changes. The rule defines the scope of waters of the 

U.S. subject to the CWA. This rule will not affect the current implementation of the 

various CWA programs; implementation of those programs is outside the scope of 

this rule. Overall, the scope of regulatory jurisdiction in this rule is narrower than 

that under the existing regulation. Fewer waters will be defined as “waters of the 

United States” under the rule than under the existing regulations. Also, see 

summary response 12.3. See also Economics Analysis section 8 for a description of 

costs and benefits for the Section 402 program; summary response 12.2 for 

responses regarding 401 certifications.
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12.131 There are many communities, primarily small towns, which employ lagoon treatment 

technology. They may find themselves facing new, more costly treatment requirements 

as, for the first time, they are found to be discharging to isolated ponds or dry 

arroyos/washes that are now considered jurisdictional. (p. 8)

Agency Response: See Summary Response. Refer to the exclusions in paragraph 

(b) of the rule and the preamble section “Waters and Features that Are Not Waters 

of the United States” for further information regarding excluded features such as 

stormwater control features, erosional features, and wastewater recycling features.

Michigan Association of Conservation Districts (Doc. #16583)

12.132 In several areas throughout the proposed rule, the terminology used is up to 

interpretation. For example, “ephemeral” should not be used as a definitive term, as there 

are different meanings of the word and those differences are creating a great deal of 

confusion. “Adjacent,” “neighboring,” “riparian areas,” and “floodplain,” and “other 

waters” are terms generally broad in scope, creating ambiguity and concern by those who 

believe the proposal reflects an expansion of jurisdiction. MACD requests that EPA and 

USACE specifically seek local input for the development of parameters, criteria, and 

defined standards for terminology within the proposed rule, including the above terms. 

(p. 2)

Agency Response: See Summary Response. The agencies recognize the 

importance of public input on the content of the rule. The agencies allowed for such 

input through public participation in the nationwide comment process and the 

proposed rule was disseminated to the widest audience possible. The public notice 

comment period was extended twice to ensure sufficient time for comment by all 

interested parties. Additional outreach efforts were extensive and included over 400 

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

energy companies, counties, municipalities, environmental organizations, other 

federal agencies and many others. This rule will increase CWA program 

predictability and consistency by increasing clarity as to the scope of “waters of the 

United States” protected under the Act. The Corps will develop the tools necessary 

to assist its staff with the jurisdictional determination process specific to section 404 

in the implementation of the final rule to make the process predictable, efficient, 

and effective. Refer to the “Tributary”, “Adjacent Waters,” and “Case-Specific 

Waters of the United States” sections of the proposed rule and preamble for further 

information and clarification on tributaries, adjacent waters including neighboring 

waters and floodplains, and significant nexus determinations for case-specific 

waters. The agencies received many helpful comments on the proposed rule which 

resulted in refinement of the final rule to provide further clarity and certainty to the 

regulated public. For example, the agencies considered scientific knowledge and 

literature regarding riparian areas in the formulation of the Adjacent Waters 

category; however, due to the difficulty in delineating the boundaries of riparian 

areas, the agencies determined that using riparian areas as a geographic limit of 

jurisdiction was too complicated for efficient implementation.
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Oregon Association of Clean Water Agencies (Doc. #16613)

12.133 An area that ACWA would like to see addressed is the potential that certain defined 

terms may be read so broadly that limited resources could be squandered with no 

corresponding environmental benefit. For instance, Oregon ACWA sees benefit in 

making sure that the definition of “tributaries” is broad enough to allow local 

jurisdictions to provide adequate protection of waters that impact water quality, including 

the ability to regulate smaller drainage ways when appropriate. Oregon ACWA wants its 

members to have the ability, including regulatory tools, to fully implement the watershed 

approach that has been a focus in many Oregon communities. However, without some 

narrowing of the “tributaries” definition, there is a risk that inordinate amounts of 

regulator, permittee and developer time and effort will be spent on waters that have no 

impact on the health of the water environment. For instance, even if a scientific 

evaluation of a particular “tributary” (which arguably now may include ditches, canals, or 

culverts) would indicate that the water body has no impact on water quality, Oregon 

Department of Environmental Quality (DEQ) would perhaps be forced by a third party 

through litigation to add the “tributary” to the list of impaired waters in the state, require 

a use attainability study, identify designated beneficial uses, adopt site specific water 

quality objectives, apply numeric effluent limits, and work through a Total Maximum 

Daily Load allocation. The appropriate definition of tributary should drive smart 

decisions while avoiding illogical uses of limited resources. (p. 2-3)

Agency Response: See Summary Response. See the tributary and ditch 

definitions in the final rule and discussions of those subjects in the preamble under 

the “Tributary” section and the “Waters and Features that Are Not Waters of the 

United States” section for discussion on tributaries and ditches. The final rule 

includes specific characteristics that must be met in order to meet the definition of 

“tributary,” including bed and banks and ordinary high water mark. These 

parameters ensure that only certain water features qualify as a tributary and are 

jurisdictional by rule. The science demonstrates that all tributaries have a 

significant nexus when considered individually or in combination with other 

tributaries to the (a)(1) to (a)(3) waters. The scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The rule defines “tributary” by emphasizing physical 

characteristics created by water flow and requiring that the water contributes flow 

either directly or through another water, to a traditional navigable water, interstate 

water, or the territorial seas. The agencies have found that ephemeral streams that 

meet the definition of “tributary” provide important functions for downstream 

waters, and in combination with other covered tributaries in a watershed 

significantly affect the chemical, physical, and biological integrity of traditional 

navigable waters, interstate waters, and the territorial seas. Therefore, the agencies 

do not agree that the rule would regulate waters that have no impact on water 

quality. See summary responses in Topic 8: Tributaries, including section 8.1.1 

regarding the relevance of flow regime and the historical and proposed jurisdiction 

of ephemeral and intermittent tributaries. The final rule includes a revised and 

expanded exclusion for ditches. See summary response 6.2: Excluded ditches for 
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100

further discussion. In terms of how CWA programs are implemented, the rule will 

not affect the current implementation of the various CWA programs, such as the 

water quality standards, TMDLs and permitting programs. Implementation of 

CWA programs is outside the scope of this rule.

Montana Association of Conservation Districts (Doc. #18628)

12.134 Many landowners do not see this clarification of WOTUS because the definition 

continues to include items that are on a case by case basis. For the waters where a caseby-case review is not needed, will a map be produced? How will an individual 

landowner determine which waters are WOTUS? If a landowner has to submit a permit, 

will the costs be reasonable? How can landowners request a permit and receive feedback 

in a timely manner? How will the self-verification process work? Does NRCS have a 

role in the determination of the 50+ practices regarding certification? (p. 1)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. The agencies note 

that the final rule provides for certain categories of waters that are jurisdictional by 

rule, which will result in a more efficient process. The agencies do not have the 

authority to map all waters of the U.S.; jurisdictional determinations are provided 

at the request of a landowner. None of the existing procedures, permitting 

mechanisms, efficient permitting tools such as general permits, or activity 

exemptions will be modified as a result of this rulemaking. The Interpretive Rule 

for conservation practices under 404(f)(1)(A) has been withdrawn, per Section 112 

of the Consolidated and Further Continuing Appropriations Act of 2015. The 

remaining comments are outside the scope of this rulemaking effort.

12.135 MACD is concerned by the lack of early-on participation in the rulemaking process by 

the Army Corps of Engineers, as they are the agency that will be enforcing any changes 

to the definition of WOTUS. MACD has already seen variations in interpretation of the 

law from different Army Corps of Engineer employees, as Montana is located in two 

CoE districts. The rulemaking process highlighted WOTUS on a national scale. This 

will generate more landowner attention. Does the CoE have the staff to address what we 

expect to be a growing number of questions and concerns coming in? What will the 

response time be to these concerns? Are there any efforts afoot to improve response 

times? MACD recommends that the rule include a timeframe for the CoE to act on an 

application in a reasonable amount of time. Will the Corps be able to use local and state 

regulators as qualifiers/approvers for projects? (p. 2)

Agency Response: See Summary Response. The agencies recognize the 

importance of public input on the content of the rule. The agencies adequately 

allowed for such input through public participation in the public notice and 

rulemaking process and the proposed rule was disseminated to the widest audience 

possible. The public notice comment period was extended twice to ensure sufficient 

time for comment by all interested parties. Additional outreach efforts were 

extensive and included over 400 meetings nationwide with states, small businesses, 

farmers, academics, miners, energy companies, counties, municipalities, 

environmental organizations, other federal agencies and many others. The agencies 
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believe the final rule will result in increased clarity and certainty regarding the 

identification of “waters of the U.S.” The agencies received many helpful comments 

on the proposed rule which resulted in refinement of the final rule to provide 

further clarity and certainty to the regulated public. None of the existing 

procedures, permitting mechanisms, efficient permitting tools such as general 

permits, or activity exemptions will be modified as a result of this rulemaking; 

therefore, existing procedures should not be further complicated by this rule. The 

agencies are developing guidance to facilitate effective, consistent, and efficient 

implementation of the final rule once it becomes effective. The agencies strive to 

achieve consistency across the country in all districts and regions in application of 

the rule for jurisdictional determinations. The agencies also recognize that there

are variations that occur in geography, hydrology, climate, etc., which affect 

jurisdictional determinations. The initial phase of implementing the rule will 

require education and training for agency staff as well as other stakeholders and the 

regulated public. This training and outreach will be regionally-based to ensure 

appropriate consideration is given to ecoregional variation and to ensure consistent 

and efficient implementation of the rule. There are appropriate levels of regional 

variation in implementation of the regulations; however, the agencies strive for 

national consistency. This appropriate regional variation can make it appear that 

there are inconsistencies in program execution. The rule aims to reduce any 

inappropriate inconsistencies and provide a bright line of clarity for the agencies, 

state partners, and the regulated public. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources; for example, the ordinary high water mark 

regional manuals or the regional supplements to the wetland delineation manual, 

both of which are outside the scope of this rulemaking but are related resources.

Georgia Municipal Association (Doc. #14527.1)

12.136 During recent presentations about the rule, EPA staff have stated projects “will be 

reviewed on a case by case basis jurisdictionally”. When presenting information about 

the proposed rules to city officials, EPA representatives have indicated that “this is what 

we think will be covered”, “we don’t see that as being a scenario”, or “we anticipate the 

rule will ... “ If EPA staff do not have a clear understanding of the terms and 

requirements in the rule, how can GMA provide guidance to cities to inform them of their 

responsibilities if the rule is implemented as written? This does not provide local 

officials with any clarity over the current process, and the rules could easily be 

interpreted to significantly expand the definition of Waters of the U.S. (p. 3)

Agency Response: See Summary Response. The agencies believe the final rule 

will result in increased clarity and certainty regarding the identification of “waters 

of the U.S.” The agencies received many helpful comments on the proposed rule 

which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public.

12.137 If ditches, curbs, gutters, and other system components throughout Georgia are 

jurisdictional, GMA is concerned that the Corps simply does not have enough manpower 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

102

to review and make a determination for these facilities throughout the state. Significant 

delays are inevitable. (p. 3)

Agency Response: See Summary Response. The agencies believe with the clarity 

and certainty provided in the rule that there will be efficiencies gained in making 

jurisdictional determinations. See the updated Economic Analysis for additional 

discussion on costs/benefits. Refer to the exclusions in paragraph (b) of the rule and 

the preamble section “Waters and Features that Are Not Waters of the United 

States” for further information regarding excluded features such as stormwater 

control features, ditches, and wastewater recycling structures.

12.138 The proposed rule will result in the loss of local control over home rule authority to 

maintain, improve, and construct new facilities. GMA and city leaders throughout the 

state are strongly supportive of the protection of water quality, public health, and the 

environment. Cities have demonstrated diligence in protecting bodies of water, streams 

and rivers. Cities try to be environmental leaders by following regulations, providing 

training and certification for public works officials, and engaging in innovative designs 

that are environmentally sensitive. Many cities are using green infrastructure as a 

stormwater management tool to lessen flooding and protect water quality by using 

vegetation, soils and natural processes. Georgia’s local public works officials engage in 

best practices, working through professional organizations such as the Georgia 

Association of Water Professionals and Georgia Rural Water Association. Unfortunately, 

the Corps and EPA did not engage any of the states or local providers, the experts on the 

ground about how to fix these rules. (p. 4)

Agency Response: See Summary Response. Refer to the exclusions in paragraph 

(b) of the rule and the preamble section “Waters and Features that Are Not Waters 

of the United States” for further information regarding excluded features such as 

stormwater control features, ditches, and wastewater recycling structures. The 

agencies recognize the importance of public input on the content of the rule. The 

agencies adequately allowed for such input through public participation in the 

nationwide comment process and the proposed rule was disseminated to the widest 

audience possible. The public notice comment period was extended twice to ensure 

sufficient time for comment by all interested parties. The agencies received many 

helpful comments on the proposed rule which resulted in refinement of the final rule 

to provide further clarity and certainty to the regulated public. Additional outreach 

efforts were extensive and included over 400 meetings nationwide with states, small 

businesses, farmers, academics, miners, energy companies, counties, municipalities, 

environmental organizations, other federal agencies and many others. The agencies 

recognize that the state and local governments have well-defined and long-standing 

relationships in implementing affected CWA programs and these relationships will 

not be altered. This action will not have substantial direct effects on the states, on 

the relationship between the national government and the states, or on the 

distribution of power and responsibilities among the various levels of government. 

The final rule does not restrict the states’ efforts in developing or implementing 

statewide permits under CWA programs as a result of the rule. The rule does not 

diminish or in any way detract from the intent and purpose of CWA sections 101(b) 

and 101(g) regarding the states’ primary and exclusive authority over water 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

103

allocation and water rights administration, as well as state-federal co-regulation of 

water quality. The agencies worked hard to ensure the rule reflects these 

fundamental principles.

12.139 GMA believes that the ambiguous terms in the proposed rule will result in more ditches, 

channels, conveyances, and treatment approaches being federally regulated. The 

outcome will be significant delays in completing projects, increased project costs, and the 

burden to pay will fall to the rate payers and taxpayers. (p. 5)

Agency Response: See Summary Response. See the updated Economic Analysis 

for additional discussion on predicted change in jurisdiction and costs/benefits. 

Refer to the exclusions in paragraph (b) of the rule and the preamble section 

“Waters and Features that Are Not Waters of the United States” for further 

information regarding excluded features such as stormwater control features, 

ditches, and wastewater recycling structures. The agencies received many helpful 

comments on the proposed rule which resulted in refinement of the final rule to 

provide further clarity and certainty to the regulated public, including refinement 

and expansion of the features excluded from jurisdiction. It is important to note 

that unless a water body is explicitly identified in paragraph (a) as being 

jurisdictional by rule [(a)(1)-(6) waters] or subject to a case-specific significant 

nexus determination to ascertain its jurisdictional status [(a)(7) and (a)(8) waters], a 

water body or landscape feature is excluded from jurisdiction under the CWA even 

if it is not explicitly listed in paragraph (b). 

12.140 Section 303 WQS – Under the proposed rule, if a ditch is considered a Water of the 

United States, then a sanitary sewer overflow to a dry ditch could create an enormous 

burden on the local utility. CWA regulates TMDL’s and discharges to the Waters of the 

United States. Currently, if a system has an overflow reaching a stream it is required to 

follow protocol procedures in clean up and notification, and if significant a consent 

decree will be issued by state regulators. The protocol requires sampling and monitoring 

for an extended period of time, which is costly but usually easy to perform. If the 

overflow goes to a dry ditch but does not reach the stream, what new or additional 

requirements would the local provider be subject to if the proposed rule is adopted? If 

the proposed rule is adopted, what COE permit would be required in this case, how long 

would it take to address the spill in a dry ditch, and what parameters would be required 

for sampling and for and how long? Remember that to excavate the ditch would involve 

off-fall of dredging. (p. 8)

Agency Response: See Summary Response. Refer to the “Tributary” and 

“Waters and Features that Are Not Waters of the United States” sections of the 

proposed rule and preamble for further information and clarification on tributaries, 

ditches, and man-made stormwater conveyances. The final rule includes specific 

characteristics that must be met in order to meet the definition of “tributary,” 

including bed and banks and ordinary high water mark. The Clean Water Act 

404(f)(1)(C) exemption for maintenance of irrigation and drainage ditches will 

remain in effect, when applicable. None of the existing procedures, permitting 

mechanisms, efficient permitting tools such as general permits, or activity 

exemptions will be modified as a result of this rulemaking; therefore, existing 

procedures should not be further complicated by this rule.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

104

12.141 (...) does curb and gutter (flow), which contributes a significant amount of flow to 

receiving tributaries, now become a nexus and become Waters of the United States? It 

sounds a little far-fetched, but when you consider the volumes of flow contributing to 

wetlands, estuaries and tributaries, it questions where the proposed rule starts and stops 

with adjacent contributing factors. (p. 9)

Agency Response: Please see Summary Response.

12.142 [Regarding existing floodplains] Under the proposed rule, the floodplains could and in 

many cases would be redefined. Local government has spent an enormous amount of 

effort, time, and funds mapping and engineering floodplain management programs. 

Potentially building codes would have to be modified and land use in many cases be 

redefined. (p. 9)

Agency Response: See Summary Response. Refer to the “Adjacent Waters” 

section of the proposed rule and preamble for further information and clarification 

on the use of floodplain information in making determinations of jurisdiction. 

Floodplain, as used in the final rule, applies only to the Clean Water Act definition 

of waters of the U.S. and as such, the agencies do not anticipate impacts to other 

local, state, or federal floodplain management programs. The agencies intend to 

utilize available floodplain mapping and floodplain determination methodologies for 

use in making jurisdictional determinations, including the FEMA 100-year flood 

risk zone maps as discussed in the preamble.

12.143 A bigger question for the legal arena is how does the federal rule change affect USEPA 

getting into local land use regulating? (p. 10)

Agency Response: See Summary Response. The statutory authority of the CWA 

does not convey to the Federal Government any ownership of or property rights in 

any private lands. Therefore, we do not believe that private property will be 

negatively impacted by the Federal Government as a result of the final rule. The 

agencies recognize that the state and local governments have well-defined and longstanding relationships in implementing affected CWA programs and these 

relationships will not be altered. This action does not have substantial direct effects 

on the states, on the relationship between the national government and the states, or 

on the distribution of power and responsibilities among the various levels of 

government. The agencies are not restricting the states’ efforts in developing or 

implementing statewide permits under CWA programs as a result of the rule.

Waters Advocacy Coalition (Doc. #0851)

12.144 The proposed rule will replace the definition of “navigable waters” and “waters of the

United States” in the regulations for all CWA programs, including Section 404

discharges of dredge or fill material, the section 402 National Pollutant Discharge

Elimination System permit program, the section 401 state water quality certification

process, and section 303 water quality standards and total maximum daily load

programs. The EPA and the Corps (together, the agencies) have not truly considered the

complicated implications that this proposed rule will have for the various CWA

programs. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

105

Although the EPA’s Economic Analysis purports to analyze the costs of importing this

“waters of the United States” definition into 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 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.

Because the agencies have not fulfilled their obligations to consider the implications to 

the various CWA programs, it falls to the public to address these implications in 

comments so that these issues are fully addressed by the agencies during the rulemaking 

process. Analyzing these implications is complicated, will require additional time, and, 

therefore, warrants an extension of the comment period. (p. 3)

Agency Response: See Summary Response. See updated Economic Analysis for 

the final rule. The agencies recognize the importance of public input on the content 

of the rule. The agencies adequately allowed for such input through public 

participation in the notice and comment rulemaking process and the proposed rule 

was disseminated to the widest audience possible. The public notice comment 

period was extended twice to ensure sufficient time for comment by all interested 

parties. The agencies believe the final rule increases CWA program predictability 

and consistency by increasing clarity as to the scope of “waters of the United States” 

protected under the Act. The rule defines and clarifies the scope of waters of the 

U.S. under CWA regulation, and revised definitions and exclusions in the final rule 

provide greater certainty to the regulated community and states and tribes 

implementing CWA regulations. The rule does not change existing CWA regulatory 

requirements for the various CWA permit programs. Overall, the scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

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

rule than under the existing regulations, in part because the rule includes provisions 

for a number of excluded waters, some of which are excluded by rule for the first 

time. For example, stormwater conveyance features constructed in dry land would 

not be jurisdictional. For further discussion of exclusions, see summary responses 

for Topic 6.2: Excluded ditches and Topic 7: Features and waters not jurisdictional. 

The agencies have thoroughly considered the implications of the final rule on the 

CWA programs and the agencies, states and tribes responsible for implementing 

CWA regulations; however, the rule imposes no direct costs, but each of these 

programs may subsequently impose direct or indirect costs as a result of 

implementation of their specific regulations. The economic analysis has been 

updated for the final rule. See summary response for Topic 11: Costs/Benefits and 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

106

the Economic Analysis document for details on the estimated indirect costs and 

benefits of the rule. Several sections of the Economic Analysis describes the costs 

and benefits for the non-404 CWA programs.

U.S. Chamber of Commerce (Doc. #2607)

12.145 Expanding the definition of “Waters of the U.S.” will affect a wide variety of related 

permitting requirements, definitions, and CWA programs, and is likely to have a 

significant impact on an extensive range of current land uses affecting cities, counties, 

industries, and commercial interests of all sizes. (p. 2)

Agency Response: See Summary Response. The statutory authority of the CWA 

does not convey to the Federal Government any ownership of or property rights in 

any private lands. Therefore, we do not believe that private property will be 

negatively impacted by the Federal Government as a result of the final rule. The 

agencies recognize that the state and local governments have well-defined and longstanding relationships in implementing affected CWA programs and these 

relationships will not be altered. This action will not have substantial direct effects 

on the states, on the relationship between the national government and the states, or 

on the distribution of power and responsibilities among the various levels of 

government. The agencies are not restricting the states’ efforts in developing or 

implementing statewide permits under CWA programs as a result of the rule. The 

rule only provides a definition for “waters of the U.S.” The rule does not affect the 

CWA statute in which authorization may be required for discharges of dredged 

and/or fill material into waters of the U.S., or other activities in jurisdictional waters 

of the U.S. under other provisions of the CWA which require authorization. In 

addition, the final rule does not affect the existing statutory activity-based 

exemptions under Section 404(f)(1) of the Clean Water Act, including the 

longstanding permitting exemptions in the CWA for farming, silviculture, and 

ranching. The agencies do not have authority to regulate a landowner’s property. 

The agencies only have authority to regulate jurisdictional activities in jurisdictional 

waters of the U.S. under the Clean Water Act.

Greater North Dakota Chamber (Doc. #10850)

12.146 With the incredibly cyclical, unpredictable and ferocious nature of North Dakota’s wet 

and dry season, expanding the definition of WOTUS would be damaging, difficult to 

track and highly impractical. The EPA would have jurisdiction over areas that are wet 

during some months, but dry during others. This impacts North Dakota’s agricultural 

sector as farmers, ranchers and others who utilize the land will be unable to perform 

critical functions for fear of violating the Clean Water Act. (p. 1)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. The agencies note 

that the final rule provides for certain categories of waters that are jurisdictional by 

rule, which will result in a more efficient process. The agencies believe the final rule 

will result in increased clarity and certainty regarding the identification of “waters 

of the U.S.” The agencies received many helpful comments on the proposed rule 

which resulted in refinement of the final rule to provide further clarity and 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

107

certainty to the regulated public. None of the existing procedures, permitting 

mechanisms, efficient permitting tools such as general permits, or activity 

exemptions under Section 404(f)(1), including those for normal farming activities, 

will be modified as a result of this rulemaking. The Corps will develop the tools 

necessary to assist its staff with the jurisdictional determination process specific to 

section 404 in the implementation of the final rule to make the process predictable, 

efficient, and effective.

Northern Kentucky Chamber of Commerce (Doc. #13116)

12.147 The use of “significant nexus” is a vague term and offers minimal guidance to the 

agencies tasked with defining and enforcing the rule. The Commonwealth of Kentucky is 

managed by four separate US ACE districts. The lack of consistency and broad range of 

interpretation of the “404” program adopted for defining “waters of the US” is sufficient 

example to our members that there is not enough certainty in the proposed rule regarding 

the definition of these “waters.” (p. 1)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. The agencies note 

that the final rule provides for certain categories of waters that are jurisdictional by 

rule, which will result in a more efficient process. The agencies are developing 

guidance to facilitate effective, consistent, and efficient implementation of the final 

rule once it becomes effective. The agencies strive to achieve consistency across the 

country in all districts and regions in application of the rule for jurisdictional 

determinations. The agencies also recognize that there are variations that occur in 

geography, hydrology, climate, etc., which affect jurisdictional determinations. The 

initial phase of implementing the rule will require education and training for agency 

staff as well as other stakeholders and the regulated public. This training and 

outreach will be regionally-based to ensure appropriate consideration is given to 

ecoregional variation and to ensure consistent and efficient implementation of the 

rule. There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources; for example, the 

ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

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

12.148 The expansion of jurisdictional waters of the U.S. is also likely to result in a greater 

number of “impaired” federal waters under section 303, with additional burdens on States 

to evaluate and list these waters, and a greater likelihood that facilities with runoff will 

fall under Total Maximum Daily Load “budgets” that may significantly impact facility 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

108

operations; and, Expanded federal jurisdiction over land features such as ephemerals and 

remote wetlands will trigger section 402 discharge and section 404 dredge and fill permit 

requirements for the first time for many activities. These requirements would apply to 

much more than just work that takes place in wetlands, impacting many other activities. 

(p. 8)

Agency Response: Please see Summary Response.

12.149 If the proposed rule were finalized, virtually any business that owns or operates a facility 

or has property could be adversely affected, particularly if it has ditches, retention ponds 

for stormwater runoff, fire/dust suppression ponds (since dust suppression is usually 

required under a facility’s air permit), or other surface impoundments on site. Moreover, 

unlike some agricultural water features, industrial ditches and impoundments are not 

exempted from federal permitting requirements under section 404. The proposal would 

also effectively narrow even the exclusions for certain agricultural features. (p. 8)

Agency Response: See Summary Response. Refer to the exclusions in paragraph 

(b) of the rule and the preamble section “Waters and Features that Are Not Waters 

of the United States” for further information regarding excluded features such as 

ditches, stormwater control features, and water-filled depressions created in dry 

land incidental to construction. See the preamble for further discussion on the 

ditches that are not considered “waters of the U.S.” The agencies believe the 

exclusions in the rule are comprehensive and note that the exclusions are applicable 

to all Clean Water Act programs. See the activity exemptions under section 

404(f)(1) of the Clean Water Act regarding exemptions for certain maintenance 

activities. None of the existing procedures, permitting mechanisms, efficient 

permitting tools such as general permits, or activity exemptions will be modified as a 

result of this rulemaking; therefore, existing procedures should not be further 

complicated by this rule.

12.150 Road Construction/Maintenance – Major linear transportation projects such as roads, 

highways, bridges, or transit systems, can take years, if not more than a decade, to 

complete. Although only certain entities are involved in the financing and construction 

of these projects, almost all other surrounding entities are positively impacted and benefit 

from these projects.18 In order for these projects to move forward, planners need to know 

that permits received at the beginning of a multi-year construction process will be valid 

throughout the entire time the project is being built. Further, planners also need to know 

that the specific conditions and mandates in a particular permit are not going to change 

after the permit is issued. The prospect of validly-issued permits being rescinded because 

of reinterpretation in the scope of federal jurisdiction, or the inability to obtain permits in 

the first place, are of great concern to potential investors. The expansion of jurisdictional 

waters under the WOTUS proposal would greatly exacerbate this uncertainty problem. 

(p. 19)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

 

18 According to the Federal highway Administration, for every $1 billion spent on highway and bridge 

improvements supports almost 28,000 jobs.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

109

scope of “waters of the United States” protected under the Act. The scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries. Previously issued permits 

and/or authorizations are unaffected by this rule. The preamble addresses the 

status of final JDs and permits as well as pending JDs and permits.

12.151 Routine track bed maintenance, ditch/culvert maintenance and clearing, or the repair of 

bridges or other crossings often currently do not require any permit or fall into a 

Nationwide Permit. Projects with any land disturbance that includes a ditch are much 

more likely to trigger a “dredge and fill” permit, and specifically an individual permit 

instead of a Nationwide permit under section 404 of the CWA. Railroad companies will 

have to incur the cost and project delays of many more of these permits – which EPA 

itself has estimated to have a median cost of $155,000.19 (p. 21-22)

Agency Response: See Summary Response. See the preamble section “Waters 

and Features that Are Not Waters of the United States” for further information 

regarding excluded features such as certain ditches and stormwater control 

features. The final rule clarifies the additional excluded waters and features under 

the Clean Water Act. See the preamble section on “Waters and Features That Are 

Not Waters of the U.S.” for further discussion. The final rule does not affect the 

existing statutory activity-based exemptions under Section 404(f)(1) of the Clean 

Water Act, including those for the construction of irrigation ditches and the 

maintenance of irrigation and drainage ditches. In addition, the Corps nationwide 

general permit program includes several general permits for discharges associated 

with ditch activities, some of which may not require pre-construction notification 

for expeditious review and efficiency in processing verifications under Section 404 of 

the Clean Water Act. None of the existing procedures, permitting mechanisms, 

efficient permitting tools such as general permits, or activity exemptions will be 

modified as a result of this rulemaking; therefore, existing procedures should not be 

further complicated by this rule.

John Deere & Company (Doc. #14136)

12.152 Continued progress is potentially compromised by the proposed rule which will 

discourage farmers and ranchers from employing new technologies that enhance 

productivity and reduce environmental impacts. (p. 1)

Agency Response: See Summary Response. The rule is not designed to subject 

entities of any size to any specific regulatory burden. Rather, it is designed to 

clarify the statutory scope of the “waters of the U.S.” consistent with existing 

regulations and Supreme Court precedent. In developing the rule, the agencies 

considered all relevant implications that will result from the rule implementation 

including legal, economic, and implementation considerations, as well as the 

resulting effect on the regulated public. See the preamble section “Waters and 

 

19 EPA and U.S. Army Corps of Engineers, Economic Analysis of Proposed Revised Definition of Waters of the 

United States (March 2014) at 12.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

110

Features that Are Not Waters of the United States” for further information 

regarding excluded features such as certain ditches and stormwater control 

features. See the activity exemptions under section 404(f)(1) of the Clean Water Act 

regarding exemptions for certain activities; the exemptions included in 404(f)(1) are 

not being affected or modified by this rule. None of the existing procedures, 

permitting mechanisms, efficient permitting tools such as general permits, or 

activity exemptions will be modified as a result of this rulemaking; therefore, 

existing procedures should not be further complicated by this rule.

12.153 The agencies’ proposed definitions for the terms: tributary, adjacent waters, neighboring, 

riparian area, and other waters lack sufficient clarity and, as such, significantly risk the 

expansion of jurisdictional waters on land over which CWA authority will be exercised. 

A determination that an area is a “water of the United States” immediately subjects that 

area to a number of legally-binding requirements. Enlarging the universe of what is 

considered jurisdictional under the CWA, and expanding the areas subject to the 

numerous programs, permits, and liability associated with such a classification, will 

introduce regulatory confusion, uncertainty and delay into the planting, cultivating and 

harvesting of crops, construction, forestry, golf and turf activities throughout the country. 

(p. 7)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. The scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries. Also see the activity 

exemptions under section 404(f)(1) of the Clean Water Act regarding exemptions for 

certain activities. None of the existing procedures, permitting mechanisms, efficient 

permitting tools such as general permits, or activity exemptions will be modified as a 

result of this rulemaking; therefore, existing procedures should not be further 

complicated by this rule. The rule is not designed to subject entities of any size to 

any specific regulatory burden. Rather, it is designed to clarify the statutory scope 

of the “waters of the U.S.”, consistent with Supreme Court precedent. The agencies 

received many helpful comments on the proposed rule which resulted in refinement 

of the final rule to provide further clarity and certainty to the regulated public. The 

final rule and preamble each contain important information responsive to this 

comment.

12.154 Broadening the Definition of WOTUS will Create Uncertainty and Delays for Ongoing 

Operation of Manufacturing Facilities and Future Expansion

The analysis of several manufacturing facilities suggests the proposed definitions will 

result in additional acreage falling within the jurisdictional waters of the United States. 

Depending on the facility’s location, the additional acreage will likely fall under one or

more of the proposed definitions for tributary, adjacent, neighboring, riparian, floodplain 

or other waters definitions. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

111

As outlined above, under the proposed definitions, it is hard to imagine any parcel of land 

not containing a jurisdictional water or affecting one. If a land feature isn’t a tributary, it 

might be part of a system indirectly draining to a tributary, or be adjacent to or 

neighboring a tributary or other jurisdictional water or otherwise be part of a group of 

lands in a watershed that together significantly affect a water of the U.S. It is the 

uncertain and potentially unlimited nature of the proposed definitions, where very few 

limits exist, that causes concern. Although the agency exempts ditches “that are 

excavated wholly in uplands, drain only uplands, and have less than perennial flow,”

there are very few instances where a ditch on a developed site would qualify for this 

exemption.20 Logistically, it is rare that a ditch drains to nowhere. On most sites, 

drainage ditches are by design connected to drainage systems so that the site drains 

effectively. Since the definition of tributary categorically claims everything connected to 

tributary, then all developed ditch systems will be categorically labeled waters of the 

United States if the drainage leaves the site and connects to any drainage system that 

eventually reaches a water of the US. 

Our manufacturing facilities plan the development of sites, building and infrastructure 

years in advance, and these plans are incorporated into a Factory Master Plan. The 

increased acreage subject to the agencies’ regulations under the proposed definitions is 

significant and will likely impact manufacturing operations, creating potential operational 

delays, limiting use of access ways and creating limitations on future factory expansions 

and Factory Master Plans. (p. 13)

Agency Response: See Summary Response. See the updated Economic Analysis 

for additional discussion on predicted changes to jurisdiction. The scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries. Refer to the “Tributary” 

and “Waters and Features that Are Not Waters of the United States” sections of the 

proposed rule and preamble for further information and clarification on tributaries, 

and excluded features such as certain ditches and stormwater control features. 

Refer to the “Adjacent Waters” section of the proposed rule and preamble for 

further information and clarification on adjacency and neighboring waters. The 

agencies received many helpful comments on the proposed rule which resulted in 

refinement of the final rule to provide further clarity and certainty to the regulated 

public. The agencies only have authority to regulate “waters of the U.S.” and are 

not regulating all land. The rule is not designed to subject entities of any size to any 

specific regulatory burden. Rather, it is designed to clarify the statutory scope of 

the “waters of the U.S.”, consistent with existing regulations and Supreme Court 

precedent. The final rule includes specific characteristics that a landscape feature

must meet in order satisfy the definition of “tributary” in paragraph (b) of the rule, 

including bed and banks and ordinary high water mark. The final rule excludes 

many ditches, including those ephemeral and intermittent ditches that are not a 

relocated tributary or excavated in a tributary, and excluded ditches cannot be 

 

20 79 Fed. Reg. 22, 193 (April 21, 2014).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

112

claimed as jurisdictional tributaries even if they meet one of the categories of 

jurisdictional waters under paragraph (a) of the final rule. The Clean Water Act 

404(f)(1)(C) exemption for maintenance of irrigation and drainage ditches is not 

affected by this final rule.

12.155 Service Roads and Normal Manufacturing Operations Near Wetlands. Some facilities 

will face increased jurisdiction because of their proximity to wetlands on or near the site. 

Any ditch contributing flow to these waters - directly or indirectly- becomes a tributary 

and its use and management is regulated, sometimes requiring permits. Property at 

elevations comparable to these wetlands could also be regulated if they are subject to 

minor flooding or have shallow subsurface connections. Again, working with the Corps, 

companies complete delineations to define the boundaries of jurisdictional waters, and 

create certainty that can support decisions regarding standard upgrades to facilities for 

regular operation.

In some facilities, projects such as building a loading dock and levelling a soil pile to 

reduce erosion have been reviewed by the Corps. They are not subject to jurisdiction 

under the current definitions. Under the proposed definitions, these same areas may be 

subject to CWA regulation, thus requiring permits and the potential for denial. (p. 14)

Agency Response: See Summary Response. Refer to the “Tributary” and “Waters 

and Features that Are Not Waters of the United States” sections of the proposed 

rule and preamble for further information and clarification on tributaries and 

ditches. The final rule includes specific characteristics that a landscape feature must 

meet in order satisfy the definition of “tributary” in paragraph (b) of the rule, 

including bed and banks and ordinary high water mark. These parameters ensure 

that only certain water features qualify as a tributary and are jurisdictional by rule. 

The final rule excludes many ditches, including those ephemeral and intermittent 

ditches that are not a relocated tributary or excavated in a tributary, and excluded 

ditches cannot be claimed as jurisdictional tributaries even if they meet one of the 

categories of jurisdictional waters under paragraph (a) of the final rule. The Clean 

Water Act 404(f)(1)(C) exemption for maintenance of irrigation and drainage 

ditches is not affected by this final rule. The agencies only have authority to 

regulate “waters of the U.S.” and are not regulating all land. The rule is not 

designed to “subject” any entities of any size to any specific regulatory burden. 

Rather, it is designed to clarify the statutory scope of the “waters of the U.S.”, 

consistent with existing regulations and Supreme Court precedent. None of the 

existing procedures, permitting mechanisms, efficient permitting tools such as 

general permits, or activity exemptions will be modified as a result of this 

rulemaking; therefore, existing procedures should not be further complicated by 

this rule. Under existing Corps’ regulations and guidance, Corps’ approved 

jurisdictional determinations generally are valid for five years. The preamble 

addresses the status of final JDs and permits as well as pending JDs and permits.

12.156 (...) the impact on many manufacturing facilities is likely to include increased:

1. Acreage subject to regulation;

2. Challenges to making improvements when ditches are reclassified as tributaries or linear 

wetlands, resulting in increased costs and facility project delays; and,
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113

3. Challenges in the form of delays and uncertainty to factory master planning processes 

when agency review becomes a necessary process step in the identification of regulated 

waters. (p. 15)

Agency Response: See Summary Response. See the Economic Analysis for 

additional discussion on changes in jurisdiction. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. Refer to the 

“Tributary” and “Waters and Features that Are Not Waters of the United States” 

sections of the proposed rule and preamble for further information and clarification 

on tributaries and excluded features such as certain ditches. The excluded ditches 

include ephemeral and intermittent ditches that are not a relocated tributary or 

excavated in a tributary, and such excluded ditches cannot become jurisdictional 

even if they meet one of the categories of jurisdictional waters under paragraph (a) 

of the final rule. The final rule includes specific characteristics that must be met in 

order for a water feature to meet the definition of “tributary,” including bed and 

banks and ordinary high water mark. These parameters ensure that only certain 

water features qualify as a tributary and are jurisdictional by rule. The science 

demonstrates that all tributaries have a significant nexus when considered 

individually or in combination with other tributaries to the (a)(1) to (a)(3) waters. 

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 in the implementation of the final rule 

to make the process predictable, efficient, and effective.

12.157 The proposed rule will directly and negatively impact both the golf and landscape 

industry by expanding jurisdictional waters to areas on or adjacent to new and existing 

golf courses and landscapes. Golf course and landscape managers would need to follow 

a federal permitting process under section 402 and 404 that were not previously required. 

Under section 404, permits are required for the discharge of dredge and fill material into 

WOTUS. Golf courses would now be required to obtain new delineations and costly 

hydrologic evaluations to construct drainage, landscape features, grassy bio-swales, 

bridges and channelized areas, erosion control, culverts and other landscape features. 

The addition of expanded jurisdiction on golf course would also require more section 402 

permits for the application of fertilizers and pesticides. In both cases, golf course 

superintendents and groundskeepers will face uncertainty on what land and ditches may 

be covered, halting routine maintenance and future development. (p. 15)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. The scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries. None of the existing 

procedures, permitting mechanisms, efficient permitting tools such as general 

permits, or activity exemptions will be modified as a result of this rulemaking; 

therefore, existing procedures should not be further complicated by this rule. The 

agencies only have authority to regulate “waters of the U.S.” and are not regulating 
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114

all land. The rule is not designed to subject entities of any size to any specific 

regulatory burden. Rather, it is designed to clarify the statutory scope of the 

“waters of the U.S.”, consistent with existing regulations and Supreme Court 

precedent. Refer to the rule text and the “Tributary,” “Adjacent Waters,” “CaseSpecific Waters,” and “Waters and Features that Are Not Waters of the United 

States” sections of the proposed rule and preamble for further information and 

clarification on tributaries, adjacent waters, case-specific waters, and excluded 

features such as certain ditches, artificial lakes and ponds, and stormwater control 

features. The Corps will develop the tools necessary to assist its staff with the 

jurisdictional determination process specific to section 404 in the implementation of 

the final rule to make the process predictable, efficient, and effective. Under 

existing Corps’ regulations and guidance, Corps’ approved jurisdictional 

determinations generally are valid for five years. The preamble addresses the status 

of final JDs and permits as well as pending JDs and permits.

Pennsylvania Chamber of Commerce and Industry (Doc. #14401)

12.158 Unless the EPA and the Corps’ address uncertainty about how the key terms of this 

proposal are going to be defined and interpreted, it is apparent that additional waterways, 

such as those in a ditch, impoundment or stormwater conveyance, would be subject to an 

impairment designation. Such a designation would not only trigger burdensome 

permitting and regulatory requirements for nearby point and non-point source discharges, 

but state and federal regulators would have to devote additional staff time to developing 

and enforcing a TMDL for the waterway. (p. 3)

Agency Response: See Summary Response. Refer to the rule text and the 

“Tributary,” “Impoundments,” and “Waters and Features that Are Not Waters of 

the United States” sections of the proposed rule and preamble for further 

information and clarification on tributaries, impoundments, and excluded features 

such as ditches and stormwater control features. The rule defines and clarifies the 

scope of waters of the U.S. under CWA regulation, and revised definitions and 

exclusions in the final rule provide greater certainty to the regulated community 

and states and tribes implementing CWA regulations. This rule will not affect the 

current implementation of the various CWA programs such as the TMDL and 

permitting programs, which is outside the scope of the rule; implementation of 

CWA programs is outside the scope of this rule. Overall, the scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

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

the existing regulations, in part because the rule includes provisions for a number of 

excluded waters, some of which are excluded by rule for the first time. For instance, 

many ephemeral and intermittent ditches, and stormwater conveyance features and 

a number of other waters constructed in dry land, are excluded from waters of the 

U.S. For further discussion of exclusions, see summary responses for Topic 6.2: 

Excluded ditches and Topic 7: Features and waters not jurisdictional.

12.159 This rule could also hamper the development of electric transmission and oil and gas 

pipeline infrastructure. As the events of the recent polar vortex showed, the regional grid 

is in need of more natural gas infrastructure and electric transmission lines. EPA’s own 

Clean Power Plan expects that more natural gas will be consumed at power plants for 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

115

electric generation – which cannot happen in Pennsylvania and PJM’s competitive 

generation market without additional gas infrastructure to economically deliver gas to 

market. The regional grid is also in need of upgraded infrastructure to more efficiently 

deliver power to the market. But this proposal would expand the definition of 

environmental features subject to various permitting requirements, including Section 404, 

adding to both time and cost for these vital projects at a time when such infrastructure 

could not be more needed. (p. 3-4)

Agency Response: See Summary Response. See the Economic Analysis for 

additional discussion on changes in jurisdiction. The scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

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

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

existing categories such as tributaries. The final rule was developed to increase 

CWA program predictability and consistency by increasing clarity as to the scope of 

“waters of the United States” protected under the Act. The agencies note that the 

final rule provides for certain categories of waters that are jurisdictional by rule, 

which will result in a more efficient process. The rule is not designed to subject 

entities of any size to any specific regulatory burden. Rather, it is designed to 

clarify the statutory scope of the “waters of the U.S.” consistent with existing 

regulations and Supreme Court precedent. The Corps will develop the tools 

necessary to assist its staff with the jurisdictional determination process specific to 

section 404 in the implementation of the final rule to make the process predictable, 

efficient, and effective.

Georgia Chamber of Commerce (Doc. #14430)

12.160 The WOTUS rules will cause most of the highway stormwater infrastructure of city, 

county, and state governments in America to be subject to permitting under Section 402 

of the CWA. The WOTUS rules will also cause most of the cities, counties, and states to 

have to acquire Section 404 CWA permits for new highway ditches or expansions of 

existing ones. The WOTUS rules may cause property owners who want to build a house 

on an acre of land next to a county highway to have to get a Section 404 permit before 

installing a 12-inch culvert for a driveway across the county’s ditch. (p. 47)

Agency Response: See Summary Response. The scope of regulatory jurisdiction 

in this rule is narrower than that under the existing regulation. Fewer waters will 

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

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

categories such as tributaries. Refer to the “Tributary” and “Waters and Features 

that Are Not Waters of the United States” sections of the proposed rule and 

preamble for further information and clarification on tributaries, and excluded 

features such as certain ditches, and stormwater control features. The excluded 

ditches include ephemeral and intermittent ditches that are not a relocated 

tributary or excavated in a tributary, and excluded ditches cannot become 

jurisdictional even if they meet one of the categories of jurisdictional waters under 

paragraph (a) of the final rule. Stormwater control features that are constructed to 

convey, treat, or store stormwater that are created in dry land are excluded. The 

final rule includes specific characteristics that a water feature must have in order to 
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116

meet the definition of “tributary,” including bed and banks and ordinary high water 

mark. These parameters ensure that only certain water features qualify as a 

tributary and are jurisdictional by rule. None of the existing procedures, permitting 

mechanisms, efficient permitting tools such as general permits, or activity 

exemptions, including the Clean Water Act 404(f)(1)(C) exemption for maintenance 

of irrigation and drainage ditches, will be modified as a result of this rulemaking; 

therefore, existing procedures should not be further complicated by this rule.

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

12.161 Despite the assertion in the preamble of the Proposed Rule, its provisions will not 

increase clarity and efficiency in the regulatory program but simply push disputes, 

uncertainties, costs, and inevitable litigation into the permit context (p. 4)

Agency Response: See Summary Response. See the Economic Analysis for 

additional discussion on changes in jurisdiction. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. The final rule 

provides for certain categories of waters that are jurisdictional by rule, which will 

result in a more efficient process. The agencies are developing guidance to facilitate 

effective, consistent, and efficient implementation of the final rule once it becomes 

effective. The agencies strive to achieve consistency across the country in all 

districts and regions in application of the rule for jurisdictional determinations. 

The agencies also recognize that there are variations that occur in geography, 

hydrology, climate, etc., which affect jurisdictional determinations. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public. This training and outreach 

will be regionally-based to ensure appropriate consideration is given to ecoregional 

variation and to ensure consistent and efficient implementation of the rule.

12.162 Commenters object to the inclusion of “man-altered, or man-made water” in the 

definition of by-Rule jurisdictional tributaries. Frequently as a means of compliance with 

the CWA or state water quality laws, regulations, or mandates, development interests or 

other land use entities will create a feature for water cleansing purposes that would never 

have existed but for that intervening activity. To render that water-quality-fostering 

feature now subject to full regulation under the CWA actually sets up a disincentive for 

natural water quality best management practices in favor of manufactured, artificial 

means that require increased cost and maintenance and displace “natural” features and 

processes with artificial ones. (p. 19)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. Refer to the 

“Tributary” and “Waters and Features that Are Not Waters of the United States” 

sections of the proposed rule and preamble for further information and clarification 

on tributaries, and excluded features such as certain ditches, stormwater control 

features, and other types of man-made features. Stormwater control features that 

are constructed to convey, treat, or store stormwater that are created in dry land 

are excluded. The agencies received many helpful comments on the proposed rule 
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117

which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public. The agencies modified the final rule from the 

proposed rule in response to comments received in order to ensure unintended 

effects to CWA programs were reduced or eliminated. The rule is intended to avoid 

disincentives to the environmentally beneficial trend in green infrastructure 

stormwater management practices. 

Corporate Environmental Enforcement Council, Inc. (Doc. #14608)

12.163 Many of CEEC’s members routinely rely upon CWA 404 permits for construction 

activities involving impacts to waters of the U.S. and CWA 402 permits for discharges 

associated with their operations. With the expansion of CWA jurisdiction under this 

Proposal, many more water features, including impoundments, geographically isolated 

wetlands and drainage ditches, will now be subject to federal jurisdiction. And as 

described above, the outer limits of jurisdiction remain poorly defined. As a result, 

CEEC’s members will face new permitting obligations, together with new compliance 

and enforcement risks associated with unclear regulatory expectations. (p. 10)

Agency Response: See Summary Response. The scope of regulatory jurisdiction 

in this rule is narrower than that under the existing regulation. Fewer waters will 

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

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

categories such as tributaries. The final rule was developed to increase CWA 

program predictability and consistency by increasing clarity as to the scope of

“waters of the United States” protected under the Act. See the Economic Analysis 

for additional discussion on changes in jurisdiction. Refer to the “Tributary,” 

“Adjacent Waters,” “Impoundments,” “Case-Specific Waters,” and “Waters and 

Features that Are Not Waters of the United States” sections of the proposed rule 

and preamble for further information and clarification on tributaries, adjacent 

waters, impoundments, case-specific waters, and excluded features such as certain 

ditches. The agencies are developing guidance to facilitate effective, consistent, and 

efficient implementation of the final rule once it becomes effective.

12.164 The Proposal cuts across multiple regulatory programs and thus its ambiguities and risks 

will be compounded. 

The CWA’s single definition of “waters of the United States” applies not only to CWA 

402 and 404 permitting, but also a host of other CWA programs (water quality standards, 

TMDLs, 401 water quality certifications). Beyond the CWA, it also dictates which 

facilities must develop spill prevention, control and countermeasure plans and/or facility 

response plans (SPCC/FRP), and whether/when spills and releases must be reported 

under the Oil Pollution Act, Emergency Planning and Community Right-to-know Act, 

and the Comprehensive Environmental Response, Compensation and Liability Act. 

Moreover, due to the expected increase in jurisdiction if the rule is finalized as proposed, 

there will be a rise in permitting obligations, which will implicate additional consultation 

requirements under the Endangered Species Act and impact analyses under the National 

Environmental Policy Act. In short, the risks and uncertainties that we have identified in 

the Proposal ripple across the CWA and beyond. Thus, it is essential that the Agencies 
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118

carefully define the key terms in the rulemaking using rule language that is clear and 

simple, properly bounded, and suitable for consistent implementation in the field. (p. 11)

Agency Response: See Summary Response. The scope of regulatory jurisdiction 

in this rule is narrower than that under the existing regulation. Fewer waters will 

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

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

categories such as tributaries. The final rule was developed to increase CWA 

program predictability and consistency by increasing clarity as to the scope of 

“waters of the United States” protected under the Act. The agencies understand 

that the definition of “waters of the U.S.” applies to all CWA programs. The 

agencies modified the final rule from the proposed rule in response to comments 

received in order to ensure unintended effects to those other CWA programs were 

reduced or eliminated. The agencies note that the final rule provides for certain 

categories of waters that are jurisdictional by rule, which will result in a more 

efficient process. While it is the responsibility of the Corps as the agency evaluating 

permit applications under section 404, to determine if Endangered Species Act and 

the National Historic Preservation Act requirements are being met, there are cases 

where these laws or other federal, state or local laws may still require review absent 

a CWA action. The 404 permit action does not remove the requirement to get other 

permits, if required by law. Obtaining a jurisdictional determination from the 

agencies does not trigger Section 7 of the Endangered Species Act, a federal action 

does, such as a section 404 permit decision. However, private landowners are also 

required to comply with Section 10 of the Endangered Species Act absent a federal 

action. The agencies work to ensure this compliance with other federal laws is 

completed in the most efficient and effective manner, and may include 

programmatic agreements or local operating procedures to streamline the process. 

The agencies are developing guidance to facilitate effective, consistent, and efficient 

implementation of the final rule once it becomes effective.

New Mexico Association of Commerce and Industry (Doc. #14638)

12.165 In the Proposed Rule, EPA and the Corps propose a new approach to determine what 

“waters” are subject to jurisdiction under the Clean Water Act. The science underlying 

this proposal was developed in Eastern states that receive far more precipitation and is 

not generally applicable to the arid west, where environmental conditions are very 

different. As a result, the proposed approach defies common sense by regulating vast 

areas of desert lands and dry features in states like Arizona and New Mexico on the 

premise that they are actually “waters” or have the required “significant nexus” to a 

downstream traditional navigable water.

... Reviewed under this standard, the Proposed Rule cannot be legally justified, at least as 

it would apply to the arid west. The Proposed Rule regulates all “tributaries,” defined as 

features that have a bed, banks, and ordinary high water mark and which contribute flow 

(however minimal or infrequently) to waters that are traditionally regulated under the 

Clean Water Act, and deems all features meeting these criteria to have the “significant 

nexus” required for jurisdiction no matter how minimal the actual chemical, physical, and 

biological impact. Such a “per se” approach reduces the Supreme Court’s requirement of 

a significant nexus, rather than any minimal nexus, to a nullity, and flies in the face of the 
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119

basic tenet of administrative law that agency decision-making must be supported by 

substantial evidence on a case-by-case basis. (p. 1-2)

Agency Response: See Summary Response and Technical Support Document for 

a summary of the legal and scientific basis for the final rule. The final rule was 

developed to increase CWA program predictability and consistency by increasing 

clarity as to the scope of “waters of the United States” protected under the Act. 

Refer to the “Tributary,” "Significant Nexus Conclusions,” and “Waters and 

Features that Are Not Waters of the United States” sections of the proposed rule 

and preamble for further information and clarification on tributaries including per 

se significant nexus for tributaries, and information on excluded features such as 

certain ditches and erosional features. The final rule includes specific 

characteristics that a water feature must have in order to meet the definition of 

“tributary,” including bed and banks and ordinary high water mark. These 

parameters ensure that only certain water features qualify as a tributary and are 

jurisdictional by rule. The agencies believe such characteristics indicate sufficient 

volume and frequency of flow for a tributary to have a significant nexus to the 

downstream (a)(1) to (a)(3) waters. The science demonstrates that all tributaries 

have a significant nexus when considered individually or in combination with other 

tributaries to the (a)(1) to (a)(3) waters. The scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The agencies are developing guidance to facilitate 

effective, consistent, and efficient implementation of the final rule once it becomes 

effective. The agencies strive to achieve consistency across the country in all 

districts and regions in application of the rule for jurisdictional determinations. 

The agencies also recognize that there are variations that occur in geography, 

hydrology, climate, etc., which affect jurisdictional determinations. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public. This training and outreach 

will be regionally-based to ensure appropriate consideration is given to ecoregional 

variation and to ensure consistent and efficient implementation of the rule.

12.166 Whatever the merits of the Proposed Rule in other parts of the country, it ignores the 

unique features of arid landscapes that render this approach scientifically invalid. The 

Proposed Rule does properly consider the fact that many watersheds in the arid west are 

characterized by a combination of highly erodible soils and infrequent precipitation 

events. Under these conditions, what is erroneously treated as the “ordinary” high water 

mark of a particular feature may, in fact, have been formed by a single event in the 

distant past and does not bear any relationship to where water may flow in the future. 

Indeed, the Corps’ own research demonstrates that the presence of an “ordinary” high 

water mark in the west bears no relationship to present or future flows. Thus, rather than 

being an indicator of equilibrium conditions – as is the case in more humid environments 

– the “ordinary” high water mark may be produced by extraordinary events. 

Accordingly, the Agencies’ proposed approach, applied on a “per se” basis and never 

subject to case-specific documentation of the required significant nexus, will result in a 

broad regulatory overreach when used to define regulated “waters” in the arid west. (p. 2)
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120

Agency Response: See Summary Response and Technical Support Document for 

a summary of the legal and scientific basis for the final rule. The final rule was 

developed to increase CWA program predictability and consistency by increasing 

clarity as to the scope of “waters of the United States” protected under the Act. 

Refer to the “Tributary,” "Significant Nexus Conclusions,” and “Waters and 

Features that Are Not Waters of the United States” sections of the proposed rule 

and preamble for further information and clarification on tributaries including per 

se significant nexus for tributaries, and information on excluded features such as 

certain ditches and erosional features. The final rule includes specific 

characteristics that a water feature must have in order to meet the definition of 

“tributary,” including bed and banks and ordinary high water mark. These 

parameters ensure that only certain water features qualify as a tributary and are 

jurisdictional by rule. The agencies believe such characteristics indicate sufficient 

volume and frequency of flow for a tributary to have a significant nexus to the 

downstream (a)(1) to (a)(3) waters. The science demonstrates that all tributaries 

have a significant nexus when considered individually or in combination with other 

tributaries to the (a)(1) to (a)(3) waters. The scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The agencies recognize that there are appropriate 

levels of regional variation in implementation of the regulations; however, the 

agencies strive for national consistency. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources; for example, the ordinary high water mark 

regional manuals or the regional supplements to the wetland delineation manual, 

both of which are outside the scope of this rulemaking but are related resources. 

The ordinary high water mark manuals developed by the Corps provide for the 

appropriate indicators to consider when determining the ordinary high water mark 

in the field. Such indicators may include breaks in the slope, changes in vegetation, 

and changes in the sediment texture and substrate. The manual for the arid West 

acknowledges the challenges in identifying the ordinary high water mark in the 

region; however, it provides the applicable indicators in the region to use when 

delineating the lateral extent of such waters in the arid West. The Corps will

develop the tools necessary to assist its staff with the jurisdictional determination 

process specific to section 404 in the implementation of the final rule to make the 

process predictable, efficient, and effective. The initial phase of implementing the

rule will require education and training for agency staff as well as other 

stakeholders and the regulated public, which will include regionally-based training 

to ensure consistent and efficient implementation of the rule.

12.167 In addition, desert features meeting the proposed criteria typically lack regular flow, and 

as a result do not impact the chemical or biological integrity of receiving waters. In 

many cases storm water seeps into the dry ground rather than flowing downstream, so 

these so-called “tributaries” contribute no flow to downstream waters at all – meaning 

there is no physical connection that would establish jurisdiction under the Clean Water 
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121

Act. Finally, the Proposed Rule seeks to regulate “tributaries” while exempting “gullies”

and “rills,” but the application of the proposed criteria in the arid west provides no way to 

distinguish between jurisdictional and non-jurisdictional features. (p. 2)

Agency Response: See Summary Response and Technical Support Document for 

a summary of the legal and scientific basis for the final rule. The final rule was 

developed to increase CWA program predictability and consistency by increasing 

clarity as to the scope of “waters of the United States” protected under the Act. 

Refer to the “Tributary,” "Significant Nexus Conclusions,” and “Waters and 

Features that Are Not Waters of the United States” sections of the proposed rule 

and preamble for further information and clarification on tributaries including per 

se significant nexus for tributaries, and information on excluded features such as 

certain ditches and erosional features. The final rule includes specific 

characteristics that a water feature must have in order to meet the definition of 

“tributary,” including bed and banks and ordinary high water mark. These 

parameters ensure that only certain water features qualify as a tributary and are 

jurisdictional by rule. The agencies believe such characteristics indicate sufficient 

volume and frequency of flow for a tributary to have a significant nexus to the 

downstream (a)(1) to (a)(3) waters. The science demonstrates that all tributaries 

have a significant nexus when considered individually or in combination with other 

tributaries to the (a)(1) to (a)(3) waters. The scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The agencies recognize that there are appropriate 

levels of regional variation in implementation of the regulations; however, the 

agencies strive for national consistency. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources; for example, the ordinary high water mark 

regional manuals or the regional supplements to the wetland delineation manual, 

both of which are outside the scope of this rulemaking but are related resources. 

The ordinary high water mark manuals developed by the Corps provide for the 

appropriate indicators to consider when determining the ordinary high water mark 

in the field. Such indicators may include breaks in the slope, changes in vegetation, 

and changes in the sediment texture and substrate. The manual for the arid West 

acknowledges the challenges in identifying the ordinary high water mark in the 

region; however, it provides the applicable indicators in the region to use when 

delineating the lateral extent of such waters in the arid West. The Corps will 

develop the tools necessary to assist its staff with the jurisdictional determination 

process specific to section 404 in the implementation of the final rule to make the 

process predictable, efficient, and effective. The initial phase of implementing the 

rule will require education and training for agency staff as well as other 

stakeholders and the regulated public, which will include regionally-based training 

to ensure consistent and efficient implementation of the rule.

12.168 The Proposed Rule attempts to create uniform national standards that do not account for 

the very significant differences between tributary systems in the arid west and other parts 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

122

of the country that receive significantly more precipitation. The Proposed Rule attempts 

to justify this flawed approach throughout the arid west by relying on a single river 

system, the San Pedro River in Arizona, which is unrepresentative of arid west water 

bodies. In fact, the only justification the Agencies offer for relying on the San Pedro is 

that it is “heavily studied,” which cannot be a sensible basis on which to base the 

regulation of an entire region when nearby watersheds that have demonstrably different 

geological characteristics and flow regimes. The consequence is that vast areas of dry 

land in the desert will be regulated as “waters,” a substantial overreach by EPA and the 

Corps and one that will have significant impacts on the regulated community in the arid 

west, subjecting them to substantial burdens that will far exceed those experienced in 

other parts of the country. EPA and the Corps can and should do better, and should limit 

their new regulations to features that are actually documented by substantial evidence to 

be “waters” in some scientifically meaningful sense. (p. 2-3)

Agency Response: See Summary Response and Technical Support Document for 

a summary of the legal and scientific basis for the final rule. The final rule was 

developed to increase CWA program predictability and consistency by increasing 

clarity as to the scope of “waters of the United States” protected under the Act. 

Refer to the “Tributary,” "Significant Nexus Conclusions,” and “Waters and 

Features that Are Not Waters of the United States” sections of the proposed rule 

and preamble for further information and clarification on tributaries including per 

se significant nexus for tributaries, and information on excluded features such as 

certain ditches and erosional features. The final rule includes specific 

characteristics that a water feature must have in order to meet the definition of 

“tributary,” including bed and banks and ordinary high water mark. These 

parameters ensure that only certain water features qualify as a tributary and are 

jurisdictional by rule. The agencies believe such characteristics indicate sufficient 

volume and frequency of flow for a tributary to have a significant nexus to the 

downstream (a)(1) to (a)(3) waters. The science demonstrates that all tributaries 

have a significant nexus when considered individually or in combination with other 

tributaries to the (a)(1) to (a)(3) waters.. The scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The agencies recognize that there are appropriate 

levels of regional variation in implementation of the regulations; however, the 

agencies strive for national consistency. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources; for example, the ordinary high water mark 

regional manuals or the regional supplements to the wetland delineation manual, 

both of which are outside the scope of this rulemaking but are related resources. 

The ordinary high water mark manuals developed by the Corps provide for the 

appropriate indicators to consider when determining the ordinary high water mark 

in the field. Such indicators may include breaks in the slope, changes in vegetation, 

and changes in the sediment texture and substrate. The manual for the arid West 

acknowledges the challenges in identifying the ordinary high water mark in the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

123

region; however, it provides the applicable indicators in the region to use when 

delineating the lateral extent of such waters in the arid West. The Corps will 

develop the tools necessary to assist its staff with the jurisdictional determination 

process specific to section 404 in the implementation of the final rule to make the 

process predictable, efficient, and effective. The initial phase of implementing the 

rule will require education and training for agency staff as well as other 

stakeholders and the regulated public, which will include regionally-based training 

to ensure consistent and efficient implementation of the rule.

Arizona Chamber of Commerce and Industry (Doc. #14639)

12.169 The science underlying this proposal was developed in Eastern states that receive far 

more rain and is simply not applicable to the arid West, where hydrologic drainage 

conditions are very different. The proposal to extend jurisdiction to all ephemeral 

tributaries no matter how small or remote from traditional navigable waters would have a 

disproportionate impact on states such as Arizona that have vast areas of desert lands 

characterized by sparse vegetation, highly erodible soils, and infrequent, but high 

intensity, rain events. These conditions result in numerous erosional features, such as 

small dry desert washes and arroyos that crisscross the desert landscape. Although these 

erosional features would seldom if ever contribute flow to a traditional navigable water, 

the proposed rule appears to suggest that the mere presence of bed and banks and 

ordinary high water mark is sufficient evidence of flow to extend jurisdiction to even 

ephemeral drainage features in arid landscapes. (p. 2)

Agency Response: See Summary Response and Technical Support Document for 

a summary of the legal and scientific basis for the final rule. The final rule was 

developed to increase CWA program predictability and consistency by increasing 

clarity as to the scope of “waters of the United States” protected under the Act. 

Refer to the “Tributary,” "Significant Nexus Conclusions,” and “Waters and 

Features that Are Not Waters of the United States” sections of the proposed rule 

and preamble for further information and clarification on tributaries including per 

se significant nexus for tributaries, and information on excluded features such as 

certain ditches and erosional features. The final rule includes specific 

characteristics that must have in order to meet the definition of “tributary,” 

including bed and banks and ordinary high water mark. These parameters ensure 

that only certain water features qualify as a tributary and are jurisdictional by rule. 

The agencies believe such characteristics indicate sufficient volume and frequency of 

flow for a tributary to have a significant nexus to the downstream (a)(1) to (a)(3) 

waters. The science demonstrates that all tributaries have a significant nexus when 

considered individually or in combination with other tributaries to the (a)(1) to 

(a)(3) waters. The scope of regulatory jurisdiction in this rule is narrower than that 

under the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. The 

agencies recognize that there are appropriate levels of regional variation in 

implementation of the regulations; however, the agencies strive for national 

consistency. The agencies believe the clarity and certainty provided in the rule will 

result in further consistency, while still allowing for regional variation in 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

124

implementation that may be necessary based on regional differences in aquatic 

resources; for example, the ordinary high water mark regional manuals or the 

regional supplements to the wetland delineation manual, both of which are outside 

the scope of this rulemaking but are related resources. The ordinary high water 

mark manuals developed by the Corps provide for the appropriate indicators to 

consider when determining the ordinary high water mark in the field. Such 

indicators may include breaks in the slope, changes in vegetation, and changes in the 

sediment texture and substrate. The manual for the arid West acknowledges the 

challenges in identifying the ordinary high water mark in the region; however, it 

provides the applicable indicators in the region to use when delineating the lateral 

extent of such waters in the arid West. The Corps will develop the tools necessary to 

assist its staff with the jurisdictional determination process specific to section 404 in 

the implementation of the final rule to make the process predictable, efficient, and 

effective. The initial phase of implementing the rule will require education and 

training for agency staff as well as other stakeholders and the regulated public, 

which will include regionally-based training to ensure consistent and efficient 

implementation of the rule.

Indiana Cast Metals Association (Doc. #14895.1)

12.170 The proposed rule would impose significant negative impacts on metalcasting operations. 

Those limited areas not included in the definition of “waters of the U.S.” (such as the site 

of metalcasting operations) are likely to conduct routine activities that could affect the 

surrounding “waters of the U.S.” and therefore, be subject to CWA jurisdiction. For 

example, moving dirt, mowing grass, applying or using chemicals, storing metals, or 

most any industrial activity could result in a potential discharge of a pollutant into a 

“water of the U.S.” and trigger the need for a federal permit. This could include water 

quality standards, total maximum daily loads (TMDLs), oil and spill prevention 

programs, NPDES permits, stormwater discharges, and dredge and fill permits. (p. 3)

Agency Response: See Summary Response. The rule only provides a definition 

for “waters of the U.S.” The rule does not affect the CWA statute in which 

authorization may be required for discharges of dredged and/or fill material into 

waters of the U.S., or other activities in jurisdictional waters of the U.S. such as 

NPDES permits, water quality standards or Section 311 requirements which require 

authorization. Refer to the exclusions in paragraph (b) of the rule and the preamble 

section “Waters and Features that Are Not Waters of the United States” for further 

information regarding excluded features such as certain ditches and stormwater 

control features. None of the existing procedures, permitting mechanisms, efficient 

permitting tools such as general permits, or activity exemptions under Section 

404(f)(1) of the Clean Water Act, including certain maintenance activities, will be 

modified as a result of this rulemaking; therefore, existing procedures should not be 

further complicated by this rule. See 33 CFR 323.2 for further definition on “fill 

material” and the “discharge of fill material.”

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

12.171 As we note, golf course superintendents are required to manage storm and runoff water in 

the course of conducting their businesses. The proposed rule will impose federal CWA 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

125

regulation to features that are constructed and used pursuant to other federal, state or 

local restrictions or programs. Golf course superintendents also conduct activities and 

operations that are likely to cross or impact ephemeral drainages and ditches (i.e., erosion 

control, drainage maintenance, agronomic practices) that are likely to cross or impact 

these things. In addition, golf course superintendents implement stormwater best 

management practices for controlling runoff from adjacent properties or on the golf 

course itself (i.e., biological BMPs, and channels for storage, filtration and/or irrigation). 

(p. 13)

Agency Response: See Summary Response. Refer to the exclusions in paragraph 

(b) of the rule and the preamble section “Waters and Features that Are Not Waters 

of the United States” for further information regarding excluded features such as 

certain ditches, stormwater control features, and other types of man-made features. 

Stormwater control features that are constructed to convey, treat, or store 

stormwater that are created in dry land are excluded. The agencies received many 

helpful comments on the proposed rule which resulted in refinement of the final rule 

to provide further clarity and certainty to the regulated public. The agencies 

modified the final rule from the proposed rule in response to comments received in 

order to ensure unintended effects to CWA programs were reduced or eliminated. 

None of the existing procedures, permitting mechanisms, efficient permitting tools 

such as general permits, or activity exemptions under Section 404(f)(1) 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.

American Foundry Society (Doc. #15148)

12.172 The proposed rule would impose significant negative impacts on metalcasting operations. 

Those limited areas not included in the definition of “waters of the U.S.” (such as the site 

of metalcasting operations) are likely to conduct routine activities that could affect the 

surrounding “waters of the U.S.” and therefore, be subject to CWA jurisdiction. For 

example, moving dirt, mowing grass, applying or using chemicals, storing metals, or 

most any industrial activity could result in a potential discharge of a pollutant into a 

“water of the U.S.” and trigger the need for a federal permit. This could include water 

quality standards, total maximum daily loads (TMDLs), oil and spill prevention 

programs, NPDES permits, stormwater discharges, and dredge and fill permits. (p. 9)

Agency Response: See Summary Response. The rule only provides a definition for 

“waters of the U.S.” The rule does not affect the CWA statute in which 

authorization may be required for discharges of dredged and/or fill material into 

waters of the U.S., or other activities in jurisdictional waters of the U.S. such as 

NPDES permits, water quality standards or Section 311 requirements which require 

authorization. Refer to the exclusions in paragraph (b) of the rule and the preamble 

section “Waters and Features that Are Not Waters of the United States” for further 

information regarding excluded features such as certain ditches and stormwater 

control features. None of the existing procedures, permitting mechanisms, efficient 

permitting tools such as general permits, or activity exemptions under Section 

404(f)(1) of the Clean Water Act, including certain maintenance activities, will be 

modified as a result of this rulemaking; therefore, existing procedures should not be 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

126

further complicated by this rule. See 33 CFR 323.2 for further definition on “fill 

material” and the “discharge of fill material.” 

Cooperative Network (Doc. #15184)

12.173 A vast expansion of the Clean Water Act that would result in the additional regulation of 

countless acres of farm land and right-of-ways where pesticides are used. The Federal 

Insecticide, Fungicide, and Rodenticide Act (FIFRA) is a comprehensive and effective 

regulatory program that is protective of human health and the environment, including the 

oversight of pesticide applications in areas today that would become a WOTUS based on 

the proposed changes to the definition. Expanding the definition of a WOTUS will 

subject cooperatives to Clean Water Act permitting to use pesticides in these areas that 

are currently excluded from Clean Water Act regulation in addition to FIFRA oversight. 

This is an unnecessary and wasteful use of private and government resources. (p. 2)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. Many definitions 

for the first time are clarified. The agencies note that the final rule provides for 

certain categories of waters that are jurisdictional by rule, which will result in a 

more efficient process. See the updated Economic Analysis for additional discussion 

regarding changes in jurisdiction. The agencies are not affecting permitting 

mechanisms under this rule; this rule only defines “waters of the U.S.” under the 

Clean Water Act and does not impact any permitting tools, such as general permits. 

The agencies disagree that the rule constitutes a vast expansion of the Clean Water 

Act. Overall, the scope of regulatory jurisdiction in this rule is narrower than that 

under the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

includes provisions for a number of excluded waters, some of which are excluded by

rule for the first time. For further discussion of exclusions, see summary responses 

for Topic 6.2: Excluded ditches and Topic 7: Features and waters not jurisdictional. 

In addition, the CWA only regulates waters of the U.S., and has no jurisdiction over

uplands. With respect the application of pesticides under NPDES and its 

relationship to FIFRA, please see summary response for Topic 12, section 12.3. 

Council of Industrial Boiler Owners (Doc. #15401)

12.174 Around the time of this proposal, the federal government also released proposed rules 

under the ESA. The ESA prohibits federal government agencies from acting in ways that 

cause destruction or modification of habitats critical to a listed species. The two 

proposed rules greatly expand the territories that may be classified as critical habitat and 

restrict the activities, including permitting of discharges, that the government may 

undertake that would result in adverse modification of habitats. 

The ESA rules and the waters of the US rule, combined, will result in greater jurisdiction 

over water and increased likelihood of ESA restrictions. With more federal jurisdiction 

over waters, the Agencies will need to consult with the Fish and Wildlife Services and the 

National Marine Fisheries Services (FWS and NMFS) when issuing permits. This could 

create additional delay in the permitting process and could result in permit denials and/or 

restrictions. At a time when many state and local agencies are facing resource constraints 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

127

in the implementation of their environmental and natural resource conservation programs, 

this proposed rule imposes additional administrative burdens on states. Complicating 

regulatory implementation at state and local agencies directly affects CIBO members by 

slowing the deployment of projects at their facilities. Slowing permitting and projects –

particularly where the projects will have de minimis environmental impact – disserves the 

public, which benefits from CIBO members’ contribution to the local, state, and regional 

economies. (p. 6)

Agency Response: See Summary Response. The ESA rulemaking is beyond the 

scope of this rule. The final rule was developed to increase CWA program 

predictability and consistency by increasing clarity as to the scope of “waters of the 

United States” protected under the Act. Definitions of certain terms are provided 

for the first time (e.g. tributary), or are further clarified (e.g. adjacent). The final 

rule provides for certain categories of waters that are jurisdictional by rule, which 

will result in a more efficient process. See the updated Economic Analysis for 

additional discussion. The Corps will develop the tools necessary to assist its staff 

with the jurisdictional determination process specific to section 404 in the 

implementation of the final rule to make the process predictable, efficient, and 

effective. See the updated Economic Analysis for additional discussion regarding 

changes in jurisdiction. While it is the responsibility of the Corps as the agency 

evaluating permit applications under section 404, to determine if Endangered 

Species Act and the National Historic Preservation Act requirements are being met, 

there are cases where these laws or other federal, state or local laws may still 

require review absent a CWA action. The 404 permit action does not remove the 

requirement to get other permits, if required by law. Obtaining a jurisdictional 

determination from the agencies does not trigger Section 7 of the Endangered 

Species Act, a federal action does, such as a section 404 permit decision. However, 

private landowners are also required to comply with Section 10 of the Endangered 

Species Act absent a federal action. The agencies work to ensure this compliance 

with other federal laws is completed in the most efficient and effective manner, and 

may include programmatic agreements or local operating procedures to streamline 

the process.

Idaho Association of Commerce & Industry (Doc. #15461)

12.175 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 

and Section 303 requiring the application of water quality standards to these other waters. 

(p. 8)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. Definitions of 

certain terms are provided for the first time (e.g. tributary), or are further clarified 

(e.g. adjacent). The final rule provides for certain categories of waters that are 

jurisdictional by rule, which will result in a more efficient process. See the updated 

Economic Analysis for additional discussion. The rule only provides a definition for 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

128

“waters of the U.S.” The rule does not affect the CWA statute in which 

authorization may be required for discharges of dredged and/or fill material into 

waters of the U.S., or other activities in jurisdictional waters of the U.S. such as 

NPDES permits, water quality standards or Section 311 requirements which require 

authorization. None of the existing procedures, permitting mechanisms, efficient 

Section 404 permitting tools such as general permits, or activity exemptions under 

Section 404(f)(1) 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.

12.176 Increased permitting includes monitoring, reporting, and mitigation requirements, such as 

additional water treatment or, as is often the case, avoiding the jurisdictional area (e.g. 

cancel or move a construction project to avoid CWA issues). (p. 8)

Agency Response: See Summary Response. See the updated Economic Analysis 

for additional discussion regarding changes in jurisdiction and potential 

costs/benefits associated with all CWA programs. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. Definitions of 

certain terms are provided for the first time (e.g. tributary), or are further clarified 

(e.g. adjacent). The final rule provides for certain categories of waters that are 

jurisdictional by rule, which will result in a more efficient process.

McPherson Law Firm, PC (Doc. #16397)

12.177 (...) different Army Corps of Engineers districts interpret and apply the current rule 

differently. In my opinion, the proposed rule would not bring consistency to its 

application among these different corps districts, and in my opinion, it should. (p. 1)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. Definitions of 

certain terms are provided for the first time (e.g. tributary), or are further clarified 

(e.g. adjacent). The final rule provides for certain categories of waters that are 

jurisdictional by rule, which will result in a more efficient process. See the updated 

Economic Analysis for additional discussion. There are appropriate levels of 

regional variation in implementation of the regulations; however, the agencies strive 

for national consistency. This appropriate regional variation can make it appear 

that there are inconsistencies in program execution. The rule aims to reduce any 

inappropriate inconsistencies and provide a bright line of clarity for the agencies, 

state partners, and the regulated public. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources; for example, the ordinary high water mark 

regional manuals or the regional supplements to the wetland delineation manual, 

both of which are outside the scope of this rulemaking but are related resources.

12.178 In determining waters of the US in specific instances, I strongly recommend that those 

processes be the same for both the US COE and the EPA. Deadlines to make 

determinations should be identical between agencies, as well as safe harbors, so that the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

129

regulated party is not subjected to uncertainty and risk of being penalized. I recommend 

the agencies revise the Memorandum of Understanding between them regarding CWA 

determinations, to provide identical protection to regulated parties. (p. 2)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. The agencies 

understand that the definition of “waters of the U.S.” applies to all CWA programs. 

The agencies modified the final rule from the proposed rule in response to 

comments received in order to ensure unintended effects to those other CWA 

programs were reduced or eliminated. The agencies are developing guidance to 

facilitate effective, consistent, and efficient implementation of the final rule once it 

becomes effective. The agencies strive to achieve consistency across the country in 

all districts and regions in application of the rule for jurisdictional determinations. 

The agencies also recognize that there are variations that occur in geography, 

hydrology, climate, etc., which affect jurisdictional determinations. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public. This training and outreach 

will be regionally-based to ensure appropriate consideration is given to ecoregional 

variation and to ensure consistent and efficient implementation of the rule. The 

tools necessary to assist with the jurisdictional determination process in the 

implementation of the final rule will be developed in order to make the process 

predictable, efficient, and effective. Certain Corps guidance documents, 

memorandums, etc., may require revisions or may be rescinded based on the final 

rule. Such documents will be identified by the Corps and appropriate action will be 

taken after the final rule is effective. The Corps will post public notices to ensure 

widest dissemination possible when changes occur.

Association of Equipment Manufacturers (Doc. #16901)

12.179 AEM members are required to manage storm and runoff water in the course of 

conducting their businesses. The proposed rule will impose federal CWA regulation to 

features that are constructed and used pursuant to other federal and state regulatory 

programs. AEM members also conduct activities and operations that are likely to cross 

or impact ephemeral drainages and ditches. The agencies should meet with stakeholders 

and federal and state regulatory agencies to fully understand the implications on other 

federal and state regulatory programs and revise the rule to avoid duplication and 

conflicting requirements. (p. 4)

Agency Response: See Summary Response. Refer to the exclusions in paragraph 

(b) of the rule and the preamble section “Waters and Features that Are Not Waters 

of the United States” for further information regarding excluded features such as 

certain ditches, stormwater control features, and other types of man-made features. 

Stormwater control features that are constructed to convey, treat, or store 

stormwater that are created in dry land are excluded. The agencies received many 

helpful comments on the proposed rule which resulted in refinement of the final rule 

to provide further clarity and certainty to the regulated public. The agencies 

modified the final rule from the proposed rule in response to comments received in 

order to ensure unintended effects to CWA programs were reduced or eliminated. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

130

None of the existing procedures, permitting mechanisms, efficient permitting tools 

such as general permits, or activity exemptions under Section 404(f)(1) 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. The agencies recognize 

the importance of public input on the content of the rule. The agencies adequately 

allowed for such input through public participation in the notice and comment 

rulemaking process and the proposed rule was disseminated to the widest audience 

possible. The public notice comment period was extended twice to ensure sufficient 

time for comment by all interested parties. Additional outreach efforts were 

extensive and included over 400 meetings nationwide with states, small businesses, 

farmers, academics, miners, energy companies, counties, municipalities, 

environmental organizations, other federal agencies and many others. The agencies 

believe the final rule will increase CWA program predictability and consistency by 

increasing clarity as to the scope of “waters of the United States” protected under 

the Act. 

Water Advocacy Coalition (Doc. #17921.1)

12.180 The proposed rule applies the new definition of waters of the United States throughout all 

CWA programs, and will result in fundamental changes to those programs. The agencies 

have not considered the implications of this application. (p. 14)

Agency Response: See Summary Response and the Technical Support Document. 

See the updated Economic Analysis for additional discussion regarding changes in 

jurisdiction and consideration of the costs/benefits for all Clean Water Act 

programs. The agencies understand that the definition of “waters of the U.S.” 

applies to all CWA programs. However, the rule only provides a definition for 

“waters of the U.S.” and does not affect the CWA statute in which authorization 

may be required for discharges of dredged and/or fill material into waters of the 

U.S., or other activities in jurisdictional waters of the U.S. such as NPDES permits, 

water quality standards, or Section 311 requirements which require authorization. 

The agencies modified the final rule from the proposed rule in response to 

comments received in order to ensure unintended effects to those other CWA 

programs were reduced or eliminated. The Corps will develop the tools necessary to 

assist its staff with the jurisdictional determination process specific to section 404 in 

the implementation of the final rule to make the process predictable, efficient, and 

effective. The agencies have thoroughly considered the implications of the final rule 

on all of the CWA programs that rely on this definition, and the agencies, states and 

tribes responsible for implementing CWA regulations. The agencies disagree that 

the rule will result in fundamental changes to the CWA programs, and the rule does 

not change the existing regulatory requirements for the CWA permit programs. 

The scope of regulatory jurisdiction in this rule is narrower than that under the 

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

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

important qualifiers on some existing categories such as tributaries and adjacent 

waters, and includes provisions for a number of excluded waters, some of which are 

excluded by rule for the first time. See the Economic Analysis document for further 

information about economic considerations for each program. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

131

12.181 The agencies have stated that the proposed rule is necessary because “[t]he lack of clarity 

in Clean Water Act protection has made enforcement of the law difficult in many 

cases.”

21

 Again, this justification for the proposed rule was discussed in the agencies’

outreach on the proposed rule, but not in the rule itself. And EPA “has struggled to 

identify specific examples of waters and wetlands that have not been protected as a result 

of confusion over the scope of the Clean Water Act . . . .”

22

 Indeed, if the agencies are 

finding it difficult to point to specific factual instances involving specific drainage 

features, showing that a point source discharge into one feature is actually making it to a 

down-gradient water of the United States,23 how can the agencies make a categorical 

finding of jurisdiction that the same feature has a significant nexus to traditional 

navigable waters, as they have done in the proposed rule? It is difficult to understand 

how the proposed rule’s categorical assertions that all tributaries and adjacent waters 

have a significant nexus are anything more than “speculative” findings, when in the 

enforcement cases the agencies reference, the government could not present empirical 

evidence that such features have a significant nexus to downstream waters.24 (p. 21)

Agency Response: See Summary Response. Refer to Technical Support 

Document for a summary of the legal and scientific bases for the final rule. See the 

“Tributary,” “Adjacent waters,” and “Significant Nexus Conclusions” sections in 

the final rule and discussions of tributaries, adjacent waters, and per se significant 

nexus determinations for tributaries and adjacent waters in the preamble. Peerreviewed scientific literature, case law, regulations, and agency expertise all support 

per se jurisdiction of all tributaries and adjacent waters. The agencies received 

many helpful comments on the proposed rule which resulted in refinement of the 

final rule to provide further clarity and certainty to the regulated public. To be 

considered a “tributary” under the final rule, a water feature must demonstrate 

both bed/banks and an ordinary high water mark which would distinguish them 

from non-jurisdictional features. The agencies believe such characteristics indicate 

sufficient volume and frequency of flow for a tributary to have a significant nexus, 

individually or in aggregate, to the downstream (a)(1) to (a)(3) waters. The final 

rule has further refined the “neighboring” definition to provide additional clarity 

and “bright lines.”

 

21 EPA, Waters of the United States Proposed Rule Website, http://www2.epa.gov/uswaters (then go to “Why do a 

Rulemaking >Enforcement of the law has been challenging” hyperlink) (last visited Oct. 29, 2014) (citing examples 

in Lake Blackshear, Georgia, and San Pedro River, Arizona). (Doc. #17921.1, p. 21)

22 Bridget DiCosmo, EPA Struggles to Identify Cases to Bolster Rule Defining Water Law’s Reach, InsideEPA (May 

22, 2014), available at http://insideepa.com/201405222471692/EPA-Daily-News/Daily-News/epastruggles-toidentify-cases-to-bolster-rule-defining-water-laws-reach/menu-id-95.html. (Doc. #17921.1, p. 21)

23 Although EPA has cited two examples of enforcement actions where EPA found it too costly and time intensive to 

prove that the water was subject to CWA jurisdiction, see Watershed Academy Webcast Transcript, at 4-5, the fact 

that it was challenging for the agencies to put together the evidence to prove that the features were jurisdictional 

does not warrant expanding the scope of jurisdiction. Simply because asserting categorical jurisdiction over all wet 

features would make enforcement easier for the agencies does not mean that it is within the bounds of the agencies’ 

CWA authority.

24 See EPA, Waters of the United States Proposed Rule Website, http://www2.epa.gov/uswaters (then go to “Why do 

a Rulemaking >Enforcement of the law has been challenging” hyperlink) (last visited Oct 29, 2014) (citing 

examples in Lake Blackshear, Georgia, and San Pedro River, Arizona). (Doc. #17921.1, p. 21)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

132

12.182 It is not surprising that EPA has struggled to find examples of waters and wetlands that 

have not been protected under the current CWA regulations because the CWA already 

provides a wide array of protections against the type of “midnight dumping” that the 

agencies are claiming to address through the proposed rule. The CWA contemplates all 

waters, including ditches (some as waters of the United States, some as point sources, 

some as collecting runoff), would be addressed differently by different actors with 

different tools – e.g., permits for point source discharges, permits for discharge of 

dredged or fill material, and basic planning by state and local agencies for nonpoint 

source runoff. The discharge of pollutants, fill, and oil or hazardous substances to waters 

of the United States, whether direct or indirect, is already illegal and enforceable under 

the CWA.25 As the plurality noted in Rapanos, “the discharge into intermittent channels 

of any pollutant that naturally washes downstream likely violates § 1311(a), even if the 

pollutants discharged from a point source do not emit ‘directly into’ covered waters, but 

pass ‘through conveyances’ in between.” Rapanos, 547 U.S. at 743 (Scalia, J., plurality). 

The agencies do not need to call such conveyances waters of the United States to protect 

these features against such discharges of pollutants. The agencies have other ways to 

protect remote waters.26 Indeed, the preamble recognizes the other regulatory 

mechanisms available under the CWA.27 Moreover, many States and local governments 

have robust water quality programs. In addition, discharges to land are already regulated 

under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq., 

and state hazardous waste laws, such as the California Health and Safety Code § 25100 et 

seq. The agencies do not need to treat all waters and features on a landscape as waters of 

the United States to protect them, much less to protect the traditional navigable waters 

(“TNWs”) that are the focus of the Act. (p. 22)

Agency Response: See Summary Response. Refer to Technical Support 

Document for a summary of the legal and scientific bases for the final rule. The 

goal of the CWA is to protect the chemical, physical, and biological integrity of our 

nation’s waters. The agencies have been implementing this mission since the 

inception of the CWA. The additional costs that may be incurred as a result of the 

rule were taken into account during its formulation; however, the updated 

Economic Analysis indicates the benefits of the rule outweigh any associated costs 

placed on the regulated public and on the agencies themselves. The scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries. Refer to the final rule 

language and preamble for categories of jurisdictional waters as well as excluded 

waters. Refer to the exclusions in paragraph (b) of the rule and the preamble 

section “Waters and Features that Are Not Waters of the United States” for further 

information regarding excluded features such as certain ditches and stormwater 

control features. The agencies believe the exclusions in the rule are comprehensive 

 

25 See 33 U.S.C. §§ 1311(a), 1321, 1342, 1344.

26 See e.g., 33 U.S.C. §§ 1342 (National Pollutant Discharge Elimination System); 1321 (Oil and Hazardous 

Substance Liability).

27 79 Fed. Reg. at 22,191 n.5.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

133

and note that the exclusions are applicable to all Clean Water Act programs. None 

of the existing procedures, permitting mechanisms, efficient permitting tools such as 

general permits, or activity exemptions under Section 404(f)(1) 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. The agencies recognize that the state 

and local governments have well-defined and long-standing relationships in 

implementing affected CWA programs and these relationships will not be altered. 

This action will not have substantial direct effects on the states, on the relationship 

between the national government and the states, or on the distribution of power and 

responsibilities among the various levels of government. The agencies are not 

restricting the states’ efforts in developing or implementing statewide permits under 

CWA programs as a result of the rule.

12.183 States must set WQS for waters of the United States.28 States typically develop WQS for 

general categories of waters, which may or may not cover the features and waters that are 

newly jurisdictional under the proposed rule. As a result of the rule, each State will be 

required to determine whether features previously not considered waters of the United 

States are now in fact waters of the United States, and then they must make assessments 

as to what, if any, existing WQS are applicable. Performing these tasks is very expensive 

and time-consuming.29

If States rely on their existing WQS for the newly jurisdictional features, they will have 

to employ similar uses and criteria to protect features that were not intended to be 

protected under those uses or criteria (e.g., a State could have to apply uses and criteria 

they set for “lakes” to newly jurisdictional ditches or industrial ponds for lack of a more 

applicable existing category). On the other hand, if States do not want to rely on existing 

State WQS, then they will have to develop new WQS for these types of features. This 

process would require baseline data gathering to determine appropriate uses for these 

newly jurisdictional features. The more waters that potentially are jurisdictional, the 

greater the costs to the States. For example, the proposed rule’s assertion of jurisdiction 

over all waters within a floodplain or riparian area means that numerous features and 

waters that were previously considered isolated (and therefore not waters of the United 

States) would now be waters of the United States. All of these areas would need to be 

analyzed and addressed by States under the WQS/TMDL program. 

A complete analysis of the impact of the proposed rule on the WQS program is even 

more critical in light of EPA’s proposed rule entitled Water Quality Standards 

Regulatory Clarifications,

30 (“WQS Rule”). The WQS Rule (if finalized as proposed) 

 

28 40 C.F.R. § 131.3(i).

29 With respect to the section 303 WQS/TMDL program, after acknowledging that States and tribes incur costs 

developing, monitoring, and assessing WQS and TMDLs, the agencies state that it is their position that “an 

expanded assertion of jurisdiction would not have an effect on annual expenditures.” Economic Analysis at 6; see 

also id. at 25 (describing the impact to the section 303 program as “cost neutral”). To support that conclusion, the 

agencies assert that States typically only develop WQS for general categories of waters, which currently cover the 

types of waters that would be jurisdictional under the proposed rule and which would not change. The agencies go 

on to concede that what could “change is whether or not those standards apply.” Id. at 6. This concession 

undermines the agencies’ conclusion that the impact of the proposed rule would be cost neutral.

30 78 Fed. Reg. 54,518 (Sept. 4, 2013)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

134

would, among other things, create a rebuttable presumption that the highest uses specified 

in section 101(a)(2) (i.e., fishable, swimmable) of the CWA are attainable uses for any 

waters of the United States by default, thereby forcing State and tribal regulators to prove 

otherwise should they believe it appropriate. To rebut the presumption, a State must 

perform a burdensome use attainability analysis for waters it does not believe can meet 

the “fishable, swimmable” goal. Such a showing would create significant additional 

costs for States and tribes, assuming they would be unwilling to capitulate to the 

rebuttable presumption.31 Given that the proposed rule seeks to encompass ephemeral 

streams and all manner of ditches not subject to the limited exclusions (as discussed 

above), the proposed rule in concert with the WQS Rule dramatically will increase 

WQS/TMDL program costs for States and tribes. None of this is discussed or evaluated 

by the agencies. 

By way of example, under Kansas state law, ephemeral streams are not “classified”

waters because the State “finds it wholly unnecessary and wasteful of limited state 

program resources to set WQS, 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.”

32

 EPA has approved Kansas’s WQS, which do not designate 

uses or assign water quality criteria for ephemeral streams.33 If, as proposed, ephemeral 

drainages are now considered waters of the United States, Kansas estimates an increase 

from 30,620 stream miles to 134,338 stream miles for which the State must set WQS and

comply with other CWA requirements.34 As the maps in Exhibit 9 demonstrate, that 

increase is dramatic.35

CWA section 305(b) requires States to submit a water quality report biennially that 

includes a description of the water quality of all waters of the United States in the State 

and an analysis of the extent to which they meet water quality goals. And under section 

303(d), States are required to develop lists of impaired waters (waters that are too 

degraded to meet the WQS set by the State). For impaired waters, States must develop 

TMDLs, which are calculations of the maximum amount of a pollutant that a waterbody 

can receive and still safely meet WQS.36 Any increase in jurisdictional waters for which 

WQS are developed necessarily triggers greater costs for States and tribes to monitor and 

assess whether these newly jurisdictional waters are meeting WQS.37 Assuming they are 

not, the TMDL development progress is triggered at even greater costs. 

 

31 This is to say nothing of the additional costs the WQS Rule’s highest attainable use showing will compel.

32 See Comments of the Honorable Sam Brownback, Governor of Kansas, on EPA and Army Corps of Engineers 

Guidance Regarding the Identification of Waters Protected by the Clean Water Act, Docket ID No. EPAHQ-OW2011-0409 (July 14, 2011) (attached hereto as Exhibit 16).

33 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. #17921.1, p. 80)

34 See Exhibit 9.

35 See id. at 11-12.

36 40 C.F.R. § 130.7.

37 The agencies’ suggestion that the TMDL process is cost neutral because EPA allows States and tribes to prioritize 

TMDL development and to develop TMDLs over time is misplaced. See Economic Analysis at 6. Prioritization and 

delay do not neutralize or somehow lessen the impact of additional costs – they only shift those costs to the future, 

which generally would result in the necessary activities costing more. Similarly unsupportable is the agencies’ 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

135

As an example, the park ditch in Pinellas County, Florida, discussed and pictured in 

Exhibit 17, which provides no environmental or human benefits other than flood control, 

is not now considered to be a water of the United States, but would be under the proposed 

rule.38 As noted above, EPA’s WQS Rule would establish a presumption that the 

attainable use for this ditch is “fishable, swimmable” unless the State conducts an 

expensive and time-consuming scientific analysis to demonstrate that attaining that use is 

infeasible. Assuming the State did not have the resources to rebut the presumption, it 

could be forced to develop a TMDL for this ditch. Using current TMDLs for nitrogen 

and phosphorous as a gauge, the Florida Stormwater Association estimates that the cost 

to attain hypothetical “fishable, swimmable” uses in the ditch would be $31,351,460. 

While this example may seem extreme, it unfortunately falls comfortably with the scope 

of the proposed rule when viewed in light of other CWA program requirements. 

In addition to flawed rulemaking, the agencies’ casual dismissal of the impacts the 

proposed rule on States and their WQS/TMDL programs is troubling. The proposed 

rule’s expanded waters of the United States definition would require the States to expend 

significant resources to satisfy its WQS/TMDL obligations, thereby straining the States’

already limited resources. This process would require needless expenditure of large

amounts of the public’s tax dollars on newly jurisdictional features, such as ditches and 

ephemeral drainages, with little or no environmental benefit. 

In addition to increased costs to comply with WQS and TMDL requirements, States and 

regulated entities would also be more vulnerable to third party litigation under the 

proposed rule. For example, in 2007, pursuant to a settlement agreement, the State of 

Missouri and EPA agreed that Missouri was not required to set WQS for its ephemeral 

waters. Despite EPA’s approval, Missouri later had to defend its WQS against a third 

party. A group filed a citizen suit challenging Missouri’s WQS, arguing that the 

standards did not meet the requirements of the CWA because they failed to designate 

uses and set water quality criteria for all of Missouri’s waters.39 The agencies and States 

face similar threats of litigation based on the additional WQS/TMDL obligations that the 

proposed rule will trigger. (p. 79-81)

Agency Response: See Summary Response. See the updated Economic Analysis 

for additional discussion. Refer to the exclusions in paragraph (b) of the rule and 

the preamble section “Waters and Features that Are Not Waters of the United 

States” for further information regarding excluded features such as ditches, 

stormwater control features, wastewater recycling features, and water-filled 

depressions created in dry land. Refer to the “Tributary” section of the proposed 

 

suggestion that in order to comply with the section 305 monitoring and report requirements, States and tribes 

typically just set a stagnant budget to implement these programs and then make do as best they can by continuing to 

spread scarce resources even thinner. Id. at 6-7. Even if this were true, it does nothing to change the fact that 

expanding CWA jurisdiction greatly impacts the scope of these programs and the costs of States and tribes meeting 

their obligations (particularly monitoring and reporting obligations). The agencies have failed to assess the impact of 

the proposed rule on these programs.

38 See Florida Stormwater Association, Proposed Regulations on Waters of the United States: Preliminary Analysis, 

(attached hereto as Exhibit 17).

39 Missouri Coal. for the Env’t v. Jackson, No. 10-04169 (W.D. Mo. Feb. 16, 2012) (suit was filed against EPA and 

the State of Missouri intervened to defend its WQS).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

136

rule and preamble for further information and clarification on tributaries. The 

final rule includes specific characteristics that must be met in order to meet the 

definition of “tributary,” including bed and banks and ordinary high water mark. 

Refer to the “Adjacent Waters” section of the proposed rule and preamble for 

further information and clarification on the use of floodplain information in making 

determinations of jurisdiction based on adjacency. The agencies are not affecting 

permitting mechanisms under this rule; this rule only defines “waters of the U.S.” 

under the Clean Water Act and does not impact any CWA permitting mechanisms, 

such as general permits or other applications of waters of the U.S. under the CWA. 

American Society of Civil Engineers (Doc. #19572)

12.184 The American Society of Civil Engineers (ASCE) encourages Congress to reauthorize 

the Clean Water Act to protect our nation’s waters and the beneficial use of those waters. 

The reauthorized Clean Water Act should:

 Aggressively address non-point sources of pollution from watersheds and pointsource pollution from sanitary sewer overflows, combined sewer overflows, and 

storm sewer discharges. 

 Address regulatory and best-practices guidelines to ensure a sustainable, 

comprehensive, cross media, and holistic approach to the protection of the 

nation’s waters. 

 Allow sustainable watershed management approaches that integrate water 

quantity and quality. 

 Utilize the latest tools to develop regulations that are scientifically grounded, costeffective, site appropriate, and flexible in providing for the use of innovative 

practices in protecting the beneficial uses of the nation’s water, and flexible 

enough to allow innovative practices and means to achieve these goals. 

 Provide meaningful information to the public about water quality in their 

communities. 

 Include sunset provisions in regulations to ensure that existing regulations are 

reviewed and revised periodically. (p. 7)

Agency Response: See Summary Response. The rule only provides a definition 

for “waters of the U.S.” The rule does not affect the CWA statute in which 

authorization may be required for discharges of dredged and/or fill material into 

waters of the U.S., or other activities in jurisdictional waters of the U.S. such as

NPDES permits, water quality standards, or Section 311 requirements which 

require authorization. None of the existing procedures, permitting mechanisms, 

efficient permitting tools such as general permits, or activity exemptions under 

Section 404(f)(1) 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; this rule only defines “waters of the U.S.” under the Clean Water Act. 

Congressional reauthorization, best management practices, watershed management 

approaches, innovative practices, and sunset provisions are outside of the scope of 

the rulemaking effort.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

137

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

12.185 As an electric utility, Minnkota can only conclude that this Proposed Rule will provide 

the Agencies with more options to use in determining whether or not federal jurisdiction 

and control of a given water body of feature is warranted. The Agencies authority to 

apply jurisdiction appears to be limitless. As a result of this proposal, most of the Red 

River Valley in North Dakota and Minnesota could possibly be designated as a wetland 

subject to the rule. This is of grave concern to us as NWP 12 may not be able to be used 

due to its size limitations. When emergency restoration of a transmission line is needed 

as a result of storm damage, the last thing we want to wait for is a permit. As a result, 

Minnkota could potentially be subject to increased enforcement, over-reaching permitting 

requirements, and untimely delays, resulting in additional expenditures of time and 

monetary resources. (p. 2)

Agency Response: See Summary Response. None of the existing procedures, 

permitting mechanisms, efficient permitting tools such as general permits, or 

activity exemptions under Section 404(f)(1) 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. The definition of wetland and the wetland delineation 

manuals are also outside the scope of this rulemaking effort and are not affected by 

the final rule. The final rule was developed to increase CWA program 

predictability and consistency by increasing clarity as to the scope of “waters of the 

United States” protected under the Act. The agencies note that the final rule 

provides for certain categories of waters that are jurisdictional by rule, which will 

result in a more efficient process. See the updated Economic Analysis for additional 

discussion on predicted changes in jurisdiction. The Corps regulations define an 

“emergency” under the nationwide permit program as “a situation which would 

result in an unacceptable hazard to life, a significant loss of property, or an 

immediate, unforeseen, and significant economic hardship if corrective action 

requiring a permit is not undertaken within a time period less than the normal time 

needed to process the application under standard procedures.” In emergency 

situations, Corps Division Engineers, in coordination with the Corps District 

Engineers, are authorized to approve special processing procedures to expedite 

permit issuance. The Corps also uses alternative permitting procedures, such as 

general permits and letters of permission, when appropriate, to expedite processing 

of permit applications for emergencies. The Corps emergency permitting 

procedures can be found in 33 CFR 325.2(e). Certain nationwide permits do not 

require pre-construction notification and such activities can be completed without 

notification as long as they comply with the terms and conditions of such permits. 

In addition, certain discharges of dredged and/or fill material are exempt from 

regulation under section 404(f)(1)(B) under the Clean Water Act that are “for the 

purpose of maintenance, including emergency reconstruction.” 

Lundell Construction Company, Inc. (Doc. #2627)

12.186 If the NRCS is required to do the engineering and layout for maintenance of the 

waterways and terraces, there may be more erosion and pollution caused by the backload 

of work that the agency has already at this time. There is not enough trained and 

experienced engineers knowledgeable enough to engineer every conservation project or 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

138

drainage project which are being done today and every day. The current rules and 

regulations are sufficient for the soil and water maintenance and improvements. (p. 1)

Agency Response: See Summary Response. NRCS wetland determinations are 

completed for a different purpose than the Clean Water Act, but are often reviewed 

when determining jurisdiction for the Clean Water Act. Only the EPA and the 

Corps, as well as applicable states and tribes, have authority to determine 

jurisdiction under the Clean Water Act. See the memorandum dated February 

2005 entitled, “Guidance on Conducting Wetland Determinations for the Food 

Security Act of 1985 and Section 404 of the Clean Water Act,” for further 

information. The agencies will continue to minimize duplication where possible 

while recognizing the differences in the purpose and statutory language of the laws. 

None of the existing procedures, permitting mechanisms, efficient permitting tools 

such as general permits, or activity exemptions under Section 404(f)(1) 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. The rule does not 

address soil and water maintenance and improvements thus this comment is outside 

of the scope of the rule.

Kolter Land Partners and Manatee-Sarasota Building Industry Association (Doc. #7938)

12.187 Impermissibly and Unnecessarily Expands Federal Jurisdiction: Despite the Agencies’

claims that this rule is narrower in scope than existing regulations, the proposed rule 

contains changes that will expand federal jurisdiction, triggering substantial and 

additional expensive and time-consuming permitting and regulatory requirements while 

delivering minimal environmental benefit. (p. 2)

Agency Response: See Summary Response. See the updated Economic Analysis 

for additional discussion on predicted changes in jurisdiction. The final rule was 

developed to increase CWA program predictability and consistency by increasing 

clarity as to the scope of “waters of the United States” protected under the Act. The 

scope of regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries. None of the existing 

procedures, permitting mechanisms, efficient permitting tools such as general 

permits, or activity exemptions under Section 404(f)(1) 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. The rule is not designed to subject entities of 

any size to any specific regulatory burden. Rather, it is designed to clarify the 

statutory scope of the “waters of the U.S.,” consistent with Supreme Court 

precedent.

12.188 Creates and Exacerbates Regulatory Confusion: The proposal’s ambiguous terms, illdefined limits, and assertion of federal jurisdiction over waters that exhibit little or no 

connection to traditional navigable waters will only create more, not fewer questions. 

The Agencies’ claim that the proposed rule creates clarity and certainty is a fallacy 

because it only does so by illegally asserting jurisdiction over every possible wet feature. 

(p. 3)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

139

Agency Response: See Summary Response and the Technical Support Document. 

The final rule was developed to increase CWA program predictability and 

consistency by increasing clarity as to the scope of “waters of the United States” 

protected under the Act. The agencies note that the final rule provides for certain 

categories of waters that are jurisdictional by rule, which will result in a more 

efficient process. The agencies disagree that the rule would result in the assertion of 

jurisdiction over every wet feature. Refer to the exclusions in paragraph (b) of the 

rule and the preamble section “Waters and Features that Are Not Waters of the 

United States” for further information regarding excluded waters and features. The 

scope of regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries. The agencies believe this 

rule is appropriate in light of regulations, science, and case law. None of the existing 

procedures, permitting mechanisms, efficient permitting tools such as general 

permits, or activity exemptions under Section 404(f)(1) 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. The definition of wetland and the wetland 

delineation manuals are also outside the scope of this rulemaking effort and are not 

affected by the final rule.

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

12.189 There has been a sea change in the approach to drainage and storm water management in 

the Houston area over the past several years. Houston is known as the Bayou City. The 

City, Harris County, and the drainage districts with authority over development in this 

region have begun to embrace a wide variety of low impact and green infrastructure as 

the best method to accommodate drainage. Houston has awoken to the fact that being the 

Bayou City gives it a unique corridor system for a wide range of desirable urban and 

suburban uses that both relies upon and promotes better water quality. Contemporary 

land development activities often produce storm water releases from the developed 

property that are better from a chemical and physical effect on the watershed than the 

vacant or undeveloped property condition. The goal of the CWA is to protect the 

chemical, physical, and biological integrity of the navigable waters. We must beware of 

a situation where by an overbroad assertion of the federal reach actually undermines the 

goals of the CWA and progress made in active water quality projects in the Houston 

region. 

Certainly, throughout the Houston region this would be the result of the proposed rule. 

This must not be ignored, the steps – even for the simplest Nationwide Permit – are

numerous, and the total time required must be counted in months in the best cases. Much 

of the drainage system is the responsibility of the public entities that must operate 

efficiently on the public resources. The continuing move to natural floodplains, with 

created tributaries utilizing techniques such as bio filter and bioswales, would then create 

under the proposed rule “navigable waters” for all future purposes, including 

maintenance or modifications. As a result of this proposed jurisdiction expansion, the 

green initiatives will come to a screeching halt. This is inherent given the realistic 

resources available to local governments.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

140

Furthermore, we believe that the resulting land use patterns as affected by the proposed 

rule will ultimately not create a significant positive result on water quality for two 

reasons. First, land uses will default to conventional land planning practices (with storm 

water Best Management Practices), away from green approaches and habitat oriented 

features. Second, an avoidance scenario causes wetlands to be developed around 

(avoided) and almost completely isolated and removed from ecosystem. As a result, 

inclusion of isolated wetlands into the regulatory fold does not provide any appreciable 

benefit to the ecosystem or the public. So, either way, the functions and values of the 

wetlands, as theorized by the arguments in the rule making, are lost after a great expense 

of time and money. 

The Environmental Protection Agency (EPA) should demonstrate how expansion of 

federal jurisdiction will significantly improve water quality when the rule is applied to 

the typical WGCP setting. The EPA should also demonstrate the real cost of the 

incremental water quality improvements (if any) from expansion of the jurisdictional 

reach into the WGCP. As stated above, we believe that the expansion of jurisdiction into 

the upper reaches of tributaries and into the isolated waters will not appreciably improve 

water quality of traditional navigable waters (TNW). The EPA should, in concert with 

the State and Counties, better refine and implement storm water quality processes, 

practices and procedures that are implemented under Section 402 of the CWA. We feel 

that the storm water program represents a better and more effective avenue for achieving 

real and affordable improvements to water quality within the contemplated zone of CWA 

jurisdiction expansion in the WGCP. (p. 2-3)

Agency Response: See Summary Response and Technical Support Document. See 

the updated Economic Analysis for additional discussion. The final rule was 

developed to increase CWA program predictability and consistency by increasing 

clarity as to the scope of “waters of the United States” protected under the Act. The 

scope of regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries. The agencies believe this 

rule is appropriate in light of regulations, science, and case law. 

Refer to the exclusions in paragraph (b) of the rule and the preamble section 

“Waters and Features that Are Not Waters of the United States” for further 

information regarding excluded features such as ditches, stormwater control 

features, and wastewater recycling features. The agencies disagree that the rule 

undermines the goal of the CWA or prevents low-impact or green infrastructure 

development. Stormwater conveyance features constructed in dry land are excluded 

from waters of the U.S. With respect to the jurisdictional status of stormwater 

control features, including green infrastructure, please see summary response at 

7.4.4. in Topic 7: Features and waters not jurisdictional. The agencies also disagree 

that the rule results in jurisdictional expansion. Overall, the scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

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

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

existing categories such as tributaries and includes provisions for a number of 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

141

excluded waters, some of which are excluded by rule for the first time. For further 

discussion of exclusions, see summary responses for Topic 6.2: Excluded ditches and 

Topic 7: Features and waters not jurisdictional.

The final rule will not regulate “isolated” waters and wetlands. Certain wetlands 

common to the Western Gulf Coastal Plain, Texas coastal prairie wetlands, must be 

evaluated in combination when making a case-specific significant nexus 

determination because they are “similarly situated,” based on their close proximity

and/or hydrologic connections to each other and the tributary network, their 

interaction and formation as a complex of wetlands, their density on the landscape, 

and their similar functions. 

Land Improvement Contractors of America (Doc. #8541)

12.190 An on-the-ground problem we see with expanded CWA jurisdiction, in addition to 

exposure of private landowners to the full force of CWA enforcement, is that current, 

voluntary, incentive based practices could fall off the radar. The § 319 NPS Program is 

used to increase the utilization of agricultural BMP’s such as buffer strips, conservation 

tillage, and nutrient management, as well as to implement low impact development and 

stormwater management practices to protect urban water quality. (p. 2)

Agency Response: See Summary Response. The agencies are not affecting 

permitting mechanisms under this rule; this rule only defines “waters of the U.S.” 

under the Clean Water Act and does not impact any permitting tools, such as 

general permits. Refer to the exclusions in paragraph (b) of the rule and the 

preamble section “Waters and Features that Are Not Waters of the United States” 

for further information regarding excluded features such as ditches, stormwater 

control features, and water-filled depressions created in dry land. Overall, the 

scope of regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries and includes provisions for 

a number of excluded waters, some of which are excluded by rule for the first time. 

For further discussion of exclusions, see summary responses for Topic 6.2: Excluded 

ditches and Topic 7: Features and waters not jurisdictional. The rule is consistent

with voluntary, incentive-based programs, including the 319 Program, the use of 

agricultural BMPs, low-impact development, or other stormwater management 

practices.

The Elm Group, Inc. (Doc. #9688)

12.191 Based on the proposed new definition of “waters of the United States” the number of 

projects that will require Federal review/permits will increase substantially. The 

USACE/EPA should recognize and plan on processing these applications in a manner 

that minimizes the impact on the timelines of projects that the US economy relies on to 

provide continued growth and employment. (p. 2)

Agency Response: See Summary Response. See the updated Economic Analysis 

for additional discussion on predicted changes in jurisdiction. The goal of the CWA 

is to protect the chemical, physical, and biological integrity of our nation’s waters. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

142

The agencies have been implementing this mission since the inception of the CWA. 

The additional costs that may be incurred as a result of the rule were taken into 

account during its formulation; however, the updated Economic Analysis indicates 

the benefits of the rule outweigh any associated costs placed on the regulated public 

and on the agencies themselves. The scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries. The agencies believe with the clarity and certainty provided in the rule 

that there will be efficiencies gained in making jurisdictional determinations. The 

Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 in the implementation of the final rule 

to make the process predictable, efficient, and effective.

Shiels Engineering, Inc. (Doc. #13558)

12.192 We suggest that you let the existing definition stand and leave the application of it to 

Licensed Professional Engineers and Professional Geologists (Licensed Professionals) or 

those who meet the definition of Environmental Professional in accordance with 40 CFR 

§312.10 where each site or facility is assessed individually. The way I read your 

proposed rule change, the burden of assessment would be placed on US Environmental 

Protection Agency (EPA) or designated/delegated authorities (Agencies) rather than the 

Owner/Operator. As a former EPA contractor, I know all too well the challenge of 

enforcement and implementation by the Agencies. We at SE believe that the burden of 

assessment should remain in the hands of the Property Owner or Operator and not with 

the Agencies. (p. 1)

Agency Response: See Summary Response. The goal of the CWA is to protect the 

chemical, physical, and biological integrity of our nation’s waters. Consistent with 

the regulations, the agencies have been implementing this mission since the 

inception of the CWA. Only the EPA and the Corps, as well as applicable states and 

tribes, have authority to determine jurisdiction under the Clean Water Act. The 

rule is not designed to subject entities of any size to any specific regulatory burden. 

Rather, it is designed to clarify the statutory scope of the “waters of the U.S.”, 

consistent with science, the existing regulations, and Supreme Court precedent. The 

final rule was developed to increase CWA program predictability and consistency 

by increasing clarity as to the scope of “waters of the United States” protected under 

the Act. 

Hawaii Reserves, Inc. (Doc. #14732) 

12.193 We understand that expansion of the Agencies’ federal authority under the CWA would 

greatly increase the number of construction sites required to obtain building and other 

permits, which in turn, would delay or impede construction projects, aggravate the 

current backlog of permits, and further slow the process and increase costs causing 

project delays. As a proponent of more housing options for Hawaii, including affordable 

housing, we are concerned about significant negative market impacts that would result 

given even small cost increases due to additional permit requirements – particularly in the 

affordable housing sector. Moderate price increases in that sector can have an immediate 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

143

and huge effect on lower income home buyers who are already easily susceptible of being 

priced out of the market. 

We are also concerned that currently developable State- and privately-owned land in 

Hawaii subject to permit requirements may also need to be reclassified as a result of the 

proposed rule (to conservation or another lower land classification) which would likely 

preclude the owners’ development of such property. (p. 1-2)

Agency Response: See Summary Response. See the updated Economic Analysis 

for additional discussion on predicted change in jurisdiction. The rule is not 

designed to subject entities of any size to any specific regulatory burden. Rather, it 

is designed to clarify the statutory scope of the “waters of the U.S.”, consistent with 

Supreme Court precedent. The scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries. The final rule was developed to increase CWA program predictability 

and consistency by increasing clarity as to the scope of “waters of the United States” 

protected under the Act. The agencies believe this rule is appropriate in light of 

regulations, science, and case law. None of the existing procedures, permitting 

mechanisms, efficient permitting tools such as general permits, or activity 

exemptions under Section 404(f)(1) under the Clean Water Act will be modified as a 

result of this rulemaking; therefore, existing procedures should not be further 

complicated by this rule. Additionally, the agencies do not have authority to 

regulate a landowner’s property. The agencies only have authority to regulate 

jurisdictional activities in jurisdictional waters of the U.S. under the Clean Water 

Act.

Ames Construction, Inc. (Doc. #17045)

12.194 The EPA and the Corps’ proposed rule would overhaul the fundamental term waters of 

the United States for all sections of the Clean Water Act (CWA). The new definitions 

would apply to many CWA programs administered by EPA, the Corps and the states, 

including Section 303 state water quality standards, Section 311 oil spill prevention 

control and countermeasures, Section 401 state water quality certifications, Section 402 

National Pollutant Discharge Elimination System (NPDES) discharge permits, and the 

Section 404 dredge and fill permit program – as well as various reporting requirements 

under the National Contingency Plan for CERCLA and the Oil Pollution Act (OPA). 

These programs regulate many types of construction activities across the nation and will 

therefore have a direct and significant impact on our operations. The EPA has not 

provided any meaningful analysis of the potential for impact on CWA programs other 

than the Section 404 program. (p. 1)

Agency Response: See Summary Responses. See the updated Economic Analysis 

for additional discussion. The final rule was developed to increase CWA program 

predictability and consistency by increasing clarity as to the scope of “waters of the 

United States” protected under the Act. Many definitions for the first time are 

clarified. The agencies note that the final rule provides for certain categories of 

waters that are jurisdictional by rule, which will result in a more efficient process. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

144

The scope of regulatory jurisdiction in this rule is narrower than that under the 

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

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

important qualifiers on some existing categories such as tributaries. The agencies 

believe this rule is appropriate in light of regulations, science, and case law. The 

agencies have thoroughly considered the implications of the final rule on all of the 

CWA programs that rely on this definition, and the agencies, states and tribes 

responsible for implementing CWA regulations. See the Economic Analysis 

document for further information about economic considerations for each program.

Teichert Materials (Doc. #18866)

12.195 Contrary to the claims of the EPA and ACOE, the proposed rule will likely cause more 

confusion than clarity. The agencies “categorical” inclusion of all tributaries defined by 

an observed “mark” on the landscape and regulation of wetlands and waters adjacent to 

tributaries based on “neighboring,” “riparian,” “floodplain” and “shallow subsurface”

connection criteria will make it exceptionally challenging for applicants to know what 

areas are regulated and what areas are not. This challenge would impact Teichert 

immediately as we identify and attempt to acquire wetland related permits for new 

aggregate resources. Without some consistent and fairly certain way of knowing where 

and to what extent state and federal agencies will and will not take jurisdiction will create 

uncertainties on what resources Teichert should acquire and bring into the permit process.

This uncertainty creates a very serious issue at the State level where the state agencies 

attempt to determine what will be covered under a Section 401 Certification and 

recommend appropriate mitigation for impacts covered under the 401 regulatory 

processes. Nowhere is this more evident than in California where the California Water 

Resources Control Board has reacted in recent years to current and past uncertainty over 

the scope of federal jurisdiction by moving forward with its own wetland regulations that 

may or may not be parallel with EPA and ACOE. Uncertainty in this regard will add 

years and extensive costs to the process of authorizing the utilization of new aggregate 

reserves. 

This uncertainty by all affected stakeholders in the aggregate industry could lead to a 

reduction in permitted reserves and a consequential reduction in the ability to support the 

infrastructure needs of our communities. This issue cannot be understated for operators 

in California where permitted reserves are already at critical lows. (p. 2)

Agency Response: See Summary Response. See the updated Economic Analysis 

for additional discussion. The final rule was developed to increase CWA program 

predictability and consistency by increasing clarity as to the scope of “waters of the 

United States” protected under the Act. Many definitions for the first time are 

clarified. The agencies note that the final rule provides for certain categories of 

waters that are jurisdictional by rule, which will result in a more efficient process. 

The scope of regulatory jurisdiction in this rule is narrower than that under the 

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

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

important qualifiers on some existing categories such as tributaries. The agencies 

believe this rule is appropriate in light of regulations, science, and case law. Refer to 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

145

the “Tributary”, “Adjacent Waters,” and “Case-Specific Waters of the United 

States” sections of the proposed rule and preamble for further information and 

clarification on tributaries and the use of the ordinary high water mark, adjacent 

waters including neighboring waters and floodplains, and significant nexus 

determinations for case-specific waters and consideration of shallow subsurface 

flow. The agencies considered scientific knowledge and literature regarding riparian 

areas in the formulation of the Adjacent Waters category; however, due to the 

difficulty in delineating the boundaries of riparian areas, the agencies determined 

that using riparian areas as a geographic limit of jurisdiction was unnecessarily 

complicated. Revised definitions and exclusions in the final rule provide greater 

certainty to the regulated community. The use of ordinary high water mark to 

identify the lateral extent of tributaries has been in use by the agencies as standard 

practice. For more information about ordinary high water mark see the summary 

response in Topic 8, section 8.1.2. The final rule no longer defines adjacency based 

only on the floodplain or riparian area but instead provides distance limits. See 

preamble Section IV.G and summary response for Topic 3: Adjacent waters for 

more information. Section 401 certification is based on the state water quality 

standards which by definition apply to waters identified by the state. For more 

information, see summary response for Topic 12, Section 12.2 - 401.

CEMEX (Doc. #19470)

12.196 The Agencies should not permanently adopt the case-by case significant nexus test (or 

any other case-by-case test), as it provides no certainty to the regulated community, 

requires the unnecessary expenditure of resources (time and money) of both the regulated 

community and the regulators, and enhances the potential for litigation. (p. 3)

Agency Response: See Summary Response. Refer to the “Case-Specific Waters of 

the United States” sections of the rule and preamble for further information and 

clarification on determinations for case-specific waters. The case specific waters 

category was determined using available science and the law, and in response to 

public comments that encouraged the agencies to ensure more consistent 

determinations. The agencies received many helpful comments on the proposed 

rule which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public. The final rule further clarifies “significant nexus” 

by providing a definition under paragraph (c) of the term as well as a list of factors 

to be considered when making such a determination. The Corps will develop the 

tools necessary to assist its staff with the jurisdictional determination process 

specific to section 404 in the implementation of the final rule to make the process 

predictable, efficient, and effective.

National Association of Home Builders (Doc. #19540)

12.197 The definition of what constitutes waters of the United States is not mere words on a 

page. Once an area has been deemed as such, there are regulatory responsibilities, land 

use implications, and legal liabilities and consequences that apply. As such, developing a 

new definition that fits within the legal and statutory parameters set by the CWA cannot 

be done without significant consultation, analysis, and consideration. Indeed, the very 

fact that the definition of waters of the United States has stood the test of time for 42 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

146

years since the CWA’s passage should, in and of itself, underscore the magnitude and 

import of today’s undertaking. Clearly, any change to this definition must not be taken 

lightly as even minor changes will have significant ramifications not only within the Act 

itself, but under other environmental laws as well.

According to the Agencies, the proposed rule revises the existing administrative 

definition of waters of the United States consistent with legal rulings and science 

concerning the interconnectedness of tributaries, wetlands, and other waters to 

downstream waters and effects of these connections on the chemical, physical, and 

biological integrity of downstream waters. But unlike other efforts to define the breadth 

of federal authority, which were limited to those waters regulated under Section 404 of 

the Act, today’s proposal applies to all CWA programs and to waters not even considered 

by the Supreme Court in SWANCC and Rapanos, including all “tributaries” and all 

“adjacent” waters (not limited to wetlands).

Because the term “navigable waters,” defined as “waters of the United States, including 

the territorial seas,”

40 applies to all sections of the CWA, any change to the definition of 

waters of the United States will result in significant trickle down effects on a number of 

substantial CWA programs, including:

 Section 303(a) – requires states to establish Water Quality Standards (WQS; fishable, 

swimmable) for all waters of the United States 

 Section 303(d) – requires states to establish total maximum daily loads (TMDLs) for all 

waters of the United States that are impaired (i.e., failing to achieve established WQSs) 

 Section 311 – prohibits the discharge of oil or hazardous substances into all waters of the 

United States and requires facilities that handle oil or hazardous substances to develop spill 

prevention and response programs 

 Section 401 – requires states to establish a water quality certification process 

 Section 402 – establishes the National Pollutant Discharge Elimination System (NPDES), 

which regulates the point source discharge of pollutants into all waters of the United States 

 Section 404 – establishes the “dredged or fill” permit program, which regulates the discharge 

of dredged or fill material into all waters of the United States 

For each of these programs, EPA has developed subsequent regulations that direct one or 

more entities to take one or more actions purportedly aimed at restoring or maintaining 

the chemical, physical, and biological integrity of the Nation’s waters. For example, 

under Section 303 and its subsequent regulations found at 40 CFR 130.4 and 40 CFR 

130.7, the CWA directs the states to monitor the quality of all of the waters of the United 

States within their borders and establish total maximum daily loads (TMDLs) for any 

waters that are not meeting their water quality standards. For home builders, receiving a 

jurisdictional determination that one’s property contains waters of the United States has 

an immediate binding and constraining effect on their land-use activities, could adversely 

impact land values, and may require obtaining and operating pursuant to a Section 404 

 

40 33 U.S.C § 1362(7).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

147

wetlands permit. In both of these cases, in addition to new administrative requirements, 

as more areas are deemed jurisdictional, responsible parties are also immediately subject 

to the liabilities, red tape, costs, and penalties associated with the Act. (p. 18-19)

Agency Response: See Summary Response. The agencies understand that the 

definition of “waters of the U.S.” applies to all CWA programs. The agencies 

modified the final rule from the proposed rule in response to comments received in 

order to ensure unintended effects to those other CWA programs were reduced or 

eliminated. The Economic Analysis provides costs/benefits and predicted change in 

jurisdiction for all CWA programs. The Corps will develop the tools necessary to 

assist its staff with the jurisdictional determination process specific to section 404 in 

the implementation of the final rule to make the process more predictable, efficient, 

and effective.

12.198 The Proposed Rule will have Major Impacts on all Clean Water Act Programs.

Throughout the preamble to the proposed rule and in supporting documentation 

discussing and evaluating the definitional change of waters of the United States, the 

Agencies focus almost exclusively on the change’s impacts on the CWA Section 404 

program. But the Agencies propose to substitute their new definition of waters of the 

United States throughout the CWA’s regulations, which will result in broadened scope 

and additional obligations for all CWA programs. The term “navigable waters” is used 

throughout the CWA and its regulations 135 times. The term waters of the United States 

is used 98 times. To put it succinctly, the scope of the definition of waters of the United 

States dictates the scope of the CWA’s programs. 

Despite this fact, the Agencies have failed to consider the significant implications of this 

major change on the full suite of the CWA’s programs. For example, nowhere in the 

preamble to the proposed rule are any impacts to Section 303 water quality standards 

(WQS) and total maximum daily loads (TMDLs), Section 311 oil spill prevention, 

Section 401 state certification, Section 404 (dredged or fill material permits), or Section 

402 (e.g., individual permits, industrial stormwater general permits, construction 

stormwater general permits, pesticide general permits) programs discussed. Instead, 

some, though not all, of these programs are discussed only as evidence as to why the 

Agencies’ expanded scope of regulation under the proposed definition is reasonable.41

As all industries impacted by the CWA are aware, even with the current jurisdictional 

reach, the Agencies cannot process permits in a timely fashion. The substantially 

expanded jurisdiction proposed by the rule will require considerable additional federal 

and state resources to process permit applications and otherwise implement the affected 

programs. In addition, considerably increased agency budgets will be required to meet 

these requirements. Without consideration of these practical impacts, the proposed rule 

 

41 See, e.g., 79 Fed. Reg. at 22,254 – 22,259 (arguing that the history of the water quality standards program 

demonstrates that the CWA regulates interstate waters without reference to navigability, among other things). Of 

course, such an ends justify the means argument is unsupportable. See Dir., Office of Workers’ Compensation 

Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 135-136 (1995) (such arguments are the 

“last redoubt of losing causes”; no law pursues its purpose at all costs; instead, every law “proposes, not only to 

achieve certain ends, but also to achieve them by particular mean” set out in the text). 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

148

essentially sets the Agencies up for failure, and sets home builders and all other regulated 

entities up for increased delays in project development and increased expenses for 

navigating any project through requisite CWA permitting. (p. 118)

Agency Response: The final rule is a definitional rule that clarifies the scope of 

“waters of the United States” consistent with the Clean Water Act (CWA), Supreme 

Court precedent, and science. The final rule does not establish any regulatory 

requirements or change implementation of CWA programs or processes, which are 

outside the scope of this rule. Overall, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries and adjacent waters, and includes provisions for a 

number of excluded waters, some of which are excluded by rule for the first time. 

In addition, the economic analysis has been updated for the final rule. See summary 

response for Topic 11: Costs/Benefits and the Economic Analysis document for 

further information about economic considerations for each program. 

12.199 The Proposed Rule will Result in Increased Clean Water Act Sections 303, 304, and 305 

State Water Quality Standards Requirements.

States must set water quality standards (WQS) for all “waters of the United States.”

42

 

States typically develop WQS for general categories of waters, which may or may not 

cover the features and waters that are newly jurisdictional under the proposed rule. As a 

result of the proposed rule, each state will be required to determine whether features 

previously not considered “waters of the United States” are now in fact “waters of the 

United States,” and make assessments as to what, if any, existing water quality standards 

are applicable. Performing these tasks is very expensive and time consuming. 

With respect to the Section 303 WQS/TMDL program, after acknowledging that states 

and tribes incur costs developing, monitoring, and assessing WQS and TMDLs, the 

Agencies state that it is their position that “an expanded assertion of jurisdiction would 

not have an effect on annual expenditures.”

43

 To support that conclusion, the Agencies 

assert that states typically only develop WQS for general categories of waters, which 

currently cover the types of waters that would be jurisdictional under the proposed rule 

and which would not change. The Agencies go on to concede that what would change is 

“whether or not those standards apply.”

44

 This concession undermines the Agencies’

conclusion that the impact of the proposed rule would be cost-neutral. In reality, the 

more waters that are jurisdictional, the greater the costs to the states.45

 

42 40 C.F.R. § 131.3(i). 

43 EPA Economic Analysis at 5; see also id. at 25 (describing the impact to the section 303 program as “costneutral”). 

44 Id. at 6. 

45 For example, just under the proposed rule’s definition of “neighboring,” features within entire riparian areas and 

floodplains would now be considered adjacent, and thereby jurisdictional. All of these areas would need to be 

analyzed and addressed by States and tribes under the WQS/TMDL program. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

149

If states rely on their existing water quality standards for the newly jurisdictional features, 

they will have to employ similar uses and criteria to protect features that were not 

intended to be protected under those designated uses or criteria (e.g., a state could have to 

apply uses and criteria they set for lakes to newly jurisdictional ditches or industrial 

ponds for lack of a more applicable existing category). On the other hand, if states do not 

want to rely on existing state water quality standards, they will have to develop new 

water quality standards for these types of features. This process would require baseline 

data gathering to determine appropriate uses for these newly jurisdictional features. 

Again, the more waters that are jurisdictional, the greater the cost to the states. For 

example, the proposed rule’s assertion of jurisdiction over all waters within a floodplain 

or riparian area will now mean that numerous features and waters that were previously 

considered isolated (and therefore not “waters of the United States”), would now be 

“waters of the United States.” All of these areas would need to be analyzed and 

addressed by states under the WQS program.

A complete analysis of the impact of the proposed rule on the WQS program is even 

more critical in light of EPA’s proposed rule entitled Water Quality Standards 

Regulatory Clarifications (hereinafter, WQS Rule).46 The WQS Rule, if finalized as 

proposed, would create a rebuttable presumption that the highest uses specified in Section 

101(a)(2) (i.e., fishable, swimmable) of the CWA are attainable uses for any “waters of 

the United States” by default, thereby forcing state and tribal regulators to prove 

otherwise should they believe it appropriate. To rebut the presumption, a state must 

perform a burdensome use attainability analysis for waters it does not believe can meet 

the “fishable, swimmable” goal. Such a showing would create significant additional costs 

for states and tribes, assuming they would be unwilling to capitulate to the rebuttable 

presumption.47

By way of example, under Kansas state law, ephemeral streams are not “classified”

waters because the state “finds it wholly unnecessary and wasteful of limited state 

program 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.”

48

 EPA has approved Kansas’s WQS 

program, which does not designate uses or assign water quality criteria for ephemeral 

streams.49 If, as proposed, ephemeral drainages are now considered “waters of the United

States,” Kansas estimates an increase from 30,620 stream miles to 134,338 stream miles 

for which the state must set WQS and comply with other CWA requirements.50 As the 

maps in Fig. 1551 demonstrate, this increase is dramatic.

 

46 78 Fed. Reg. 54,518 (Sept. 4, 2013) (“WQS Rule”). 

47 This is to say nothing of the additional costs the WQS Rule’s highest attainable use showing will compel. 

48 See Comments of the Hon. Sam Brownback, Governor of Kansas, on EPA and Army Corps of Engineers 

Guidance Regarding the Identification of Waters Protected by the Clean Water Act, Docket ID No. EPA-HQ-OW2011-0409 (July 14, 2011). 

49 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. #19540, p. 124)

50 Mike Tate and Tom Stiles, Kansas Department of Health and Environment, Presentation on Waters of the United 

States (May 2, 2014) at slide 10.

51 [Figure omitted here]
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

150

Similarly, CWA Section 305(b)(1)(A) requires states to submit a water quality report 

biennially that includes a description of the water quality of all “waters of the United 

States” in the state and an analysis of the extent to which they meet water quality goals.52 

And under Section 303(d), states are required to develop lists of impaired waters (waters 

that are too degraded to meet the WQS set by the state).53 For impaired waters, states 

must develop TMDLs, which are calculations of the maximum amount of a pollutant that 

a waterbody can receive and still safely meet WQS.54 Any increase in jurisdictional 

waters for which WQS are developed necessarily triggers greater costs for states and 

tribes to monitor and assess whether these newly jurisdictional waters are meeting WQS. 

Assuming waters are not meeting WQS, the TMDL development process is triggered at 

even greater costs. And yet, the Agencies suggest that the TMDL process is cost-neutral 

because EPA allows states and tribes to prioritize TMDL development and to develop 

TMDLs over time. This assertion is misplaced. Prioritization and delay do not neutralize 

or somehow lessen the impact of additional costs – they only shift those costs to the 

future, which generally would result in the necessary activities costing more. 

As an example, the park ditch in Pinellas County, Florida, (Fig. 16)55, which provides no 

environmental or human benefits other than flood control, is not currently considered to 

be a “water of the United States”, but would be under the proposed rule.56 As noted 

above, EPA’s WQS Rule would establish a presumption that the attainable use for this 

ditch is “fishable, swimmable” unless the state conducts an expensive and timeconsuming scientific analysis to demonstrate that attaining that use is infeasible. 

Assuming the state did not have the resources to rebut the presumption, it could be forced 

to develop a TMDL for this ditch. Using current TMDLs for nitrogen and phosphorous 

as a gauge, the Florida Stormwater Association estimates that the cost to attain 

hypothetical “fishable, swimmable” uses in the ditch would be $31,351,460.57 While this 

example may seem extreme, it unfortunately falls comfortably within the scope of the 

proposed rule, when viewed in light of other mandatory CWA program requirements. 

In addition to flawed rulemaking, the Agencies’ casual dismissal of the impacts the 

proposed rule will have on states and their WQS/TMDL programs is troubling. The

proposed rule’s expanded “waters of the United States” definition would require each 

state to expend significant resources to satisfy its WQS/TMDL obligations, thereby 

straining its already limited resources. This process would result in the needless 

expenditure of large amounts of the public’s tax dollars on newly jurisdictional features, 

such as ditches and ephemeral drainages, while providing little or no environmental 

benefit. 

 

52 40 C.F.R. § 130.10(a)(1).

53 40 C.F.R. § 130.10(b)(2).

54 40 C.F.R. § 130.7.

55 [Figure omitted here]

56 Florida Stormwater Association, “Proposed Regulations on Waters of the United States: Assessment of Impacts.” 

(July 25, 2014) at 13, available at: http://www.floridastormwater.org/assets/MemberServices/Advocacy/Regulatory/wotus%20-%20fsa%20summary%207-25-14.pdf

(Doc. #19540, p. 125)

57 Id. at 14. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

151

In addition to increased costs to comply with WQS/TMDL requirements, states and 

regulated entities are also more vulnerable to third party litigation. For example, in 2007, 

pursuant to a settlement agreement, the state of Missouri and EPA agreed that Missouri 

was not required to set WQS for its ephemeral waters. Despite EPA’s approval, Missouri 

later had to defend its WQS against a third party. A group filed a citizen suit challenging 

Missouri’s WQS, arguing that Missouri’s WQS did not meet the requirements of the 

CWA because they failed to designate uses and set water quality criteria for all of 

Missouri’s waters.58 In October 2014 and arguably in response to EPA pressure and the 

overbroad proposed definition of “tributary,” the Missouri Department of Natural 

Resources listed previously unclassified waters, including “ephemeral aquatic habitat,” in 

the state’s new WQS.59 EPA Region 7 approved this change, and EPA Regional 

Administrator Karl Brooks said, “EPA . . . applauds Missouri’s decision to protect 

previously unclassified lakes and streams for uses specified in the Clean Water Act’s 

long-standing requirements to assign designated uses and corresponding criteria to all 

waters of the United States in Missouri.”

60

 Did Missouri have any other choice? Did 

EPA defend its earlier approval or share in litigation costs? What’s more, according to 

the USGS maps recently released by EPA, 94,416 miles of the 169,048 total stream miles 

(56%) identified across Missouri do not flow year round.61 Under the proposed 

“tributary” definition and Missouri’s newly approved WQS, Missouri could be required 

to develop WQS and associated TMDLs for nearly 100,000 miles of newly minted 

intermittent and ephemeral “waters of the United States.” The Agencies and states will 

face similar threats of litigation and burdensome CWA requirements based on the 

additional WQS/TMDL obligations that the proposed rule will trigger. Yet the Agencies 

have not considered these facts. (p. 123-126)

Agency Response: Overall, the scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries and adjacent waters, and includes provisions for a number of excluded 

waters, some of which are excluded by rule for the first time. For further discussion 

of exclusions, see summary responses for Topic 6.2: Excluded ditches and Topic 7: 

Features and waters not jurisdictional. In addition, see summary response for Topic 

11: Costs/Benefits and the Economic Analysis document for details on the estimated 

indirect costs and benefits of the rule for each CWA program. Given the reduction 

in scope of regulatory jurisdiction in the final rule, the waters and/or features the 

 

58 Missouri Coalition for the Environment v. Jackson, No. 10-04167 (Feb. 16, 2012) (suit was filed against EPA and 

the State of Missouri intervened to defend its WQS). 

59 EPA Region 7 letter from Karen A. Flournoy (Director, Water, Wetlands and Pesticides Division) to Sara Parker 

Pauley (Director, Missouri Department of Natural Resources) (Oct. 22, 2014) at 2, available at 

http://www.epa.gov/region7/newsevents/legal/pdf/uw-rule-action-10-22-2014.pdf (Doc. #19540, p. 125)

60 Chris Whitley, EPA Region 7 News Release, EPA Region 7 Issues Decision Letter on the State of Missouri’s 

Proposed Changes to Water Quality Standards (Oct. 23, 2014), available at 

http://yosemite.epa.gov/opa/admpress.nsf/names/r07_2014-10-23_epa-r7-decision-ltr-mo-prop-chgs-wqs (Doc. 

#19540, p. 125)

61 See http://science.house.gov/epa-maps-state-2013#overlay-context (Doc. #19540, p. 126)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

152

commenter is concerned about may no longer be jurisdictional and therefore, 

concerns over additional burden related to water quality standards application or 

development and implementation through various CWA programs may no longer 

be relevant. However, to the degree that any water that was not previously covered 

by a state’s or authorized tribe’s water quality standards, EPA offers the following 

points. In response to the concern regarding the “rebuttable presumption” and 

EPA’s proposed WQS Regulatory Clarifications rule, EPA disagrees with the 

commenter. First, EPA position on the “rebuttable presumption” is that it is not 

newly added in the proposed WQS Regulatory Clarifications rulemaking. The 

rebuttable presumption is the term EPA uses to refer to its interpretation of 40 CFR 

131.10(j) and (k), the net effect of which is to require states, when designating uses, 

to designate CWA section 101(a)(2) uses unless the presumption has been rebutted 

through a use attainability analyses (UAA). EPA first used the term in federal 

promulgations in Idaho 1997 and in Kansas in 2003 but the concept originates from 

the 1983 Water Quality Standards regulations. Additionally, EPA litigated this issue 

in 2000 – Idaho Mining Association v EPA. The Court upheld EPA’s 1983 WQS 

regulations and the rebuttable presumption as a reasonable construction of the 

statute. Second, most states established their base water quality standards 

regulations long before the various changes of jurisdictional interpretation through 

court decisions, many before the establishment of the CWA. Therefore, it is unlikely 

that states do not have WQS (including default standards or narrative “free from” 

standards) applicable to these waters. Third, the rebuttable presumption does not 

“automatically” designate waters, states and authorized tribes have primacy in 

WQS and establish uses and criteria to protect such uses. Therefore, if there are any 

additional jurisdictional waters that were not previously covered by state/tribal 

WQS, and the CWA section 101(a)(2) uses are not attainable for those waters, states 

and authorized tribes can control the pace at which UAAs are conducted. 

Additionally, states and authorized tribes have options in how to streamline the use 

designation and UAA process. For example, states can do categorical use 

designations and also categorical UAAs to cover a set of waters that share a similar 

characteristic and similar justifications for not attaining CWA section 101(a)(2) 

uses. In regards to the commenter’s concern that UAAs are burdensome, EPA 

emphasizes that a UAA must provide an adequate scientific and technical rationale 

in the administrative record to support the resulting designated use change. EPA 

has approved designated use changes supported by UAAs that range from simple to 

complex. Whether the UAA will be simple or complex will vary on a case-by-case 

basis based on a number of factors, such as the type of water body involved, the size 

of the segment(s) or the number of water bodies involved (if doing a categorical 

UAA), the characteristics of the water body, the designated use being changed and 

the relative degree of change, the factual showing required to make a demonstration 

that attaining the designated use is not feasible using one or more of the factors 

specified in § 131.10(g), the level of public interest/involvement in the designated use 

decision, etc. A discussion of some examples displaying the varying spectrum of 

UAAs is available at 

http://water.epa.gov/scitech/swguidance/standards/uses/uaa/index.cfm. Finally, 

EPA disagrees with the commenter’s articulation of the facts regarding the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

153

Settlement Agreement regarding Missouri’s WQS. First, the 2004 Settlement 

Agreement was between only EPA and Missouri Coalition for the Environment (not 

the state of Missouri). Furthermore, Missouri was not later sued by Missouri 

Coalition for the Environment regarding the unclassified waters issue, rather EPA 

was sued in 2010. Also, as a note, the unclassified waters may have included 

ephemeral waters but also included other waters such as perennial waters, 

intermittent waters, lakes, and wetlands. EPA agreed in the Settlement Agreement 

to proactively work on certain issues, and did not agree to delay or not address any 

other remaining issues in Missouri and Missouri Coalition for the Environment 

reserved its right to bring additional lawsuits in the future under the Consent 

Decree with regard to any such claim addressed. (See 

http://dnr.mo.gov/env/wpp/wqstandards/docs/2004-12-

16_SettlementAgreement_USEPAvsMCE.pdf and 

http://dnr.mo.gov/env/wpp/wqstandards/docs/2004-12-

27_ConsentDecree_USEPAvsMCE.pdf).

American Gas Association (Doc. #4980)

12.200 As we have expressed throughout the stakeholder process, AGA continues to be 

concerned that the proposed rule would not provide the regulatory certainty natural gas 

distribution companies need to conduct normal operations in a timely and cost-effective 

manner. Over the past few 12 months, AGA and other energy industry stakeholders have 

identified several aspects of the proposed rule that are either overly vague or 

impracticable to implement in the field, for regulators and regulated entities alike. 

As just one example, the proposed rule would subjectively allow “other waters” to be 

defined based on a best professional judgment standard. The regulatory uncertainty this 

would introduce could significantly slow timelines for pipeline integrity management and 

maintenance projects conducted by natural gas utilities. This same aspect of the proposed 

rule would also create regional inconsistencies in permitting, and necessitate nearly 

constant jurisdictional reviews in the field to determine whether state or federal 

jurisdiction applies. In 38 states, natural gas utilities currently perform pipeline integrity 

management and maintenance across miles of pre-built infrastructure under specific,

state-level regulatory authorization subject to those states’ water resources jurisdiction. 

Our members are concerned that as proposed, this rulemaking will create new 

uncertainties and permitting roadblocks for these priority projects. (p. 1-2)

Agency Response: See Summary Response. The agencies believe the proposed 

rule will result in increased clarity and certainty regarding the identification of 

“waters of the U.S.” The agencies received many helpful comments on the proposed 

rule which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public. The agencies are developing guidance to facilitate 

effective, consistent, and efficient implementation of the final rule once it becomes 

effective. . The agencies strive to achieve consistency across the country in all 

districts and regions in application of the rule for jurisdictional determinations. 

None of the existing procedures, permitting mechanisms, efficient permitting tools 

such as general permits, or activity exemptions are modified as a result of this 

rulemaking; therefore, existing procedures should not be further complicated by 

this rule. Best professional judgment has always been used by the agencies in 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

154

making jurisdictional determinations and will continue to be used under the final 

rule.

RiverStone Group, Inc. (Doc. #10742)

12.201 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 our company to ensure timely supply of 

aggregates for public works projects essential to economic recovery. (p. 2)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. While it is the responsibility of the Corps as the agency evaluating 

permit applications under section 404 to determine if Endangered Species Act and 

the National Historic Preservation Act requirements are being met, there are cases 

where these laws or other federal, state or local laws may still require review absent 

a CWA action. Obtaining a jurisdictional determination from the agencies does not 

trigger Section 7 of the Endangered Species Act, a federal action does, and a section 

404 permit is a federal action. However, private landowners are also required to 

comply with Section 10 of the Endangered Species Act absent a federal action. The 

agencies work to ensure this compliance with other federal laws is completed in the 

most efficient and effective manner, and may include programmatic agreements or 

local operating procedures to streamline the process.

Texas Mining and Reclamation Association (Doc. #10750)

12.202 TMRA is equally concerned with the proposed rule’s implications for Section 303 

requirements. States, or infrequently EPA, must establish water quality standards for 

waters within their jurisdiction. For previously non-jurisdictional waters, including onsite industrial waters or other on-site waters previously excluded from jurisdiction that 

could become jurisdictional under the proposed rule, the state of Texas will have to 

devote significant resources to designate uses for those waters and to derive criteria to 

protect those uses. Such standards-setting procedures are ordinarily very costly and timeconsuming, and can give rise to contentious litigation.

This is particularly true, for example, in the case of any on-site ditches or water 

management conveyances deemed jurisdictional under the new rule. There, Texas would 

be faced with the absurd requirement to establish a “use” designation that must be 

achieved and protected, while at the same time being confronted with a CWA prohibition 

on using streams for waste assimilation or transport- exactly what EPA has determined 

they could be designed to do.62 Furthermore, state and federal water quality standards 

also have an antidegradation component requiring that “existing water uses and the level 

of water quality necessary to protect the existing uses shall be maintained and 

protected.”

63 Taken together, these CWA requirements would prohibit use of on-site 

 

62 40 C.F.R. 131.10(a)-(b).

6340 C.F.R. 131.10(a). 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

155

waters to function as part of an entire treatment system designed to ensure that any 

discharges from the mine meet the requirements of the CWA. The Agencies have failed 

to explain how this would – or even could – work.

Section 303 also requires the establishment of total maximum daily loads (TMDLs) for 

all waters where technology-based effluent limits are not sufficient to implement the 

applicable water quality standards. Again, states have the primary obligation to establish 

standards such TMDLs, but EPA must do so in limited circumstances. Like water quality 

standards, TMDLs are often very time consuming and costly to establish. As the number 

of jurisdictional waters expands under the proposed rule, the state of Texas (and possibly 

EPA) will have to expend valuable resources establishing water quality standards and 

TMDLs under Section 303. Such expenditures simply make no sense in the context of, 

for example, temporary ditches in construction areas at mine sites.

Also of concern to TMRA, as more mining activities become subject to CWA permitting 

requirements and as additional waters on mine sites trigger Section 303 requirements, the 

opportunity for citizen lawsuits will dramatically increase. Specifically, citizen plaintiffs 

can file suits seeking to enforce effluent limitations against “discharges” internal to a 

mine site that were formerly not subject to CWA permitting. Citizen plaintiffs could also 

file suits seeking to compel the promulgation of water quality standards or the 

establishment of TMDLs for waters on mine sites, and against operators whose 

discharges violate them even where the agencies assert that the waters in question are 

excluded from jurisdiction. The number of such suits is certain to increase should the 

Agencies finalize the proposed rule as drafted, without the necessary clarification. (p. 12-

13)

Agency Response: The rule is a definitional rule that clarifies the scope of “waters 

of the United States”. This rule will not affect the current implementation of the 

various CWA programs in regulating discharges of pollutants into waters of the 

United States; implementation of those programs is outside the scope of this rule. 

Overall, the scope of regulatory jurisdiction in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule

includes provisions for a number of excluded waters, some of which are excluded by 

rule for the first time. The final rule includes additional and revised exclusions in 

paragraph (b) of the rule, which address many of the waters described by the 

commenter, including many ephemeral and intermittent ditches, and waters 

constructed in dry land, such as stormwater conveyance features, waste treatment 

systems including treatment ponds and lagoons designed to meet the requirements 

of the CWA, wastewater recycling structures and basins, and artificial lakes and 

ponds including settling basins and cooling ponds. See summary responses for 6.2: 

Excluded ditches and Topic 7: Features and waters not jurisdictional, for further 

discussion of excluded waters. The agencies believe the proposed rule will result in 

increased clarity and certainty regarding the identification of “waters of the U.S.” 

The agencies received many helpful comments on the proposed rule which resulted 

in refinement of the final rule to provide further clarity and certainty to the 

regulated public. None of the existing procedures, permitting mechanisms, efficient 

permitting tools such as general permits, or activity exemptions will be modified as a 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

156

result of this rulemaking; therefore, existing procedures should not be further 

complicated by this rule.

American Exploration & Mining Association (Doc. #13616)

12.203 We are concerned that under the proposed rule, the agencies’ authority to assert 

jurisdiction is limitless. Where in the past, jurisdiction was based on a site-specific 

analysis, the proposed rule creates broad categories of waters that would now be 

considered jurisdictional by rule. For example, under the proposed rule, remote features 

on the landscape that carry only minor water volumes (e.g. ephemeral drainages, storm 

sewers and culverts, directional sheet flow during storm events, drain tiles, man-made 

drainage ditches and arroyos), would now automatically be subject to federal CWA 

jurisdiction. 

In addition, under the proposed rule, waters and wetlands are subject to regulation if they 

are “located within the riparian area or floodplain” of a traditional navigable water, 

interstate water, territorial sea, impoundment, or tributary, or if they have “a shallow 

subsurface hydrologic connection or confined surface hydrologic connection to such a 

jurisdictional water.” See 79 Fed. Reg. at 22,262-63. The proposed rule does not provide 

a limit for the extent of riparian areas or floodplains, but leaves it to the agencies’ “best 

professional judgment” to determine the appropriate area or flood interval. Id. at 22,208. 

The proposal also fails to provide the limits of “shallow subsurface hydrological 

connections” that can render a feature jurisdictional but instead leaves that analysis to the 

best professional judgment of the agencies. Id. 

Inconsistent with the limits established by Congress and recognized by the Supreme 

Court, the proposed rule creates sweeping jurisdiction based on connections under newly 

devised theories such as “any hydrological connection,” “significant nexus,”

“aggregation,” and new definitions and key regulatory terms such as “tributary,”

“adjacent waters,” and “other waters.” Through use of the broad definition of “tributary”

the agencies will extend jurisdiction to any channelized feature, (e.g., ditches, ephemeral 

drainages, stormwater conveyances), wetland, lake or pond that directly or indirectly 

contributes flow to navigable waters, without any consideration of the duration or 

frequency of flow or proximity to navigable waters. See 79 Fed. Reg. at 22, 201.

The rule also proposes to expand “adjacent waters,” to include any wetland, water, or 

feature located in an undefined floodplain or riparian area, or that has a sub-surface 

hydrologic connection to navigable waters. Id. at 22,206. A new catch-all “other waters”

category would include isolated waters and wetlands that, when aggregated with all other 

wetlands and waters in the entire watershed, have a “more than speculative or 

insubstantial” effect on traditional navigable waters. Id. at 22,211. Under the proposed 

rule, ditches, groundwater and erosional features (i.e., gullies, rills, and swales) can serve 

as a subsurface hydrological connection that would render a feature a jurisdictional 

“adjacent water” or demonstrate that a feature has a “significant nexus” and is therefore a 

jurisdictional “other water.” Id. at 22,219. Such far-reaching jurisdiction over features far 

from navigable waters and carrying only minor volumes of flow was not what Congress 

intended and goes far beyond even the broadest interpretation of recent Supreme Court 

decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Eng’rs, 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

157

531 U.S. 159, 172 (2001) (SWANCC), and Rapanos v. United States, 547 U.S. 715 

(2006). (p. 2-3)

Agency Response: See Summary Response The agencies believe the proposed 

rule will result in increased clarity and certainty regarding the identification of 

“waters of the U.S. The agencies received many helpful comments on the proposed 

rule which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public. None of the existing procedures, permitting 

mechanisms, efficient permitting tools such as general permits, or activity 

exemptions will be modified as a result of this rulemaking; therefore, existing 

procedures should not be further complicated by this rule. The scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

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

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

existing categories such as tributaries. See the preamble for further discussion on 

the “Tributary” and “Adjacent Waters” sections. Please see Section I- Water and 

Features that Are Not “Waters of the United States” for further clarification on 

excluded water features. In particular, paragraph (b) of the final rule regarding the 

exclusion for stormwater control features and the exclusion for erosional features 

and ephemeral features that don’t meet the definition of “tributary.” To be 

considered a “tributary” under the final rule, a water feature must demonstrate 

both bed/banks and an ordinary high water mark which would distinguish them 

from non-jurisdictional features. The agencies believe such characteristics indicate 

sufficient volume and frequency of flow for a tributary to have a significant nexus to 

the downstream (a)(1) to (a)(3) waters. The final rule has further refined the 

“neighboring” definition to provide additional clarity and “bright lines.” The use 

of shallow sub-surface flow connections has been removed in the final rule from 

being able to be used as the sole factor in determining adjacency. Best professional 

judgment has always been used by the agencies in making jurisdictional 

determinations and will continue to do so under the final rule.

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

12.204 As stated by one company, “As a local aggregate construction and building material 

supplier, we provide products used by CalTrans, PG&E, and other customers... If the 

proposed rule is implemented as-is, many of our facilities would have to apply for new 

CWA permits for being ‘neighboring,’ ‘adjacent,’ or containing ‘other waters’ upstream 

from a water of the U.S. Each permit will need to be on a watershed basis requiring 

multiple levels of permit review and corresponding delays. The permit process may tie

up new project proposals and on-going material extraction and create a shortage of 

material that is in high demand. The shortage in aggregate production and supply would 

cause our customers to purchase their aggregate materials from other mining companies 

outside of the U.S. that do not have the same environmental standards as the U.S.”

Another company stated that “the increase in complexity, cost, and required analysis by 

ACOE, FWS, and other partners would almost certainly further tax the limited resources 

of the agencies and increase the time necessary to process and approve projects. The 

time would be in the order of 6 months to one year. The, further increase in time, cost and 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

158

uncertainty raises the likelihood that permits would not come in time to keep an 

operational supply of aggregate to service the market.” (p. 43)

Agency Response: See Summary Response. See the preamble sections for 

“Tributary” and “Adjacent Waters” for discussion on this topic. Additionally, the 

updated Economic Analysis provides information regarding costs associated with 

implementation of the final rule for applicants and for the agencies. There are two 

types of jurisdictional determinations; preliminary and approved jurisdictional 

determinations. Preliminary jurisdictional determinations indicate which waters on 

a property may be waters of the U.S., presume all waters on a property are 

jurisdictional, are not legally binding instruments, and enable a landowner to set 

aside the issue of jurisdiction and move directly into the permit evaluation phase of 

the process. Preliminary jurisdictional determinations cannot be used to decline 

jurisdiction and are generally more expedient than approved jurisdictional 

determinations. Approved jurisdictional determinations are the official Corps 

determination that jurisdictional “waters of the United States,” or “navigable 

waters of the United States,” or both, are either present or absent on a particular 

site. An approved JD precisely identifies the limits of those waters on the project site 

determined to be jurisdictional under the Clean Water Act/Rivers and Harbors Act. 

The majority of jurisdictional determinations completed by the Corps are 

preliminary. Not every permit application requires a jurisdictional determination. 

The Corps will continue to provide the option to the landowner for both approved 

and preliminary jurisdictional determinations. There is not expected to be a 

required timeframe for completion of a jurisdictional determination, which can be 

dependent on a variety of factors including climate and weather patterns. The 

agencies note that the final rule provides for certain categories of waters that are 

jurisdictional by rule, which will result in a more efficient process for determining 

jurisdiction. The agencies are developing guidance to facilitate effective, consistent, 

and efficient implementation of the final rule once it becomes effective. The 

agencies strive to achieve consistency across the country in all districts and regions 

in application of the rule for jurisdictional determinations. The agencies also 

recognize that there are variations that occur in geography, hydrology, climate, etc., 

which affect jurisdictional determinations. The initial phase of implementing the 

rule will require education and training for agency staff as well as other 

stakeholders and the regulated public. This training and outreach will be 

regionally-based to ensure appropriate consideration is given to ecoregional 

variation and to ensure consistent and efficient implementation of the rule. 

Continental Resources, Inc. (Doc. #14655)

12.205 A state’s definitions of “waters of the state” must include “waters of the United States.” 

To the extent that the Proposed Rule extends jurisdiction beyond what a state currently 

defines as “waters of the state”, the state must set water quality standards for those newly 

jurisdictional features. Under Section 303, states must not only develop water quality 

standards but must also monitor and assess water quality, and develop total maximum 

daily loads (TMDLs) for impaired waters. As the total number and type of jurisdictional 

waters increase, so too does the burden on the states for each of these tasks. Under 

Section 305, states must report and describe their water quality. Sampling, monitoring 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

159

and other additional report costs are also likely to increase with the definitions in the 

Proposed Rule. Given the significant increase in jurisdictional waters, there are many 

implications for Continental and the states, including unsuitable water quality standards, 

the development of new (and possibly more stringent) water quality standards, and the 

requirement that states protect, monitor, and report on literally all conveyances even if 

they have no public or environmental value. (p. 19)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries and adjacent waters, and includes provisions for a number of excluded 

waters, some of which are excluded by rule for the first time. For example, under 

the final rule many ephemeral and intermittent ditches, and waters constructed in 

dry land, such as stormwater conveyance features, waste treatment systems, 

including treatment ponds and lagoons designed to meet the requirements of the 

CWA, wastewater recycling structures and basins, and artificial lakes and ponds, 

including settling basins and cooling ponds, are all excluded from waters of the U.S. 

See summary responses for 6.2: Excluded ditches and Topic 7: Features and waters 

not jurisdictional, for further discussion of excluded waters. 

Washington Forest Protection Association (Doc. #15030)

12.206 The proposal also poses a significant problem for forestry operations subject to state 

water quality regulation or best management practices. Categorical designation of 

ditches and ephemeral streams, in particular, will cause considerable confusion as to how 

forest owners are to implement best management practices like buffers along roadside 

ditches. Moreover, despite existing exemptions in CWA Sections 404(f) and 402(l) for 

certain activities in the forest, the proposal’s expansion of WOTUS could mean that nonstormwater discharges of pollutants into newly jurisdictional ditches and ephemeral 

drainages could be considered unlawful discharges without an NPDES permit, thereby 

potentially triggering daily penalties. (p. 3)

Agency Response: See Summary Response. The scope of regulatory jurisdiction 

in this rule is narrower than that under the existing regulation. Fewer waters will 

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

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

categories such as tributaries and adjacent waters, and includes provisions for a 

number of excluded waters, some of which are excluded by rule for the first time. 

For example, under the final rule many ephemeral and intermittent ditches, and 

waters constructed in dry land, such as stormwater conveyance features, waste 

treatment systems, including treatment ponds and lagoons designed to meet the 

requirements of the CWA, wastewater recycling structures and basins, and artificial 

lakes and ponds, including settling basins and cooling ponds, are all excluded from 

waters of the U.S. See summary responses for 6.2: Excluded ditches and Topic 7: 

Features and waters not jurisdictional, for further discussion of excluded waters. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

160

National Mining Association (Doc. #15059)

12.207 NMA is equally concerned with the proposed rule’s implications for Section 303 

requirements. States, or infrequently EPA, must establish water quality standards for 

waters within their jurisdiction. States would have to devote significant resources to 

designate uses and derive criteria for previously non-jurisdictional waters, including onsite industrial waters or other on-site waters previously excluded from jurisdiction that 

could become jurisdictional under the proposed rule. Such standards-setting procedures 

are ordinarily very costly and time-consuming, and can give rise to contentious litigation.

Section 303 also requires the establishment of TMDLs for all waters where technologybased effluent limits are not sufficient to implement the applicable water quality 

standards. Again, states have the primary obligation to establish such TMDLs, but EPA 

must do so in limited circumstances. Like water quality standards, TMDLs are often very 

time consuming and costly to establish. As the number of jurisdictional waters expands 

under the proposed rule, states (and possibly EPA) will have to expend valuable 

resources establishing water quality standards and TMDLs under Section 303. Such 

expenditures simply make no sense in the context of, for example, temporary ditches in 

construction areas at mine sites.

Perhaps of greatest concern to NMA, as more mining activities become subject to CWA 

permitting requirements and as additional waters on mine sites trigger Section 303 

requirements, the opportunity for citizen suits in federal courts will dramatically increase. 

Specifically, citizen plaintiffs can file suits seeking to enforce effluent limitations against 

“discharges” internal to a mine site that were formerly not subject to CWA permitting. 

Citizen plaintiffs could also file suits seeking to compel the promulgation of water quality 

standards or the establishment of TMDLs for waters on mine sites, and against operators 

alleging unlawful discharges even in instances where the agencies assert that the waters 

in question are excluded from jurisdiction. The mining industry is already a frequent 

target of citizen suit litigation, and the number of such suits is certain to increase should 

the Agencies finalize the proposed rule as drafted. (p. 17-18)

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

than that under the existing regulation, in part because the final rule includes 

additional and revised exclusions in paragraph (b) of the rule, which address many 

waters typically found at mine sites. These excluded waters include many ephemeral 

and intermittent ditches, and waters constructed in dry land such as stormwater 

conveyance features, waste treatment systems including treatment ponds and 

lagoons designed to meet the requirements of the CWA, wastewater recycling 

structures and basins, and artificial lakes and ponds including settling basins and 

cooling ponds. See summary responses for 6.2: Excluded ditches and Topic 7: 

Features and waters not jurisdictional, for further discussion of excluded waters. 

Therefore, the EPA does not anticipate an increase in the water bodies on mine sites 

for which water quality standards and designated uses are developed, and for which 

TMDLs may be established.

Independent Oil and Gas Association of West Virginia (Doc. #15406)

12.208 The Proposed Rule affects the fundamental jurisdictional concept that forms the 

backbone of the federal Clean Water Act (“CWA” or the “Act”), 33 U.S.C. §§ 1251 et 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

161

seq. As set forth in greater detail below, IOGA-WV shares the significant concerns 

expressed by many other representatives of the regulated community that the Proposed 

Rule, although ostensibly developed to foster regulatory certainty and predictability by 

providing “clarity” with regard to the scope of the CWA, in fact introduces considerable 

confusion into the process of jurisdictional determination, and ultimately would expand 

significantly the scope of the Agencies’ jurisdiction under the Act. This proposed 

expansion of the critical “waters of the United States” definition would have significant 

adverse impact on the regulated community across a number of regulatory programs, 

including NPDES permitting under Section 402 of the CWA, 33 U.S.C. § 1342, “dredge 

and fill” permitting under Section 404, id. § 1344, and Spill Prevention Control and 

Countermeasure requirements under Section 311, id. § 1321. With respect to the NPDES 

program, increasing the number of jurisdictional waters will result in additional discharge 

points for which NPDES permits will be required, and these newly designated waters will 

have to meet water quality standards – a significant issue in West Virginia, where the 

Category A (Public Water Supply) use is applied to all waters in the State, regardless of

whether there is any reasonable likelihood of future use of the water as a source of 

drinking water. Regarding the Section 404 program, not only will the Proposed Rule 

trigger new permitting obligations for the filling of previously non jurisdictional waters, 

but the expected increases in the overall impacts for individual projects may render them 

ineligible for Nationwide Permits. All of these regulatory consequences translate into 

increased costs and permitting delays for the regulated community. Finally, the 

Agencies’ attempt to bring within the CWA waters previously beyond the scope of 

federal jurisdiction would erode the authority and discretion of individual states, in 

contravention of Congress’s stated goals when it enacted the Act in 1972.64 Accordingly, 

IOGA submits that the Agencies’ proposed “clarifications” are unnecessary, and that the 

Proposed Rule should be withdrawn. (p. 1-2)

Agency Response: See Summary Response. There are two types of jurisdictional 

determinations; preliminary and approved jurisdictional determinations. 

Preliminary jurisdictional determinations indicate which waters on a property may 

be waters of the U.S., presume all waters on a property are jurisdictional, are not 

legally binding instruments, and enable a landowner to set aside the issue of 

jurisdiction and move directly into the permit evaluation phase of the process. 

Preliminary jurisdictional determinations cannot be used to decline jurisdiction and 

are generally more expedient than approved jurisdictional determinations. 

Approved jurisdictional determinations are the official Corps determination that 

jurisdictional “waters of the United States,” or “navigable waters of the United 

States,” or both, are either present or absent on a particular site. An approved JD 

precisely identifies the limits of those waters on the project site determined to be 

jurisdictional under the Clean Water Act/Rivers and Harbors Act. The majority of 

jurisdictional determinations completed by the Corps are preliminary. Not every 

permit application requires a jurisdictional determination. The Corps will continue 

to provide the option to the landowner for both approved and preliminary 

 

64 See id. § 1251(b) (stating that lilt is the policy of Congress to recognize, preserve, and protect the primary 

responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use 

(including restoration, preservation, and enhancement) of land and water resources . . .” (emphasis supplied)).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

162

jurisdictional determinations. There is not expected to be a required timeframe for 

completion of a jurisdictional determination, which can be dependent on a variety of 

factors including climate and weather patterns. The agencies note that the final rule 

provides for certain categories of waters that are jurisdictional by rule, which will 

result in a more efficient process. The Corps will develop the tools necessary to 

assist its staff with the jurisdictional determination process specific to section 404 in 

the implementation of the final rule to make the process predictable, efficient, and 

effective. The agencies are developing guidance to facilitate effective, consistent, 

and efficient implementation of the final rule once it becomes effective. The 

agencies strive to achieve consistency across the country in all districts and regions 

in application of the rule for jurisdictional determinations. The agencies also 

recognize that there are variations that occur in geography, hydrology, climate, etc., 

which affect jurisdictional determinations. The initial phase of implementing the 

rule will require education and training for agency staff as well as other 

stakeholders and the regulated public. This training and outreach will be 

regionally-based to ensure appropriate consideration is given to ecoregional 

variation and to ensure consistent and efficient implementation of the rule. The 

agencies recognize that there are appropriate levels of regional variation in 

implementation of the regulations; however, the agencies strive for national 

consistency. The agencies believe the clarity and certainty provided in the rule will 

result in further consistency, while still allowing for regional variation in 

implementation that may be necessary based on regional differences in aquatic 

resources; for example, the ordinary high water mark regional manuals or the 

regional supplements to the wetland delineation manual, both of which are outside 

the scope of this rulemaking but are related resources. The agencies understand that 

there is regional variation which can make it appear that there are inconsistencies in 

the program. However, the rule aims to reduce any inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

rule only provides a definition for “waters of the U.S.” The rule does not affect the 

CWA statute in which authorization may be required for discharges of dredged 

and/or fill material into waters of the U.S., or other activities in jurisdictional waters 

of the U.S. such as NPDES permits or Section 311 requirements which require 

authorization. 

CountryMark Cooperative Holding Corporation, LLC (Doc. #15656)

12.209 As interpreted, the proposed expanded WOTUS jurisdictional changes would 

significantly lengthen response time for both maintaining and replacing flow lines, 

regulated DOT pipelines, and gathering lines. It is our opinion that an unintended 

consequence of this action is a potential increase in environmental incidents due to 

onerous compliance requirements associated with getting access to maintain lines. 

Furthermore, this expanded jurisdiction potentially could place CountryMark in a 

position of determining which Federal or State regulatory agencies’ regulations have 

precedence should an environmental event happen (i.e., comply with expanded WOTUS 

jurisdiction requiring a lengthy permitting process or take immediate action to abate and 

repair the problem). (p. 2)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

163

Agency Response: The Corps regulations define an “emergency” under the 

nationwide permit program as “a situation which would result in an unacceptable 

hazard to life, a significant loss of property, or an immediate, unforeseen, and 

significant economic hardship if corrective action requiring a permit is not 

undertaken within a time period less than the normal time needed to process the 

application under standard procedures.” In emergency situations, Corps Division 

Engineers, in coordination with the Corps District Engineers, are authorized to 

approve special processing procedures to expedite permit issuance. The Corps also 

uses alternative permitting procedures, such as general permits and letters of 

permission, when appropriate, to expedite processing of permit applications for 

emergencies. The Corps emergency permitting procedures can be found in 33 CFR 

325.2(e). Certain nationwide permits do not require pre-construction notification 

and such activities can be completed without notification as long as they comply 

with the terms and conditions of such permits. In addition, certain discharges of 

dredged and/or fill material are exempt from regulation under section 404(f)(1)(b) 

under the Clean Water Act that are “for the purpose of maintenance, including 

emergency reconstruction.”

12.210 If the Proposed Rule is not withdrawn, CountryMark requests that it should be modified 

to provide either clearer definitions, or expanded exclusions, or both, in order to create a 

rule that is consistent with the intent and to be consistent with judicial decisions. If not 

withdrawn, among other items the Proposed Rule should be modified to: ...Make clear 

that emergency activities and required activities by other regulatory agencies, such as the 

DOT, are exempt from this jurisdiction. As noted earlier, the current proposal, as 

interpreted, could generate conflicts between regulatory agencies, such as requirements of 

the DOT to repair lines within specific timeframes. The rule should clearly exempt 

activities mandated by other regulatory agencies. (p. 4)

Agency Response: See Summary Response and answer to question above. The 

rule is not designed to subject any entities of any size to any specific regulatory 

burden. Rather, it is designed to clarify the statutory scope of the “waters of the 

U.S.”, consistent with Supreme Court precedent. The rule does not affect the CWA 

statute in which authorization may be required for discharges of dredged and/or fill 

material into waters of the U.S., or other activities in jurisdictional waters of the 

U.S. such as NPDES permits or Section 311 requirements which require 

authorization. The final rule does not affect the existing statutory activity-based 

exemptions under Section 404(f)(1) of the Clean Water Act or the Corps nationwide 

general permit thresholds for impacts in the Section 404 program.

Coeur Mining, Inc. (Doc. #16162)

12.211 The Agencies have failed to consider the significant implications on these programs, 

including Section 404 dredge and fill permitting, Section 402 NPDES permitting, 

including stormwater and non-stormwater, Section 401 water quality certification, 

Sections 303, 304, and 305 State water quality standards, and Section 311 oil spill 

prevention. The expanding Clean Water Act jurisdiction is very broad and the language 

of the proposed rule is subject to arguable views of interpretation. In particular, our 

comments address the possibility that historically non-jurisdictional, on-site stormwater 

and surface water management features will be deemed jurisdictional, and the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

164

complications surrounding distinguishing ephemeral tributaries from non-jurisdictional 

features, including increased delays, costs, and permitting requirements on mine 

operations. (p. 2)

Agency Response: See Summary Response. The rule only provides a definition 

for “waters of the U.S.” The rule does not affect the CWA statute in which 

authorization may be required for discharges of dredged and/or fill material into 

waters of the U.S., or other activities in jurisdictional waters of the U.S. such as 

NPDES permits Section 401 certification, water quality standards or Section 311 

requirements which require authorization. The final rule included clarifying 

language regarding stormwater control features under paragraph (b) for waters 

and features which are not considered waters of the U.S. Stormwater control 

features that meet the terms of the exclusion under paragraph (b) are not 

jurisdictional under the Clean Water Act. With respect to stormwater control 

features, whether or not subject to an NPDES permit, please see summary response 

in Compendium 7 at 7.4.4. See essay 12.5 regarding SPCC, essay 12.2 regarding 401 

certification, and the Economics Analysis for a discussion of how the final rule 

accounted for impacts to all CWA programs including water quality standards and 

TMDLs. 

American Gas Association (Doc. #16173)

12.212 The Proposed Rule is a Significant Obstacle to the Agencies’ Implementation of 

Administration Policy Favoring Expedited Permitting for Energy Infrastructure Projects, 

and should be Reworked Consistent with the President’s Goals to Streamline 

Infrastructure Permitting. 

The Administration has committed to strengthening federal infrastructure permitting 

processes by reducing red tape, cutting timelines, and promoting early coordination of 

federal, state and local agencies. AGA strongly supports the Administration’s 

commitment: natural gas pipeline and local distribution companies rely on timely, 

transparent federal permits and reviews to meet their construction, maintenance, 

emergency repairs, replacement, and pipeline safety goals. The consequences described 

above to natural gas utility, pipeline and related infrastructure projects represent just one 

instance of how a critical infrastructure sector’s progress will be impeded and seriously 

erode the Administration’s progress in developing policy favoring modernized, timely 

and clear federal permitting processes. The Proposed Rule would create setbacks for 

infrastructure permitting that are contrary to the Administration’s comprehensive agenda 

to modernize federal infrastructure reviews. These setbacks include: increased permitting 

delays, costly project outlays and timelines, higher environmental service consultant 

costs, an unprecedented increase in Army Corps resource commitment to project reviews, 

permit-related litigation costs, and protracted state-federal-tribal jurisdictional reviews 

and resource consultations. (p. 13)

Agency Response: See Summary Response. The agencies believe the final rule 

will result in increased clarity and certainty regarding the identification of “waters 

of the U.S.” The agencies received many helpful comments on the proposed rule 

which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public. None of the existing procedures, permitting 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

165

mechanisms, efficient permitting tools such as general permits, or activity 

exemptions will be modified as a result of this rulemaking; therefore, existing 

procedures should not be further complicated by this rule. The final rule was 

developed to increase CWA program predictability and consistency by increasing 

clarity as to the scope of “waters of the United States” protected under the Act. 

Definitions of certain terms are provided for the first time (e.g. tributary), or are 

further clarified (e.g. adjacent). The final rule provides for certain categories of 

waters that are jurisdictional by rule, which will result in a more efficient process. 

See the updated Economic Analysis for additional discussion. The rule only provides 

a definition for “waters of the U.S.” The rule does not affect the CWA statute in 

which authorization may be required for discharges of dredged and/or fill material 

into waters of the U.S., or other activities in jurisdictional waters of the U.S. which 

require authorization. In addition, the rule does not affect activities that are 

currently exempt from CWA regulation. The rule also does not affect permitting 

tools such as the use of general permits that the Corps implements for expeditious 

review and efficiency in processing permit applications for discharges of dredged 

and/or fills material into waters of the U.S. The rule will improve consistency and 

predictability for all CWA programs. The rule will provide needed clarity 

regarding jurisdictional determinations, thus reducing uncertainties and delays.

Gas Processors Association (Doc. #16340)

12.213 (...) any unnecessary delay of the permitting process will be detrimental to local, state, 

and federal economies. (p. 2)

Agency Response: See Summary Response. The updated Economic Analysis 

provides additional discussion responsive to this comment.

Utah Mining Association (Doc. #16349)

12.214 (...) any change in CWA regulations that would change the scope of federal jurisdiction 

will have a substantial effect on our members’ ability to finance and develop new 

projects, or perform maintenance to maintain existing infrastructure and facilities. Our 

members’ construction and operations often require various permits under the CWA and 

the agencies’ proposed expansion of jurisdiction would result in additional permit 

obligations for all CWA programs. The agencies have failed to consider the significant 

implications on these programs, including Section 404 dredge and fill permitting, Section 

402 NPDES permitting, including stormwater and non-stormwater, Section 401 water 

quality certification, Sections 303, 304, and 305 State water quality standards, and 

Section 311 oil spill prevention. Contrary to the agencies’ assertions, the proposed rule 

will lead to more confusion for regulators and the regulated community, and will by no 

means establish the certainty or predictability the agencies claim. (p. 2)

Agency Response: See Summary Response. The agencies believe the final rule 

will result in increased clarity and certainty regarding the identification of “waters 

of the U.S.” The agencies received many helpful comments on the proposed rule 

which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public. None of the existing procedures, permitting 

mechanisms, efficient permitting tools such as general permits, or activity 

exemptions will be modified as a result of this rulemaking; therefore, existing 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

166

procedures should not be further complicated by this rule. The rule only provides a 

definition for “waters of the U.S.” The rule does not affect the CWA statute in 

which authorization may be required for discharges of dredged and/or fill material 

into waters of the U.S., or other activities in jurisdictional waters of the U.S. such as 

NPDES permits Section 401 certification, water quality standards or Section 311 

requirements which require authorization. The final rule was developed to increase 

CWA program predictability and consistency by increasing clarity as to the scope of 

“waters of the United States” protected under the Act. Definitions of certain terms 

are provided for the first time (e.g. tributary), or are further clarified (e.g. 

adjacent). The final rule provides for certain categories of waters that are 

jurisdictional by rule, which will result in a more efficient process. See the updated 

Economic Analysis for additional discussion.

Virginia Coal and Energy Alliance, Inc. (Doc. #18016)

12.215 The net effect of the Proposal in its current form is a substantial broadening of 

jurisdiction over ditches. Altering the jurisdictional status of the many natural and manmade ditches that dominate the SVC landscape would subject mine operators to 

duplicative and unnecessary permitting obligations. Construction of surface mine bench 

ponds and sediment ponds is already generally subject to 404 permitting, and outfalls 

from the ditches draining them require NPDES permits under CWA section 402. The 

Proposed Rule would add an absurd and unworkable layer of complexity to this by 

making the drainage ditches themselves also subject to CWA jurisdiction (both 404 and 

402). As noted above, these ditches must be frequently altered for maintenance or 

operational reasons or to ensure compliance under SMCRA. In fact, the federal SMCRA 

regulations specifically authorize and direct mine operators to divert flow from mined 

areas. These regulations require, for instance, that temporary diversions be removed 

promptly when no longer needed. See 30 C.F.R. s. 81643. (p. 6-7)

Agency Response: See Summary Response. The final rule clarifies the ditch 

exclusions along with additional excluded waters in paragraph (b). See the 

preamble section on “Waters and Features That Are Not Waters of the U.S.” for 

further discussion. In addition, see the exemptions for certain ditch maintenance 

activities under section 404(f)(1) of the Clean Water Act and the Corps nationwide 

general permits which may include some of the activities described above. 

Indiana Coal Council (Doc. #18495)

12.216 Indiana coal mine operations are dynamic in that modifications to surface water control 

plans must be implemented on occasion dependent upon factors such as acquisition of 

additional properties, market conditions that provide for either mining additional reserves 

or market conditions that may make mining of all planned reserves unachievable, and a 

plethora of other factors. Modifications to plans must occur as a result and be approved 

by the surface mining authority prior to construction. The necessity to obtain 

jurisdictional determinations and obtain necessary approvals for non-traditionally 

jurisdictional waters would cause significant delay. In some cases, this could lead to 

temporarily ceasing operations in order to obtain necessary regulatory permits. This in 

turn would cause the layoff of miners in the interim putting a strain on their economic 

wellbeing as well as that of the company. (p. 1)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

167

Agency Response: See Summary Response. The agencies believe the final rule 

will result in increased clarity and certainty regarding the identification of “waters 

of the U.S.” The agencies received many helpful comments on the proposed rule 

which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public. None of the existing procedures, permitting 

mechanisms, efficient permitting tools such as general permits, or activity 

exemptions will be modified as a result of this rulemaking; therefore, existing 

procedures should not be further complicated by this rule. The final rule was 

developed to increase CWA program predictability and consistency by increasing 

clarity as to the scope of “waters of the United States” protected under the Act. 

Definitions of certain terms are provided for the first time (e.g. tributary), or are 

further clarified (e.g. adjacent). The final rule provides for certain categories of 

waters that are jurisdictional by rule, which will result in a more efficient process. 

See the updated Economic Analysis for additional discussion.

Coastal Louisiana Levee Consortium (Doc. #19324)

12.217 (...) with more WOTUS dotting the landscape, more section 404 permits will be needed. 

Section 404 permits are federal “actions” that trigger additional companion statutory 

reviews by agencies, other than 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 additional reviews, place small businesses in a no 

win situation, as they lead to higher costs overall and greater risks that can ultimately 

jeopardize a project. The potential effect of the proposed rule directly conflicts with the 

Administration’s stated commitment to expedite infrastructure projects. (p. 4)

Agency Response: See Summary Response. While it is the responsibility of the 

Corps as the agency evaluating permit applications under section 404, to determine 

if Endangered Species Act and the National Historic Preservation Act requirements 

are being met, there are cases where these laws or other federal, state or local laws 

may still require review absent a CWA action. The 404 permit action does not 

remove the requirement to get other permits, if required by law. Obtaining a 

jurisdictional determination from the agencies does not trigger Section 7 of the 

Endangered Species Act, a federal action does, and a section 404 permit is a federal 

action. However, private landowners are also required to comply with Section 10 of 

the Endangered Species Act absent a federal action. The agencies work to ensure 

this compliance with other federal laws is completed in the most efficient and 

effective manner, and may include programmatic agreements or local operating 

procedures to streamline the process.

Halliburton Energy Services (Doc. #19458)

12.218 HESI affiliates have several (...) operations in the western United States that would be 

(...) affected. In some Corps districts, these HESI operations already face 12 to 18 

months of delay just for a jurisdictional determination, though one district manages to 

make determinations based on breaks in the OHWM in approximately two months. With 

the expansion of jurisdiction that would be triggered by the proposed rule, the work load 

for the Corps districts would increase significantly and these delays would undoubtedly 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

168

get worse, to say nothing of the delays that would be associated with the processing of 

permit applications. (p. 6)

Agency Response: See Summary Response. The scope of regulatory jurisdiction 

in this rule is narrower than that under the existing regulation. Fewer waters will 

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

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

categories such as tributaries. The final rule was developed to increase CWA 

program predictability and consistency by increasing clarity as to the scope of 

“waters of the United States” protected under the Act. Definitions of certain terms 

are provided for the first time (e.g. tributary), or are further clarified (e.g. 

adjacent). The final rule provides for certain categories of waters that are 

jurisdictional by rule, which will result in a more efficient process. The agencies 

believe with the clarity and certainty provided in the rule that there will be 

efficiencies gained in making jurisdictional determinations. See the updated 

Economic Analysis for additional discussion.

12.219 (...) what certainty is being provided [in the proposed rule] 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 the 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. 11)

Agency Response: See Summary Response. The scope of regulatory jurisdiction 

in this rule is narrower than that under the existing regulation. Fewer waters will 

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

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

categories such as tributaries. The final rule clarifies additional waters and features 

excluded from jurisdiction. See the preamble section on “Waters and Features That 

Are Not Waters of the U.S.” for further discussion. 

Family Farm Alliance (Doc. #1431)

12.220 The proposed rule will replace the definition of “navigable waters” and “waters of the 

United States” in the regulations for all CWA programs, including section 404 discharges 

of dredge or fill material, the section 402 NPDES permit program, the section 401 state 

water quality certification process, and section 303 water quality standards and total 

maximum daily load programs. We do not believe the agencies have truly considered the 

complex implications that this proposed rule will have for the various CWA programs. 

(p.3)

Agency Response: See Summary Response. The agencies understand that the 

definition of “waters of the U.S.” applies to all CWA programs. The rule only 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

169

provides a definition for “waters of the U.S.” The rule does not affect the CWA 

statute in which authorization may be required for discharges of dredged and/or fill 

material into waters of the U.S., or other activities in jurisdictional waters of the 

U.S. such as NPDES permits Section 401 certification, water quality standards or 

Section 311 requirements which require authorization. The agencies modified the 

final rule from the proposed rule in response to comments received in order to 

ensure unintended effects to those other CWA programs were reduced or 

eliminated. The Economic Analysis provides costs/benefits and predicted change in 

jurisdiction for all CWA programs. 

Montana Wool Growers Association (Doc. #5843)

12.221 The CWA requires states to identify all navigable waters within state boundaries and 

determine water quality standards for those waters. 33 U.S.C.§§ 1313(d), 1315, 1329. 

Under 33 U.S.C. § 1315, each State must “prepare and submit a report [containing] ... a 

description of the water quality of all .navigable waters in such State “ 33 U.S.C. § 

1315(b)(l} (emphasis added). If, as suggested in the Proposed Rule, “navigable waters”

included ephemeral tributaries, waters connected by subsurface flow, and ditches, states 

would have the impossible burden of listing every qualifying water with a periodic 

surface or subsurface hydrologic connection to a Section (a)(I) through (a)(3) water. The 

CWA and its regulations do not provide framework for such an extensive review of state 

waters, nor do they describe how states would determine water quality standards for 

water bodies that contain surface water for only a few months or weeks each year. The 

lack of framework and the impossibility of the task demonstrate the CWA was not 

written to encompass such waters. (p. 4)

Agency Response: The rule does not change existing CWA regulatory 

requirements and processes for the various CWA regulatory and permitting 

programs, including the development of water quality standards. The final rule 

includes a revised and expanded exclusion for ditches, which covers most ephemeral 

and intermittent ditches. See summary response 6.2: Excluded ditches, for more 

information. States will continue to have discretion to design and implement

ambient surface water monitoring strategies. 

National Farmers Union (Doc. #6249)

12.222 The agencies should also make clear in the final rule that any wetland determination 

made by the Department of Agriculture’s NRCS will be considered final and ruling. 

While NRCS wetlands determinations are not jurisdictional determinations, the ability to 

rely on NRCS’ decisions regarding the presence of a wetland would increase clarity for 

the regulated community, reduce the agencies’ administrative burden and prevent 

inconsistent wetland determination. (p. 8)

Agency Response: NRCS wetland determinations are completed for a different 

purpose than jurisdictional determinations completed by the Corps of Engineers 

under section 404 of the Clean Water Act, but are often reviewed when determining 

jurisdiction for the Clean Water Act. Only the EPA and the Corps, as well as 

applicable states and tribes, have authority to determine jurisdiction under the 

Clean Water Act. See the memorandum dated February 2005 entitled, “Guidance 

on Conducting Wetland Determinations for the Food Security Act of 1985 and 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

170

Section 404 of the Clean Water Act,” for further information. The agencies will 

continue to minimize duplication where possible while recognizing the differences in 

the purpose and statutory language of the laws. 

San Joaquin Farm Bureau Federation (Doc. #8317)

12.223 The means of enforcement is also a source of significant concern. Delegating 

enforcement to federal agencies with unilateral authority to issue cease and desist orders 

without providing adequate due process is unconstitutional. When cease and desist 

orders are issued, growers are put in the position of being assumed guilty until they prove 

themselves innocent. Meanwhile, the farmer has to halt operations under the cease and 

desist, putting them at a financial loss. This unconstitutionally shifts the burden of proof 

to the farmer when it clearly should lie with the organization that has accused him or her 

of the violation, and then the farmer should be provided with notice and a hearing. (p. 2)

Agency Response: See Summary Response. The clarity and certainty provided in 

the final rule will result in better identification of what is/is not waters of the U.S., 

which may result in reduced enforcement actions for unauthorized activities and 

reduced opportunity for litigation based on what is/is not a waters of the U.S. The 

Corps current regulations allow an affected party to appeal an approved 

jurisdictional determination, permit applications denied with prejudice, and 

declined permits. Please see 33 CFR Part 331 – Administrative Appeal Process for 

further information. As of the date of publication of the final rule, approved 

jurisdictional determinations are not considered “final agency action” and therefore 

cannot legally be challenged under the Administrative Procedures Act. The 

agencies are developing guidance to facilitate effective, consistent, and efficient 

implementation of the final rule once it becomes effective. The agencies strive to 

achieve consistency across the country in all districts and regions in application of 

the rule for jurisdictional determinations. The agencies also recognize that there 

are variations that occur in geography, hydrology, climate, etc., which affect 

jurisdictional determinations. The initial phase of implementing the rule will 

require education and training for agency staff as well as other stakeholders and the 

regulated public. This training and outreach will be regionally-based to ensure 

appropriate consideration is given to ecoregional variation and to ensure consistent 

and efficient implementation of the rule. 

Maryland Farm Bureau (Doc. #10755)

12.224 In addition to raising serious legal issues, the proposed rule fails to provide clarity or 

predictability, and raises practical concerns with regard to how the rule will be 

implemented. The proposed rule will result in duplicative and incongruent regulatory 

requirements that are inconsistent with the purpose and structure of the Act and have not 

been adequately considered by the agencies. (p. 1)

Agency Response: See Summary Response. The agencies understand that the 

definition of “waters of the U.S.” applies to all CWA programs. The agencies 

modified the final rule from the proposed rule in response to comments received in 

order to ensure unintended effects to those other CWA programs were reduced or 

eliminated. The Economic Analysis provides costs/benefits and predicted change in 

jurisdiction for all CWA programs. The agencies are developing guidance to 
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171

facilitate effective, consistent, and efficient implementation of the final rule once it 

becomes effective. The agencies strive to achieve consistency across the country in 

all districts and regions in application of the rule for jurisdictional determinations. 

The agencies also recognize that there are variations that occur in geography, 

hydrology, climate, etc., which affect jurisdictional determinations. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public. This training and outreach 

will be regionally-based to ensure appropriate consideration is given to ecoregional 

variation and to ensure consistent and efficient implementation of the rule. 

Hancock County (Indiana) (Doc. #11980)

12.225 The rule also has the potential to add significant delays in permitting. Many of the 

projects undertaken by farmers and government are to address emergency situations such 

as when a road washes out or significant erosion threatens to harm private property. 

Waiting on the permitting process will only add to the potential harm to both people and 

property. As individuals responsible for the safety of others, local government will be 

jeopardized in its ability to serve its constituents. (p. 1)

Agency Response: See Summary Response. None of the existing procedures, 

permitting mechanisms, efficient permitting tools such as general permits, or 

activity exemptions are modified as a result of this rulemaking. The Corps 

regulations define an “emergency” under the nationwide permit program as “a 

situation which would result in an unacceptable hazard to life, a significant loss of 

property, or an immediate, unforeseen, and significant economic hardship if 

corrective action requiring a permit is not undertaken within a time period less than 

the normal time needed to process the application under standard procedures.” In 

emergency situations, Corps Division Engineers, in coordination with the Corps 

District Engineers, are authorized to approve special processing procedures to 

expedite permit issuance. The Corps also uses alternative permitting procedures, 

such as general permits and letters of permission, when appropriate, to expedite 

processing of permit applications for emergencies. The Corps emergency 

permitting procedures can be found in 33 CFR 325.2(e). Certain nationwide 

permits do not require pre-construction notification and such activities can be 

completed without notification as long as they comply with the terms and conditions 

of such permits. In addition, certain discharges of dredged and/or fill material are 

exempt from regulation under section 404(f)(1)(b) under the Clean Water Act that 

are “for the purpose of maintenance, including emergency reconstruction.”

United FCS (Doc. #12722)

12.226 Because the proposed rule has broad and poorly defined categories of features that are 

WOTUS, this will result in large numbers of features on or near farms everywhere in the 

U.S. potentially coming within the definition of WOTUS. This will leave farmers and 

ranchers unable to determine with certainty just how much of their farms or ranches are 

directly subject to the CWA. (p. 3)

Agency Response: See Summary Response. The final rule clarifies the additional 

excluded waters and features under the Clean Water Act. See the preamble section 

on “Waters and Features That Are Not Waters of the U.S.” for further discussion. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

172

The final rule does not affect the existing statutory activity-based exemptions under 

Section 404(f)(1) of the Clean Water Act, including those for the construction of 

irrigation ditches and the maintenance of irrigation and drainage ditches. In 

addition, the Corps nationwide general permit program includes several general 

permits for discharges associated with ditch activities, some of which may not 

require pre-construction notification for expeditious review and efficiency in 

processing verifications under Section 404 of the Clean Water Act. 

Bayless and Berkalew Co. (Doc. #12967)

12.227 There are example after example of contradictory statements throughout the preamble 

and proposed rule. This will make defending the exemptions very difficult. The agencies 

have given no indication to agricultural producers how they plan to defend these 

exemptions. (p. 4)

Agency Response: See Summary Response. The final rule clarifies the additional 

excluded waters and features under the Clean Water Act. See the preamble section 

on “Waters and Features That Are Not Waters of the U.S.” for further discussion. 

The final rule does not affect the existing statutory activity-based exemptions under 

Section 404(f)(1) of the Clean Water Act, including those for the construction of 

irrigation ditches and the maintenance of irrigation and drainage ditches. In 

addition, the Corps nationwide general permit program includes several general 

permits for discharges associated with ditch activities, some of which may not 

require pre-construction notification for expeditious review and efficiency in 

processing verifications under Section 404 of the Clean Water Act. 

Nebraska Cattlemen (Doc. #13018)

12.228 The §303 program will be impacted by the increased number of water bodies subject to 

water quality standards. The NDEQ has been monitoring and assessing water bodies for 

forty years based on its interpretation of the state definition of waters of the state. EPA 

has approved the state program and, thus, has approved the definition. The addition of 

more water bodies will add to the state burden without additional resources which will 

lead to the need for more state resources. In addition, the water bodies that are subject to 

state assessment will also need to be evaluated to determine if they meet an assigned 

beneficial use. If the beneficial use is not being met, the water body may be impaired and 

need to be listed on the §303(d) list of impaired water bodies. That would trigger the 

requirement that a total maximum daily load (TMDL) be prepared which lays out 

“reasonable assurances” to bring the water body out of impaired status.

Nebraska Cattlemen comment that additional TMDLs will put additional burdens on 

producers. If EPA’s expanded jurisdictional reach is realized under the propose rule, 

TMDLs may be written that include reasonable assurances that incorporate regulatory 

controls over newly defined CWA waters. Under the “other waters” definition, there 

could be entire watersheds that are subject to TMDLs. Nebraska Cattlemen comments 

that it is an unwarranted reach of regulatory authority beyond the intent of the CWA or 

the holdings of the Supreme Court. 

The federal encroachment into the §303 process is another illustration of the erosion of 

cooperative federalism. NDEQ has developed a successful model of a voluntary process 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

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whereby priority watersheds can be protected using state, local, and federal resources to 

leverage private investment. There have been very successful efforts in Nebraska and 

around the country that are collaborative watershed projects using state, local, federal, 

and private (agricultural producers and land owner) resources. If these same efforts had 

been under a mandatory regulatory program, the results would have been much less 

successful. In fact, an unintended consequence of this proposed rule would be to create a 

disincentive for producers to install conservation measures at their operations. Why 

install conservation terraces if there is a question as to how that land feature will be 

viewed under the new rule? Why would a producer voluntarily try new conservation 

practices if they would raise the jurisdictional issue and potentially require a permit? (p. 

15)

Agency Response: The final rule does not alter implementation of the Section 303 

process. Overall, the scope of regulatory jurisdiction in this rule is narrower than 

that under the existing regulation. Fewer waters will be defined as “waters of the 

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

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

and adjacent waters, and includes provisions for a number of excluded waters, some 

of which are excluded by rule for the first time. For further discussion of 

exclusions, see summary responses for Topic 6.2: Excluded ditches and Topic 7: 

Features and waters not jurisdictional. Therefore, the EPA does not anticipate a 

significant increase the water bodies for which water quality standards are 

developed, and for which TMDLs may be established. For additional information 

about jurisdiction of “other” waters, see summary response for Topic 4. See the 

Technical Support Document Section I for a complete discussion of the legal basis 

for the rule. 

The rule is consistent with collaborative watershed prioritization projects and 

voluntary conservation practices, and the agencies do not anticipate that the rule 

will discourage or prevent their ongoing implementation.

Milk Producers Council (Doc. #13022)

12.229 As set forth in the previous comments, the rule so broadly encompasses any water feature 

on a farm that it leaves almost no acreage exempt from the rule. Therefore farmers 

would have to meet permit requirements for undertaking almost any activity on their 

farming operation, including the managing of storm water and drainage ditches and other 

small water impoundments. This would result in extensive costs, delays and interruptions 

to farmers that would severely affect them economically. (p. 2)

Agency Response: See Summary Response. The final rule clarifies the additional 

excluded waters and features under the Clean Water Act. See the preamble section 

on “Waters and Features That Are Not Waters of the U.S.” for further discussion. 

The final rule does not affect the existing statutory activity-based exemptions under 

Section 404(f)(1) of the Clean Water Act, including those for the construction of 

irrigation ditches and the maintenance of irrigation and drainage ditches. In 

addition, the Corps nationwide general permit program includes several general 

permits for discharges associated with ditch activities, some of which may not 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

174

require pre-construction notification for expeditious review and efficiency in 

processing verifications under Section 404 of the Clean Water Act. 

Missouri Agribusiness Association (Doc. #13025)

12.230 In March 2014, the Missouri Department of Natural Resources (MDNR) submitted new 

and revised WQS to EPA. This submittal included state regulations that use the National 

Hydrography Database (NHD) for classification of enhanced 1:100,000K scale NHD 

streams. By expanding WOTUS to ephemeral, headwater streams, the proposed rule 

would expand WOTUS jurisdictional waters beyond 1:100,000K and even beyond the 

1:24,000K scale which was rejected by the MDNR. (p. 7)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. 

Monterey County Farm Bureau (Doc. #13045)

12.231 There are existing requirements already in place for Central Coast farming and ranching 

operations for water quality, both surface and groundwater, administered by our State’s 

regional water quality control board. These are a set of compliance requirements relating 

to irrigation tailwater discharges, percolation to groundwater basins, sediment 

constituents in water, and the use of nitrogen in agricultural operations. This layer of 

regulatory burden is resulting in additional costs for farmers and ranchers as they adopt 

revised on-farm methods of production and irrigation management controls; the costs of 

this water quality regulatory process impacts the bottom line of farming economics, 

particularly in a marketplace where these costs cannot be passed along to consumers. 

The end result is that small farm operations are struggling with water quality regulations 

and will ultimately be forced out of production if the economics are not sustainable for 

compliance. Additional burdens of the proposed rule change will certainly contribute to 

the downfall of the small farmer and rancher because they just cannot comply at any 

price. (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 

does not affect any of the exemptions from 404 permitting requirements for normal 

farming activities under 404(f)(1). To further clarify this, the definition for 

“adjacent” in the final rule has been expanded to state that waters subject to 

established, normal farming, silviculture, and ranching activities are not adjacent. A 

number of revised and expanded exclusions may all apply to waters on farmland, 

including certain ditches and waters constructed in dry land. Even where waters are 

covered by the CWA, the agencies have adopted many streamlined regulatory 

requirements to simplify and expedite compliance through the use of measures such 

as general permits and standardized mitigation measures. For further discussion of 

exclusions, see summary responses for Topic 6.2: Excluded ditches and Topic 7: 

Features and waters not jurisdictional.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

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North American Meat Association (Doc. #13071)

12.232 The proposed rule is problematic not only because it would change the absence of any 

Congressional action, but it is littered with vague terms that provide little or no guidance 

for both regulated entities and regulators. These ambiguities will lead to subjectivity in 

applying the rule; uncertainty, delay, and significant expense for regulated entities; and 

ultimately to unnecessary and wasteful litigation. (p. 5-6)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. Definitions of 

certain terms are provided for the first time (e.g. tributary), or are further clarified 

(e.g. adjacent). The final rule provides for certain categories of waters that are 

jurisdictional by rule, which will result in a more efficient process. See the updated 

Economic Analysis for additional discussion.

12.233 Throughout the preamble to the proposed rule and in its supporting documentation, the 

agencies focus almost exclusively on the change’s impacts on the Section 404 program. 

But the agencies propose to substitute their new definition of “waters of the United 

States” throughout the CWA regulations, which will cause broadened scope and 

additional obligations for all CWA programs. The term “navigable waters” is used 

throughout the CWA and its regulations 135 times. The term “waters of the United 

States” is used 98 times. The definition of “waters of the United States” dictates the 

scope of the CWA’s programs. 

Despite that fact, the agencies have failed to consider the significant implications of this 

major change on all of the CWA’s programs. Nowhere in the preamble to the proposed 

rule is any discussion of the impacts to the Section 303 water quality standards (WQS) 

and total maximum daily load (TMDL), Section 311 oil spill prevention, Section 401 

certification, Section 404, and Section 402 (e.g., individual permits, industrial stormwater 

general permits, construction stormwater general permits, pesticide general permits) 

programs. Instead, some are discussed only as evidence why the agencies’ expanded 

scope of regulation under the proposed definition is reasonable. See, e.g., 79 Fed. Reg. at 

22,254-59 (arguing that the history of the WQS program demonstrates that the CWA 

regulates interstate waters without reference to navigability)65. 

As all industries affected by the CWA are aware, even with the current jurisdictional 

reach the agencies cannot process permits in a timely fashion. The substantially 

expanded jurisdiction proposed by the rule will require considerable additional federal 

and state resources to timely process permit applications and otherwise implement the 

affected programs. In addition, considerably increased agency budgets will be required 

to meet these requirements. Without consideration of these practical impacts, the 

proposed rule sets the agencies up for failure, and sets industry up for increased delays 

 

65 Of course, such an ends justify the means argument is unsupportable. See Dir., Office of Workers’ Compensation 

Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 135-136 (1995) (such arguments are the 

“last redoubt of losing causes”; no law pursues its purpose at all costs; instead, every law “proposes, not only to 

achieve certain ends, but also to achieve them by particular mean” set out in the text). 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

176

and expense in project development and increased expenses for navigating any project 

through requisite CWA permitting. (p. 10-11)

Agency Response: See Summary Response. The goal of the CWA is to protect the 

chemical, physical, and biological integrity of our nation’s waters. The agencies 

have been implementing this mission since the inception of the CWA. The 

additional costs that may be incurred as a result of the rule were taken into account 

during its formulation; however, the updated Economic Analysis indicates the 

benefits of the rule outweigh any associated costs placed on the regulated public and 

on the agencies themselves. The scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries. The agencies understand that the definition of “waters of the U.S.” 

applies to all CWA programs. The rule only provides a definition for “waters of the 

U.S.” The rule does not affect the CWA statute in which authorization may be 

required for discharges of dredged and/or fill material into waters of the U.S., or 

other activities in jurisdictional waters of the U.S. such as NPDES permits Section 

401 certification, water quality standards or Section 311 requirements which 

require authorization. The agencies modified the final rule from the proposed rule 

in response to comments received in order to ensure unintended effects to those 

other CWA programs were reduced or eliminated. The Economic Analysis provides 

costs/benefits and predicted change in jurisdiction for all CWA programs. The final 

rule is a definitional rule that clarifies the scope of “waters of the United States” 

consistent with the Clean Water Act (CWA), Supreme Court precedent, and science. 

The final rule does not establish any regulatory requirements or change 

implementation of CWA programs or processes, which are outside the scope of this 

rule. Overall, the scope of regulatory jurisdiction in this rule is narrower than that 

under the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries and 

adjacent waters, and includes provisions for a number of excluded waters, some of 

which are excluded by rule for the first time. In addition, the economic analysis has 

been updated for the final rule. See summary response for Topic 11: Costs/Benefits 

and the Economic Analysis document for further information about economic 

considerations for each program.

12.234 Increased section 404 permitting requirements will subject project proponents to 

additional federal and state environmental compliance burdens. A Corps section 404 

permit decision triggers the National Environmental Policy Act, Coastal Zone 

Management Act, National Historic Preservation Act, and Endangered Species Act 

(ESA).66 Additional requirements and determinations, including environmental 

assessments or impact statements, certifications of consistency with the state’s Coastal 

Zone Management Plan, and section 7 ESA consultation, and consultation with State 

 

66 33 CFR 325.2.
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Historic Preservation Offices, would lengthen delays, increase opportunity costs, increase 

the burdens on federal and State agencies, and increase the overall cost of permits. (p. 12)

Agency Response: While it is the responsibility of the Corps as the agency 

evaluating permit applications under section 404, to determine if Endangered 

Species Act and the National Historic Preservation Act requirements are being met, 

there are cases where these laws or other federal, state or local laws may still 

require review absent a CWA action. The 404 permit action does not remove the 

requirement to get other permits, if required by law. Obtaining a jurisdictional 

determination from the agencies does not trigger Section 7 of the Endangered 

Species Act, a federal action does, and a section 404 permit is a federal action. 

However, private landowners are also required to comply with Section 10 of the 

Endangered Species Act absent a federal action. The agencies work to ensure this 

compliance with other federal laws is completed in the most efficient and effective 

manner, and may include programmatic agreements or local operating procedures 

to streamline the process.

Minnesota Agricultural Water Resource Center (Doc. #14284)

12.235 We remind the agencies that the CWA includes distinctly different approaches to point 

and non-point sources, which is logical given that they are very different. The CWA 

provides for voluntary, incentive-based programs to address non-point sources, but the 

proposal does not provide clear continuation of this approach. (p. 2)

Agency Response: See Summary Response. There are no changes in voluntary, 

incentive-based programs to address non-point sources associated with this rule, or 

changes to continuation of the CWA section 319 program.

Kentucky Farm Bureau Federation (Doc. #14567)

12.236 (The) rule would not only apply to Section 404, dredge and fill permit requirements, it 

clearly states “the agencies propose to define the waters of the United States for all 

sections (including 301, 311, 401, 402, and 404) of the CWA.” This is an attempt to 

significantly expand the jurisdiction scope of the Agencies far beyond the intent of 

Congress, or within the constraints imposed by the U.S. Supreme Court. (p. 1).

Agency Response: See Summary Response. The agencies understand that the 

definition of “waters of the U.S.” applies to all CWA programs. The rule only 

provides a definition for “waters of the U.S.” The rule does not affect the CWA 

statute in which authorization may be required for discharges of dredged and/or fill 

material into waters of the U.S., or other activities in jurisdictional waters of the 

U.S. such as NPDES permits Section 401 certification, water quality standards or 

Section 311 requirements which require authorization. The agencies modified the 

final rule from the proposed rule in response to comments received in order to 

ensure unintended effects to those other CWA programs were reduced or 

eliminated. The Economic Analysis provides costs/benefits and predicted change in 

jurisdiction for all CWA programs. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

178

American Farmland Trust (Doc. #14576)

12.237 We also urge EPA and the Corps to develop a section 404 general use permit for 

agriculture that would facilitate on farm management decisions by removing the need for 

a lengthy and costly individual permitting process. (p. 2)

Agency Response: See Summary Response. The rule only provides a definition 

for “waters of the U.S.” The rule does not affect the CWA statute in which 

authorization may be required for discharges of dredged and/or fill material into 

waters of the U.S., or other activities in jurisdictional waters of the U.S. which 

require authorization. In addition, the rule does not affect activities that are 

currently exempt from CWA regulation. The rule also does not affect permitting 

tools such as the use of general permits that the Corps implements for expeditious 

review and efficiency in processing permit applications for discharges of dredged 

and/or fills material into waters of the U.S. The rule will improve consistency and 

predictability for all CWA programs. The rule will provide needed clarity 

regarding jurisdictional determinations, thus reducing uncertainties and delays. 

The final rule clarifies additional excluded waters and features, including certain 

ditches. See the preamble section on “Waters and Features That Are Not Waters of 

the U.S.” for further discussion.

California Association of Winegrape Growers (Doc. #14593)

12.238 The Proposed Rule improperly expands the reach of the CWA by broadly interpreting 

“waters of the United States” in order to inflate the definition to cover waters never 

previously deemed jurisdictional under existing regulations, previous guidance 

documents, or federal case law. The Proposed Rule then extends that interpretation to all 

programs authorized under the Act, including the Section 402 National Pollutant 

Discharge Elimination System (“NPDES”) permit program, the Section 311 oil spill 

program, the water quality standards and total maximum daily load programs under 

Section 303, and the Section 401 state water quality certification process. The existing 

2003 and 2008 guidance documents are limited to CWA Section 404 determinations. 

Agency Response: See Summary Response. The agencies understand that the 

definition of “waters of the U.S.” applies to all CWA programs. The agencies 

modified the final rule from the proposed rule in response to comments received in 

order to ensure unintended effects to those other CWA programs were reduced or 

eliminated. The Economic Analysis provides costs/benefits and predicted change in 

jurisdiction for all CWA programs. The agencies believe the final rule will result in 

increased clarity and certainty regarding the identification of “waters of the U.S.” 

The scope of regulatory jurisdiction in this rule is narrower than that under the 

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

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

important qualifiers on some existing categories such as tributaries. The agencies 

received many helpful comments on the proposed rule which resulted in refinement 

of the final rule to provide further clarity and certainty to the regulated public. 

None of the existing procedures, permitting mechanisms, efficient permitting tools 

such as general permits, or activity exemptions will be modified as a result of this 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

179

rulemaking; therefore, existing procedures should not be further complicated by 

this rule.

Wisconsin Pork Association (Doc. #14745)

12.239 There also is the uncertainty and liability from the likelihood that farmers will face 

citizen suits alleging that drainage features are in fact tributaries. Those suits will be able 

to claim, following the logic of the proposed rule, that such features not only are directly 

WOTUS but that the agricultural fields surrounding them have a “significant nexus” to a 

WOTUS and are, therefore, critical to the “chemical, physical and biological integrity” of 

the nation’s jurisdictional waters. Further following the logic of the proposed rule and 

the structure of the CWA, these suits also likely will claim that such drainage features 

require their own CWA “water quality standards,” that they must be “assessed” to 

determine whether they are “attaining” their “designated use” and if “impaired,” must 

have a “TMDL” applied to them. Altogether, of course, this will fundamentally alter the 

manner in which farmers farm, removing significant tools farmers have used to make 

America the world’s leading agricultural producer. It also will change how lenders assess 

potential risk, both from direct litigation and potential enforcement actions as well as 

from crop failures because of the lack of flexibility that farmers will have to address the 

impacts of constantly changing weather patterns on their crops and animals. (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 

contains revised and expanded exclusions for many ephemeral and intermittent 

ditches. See summary responses in Topic 6, sections 6.0 and 6.2 for a discussion of 

the regulation and exclusion of ditches. In addition, the definition for “adjacent” in 

the final rule has been expanded to state that waters subject to established, normal 

farming, silviculture, and ranching activities are not adjacent. Drainage features 

that are not waters of the U.S. do not have water quality standards or designated 

uses, and are not subject to the Clean Water Act. 

Windsong Farm Golf Club (Doc. #14746)

12.240 This rule would make it more difficult to control harmful pests on private and public 

property if any water is near the area. Professional applicators and homeowners would 

have to obtain permits to protect properties from pests like ticks, which carry harmful 

diseases like Lyme disease. (p. 2)

Agency Response: This rule is a definitional rule, intended to clarify the scope of 

waters subject to the CWA, and does not change existing CWA permitting 

requirements regarding the application of pesticides, which is beyond the scope of 

the rule. Only the direct discharge of pesticides into a water of the U.S. requires a 

CWA permit. The EPA has a pesticides general permit (PGP) for areas in which 

EPA is the NPDES permitting authority, which covers many discharges. In 

addition, all states with permitting authority have a PGP. Pesticides and herbicides 

will continue to be able to be applied consistent with their labeling.

12.241 Under the rule, EPA could compel states to place restrictions on the amount or type of 

fertilizer that can be used on public and private property including individual home 

lawns, gardens, parks and golf courses. (p. 2)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

180

Agency Response: This rule is a definitional rule, intended to clarify the scope of 

waters subject to the CWA, and does not change existing CWA permitting 

requirements regarding the application of fertilizer, which is beyond the scope of 

the rule. The CWA does not regulate lawns, gardens, golf courses, or other features 

that are not waters of the U.S. Pesticides and herbicides will continue to be able to 

be applied consistent with their labeling.

12.242 The expanded scope of the Clean Water Act could leave landowners and professionals 

applying fertilizers and pesticides vulnerable to nuisance lawsuits. (p. 2)

Agency Response: Overall, the scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

part because the rule includes provisions for a number of excluded waters, some of 

which are excluded by rule for the first time. See summary responses for Topic 6, 

section 6.2: Excluded ditches and Topic 7: Features and waters not jurisdictional for 

further discussion of excluded waters. Pesticides and herbicides will continue to be 

able to be applied consistent with their labeling.

12.243 Well-maintained lawns are important for the environment and properly-cared for lawns 

reduce runoff into nearby waters. One of the unintended consequences of EPA’s

proposed rule could be increased erosion and run-off into many connected water bodies. 

(p. 2)

Agency Response: The agencies disagree that the rule will prevent the 

maintenance of lawns. The CWA does not regulate lawns, gardens, golf courses, or 

other features that are not waters of the U.S.

12.244 Uncontrolled growth of poison ivy, poison oak, and poison sumac poses risk to children 

and adults alike as more than one-half of the U.S. population is allergic to these noxious 

weeds, which must be controlled with herbicides. (p. 2)

Agency Response: The rule does not prevent the use of herbicide. Only discharges 

of herbicide directly into waters of the U.S. require an NPDES permit. The EPA has 

a pesticides general permit (PGP) for areas in which EPA is the NPDES permitting 

authority, which covers many discharges. In addition, all states with permitting 

authority have a PGP. Pesticides and herbicides will continue to be able to be 

applied consistent with their labeling.

Missouri Soybean Association (Doc. #14986)

12.245 The rule will expand jurisdiction of federal waters thus expanding the scope, breadth and 

extent of state agency water programs. In Missouri, the jurisdictional state waters which 

are defined as “Waters of the State” in Missouri stable and regulation, includes the 

federal term “Waters of the US”. This rule will vastly scope of the Missouri’s “Waters of 

the State” and undoubtedly trigger an increased public and cost of complying with state 

water quality programs, a cost which was never considered or quantified by EPA. In 

addition, in 2013, Missouri finalized a quantitative list of water bodies in the state water 

quality standards that would be subject to Clean Water Act designated uses. We believe 

this rule will ultimately jeopardize and undermine the painstaking work completed by 

Missouri stakeholders and the Missouri Department of Natural Resources. (p. 8)
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181

Agency Response: Overall, the scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries and adjacent waters, and includes provisions for a number of excluded 

waters, some of which are excluded by rule for the first time. For further discussion 

of exclusions, see summary responses for Topic 6.2: Excluded ditches and Topic 7: 

Features and waters not jurisdictional. In addition, see summary response for Topic 

11: Costs/Benefits and the Agencies Economic Analysis document for details on the 

estimated indirect costs and benefits of the rule for each CWA program. 

12.246 But impacts at the state level do not stop there. It is believed that the proposed rule will 

also impact state water pollution permitting as well as its 401 certification. It also 

presents the real possibility that states will be left picking up the burden and costs of 

addressing and assessing the water quality in thousands of addition miles of streams, 

ditches and water bodies, determining whether they are impaired, listing them on the 

3036 list, and writing TMDLs. (p. 8)

Agency Response: Section 401 certification is based on the state water quality 

standards which by definition apply to waters identified by the state. For more 

information, see summary response for Topic 12, Section 12.2 - 401. The rule also 

identifies waters that are important to regulate due to their collective biological, 

chemical, and physical connectivity to downstream waters. The CWA requires the 

protection of waters of the U.S., which includes development of water quality 

standards and TMDLs where appropriate. States and tribes continue to have the 

authority to set water quality standards and designate regulated waters within their 

boundaries. States and tribes will also continue to have discretion to design and 

implement ambient surface water monitoring strategies and propose waters for the 

303(d) and TMDL programs. 

Jackson Family Wines (Doc. #15019)

12.247 The Burden of Inconsistency/Duplication of Process and Regulation. Farmers currently 

have to deal with multiple regulations that address the same issue. As an example the 

Endangered Species Act is regulated both by Federal and State agencies. These agencies 

(the US Fish & Wildlife Service and the California Department of Fish & Wildlife) have 

inconsistent processes for compliance. Similarly, regulations around Federal and State 

Waters usually require consultation with multiple agencies necessitating numerous and 

expensive permits to carry out an activity. In the case of jurisdictional waters, the Army 

Corps of Engineers, the Regional Water Quality Control Boards, and the California 

Department of Fish & Wildlife all have regulatory authority. Each agency has different 

and expensive processes to achieve common goals resulting in no benefit to resources 

merely increasing burdens upon landowners. This challenge will only be exacerbated by 

adoption of the Rule as the vagueness in definition of terms such as “uplands,”

“floodplain,” “waters,” etc., could easily be interpreted differently by different agencies, 

leading to confusion and additional burdens upon farmers, including an increased risk of 

liability. (p. 1-2)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

182

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. Definitions of 

certain terms are provided for the first time (e.g. tributary), or are further clarified 

(e.g. adjacent). The final rule provides for certain categories of waters that are 

jurisdictional by rule, which will result in a more efficient process. See the updated 

Economic Analysis for additional discussion. The agencies recognize that the state 

and local governments have well-defined and long-standing relationships in 

implementing affected CWA programs and these relationships will not be altered. 

This action will not have substantial direct effects on the states, on the relationship 

between the national government and the states, or on the distribution of power and 

responsibilities among the various levels of government. The final rule does not 

restrict the states’ efforts in developing or implementing statewide permits under 

CWA programs as a result of the rule. The agencies are developing guidance to 

facilitate effective, consistent, and efficient implementation of the final rule once it 

becomes effective. The agencies strive to achieve consistency across the country in 

all districts and regions in application of the rule for jurisdictional determinations. 

The agencies also recognize that there are variations that occur in geography, 

hydrology, climate, etc., which affect jurisdictional determinations. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public. This training and outreach 

will be regionally-based to ensure appropriate consideration is given to ecoregional 

variation and to ensure consistent and efficient implementation of the rule. The 

Corps will continue to work with stakeholders, including partner agencies, to 

identify efficient and effective tools to aid in making jurisdictional determinations. 

See the definitions in paragraph (c) of the final rule for further clarifications. See 

the preamble for additional discussion about the terms used in the final rule. The 

final rule has been revised to reflect concerns received about the proposed rule, 

including the use of terms such as “upland,” and has provided additional clarity as 

to the “floodplain.”

National Alliance of Forest Owners (Doc. #15247)

12.248 The categorical assertion of jurisdiction over all tributaries and adjacent waters, 

particularly ditches and ephemeral streams, poses a significant problem for forestry 

operations subject to best management practices. Designation of all of those features as 

jurisdictional waters will cause considerable confusion as to how forest owners will 

implement best management practices such as buffers along roadside ditches. 

Furthermore, the more waters that are defined as jurisdictional, the more opportunities 

there will be for allegations that certain activities involve point source discharges that are 

not exempted under CWA Sections 404(f) and 402(l). (p. 25)

Agency Response: See Summary Response. In addition, the final rule is not 

changing any of the existing statutory activity-based exemptions under the Section 

404(f)(1) of the Clean Water Act, including those related to normal silviculture 

activities and forest roads. See the Corps nationwide general permits for existing 

general permits related to forestry activities. The final rule clarifies the additional 

excluded waters and features, including certain ditches. See the preamble section on 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

183

“Waters and Features That Are Not Waters of the U.S.” for further discussion. The 

agencies believe the clarity and certainty provided in the rule will result in better 

identification of what is/is not waters of the U.S. which may result in reduced 

enforcement actions for unauthorized activities and reduced opportunity for 

litigation based on what is/is not a water of the U.S. 

12.249 The expansion of jurisdiction under the proposed rule could also trigger the duty under 

Section 303 to establish water quality standards, and possibly total maximum daily loads 

(“TMDLs”), to all newly jurisdictional waters. States (and potentially EPA) would have 

to undertake the burdensome exercise of designating uses for jurisdictional waters and 

then deriving scientifically defensible criteria to protect those uses. Such rulemaking 

proceedings can be time consuming, costly, and generate extensive litigation. The same 

is true with respect to impaired waters listings and the establishment of TMDLs for any 

newly jurisdictional waters that cannot attain applicable water quality standards through 

technology-based effluent limits in NPDES permits. TMDL establishment often requires 

complicated modeling and also often results in protracted litigation. Moreover, an 

impaired waters listing and the regulatory restrictions resulting from the TMDL process 

could adversely impact private forest owners, who must comply with any resulting land 

use restrictions and may see a reduction in their property values.67 (p. 25-26) 

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries and adjacent waters, and includes provisions for a number of excluded 

waters, some of which are excluded by rule for the first time. This final rule 

interprets the CWA to cover those waters that require protection in order to restore 

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

waters, interstate waters, and the territorial seas. The rule will clarify and simplify 

implementation of the CWA consistent with its purposes through clearer definitions 

and increased use of bright-line rules. This rule will not affect the current 

implementation of the various CWA programs such as WQS, TMDL and 

permitting programs. The agencies emphasize that, while the CWA establishes 

permitting requirements for covered waters to ensure protection of water quality, 

these requirements are only triggered when a person discharges a pollutant to the 

covered water. In the absence of a pollutant discharge that would pollute, degrade, 

or destroy a covered water, the CWA does not impose permitting restrictions on the 

use of such water. 

US Dry Bean Council (Doc. #15256)

12.250 The ambiguity of the Proposed Rule put forth by the EPA and the Corps that defines the 

Waters of the U.S. that are protected under the Clean Water Act is concerning to dry bean 

producers because they believe the Corps will use this definition to over-ride state and 

local control of the aforementioned water management activities and subject these 

activities, many of which are occurring on an ongoing basis, to a National Pollutant 

 

67 Cf. Barnum Timber Co. v. EPA, 633 F.3d 894 (9th Cir. 2011).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

184

Discharge Elimination System (NPDES) and/or a Section 404 permitting process. Based 

on past experience with the Corps, dry bean producers believe that if such control is 

gained over routine farming activities by the Corps, many acres of farmland across the 

country will become un-farmable due to the lack of timely water management activities. 

This would occur by rule, without regard to current conditions or science as applied to 

local areas. We ask that the rule stipulate that state and local governmental water 

resource regulatory agencies will continue to be in control of local water resource issues 

pertaining farm land. (p. 1-2)

Agency Response: See Summary Response. The agencies recognize that the state 

and local governments have well-defined and long-standing relationships in 

implementing affected CWA programs and these relationships will not be altered. 

This action will not have substantial direct effects on the states, on the relationship 

between the national government and the states, or on the distribution of power and 

responsibilities among the various levels of government. The agencies are not 

restricting the states’ efforts in developing or implementing statewide permits under 

CWA programs as a result of the rule. The rule only provides a definition for 

“waters of the U.S.” The rule does not affect the CWA statute in which 

authorization may be required for discharges of dredged and/or fill material into 

waters of the U.S., or other activities in jurisdictional waters of the U.S. which 

require authorization. In addition, the rule does not affect activities that are 

currently exempt from CWA regulation including existing statutory activity-based 

exemptions under the Section 404(f)(1) of the Clean Water Act. The rule also does 

not affect permitting tools such as the use of general permits that the Corps 

implements for expeditious review and efficiency in processing permit applications 

for discharges of dredged and/or fills material into waters of the U.S. The rule will 

improve consistency and predictability for all CWA programs. The rule will 

provide needed clarity regarding jurisdictional determinations, thus reducing 

uncertainties and delays. See the Corps nationwide general permits for existing 

general permits related to agricultural activities. The final rule clarifies the 

additional excluded waters and features, including certain ditches. See the 

preamble section on “Waters and Features That Are Not Waters of the U.S.” for 

further discussion.

Weyerhaeuser Company (Doc. #15392)

12.251 The expansion of jurisdiction under the proposed rule could also trigger the duty under 

Section 303 to establish water quality standards, and possibly total maximum daily loads 

(“TMDLs”), to all newly jurisdictional waters. States (and potentially EPA) would have 

to undertake the burdensome exercise of designating uses for jurisdictional waters and 

then deriving scientifically defensible criteria to protect those uses. Such rulemaking 

proceedings can be time consuming, costly, and generate extensive litigation. The same 

is true with respect to impaired waters listing and the establishment of TMDLs for any 

newly jurisdictional waters that cannot attain applicable water quality standards through 

technology-based effluent limits in NPDES permits. TMDL establishment often requires 

complicated modeling and also often results in protracted litigation. Moreover, an 

impaired waters listing and the regulatory restrictions resulting from the TMDL process 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

185

could adversely impact private forest owners, who must comply with any resulting land 

use restrictions and may see a reduction in their property values.68 (p. 14)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries and adjacent waters, and includes provisions for a number of excluded 

waters, some of which are excluded by rule for the first time. This final rule 

interprets the CWA to cover those waters that require protection in order to restore 

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

waters, interstate waters, and the territorial seas. The rule will clarify and simplify 

implementation of the CWA consistent with its purposes through clearer definitions 

and increased use of bright-line rules. This rule will not affect the current 

implementation of the various CWA programs such as WQS, TMDL and 

permitting programs. The agencies emphasize that, while the CWA establishes 

permitting requirements for covered waters to ensure protection of water quality, 

these requirements are only triggered when a person discharges a pollutant to the 

covered water. In the absence of a pollutant discharge that would pollute, degrade, 

or destroy a covered water, the CWA does not impose permitting restrictions on the 

use of such water. 

Kitchen Cabinet Manufacturers Association et al. (Doc. #15418)

12.252 The expansion of jurisdiction under the Proposal could also trigger new obligations under 

CWA Section 303 relating to water quality standards and TMDLs. For example, an 

impaired waters listing and the regulatory restrictions resulting from the TMDL process

could negatively impact private forest owners, who must comply with any resulting land 

use restrictions and may see a reduction in their property values.69 (p. 4)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries and adjacent waters, and includes provisions for a number of excluded 

waters, some of which are excluded by rule for the first time. This final rule 

interprets the CWA to cover those waters that require protection in order to restore 

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

waters, interstate waters, and the territorial seas. The rule will clarify and simplify 

implementation of the CWA consistent with its purposes through clearer definitions 

and increased use of bright-line rules. This rule will not affect the current 

implementation of the various CWA programs such as WQS, TMDL and 

permitting programs. 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 

 

68 Cf. Barnum Timber Co. v. EPA, 633 F.3d 894 (9th Cir. 2011).

69 Cf. Barnum Timber Co. v. EPA, 633 F.3d 894 (9th Cir. 2011).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

186

covered water. In the absence of a pollutant discharge that would pollute, degrade, 

or destroy a covered water, the CWA does not impose permitting restrictions on the 

use of such water. 

New York Farm Bureau (Doc. #15616)

12.253 The definition changes in this rule would increase the difficulty for livestock farms, 

operating under a state or federal CAFO permit, to spread organic fertilizer (manure) onto 

farm fields. This is a sound agricultural practice when applied at an agronomic rate and 

frequency under appropriate field and weather conditions that limits the possibility of any 

runoff. This practice is a key part of New York’s certified CAFO plans and has the 

added benefit of decreasing the use of synthetic fertilizers. However, this practice could 

become too impractical to continue if this rule moves forward, due to a maze of buffer 

zones crisscrossing small farm fields so as to avoid even a drop of manure (considered a 

pollutant) landing in a low-spot or ephemeral drainage now considered a “water of the 

U.S.” – even if that feature is dry at the time. In this case, how does EPA propose 

addressing the nutrient management needs of farms and disposing of this previously 

valuable resource? (p. 4)

Agency Response: See summary response for Topic 12: Section 12.3, for a 

discussion of the issues relating to permitting requirements for the application of 

fertilizer (including manure). In addition, many waters on farm fields qualify for 

exclusions found in paragraph (b) of the final rule. Discharges to waters which are 

excluded from waters of the U.S. would not require a permit. See summary 

responses for 6.2: Excluded ditches and Topic 7: Features and waters not 

jurisdictional, for further discussion of excluded waters.

Oklahoma Grain and Feed Association (Doc. #16067)

12.254 We believe the proposed rule broadens the scope of the CWA jurisdiction well beyond 

constitutional and statutory limits established by Congress and recognized by the U.S. 

Supreme Court. The rule fails to provide clarity or predictability, and raises practical 

concerns with regard to how the rule will be implemented. The agencies have failed to 

consider the significant adverse implications on several CWA programs, including 

Section 404 dredge and fill permitting, Section 402 NPDES permitting, Section 401 

water quality certification, Sections 303, 304, and 305 State water quality standards, and 

Section 311 oil spill prevention. (p. 1)

Agency Response: See Summary Response. The agencies understand that the 

definition of “waters of the U.S.” applies to all CWA programs. The rule only 

provides a definition for “waters of the U.S.” The rule does not affect the CWA 

statute in which authorization may be required for discharges of dredged and/or fill 

material into waters of the U.S., or other activities in jurisdictional waters of the 

U.S. such as NPDES permits Section 401 certification, water quality standards or 

Section 311 requirements which require authorization. The agencies modified the 

final rule from the proposed rule in response to comments received in order to 

ensure unintended effects to those other CWA programs were reduced or 

eliminated. The Economic Analysis provides costs/benefits and predicted change in 

jurisdiction for all CWA programs. The final rule was developed to increase CWA 

program predictability and consistency by increasing clarity as to the scope of 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

187

“waters of the United States” protected under the Act. Definitions of certain terms 

are provided for the first time (e.g. tributary), or are further clarified (e.g. 

adjacent). The final rule provides for certain categories of waters that are 

jurisdictional by rule, which will result in a more efficient process. See the updated 

Economic Analysis for additional discussion.

American Horticultural Industry Association (Doc. #16359)

12.255 Under the proposed rule, Clean Water Act Section 404 permits could be required to 

install trees, plants, and other landscape features on private property that includes 

“Waters of the United States” or is deemed to be in a floodplain. The installation of trees 

and plants protects water quality and provides other environmental benefits. The EPA 

and the Corps should encourage these activities, rather than subject them to permits. (p.3)

Agency Response: See Summary Response. A Section 404 permit is only required 

if there is a discharge of dredged and/or fill material into a jurisdictional water of 

the U.S. Please see the definition of discharge of fill material at 33 CFR 323.2 for 

additional information. Many minimally impacting activities involving the 

discharge of dredged and/or fill material are authorized by the Corps via 

nationwide permits, which are efficient permitting tools. The rule does not affect 

permitting tools such as the use of general permits that the Corps implements for 

expeditious review and efficiency in processing permit applications for discharges of 

dredged and/or fills material into waters of the U.S. 

United States Canola Association (Doc. #16361)

12.256 The ambiguity of the Proposed Rule put forth by the EPA and the Corps that defines the 

Waters of the U.S. that are protected under the Clean Water Act is concerning to canola 

producers because they believe the Corps will use this definition to over-ride state and 

local control of the aforementioned water management activities and subject these 

activities, many of which are occurring on an ongoing basis, to a National Pollutant 

Discharge Elimination System (NPDES) and/or a Section 404 permitting process. Based 

on past experience with the Corps, canola producers believe that if such control is gained 

over routine farming activities by the Corps, much of the farmland in the Great Plains 

will become highly unproductive due to the lack of timely water management activities. 

(p. 2)

Agency Response: See Summary Response. The final rule does not change 

existing regulatory programs that rely on the definition of WUS or affect the 

existing statutory activity-based exemptions under Section 404(f)(1) of the Clean 

Water Act, including those for the construction of irrigation ditches and the 

maintenance of irrigation and drainage ditches. In addition, the Corps nationwide 

general permit program includes several general permits for discharges associated 

with ditch activities, some of which may not require pre-construction notification 

for expeditious review and efficiency in processing verifications under Section 404 of 

the Clean Water Act. See the preamble section on “Waters and Features That Are 

Not Waters of the U.S.” for further discussion.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

188

Kansas Corn Growers Association (Doc. #16398)

12.257 The Proposed Rule would make at least five million miles of remote waters and drainage 

in farm country jurisdictional or likely jurisdictional. Not only is this unlawful in light of 

the Supreme Court’s decisions, it will work directly against farmers efforts to prevent 

nutrients and sediments from reaching the system of navigable waters while they also 

work to produce abundant, affordable high quality food, feed, fuel and other products. 

The WOTUS Proposed Rule, if enacted as it is currently written would create an 

immense regulatory framework that would make it immensely more difficult and more 

expensive for farmers to grow their crops. If features on their farms are made 

jurisdictional or could be considered possibly jurisdictional farmers could be subject to 

new and unprecedented regulatory requirements or obligations under the CWA’s Section 

404 and Section 402, spurious legal actions by citizen activists involving both these 

programs, and a host of uncertainties and liabilities that come with such consequences. 

All of these will have direct financial, practical and serious consequences for farmers and 

they must not happen. (p. 1)

Agency Response: See Summary Response. The final rule does not change 

existing regulatory programs that rely on the definition of WUS or affect the 

existing statutory activity-based exemptions under Section 404(f)(1) of the Clean 

Water Act, including those for the construction of irrigation ditches and the 

maintenance of irrigation and drainage ditches. In addition, the Corps nationwide 

general permit program includes several general permits for discharges associated 

with ditch activities, some of which may not require pre-construction notification 

for expeditious review and efficiency in processing verifications under Section 404 of 

the Clean Water Act. See the preamble section on “Waters and Features That Are 

Not Waters of the U.S.” for further discussion.

Riceland Foods (Doc. #16530)

12.258 The proposed rule would impose on farmers the burden of obtaining a section 402 

discharge permit to fertilize their fields. It also would require additional permitting 

regulations for the application of crop protectants to combat insects, disease and weeds. 

(p. 2)

Agency Response: See summary response for Topic 12: Section 12.3, for a 

discussion of the issues relating to permitting requirements for the application of 

fertilizer, pesticides and herbicides. In addition, many waters on farm fields qualify 

for exclusions found in paragraph (b) of the final rule. Discharges to waters which 

are excluded from waters of the U.S. would not require a permit. See summary 

responses for 6.2: Excluded ditches and Topic 7: Features and waters not 

jurisdictional, for further discussion of excluded waters.

Agency Response:

Western Landowners Alliance (Doc. #16553)

12.259 Relationship to Other Programs and Factors – The agencies should investigate the effects 

and potential of other programs and factors to be more protective or destructive of 

wetland resources than can be effected by a regulatory program. For example, ethanol 

mandates have driven up prices of commodities such that producers are being driven out 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

189

of programs that protect wetlands and other habitat, as well as being incentivized to break 

into ground that previously produced other habitat, soil, and water benefits. (p. 2)

Agency Response: See Summary Response. This comment is beyond the scope of 

this rulemaking. The agencies only have authority to regulate jurisdictional 

activities in jurisdictional waters of the U.S. under the Clean Water Act.

12.260 Regulatory Burden and Agency Resources – There is an important prohibition in the 

CWA against discharging pollutants into our waters and destroying valuable wetlands. It 

is appropriate for that to be illegal. Where it can’t be avoided however, the permitting 

process should not be onerous, and staff should be sufficiently available and 

knowledgeable so as to not create an undue burden on permittees. (p. 2)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. Definitions of 

certain terms are provided for the first time (e.g. tributary), or are further clarified 

(e.g. adjacent). The final rule provides for certain categories of waters that are

jurisdictional by rule, which will result in a more efficient process. See the updated 

Economic Analysis for additional discussion.

12.261 Opportunities for Incentives – The Agencies should evaluate where incentive programs, 

rather than regulatory programs can be effective in conserving habitats sought to be 

conserved through this proposal, including whether Sodbuster and Swampbuster 

programs are effective and could be enlisted (if not already) to protect “other” waters, 

including isolated wetlands. These are valuable resources, but may be more effectively 

managed through USDA programs. (p. 2)

Agency Response: This comment is beyond the scope of this rulemaking. The 

agencies only have authority to regulate jurisdictional activities in jurisdictional 

waters of the U.S. under the Clean Water Act. 

12.262 Interpretive Rule Elements Possibly as Nationwide Permits – The agencies should 

consider whether converting the Interpretive Rule practices to practices approved under a 

nationwide 404 permit. This would, unfortunately, eliminate the ‘no-nexus’ benefit noted 

above, but could clear up some jurisdictional confusion created by the IR. Converting 

only those directly water-related or wetland-related could also reduce confusion. (p. 3)

Agency Response: See Summary Response. The Clean Water Act Section 

404(f)(1) exemptions are self-implementing. The agencies note that the Interpretive 

Rule for conservation practices under 404(f)(1)(A) has been withdrawn as directed 

in the Consolidated and Further Continuing Appropriations Act, 2015. This 

comment is outside the scope of this rulemaking. The Corps Nationwide permits 

will be reauthorized in 2017 via the public notice and comment rulemaking process 

and comments regarding appropriate activities for inclusion are welcomed during 

that process. 

Missouri Corn Growers Association (Doc. #16569)

12.263 The rule will expand jurisdiction of federal waters thus expanding the scope, breadth and 

extent of state agency water programs. In Missouri, the jurisdictional state waters are 

defined as “Waters of the State” in Missouri statute and regulation, includes the federal 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

190

term “Waters of the US”. This rule will vastly expand the scope of the Missouri’s 

“Waters of the State” and undoubtedly trigger an increased public and private cost of 

complying with state water quality programs - a cost never considered or quantified by 

EPA. In addition, in 2013, Missouri finalized a quantitative list of water bodies in the 

state water quality standards that would be subject to Clean Water Act designated uses. 

We believe this rule will ultimately jeopardize and undermine the painstaking work 

completed by Missouri stakeholders and the Missouri Department of Natural Resources. 

(p. 7)

Agency Response: Overall, the scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries and adjacent waters, and includes provisions for a number of excluded 

waters, some of which are excluded by rule for the first time. For further discussion 

of exclusions, see summary responses for Topic 6.2: Excluded ditches and Topic 7: 

Features and waters not jurisdictional. In addition, see summary response for Topic 

11: Costs/Benefits and the Agencies Economic Analysis document for details on the 

estimated indirect costs and benefits of the rule for each CWA program. 

Michigan Blueberry Growers Association (Doc. #16587)

12.264 If the rule is finalized, it will burden our growers by creating new permitting 

requirements and unprecedented levels of uncertainty. Our growers are committed to 

maintaining compliance with environmental regulations, while remaining competitive 

with their growing operations; the proposed impedes their ability to carry out this 

commitment and subsequently, will result in a significant cost increase for our growers 

and may drive some out of business. 

Coupled with the aforementioned issues above, the proposed rule also interferes with 

states’ efforts to develop successful water quality protection programs that do not depend 

on burdensome regulation. For example, the proposed rule may contradict Michigan’s 

Wetlands Law and cause the EPA to consider Michigan’s assumption of delegated 

authority over Section 404 of the CWA to be out of compliance. If Michigan loses this 

delegated authority, the state loses the ability to manage a program that Michigan has 

used for 30 years to provide valuable protection of wetlands through agencies that have 

local contact with growers. (p. 1)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. Definitions of 

certain terms are provided for the first time (e.g. tributary), or are further clarified 

(e.g. adjacent). The final rule provides for certain categories of waters that are 

jurisdictional by rule, which will result in a more efficient process. See the General 

Comment Compendium for discussion of 404 Assumption. The rule does not affect 

the scope of waters subject to assumption under section 404(g) of the CWA. The 

agencies recognize that the state and local governments have well-defined and longstanding relationships in implementing affected CWA programs and these 

relationships will not be altered. This action will not have substantial direct effects 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

191

on the states, on the relationship between the national government and the states, or 

on the distribution of power and responsibilities among the various levels of 

government. The final rule does not restrict the states’ efforts in developing or 

implementing statewide permits under CWA programs as a result of the rule. The 

rule does not diminish or in any way detract from the intent and purpose of CWA 

sections 101(b) and 101(g) regarding the states’ primary and exclusive authority 

over water allocation and water rights administration, as well as state-federal coregulation of water quality. The agencies worked hard to ensure the rule reflects 

these fundamental principles.

Florida Crystals Corporation (Doc. #16652)

12.265 The Army Corps commonly tries to shift the costs of procedural compliance onto private 

applicants. It is typical that private permit applicants have to pay consultants to prepare 

Environmental Assessments, Biological Assessments, and other permit-related 

documents. When the Army Corps decides to prepare an Environmental Impact 

Statement, it asks the applicant to pay for a third-party consultant to prepare the 

document, at a typical cost of millions of dollars. These costs far exceed the cost of 

water permitting with state agencies in Florida. Given that Florida law already regulates 

the exact same waters, expanding the scope of federal CWA jurisdiction simply expands 

the number of projects for which landowners will have to pay exorbitant federal 

permitting costs. (p. 11)

Agency Response: See Summary Response. The scope of regulatory jurisdiction 

in this rule is narrower than that under the existing regulation. Fewer waters will 

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

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

categories such as tributaries. The Corps does not require an applicant to obtain 

third party consultants to prepare materials to support an application. District 

engineers are authorized to require that permit applicants or permittees provide 

essential information necessary for compliance with Corps regulations; the Corps 

recognizes that an applicant may choose to use third-party contracting to obtain the 

information. The final rule was developed to increase CWA program predictability 

and consistency by increasing clarity as to the scope of “waters of the United States” 

protected under the Act. Definitions of certain terms are provided for the first time 

(e.g. tributary), or are further clarified (e.g. adjacent). The final rule provides for 

certain categories of waters that are jurisdictional by rule, which will result in a 

more efficient process. See the updated Economic Analysis for additional 

discussion.

Greene County Farm Bureau (Doc. #17007)

12.266 This rule also has the potential to add significant delay in permitting. Many of the 

projects undertaken by farmers and government are to address emergency situations such 

as when a road washes out or significant erosion threatens to harm private property. 

Waiting on the permitting process will only add to the potential harm to both people and 

property. As individuals responsible for the safety of others, local government will be 

jeopardized in its ability to serve its constituents. Farmers will be impacted by the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

192

potential restrictions on their ability to properly manage their farmland and produce the 

crop and livestock upon which much of the economy is built and people rely. (p. 1)

Agency Response: See Summary Response. The final rule clarifies the additional 

excluded waters and features under the Clean Water Act. See the preamble section 

on “Waters and Features That Are Not Waters of the U.S.” for further discussion. 

The final rule does not affect the existing statutory activity-based exemptions under 

Section 404(f)(1) of the Clean Water Act, including those for the construction of 

irrigation ditches and the maintenance of irrigation and drainage ditches. In 

addition, the Corps nationwide general permit program includes several general 

permits for discharges associated with ditch activities, some of which may not 

require pre-construction notification for expeditious review and efficiency in 

processing verifications under Section 404 of the Clean Water Act. See the 

preamble section on “Waters and Features That Are Not Waters of the U.S.” for 

further discussion. The Corps regulations define an “emergency” under the 

nationwide permit program as “a situation which would result in an unacceptable 

hazard to life, a significant loss of property, or an immediate, unforeseen, and 

significant economic hardship if corrective action requiring a permit is not 

undertaken within a time period less than the normal time needed to process the 

application under standard procedures.” In emergency situations, Corps Division 

Engineers, in coordination with the Corps District Engineers, are authorized to 

approve special processing procedures to expedite permit issuance. The Corps also 

uses alternative permitting procedures, such as general permits and letters of 

permission, when appropriate, to expedite processing of permit applications for 

emergencies. The Corps emergency permitting procedures can be found in 33 CFR 

325.2(e). Certain nationwide permits do not require pre-construction notification 

and such activities can be completed without notification as long as they comply 

with the terms and conditions of such permits. In addition, certain discharges of 

dredged and/or fill material are exempt from regulation under section 404(f)(1)(b) 

under the Clean Water Act that are “for the purpose of maintenance, including 

emergency reconstruction.”

Westlands Water Districts (Doc. #14414)

12.267 Treatment wetlands, as the name implies, are designed to treat wastewater or stormwater 

before it is discharged into waters of the United States. These facilities are often 

constructed in close proximity to traditional navigable waters and with direct outlets to 

such waters. As a result, they would be considered adjacent to either traditional 

navigable waters or their tributaries under the Proposed Rule. Such regulation of these 

constructed wetlands as waters of the United States would impose a significant burden on 

both the wetland owner, the Army Corps of Engineers, and the EPA. Every time 

significant maintenance is required or there is a discharge into the wetlands, a federal 

permit would be required. Nothing in the text of the Clean Water Act suggests that such 

a regulatory burden should be imposed on the wetland owner or the regulatory agency.

(p. 24)

Agency Response: See Summary Response. The final rule clarifies the additional 

excluded waters and features under the Clean Water Act. See the preamble section 

on “Waters and Features That Are Not Waters of the U.S.” for further discussion. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

193

The final rule does not affect the existing statutory activity-based exemptions under 

Section 404(f)(1) of the Clean Water Act, including those for the construction of 

irrigation ditches and the maintenance of irrigation and drainage ditches. In 

addition, the Corps nationwide general permit program includes several general 

permits for discharges associated with ditch activities, some of which may not 

require pre-construction notification for expeditious review and efficiency in 

processing verifications under Section 404 of the Clean Water Act. See the 

preamble section on “Waters and Features That Are Not Waters of the U.S.” for 

further discussion. Also, see essay 7.1 regarding the waste treatment system 

exclusion. 

Maryland Farm Bureau (Doc. #10755)

12.268 In addition to raising serious legal issues, the proposed rule fails to provide clarity or 

predictability, and raises practical concerns with regard to how the rule will be 

implemented. The proposed rule will result in duplicative and incongruent regulatory 

requirements that are inconsistent with the purpose and structure of the Act and have not 

been adequately considered by the agencies. (p. 1)

Agency Response: See Summary Response. The agencies believe the final rule 

will result in increased clarity and certainty regarding the identification of “waters 

of the U.S.” The agencies received many helpful comments on the proposed rule 

which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public. None of the existing procedures, permitting 

mechanisms, efficient permitting tools such as general permits, or activity 

exemptions will be modified as a result of this rulemaking; therefore, existing 

procedures should not be further complicated by this rule. The agencies understand 

that the definition of “waters of the U.S.” applies to all CWA programs. The 

agencies modified the final rule from the proposed rule in response to comments 

received in order to ensure unintended effects to those other CWA programs were 

reduced or eliminated. The Economic Analysis provides costs/benefits and 

predicted change in jurisdiction for all CWA programs. The agencies are 

developing guidance to facilitate effective, consistent, and efficient implementation 

of the final rule once it becomes effective. The agencies strive to achieve consistency 

across the country in all districts and regions in application of the rule for 

jurisdictional determinations. The agencies also recognize that there are variations 

that occur in geography, hydrology, climate, etc., which affect jurisdictional 

determinations. The initial phase of implementing the rule will require education 

and training for agency staff as well as other stakeholders and the regulated public. 

This training and outreach will be regionally-based to ensure appropriate 

consideration is given to ecoregional variation and to ensure consistent and efficient 

implementation of the rule. 

North Platte Valley Irrigators Association (Doc. #18963)

12.269 We believe the rule creates more confusion about what will or will not constitute a 

“normal” farming practice with respect to §404 permitting. The proposed rule causes 

more confusion than clarity with respect to our normal farming and irrigating practices 

and whether or not we need §404 permits. Over the years, our membership has dealt 
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194

primarily with the NRCS and the Nebraska state agencies which regulate water usage and 

water quality. We believe that the proposed rule seems to give the EPA free reign to 

interpret the CWA rules as well as veto power over determinations made by other 

agencies and remove the ability of the NRCS and state agencies to help us make the 

appropriate decisions at the local level. (p. 2)

Agency Response: See Summary Response. Only the EPA and the Corps, and 

applicable states and tribes, have authority to determine jurisdiction under the 

Clean Water Act. The final rule clarifies the additional excluded waters and 

features, including stormwater control features. See the preamble section on 

“Waters and Features That Are Not Waters of the U.S.” for further discussion. The 

final rule clarifies the additional excluded waters and features under the Clean 

Water Act. See the preamble section on “Waters and Features That Are Not 

Waters of the U.S.” for further discussion. The final rule does not affect the existing 

statutory activity-based exemptions under Section 404(f)(1) of the Clean Water Act, 

including those for the construction of irrigation ditches and the maintenance of 

irrigation and drainage ditches. In addition, the Corps nationwide general permit 

program includes several general permits for discharges associated with ditch 

activities, some of which may not require pre-construction notification for 

expeditious review and efficiency in processing verifications under Section 404 of 

the Clean Water Act. See the preamble section on “Waters and Features That Are 

Not Waters of the U.S.” for further discussion. 

Wilkin County Farm Bureau (Doc. #19489)

12.270 The agencies’ proposed expansion of jurisdiction will result in additional permit 

obligations for the daily tasks of farmers, ranchers, and landowners, especially for 

Section 404 dredge and fill permitting, Section 402 NPDES permitting, Section 401 

water quality certification, and Section 311 oil spill prevention. (p. 1)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. The rule only 

provides a definition for “waters of the U.S.” The rule does not affect the CWA 

statute in which authorization may be required for discharges of dredged and/or fill 

material into waters of the U.S., or other activities in jurisdictional waters of the 

U.S. such as NPDES permits Section 401 certification, water quality standards or 

Section 311 requirements which require authorization. The final rule clarifies the 

additional excluded waters and features under the Clean Water Act. See the 

preamble section on “Waters and Features That Are Not Waters of the U.S.” for 

further discussion. The final rule does not affect the existing statutory activity-based 

exemptions under Section 404(f)(1) of the Clean Water Act, including those for the 

construction of irrigation ditches and the maintenance of irrigation and drainage 

ditches. In addition, the Corps nationwide general permit program includes several 

general permits for discharges associated with ditch activities, some of which may 

not require pre-construction notification for expeditious review and efficiency in 

processing verifications under Section 404 of the Clean Water Act. See the 

preamble section on “Waters and Features That Are Not Waters of the U.S.” for 

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

12.271 Implications regarding the Endangered Species Act (ESA): The Parties express grave 

concern regarding the additional regulatory and economic burden that will be placed on 

our membership in complying with ESA Section 7 consultation requirements as a result 

of the Proposed Rule. When the Proposed Rule as written is broadly enforced by the 

EPA and USACE regarding permitting requirements, the ensuing federal nexus will 

require ESA Section 7 consultation across New Mexico for normal and customary 

agricultural and ranching practices that is not required today, as there are no agricultural 

or ranching exemptions contained within the ESA. The additional burden and potential 

ESA take findings will undoubtedly cause irreparable economic harm to our membership 

and threaten to undermine and potentially eliminate the customs and culture of their rural 

communities. (p. 14)

Agency Response: While it is the responsibility of the Corps as the agency 

evaluating permit applications under section 404, to determine if Endangered 

Species Act and the National Historic Preservation Act requirements are being met, 

there are cases where these laws or other federal, state or local laws may still 

require review absent a CWA action. The 404 permit action does not remove the 

requirement to get other permits, if required by law. Obtaining a jurisdictional 

determination from the agencies does not trigger Section 7 of the Endangered 

Species Act, a federal action does, and a section 404 permit is a federal action. 

However, private landowners are also required to comply with Section 10 of the 

Endangered Species Act absent a federal action. The agencies work to ensure this 

compliance with other federal laws is completed in the most efficient and effective 

manner, and may include programmatic agreements or local operating procedures 

to streamline the process.

Iowa Poultry Association (Doc. #19589)

12.272 The Corps Lacks the Staff and Resources Necessary to Adequately Address the Increase 

of Permit Application that Will Result because of the Lack of Clarity in the Proposed 

Rule.

Due to the Jack of clarity in the new rule regarding which waters are jurisdictional and 

which farming activities are exempt from the proposed regulations, the likely result will

be either an influx of permit applications to ensure compliance with the rule and/or a 

stifling of conservation practices which may involve a jurisdictional water due to the now 

mandatory permitting requirements for those practices. The permitting process under the 

CWA either for an NPDES permit or a Section 404 permit is an expensive and timely 

process. It is doubtful that the Corps has the staff or the resources to timely process 

permit application. The unfortunate effect of the proposed rule will be to limit or impede 

conservation, business, farming, and industrial practices that may in fact benefit both the 

environment and the water because of the overarching and limitless jurisdiction afforded 

to the Corp through the proposed rule. (p. 3)

Agency Response: See Summary Response. The agencies believe the final rule 

will result in increased clarity and certainty regarding the identification of “waters 

of the U.S.” The agencies received many helpful comments on the proposed rule 

which resulted in refinement of the final rule to provide further clarity and 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

196

certainty to the regulated public. None of the existing procedures, permitting 

mechanisms, efficient permitting tools such as general permits, or activity 

exemptions will be modified as a result of this rulemaking; therefore, existing 

procedures should not be further complicated by this rule. The final rule was 

developed to increase CWA program predictability and consistency by increasing 

clarity as to the scope of “waters of the United States” protected under the Act. 

Definitions of certain terms are provided for the first time (e.g. tributary), or are 

further clarified (e.g. adjacent). The final rule provides for certain categories of 

waters that are jurisdictional by rule, which will result in a more efficient process. 

See the updated Economic Analysis for additional discussion.

North Carolina Aggregates Association (Doc. #6938)

12.273 The proposed rule leaves many key concepts unclear, undefined, and subject to the 

agency’s discretion. This vagueness will not provide the intended regulatory certainty 

that the agency is professing and will require the regulated community to unnecessarily 

spend resources in the courts to clarify the vagueness of the rule. (p. 1)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. Definitions of 

certain terms are provided for the first time (e.g. tributary), or are further clarified 

(e.g. adjacent). The final rule provides for certain categories of waters that are 

jurisdictional by rule, which will result in a more efficient process. See the updated 

Economic Analysis for additional discussion.

12.274 The proposed rule will subject more activities to CWA permitting requirements, NEPA 

analysis, mitigation requirements, and citizen lawsuits challenging local actions based on 

the expanded jurisdiction by EPA and the Corps. (p. 2)

Agency Response: See Summary Response. The rule only provides a definition 

for “waters of the U.S.” The rule does not affect the CWA statute in which 

authorization may be required for discharges of dredged and/or fill material into 

waters of the U.S., or other activities in jurisdictional waters of the U.S. which 

require authorization. In addition, the rule does not affect activities that are 

currently exempt from CWA regulation. The rule also does not affect permitting 

tools such as the use of general permits that the Corps implements for expeditious 

review and efficiency in processing permit applications for discharges of dredged 

and/or fills material into waters of the U.S. The rule will improve consistency and 

predictability for all CWA programs. The rule will provide needed clarity 

regarding jurisdictional determinations, thus reducing uncertainties and delays. 

The CWA citizen suit provision is also unaffected by this final rule. The Technical 

Support Document provides additional responsive information.

New York State Association of Town Superintendents of Highways, Inc. (Doc. #7641)

12.275 We support efforts to help preserve our environment and understand the purpose of the 

proposed redefinition as an attempt to better ensure a more secure, clean water supply for 

our citizenry. However, we cannot support such a broad-stroke, imprecise approach that 

will only create further cause for public concern. These regulations fly in the face of 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

197

common-sense and work to prevent the timely maintenance of local infrastructures. 

Critical repairs could be unduly delayed as proposals and permits are waited on for 

approval by the correct federal agencies. (p. 2)

Agency Response: See Summary Response. The rule only provides a definition 

for “waters of the U.S.” The rule does not affect the CWA statute in which 

authorization may be required for discharges of dredged and/or fill material into 

waters of the U.S., or other activities in jurisdictional waters of the U.S. which 

require authorization. In addition, the rule does not affect activities that are 

currently exempt from CWA regulation. The rule also does not affect permitting 

tools such as the use of general permits that the Corps implements for expeditious 

review and efficiency in processing permit applications for discharges of dredged 

and/or fills material into waters of the U.S. The rule will improve consistency and 

predictability for all CWA programs. The rule will provide needed clarity 

regarding jurisdictional determinations, thus reducing uncertainties and delays. 

Certain nationwide permits do not require pre-construction notification, including 

certain ones for maintenance activities, and such activities can be completed without 

notification as long as they comply with the terms and conditions of such permits. 

In addition, certain discharges of dredged and/or fill material are exempt from 

regulation under section 404(f)(1)(b) under the Clean Water Act that are “for the 

purpose of maintenance, including emergency reconstruction.”

New Salem Township, Office of the Road Commissioner (Doc. #8365)

12.276 Ditches are pervasive across the nation and were never considered to be jurisdictional by 

the Corps. Whether or not a ditch is regulated under Section 404 has significant financial 

implications for our township the Corps, which oversees the 404 permit program, is 

already severely backlogged in evaluating and processing permits. This could put our 

township in a precarious position as we often balance a small budget against public health 

and safety needs. Delays of a year at a cost of hundreds of thousands of dollars would 

make our position untenable. (p. 2)

Agency Response: See Summary Response. The agencies disagree that ditches 

have never been regulated under the Clean Water Act. While it is true that certain 

types of ditches have generally been excluded from jurisdiction, other types of 

ditches such as those constructed in tributaries have generally been considered to be 

jurisdictional. The final rule clarifies the additional excluded waters and features 

under the Clean Water Act. See the preamble section on “Waters and Features 

That Are Not Waters of the U.S.” for further discussion. The final rule does not 

affect the existing statutory activity-based exemptions under Section 404(f)(1) of the 

Clean Water Act, including those for the construction of irrigation ditches and the 

maintenance of irrigation and drainage ditches. In addition, the Corps nationwide 

general permit program includes several general permits for discharges associated 

with ditch activities, some of which may not require pre-construction notification 

for expeditious review and efficiency in processing verifications under Section 404 of 

the Clean Water Act.
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Lake Charles Harbor and Terminal District (Doc. #14448)

12.277 Most port construction activities come under the CWA jurisdictional definition of 

traditional navigable waters. The proposed rule makes additional lands subject to CWA 

jurisdiction and the District is very concerned about the impacts on the timely processing 

of critical port actions, such as construction and dredging permits by the Corps. (p. 1)

Agency Response: See Summary Response. The rule is not designed to subject 

any entities of any size to any specific regulatory burden. Rather, it is designed to 

clarify the statutory scope of the “waters of the U.S.”, consistent with Supreme 

Court precedent. The agencies do not have authority to regulate a landowner’s 

property. The agencies only have authority to regulate jurisdictional activities in 

jurisdictional waters of the U.S. under the Clean Water Act. The final rule was 

developed to increase CWA program predictability and consistency by increasing 

clarity as to the scope of “waters of the United States” protected under the Act. 

Definitions of certain terms are provided for the first time (e.g. tributary), or are 

further clarified (e.g. adjacent). The final rule provides for certain categories of 

waters that are jurisdictional by rule, which will result in a more efficient process. 

See the updated Economic Analysis for additional discussion.

Airlines For America (Doc. #15439)

12.278 Overall, it is reasonable to assume that the Proposed Rule would result in the incidental 

characterization of individual drainage ditches or detention/retention ponds as WOTUS 

within airport sites. Such characterizations would vastly and unpredictably reshuffle the 

systems that airports, airlines, and their permitting authorities have put in place to meet 

the requirements of the Act. By potentially requiring outfalls within the aircraft 

operations area to be permitted the Proposed Rule would – inadvertently, we assume –

render many choices of treatment technology unavailable. On the other hand, by 

requiring permits at on-airfield sites where no treatment can feasibly be placed, the 

Proposed Rule would make it impossible to meet water quality-based effluent limitations 

and, thereby, threaten the sustainability of air service (a result that clearly is 

impermissible under the Federal Aviation Act). (p. 6)

Agency Response: See Summary Response. The rule limits CWA jurisdiction 

only to those types of waters that have a significant nexus to downstream (a)(1)-

(a)(3) waters, not just any hydrologic connection. It improves efficiency, clarity, and 

predictability for all landowners as well as permit applicants. The final rule does 

not modify existing regulatory programs and clarifies the additional excluded 

waters and features, including certain ditches and stormwater control features. See 

the preamble section on “Waters and Features That Are Not Waters of the U.S.” for 

further discussion. With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see compendium 7, the summary responses at 

7.4.4.

Airports Council International – North America (Doc. #16370)

12.279 In an effort to further understand the jurisdictional reach and related impacts of the 

Proposed Rule the following general questions need to be answered:
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199

In the case of costal airports the Proposed Rule paints a limitless regulatory reach to 

upstream natural and/or manmade water features. Further clarification on the delineation 

of jurisdiction in this case is needed. 

Agency Response: See Summary Response The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. Definitions of 

certain terms are provided for the first time (e.g. tributary), or are further clarified 

(e.g. adjacent). The final rule provides for certain categories of waters that are 

jurisdictional by rule, which will result in a more efficient process. The final rule 

also clarifies the additional excluded waters and features, including certain ditches 

and stormwater control features. See the preamble section on “Waters and 

Features That Are Not Waters of the U.S.” for further discussion.

12.280 How would this ruling cascade into the National Water Program (NWP)? (p. 6)

Agency Response: The final rule does not establish any regulatory requirements. 

Instead, it is a definitional rule that clarifies the scope of “waters of the United 

States” consistent with the Clean Water Act (CWA), Supreme Court precedent, and 

science. Programs established by the CWA, such as the section 402 National 

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

permit program for discharge of dredged or fill material, and the section 311 oil 

spill prevention and clean-up programs, all rely on the definition of “waters of the 

United States.” Entities currently are, and will continue to be, regulated under 

these programs that protect “waters of the United States” from pollution and 

destruction.

WateReuse Association (Doc. #1349)

12.281 The proposed rule’s impacts and implications across the many CWA programs has not 

been adequately analyzed or clearly communicated, and more time is needed to identify 

and comment upon these impacts. The proposed rule will replace the definition of 

“navigable waters” and “waters of the United States” in the regulations for all CWA 

programs, including Section 404 discharges of dredge or fill material, the Section 402 

National Pollutant Discharge Elimination System (NPDES) permit program, the Section 

401 state water quality certification process, and Section 303 water quality standards and 

total maximum daily load (TMDL) programs. We do not believe the agencies have truly 

considered or analyzed the complex implications that this proposed rule will have for the

various CWA programs. Because the agencies have not fully considered the implications 

across all CWA programs, the public could not possibly address and comment on these 

implications within the time allowed for public comment. We believe these issues must 

be fully addressed by the agencies during the rule making process. Analyzing these 

implications is complicated, will require additional time, warranting an extension of the 

comment period. (p. 2)

Agency Response: See Summary Response. The agencies understand that the 

definition of “waters of the U.S.” applies to all CWA programs. The rule only 

provides a definition for “waters of the U.S.” The rule does not affect the CWA 

statute in which authorization may be required for discharges of dredged and/or fill 

material into waters of the U.S., or other activities in jurisdictional waters of the 
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200

U.S. such as NPDES permits Section 401 certification, water quality standards or 

Section 311 requirements which require authorization. The agencies modified the 

final rule from the proposed rule in response to comments received in order to 

ensure unintended effects to those other CWA programs were reduced or 

eliminated. The Economic Analysis provides costs/benefits and predicted change in 

jurisdiction for all CWA programs. 

Department of Public Works, City of Harrisville (Doc. #4038.2)

12.282 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 

(...) 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 

of the EPA have appropriately factored the cost for anyone. (p. 2)

Agency Response: See Summary Response. The agencies believe the final rule 

will result in increased clarity and certainty regarding the identification of “waters 

of the U.S.” The agencies received many helpful comments on the proposed rule 

which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public. None of the existing procedures, permitting 

mechanisms, efficient permitting tools such as general permits, or activity 

exemptions will be modified as a result of this rulemaking; therefore, existing 

procedures should not be further complicated by this rule. See the updated 

Economic Analysis for additional discussion. With respect to the jurisdictional 

status of stormwater control features as waters of the U.S., please see compendium 

7, summary response at 7.4.4

Red River Joint Water Resource District (Doc. #4227)

12.283 The proposed rules clearly identify navigable waters, interstate waters, and territorial seas 

as jurisdictional. The District does not dispute EPA’s and the Corps’ jurisdiction over 

these waters under the CWA. However, the proposed rules effectively extend jurisdiction 

over virtually any and all waters and activities and this dramatic expansion will have a 

chilling effect on all construction activity in the entire country, certainly including any 

and all efforts of the District to manage water in accordance with our statutory charge. (p.

2)

Agency Response: See Summary Response. The rule limits CWA jurisdiction 

only to those types of waters that have a significant nexus to downstream (a)(1)-

(a)(3) waters, not just any hydrologic connection. It improves efficiency, clarity, and 

predictability for all landowners as well as permit applicants.

Nye County Water District Governing Board (Doc. #5486)

12.284 The proposed definition change could place additional restrictions on development or use 

of multiple-use lands currently managed by the Federal government by requiring 

additional permits. Again, these restrictions and permit requirements place additional 

financial burden on the County or other prospective users. (p. 2)
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201

Agency Response: See Summary Response. The rule is not designed to subject 

any entities of any size to any specific regulatory burden. Rather, it is designed to 

clarify the statutory scope of the “waters of the U.S.”, consistent with Supreme 

Court precedent. The rule only provides a definition for “waters of the U.S.” The 

rule does not affect the CWA statute in which authorization may be required for 

discharges of dredged and/or fill material into waters of the U.S., or other activities 

in jurisdictional waters of the U.S. which require authorization. In addition, the 

rule does not affect activities that are currently exempt from CWA regulation. The 

rule also does not affect permitting tools such as the use of general permits that the 

Corps implements for expeditious review and efficiency in processing permit 

applications for discharges of dredged and/or fills material into waters of the U.S. 

The rule will improve consistency and predictability for all CWA programs. The 

rule will provide needed clarity regarding jurisdictional determinations, thus 

reducing uncertainties and delays. The agencies do not have authority to regulate a 

landowner’s property or land use. The agencies only have authority to regulate 

jurisdictional activities in jurisdictional waters of the U.S. under the Clean Water 

Act. See the Economic Analysis for additional information on costs/benefits of the 

final rule.

JEA (Doc. #10747)

12.285 In the preamble of the draft rule revisions, the Agencies assert that a central purpose of 

this rule proposal is to clarify the boundaries of federal jurisdiction. 79 Fed. Reg. at 

22,218. In endeavoring to achieve this goal, the Agencies attempt to interpret and apply 

Justice Kennedy’s concurring opinion in Rapanos, which stated that wetlands should be 

regulated under the Clean Water Act if they have a “significant nexus” to waters that are 

or were “navigable in fact” (i.e., obviously jurisdictional waters). Rapanos v. United 

States, 547 U.S. 715, 779 (2006). Based on this seemingly narrow opinion on wetland 

jurisdiction, the Agencies assert jurisdiction over a broad array of ditches and surface 

water features that have a seemingly tacit connection to traditionally navigable waters. 

JEA is concerned that instead of increasing clarity regarding the scope of the Agencies 

jurisdictional authority, the proposed rule instead creates uncertainty. The proposal will 

place JEA and other members of the regulated community in the untenable position of 

applying new, undefined terms and amorphous standards when evaluating whether 

particular surface areas constitute waters of the U.S. In particular, the proposed rule’s 

handling of stormwater ditches, “other” adjacent and neighboring waters, and the waste 

treatment exclusion raises significant concerns to JEA. (p. 2-3)

Agency Response: See Summary Response. The final rule clarifies the additional 

excluded waters and features under the Clean Water Act. See the preamble section 

on “Waters and Features That Are Not Waters of the U.S.” for further discussion. 

The final rule does not affect the existing statutory activity-based exemptions under 

Section 404(f)(1) of the Clean Water Act, including those for the construction of 

irrigation ditches and the maintenance of irrigation and drainage ditches. In 

addition, the Corps nationwide general permit program includes several general 

permits for discharges associated with ditch activities, some of which may not 

require pre-construction notification for expeditious review and efficiency in 

processing verifications under Section 404 of the Clean Water Act. In addition, see 
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202

the exemptions for certain ditch maintenance activities under section 404(f)(1) of the 

Clean Water Act. The rule limits CWA jurisdiction only to those types of waters 

that have a significant nexus to downstream (a)(1)-(a)(3) waters, not just any 

hydrologic connection. It improves efficiency, clarity, and predictability for all 

landowners as well as permit applicants. With respect to the jurisdictional status of 

stormwater control features as waters of the U.S., please see compendium 7, 

summary response at 7.4.4. With respect to the waste treatment system exclusion, 

please see essay 7.1. 

County of San Diego (Doc. #14782)

12.286 A broader definition of Waters of the U.S. will make it more difficult for jurisdictions to 

maintain compliance with Total Maximum Daily Load (TMDL) limits and identify 

stormwater treatment options.

In response to the Municipal Separate Storm Sewer System (MS4) Permit adopted by the 

San Diego Regional Water Quality Control Board in May of 2013 (NPDES Order No. 

R9- 2013-0001), Water Quality Improvement Plans (WQIPs) are being prepared for 

several watersheds in San Diego County. MS4s are regulated under the Clean Water 

Act’s Section 402 National Pollutant Discharge Elimination System (NPDES) permitting 

structure, the State of California’s Porter-Cologne Act, and the MS4 Permit.

During the WQIP development process, bacteria have been identified as the highest 

priority water quality condition in several County watersheds. Bacteria have been a focus 

since adoption of the Bacteria TMDL (San Diego Regional Water Quality Control Board 

Resolution No. R9-2010-0001). TMDLs emanate from Section 303(d) of the Clean 

Water Act (CWA), which requires states to identify waters that are impaired by pollution, 

establish priorities for development of TMDLs based on the severity of the impairment, 

and determine the sensitivity of beneficial uses associated with the waters. Thus, the 

TMDL program has become a core element of the MS4 permit requirements imposed by 

the San Diego Regional Water Quality Control Board. 

The purpose of the Bacteria TMDL is to protect the health of those who recreate at 

beaches and streams. The TMDL requires responsible agencies to attain required load 

reductions during both dry and wet weather conditions within a 10- and 20-year 

compliance timeline, respectively. The County is in the process of identifying potential 

bacteria load reduction strategies, including treatment options, in order to achieve 

compliance. Because the Clean Water Act prohibits placement of best management 

practices (BMPs) in Waters of the U.S., expanding the definition of Waters of the U.S. 

can significantly limit future options for compliance. 

Example: The MS4 Permit identifies points of compliance for the Bacteria TMDL. For 

the San Diego River, a compliance point occurs in the lower portion of Forrester Creek. 

Measurements in Forrester Creek will determine if jurisdictions are meeting the required 

bacteria limits. Expanding the definition of Waters of the U.S. to include ditches and 

other “offline” MS4 conveyances with connectivity to the Creek would significantly limit 

opportunities to treat stormwater before it reaches the receiving water. (p. 1-2)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

203

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

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

tributaries. TMDLs are not self-implementing and do not impose regulatory 

requirements on discharges. With respect to the jurisdictional status of stormwater 

control features as waters of the U.S., please see compendium 7, summary response 

at 7.4.4. As a general matter, the agencies do not encourage placement of BMPs in 

waters of the U.S., but where appropriate such placement could be evaluated in the 

context of 404 permit coverage.

SD1 (Doc. #15140)

12.287 By failing to account for the strength and degree of connection between water bodies, the 

proposed definition of WOTUS struggles to establish a scientifically defensible, 

independently verifiable test of what constitutes a “significant nexus”. This phrase, 

which is used multiple times in the Federal Register publication, is key to determining 

whether or not “other waters” that are neighboring and adjacent to currently regulated 

water bodies are included in the definition of WOTUS under the proposed rule. Without 

considering and incorporating the degree of connection and establishing an independently 

verifiable test for significant nexus based on the strength and degree of the connection, all 

water bodies with any demonstrable connection, regardless of how large or small, 

through any hydrologic, biological, or chemical linkage, either surface or subsurface, are 

by definition WOTUS. This is particularly relevant in considering the regional 

variability in the factors, such as climate, soils, and topography, contributing to 

connectivity. Addressing regional variability in the tests of “significant nexus” will 

appropriately incorporate the complete range of available science in support of the 

regulatory process. Equally important, addressing regional variability provides an 

opportunity for state water and natural resource agencies to participate in the 

development and determination of what constitutes a “significant nexus” for waters of 

each state.

A consequence of not addressing variability is that the regulated community faces the 

burden of proving the complete negative (no hydrologic, biological, or chemical 

connection at all) in any effort to have a water body not identified as WOTUS and falling 

under the jurisdictional authority of the EPA. The USACE and EPA themselves suggest 

a level of uncertainty with this approach when they state on page 22214 of the proposed 

rule:

“In particular the agencies solicit information about whether current scientific research 

and data regarding particular types of waters are sufficient to support the inclusion of 

particular types of “other waters,” either alone or in combination with similarly situated 

waters that can appropriately be identified as always lacking or always having a 

significant nexus.”

The failure by the agencies to establish a test or guidance for determining what 

constituents “significant nexus” that includes treatment of the degree of connectivity 

(e.g., frequency, duration, predictability, and magnitude) at the regional level, indicates 

that the proposed rule is not ready for implementation and does not adequately or 

completely resolve the original issues raised in the United States Supreme Court cases of 

Rapanos and SWANCC (Solid Waste Agency of Northern Cook County). (p. 3-4)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

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Agency Response: See Summary Response. The final rule further clarifies 

“significant nexus” by providing a definition under paragraph (c) of the term as 

well as a list of factors to be considered when making such a determination. See the 

preamble section on “Case-Specific Waters of the United States” for further 

discussion. The agencies recognize that there are appropriate levels of regional 

variation in implementation of the regulations; however, the agencies strive for 

national consistency. The agencies believe the clarity and certainty provided in the 

rule will result in further consistency, while still allowing for regional variation in 

implementation that may be necessary based on regional differences in aquatic 

resources; for example, the ordinary high water mark regional manuals or the 

regional supplements to the wetland delineation manual, both of which are outside 

the scope of this rulemaking but are related resources.

12.288 (...) we propose that the agencies:

 Withdraw the proposed rule at this time;

 Finalize the connectivity report by incorporating the Science Advisory Board’s 

recommendations;

 Conduct additional outreach to obtain well-informed input on the issues raised during this 

public comment period and develop alternatives;

 Establish a definitive approach to establishing significant nexus that takes into account 

regional variability in hydrologic regimes of the United States;

 Develop a companion guidance document to determine significant nexus to accompany the 

proposed definition when reissued;

 Redo the economic analysis and solicit input from states and regulated entities in that 

process;

 Develop specific exclusion language into the rule for storm water control measures and 

BMPs; and,

 Reopen the comment period for ninety days after the above actions are completed. (p. 8)

Agency Response: See Summary Response. The Connectivity Report has been 

finalized. See the Technical Support Document for a scientific summary to support 

the final rule. The agencies conducted extensive outreach and stakeholder meetings 

during the public comment period. The final rule further clarifies “significant 

nexus” by providing a definition under paragraph (c) of the term as well as a list of 

factors to be considered when making such a determination. See the preamble 

section on “Case-Specific Waters of the United States” for further discussion. The 

agencies are developing guidance to facilitate effective, consistent, and efficient 

implementation of the final rule once it becomes effective. The agencies strive to 

achieve consistency across the country in all districts and regions in application of 

the rule for jurisdictional determinations. The agencies also recognize that there 

are variations that occur in geography, hydrology, climate, etc., which affect 

jurisdictional determinations. The initial phase of implementing the rule will 

require education and training for agency staff as well as other stakeholders and the 

regulated public. This training and outreach will be regionally-based to ensure 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

205

appropriate consideration is given to ecoregional variation and to ensure consistent 

and efficient implementation of the rule. The final rule clarifies the additional 

excluded waters and features under the Clean Water Act. See the preamble section 

on “Waters and Features That Are Not Waters of the U.S.” for further discussion. 

The final rule does not affect the existing statutory activity-based exemptions under 

Section 404(f)(1) of the Clean Water Act, including those for the construction of 

irrigation ditches and the maintenance of irrigation and drainage ditches. In 

addition, the Corps nationwide general permit program includes several general 

permits for discharges associated with ditch activities, some of which may not 

require pre-construction notification for expeditious review and efficiency in 

processing verifications under Section 404 of the Clean Water Act. The comment 

period was extended twice to close on November 14, 2014. With respect to the 

jurisdictional status of stormwater control features as waters of the U.S., please see 

compendium 7, summary response at 7.4.4. The Agencies withdrew the Interpretive 

Rule January 29, 2015.

County of San Diego (Doc. #15172)

12.289 Impact on TMDL Compliance Requirements. A broader definition of Waters of the U.S. 

will make it more difficult for jurisdictions to maintain compliance with Total Maximum 

Daily Load (TMDL) limits and identify stormwater treatment options. In response to the 

Municipal Separate Storm Sewer System (MS4) Permit adopted by the San Diego 

Regional Water Quality Control Board in May of 2013 (NPDES Order No, R92013-

0001), Water Quality Improvement Plans (WQIPs) are being prepared for several 

watersheds in San Diego County. MS4s are regulated under the Clean Water Act’s 

Section 402 National Pollutant Discharge Elimination System (NPDES) permitting 

structure, the State of California’s Porter-Cologne Act, and the MS4 Permit.

During the WQIP development process, bacteria have been identified as the highest 

priority water quality condition in several County watersheds. Bacteria have been a focus 

since adoption of the Bacteria TMDL (San Diego Regional Water Quality Control Board 

Resolution No, R9-2010-0001), TMDLs emanate from Section 303(d) of the Clean Water 

Act (CWA), which requires states to identify waters that are impaired by pollution, 

establish priorities for development of TMDLs based on the severity of the impairment, 

and determine the sensitivity of beneficial uses associated with the waters. Thus, the 

TMDL program has become a core element of the MS4 permit requirements imposed by 

the San Diego Regional Water Quality Control Board.

The purpose of the Bacteria TMDL is to protect the health of those who recreate at 

beaches and streams. The TMDL requires responsible agencies to attain required load 

reductions during both dry and wet weather conditions within a 10- and 20-year 

compliance timeline, respectively. The County is in the process of identifying potential 

bacteria load reduction strategies, including treatment options, in order to achieve 

compliance. Because the Clean Water Act prohibits placement of best management 

practices (BMPs) in Waters of the U.S., expanding the definition of Waters of the U.S. 

can significantly limit future options for compliance. 

EXAMPLE: The MS4 Permit identifies points of compliance for the Bacteria TMDL. 

For the San Diego River, a compliance point occurs in the lower portion of Forrester 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

206

Creek. Measurements in Forrester Creek will determine if jurisdictions are meeting the 

required bacteria limits. Expanding the definition of Waters of the U.S. to include 

ditches and other “offline” MS4 conveyances with connectivity to the Creek would 

significantly limit opportunities to treat stormwater before it reaches the receiving water. 

(p. 1-2)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. TMDLs are not self-implementing and do not impose regulatory 

requirements on discharges. With respect to the jurisdictional status of stormwater 

control features as waters of the U.S., please see compendium 7, summary response 

at 7.4.4. As a general matter, the agencies do not encourage placement of BMPs in 

waters of the U.S., but where appropriate such placement could be evaluated in the 

context of 404 permit coverage.

Utility Water Act Group (Doc. #0852)

12.290 The terms “navigable waters” and “waters of the United States” appear over 200 

times in the CWA and its accompanying regulations. The proposed rule will replace 

the definition of “navigable waters” and “waters of the United States” in the 

regulations for all CWA programs, including the §402 National Pollutant Discharge 

Elimination System program, the §404 dredge and fill permitting program, the §311 

spill prevention program, and the § 401 certification process. The agencies have not 

truly considered the complicated implications that this proposed rule will have for the 

various CWA programs. Additional time is needed for UWAG and its members to 

assess how the application of the proposed rule’s new definition will affect electric 

utilities with respect to each of the CWA regulatory programs. (p. 3)

Agency Response: See summary response 12.3 regarding NPDES; summary 

response 12.2 regarding 401 certifications; summary response 12.4 regarding the 

404 program; and summary response 12.5 regarding SPCC. See also compendium 

11 and the Economics Analysis for an explanation of how the agencies considered 

costs and benefits for all CWA programs. 

Clearwater Watershed District, et al (Doc. #9560.1)

12.291 We are concerned that the proposed rule seeks to achieve this goal by over-simplifying 

the connections of tributaries, adjacent waters, and other waters to include virtually all 

types of water resources, unlimited by the language of the Clean Water Act, Congress’s 

power under the Commerce Clause, and existing case law. The general tone of the 

proposed rule is to achieve clarity through over-inclusiveness based on categorical 

determinations. We caution the agencies’ approach in the proposed rule as it exacerbates 

an already existing problem: over regulation of non-navigable waters under the Clean 

Water Act and costly and time consuming over exertion of jurisdiction. 

Prefatory comments to the rule state, “The agencies are providing clarity to regulated 

entities as to whether individual water bodies are jurisdictional and discharges are subject

to permitting, and whether individual water bodies are not jurisdictional and discharges 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

207

are not subject to permitting.” The rule sets out only to define “waters of the United 

States.” It does not, as the prefatory comments suggest, discuss types of “discharges”

that are exempt or not exempt. We encourage the agencies, through further rulemaking 

and analysis, to evaluate the significance of the impact different types of discharges have 

on the chemical, physical, and biological integrity of waters of the United States. (p. 3-4)

Agency Response: See Summary Response. The rule only provides a definition 

for “waters of the U.S.” The rule does not affect the CWA statute in which 

authorization may be required for discharges of dredged and/or fill material into 

waters of the U.S., or other activities in jurisdictional waters of the U.S. which 

require authorization. In addition, the rule does not affect activities that are 

currently exempt from CWA regulation. The rule also does not affect permitting 

tools such as the use of general permits that the Corps implements for expeditious 

review and efficiency in processing permit applications for discharges of dredged 

and/or fills material into waters of the U.S. The rule will improve consistency and 

predictability for all CWA programs. The rule will provide needed clarity 

regarding jurisdictional determinations, thus reducing uncertainties and delays. 

The comment is outside the scope of this rulemaking effort.

Duke Energy (Doc. #13029)

12.292 (Specify) the types of maps that can be used for jurisdictional determinations, how they 

will be specifically used in the determination and how the maps will be maintained 

should be clarified. (p. 13)

Agency Response: See Summary Response. Because the agencies generally only 

conduct jurisdictional determinations at the request of individual landowners, we do 

not have maps depicting the geographic scope of the CWA. Approved JDs that 

identify the limits of waters of the United States may be based on site visits or 

desktop reviews. The agencies have been using remote sensing and desktop tools to 

delineate tributaries for many years where data from the field are unavailable or a 

field visit is not possible. Desktop reviews are sufficient in cases where the district 

has a high degree of confidence in the information used to identify the limits of 

jurisdictional waters. For example, desktop reviews may be based on detailed 

delineation reports prepared by professional wetland consultants. The level of 

mapping precision for an approved JD that identifies the limits of waters of the 

United States is at the discretion of the district. In some cases, districts may need to 

require professional surveys of jurisdictional boundaries, but in other cases, other 

mapping techniques may be adequate. See the preamble for further discussion on 

desktop tools in the “Tributary” section. In addition, desktop tools are critical in 

circumstances where physical characteristics waters are absent in the field, often 

due to unpermitted alteration of waters. The majority of this information is 

available for the public’s use; these tools can allow for greater consistency with 

currently available and accessible data sources. Determinations will be made on a 

case-by-case basis utilizing all relevant resources (aerial photos, USGS topo map, 

NHD, Soil Surveys, stream gauge data, etc.) along with data collected in the field, 

when applicable.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

208

12.293 Clarify that review of SPCC Plans will continue on current 5-year cycle and will not need 

to be expedited for any newly jurisdictional waters identified following a final rule. (p. 

13)

Agency Response: This action would not necessarily require facilities that have 

prepared SPCC plans to update these plans outside of the normal 5-year review 

cycle or complete a technical amendment to the plan unless there is a change in 

facility configuration, etc. that affects its potential for an oil discharge to waters to 

the U.S. or adjoining shorelines. See 40 CFR part 112.5 in the SPCC rule. 

12.294 For the recently finalized 316(b) Cooling Water Intake Structure Rule, there could be 

some incremental affects from the proposed rule if a facility needs to install or upgrade 

their cooling water intake screens and adds a fish return system, or decides to reconstruct 

their intake to meet the 0.5 fps flow intake limit. The majority of the waters encountered 

during a modification or replacement of an intake structure would have already been 

accounted for under the current “waters of the United States” definition, but incremental 

increases to the number of these waters is possible. The installation of a fish return 

system, on the other hand, could run into unique challenges under the proposed rule. 

This conveyance is essentially a man-made trough or pipe that transports fish that are 

captured on modified intake traveling screens from one water (the intake river or bay) to 

another location (the return). Most likely, both the intake and the return location would 

already be considered “waters of the United States”. Under the proposed rule, however, 

the actual fish return could potentially be deemed a jurisdictional tributary since, even 

though it’s man-made, it could have a bed, banks, and discernible OHWM along with 

flow to a TNW. The broad definition for tributary makes this plausible and there is 

nothing in the proposed rule to exclude this type of conveyance. In addition, with the 

expanded jurisdiction for adjacent waters, there is a greater potential for more 

jurisdictional waters to be encountered while constructing the fish return structures which 

could be, in some cases, as long as a mile in length. (p. 66)

Agency Response: Overall, the scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries and adjacent waters, and includes provisions for a number of excluded 

waters, some of which are excluded by rule for the first time. For further discussion 

of exclusions, see summary responses for Topic 6.2: Excluded ditches and Topic 7: 

Features and waters not jurisdictional. In addition, see summary response for Topic 

11: Costs/Benefits and the Economic Analysis document for details on the estimated 

indirect costs and benefits of the rule for each CWA program. EPA disagrees with 

the comments concerning perceived impacts of the final 316(b) Cooling Water 

Intake Structure Rule. EPA notes the comments provide no data or examples to 

support the assertions, nor do the comments interpret the 316(b) Cooling Water 

Intake Structure Rule requirements correctly. In developing the 316(b) rule, EPA 

conducted a census of all power plants and a survey of manufacturing facilities 

designed to withdraw at least 2 million gallons of water per day for cooling from a 

waters of the U.S as defined in 40 CFR 122 in the year 1999. Because fewer waters 

will be defined as “waters of the United States” under the rule than under the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

209

existing regulations, EPA disagrees with the underlying premise that more facilities 

would meet the applicability at 122.125. The comments assume any facility newly 

affected by the rule would need to “install or upgrade their cooling water intake 

screens and adds a fish return system, or decides to reconstruct their intake to meet 

the 0.5 fps flow intake limit.” This is incorrect. The final 316(b) rule provides for 

seven different compliance alternatives, not just the two alternatives identified in the 

comments. If a facility chooses to comply by the intake velocity alternative, it can do 

so by demonstrating under 40 CFR 125.94(c)(3) that the measured velocity is less 

than 0.5 feet per second; there is no requirement to reconstruct the intake, nor is 

intake reconstruction necessary to reduce velocity (for example see 79 FR 48345 

discussing variable speed pumps). EPA notes additional flexibility under the 316(b) 

rule includes: compliance can be on an intake-by-intake basis or for the facility as a 

whole; a provision for de minimis impacts; and a provision for low capacity 

utilization power generating units. See 40 CFR Part 125. With respect to 

construction of a fish return, according to the comments the most likely scenario is 

where the intake location and the return location are on the same waterbody. This is 

not just the most likely, it is the only permissible scenario. Under 40 CFR 125.92(s) 

the fish must be returned to the source water body, thus the hypothetical scenario 

for constructing the fish return with a location different from the intake location as 

described by the commenter is inconsequential.

WaterLaw (Doc. #13053)

12.295 Congress has historically recognized federal deference to state laws to allocate and 

administer water use. If virtually all water supply and irrigation ditches are now subject 

to wetlands permitting, it will unnecessarily burden, render cost prohibitive, or frustrate 

water allocation, use and administration. If a water user cannot comply or secure the 

necessary permitting, either practically or economically, the water user may be prevented 

from exercising a valid water right. This would upset the comprehensive legal scheme 

for efficient water use each western state relies on The Clean Water Act lacks a clear and 

manifest intent expressed from Congress to authorize this abrogation and intrusion into 

traditional state regulation of water use. See, e.g., Rapanos, 547 U.S. at 737-738. (p. 8)

Agency Response: See Summary Response. The final rule clarifies the additional 

excluded waters and features, including certain ditches, stormwater control 

features, wastewater recycling features, and other water features. The rule does not 

diminish or in any way detract from the intent and purpose of CWA sections 101(b) 

and 101(g) regarding the states’ primary and exclusive authority over water 

allocation and water rights administration, as well as state-federal co-regulation of 

water quality. The agencies worked hard to ensure the rule reflects these 

fundamental principles.

San Juan Water Commission (Doc. #13057)

12.296 The WOTUS Rule would extend federal jurisdiction to ornamental ponds, flood retention 

ponds, municipal storm drains, stock watering ponds, irrigation canals and puddles at 

construction sites. By elevating such waters to federal waters, many land uses will 

become subject to complex permitting requirements, including potential application of 

the National Environmental Policy Act and the Endangered Species Act. (p. 3)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

210

Agency Response: The final rule clarifies the additional excluded waters and 

features, including certain ditches, stormwater control features, wastewater 

recycling features, and other water features. See the preamble section on “Waters 

and Features That Are Not Waters of the U.S.” for further discussion. While it is the 

responsibility of the Corps as the agency evaluating permit applications under 

section 404, to determine if Endangered Species Act and the National Historic 

Preservation Act requirements are being met, there are cases where these laws or 

other federal, state or local laws may still require review absent a CWA action. The 

404 permit action does not remove the requirement to get other permits, if required 

by law. Obtaining a jurisdictional determination from the agencies does not trigger 

Section 7 of the Endangered Species Act, a federal action does, and a section 404 

permit is a federal action. However, private landowners are also required to comply 

with Section 10 of the Endangered Species Act absent a federal action. The agencies 

work to ensure this compliance with other federal laws is completed in the most 

efficient and effective manner, and may include programmatic agreements or local 

operating procedures to streamline the process. The agencies do not have authority 

to regulate a landowner’s property or land use. The agencies only have authority to 

regulate jurisdictional activities in jurisdictional waters of the U.S. under the Clean 

Water Act. With respect to the jurisdictional status of stormwater control features 

as waters of the U.S., please see compendium 7, summary response at 7.4.4. See also 

responses to comments on non-jurisdictional ponds at 7.3.2, 7.3.3, 7.3.4 and 7.3.5. 

12.297 Adoption of the WOTUS Rule will dramatically limit the ability of SJWC’s member 

entities to continue necessary maintenance and other activities related to the operation of 

water diversion and distribution facilities. Under the proposed legislation, such activities 

will arguably require National Pollutant Discharge Elimination System (“NPDES”) 

and/or Section 404 Wetlands permits, which may or may not be obtainable in a timely 

manner, if at all. The economic and time costs of compliance, and resulting service 

disruptions, will be unprecedented and, in many instances, may make it impossible for 

SJWC’s member entities to perform their essential functions. Population growth in New 

Mexico is straining existing water supplies and infrastructure, and the additional 

restrictions, prohibitions and limitations that will result from adoption of the WOTUS 

Rule will do much more harm than good (p. 4)

Agency Response: See Compendium 11 and Economic Analysis section 8 for an 

explanation of how the agencies considered the effects of the final rule on all CWA 

programs. See Summary Response. The final rule clarifies the additional excluded 

waters and features, including certain ditches, stormwater control features, 

wastewater recycling features, and other water features. See the preamble section 

on “Waters and Features That Are Not Waters of the U.S.” for further discussion. 

See the revised Economic Analysis for the final rule.

Ameren Corporation (Doc. #13608)

12.298 These proposed broader definitions will trigger more Section 404 permits, Section 401 

state water quality certifications, additional individual site permits, changes to NPDES 

Section 402 and storm water permits, case-specific evaluations, create added costs, 

resources, and result in significant delays. States will be required to set water quality 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

211

standards (Sections 303, 304, 305 and 311) for all features and waters that meet the 

newly proposed WOTUS definition. (p. 1)

Agency Response: See Summary Response. The agencies believe the final rule 

will result in increased clarity and certainty regarding the identification of “waters 

of the U.S.” The agencies received many helpful comments on the proposed rule 

which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public. None of the existing procedures, permitting 

mechanisms, efficient permitting tools such as general permits, or activity 

exemptions will be modified as a result of this rulemaking; therefore, existing 

procedures should not be further complicated by this rule. The final rule was 

developed to increase CWA program predictability and consistency by increasing 

clarity as to the scope of “waters of the United States” protected under the Act. 

Definitions of certain terms are provided for the first time (e.g. tributary), or are 

further clarified (e.g. adjacent). The final rule provides for certain categories of 

waters that are jurisdictional by rule, which will result in a more efficient process. 

See the updated Economic Analysis for additional discussion. With respect to 

discussion on the effect of the final rule on NPDES permits, please see Compendium 

7. With respect to the effect of the final rule on NPDES permits, please see essay 

12.3. See essay 7.4.4 with respect to stormwater features. See also essay 12.2 (401 

certifications), 12.4 (404 permit program), 12.5 (SPCC), and the Economics Analysis 

for a discussion of how EPA analyzed costs and benefits for all CWA programs, 

including water quality standards and TMDLs. 

NRG Energy, Inc. (Doc. #13995)

12.299 The expanded Definition, if adopted, would also impact other permitting requirements 

under the CWA, in addition to permits issued by the ACE under section 404 of the Clean 

Water Act (“CWA”) (33 CFR Part 328 and 40 CFR Part 230, 40 CFR Part 232), 

including: discharges of oil under section 311 of the CWA ( 40 CFR Part 110), the Spill 

Prevention, Control and Countermeasure (“SPCC”) program under section 311 of the 

CWA ( 40 CFR Part 112), the designation of hazardous substances under section 311 of 

the CWA ( 40 CFR Part 116), reportable quantities of hazardous substances under section 

311 of the CWA ( 40 CFR Part 117), discharge permits under section 402 of the CWA 

(40 CFR Part 122), the National Contingency Plan for Superfund and the Oil Pollution 

Act (“OPA”) (40 CFR Part 300), reportable quantities of hazardous substances under the 

Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) 

and section 311 of the CWA (40 CFR Part 302), and CWA effluent limitations and 

standards (40 CFR Part 401). (p. 7)

Agency Response: See summary responses in Topic 12, including sections 12.2, 

regarding 401 certifications, 12.3 regarding NPDES; 12.4 regarding the 404 

program; and 12.5 regarding SPCC. See also summary responses in Topic 11: 

Costs/benefits and the Agencies Economics Analysis for an explanation of how the 

agencies considered costs and benefits for all CWA programs. 

Southern Company (Doc. #14134)

12.300 Expanded CWA jurisdiction would necessarily lead to a corresponding increase in 

National Environmental Policy Act (NEPA), cultural resources, and endangered species 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

212

reviews/consultations, among other regulatory program implications. It would also lead 

to more CWA citizen suit challenges to project proponents where more jurisdictional 

waters are at issue. Put simply, expanding the definition of waters of the U.S. in the 

manner as proposed would require more, not less, regulatory action, leading to added 

costs and delays in implementing the numerous regulatory programs tied to this key term. 

These implications and impacts would be felt to an equal or even greater degree at the 

state level, where state agencies with delegated authority generally assume the bulk of the 

regulatory load in implementing CWA Section 402 and other affected regulatory 

programs. Many states are unable to keep pace with NPDES permitting schedules and 

other CWA-mandated regulatory obligations as it is. Southern Company is concerned 

that the agencies have not taken these and other less direct and unintended consequences 

into full consideration (p. 18-19)

Agency Response: The agencies have thoroughly considered the implications of 

the final rule on all of the CWA programs that rely on this definition, and the 

agencies, states and tribes responsible for implementing CWA regulations. The 

scope of regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries and adjacent waters, and 

includes provisions for a number of excluded waters, some of which are excluded by 

rule for the first time. See summary response for section 12.3: 402-NPDES for more 

discussion of the rule and implementation of this program. See also summary 

responses in Topic 11: Costs/benefits and the Agencies Economics Analysis for an 

explanation of how the agencies considered costs and benefits for all CWA 

programs. 

12.301 The agencies do not explain whether the additional three percent is tied to categorically 

jurisdictional waters (e.g., the expanded definitions for “adjacent” and “tributary”) or to 

case-specific determinations with respect to newly defined “other waters” and the broad 

new definition for “significant nexus.” Moreover, the agencies simply fail to provide any 

supporting documentation and reasoned explanation regarding how this estimate was 

derived, which is a flawed comparison and significantly underestimates the likely 

increase.

Introducing the new aggregate approach to establish significant nexus, the proposal 

would significantly increase the scope of CWA jurisdiction. Yet the agencies have 

absolutely no idea how many more waters would be jurisdictional based on aggregation –

nor could they – and thus the issue could not have been properly considered under the 

three-percent estimate. As well, under recent Corps field practices, potential permittees 

would not have sought a jurisdictional determination (JD) for non-jurisdictional isolated 

features that would now be covered by this rule – further undermining the agencies’

estimation. Additionally, it is unclear whether the comparison is based solely on final or 

preliminary JDs (where applicants will frequently concede jurisdiction for permitting 

efficiency or for project cost/timeline reasons). Moreover, the comparison is not even 

relevant because the issue of whether the subject field practices are consistent with the 

CWA has not even been established. For these reasons, the agencies must provide a more 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

213

transparent, reasoned, and defensible estimate of the jurisdictional expansion under this 

proposal. (p. 20)

Agency Response: See Summary Response. See Technical Support Document for 

additional information on the scientific basis for the rule. See the Economic 

Analysis for additional information on predicted change in jurisdiction. The goal of 

the CWA is to protect the chemical, physical, and biological integrity of our nation’s 

waters. The agencies have been implementing this mission since the inception of 

the CWA. The additional costs that may be incurred as a result of the rule were 

taken into account during its formulation; however, the updated Economic Analysis 

indicates the benefits of the rule outweigh any associated costs placed on the 

regulated public and on the agencies themselves. The scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

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

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

existing categories such as tributaries. The agencies believe with the clarity and 

certainty provided in the rule that there will be efficiencies gained in making 

jurisdictional determinations in particular for certain categories of waters 

jurisdictional by rule. The Corps will develop the tools necessary to assist its staff 

with the jurisdictional determination process specific to section 404 during the 

implementation of the final rule to make the process predictable, efficient, and 

effective. The initial phase of implementing the rule will require education and 

training for agency staff as well as other stakeholders and the regulated public, 

which will include regionally-based training to ensure consistent and efficient 

implementation of the rule. 

Spectra Energy Corp (Doc. #14273)

12.302 Spectra recommends that the agencies take steps to alleviate agency workload concerns, 

including maintaining key nationwide permits and fully implementing their authority 

under the Water Resources Reform & Development Act of 2014 (“WRRDA”) which 

allows pipeline companies like Spectra to fund designated positions at the Corps to assist 

with permitting workloads.70 (p. 2)

Agency Response: See Summary Response. The rule only provides a definition 

for “waters of the U.S.” The rule does not affect the CWA statute in which 

authorization may be required for discharges of dredged and/or fill material into 

waters of the U.S., or other activities in jurisdictional waters of the U.S. which 

require authorization. In addition, the rule does not affect activities that are 

currently exempt from CWA regulation. The rule also does not affect permitting 

tools such as the use of general permits that the Corps implements for expeditious 

review and efficiency in processing permit applications for discharges of dredged 

and/or fills material into waters of the U.S. The rule will improve consistency and 

predictability for all CWA programs. The rule will provide needed clarity 

regarding jurisdictional determinations, thus reducing uncertainties and delays. 

 

70 Water Resources Reform & Development Act of 2014, Pub. L. No. 113-121, § 1006, 128 Stat. 1193, 1212-14 

(2014).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

214

The agencies believe with the clarity and certainty provided in the rule that there 

will be efficiencies gained in making jurisdictional determinations in particular for 

certain categories of waters jurisdictional by rule. The Corps will develop the tools 

necessary to assist its staff with the jurisdictional determination process specific to 

section 404 in the implementation of the final rule to make the process predictable, 

efficient, and effective. The initial phase of implementing the rule will require 

education and training for agency staff as well as other stakeholders and the 

regulated public, which will include regionally-based training to ensure consistent 

and efficient implementation of the rule.

12.303 We recommend that the rule acknowledge the increased need for permits under the 

proposed definition, commit to maintaining NWP 3 and NWP 12, and commit to 

adopting additional nationwide permits for newly jurisdictional waters. 

Spectra also recommends that the proposed rule commit to full implementation of section 

1006 of the WRRDA. This authority allows the Corps to expedite the evaluation of 

permit applications by accepting and expending funds contributed by natural gas 

companies and public utilities.71 Spectra recommends that the rule commit to employing 

this process. This would allow pipeline companies like Spectra to fund designated 

positions at the Corps to assist in dealing with the increased workload from the proposed 

definitional change. Such funding would ensure that delays are lessened and the Corps is 

able to employ the necessary qualified personnel to deal with the influx of permit 

applications. (p. 5)

Agency Response: See Summary Response. The rule only provides a definition for 

“waters of the U.S.” The rule does not affect the CWA statute in which 

authorization may be required for discharges of dredged and/or fill material into 

waters of the U.S., or other activities in jurisdictional waters of the U.S. which 

require authorization. In addition, the rule does not affect activities that are 

currently exempt from CWA regulation. The rule also does not affect permitting 

tools such as the use of general permits that the Corps implements for expeditious 

review and efficiency in processing permit applications for discharges of dredged 

and/or fills material into waters of the U.S. The rule will improve consistency and 

predictability for all CWA programs. The rule will provide needed clarity 

regarding jurisdictional determinations, thus reducing uncertainties and delays. 

The agencies believe with the clarity and certainty provided in the rule that there 

will be efficiencies gained in making jurisdictional determinations in particular for 

certain categories of waters jurisdictional by rule. The Corps will develop the tools 

necessary to assist its staff with the jurisdictional determination process specific to 

section 404 in the implementation of the final rule to make the process predictable, 

efficient, and effective. The initial phase of implementing the rule will require 

education and training for agency staff as well as other stakeholders and the 

regulated public, which will include regionally-based training to ensure consistent 

and efficient implementation of the rule. The Corps Nationwide permits will be 

 

71 Analysts estimate that North America will need over 338,000 miles of new natural gas pipeline from 2014-2035. 

INGAA Report at 19.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

215

reauthorized in 2017 via the public notice and comment rulemaking process and 

comments regarding appropriate activities for inclusion are welcomed during that 

process. Implementation of WRRDA 1006 is beyond the scope of this rulemaking. 

National Lime Association (Doc. #14428)

12.304 Unless the Agencies reissue a clearer and more precise proposal for the public to 

consider, the rule as currently written will compel sources to interpret the regulations in 

the most conservative way and thereby conclude that a water is jurisdictional (even when 

it is not) in order to avoid the potential for later being accused of being in noncompliance. Thus, either by the rule’s intent or merely by happenstance, it is quite 

foreseeable that the current proposal will contribute to a potential expansion of 

jurisdiction, not the narrowing which the Agencies predict. (p. 17)

Agency Response: See Summary Response. The agencies believe the final rule 

will result in increased clarity and certainty regarding the identification of “waters 

of the U.S.” The agencies believe the clarity and certainty provided in the rule will 

result in better identification of what is/is not a water of the U.S. which may result in 

reduced enforcement actions associated with unauthorized activities and reduced 

opportunity for litigation based on what is/is not a water of the U.S. The agencies 

are developing guidance to facilitate effective, consistent, and efficient 

implementation of the final rule once it becomes effective. The agencies strive to 

achieve consistency across the country in all districts and regions in application of 

the rule for jurisdictional determinations. The agencies also recognize that there 

are variations that occur in geography, hydrology, climate, etc., which affect 

jurisdictional determinations. The initial phase of implementing the rule will 

require education and training for agency staff as well as other stakeholders and the 

regulated public. This training and outreach will be regionally-based to ensure 

appropriate consideration is given to ecoregional variation and to ensure consistent 

and efficient implementation of the rule. 

Responsible Industry for a Sound Environment (Doc. #14431)

12.305 Due to the broad definitions outlined in the proposed rule, there are no metrics to guide 

pesticide applicators and landowners in determining which “other waters” establish a 

significant nexus to a jurisdictional water. The proposed rule will create regulatory 

uncertainty between the Federal Insecticide, Fungicide, Rodenticide Act and CWA 

jurisdiction, specifically as it relates to NPDES permits being required for applications of 

pesticides in, over or near waters. (p. 2)

Agency Response: For clarification regarding “other waters” and their significant 

nexus see the summary response for Topic 4: Other waters. With respect the 

application of pesticides under NPDES and its relationship to FIFRA, please see 

summary response for section 12.3.

Colorado Water Congress Federal Affairs Committee (Doc. #14569)

12.306 To the extent additional waters, such as all intermittent or ephemeral streams are now 

jurisdictional, the ability to utilize nationwide 404 permit provisions is placed at risk. As 

the scope and length of jurisdictional waters expands, the ability to meet the limitations 

governing qualification for nationwide status contracts. (p. 4)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

216

Agency Response: See Summary Response. The agencies believe the proposed 

rule will result in increased clarity and certainty regarding the identification of 

“waters of the U.S.” The agencies received many helpful comments on the proposed 

rule which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public. None of the existing procedures, permitting 

mechanisms, efficient permitting tools such as general permits, or activity 

exemptions will be modified as a result of this rulemaking; therefore, existing 

procedures should not be further complicated by this rule. See the Nationwide 

Permit program for further discussion of impact thresholds which may/may not 

require pre-construction notification. The Corps Nationwide permits will be 

reauthorized in 2017 via the public notice and comment rulemaking process and 

comments regarding appropriate activities for inclusion are welcomed during that 

process. 

12.307 As more so-called jurisdictional waterbodies or waterbody reaches of the type noted 

above are considered jurisdictional, additional point and nonpoint sources will need to be 

included in TMDL calculations. It may also be necessary to reopen existing TMDL 

allocations for purposes of including within the calculations the new point and nonpoint 

sources. (p. 4)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries and adjacent waters, and includes provisions for a number of excluded 

waters, some of which are excluded by rule for the first time. For example, under 

the final rule many ephemeral and intermittent ditches, and waters constructed in 

dry land, such as stormwater conveyance features, waste treatment systems, 

including treatment ponds and lagoons designed to meet the requirements of the 

CWA, wastewater recycling structures and basins, and artificial lakes and ponds, 

including settling basins and cooling ponds, are all excluded from waters of the U.S. 

See summary responses for 6.2: Excluded ditches and Topic 7: Features and waters 

not jurisdictional, for further discussion of excluded waters. Additionally, this rule 

will not affect the current implementation of the various CWA program, such as the 

development of water quality standards or implementation of sections 303, 402 and 

404.

Metropolitan Water District of Southern California (Doc. #14637)

12.308 The Agencies do not discuss how they will establish consistency in making significant 

nexus determinations across the country. For instance, how does the seasonality of 

precipitation and periodic lengthy drought in the arid west affect the connectivity of 

upstream features to downstream waters? If an “other” water is isolated from 

downstream features for 10 years or more due to lack of precipitation, does that still mean 

there is a significant nexus between that isolated upstream feature and the downstream 

water? In other words, is there a certain frequency of storm event that would trigger a 

finding of significant nexus in the arid west? Metropolitan is concerned that the 

standards proposed for the final rule will unnecessarily increase permitting requirements 

in the arid southwest, without a measured benefit to water quality. Metropolitan requests 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

217

that the Agencies explicitly consider the special circumstances in the arid west in 

significant nexus determinations to take into account the fact that isolated or “other”

waters may not in fact be connected to downstream waters except during infrequent 

exceptional storm events, and that this situation does not constitute a significant nexus. 

(p. 7)

Agency Response: See Summary Response. See Technical report and the 

Connectivity Report for additional information. The agencies believe the final rule 

will result in increased clarity and certainty regarding the identification of “waters 

of the U.S.” The agencies received many helpful comments on the proposed rule 

which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public. The final rule includes a definition of “significant 

nexus” which includes a list of factors to be considered when making such a 

determination. The definition provides additional clarity and predictability in 

making significant nexus determinations. The agencies recognize that there are 

appropriate levels of regional variation in implementation of the regulations; 

however, the agencies strive for national consistency. The agencies believe the 

clarity and certainty provided in the rule will result in further consistency, while 

still allowing for regional variation in implementation that may be necessary based 

on regional differences in aquatic resources; for example, the OHWM regional 

manuals or the regional supplements to the wetland delineation manual, both of 

which are outside the scope of this rulemaking but are related resources.

12.309 Groundwater should not be used to determine the jurisdictional scope of surface features. 

The term “adjacent” is defined in the proposed rule to mean bordering, contiguous or 

neighboring. The term “neighboring,” for purposes of the term “adjacent,” includes 

waters with a shallow subsurface hydrologic connection to (a)(l) through (a)(5) waters. 

Metropolitan is concerned about this regulatory provision for a number of reasons. As 

discussed in our comment letter on the Draft Connectivity Report, in the arid west, 

directional movement of subsurface water can be very complicated (see Enclosure 2). 

Therefore, studies to understand subsurface connections may not be definitive, and the 

determination of subsurface connection can be very costly and time-consuming. The 

burden of these studies, in terms of cost, effort and time involved, would fall to the 

regulated community. This one requirement alone could greatly increase the cost and 

schedule of projects and activities. Such studies could require costly installation of wells 

and piezometers to characterize subsurface groundwater conditions. These studies could 

require many months to complete. This delay would be in addition to the delay caused 

by limited staff resources at the Corps available to review project applications (p. 10) 

Agency Response: See Summary Response. The agencies believe the final rule will 

result in increased clarity and certainty regarding the identification of “waters of 

the U.S.” The agencies received many helpful comments on the proposed rule which 

resulted in refinement of the final rule to provide further clarity and certainty to the 

regulated public. See the preamble for further discussion on the “Adjacent 

Waters” sections. The final rule has further refined the “neighboring” definition to 

provide additional clarity and predictability. The use of shallow sub-surface flow 

connections has been removed from the definition of neighboring in the final rule. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

218

Utility Water Act Group (Doc. #15016)

12.310 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 [Economic Analysis 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 burdens imposed by TMDLs, which are expensive and timeconsuming to prepare72 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. 27)

Agency Response: The final rule does not change the authority of states and tribes 

to set water quality standards and designate regulated waters within their 

boundaries. States and tribes will also continue to have discretion to design and 

implement ambient surface water monitoring strategies and propose waters for the 

303(d) and TMDL programs. States conduct assessments based on all existing and 

readily-available monitoring data. States are required to list waters that are 

impaired, but have discretion to prioritize this list for TMDL development, which 

may proceed over a period of several years under EPA policy. Monitoring, 

assessment, and TMDL development tend to occur in water segments where the 

agencies assertion of jurisdiction is unlikely to change. Therefore, additional cost 

burdens for TMDL development are not anticipated from this action.

Steptoe & Johnson LLP (Doc. #15242)

12.311 This Proposal is excessively broad and ambiguous, and in practice will undermine EPA’s 

efforts to encourage fuel retailers to invest in equipment that is compatible with higher 

ethanol blends. Under the Proposed Rule, there will be an additional layer of regulatory 

complexity and cost associated with every investment and expansion decision that 

retailers make. These will work against EPA’s regulations under the Renewable Fuel 

Standard program (“RFS”), which relies on retailers investing in new equipment that can 

store and dispense gasoline-ethanol blends greater than ten percent ethanol. If finalized 

as proposed, retailers would be less inclined to undertake these investments. (p. 1)

Agency Response: The renewable fuel standards are outside the scope of this 

rulemaking. The EPA does not agree that the Clean Water Rule will discourage fuel 

retailers from investing in new equipment. 

Upper Trinity Regional Water District (Doc. #15728)

12.312 The draft rule does not address the issue of recycled water projects, in particular those 

that may involve natural process using wetlands to treat millions of gallons of water a 

 

72 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.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

219

day. Additional clarification is needed to avoid adverse impact on such wetland projects, 

especially man-made or enhanced wetlands. (p. 3)

Agency Response: See Summary Response. See the preamble section “Water and 

Features that Are Not Waters of the United States” for further clarification on 

excluded water features. In particular, paragraph (b) of the final rule regarding the 

exclusion for certain stormwater control features and wastewater recycling 

structures provides clarification of this issue. With respect to constructed treatment 

wetlands, please see essay 7.1. 

Lower Colorado River Authority (Doc. #16332)

12.313 LCRA requests that USAGE confirm that all existing USAGE Regulatory Guidance 

Letters will remain valid after the adoption of a final rule. (p. 3)

Agency Response: See Summary Response. None of the existing procedures, 

permitting mechanisms, efficient permitting tools such as general permits, or 

activity exemptions will be modified as a result of this rulemaking; therefore, 

existing procedures should not be further complicated by this rule. However, 

certain guidance documents, memorandums, etc., may require revisions or may be 

rescinded based on the final rule. Those documents will be identified by the Corps 

and appropriate action will be taken after the final rule is effective. The Corps will 

post public notices to ensure the widest dissemination possible of the information 

when any change occurs. 

Anthracite Region Independent Power Producers Association (Doc. #16545)

12.314 (...) the definitional changes (of waters of the United States) provides a more 

comprehensive means to become more deeply involved with veto power over many other 

state and/or federal programs including but not limited to the Federal Office of Surface 

Mining, Reclamation and Enforcement (which also provides a similar veto power over 

their programs (both the Title IV and Title V Programs under the Federal Surface Mining 

Conservation and Reclamation Act of 1977 (PL 95-97). This expansion can also have an 

impact on re-mining programs that include aspects of 40CFR Part 434 related to coal 

mining. (p. 3)

Agency Response: See summary response. The final rule at paragraph (b) and the 

preamble section “Water and Features that Are Not Waters of the United States” 

provide further clarification on excluded water features, in particular, regarding the 

exclusion for water-filled depressions created in dry land incidental to mining. EPA 

and the Corps jurisdictional authority under the final rule is limited to the Clean 

Water Act. The rule only provides a definition for “waters of the U.S.” The rule 

does not affect the CWA statute in which authorization may be required for 

discharges of dredged and/or fill material into waters of the U.S., or other activities 

in jurisdictional waters of the U.S. which require authorization. In addition, the 

rule does not affect activities that are currently exempt from CWA regulation. The 

rule also does not affect permitting tools such as the use of general permits that the 

Corps implements for expeditious review and efficiency in processing permit 

applications for discharges of dredged and/or fills material into waters of the U.S. 

The rule will improve consistency and predictability for all CWA programs. The 
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220

rule will provide needed clarity regarding jurisdictional determinations, thus 

reducing uncertainties and delays. The agencies recognize that the state and local 

governments have well-defined and long-standing relationships in implementing 

affected CWA programs and these relationships will not be altered. This action will 

not have substantial direct effects on the states, on the relationship between the 

national government and the states, or on the distribution of power and 

responsibilities among the various levels of government. The agencies are not 

restricting the states’ efforts in developing or implementing statewide permits under 

CWA programs as a result of the rule.

League of Oregon Cities (Doc. #16546)

12.315 (...) broadening of jurisdictional regulation is likely to increase permitting and mitigation 

requirements which can result in additional time, complexities and cost to projects 

including roadway construction, utility facility expansions, and installation of water lines, 

intakes and outfalls. These additional requirements could come in the form of 

compliance considerations under the Endangered Species Act as well as the National 

Historic Preservation Act. With mounting infrastructure needs and facilities on the verge 

of Non-compliance, we have significant concerns that the proposed rule will result in 

further litigation, increased costs or permitting delays. (p. 2)

Agency Response: See summary response. While it is the responsibility of the 

Corps as the agency evaluating permit applications under section 404, to determine 

if Endangered Species Act and the National Historic Preservation Act requirements 

are being met, there are cases where these laws or other federal, state or local laws 

may still require review absent a CWA action. The 404 permit action does not 

remove the requirement to get other permits, if required by law. Obtaining a 

jurisdictional determination from the agencies does not trigger Section 7 of the 

Endangered Species Act, a federal action does, and a section 404 permit is a federal 

action. However, private landowners are also required to comply with Section 10 of 

the Endangered Species Act absent a federal action. The agencies work to ensure 

this compliance with other federal laws is completed in the most efficient and 

effective manner, and may include programmatic agreements or local operating 

procedures to streamline the process. The agencies believe with the clarity and 

certainty provided in the rule that there will be efficiencies gained in making 

jurisdictional determinations in particular for certain categories of waters 

jurisdictional by rule. The Corps will develop the tools necessary to assist its staff 

with the jurisdictional determination process specific to section 404 during the 

implementation of the final rule to make the process predictable, efficient, and 

effective.

Xcel Energy, Inc. (Doc. #18023)

12.316 Utilities should not lose the important benefits of the nationwide permit program under 

existing permits for separate and complete pipeline projects and underground utility 

installations. (p. 8)

Agency Response: See summary response. The comment is outside the scope of 

this rulemaking effort. None of the existing procedures, permitting mechanisms, 

efficient permitting tools such as general permits, or activity exemptions will be 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

221

modified as a result of this rulemaking; therefore, existing procedures should not be 

further complicated by this rule. The Corps Nationwide permits will be 

reauthorized in 2017 via the public notice and comment rulemaking process and 

comments regarding appropriate activities for inclusion are welcomed during that 

process. 

Coalition of Renewable Energy Landowner Associations (Doc. #14626)

12.317 (...) if “case by case” of significant nexus standards are applied in making a waters of the 

United States determination, then we would ask what the conventions and standards 

currently are (and should be) that need be applied to a jurisdictional review of a waterway 

to determine if a significant nexus exists and most importantly if a significant nexus can 

be maintained in perpetuity on any particular river, tributary or playa lake/prairie pothole. 

(p. 3)

Agency Response: See summary response. The preamble sections for “Significant 

Nexus” and “Adjacent Waters” provide additional clarification. An approved 

jurisdictional determination would be required to make a case-specific 

determination that a significant nexus exists on a potential waters of the U.S. under 

the (a)(7) and (a)(8) categories of the final rule. Under existing Corps’ regulations 

and guidance, Corps’ approved jurisdictional determinations generally are valid for 

five years. The preamble addresses the status of final JDs and permits as well as 

pending JDs and permits. The agencies received many helpful comments on the 

proposed rule which resulted in refinement of the final rule to provide further 

clarity and certainty to the regulated public. The final rule includes a definition of 

“significant nexus” which includes a list of factors to be considered when making 

such a determination. The definition provides additional clarity and predictability 

in making significant nexus determinations. The agencies are developing guidance 

to facilitate effective, consistent, and efficient implementation of the final rule once it 

becomes effective. The agencies strive to achieve consistency across the country in 

all districts and regions in application of the rule for jurisdictional determinations. 

The agencies also recognize that there are variations that occur in geography, 

hydrology, climate, etc., which affect jurisdictional determinations. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public. This training and outreach 

will be regionally-based to ensure appropriate consideration is given to ecoregional 

variation and to ensure consistent and efficient implementation of the rule. 

Ducks Unlimited (Doc. #11014)

12.318 Balancing Science and Pragmatism in Fulfilling the Purposes of the Act. In our previous 

discussion of the fundamental criteria for a final rule, we encouraged the agencies to craft 

a rule that is scientifically and administratively efficient and pragmatic in fulfilling the 

purposes of the Act. An underlying assumption, of course, is that in seeking to apply the 

significant nexus test, there is an obligation to ensure that the scientific processes used 

produce valid results with which to make sound decisions. Unfortunately, these two 

objectives can be somewhat in opposition to one another. Good, valid science requires 

time and money, not only to gather the relevant facts but to do so over a spatial scale and 

time period sufficient to adequately account for the inherent temporal and spatial 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

222

variability that exists within aquatic systems. However, an administratively efficient 

system seeks certainty and predictability, as well as timeliness, in the decision-making 

process. A final rule must balance these issues, but must do so in a way that is most 

likely to fulfill the purposes of the Act and be consistent with the weight of the scientific 

evidence. 

The growing post-Rapanos case law is making it increasingly clear that a dependence 

upon case-by-case analyses of significant nexus is creating a growing expectation and 

burden to collect as complete a record of the science-based facts as possible (Kerns 

2014). These analyses can be very costly and time-consuming, but as complete and 

sound as they might seek to be in documenting the facts within a short (at least one 

annual cycle) time frame, from a scientific standpoint their validity is nevertheless 

compromised by not assessing the inter-annual variation that can lead to significantly 

different results and determinations. Thus, the extent to which a regulatory path 

emphasizes the use of case-by-case analyses, it will be more impractical and costly for all 

entities, and perhaps open the door to increased litigation to dispute science-based facts 

drawn and interpreted from various perspectives (e.g., short-term vs. long-term, small

versus large spatial scale, variable interpretations of scientific and legal “significance”). 

In addition, there is inherently less clarity, certainty, and predictability associated with a 

broader emphasis on case-by-case analyses. 

Also, as is seen in and exhaustive review of the literature such as the Connectivity 

Report, wetlands and other aquatic features exist along a continuum of multiple variables. 

Disputes between regulators over “facts,” and even the variability with respect to 

perspectives on significant nexus among the perspectives of regulators, create additional 

uncertainty for all concerned, as well. The complexity of case-by-case analyses could be 

overwhelming in many respects and lead to “paralysis by analysis,” or alternatively, to 

making decisions through a process that is neither scientifically valid nor as accurate as 

possible or necessary in a given situation.

Therefore, a reductionist approach to applying case-by-case analyses within the rule will 

not lead to a rule that accomplishes the agencies’ stated objectives, such as maximizing 

clarity, while at the same time fulfilling the purposes of the Act to the maximum extent 

supported by the weight of the available and emerging science. These overall 

circumstances should lead the agencies to seek the more “simple truths,” i.e., the 

generalizations that are valid in light of the overall weight of the scientific evidence, and 

that are as broadly applicable as possible. The science should be viewed broadly, 

focusing on scientifically valid commonalities and reasonable generalizations, and should 

not give undue weight to the exceptions and outliers. In light of the massive amount of 

science that demonstrates significant nexus of many classes of “other waters” within their 

regional contexts, designation as jurisdictional by rule will most often be more 

scientifically accurate than a designation as non-jurisdictional until determined to be so 

via a case-specific significant nexus assessment that would suffer from the inherent 

shortcomings addressed above. 

In considering the scope and direction of the reasonable generalizations that can be made 

regarding the significant nexus between many “other waters” and navigable waters, the 

agencies should also consider the trends in the recent, emerging science and what the 

application of new technologies tells us about the inter-relationships of these classes of 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

223

waters. Consideration of these issues has important ramifications for appropriate and 

scientifically justifiable application of jurisdiction in fulfillment of the Act’s purposes. 

For example, even the incremental advances in the remote sensing analysis that took 

place between each update of the national wetland status and trends by the U.S. Fish and 

Wildlife Service has led to the detection of more wetland acres than had been observed in 

the previous analysis. These changes simply reflected improvements in the accuracy and 

precision of the technology. Frohn et al. (2009) used remote sensing to identify and map 

geographically isolated wetlands, and offer a number of recommendations to achieve 

high accuracy. However, their work highlights weaknesses associated with many 

existing datasets, indicating that underestimation of wetland acreage on the landscape and 

their level of connectivity is more the norm than not. Their recommendations also 

provide additional emphasis on the concerns regarding the time, cost, and considerations 

of scientific validity that are involved in conducting case-by-case significant nexus 

analyses. Based on an analysis of a Georgia landscape in which geographically isolated 

wetlands are common, Martin et al. (2012) demonstrated that improvements in 

techniques and technology can lead to improved accuracy and showed an increased 

detection of wetlands. However, it seems evident that application of these technologies 

at large spatial scales would be extremely costly, particularly at a time when the National 

Wetlands Inventory is being phased out due to fiscal constraints and federal agency 

budgets, in general, are under great pressure. 

Further, the increasing use of LiDAR technology (e.g., Lane and D’Amico 2010; Lang et 

al. 2013) is dramatically affecting the detection of wetlands on the landscape and 

analyses of their connectivity. Lang et al. (2012) looked at Delmarva bays among the 

forested wetlands in the Choptank River watershed in Maryland and Delaware, and found 

that LiDAR was considerably more accurate than was the NHD high resolution data 

which underestimated wetland area by 15% and wetland number by 13%. This kind of 

difference could have an important and meaningful impact upon the outcome of any 

significant nexus analyses of watersheds such as this.

Overall, the trends in the wetland science being generated as a result of emerging 

technology, as well as the trends in the rapidly growing science related to the 

connectivity between wetlands and navigable waters, supports the general view that the 

emerging science far more often supports connectivity (in the aggregate) between “other 

waters” and downstream waters than it demonstrates a lack of connectivity. Regardless 

of the generalizations that the agencies use in the course of finalizing the rule and its 

determination of the classes of wetlands that will be jurisdictional by rule and those that 

will be subject to case-by-case significant nexus analyses, in light of the rate and 

importance of the emerging science relevant to science-based determinations of 

significant nexus, the final rule must incorporate a process whereby jurisdiction and 

related processes can be updated based on new science and data related to the actual 

observation of downstream impacts of wetland degradation and loss. (p. 71-73)

Agency Response: See Summary Response. The Technical Support Document 

provides a summary of the legal and scientific bases for the final rule. The final rule 

was developed to increase CWA program predictability and consistency by 

increasing clarity as to the scope of “waters of the United States” protected under 

the Act. The Corps will develop the tools necessary to assist its staff with the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

224

jurisdictional determination process specific to section 404 in the implementation of 

the final rule to make the process predictable, efficient, and effective. The agencies 

are developing guidance to facilitate effective, consistent, and efficient 

implementation of the final rule once it becomes effective. The agencies strive to 

achieve consistency across the country in all districts and regions in application of 

the rule for jurisdictional determinations. The agencies also recognize that there 

are variations that occur in geography, hydrology, climate, etc., which affect 

jurisdictional determinations. The initial phase of implementing the rule will 

require education and training for agency staff as well as other stakeholders and the 

regulated public. This training and outreach will be regionally-based to ensure 

appropriate consideration is given to ecoregional variation and to ensure consistent 

and efficient implementation of the rule. Approved JDs that identify the limits of 

waters of the United States may be based on site visits or desktop reviews. The 

agencies have been using remote sensing and desktop tools to delineate tributaries 

for many years where data from the field are unavailable or a field visit is not 

possible. Desktop reviews are sufficient in cases where the district has a high degree 

of confidence in the information used to identify the limits of jurisdictional waters. 

For example, desktop reviews may be based on detailed delineation reports 

prepared by professional wetland consultants. The level of mapping precision for an 

approved JD that identifies the limits of waters of the United States is at the 

discretion of the district. In some cases, districts may need to require professional 

surveys of jurisdictional boundaries, but in other cases, other mapping techniques 

may be adequate. See the preamble for further discussion on desktop tools in the 

“Tributary” section. In addition, desktop tools are critical in circumstances where 

physical characteristics waters are absent in the field, often due to unpermitted 

alteration of waters. The majority of this information is available for the public’s 

use; these tools can allow for greater consistency with currently available and 

accessible data sources. The agencies use the best available science and information 

gathered from field visits and/or desktop resources in each case-by-case 

jurisdictional determination.

12.319 A final rule must balance science and pragmatism, but in a way that is most likely to 

fulfill the purposes of the Act and be consistent with the weight of the scientific evidence. 

The extent to which the final rule relies upon case-by-case analyses will be more 

impractical and costly for all entities, and perhaps open the door to increased litigation to 

dispute facts drawn and interpreted from various perspectives (e.g., short-term vs. longterm, small versus large spatial scales, variable interpretations of scientific and legal 

“significance”). In light of the massive amount of science that demonstrates significant 

nexus for many classes of “other waters” within their regional contexts, designation as 

“jurisdictional by rule” will most often be more scientifically accurate than a designation 

as “non-jurisdictional until determined to be so” via a case-specific significant nexus 

assessment that would suffer from the inherent shortcomings imposed by scientific and 

administrative realities. (p. 80)

Agency Response: See summary response. The preamble section on “Case 

Specific Waters of the U.S.” provides further discussion on the types of waters 

under the (a)(7) and (a)(8) categories which require case-specific significant nexus 

determinations. The final rule was developed to increase CWA program 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

225

predictability and consistency by increasing clarity as to the scope of “waters of the 

United States” protected under the Act. The final rule provides for certain 

categories of waters that are jurisdictional by rule, which will result in a more 

efficient process. The Corps will develop the tools necessary to assist its staff with 

the jurisdictional determination process specific to section 404 during the 

implementation of the final rule to make the process predictable, efficient, and 

effective. Additionally, the agencies recognize that there are appropriate levels of 

regional variation in implementation of the regulations; however, the agencies strive 

for national consistency. The agencies believe the clarity and certainty provided in 

the rule will result in further consistency, while still allowing for regional variation 

in implementation that may be necessary based on regional differences in aquatic 

resources; for example, the ordinary high water mark regional manuals or the 

regional supplements to the wetland delineation manual, both of which are outside 

the scope of this rulemaking but are related resources. The final rule further 

clarifies “significant nexus” by providing a definition under paragraph (c) of the 

term as well as a list of factors to be considered when making such a determination. 

Professional Landcare Network (Doc. #11831)

12.320 The lack of clear definitions will make it more difficult for lawn care and landscape 

professionals to determine if Clean Water Act (CWA) permits will be needed to install 

landscapes or to apply fertilizer or pesticides. The vague definitions and concepts will 

likely result in litigation over their proper meaning. (p. 2)

Agency Response: See summary response 12.3. The proposed rule neither changes 

nor imposes new requirements for complying with the pesticides general permit 

(PGP). See also compendium 14.3 for responses to comments on definitions. 

Chesapeake Bay Foundation (Doc. #14620)

12.321 Recognizing the Rapanos decision’s importance to the health of the Chesapeake Bay and 

its tributaries, CBF submitted an amicus curiae brief in the Rapanos case supporting the 

U.S. Army Corps of Engineers’ (Corps) jurisdiction over non-tidal wetlands and 

headwater streams. CBF explained that without CWA jurisdiction over non-navigable 

tributaries and adjacent wetlands, the Bay states could not achieve the stricter water 

quality standards and waste load allocations necessary to restore the water quality of the 

Chesapeake Bay. This remains true today and is even more pressing in light of the 

upcoming 2017 and 2025 benchmark deadlines for the Chesapeake Bay TMDL for 

sediment, nitrogen, and phosphorous. In 2007 CBF submitted comments in response to 

the EPA and Corps’ Rapanos Guidance urging that the CWA definition of “waters of the 

United States” be amended to resolve the confusion caused by the Rapanos decision. 

CBF is encouraged by EPA’s current rulemaking process and initiative to bring much 

needed clarification to the definition. The proposed definition of “waters of the United 

States” explicitly includes waters with a documented73 hydrologic connection to 

navigable waters and reduces the number of cases in which a water is subject to the caseby-case analysis of the significant nexus test.

 

73 See Review of Connectivity Report, supra note 1.
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226

Post-Rapanos regulatory confusion leads to a lack of enforcement of the CWA except in 

clear cases of jurisdiction; these clear cases constitute a minority of the total number of 

instances of illegal water pollution. Under the current rule, discharges of pollutants 

continue not because the CWA permits pollution of waterways, but because of the 

prohibitive cost of litigating the issue of jurisdiction. The resource-constrained 

Department of Justice (DOJ), EPA, and Corps – the federal agencies jointly responsible 

for identifying and bringing CWA enforcement cases – are deterred from pursuing cases 

in which the facts are not entirely clear. Indeed, a 2009 Report from the EPA Inspector 

General found that overall CWA enforcement “ha[d] decreased since the Rapanos ruling. 

An estimated total of 489 enforcement cases...ha[d] been affected such that formal 

enforcement was not pursued as a result of jurisdictional uncertainty, case priority was 

lowered as a result of jurisdictional uncertainty, or lack of jurisdiction was asserted as an 

affirmative defense to an enforcement action.”

74

 Non-navigable tributaries, non-tidal 

wetlands, and ephemeral and intermittent streams are often subject to the “significant 

nexus” test and its high burden of scientific evidence, and are often avoided by 

enforcement agencies. Non-profit organizations like CBF attempt to fill these large and 

harmful gaps in enforcement by bringing citizen suit actions to protect valuable 

tributaries and wetlands. CBF has experienced first-hand the financial and environmental 

cost of proving the hydrologic importance of these waterbodies on an individual basis. (p. 

2-3)

Agency Response: The rule will clarify and simplify implementation of the CWA 

consistent with its purposes through clearer definitions and increased use of brightline rules. This rule replaces existing procedures that often depend on individual, 

time-consuming, and often inconsistent analyses of the relationship between a 

particular stream, wetland, lake, or other water with downstream navigable waters. 

The agencies have greatly scoped the extent of waters subject to this individual 

review by carefully incorporating the scientific literature characterizing the nature 

and strength of the chemical, physical, and biological connections between upstream 

and downstream waters. The result of applying this scientific analysis is that the 

agencies can more effectively focus the rule on identifying waters that are clearly 

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

to understand, consistent, and environmentally more protective.

Environmental Defense Fund (Doc. #14946)

12.322 In light of the need for clarity on the scope of the waters of the U.S., we urge the agencies 

to finalize the rule as expeditiously as possible: EDF and a broad array of other 

stakeholders and stakeholder groups, including developers, energy companies, water 

utilities, agriculture, manufacturing and extraction industries, conservationists and 

environmentalists, state, local and tribal government officials, and members of Congress, 

urged the agencies to conduct a rulemaking to provide greater clarity on the scope of 

waters of the U.S. in the wake of confusion caused by the Supreme Court decisions in 

SWANCC and Rapanos. 

 

74 U.S. EPA Office of Inspector General, Congressionally Requested Report on Comments Related to Effects of 

Jurisdictional Uncertainty on Clean Water Act Implementation, Report No. 09-N-0149, at 1 (2009), available at 

http://www.epa.gov/oig/reports/2009/20090430-09-N-0149.pdf.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

227

The threat posed by the current uncertainty is that it leaves many headwater and seasonal 

streams and wetlands unprotected, thereby crippling efforts to achieve the Clean Water 

Act goal to restore and maintain the chemical, physical and biological integrity of the 

Nation’s waters. Like the capillaries in the human body’s circulatory system, the vast 

networks of headwater and seasonal streams comprise the majority of stream miles in this 

country and play a critical role in maintaining the chemical, physical and biological 

integrity of downstream navigable waters. (p. 2)

Agency Response: See Summary Response. The agencies acknowledge the 

commenter’s support of the final rule. The agencies believe the final rule will result 

in increased clarity and certainty regarding the identification of “waters of the 

U.S.”The agencies received many helpful comments on the proposed rule which 

resulted in refinement of the final rule to provide further clarity and certainty to the 

regulated public. The agencies agree that headwater streams that meet the 

definition of tributary are important resources and do have a significant nexus to 

the downstream (a)(1) to (a)(3) waters such that they are jurisdictional by rule.

12.323 In the wake of SWANCC and Rapanos, the CWA permitting programs have become 

more complicated, resource-intensive, uncertain and slow. Making case-by-case 

determinations of whether individual waters have a significant nexus to downstream 

navigable waters is 8 to 10 times more resource intensive than the permitting process was 

pre-SWANCC and Rapanos.75 This also has had a significant chilling effect on CWA 

enforcement. EPA has declined to pursue hundreds of enforcement actions due to 

“jurisdictional uncertainty.”

76 (p. 2)

Agency Response: See summary response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. The agencies note 

that the final rule provides for certain categories of waters that are jurisdictional by 

rule, which will result in a more efficient process. The Corps will develop the tools 

necessary to assist its staff with the jurisdictional determination process specific to 

section 404 during the implementation of the final rule to make the process 

predictable, efficient, and effective. The initial phase of implementing the rule will 

require education and training for agency staff as well as other stakeholders and the 

regulated public, which will include regionally-based training to ensure consistent 

and efficient implementation of the rule. The agencies believe the clarity and 

certainty provided in the rule will result in better identification of what is/is not a 

water of the U.S. which may result in reduced enforcement actions for unauthorized 

activities and reduced opportunity for litigation based on what is/is not a water of 

the U.S. The final rule was developed to increase CWA program predictability and 

consistency by increasing clarity as to the scope of “waters of the United States” 

protected under the Act. 

 

75 R. Meltz, C. Copeland, “The Wetlands Coverage of the Clean Water Act (CWA): Rapanos and Beyond”, at 11 

(Congressional Research Service, September 2014) http://nationalaglawcenter.org/wpcontent/uploads/assets/crs/RL33263.pdf

76 Id.
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228

National Wildlife Federation (Doc. #15020)

12.324 The Overall Approach to the Proposed Rule Increases Clarity and Consistency with the 

Clean Water Act, the science, and the legal precedent. First, we support the agencies’

application of the jurisdictional definition of “waters of the United States” to all of the 

Clean Water Act programs, just as Congress did when it passed the 1972 Clean Water

Act. There is no jurisdictional distinction between different programs of the Act.77 The 

Act simply does not allow a water body to be jurisdictional if one type of activity is at 

issue, but not jurisdictional if another type of activity is at issue.78 Thus, if a water body 

is not jurisdictional for purposes of the section 404 permit program, it is not jurisdictional 

for the Section 301 prohibition on the discharges of pollutants, the Section 402 NPDES 

program, Section 303 water quality standards, Section 311 oil spill regulations, or any 

other Clean Water Act program that limits its jurisdiction to “navigable waters.” The 

scope of jurisdiction also affects when states are able to certify whether federal permits 

are in compliance with state water quality standards under Section 401 of the Act. 

Consequently, we strongly support the agencies decision to apply the Proposed Rule to 

all of these CWA programs. (p. 23)

Agency Response: See Summary Response. The rule will significantly improve 

the consistency and predictability for all CWA programs. The rule only provides a 

definition for “waters of the U.S.” The rule does not affect the CWA statute in 

which authorization may be required for discharges of dredged and/or fill material 

into waters of the U.S., or other activities in jurisdictional waters of the U.S. such as 

NPDES permits Section 401 certification, water quality standards or Section 311 

requirements which require authorization. The agencies recognize that the state and 

local governments have well-defined and long-standing relationships in 

implementing affected CWA programs and these relationships will not be altered. 

This action will not have substantial direct effects on the states, on the relationship 

between the national government and the states, or on the distribution of power and 

responsibilities among the various levels of government. The agencies are not 

restricting the states’ efforts in developing or implementing statewide permits under 

CWA programs as a result of the rule. The agencies understand that the definition 

of “waters of the U.S.” applies to all CWA programs. The agencies modified the 

final rule from the proposed rule in response to comments received in order to 

ensure unintended effects to those other CWA programs were reduced or 

eliminated.

 

77 Id. § 1362(7): [supra at 23: EPA SAB letter to Administrator McCarthy, SAB Review of the Draft EPA Report 

Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence 

(October 17, 2014) (SAB Connectivity Peer Review Letter) at: 

http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr_activites/AF1A28537854F8AB85257D74005003D2/$File/EPA

-SAB-15-001+unsigned.pdf

78 While the 2008 Guidance purported to be limited to CWA § 404, even then the Corps acknowledged this in a 

Questions & Answers posting related to the Rapanos decision and the 2007-08 Guidance, stating, “While the 

Rapanos case involved the CWA § 404 permitting program for discharged of dredged or fill material, the decision 

has implications for all CWA programs, such as § 402 National Pollutant Discharge Elimination System (NPDES) 

permits, § 311 oil spill prevention and cleanup, and § 303 water quality standards.” Questions & Answers for the 

Rapanos and Carabell Decision at 67.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

229

Environmental Council of the States (Doc. #15543)

12.325 If and when the proposed rule is finalized, it may set new standards in some regions for 

defining jurisdiction under the CWA Section 404 and 402 permitting programs. To the 

extent that an area previously found to be non-jurisdictional has the potential to be found 

jurisdictional under a new rule, a final rule must be clear regarding how such situations 

will be handled. A smooth transition between regulatory approaches is critical. In order 

to reduce litigation and uncertainty, the final rule should describe under what 

circumstances it will apply to previously made jurisdictional determinations, and also to 

what universe of currently pending jurisdictional determinations, if any, it will apply. (p. 

3)

Agency Response: The Rule will be effective 60 days after publication in the 

Federal Register. Under existing Corps’ regulations and guidance, Corps’ approved 

jurisdictional determinations generally are valid for five years. The preamble 

addresses the status of final JDs and permits as well as pending JDs and 

permits.Already issued permits are not affected by this rule. 

American Association of Port Authorities (Doc. #13559)

12.326 Most port construction activities come under the CWA jurisdictional definition of 

traditional navigable waters. The proposed rule makes additional lands subject to CWA 

jurisdiction and AAPA is very concerned about the impacts on the timely processing of 

critical port actions, such as dredge and fill permits by the Corps. (p. 1)

Agency Response: See Summary Response. The Economic Analysis provides 

additional information on costs/benefits and predicted change in jurisdiction. The 

agencies believe the proposed rule will result in increased clarity and certainty 

regarding the identification of “waters of the U.S.” The agencies received many 

helpful comments on the proposed rule which resulted in refinement of the final rule 

to provide further clarity and certainty to the regulated public. None of the existing 

procedures, permitting mechanisms, efficient permitting tools such as general 

permits, or activity exemptions will be modified as a result of this rulemaking; 

therefore, existing procedures should not be further complicated by this rule. The 

Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process predictable, efficient, and effective. 

12.327 The cumulative effect of these changes is an increase in the amount of land where 

activities will come under the jurisdiction of the CWA. AAPA is concerned that this 

increased coverage will result in larger numbers of jurisdictional determinations and 

permits to be evaluated. We are concerned that unless the Corps receives additional 

resources, in terms of funding and staff, that implementing this proposed rule will extend 

the permit evaluation and processing times. (p. 2)

Agency Response: See Summary Response. The Economic Analysis provides 

additional information on costs/benefits and predicted change in jurisdiction. The 

agencies only have authority to regulate “waters of the U.S.” under the Clean Water 

Act, and not all lands. The agencies believe with the clarity and certainty provided 

in the rule that there will be efficiencies gained in making jurisdictional 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

230

determinations for certain categories of waters jurisdictional by rule. The Corps 

will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process predictable, efficient, and effective. The initial phase of 

implementing the rule will require education and training for agency staff as well as 

other stakeholders and the regulated public, which will include regionally-based 

training to ensure consistent and efficient implementation of the rule. 

Center for Regulatory Reasonableness (Doc. #14416)

12.328 Regulatory Presumptions. As discussed above, several regulatory presumptions 

accompany the “waters of the U.S.” designation and EPA has not yet informed the public 

how the various regulatory presumptions contained within existing rules will apply to the 

new waters. Because these regulatory presumptions were developed for primarily 

perennial waters and there is a strong likelihood that they do not apply to these new 

“waters of the United States” that are primarily dry for most of the year and/or do not 

provide the necessary habitat to allow for the propagation of sensitive aquatic life forms, 

the proposed rule needs to account for and appropriately address this situation. The rule 

should explicitly indicate that these presumptions do not apply to these new waters unless 

a site-specific analysis has been conducted to demonstrate that such protection is 

necessary. If EPA does not undertake these changes, EPA should specifically respond to 

the following questions so the public may be fully informed regarding the impact of any 

new designation:

 Do the presumptions contained in 40 CFR 131.6 and 131.10 (waters presumed 

fishable/swimmable) apply to the newly designated intermittent waters? 

 Do the use attainability study requirements of 40 CFR 131.10 apply to such waters to 

avoid application of Section 304(a) criteria and fishable/swimmable uses? 

 Will antidegradation requirements that require full protection of existing aquatic life 

and uses apply to the newly designated waters? (p. 3)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The final rule does not change the authority of states and tribes to set 

water quality standards and designate regulated waters within their boundaries. 

The regulations at 40 CFR 131 implement the Water Quality Standards program 

(CWA section 303(c)) and apply to waters of the United States. Therefore, for 

waters that are jurisdictional under the final rule, state’s and authorized tribe’s 

WQS must be consistent with 40 CFR 131. States and tribes will also continue to 

have discretion to design and implement ambient surface water monitoring 

strategies and propose waters for the 303(d) and TMDL programs.

12.329 Connectivity of Waters. The proposed rule relies principally upon a 2013 draft EPA 

report, Connectivity of Streams and Wetlands to Downstream Waters: A Review and 

Synthesis of the Scientific Evidence. This report and the proposed rule discuss the need to 

identify a physical, chemical, or biological connection with downstream navigable waters 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

231

to demonstrate a “significant nexus” in order to qualify as a water of the U.S. During 

major rainfall events as well floods, an otherwise isolated upstream water or ditch may 

become briefly hydrologically connected to downstream navigable waters. This same 

area will “dry up” after the major rainfall event or flood. 

 In such examples, are the upstream waters always waters of the US? 

 Under which return period storm/flow does this connectivity apply? 

 How will the Agency’s rules with respect to setting standards to protect downstream 

waters apply in this instance? 

 What water quality criteria are presumed applicable to such waters? 

 Will EPA presume that the Goldbook criteria for phosphorus, ammonia and bacteria 

are the “applicable standards” for such waters when conducting compliance 

evaluations under Sections 303 and 402 of the Act as discussed in EPA’s published 

guidance? (p. 4)

Agency Response: The final rule includes revised definitions for several terms, 

including “tributaries” and “adjacent” which bring clarity to which upstream 

waters are jurisdictional. The rule does not rely on a particular flow regime or 

return period, but on the physical features of tributaries and other waters. The final 

rule does not change the authority of states and tribes to set water quality standards 

and designate regulated waters within their boundaries. States and tribes will also 

continue to have discretion to design and implement ambient surface water 

monitoring strategies and propose waters for the 303(d) and TMDL programs. With 

regard to which criteria apply to a state’s or authorized tribe’s jurisdictional 

waters, EPA does not apply CWA section 304(a) national ambient water quality 

criteria recommendations for the purposes of CWA sections 303(d) or 402. EPA, 

states, and authorized tribes use the applicable EPA-approved state/tribal water 

quality standards regulations (including downstream protection provisions) for 

implementing water quality management programs under the CWA (e.g., 

assessment, listing, permitting, TMDL development). Where EPA has promulgated 

federal WQS for a particular state, those WQS serve as the applicable standard for 

CWA purposes. See the preamble for further discussion on the “Tributary” and 

“Adjacent Waters” sections. Please see Section I- Water and Features that Are Not 

“Waters of the United States” for further clarification on excluded water features. 

To be considered a “tributary” under the final rule, a water feature must 

demonstrate both bed/banks and an ordinary high water mark which would 

distinguish them from non-jurisdictional features. The agencies believe such 

characteristics indicate sufficient volume and frequency of flow for a tributary to 

have a significant nexus to the downstream (a)(1) to (a)(3) waters. The final rule has 

further refined the “neighboring” definition to provide additional clarity and 

“bright lines.” Best professional judgment has always been used by the agencies in 

making jurisdictional determinations and will continue to do so under the final rule.

Protect Americans Now (Doc. #12726)

12.330 Section (a)(5) and definition of “tributary”: For legal and scientific clarity, the agencies 

should withdraw the Proposed Rule and replace it with a rule that defines tributaries as 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

232

only those waters that maintain a permanent, surface water connection to an (a)(1) or 

(a)(3) water. 

The proposed definition of “tributary” will substantially increase the burdens on our 

nation’s agricultural producers. As currently drafted, the definition includes “ditches”

that contribute water directly or through another water (even if only intermittently or 

ephemerally) to an (a)(1) through (a)(4) water. This will almost certainly work its way 

backward to include most on-the-farm ditches. Notably, the CWA states that “normal 

farming” activities are exempt from regulation. See 33 U.S.C. § 1344(f)(1). However, 

the exemption only applies to the dredge and fill permitting that is required by the Corps 

under § 1344. Therefore, the ditches will remain subject to regulation under other 

sections of the CWA, notably “point source” regulation under § 1342. This is particularly 

problematic given court decisions regarding the application of pesticides, herbicides and 

fertilizers. See National Cotton Council of America v. U.S. EPA, 553 F.3d 927 

(invalidating EPA’s exemption and holding that “dischargers of pesticide pollutants are 

subject to the NPDES permitting program in the CWA.”). For row-crop producers, the 

expansion of the jurisdictional definition of tributary could carry heavy costs and 

restrictions. The economic and compliance impacts of this potential have not been 

adequately analyzed. (p. 13-14)

Agency Response: The definition of “tributaries” has been revised in the final 

rule, but continues to include non-perennial waters. The final rule includes revised 

and expanded exclusions for many ephemeral and intermittent ditches. See 

summary responses for Topic 8: Tributaries and Topic 6: Ditches for discussion 

about the jurisdiction of these waters. 

12.331 Even if farming and ranching activities are exempted (which will only apply is few cases) 

the Corp and EPA (as well as the ranchers and farmers who are subject to their 

jurisdiction) will additionally have to comply with the Section 7 requirements of the 

Endangered Species Act (“ESA”). 16 U.S.C. § 1536(a)(2). ESA Section 7 consultation 

requirements must be completed between the federal action agency (either EPA or the 

Corp) for all permits, plans, or decisions of the federal agency AND for all federal 

permits or authorizations necessary for private action. Even Federal Emergency 

Management Agency flood insurance determinations and payments under the 1996 

Federal Agriculture Improvement and Reform Act to private landowners must comply 

with ESA Section 7. See Nat’l Wildlife Fed’n v. Fed. Emergency Mgmt. Agency, 345 F. 

Supp. 2d 1151 (W.D. Wash. 2004); Sierra Club v. Glickman, 156 F.3d 606, 619 (5th Cir. 

1998) respectively. Given the broad reach of the ESA, new water courses designated by 

the Corp or EPA will be subject to ESA Section 7.

Agency Response: See Summary Response. The final rule does not change any of 

the existing statutory activity-based exemptions under the Section 404(f)(1) of the 

Clean Water Act, including those related to agricultural activities. While it is the 

responsibility of the Corps as the agency evaluating permit applications under 

section 404, to determine if Endangered Species Act and the National Historic 

Preservation Act requirements are being met, there are cases where these laws or 

other federal, state or local laws may still require review absent a CWA action. The 

404 permit action does not remove the requirement to get other permits, if required 

by law. Obtaining a jurisdictional determination from the agencies does not trigger 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

233

Section 7 of the Endangered Species Act, a federal action does, and a section 404 

permit is a federal action. However, private landowners are also required to comply 

with Section 10 of the Endangered Species Act absent a federal action. The agencies 

work to ensure this compliance with other federal laws is completed in the most 

efficient and effective manner, and may include programmatic agreements or local 

operating procedures to streamline the process.

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

12.332 Moreover, the proposed rule redefines the fundamental term “Waters of the United 

States” (WOTUS) for all sections of the CWA: 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). At a 

minimum, this is likely to require substantial state resources to administer and issue 

additional permits, and to develop and/or revise water quality standards and total 

maximum daily loads (TMDLs), as third parties are likely to argue that they are required 

for all waters subject to the CWA. (p. 2)

Agency Response: See summary responses in this Topic, including sections 12.2, 

regarding 401 certifications, 12.3 regarding NPDES; 12.4 regarding the 404 

program; and 12.5 regarding SPCC. See also summary responses in Topic 11: 

Costs/benefits and the Agencies Economics Analysis for an explanation of how the 

agencies considered costs and benefits for all CWA programs. 

The final rule does not change the authority of states and tribes to set water quality 

standards and designate regulated waters within their boundaries. States and tribes 

will also continue to have discretion to design and implement ambient surface water 

monitoring strategies and propose waters for the 303(d) and TMDL programs. 

Lake County, Illinois Stormwater Management Commission (Doc. #15381)

12.333 The proposed rule could potentially add a significant number of “other waters” in Lake 

County, including “geographically isolated wetlands,” to WOUS status (44% of wetlands 

in Lake County are isolated per Lake County GIS estimate). Even in light of permitting 

efficiencies currently in place (e.g., the Chicago USACE District’s Regional Permit 

Program), this would place an additional workload on the already over-burdened 

USACE-Chicago District to process more permit actions, with the result being even 

longer permit turnaround times and potentially severing economic development programs 

and opportunities. This is not the simplified, efficient regulatory system the regulated 

public desires, especially during this post-recessional period. (p. 2)

Agency Response: See Summary Response. The agencies believe with the clarity 

and certainty provided in the rule that there will be efficiencies gained in making 

jurisdictional determinations for certain categories of waters jurisdictional by rule. 

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process predictable, efficient, and effective. The initial phase of 

implementing the rule will require education and training for agency staff as well as 

other stakeholders and the regulated public, which will include regionally-based 

training to ensure consistent and efficient implementation of the rule. The rule also 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

234

does not affect permitting tools such as the use of general permits that the Corps 

implements for expeditious review and efficiency in processing permit applications 

for discharges of dredged and/or fills material into waters of the U.S. The rule will 

improve consistency and predictability for all CWA programs. The rule will 

provide needed clarity regarding jurisdictional determinations, thus reducing 

uncertainties and delays. 

Red River Waterway Commission (Doc. #15445)

12.334 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 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. 2)

Agency Response: See summary response. The updated Economic Analysis 

provides additional discussion on costs/benefits under the final rule. None of the 

existing procedures, permitting mechanisms, efficient permitting tools such as 

general permits, or activity exemptions will be modified as a result of this 

rulemaking; therefore, existing procedures should not be further complicated by 

this rule. The final rule was developed to increase CWA program predictability and 

consistency by increasing clarity as to the scope of “waters of the United States” 

protected under the Act. The agencies note that the final rule provides for certain 

categories of waters that are jurisdictional by rule, which will result in a more 

efficient process. The Corps will develop the tools necessary to assist its staff with 

the jurisdictional determination process specific to section 404 during the 

implementation of the final rule to make the process predictable, efficient, and 

effective.

Michigan United Conservation Clubs (Doc. #16395)

12.335 We are seeking confirmation from the US EPA that the proposed rule will not impact 

Michigan’s program, which allows for a streamlined regulatory process while still 

protecting Michigan’s water resource. We urge the USACE and EPA to continue to 

work cooperatively with the state. (p. 2)

Agency Response: See Summary Response. Nothing in this rule limits or impedes 

any existing state or tribal effort to protect their waters. The Agencies feel the 

proposed rule will provide greater clarity regarding what waters are subject to 

CWA jurisdiction which will reduce the need for permitting authorities and to make 

jurisdictional determinations on a case specific basis. Additionally, nothing in the 

CWA or the proposed rule precludes a state or tribe from establishing more 

protective standards or limits than the Federal CWA. See the General Comment 

Compendium for a discussion of state 404 Assumption. The rule does not affect the 

scope of waters subject to assumption under section 404(g) of the CWA. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

235

University of Missouri College of Agriculture, Food, and Natural Resources (Doc. #7942)

12.336 The University of Missouri and the College of Agriculture, Food and Natural Resources 

has a great deal of investment and interest in this issue as evidenced by a long history of 

research and extension specialists assisting farmers and landowners to address soil and 

water quality concerns. Currently, a great deal of that effort has been directed at our 

engagement with our state and federal partners in developing Missouri nutrient reduction 

criteria. A number of MU scientists and extension specialists have been engaged in the 

development of a comprehensive, integrated state level nutrient reduction strategy that is 

science-based, effective, achievable and economically sustainable. The tentative date for 

completing the Missouri Nutrient Reduction Strategy is December 31, 2014. We are 

greatly concerned that the new WOTUS ruling will confound what has to date been an 

extremely productive process in the State of Missouri. (p. 1)

Agency Response: The final rule does not establish any regulatory requirements. 

Instead, it is a definitional rule that clarifies the scope of “waters of the United 

States” consistent with the Clean Water Act (CWA), Supreme Court precedent, and 

science. We do not agree that the rule would have negative impacts on nutrient 

reduction efforts in Missouri.

Mercatus Center at George Mason University (Doc. #12754)

12.337 Under this rule, the agencies would bring clarity to this process by expanding definitions. 

While the expansion clarifies some areas, it produces new areas of ambiguity. The 

proposed definition of “tributary,” for example, is so broad that a home’s rain gutter 

could very well qualify and be deemed jurisdictional by the agencies. Rain gutters are 

manmade and have a bed, a high water mark, and intermittent flows that may provide a 

significant nexus to other water bodies during rainstorms. As leaves and detritus 

decompose in rain gutters, riparian vegetation has even been known to germinate. 

According to the new rule, the Corps of Engineers could potentially regulate these rain 

gutters. (p. 2)

Agency Response: See Summary Response. See the “Tributary” section in the 

preamble for further discussion. Also, see the preamble section “Water and 

Features that Are Not Waters of the United States” for further clarification on 

excluded water features. In particular, paragraph (b) of the final rule regarding the 

exclusion for stormwater control features and the exclusion for erosional features 

and ephemeral features that don’t meet the definition of “tributary” is informative 

on the points raised in this comment. To be considered a “tributary” under the final 

rule, a water feature must demonstrate both bed/banks and an ordinary high water 

mark, which distinguish tributaries from non-jurisdictional features. The agencies 

believe such characteristics indicate sufficient volume and frequency of flow for a 

tributary to have a significant nexus to downstream (a)(1) to (a)(3) waters. The 

agencies have never considered a home’s rain gutters to be jurisdictional waters. 

With respect to the jurisdictional status of stormwater control features as waters of 

the U.S., please see compendium 7, summary response at 7.4.4.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

236

Florida Stormwater Association (Doc. #14613)

12.338 If finalized as currently worded, the proposed regulations would have very significant 

and profound impacts on local governments and other entities subject to or administering 

the NPDES and MS4 permit programs, and to the workload of EPA and Corps Regional 

offices. Waterbodies that are “jurisdictional” are subject to the following:

Water Quality Criteria – Water quality criteria for the appropriate classification of the 

waterbody must be attained. In Florida, the overwhelming numbers of waterbodies are 

classified as “Class 3 – Recreational” waters. Class 3 recreational waters are subject to the 

“swimmable, fishable” narrative or numeric nutrient water quality criteria. 

The Class 3 designation is the default classification for waterbodies in Florida. 

Waterbodies that are not presently considered to be jurisdictional (but would become 

such per the proposed regulations) would become subject to the Class 3 classification 

unless an administratively complicated, arduous and expensive process is successfully 

undertaken to move (for example) a ditch out of a Class 3 classification into another 

classification category. 

TMDLs and Basin Management Action Plans – Florida’s landmark programs for 

implementing Total Maximum Daily Loads and water quality improvement measures – the 

listing process for impaired waters and Basin Management Action Plans (BMAPs) – would 

be applied to newly jurisdictional waters, significantly increasing the workload of not only 

the MS4 permittees but also that of Florida’s Water Management Districts and the Florida 

Department of Environmental Protection. 

MS4 Permit Program – Attainment of water quality criteria and water quality improvement 

programs (i.e. implementation of TMDLs and BMAPs) are implemented by the regulated 

community. In the case of city and county governments, that is through the MS4 permit 

program, as administered by the Florida Department of Environmental Protection. (p. 4-5)

Agency Response: Overall, the scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. The rule will not affect the 

current implementation of the various CWA programs. Fewer waters will be 

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

regulations, in part because the rule includes provisions for a number of excluded 

waters, some of which are excluded by rule for the first time, including many ditches 

and certain stormwater conveyance features. For further discussion of exclusions, 

see summary responses for Topic 6.2: Excluded ditches and Topic 7: Features and 

waters not jurisdictional. The agencies have thoroughly considered the implications 

of the final rule on the CWA programs and the agencies, states and tribes 

responsible for implementing CWA regulations, and the agencies believe that 

revisions in the final rule respond to a number of concerns expressed by states and 

other stakeholders. In addition, the economic analysis has been updated for the final 

rule. See summary response for Topic 11: Costs/Benefits and the Agencies Economic 

Analysis document for details on the estimated costs and benefits of the rule. With 

respect to the jurisdictional status of stormwater control features as waters of the 

U.S., please see compendium 7, summary response at 7.4.4.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

237

12.339 The State of Florida and its MS4 permit holders have worked cooperatively for the past 

25 years to develop and refine water quality improvement programs that implement the 

goals and provisions of the Clean Water Act and other state-based initiatives. Florida’s 

TMDL and BMAP programs implement these provisions on a systematic basis, 

establishing priorities for directing scarce fiscal resources to those waters most in need of 

improvement and where there is a realistic possibility of seeing improvements that will 

benefit environmental systems and human uses. It is a methodical, focused approach, 

with the costs of implementing water quality improvements as required by the TMDL 

and BMAP programs primarily borne by the MS4 permit holders. 

If finalized, the proposed regulations would throw Florida’s programs into a state of 

chaos, increasing the number of waters determined to be jurisdictional to such a degree 

that it will force local governments to divert scare resources from water quality 

improvement projects benefiting streams, lakes and rivers, to ditches and other 

stormwater conveyances that serve no useful purpose other than to move floodwaters 

from one point to another. (p. 5)

Agency Response: Overall, the scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. The rule will not affect the 

current implementation of the various CWA programs. Fewer waters will be 

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

regulations, in part because the rule includes provisions for a number of excluded 

waters, some of which are excluded by rule for the first time, including many ditches 

and certain stormwater conveyance features. For further discussion of exclusions, 

see summary responses for Topic 6.2: Excluded ditches and Topic 7: Features and 

waters not jurisdictional. The agencies have thoroughly considered the implications 

of the final rule on the CWA programs and the agencies, states and tribes 

responsible for implementing CWA regulations, and the agencies believe that 

revisions in the final rule respond to a number of concerns expressed by states and 

other stakeholders. In addition, the economic analysis has been updated for the final 

rule. See summary response for Topic 11: Costs/Benefits and the Economic Analysis 

document for details on the estimated costs and benefits of the rule. With respect to 

the jurisdictional status of stormwater control features as waters of the U.S., please 

see compendium 7, summary response at 7.4.4. States conduct assessments of waters 

based on all existing and readily-available monitoring data. Under section 303(d) 

states are required to list waters that are impaired, but have discretion to prioritize 

this list for TMDL development, which may proceed over a period of several years 

under EPA policy. Monitoring, assessment, and TMDL development tend to occur 

in water segments where the agencies assertion of jurisdiction is unlikely to change. 

Therefore, the agencies do not anticipate additional cost burdens associated with 

this rule for TMDL development and implementation.

12.340 The universe of waterbodies to which the MS4 permit program might apply would be so 

large and local fiscal resources so dispersed, and the discretion of EPA and the Corps so 

limited by the provisions of the proposed regulations, that it is quite possible that the 

regulations would have the paradoxical effect of reducing (not improving) water quality. 

This would be an absurd result if ever there were one.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

238

Furthermore, to attempt to successfully implement the proposed regulations, local 

governments subject to the MS4 permit program would be forced to implement revisions 

to zoning and other land use regulations, in addition to the permit conditions. We believe 

that this necessity far exceeds any consideration ever made by the framers of the Clean 

Water Act and far exceeds the authority granted by Congress to EPA and the Corps. (p. 

6)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see compendium 7, summary response at 7.4.4. 

The final rule does not address local land use and zoning regulations or decisions, or 

processes for how these decisions are made, and comments about them are beyond 

the scope of the rule.

Water Environment Federation (Doc. #16584)

12.341 If these “adjacent” wastewater and recycled water facilities, including spreading grounds, 

are defined to be within the jurisdiction of the CWA, it would adversely impact WEF’s 

member agencies’ ability to augment groundwater supplies and to effectively provide 

wastewater treatment services. The plethora of additional and unnecessary requirements, 

regulations, and permitting associated with making these areas into jurisdictional waters, 

including but not limited to the procurement of an NPDES permit, assigning designated 

uses, exposure to penalties and potential third party liability for effluent violations, and 

impairment of the ability to operate and maintain these areas, would erect new mandates 

with no benefit to the surrounding ecosystems and waterbodies. Such a result represents 

an extreme disincentive to sustainable water supply development and a significant 

impairment of wastewater agencies’ ability to protect public health and safety through 

innovative and effective wastewater treatment. (p. 4)

Agency Response: The agencies are supportive of water reuse and recycling and 

have added an exclusion specifically for wastewater recycling structures constructed 

in dry land, detention and retention basins for wastewater recycling, groundwater 

recharge basins and percolation ponds built for wastewater recycling, and water 

distributary structures built for wastewater recycling. See the summary response in 

Topic 7: Features and waters not jurisdictional for further discussion of this 

exclusion. 

12.342 WEF recommends that EPA stipulate the basic technical and administrative approaches 

that are intended to be used at the source in order to define frequency, duration, and water 

quality-based risk factors that are directly associated with wet weather events that 

reportedly transport pollutants of concern to downstream designated beneficial use areas. 

In other words, how does EPA intend to establish applicable, defensible water quality 

standards and monitoring requirements at the claimed pollutant sources, such as 

ephemeral stream areas under short-term wet weather conveyance conditions? (p. 6)

Agency Response: The final rule does not address how WQBELs are derived, and 

comments about them are beyond the scope of the rule.

American Legislative Exchange Council (Doc. #19468)

12.343 (...) the proposed rule will apply to all programs of the CWA and therefore subject more 

activities to CWA permitting requirements, National Environmental Policy Act (NEPA) 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

239

analyses, mitigation requirements, and citizen suits challenging local actions based on the 

applicability and interpretation of new-found authorities. (p. 4)

Agency Response: See Summary Response. The rule is not designed to subject 

any entities of any size to any specific regulatory burden. Rather, it is designed to 

clarify the statutory scope of the “waters of the U.S.” consistent with existing 

regulations and Supreme Court precedent. While it is the responsibility of the 

Corps as the agency evaluating permit applications under section 404, to determine 

if Endangered Species Act and the National Historic Preservation Act requirements 

are being met, there are cases where these laws or other federal, state or local laws 

may still require review absent a CWA action. The 404 permit action does not 

remove the requirement to get other permits, if required by law. Obtaining a 

jurisdictional determination from the agencies does not trigger Section 7 of the 

Endangered Species Act, a federal action does, and a section 404 permit is a federal 

action. However, private landowners are also required to comply with Section 10 of 

the Endangered Species Act absent a federal action. The agencies work to ensure 

this compliance with other federal laws is completed in the most efficient and 

effective manner, and may include programmatic agreements or local operating 

procedures to streamline the process. This rule does not impact the citizen suit 

provisions under the Clean Water Act

Illinois State Senate (Doc. #11995)

12.344 The process of obtaining permits and approvals under the Clean Water Act is very costly 

and time-consuming. Obtaining a permit to develop in jurisdictional area can take longer 

than a year and cost hundreds of thousands of dollars. This would place a further burden 

on municipal entities in my district, which includes our state capitol and many small, 

rural jurisdictions. (p. 2)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. Definitions of 

certain terms are provided for the first time (e.g. tributary), or are further clarified 

(e.g. adjacent). The final rule provides for certain categories of waters that are 

jurisdictional by rule, which will result in a more efficient process. See the updated 

Economic Analysis for additional discussion.

12.345 How will water recycling and reuse programs be addressed in the proposed rule? Will 

they be subject to permitting requirements? If so, what level or detail? Of particular 

interest are water recycling programs that result in water that is directed to groundwater 

recharge areas. (p. 4)

Agency Response: See Summary Response. The preamble section “Water and 

Features that Are Not Waters of the United States” provides further clarification on 

excluded water features. In particular, paragraph (b) of the final rule includes the 

revised exclusion for stormwater control features and wastewater recycling 

structures, including groundwater recharge basins. 

12.346 In the West we [are] taking every opportunity to collect rainwater, slow runoff, or direct 

runoff into groundwater retention basins or groundwater recharge areas. Often these may 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

240

be flood control reservoirs that are retrofitted or operated to slow down or redirect the 

flow of runoff. Will these efforts to collect, capture and reuse runoff be subject to the 

requirements of the proposed rule? (p. 4)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see compendium 7, summary response at 7.4.4. 

The Agencies specifically excluded constructed detention and retention basins 

created in dry land that are used for wastewater recycling, including groundwater 

recharge basins and percolation ponds built for wastewater recycling. The new 

exclusion also covers water distributary structures that are built in dry land for 

water recycling. The Agencies have not considered these water distributary systems 

jurisdictional where they do not have surface connections back into, and contribute 

flow to, “waters of the United States.” The exclusion in paragraph (b)(7) codifies the 

long-standing agency practice that water reuse and recycling structures are 

important and beneficial in protecting the chemical, physical, and biological 

integrity of the nation’s water under CWA.

Committee on Transportation and Infrastructure, U.S. House of Representatives (Doc. #18018)

12.347 How is the proposed rule helpful to American farmers –will the rule reduce regulatory 

burdens on the nation’s agriculture producers? (p. 2)

Agency Response: The rule will not have an effect on farmers’ ability to make 

decisions about activities on their private lands. The statutory authority of the 

CWA does not convey to the Federal Government any ownership of or property 

rights in any private lands. Therefore, we do not believe that private property will 

be negatively impacted by the Federal Government as a result of the proposed rule. 

The final rule is not changing any of the existing statutory activity-based exemptions 

under the Section 404(f)(1) of the Clean Water Act, including those related to 

agricultural activities

Mary Landrieu, Chair, Committee on Energy and Natural Resources, U. S. Senate (Doc. #19301)

12.348 The negative impact on real estate development is a glaring example of the disruptive 

practical effects of the proposed rule. Increased permitting requirements will cause delay 

for site modifications, and landlords, who often have specific time incentives built into 

lease agreements, may be unable to fulfill time obligations or predict certainty in those 

lease agreements. This would jeopardize their ability to retain and attract future tenants. 

In addition, tenant companies seeking to expand or relocate their operations will be 

impacted by project scheduling uncertainty and increased time and cost. This would 

change the cost calculations and potentially put at risk the capital investment necessary to 

support such projects. Perhaps most troubling is that these property owners could now 

have to meet water quality standards for ditches, ephemeral streams, or other features on 

their property that were not previously considered WOTUS. (p. 1)

Agency Response: See summary response. The Economic Analysis provides 

information on costs/benefits for all CWA programs. The final rule was developed 

to increase CWA program predictability and consistency by increasing clarity as to 

the scope of “waters of the United States” protected under the Act. The agencies 

also note that the final rule provides for certain categories of waters that are 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

241

jurisdictional by rule, which will result in a more efficient process. The agencies

modified the final rule from the proposed rule in response to comments received in 

order to ensure unintended effects to those other CWA programs, such as the 

NPDES program, were reduced or eliminated. The Corps will develop the tools 

necessary to assist its staff with the jurisdictional determination process specific to 

section 404 during the implementation of the final rule to make the process 

predictable, efficient, and effective.

The Property Which Water Occupies (Doc. #8610)

12.349 The CWA defines inert materials like sand, rock and soil as a ‘pollutants’, without 

defining the quantity that represents a threat to the public water supply. Natural run-off 

drains sediment into rivers, which over time define the contours of our country (see the 

Mississippi Delta, or the Chesapeake Bay); therefore Rules which prevent sediment 

flowing into waters defy the law of nature as well as interfering with the property right. 

Chemical toxin and containment are prevented from entering public waters under the 

Toxic Substances Control Act15 U.S. §§ 2601-2629, and therefore the CWA is only the 

Floor and not the Ceiling of Federal regulatory control. Conversely, installing riprap on a 

non-navigable stream, or grading of lands near a drainage wash should not invoke CWA 

jurisdiction, because they create no real threat to the downstream water supply. Yet, 

because the term pollutant remains so broadly defined under the CWA, simply grading a 

lawn near a drainage ditch could invokes CWA jurisdiction.79 The CWA and these Rules 

do not distinguish between deadly toxins which could destroy the public water supply, 

and a grain of sand which could wash from privately owned land during a rainstorm. As 

currently written the Rules make grading land, mowing a lawn on private lands, or doing 

nothing at all a potential violation under the CWA. Leaving enforcement of the broadly 

claimed Act an arbitrary and capricious action up to the discretion of the party invoking 

CWA jurisdiction. Extending such broad jurisdiction authority over private lands and all 

potential uses of these lands, goes too far by clouding title, invoking uncertainty of the 

property right and even a property taking. Although a Federal Agency has authority to 

make such Rules respecting public property (navigable = public water) within the 

confines of the CWA, extending such Rules over private lands represent an abuse of 

power and exceeds the limits of agency discretion. (p. 13-14)

Agency Response: The agencies do not have authority to regulate a landowner’s 

property. The agencies only have authority to regulate jurisdictional activities in 

jurisdictional waters of the U.S. under the Clean Water Act. The goal of the CWA is 

to protect the chemical, physical, and biological integrity of our nation’s waters. 

The comment regarding what is/is not a pollutant is beyond the scope of this 

rulemaking. Refer to the definition of “fill material” and the definition of 

“discharge of fill material” under 33 CFR 323.2. 

 

79 The exemptions arbitrarily allow some forms of grading and land uses while grading for another purpose would 

require a permit. This based solely on the end-purpose for which the grading is performed, despite having the 

identical impact on water quality. The rules and exempting arbitrarily select when and if inert material would 

invoke jurisdiction. Such inconsistent and arbitrary Rule making is exploitative and allows for an abuse of agency 

discretion 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

242

12.350 The Private Right of Action Under the CWA Necessitates Greater Clarity. Any 

ambiguity as to jurisdiction becomes untenable as the CWA allows for a private right of 

action -any private citizen can file a lawsuit invoking a purported CWA violation. 

Therefore, ambiguity in the Rules which broadens the CWA jurisdictional scope beyond 

public waters, allows any citizen to claim harm under the CWA based on the use of 

private property. As written the proposed Rules expansive claim of jurisdiction under the 

CWA allow for legal action from any citizen against another for almost any use of private 

land over which water may be present in the form of rain run-off or soggy ground. 

Flipping a penny into a fountain, building a shed on private property, using Round-up on 

a sidewalk, or even tiling a backyard tomato garden, are potential violations that could 

invoke legal action under the proposed Rules. The Rules continued ambiguity over the 

scope of jurisdiction encourages frivolous legal actions brought under the auspice f clean 

water. Including claims against the validity of the Rules proposed ‘exemptions’. Any 

proposal to expand the CWA jurisdiction beyond protecting navigable waters, should also 

require the moving party in the lawsuit to prove not only that a ‘significant nexus’ exists, 

but that a pollutant creating a significant enough threat to a public water supply to 

warrant judicial action. The ambiguity and arbitrary elements defining CWA jurisdiction 

under the Rules must be clarified to prevent abuses of discretion not only by federal 

agencies, but also those misguided citizens. The Rules should include a reimbursement 

clause of any and all legal fees expended by a property owner when successfully 

defending his property rights against an asserted CWA violation. (p. 14-15)

Agency Response: See summary response. The agencies do not have authority to 

regulate a landowner’s property. The agencies only have authority to regulate 

jurisdictional activities in jurisdictional waters of the U.S. under the Clean Water 

Act. This rule does not impact the citizen suit provisions under the Clean Water 

Act. The agencies believe the proposed rule will result in increased clarity and 

certainty regarding the identification of “waters of the U.S.” The agencies received 

many helpful comments on the proposed rule which resulted in refinement of the 

final rule to provide further clarity and certainty to the regulated public. None of 

the existing procedures, permitting mechanisms, efficient permitting tools such as 

general permits, or activity exemptions will be modified as a result of this 

rulemaking; therefore, existing procedures should not be further complicated by 

this rule.

12.1. REGIONAL QUESTIONS/CONCERNS

Summary Response

The agencies believe the proposed rule will result in increased clarity and certainty regarding the 

identification of “waters of the U.S.” The agencies received many helpful comments on the 

proposed rule which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public. None of the existing procedures, permitting mechanisms, 

efficient permitting tools such as general permits, or activity exemptions under Section 404(f)(1) 

of the Clean Water Act, will be modified as a result of this rulemaking; therefore, existing

procedures will not be further complicated by this rule. Furthermore, the final rule will not 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

243

directly alter the content or implementation of other local, state, or federal mandates as the final 

rule applies solely to the Clean Water Act definition of waters of the U.S.

The rule is not designed to subject entities of any size to any specific regulatory burden. Rather, 

it is designed to clarify the statutory scope of the “waters of the U.S.”, consistent with existing 

regulations and Supreme Court precedent. In developing the rule, the agencies considered all 

relevant implications that will result from the rule implementation including legal, economic, and 

implementation considerations, as well as the resulting effect on the regulated public.

The goal of the CWA is to protect the chemical, physical, and biological integrity of our nation’s 

waters. The agencies have been implementing this mission since the inception of the CWA. 

The additional costs that may be incurred as a result of the rule were taken into account during its 

formulation; however, the updated Economic Analysis indicates the benefits of the rule outweigh 

any associated costs placed on the regulated public and on the agencies themselves. The scope 

of regulatory jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

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

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

tributaries. The rule would limit CWA jurisdiction only to those types of waters that have a 

significant nexus to downstream (a)(1)-(a)(3) waters, not just any hydrologic connection. It is 

expected to improve efficiency, clarity, and predictability for landowners as well as permit 

applicants.

The rule only provides a definition for “waters of the U.S.” The rule does not affect the CWA 

statute in which authorization may be required for discharges of dredged and/or fill material into 

waters of the U.S., or other activities in jurisdictional waters of the U.S. including for example, 

NPDES permits, water quality standards, or Section 311 requirements which also require 

authorization. In addition, the rule does not affect activities that are currently exempt from CWA 

regulation. The rule also does not affect permitting tools such as the use of general permits that 

the Corps implements for expeditious review and efficiency in processing permit applications for 

discharges of dredged and/or fills material into waters of the U.S. The rule will improve 

consistency and predictability for all CWA programs and provides clarity regarding jurisdiction, 

thus reducing uncertainties and delays.

The rule will not affect a farmers’ ability to make decisions about activities on their private 

lands. The statutory authority of the CWA does not convey to the Federal Government any 

ownership of or property rights in any private lands. Therefore, we do not believe that private 

property will be negatively impacted by the Federal Government as a result of the proposed rule. 

Consistent with current practice, the final rule does not obviate the requirement for landowners 

to operate in accordance Clean Water Act mandates which require landowners to be cognizant of 

potential waters of the U.S. within their property boundaries. Under the CWA, the agencies only 

have authority over jurisdictional activities which occur in waters of the U.S. 

The agencies recognize that the state and local governments have well-defined and long-standing 

relationships in implementing affected CWA programs and these relationships will not be 

altered. This action will not have substantial direct effects on the states, on the relationship 

between the national government and the states, or on the distribution of power and 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

244

responsibilities among the various levels of government. The agencies are not restricting the 

states’ efforts in developing or implementing statewide permits under CWA programs as a result 

of the rule.

The rule does not diminish or in any way detract from the intent and purpose of CWA sections 

101(b) and 101(g) regarding the states’ primary and exclusive authority over water allocation 

and water rights administration, as well as state-federal co-regulation of water quality. The 

agencies worked hard to ensure the rule reflects these fundamental principles.

Tribes and states play a vital role in the implementation and enforcement of the CWA. Section 

101(b) of the CWA states that it is Congressional policy to preserve the primary responsibilities 

and rights of states to prevent, reduce, and eliminate pollution, to plan the development and use 

of land and water resources. Tribes and states, consistent with the CWA, retain full authority to 

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

jurisdiction. Section 510 of the CWA indicates that, unless expressly stated, nothing in the CWA 

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

than the Federal CWA. Many tribes and states, for example, regulate groundwater, and some 

others protect wetlands that are vital to their environment and economy but which are outside the 

regulatory jurisdiction of the CWA. Nothing in this rule limits or impedes any existing or future 

tribal or state efforts to further protect their waters. In fact, providing greater clarity regarding 

what waters are subject to CWA jurisdiction will reduce the need for permitting authorities, 

including the tribes and states with authorized section 402 and 404 CWA permitting programs, to 

make jurisdictional determinations on a case-specific basis.

The agencies understand that the definition of “waters of the U.S.” applies to all CWA programs. 

The agencies modified the final rule from the proposed rule in response to comments received in 

order to ensure unintended effects to those other CWA programs were reduced or eliminated. 

The Economic Analysis provides costs/benefits and predicted change in jurisdiction for all CWA 

programs.

The agencies believe with the clarity and certainty provided in the rule that there will be 

efficiencies gained in making jurisdictional determinations. The Corps will develop the tools 

necessary to assist its staff with the jurisdictional determination process specific to section 404 in 

the implementation of the final rule to make the process predictable, efficient, and effective. The 

initial phase of implementing the rule will require education and training for agency staff as well 

as other stakeholders and the regulated public, which will include regionally-based training to 

ensure consistent and efficient implementation of the rule. 

The agencies understand that there is regional variation which can make it appear that there are 

inconsistencies in the program. However, the rule aims to reduce any inconsistencies and 

provide a bright line of clarity for the agencies, state partners, and the regulated public.

The agencies recognize that there are appropriate levels of regional variation in implementation 

of the regulations; however, the agencies strive for national consistency. The agencies are 

developing guidance to facilitate effective, consistent, and efficient implementation of the final 

rule once it becomes effective. The agencies believe the clarity and certainty provided in the rule 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

245

will result in further consistency, while still allowing for regional variation in implementation 

that may be necessary based on regional differences in aquatic resources; for example, the 

ordinary high water mark regional manuals or the regional supplements to the wetland 

delineation manual, both of which are outside the scope of this rulemaking but are related 

resources.

There are two types of jurisdictional determinations; preliminary and approved jurisdictional 

determinations. Preliminary jurisdictional determinations indicate which waters on a property 

may be waters of the U.S., presume all waters on a property are jurisdictional, are not legally 

binding instruments, and enable a landowner to set aside the issue of jurisdiction and move 

directly into the permit evaluation phase of the process. Preliminary jurisdictional 

determinations cannot be used to decline jurisdiction and are generally more expedient than 

approved jurisdictional determinations. Approved jurisdictional determinations are the official 

Corps determination that jurisdictional “waters of the United States,” or “navigable waters of the 

United States,” or both, are either present or absent on a particular site. An approved JD 

precisely identifies the limits of those waters on the project site determined to be jurisdictional 

under the Clean Water Act/Rivers and Harbors Act. The majority of jurisdictional determinations 

completed by the Corps are preliminary. 

The Rule will be effective 60 days after publication in the Federal Register. Under existing 

Corps’ regulations and guidance, Corps’ approved jurisdictional determinations generally are 

valid for five years. The agencies will not reopen existing approved jurisdictional determinations 

unless requested to do so by the applicant or unless site-specific facts/information necessitate the 

reopening of an approved JD. The preamble addresses the status of final JDs and permits as well 

as pending JDs and permits. Already issued permits are not affected by this rule. 

Not every permit application requires a jurisdictional determination. The Corps will continue to 

provide the option to the landowner for both approved and preliminary jurisdictional 

determinations. There is not expected to be a required timeframe for completion of a 

jurisdictional determination, which can be dependent on a variety of factors including climate 

and weather patterns. 

There are appropriate levels of regional variation in implementation of the regulations; however, 

the agencies strive for national consistency. This appropriate regional variation can make it 

appear that there are inconsistencies in program execution. The rule aims to reduce any 

inappropriate inconsistencies and provide a bright line of clarity for the agencies, state partners, 

and the regulated public. The agencies believe the clarity and certainty provided in the rule will 

result in further consistency, while still allowing for regional variation in implementation that 

may be necessary based on regional differences in aquatic resources. Tools exist that recognize 

this regional variation and provide assistance to field staff; for example, the ordinary high water 

mark regional manuals or the regional supplements to the wetland delineation manual, both of 

which are outside the scope of this rulemaking but are related resources.

The exemptions under Section 404(f)(1) of the Clean Water Act, as well as nationwide general 

permit thresholds for impacts, are outside the scope of this rulemaking.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

246

While it is the responsibility of the Corps as the agency evaluating permit applications under 

section 404, to determine if Endangered Species Act and the National Historic Preservation Act 

requirements are being met, there are cases where these laws or other federal, state or local laws

may still require review absent a CWA action. The 404 permit action does not remove the 

requirement to get other permits, if required by law. Obtaining a jurisdictional determination 

from the agencies does not trigger Section 7 of the Endangered Species Act, a federal action 

does, such as a section 404 permit decision. However, private landowners are also required to 

comply with Section 10 of the Endangered Species Act absent a federal action. The agencies 

work to ensure this compliance with other federal laws is completed in the most efficient and 

effective manner, and may include programmatic agreements or local operating procedures to 

streamline the process.

This rule does not impact the citizen suit provisions under the Clean Water Act. 

Although the agencies believe that additional efficiencies will be gained through implementation 

of the rule, all jurisdictional determinations are site-specific, using available information for that 

review area. Site-specific conditions are considered when determining whether a water meets 

the (a)(7) or (a)(8) category requiring a case-specific significant nexus determination. Although 

waters outside the landowner’s review area may be considered in a significant nexus 

determination the jurisdictional determination is only specific to waters on the landowner’s 

review area. Previous jurisdictional determinations for (a)(7) and (a)(8) waters made in the 

single point of entry watershed may be used in future jurisdictional determinations in the same 

single point of entry watershed.

The agencies believe that the characteristics required to meet the definition of “tributary” are 

indicators of sufficient volume, flow, and duration such that the tributaries have a significant 

nexus, either alone or in combination with other tributaries in the region, to the downstream 

(a)(1) to (a)(3) waters.

Although the agencies believe that additional efficiencies will be gained through implementation 

of the rule, all jurisdictional determinations are site-specific, using available information for that 

review area. Site-specific conditions are still considered when determining whether a water 

feature meets the definition of “waters of the U.S.” 

Approved JDs that identify the limits of waters of the United States may be based on site visits or 

desktop reviews. The agencies have been using remote sensing and desktop tools to delineate 

tributaries for many years where data from the field are unavailable or a field visit is not 

possible. Desktop reviews are sufficient in cases where the district has a high degree of 

confidence in the information used to identify the limits of jurisdictional waters. For example, 

desktop reviews may be based on detailed delineation reports prepared by professional wetland 

consultants. The level of mapping precision for an approved JD that identifies the limits of 

waters of the United States is at the discretion of the district. In some cases, districts may need to 

require professional surveys of jurisdictional boundaries, but in other cases, other mapping 

techniques may be adequate. See the preamble for further discussion on desktop tools in the 

“Tributary” section. In addition, desktop tools are critical in circumstances where physical 

characteristics of waters are absent in the field, often due to unpermitted alteration of waters. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

247

The majority of this information is available for the public’s use; these tools can allow for greater 

consistency with currently available and accessible data sources.

Specific Comments

Area II Minnesota River Basin Projects, Inc. (Doc. #7185)

12.351 Knowing how southwestern Minnesota floods frequently due to the Buffalo Ridge, 

concern is great that overflowing wetlands, due to excessive snowmelt or rainfall, would 

be considered jurisdictional under the proposed rule. The overflowing wetland or basin 

does not establish a hydrologic connection which would justify jurisdiction. Jurisdiction 

can only be determined under normal hydrologic conditions. (p. 2)

Agency Response: The relevant science on the relationship and downstream 

effects of waters has advanced considerably in recent years. A comprehensive 

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

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

synthesizes the peer-reviewed science. The Science Report found that wetlands and 

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

biologically connected with downstream rivers and influence the ecological integrity 

of such rivers. The rule establishes jurisdiction in three basic categories: waters that 

are jurisdictional in all instances, waters that are jurisdictional but only if they meet 

specific definitions in the rule, and a narrowed category of waters subject to casespecific analysis. “Adjacent” waters include wetlands, ponds, lakes, oxbows, 

impoundments, and similar water features. The agencies have determined that 

“adjacent” waters, as defined in the rule, have a significant nexus to traditional 

navigable waters, interstate waters, and the territorial seas based upon their 

hydrological and ecological connections to, and interactions with, those waters. The 

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

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

waters would be “neighboring” and therefore “waters of the United States.” Waters 

that meet the definition of “adjacent” would be jurisdictional by rule. Wetlands that 

are not jurisdictional by rule are subject to case-by-case determination. 

Jurisdictional determinations can be requested from the local Corps District Office.

Pennsylvania Department of Environmental Protection Water Management Office (Doc. #7985)

12.352 EPA asserts that protection of the 60 percent of nation’s stream miles that flow only 

seasonally80 is an important objective of the rule. However, Pennsylvania is not a state 

for which the majority of stream miles only flow seasonally. Further, to the extent 

Pennsylvania streams have seasonal flow, they are protected under State law. 

Administering a detailed and specific hut ‘one-size-fits-all’ definition applicable 

nationwide in states with distinct surface and groundwater attributes, and extremely 

divergent average annual rainfall and snowmelt characteristics will be difficult, and such 

a rule may in fact undermine existing state law protections.

 

80 Pennsylvania uses the terminology “intermittent stream” and “perennial stream” rather than seasonal. 25 Pa.

Code §102.1
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

248

Agency Response: The agencies disagree that the rule will undermine existing 

state law protections. EPA and the Corps recognize that the establishment of 

“bright line” thresholds in the rule does not in any way restrict states from 

considering state specific information and concerns, as well as emerging science to 

evaluate the need to more broadly protect their waters under state law. The CWA 

establishes both national and state roles to ensure that states’ specific-circumstances 

are properly considered to complement and reinforce actions taken at the national 

level. The agencies are committed to working with states to more closely evaluate 

state-specific circumstances that may be present across the country and, as 

appropriate, encourage states to develop rules that reflect their circumstances and 

emerging science to ensure consistent and effective protection for waters in the 

states. As is the case today, nothing in this rule restricts the ability of states to more 

broadly protect state waters. 

California State Association of Counties (Doc. #9692)

12.353 Starting almost 100 years ago, counties in southern California have constructed artificial 

basins for the purpose of replenishing local area aquifers. Today, the counties in southern 

California are home to over 20 million people, and the population is expected to increase. 

Groundwater serves a significant portion of the water supply for the inhabitants of these 

counties. In many communities, groundwater actually makes up the majority of their 

water supply. Counties in southern California are under pressure from the federal and 

State governments to lessen their dependence on water imported from the Sacramento / 

San Joaquin Delta and the Colorado River for the sake of environmental concerns at these 

source areas. The State of California declared a drought emergency in early 2014 that is 

still in effect; there are projections that drought conditions may continue for a very long 

period of time, even decades. It is therefore vital that groundwater recharge in these 

counties is not only maintained but enhanced. (p. 8)

Agency Response: The agencies are supportive of groundwater recharge and have 

added exclusions from the definition of “waters of the United States” for 

“groundwater, including groundwater drained through subsurface drainage 

systems” and “wastewater recycling structures constructed in dry land,” which 

include “groundwater recharge basins.” Please also see summary responses 7.3.1.6 

and 7.4.2.

State of Idaho (Doc. #9834)

12.354 The Proposed Rule makes no attempt to recognize regional differences in the terms it 

defines. Failing to recognize the distinct differences between water conveyances in the 

arid West will result in confusion and the overbroad application of CWA jurisdiction. 

This will result in regulatory uncertainty rather than clarity and consistency.

Agency Response: The agencies disagree that the rule will result in regulatory 

uncertainty. The agencies have concluded that the rule will clarify the scope of 

“waters of the United States” that are protected under the Clean Water Act (CWA). 

The rule makes the process of identifying waters protected under the CWA easier to 

understand, more predictable, and consistent with the law and peer-reviewed 

science, while protecting streams and wetlands. The scope of regulatory jurisdiction 

in this rule is narrower than that under the existing regulation. Fewer waters will be 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

249

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

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

categories such as tributaries. 

Washington State Association of Counties (Doc. #9976)

12.355 Due to federal designation of several species of salmon to be either listed as threatened or 

endangered, Washington’s counties have over several years developed best management 

practices (BMPs) which have been reviewed by federal resource agencies through 

consultation and have been determined to be protective of salmon. These BMPs, together 

with Ecology’s stormwater regulations provide strong protection for state and U.S. 

waters. We are concerned that the new regulatory definition together with federal 

jurisdictional interpretations will undermine and undo the significant efforts by counties 

to develop these road maintenance BMPs. (p. 2)

Agency Response: Please see the summary responses at 12.3 and 7.4.4. The 

agencies support Washington’s counties efforts to develop best management 

practices (BMPs) for road maintenance and stormwater management facilities to 

protect salmonid species. 

Interstate Mining Compact Commission (Doc. #14114)

12.356 IMCC asserts that proposed national rules should not utilize a one-size-fits-all approach 

and assume that a rule that works well in one part of the country will work just as well 

elsewhere. Given the significant differences in geography, soils, hydrogeology, rainfall, 

and other unique conditions throughout the country, the states urge EPA and the Corps to 

thoroughly consider whether there might be better approaches to the rulemaking that 

would recognize these regional differences. For example, the state of Alaska contains 

63% of the country’s wetlands and the majority of them are dependent on continuous or 

discontinuous permafrost. Due to a very short growing season (that may be interrupted 

with frosts) and hydric soils that generally hover around a “biological zero” temperature, 

it can be difficult to demonstrate a significant nexus to downstream waters for wetlands 

within permafrost areas. Other unique features that must be considered in Alaska which 

are uncommon or entirely absent in the rest of the country include tundra, muskegs, 

boreal forest spruce bogs, glaciers, and massive snowfields. Despite these unique 

circumstances, EPA and the Corps did not include a review of scientific studies based on 

work in Alaska as part of the Draft “Connectivity of Streams and Wetlands to 

Downstream Waters: A Review and Synthesis of the Scientific Evidence” (Connectivity 

Report), which was used as the basis for conclusions in the proposed rule. The state has 

provided examples of such studies in testimony and comments they provided to the 

Science Advisory Board’s (SAB) Peer Review Panel. We urge EPA and the Corps to 

take these studies into consideration. 

EPA states that an important objective of the rule is to protect the 60 percent of the 

Nation’s stream miles that flow only seasonally. However, the Commonwealth of 

Pennsylvania is not a state in which the majority of stream miles only flow seasonally. 

To the extent that Pennsylvania streams have seasonal flow, they are protected under

state law. Administering a detailed and specific “one-size-fits-all” definition applicable 

nationwide in states with distinct surface and groundwater attributes, and extremely 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

250

divergent average annual rainfall and snow melt characteristics, will be difficult. Such a 

rule may in fact undermine existing state law protections. (p. 3) 

Agency Response: See summary response. The agencies recognize the unique 

aquatic habitats present in Alaska and the challenges in determining jurisdiction 

when it may be different from the other States. The agencies recognize that there 

are appropriate levels of regional variation in implementation of the regulations; 

however, the agencies strive for national consistency. The agencies are developing 

guidance to facilitate effective, consistent, and efficient implementation of the final 

rule once it becomes effective. The agencies believe the clarity and certainty 

provided in the rule will result in increased consistency, while still allowing for 

regional variation in implementation that may be necessary based on regional 

differences in aquatic resources.

Wyoming House of Representatives (Doc. #14308)

12.357 As numerous state and local regulatory officials and public and private-sector 

stakeholders have pointed out in their comments and letters, Congress never intended for 

the CWA process to apply to the management of groundwater in states. Such an 

expansive regulatory reach described above would encompass most of the arid Western 

U.S. and the proposed rule also expands the definition of “Waters of the U.S.” to include 

“permafrost” – a move that would potentially put 85 percent of the entire landmass of 

Alaska under a CWA permitting regime. (p. 1)

Agency Response: See summary response. The scope of regulatory jurisdiction in 

this rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories. See paragraph (b) of the final rule and the preamble section “Waters and 

Features That Are Not Waters of the U.S.” for further discussion on the exclusions 

provided under the final rule, including groundwater. 

Commonwealth Pennsylvania Department of Agriculture (Doc. #14465)

12.358 One size does not fit all. EPA asserts that protection of the 60 percent of nation’s stream 

miles that flow only seasonally81 is an important objective of the rule. However, 

Pennsylvania is not a state for which the majority of stream miles only flow seasonally. 

Further, to the extent Pennsylvania streams have seasonal flow, they are protected under 

State law. Administering a detailed and specific but “one-size-fits-all’ definition 

applicable nationwide in states with distinct surface and groundwater attributes, and 

extremely divergent average annual rainfall and snowmelt characteristics will be difficult, 

and such a rule will undermine existing state law protections. (p. 3)

Agency Response: See summary response. The agencies are developing guidance 

to facilitate effective, consistent, and efficient implementation of the final rule once it 

becomes effective. There are appropriate levels of regional variation in 

implementation of the regulations; however, the agencies strive for national 

 

81 Pennsylvania uses the terminology “intermittent stream” and “perennial stream” rather than seasonal. 25 Pa. Code 

§102.1
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251

consistency. This appropriate regional variation can make it appear that there are 

inconsistencies in program execution. The rule aims to reduce any inappropriate 

inconsistencies and provide a bright line of clarity for the agencies, state partners, 

and the regulated public. The agencies believe the clarity and certainty provided in 

the rule will result in further consistency, while still allowing for regional variation 

in implementation that may be necessary based on regional differences in aquatic 

resources. Tools exist that recognize this regional variation and provide assistance 

to field staff; for example, the ordinary high water mark regional manuals or the 

regional supplements to the wetland delineation manual, both of which are outside 

the scope of this rulemaking but are related resources. The final rule provides a 

bright line of clarity for the agencies, state partners, and the regulated public.

Tribes and states play a vital role in the implementation and enforcement of the 

CWA. Section 101(b) of the CWA states that it is Congressional policy to preserve 

the primary responsibilities and rights of states to prevent, reduce, and eliminate 

pollution, to plan the development and use of land and water resources. Tribes and 

states, consistent with the CWA, retain full authority to implement their own 

programs to more broadly and more fully protect the waters in their jurisdiction. 

Section 510 of the CWA indicates that, unless expressly stated, nothing in the CWA 

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

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

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

environment and economy but which are outside the regulatory jurisdiction of the 

CWA. 

State of Oklahoma (Doc. #14625)

12.359 Critical portions of the proposed rule include key concepts that are newly created, yet are 

left unclear, undefined or subject to agency discretion. In other words, the rule fosters 

continued and additional subjectivity – a result diametrically opposed to the authoring 

agencies’ intent. While the proposed rule does not change the primary categories of 

water that historically have been regulated as “navigable waters” (e.g., tidal water bodies, 

interstate waters, territorial seas, and impoundments of these waters), the proposal 

seemingly expands the CWA’s regulatory coverage of tributaries and includes broad new 

categories of waters, such as ditches, adjacent waters, riparian areas and floodplains. (p. 

10)

Agency Response: See Summary Response. The scope of regulatory jurisdiction 

in this rule is narrower than that under the existing regulation. Fewer waters will 

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

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

categories such as tributaries. The rule limits CWA jurisdiction only to those types 

of waters that have a significant nexus to downstream (a)(1)-(a)(3) waters, not just 

any hydrologic connection. For this reason it is expected to improve efficiency, 

clarity, and predictability for landowners as well as permit applicants. The agencies 

received many helpful comments on the proposed rule which resulted in the 

refinements seen in the final rule to provide further clarity and certainty.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

252

Additionally, definitions of certain terms are provided for the first time (e.g. 

tributary), or are further clarified (e.g. adjacent). The final rule provides for 

certain categories of waters that are jurisdictional by rule, which will result in a 

more efficient process. See the updated Economic Analysis for additional 

discussion.

Western Governors Association (Doc. #14645)

12.360 CWA Reauthorization: The Western Governors support reauthorization of the CWA, 

provided that it recognizes the unique hydrology and legal framework in Western states. 

Further, any CWA reauthorization should include a new statement of purpose to 

encourage the reuse of treated wastewater to reduce water pollution and efficiently 

manage water resources. (p. 8)

Agency Response: See Summary Response. The agencies acknowledge the 

support of the Western Governors Association for promulgation of this rule, which 

is a different action than reauthorization of the Clean Water Act. The agencies are 

supportive of water reuse and recycling and have added exclusions specifically for 

wastewater recycling structures created in dry land, including groundwater 

recharge basins and percolation ponds, and water distributary structures built for 

wastewater recycling. The agencies appreciate your support in clarifying the 

definition of waters of the U.S.; the rule will continue to allow for regional variation 

in implementation which may be necessary based on regional differences in aquatic 

resources. 

South Carolina Forestry Commission (Doc. #14750)

12.361 The South Carolina Forestry Commission would prefer to see a regionalized approach to 

“waters of the US” rulemaking. The “significant nexus” determination of all “similarly 

situated waters” within an ecoregion if applied to “Other Waters” at a national level 

would appear to also greatly expand the reach of “waters of the US”. The SCFC 

recognizes that waters are different in the various regions across the South and across the 

US, and would prefer to see a more site by site approach to determinations of “waters of 

the US” status, rather than a “one size fits all” national rule or standard. (p. 1-2)

Agency Response: See Summary Response. The agencies are developing guidance 

to facilitate effective, consistent, and efficient implementation of the final rule once it 

becomes effective. There are appropriate levels of regional variation in 

implementation of the regulations; however, the agencies strive for national 

consistency. This appropriate regional variation can make it appear that there are 

inconsistencies in program execution. The rule aims to reduce any inappropriate 

inconsistencies and provide a bright line of clarity for the agencies, state partners, 

and the regulated public. The agencies believe the clarity and certainty provided in 

the rule will result in further consistency, while still allowing for regional variation 

in implementation that may be necessary based on regional differences in aquatic 

resources. Tools exist that recognize this regional variation and provide assistance 

to field staff; for example, the ordinary high water mark regional manuals or the 

regional supplements to the wetland delineation manual, both of which are outside 

the scope of this rulemaking but are related resources.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

253

Arizona Game and Fish Department (Doc. #14789)

12.362 The predominant channel types in Arizona are ephemeral and intermittent waters, such as 

desert washes. According to the proposed Rule, these types of waters may be determined 

to be “tributaries” if the waterway has a defined bed, bank or high water mark. However, 

as noted in Survey of OHWM Indicator Distribution Patterns across Arid West 

Landscapes (U.S. Army Corps of Engineers, January 2013), flows in intermittent and 

ephemeral channels are unstable and migrate within the boundaries of the active channel. 

The Survey identified six “flow indicators” across mountain, foothill and basin 

landscapes: change in vegetation cover, bed and hank, change in vegetation species, drift, 

slope and change in texture. The Survey concludes these flow indicators are randomly 

distributed in all locations across a channel and cannot be used to delineate the lateral 

extent of the OHWM. The Survey concludes that a geomorphic approach that identifies 

the hydrogeomorphic floodplain units of the channel, linking vegetation and sediment 

texture patters to changes in channel morphology, and identifying the break in slope 

associated with the geomorphically effective event is necessary. Survey at 17. For this 

reason, intermittent and ephemeral channels in Arizona do not readily fit into the 

jurisdictional category of a “tributary” and may require case-specific evaluations of 

significant nexus. This regulatory uncertainty will create burdens for the Department in 

the management of its properties. The Department supports the development of an ecoregional approach to determine which ephemeral channels might be better defined as 

tributaries with a significant nexus to waters of the U.S. (p. 1-2)

Agency Response: See Summary Response. The agencies disagree that the rule’s 

definition of “tributary” will result in regulatory uncertainty. The rule defines 

“tributary” by emphasizing physical characteristics created by sufficient volume, 

frequency and duration of flow; and the concept that a water must contribute flow, 

either directly or through another water, to a traditional navigable water, interstate 

water, or the territorial seas. The definition is based on the best available science, 

the intent of the Clean Water Act, and caselaw, and is also consistent with current 

practice. 

The ordinary high water mark manuals developed by the Corps provide 

appropriate indicators to consider when delineating the ordinary high water mark 

in the field. Examples of OHWM indicators may include breaks in the slope, 

changes in vegetation, and changes in the sediment texture and substrate. The 

OHWM manual for the Arid West acknowledges the challenges in identifying the 

ordinary high water mark in the region; however, it provides the applicable 

indicators in the region to use when delineating the lateral extent of the OHWM in 

the Arid West. The agencies believe the clarity and certainty provided in the rule 

will result in further consistency, while still allowing for regional variation in 

implementation that may be necessary based on regional differences in aquatic 

resources.

Office of the Governor, State of Kansas (Doc. #14794)

12.363 It is clear to Kansas that the Federal agencies intend the proposed rule to facilitate the 

issuance of Section 404 permits while reducing staff workloads by eliminating the need 

for site-specific determinations on jurisdiction. By claiming broad categories such as 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

254

tributaries are jurisdictional; all determinations may be made from the desktop of Federal 

staff through maps and aerial photography. With the inclusion of adjacent waters to the 

coverage provided by tributaries, positive jurisdiction determinations will become 

automatic, without consideration of site-specific conditions. The Federal agencies 

believe all tributaries contain a bed, a bank and an ordinary high water mark and channels 

with those three characteristics are jurisdictional, regardless of flow conditions. Kansas 

refutes that, noting especially in the case of western Kansas streams, that the location of 

the channel above the regional water table, the frequency of flow occurring in the channel 

and the longitudinal distance between the channel site and actual downstream perennial 

or seasonal water warrant equal consideration. The latter factors play to the concept of 

“significant nexus” and connectivity among streams, and more closely embrace Justice 

Kennedy’s insistence that mere hydrologic connection does not bestow ecological 

significance to certain waters. (p. 4)

Agency Response: See Summary Response. Although the agencies believe that 

additional efficiencies will be gained through implementation of the rule, all 

jurisdictional determinations are site-specific, using available information for a 

specific review area associated with a landowner’s request for a determination. 

Site-specific conditions are considered when determining whether a water feature 

meets the definition of “tributary” or “adjacent” due to the inclusion of specific 

characteristics within those definitions. In other words, in order for a water feature 

to be a “tributary” or to be “adjacent” it must have the characteristics included in 

the definition. 

The agencies believe that the characteristics required to meet the definition of 

“tributary” are indicators of sufficient volume, flow, and duration such that the 

tributaries have a significant nexus, either alone or in combination with other 

tributaries in the region, to the downstream (a)(1) to (a)(3) waters. Erosional 

features that do not meet the definition of tributary excluded under paragraph (b) 

of the final rule. See the Technical Support Document for a summary of the 

applicable scientific and legal basis for the final rule. Furthermore, if a water 

feature is not explicitly included within paragraph (a), including being subject to 

case-specific significant nexus determinations, it is excluded from coverage under 

the CWA even if it is not specifically excluded in paragraph (b). The preamble 

contains important discussion on this point in the “Case-Specific Significant Nexus 

Determinations” sections.

Approved JDs that identify the limits of waters of the United States may be based on 

site visits or desktop reviews. The agencies have been using remote sensing and 

desktop tools to delineate tributaries for many years where data from the field are 

unavailable or a field visit is not possible. Desktop reviews are sufficient in cases 

where the district has a high degree of confidence in the information used to identify 

the limits of jurisdictional waters. For example, desktop reviews may be based on 

detailed delineation reports prepared by professional wetland consultants. The level 

of mapping precision for an approved JD that identifies the limits of waters of the 

United States is at the discretion of the district. In some cases, districts may need to 

require professional surveys of jurisdictional boundaries, but in other cases, other 

mapping techniques may be adequate. See the preamble for further discussion on 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

255

desktop tools in the “Tributary” section. In addition, desktop tools are critical in 

circumstances where physical characteristics waters are absent in the field, often 

due to unpermitted alteration of waters. The majority of this information is 

available for the public’s use; these tools can allow for greater consistency with 

currently available and accessible data sources.

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

12.364 We agree with the Agencies that there are geographic differences around the country, but 

giving federal officials authority to change the scope of federal jurisdiction based on 

location provides for inconsistency, obscurity, and uncertainty. To avoid this outcome, 

federal jurisdiction should be limited to water that is clearly subject to Clean Water Act 

authority based on navigability or a demonstrated ability to impact the quality of 

navigable water. Regulation of other water may be appropriate depending on location 

and function, but decisions based on such geographic differences are best left to the 

discretion of State officials. Federal jurisdiction must be consistent, clear, and certain. (p. 

7)

Agency Response: The agencies are developing guidance to facilitate effective, 

consistent, and efficient implementation of the final rule once it becomes effective. 

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

Approved JDs that identify the limits of waters of the United States may be based on 

site visits or desktop reviews. The agencies have been using remote sensing and 

desktop tools to delineate tributaries for many years where data from the field are 

unavailable or a field visit is not possible. Desktop reviews are sufficient in cases 

where the district has a high degree of confidence in the information used to identify 

the limits of jurisdictional waters. For example, desktop reviews may be based on 

detailed delineation reports prepared by professional wetland consultants. The level 

of mapping precision for an approved JD that identifies the limits of waters of the 

United States is at the discretion of the district. In some cases, districts may need to 

require professional surveys of jurisdictional boundaries, but in other cases, other 

mapping techniques may be adequate. See the preamble for further discussion on 

desktop tools in the “Tributary” section. In addition, desktop tools are critical in 

circumstances where physical characteristics waters are absent in the field, often 

due to unpermitted alteration of waters. The majority of this information is 

available for the public’s use; these tools can allow for greater consistency with 

currently available and accessible data sources.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

256

Arizona Department of Transportation (Doc. #15215)

12.365 Overall, our concern is that this Proposed Rule will impose substantial and unjustified 

new costs and delays. ADOT urges EPA and the Corps to revise the definition of 

“tributary” to clarify the upper extent of a tributary with a definition that can be applied 

to the arid landscape and ephemeral drainages in the arid southwest. (p. 3) 

Agency Response: See Summary Response. See the Economic Analysis for 

additional information on costs/benefits of the final rule. 

The preamble section on “Tributaries” provides additional discussion on the 

definition of tributary and how to identify the upper limit of the tributary. The 

agencies believe that the characteristics required to meet the definition of 

“tributary” are indicators of sufficient volume, flow, and duration such that the 

tributaries have a significant nexus, either alone or in combination with other 

tributaries in the region, to the downstream (a)(1) to (a)(3) waters. Erosional 

features that do not meet the definition of tributary excluded under paragraph (b) 

of the final rule. See the Technical Support Document for a summary of the 

applicable scientific and legal basis for the final rule. Furthermore, if a water 

feature is not explicitly included within paragraph (a), including being subject to 

case-specific significant nexus determinations, it is excluded from coverage under 

the CWA even if it is not specifically excluded in paragraph (b). The preamble 

contains important discussion on this point in the “Case-Specific Significant Nexus 

Determinations” sections.

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

Delaware Department of Natural Resources and the Environment (Doc. #16558)

12.366 As in other states, Delaware has unique conditions due to legal, political, 

geomorphologic, hydrologic, resource management, and other forces with bearing on 

achieving clean water. Delaware recognizes the difficulty in developing a rule to clarify 

and make consistent the scope of the CWA for the entire nation. It will be extremely 

important for EPA and the Corps to work closely with states to establish a rule that will 

be productive in regard to state’s unique conditions and emphasizes the need for regional 

guidance on many of these issues. The proposed rule affects the implementation of CWA 

Sections 303(d), 319, 402 and 404, and states need direction, clarification and 

consistency within the proposed rule to administer these water authorities. (p. 2)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

257

Agency Response: See Summary Response. The agencies are developing 

guidance to facilitate effective, consistent, and efficient implementation of the final 

rule once it becomes effective. There are appropriate levels of regional variation in 

implementation of the regulations; however, the agencies strive for national 

consistency. This appropriate regional variation can make it appear that there are 

inconsistencies in program execution. The rule aims to reduce any inappropriate 

inconsistencies and provide a bright line of clarity for the agencies, state partners, 

and the regulated public. The agencies believe the clarity and certainty provided in 

the rule will result in further consistency, while still allowing for regional variation 

in implementation that may be necessary based on regional differences in aquatic 

resources. Tools exist that recognize this regional variation and provide assistance 

to field staff; for example, the ordinary high water mark regional manuals or the 

regional supplements to the wetland delineation manual, both of which are outside 

the scope of this rulemaking but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process consistent, predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule.

The agencies recognize that the state and local governments have well-defined and 

long-standing relationships in implementing affected CWA programs and these 

relationships will not be altered. This action will not have substantial direct effects 

on the states, on the relationship between the national government and the states, or 

on the distribution of power and responsibilities among the various levels of 

government.

The rule only provides a definition for “waters of the U.S.” The rule does not affect 

the CWA statute in which authorization may be required for discharges of dredged 

and/or fill material into waters of the U.S., or other activities in jurisdictional waters 

of the U.S. including for example, NPDES permits, water quality standards, or 

Section 311 requirements which also require authorization. In addition, the rule 

does not affect activities that are currently exempt from CWA regulation. The rule 

also does not affect permitting tools such as the use of general permits that the 

Corps implements for expeditious review and efficiency in processing permit 

applications for discharges of dredged and/or fills material into waters of the U.S. 

The rule will improve consistency and predictability for all CWA programs and 

provides clarity regarding jurisdiction, thus reducing uncertainties and delays.

State of Idaho (Doc. #16597)

12.367 The Proposed Rule makes no attempt to recognize regional differences in the terms it 

defines. Failing to recognize the distinct differences between water conveyances in the 

arid West will result in confusion and the overbroad application of CWA jurisdiction. 

This will result in regulatory uncertainty rather than clarity and consistency. (p. 5)

Agency Response: See Summary Response. See paragraph (b) of the final rule 

and the preamble section “Waters and Features That Are Not Waters of the U.S.” 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

258

which includes erosional features that do not meet the definition of “tributary.” The 

characteristics required for a water feature to meet the definition of “tributary” 

provides for a clear distinction between jurisdictional by rule waters and excluded 

erosional features. 

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process consistent, predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule.

New York State Department of Environmental Conservation (Doc. #18895)

12.368 (...) there is little to no regional flexibility in the proposed rule. The geography of the 

northeast is different than that of the southwest, for example, New York State, with its 

rocky terrain and multitude of glacial lakes, is a complicated environment that requires a 

tailored permitting process. New York State already has some of the strongest water 

quality programs in place and could work with EPA/USACE to craft New York-specific 

guidance, which would clearly apply to New York’s waters. This approach is consistent 

with the way in which EPA has handled other water quality issues under the CWA. (p. 2)

Agency Response: See Summary Response. The agencies are developing 

guidance to facilitate effective, consistent, and efficient implementation of the final 

rule once it becomes effective. The agencies recognize that there are appropriate 

levels of regional variation in implementation of the regulations; however, the 

agencies strive for national consistency. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources. Tools exist that recognize this regional variation 

and provide assistance to field staff; for example, the ordinary high water mark 

regional manuals or the regional supplements to the wetland delineation manual, 

both of which are outside the scope of this rulemaking but are related resources. 

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to the 404 program during the implementation of the 

final rule to make the process consistent, predictable, efficient, and effective. The 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

259

initial phase of implementing the rule will require education and training for agency 

staff as well as other stakeholders and the regulated public, which will include 

regionally-based training to ensure consistent and efficient implementation of the 

rule.

State of Alaska (Doc. #19465)

12.369 As a consequence of failing to consult with co-regulator states, EPA and the Corps 

promulgated a proposed rule that fails to account for the regional differences existing 

among the states. 

Proposed national rules cannot assume, as this one does, that “one size fits all,” that a rule 

that works well in one part of the country will work just as well elsewhere. Given the 

significant differences in regional geomorphologic and hydrologic conditions between 

the states, it is particularly important to thoroughly consider whether there might be other 

approaches to the rulemaking that would work better to ensure consistency and 

predictability in jurisdictional determinations. One alternative that should be considered 

is whether states are in a better position to address any water quality issues that EPA and 

the Corps are trying to target with the proposed rulemaking. The states have jurisdiction 

over groundwater, and are in the best position to address water issues that may arise due 

to the “interconnectedness” of water bodies. This alone militates against EPA and the 

Corps’ proposal of making wetlands and isolated waters jurisdictional on the basis of a 

“shallow subsurface hydrologic” connection.82 Alaska has authority and responsibility to 

protect all waters in the State regardless of whether the federal government has 

concurrent jurisdiction. 

A rule-making should not leave the agencies and public wondering who or what is 

covered by a new rule and what requirements are being added or changed. There is 

significant uncertainty, particularly under Alaska’s unique circumstances, of how the 

proposed concepts of “adjacency” “tributaries” and “interconnectedness” would be 

applied to specific field situations. For example, it is unclear whether these terms would 

exclude alpine muskeg peat bogs, or forested wetlands on steep slopes in southeast 

Alaska that do not have a traditional hydrological connection (defined bed, bank or 

ordinary high water mark). There are also wetlands that exist on the North Slope of 

Alaska as a result of relatively flat terrain, and seasonal snowmelt that cannot penetrate 

frozen soil. These areas can be tens, or even hundreds of miles from the nearest 

navigable water. The proposed rule only creates greater uncertainty for Alaska. (p. 12-

13)

Agency Response: See Summary Response. The agencies are developing 

guidance specific to section 404 to facilitate effective, consistent, and efficient 

implementation of the final rule once it becomes effective. The agencies strive to 

achieve consistency across the country in all districts and regions in application of 

the rule for jurisdictional determinations. The agencies also recognize that there 

 

82 Introduction of the term “shallow subsurface hydrologic connection” without definition in the proposed rule as if 

the term was distinct from a “groundwater connection” raises questions on whether EPA and the Corps are asserting 

authority where they have none. This makes the agencies vulnerable to charges they are seeking to secure more 

expansive federal jurisdiction than historically asserted.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

260

are variations that occur in geography, hydrology, climate, etc., which affect 

jurisdictional determinations. The initial phase of implementing the rule will 

require education and training for agency staff as well as other stakeholders and the 

regulated public. This training and outreach will be regionally-based to ensure 

appropriate consideration is given to ecoregional variation and to ensure consistent 

and efficient implementation of the rule. 

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

The agencies recognize that the state and local governments have well-defined and 

long-standing relationships in implementing affected CWA programs and these 

relationships will not be altered. This action will not have substantial direct effects 

on the states, on the relationship between the national government and the states, or 

on the distribution of power and responsibilities among the various levels of 

government. The agencies are not restricting the states’ efforts in developing or 

implementing statewide permits under CWA programs as a result of the rule.

12.370 At more than 403 million acres, the State of Alaska encompasses the largest geographic 

area of any state in the nation (more than twice the area of the next largest state). Alaska 

has more coastline than the entire conterminous United States (nearly 34,000 miles), over 

three million lakes greater than five acres in size, and over 15,000 water bodies that are 

known to support resident or anadromous fish.83 Its size is such that when a map of 

Alaska is superimposed on the lower 48 states, Alaska’s boundaries would extend 

roughly the equivalent of east coast to west coast (see Attachment 4). 

Wetlands and deepwater habitat combined occupy over 204 million acres, or over 50 

percent of the State’s surface area.84 By comparison, wetlands and deepwater habitat 

comprise a little more than nine percent of the surface area of the lower 48 states.85

Setting aside deepwater habitat, the State of Alaska has over 174 million acres of 

wetlands, comprising approximately 43 percent of the surface area of the State.86 The 

 

83 Alaska Department of Fish and Game, Catalog of Waters Important for the Spawning, Rearing or Migration of 

Anadromous Fishes, available at: http://www.adfg.alaska.gov/sf/SARR/AWC/index.cfm?ADFG=main.overview

84 Hall, Jonathan V., W. E. Frayer and Bill O. Wilen, Status of Alaska Wetlands, 1994, available at 

http://www.fws.gov/wetlands/_documents/gSandT/StateRegionalReports/StatusAlaskaWetlands.pdf

85 Id.

86 Id.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

261

rest of the U.S. contains approximately 103 million acres of wetlands, comprising 

approximately four percent of the surface area.87 Sixty-three percent of the country’s 

wetlands are in Alaska. Using National Hydrography Dataset information from the 

Bureau of Land Management (March 2014) Alaska has 884,075 miles of streams and 

21,655 square miles of lakes. 

Despite Alaska’s wealth of water, its water resources are not uniformly distributed. 

According to the U.S. Army Corps of Engineers, “[w]etlands occupy 61 percent of 

Northern and Western Alaska, and “vast expanses of treeless tundra underlain by 

permafrost dominate the area.”

88

 These permafrost wetlands are a unique feature of the 

Alaskan landscape not found elsewhere in the United States. Interior Alaska is 44 

percent wetlands and includes, “millions of acres of black spruce muskeg and floodplain 

wetlands”

89

 Here again, the scrub/shrub vegetation and taiga forests of interior Alaska 

are uncommon features in the rest of the United States and many of these wetlands are 

underlain by permafrost (See Attachment 5). 

Adding to the uniqueness and complexity of Alaska’s situation is that the majority of the 

waters in the vast northern, interior, and western regions exist as a solid for the better part 

of each year. Only for the short summer season do they exhibit some of the traits and 

provide some of the functions normally attributed to waters and wetlands. Southeast 

Alaska, a temperate, mountainous rainforest region with a maritime climate and average 

annual precipitation of 100 to 200 inches, has countless isolated surface waters and 

wetlands, as does much of the rest of the state. 

There is a unique situation in northern latitudes, including Alaska, where continuous or 

discontinuous permafrost exists. This results from frozen ground water throughout all or 

the majority of the year. Permafrost can form a nearly impervious layer of soil which 

then creates seasonally saturated soil conditions above the frozen layer. Depending on 

topography, soil types, and other features permafrost tends to be associated with 

wetlands. Wetlands in areas with permafrost are very dynamic systems that are not 

completely understood. While they serve certain valuable habitat functions, these 

functions do not make them subject to federal CWA jurisdiction. Moreover, due to a 

very short growing season (that may be interrupted with frosts) and hydric soils that 

generally hover around a “biological zero” temperature, it can be difficult to demonstrate 

a significant nexus to downstream waters and wetlands within permafrost areas. There is 

often a significant temporal lag in hydrology (freeze/thaw cycle and lack of slope) that is 

more equivalent to groundwater flow and in most cases there is little evidence of a 

significant subsurface connection. 

Making permafrost even more difficult to understand is the fact that it is not distributed 

evenly within the State. There are areas of the State, mostly located in the northern areas, 

where permafrost is generally distributed continuously beneath the surface. There are 

also areas within the State where permafrost is discontinuous and sporadically distributed 

 

87 Id.

88 U.S. Army Corps of Engineers, Regional Supplement to the Corps of Engineers Wetland Delineation Manual: 

Alaska Region (Version 2.0), September 2007. (Doc. #19465, p. 21)

89 Id.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

262

within isolated pockets on the landscape. This sporadic distribution can be related to soil 

types, aspect, or other geographic indicators. (p. 20-22)

Agency Response: See Summary Response. The agencies are developing 

guidance specific to section 404 to facilitate effective, consistent, and efficient 

implementation of the final rule once it becomes effective. The agencies strive to 

achieve consistency across the country in all districts and regions in application of 

the rule for jurisdictional determinations. The agencies also recognize that there 

are variations that occur in geography, hydrology, climate, etc., which affect 

jurisdictional determinations. The initial phase of implementing the rule will 

require education and training for agency staff as well as other stakeholders and the 

regulated public. This training and outreach will be regionally-based to ensure 

appropriate consideration is given to ecoregional variation and to ensure consistent 

and efficient implementation of the rule. 

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

The agencies recognize that the state and local governments have well-defined and 

long-standing relationships in implementing affected CWA programs and these 

relationships will not be altered. This action will not have substantial direct effects 

on the states, on the relationship between the national government and the states, or 

on the distribution of power and responsibilities among the various levels of 

government. The agencies are not restricting the states’ efforts in developing or 

implementing statewide permits under CWA programs as a result of the rule.

12.371 Regional differences affect whether waters are jurisdictional. 

The Corps’ 1987 wetlands delineation manual (1987 Manual) was developed to provide 

criteria for identifying wetlands, and was viewed approvingly by Congress in subsequent 

legislation as a tool to assist the federal agencies in determining what may be

jurisdictional wetlands under the CWA. Due to regional differences in vegetation, soils, 

and hydrology, application of the 1987 Manual to all regions proved unworkable. This is 

particularly the case for Alaska, given that permafrost is not even discussed in the 

manual. To address these and other issues, the federal agencies have developed over the 

years regional supplements to the 1987 manual to provide a more regional approach to 

wetland delineations. 

These supplements, including the 2007 Regional Supplement for Alaska, are guidance. 

However, because they established criteria for determining whether a wetland is 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

263

jurisdictional under the CWA, they should have been adopted under formal APA 

rulemaking. EPA and the Corps must consider regionalized rulemaking for jurisdictional 

determinations and conducting significant nexus determinations, since the proposed rule 

does not account for regional differences, and application of the proposed rule could 

result in the assertion of jurisdiction when it does not lawfully exist for the majority of 

waters or wetlands in a particular climate region. (p. 22)

Agency Response: See Summary Response. The agencies are developing 

guidance to facilitate effective, consistent, and efficient implementation of the final 

rule once it becomes effective. The agencies strive to achieve consistency across the 

country in all districts and regions in application of the rule for jurisdictional 

determinations. The agencies also recognize that there are variations that occur in 

geography, hydrology, climate, etc., which affect jurisdictional determinations. The 

initial phase of implementing the rule will require education and training for agency 

staff as well as other stakeholders and the regulated public. This training and 

outreach will be regionally-based to ensure appropriate consideration is given to 

ecoregional variation and to ensure consistent and efficient implementation of the 

rule. 

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

The 1987 wetland delineation manual and the regional supplements provide 

guidance to field staff on how to delineate a Federal wetland (i.e. a wetland that the 

Federal definition of “wetland”). The 1987 manual and its regional supplements do 

not provide guidance on how to determine the Clean Water Act jurisdictional status 

of a wetland delineated using the 1987 manual and its appropriate regional 

supplement. To determine whether a wetland is jurisdictional, agency staff will use 

this final rule. 

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process consistent, predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

264

Alaska State Legislature (Doc. #2531)

12.372 We have a unique soil structure in Alaska called permafrost, currently defined as “ground 

which is soil or rock with ice or organic material that remains at or below 32°F for at 

least two consecutive years.” The proposed rule will treat permafrost as “water”, not as a 

soil element as it is currently defined. Permafrost is thickest in Arctic Alaska, north of 

the Brooks Range, but it is found to some extent beneath nearly 85% of Alaska soils 

(according to the Alaska Public Lands Information Center). To put 85% of Alaska’s land 

under the jurisdiction of EPA, through use of the CWA, would be devastating to the 

people of Alaska and unwarranted.

Agency Response: See Summary Response. See the Economic Analysis for 

further discussion on the predicted jurisdictional changes under the final rule. The 

agencies are developing guidance to facilitate effective, consistent, and efficient 

implementation of the final rule once it becomes effective. The agencies strive to 

achieve consistency across the country in all districts and regions in application of 

the rule for jurisdictional determinations. The agencies also recognize that there 

are variations that occur in geography, hydrology, climate, etc., which affect 

jurisdictional determinations. The initial phase of implementing the rule will 

require education and training for agency staff as well as other stakeholders and the 

regulated public. This training and outreach will be regionally-based to ensure 

appropriate consideration is given to ecoregional variation and to ensure consistent 

and efficient implementation of the rule. 

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

12.373 The permafrost question is only one of many questions related to the new proposed rule. 

But it has not been considered. The omission of this issue demonstrates the hastily 

constructed nature of this rule-making process and the unforeseen consequences resulting 

from the narrow perspectives of those writing the document. (p. 2)

Agency Response: See Summary Response. See the Technical Support Document 

for a summary of the scientific basis of the final rule. The public comment period 

was extended twice to ensure adequate time for the public to review and comment. 

Extensive public outreach was also conducted, including over 400 meetings 

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

companies, counties, municipalities, environmental organizations, other federal 

agencies and many others. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

265

The agencies recognize that there are appropriate levels of regional variation in 

implementation of the regulations; however, the agencies strive for national 

consistency. The Corps will develop the tools necessary to assist its staff with the 

jurisdictional determination process specific to section 404 during the 

implementation of the final rule to make the process consistent, predictable, 

efficient, and effective. The initial phase of implementing the rule will require 

education and training for agency staff as well as other stakeholders and the 

regulated public, which will include regionally-based training to ensure consistent 

and efficient implementation of the rule.

Mayor’s Office - Aleutians East Borough, Alaska (Doc. #7618)

12.374 The Borough represents several island communities spread across the Eastern Aleutian 

chain. These are some of the most remote and inaccessible parts of the United States, 

reachable by boat traveling significant distance from Mainland Alaska and by plane, 

although weather and air strip size limit plane access in most of our communities. Our 

total population, almost all entirely living in 6 communities, numbers only 3,100 – a

population density of less than one-half person per square mile. 

The proposed rule will only expand these burdens and make carrying out our public 

infrastructure work even more challenging. If we had many polluted waters, then 

expanded regulation of small, interconnected waterways and wetlands would make sense. 

But we have very few listed “impaired” waters as defined by the Clean Water Act. Our 

streams and rivers are healthy and support thriving salmon runs. Our drinking water is 

clean.

For these reasons, we ask that EPA include an exemption from the final rule for 

communities that meet a profile like ours. Such an exemption should apply to the 

smallest and most rural communities that do not have significant water pollution issues. 

Current rules would continue to apply and would be sufficient to properly protect area 

waters as they have been for years. (p. 1-2)

Agency Response: See Summary Response. See paragraph (b) of the final rule 

and the preamble section “Water and Features That Are Not Waters of the U.S.” 

for a discussion on the types of waters that are excluded under the final rule. The 

goal of the CWA is to protect the chemical, physical, and biological integrity of our 

nation’s waters. The agencies have been implementing this mission since the 

inception of the CWA. The additional costs that may be incurred as a result of the 

rule were taken into account during its formulation; however, the updated 

Economic Analysis indicates the benefits of the rule outweigh any associated costs 

placed on the regulated public and on the agencies themselves. The scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries. 

The rule only provides a definition for “waters of the U.S.” The rule does not affect 

the CWA statute in which authorization may be required for discharges of dredged 

and/or fill material into waters of the U.S., or other activities in jurisdictional waters 

of the U.S. which require authorization. In addition, the rule does not affect 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

266

activities that are currently exempt from CWA regulation. The rule also does not 

affect permitting tools such as the use of general permits that the Corps implements 

for expeditious review and efficiency in processing permit applications for 

discharges of dredged and/or fills material into waters of the U.S. The rule will 

improve consistency and predictability for all CWA programs and provides clarity 

regarding jurisdiction, thus reducing uncertainties and delays.

City of Phoenix, Arizona, Office of Environmental Programs (Doc. #7986)

12.375 While we are supportive of the concept of providing more clarity, it should not come at

the expense of loss of local discretion. Our arid desert environment is truly unique and

often not well understood by those from other regions of the United States. It is more

appropriate and serves the environment better to allow the jurisdictional decisions to be

made at the local level, by those most familiar with the on-the-ground nuances. (p. 2)

Agency Response: See Summary Response. Local Corps districts and EPA 

Regions familiar with local resources and site conditions will still be making specific 

jurisdictional determinations when requested by a landowner. There are 

appropriate levels of regional variation in implementation of the regulations; 

however, the agencies strive for national consistency. This appropriate regional 

variation can make it appear that there are inconsistencies in program execution. 

The rule aims to reduce any inappropriate inconsistencies and provide a bright line 

of clarity for the agencies, state partners, and the regulated public. The agencies 

believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process consistent, predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule.

Pennsylvania Department of Environmental Protection Water Management Office (Doc. #7985)

12.376 Pennsylvania asks EPA and ACOE to consider an approach that recognizes regional 

differences in geography, climate, geology, soils, hydrogeology and rainfall, and that 

supports strong and comprehensive state programs. (p. 1)

Agency Response: See Summary Response. There are appropriate levels of 

regional variation in implementation of the regulations; however, the agencies strive 

for national consistency. This appropriate regional variation can make it appear 

that there are inconsistencies in program execution. The rule aims to reduce any 

inappropriate inconsistencies and provide a bright line of clarity for the agencies, 

state partners, and the regulated public. The agencies believe the clarity and 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

267

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources. Tools exist that recognize this regional variation 

and provide assistance to field staff; for example, the ordinary high water mark 

regional manuals or the regional supplements to the wetland delineation manual, 

both of which are outside the scope of this rulemaking but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process consistent, predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule.

The rule does not diminish or in any way detract from the intent and purpose of 

CWA sections 101(b) and 101(g) regarding the states’ primary and exclusive 

authority over water allocation and water rights administration, as well as statefederal co-regulation of water quality. The agencies worked hard to ensure the rule 

reflects these fundamental principles.

Anne Arundel County, Maryland (Doc. #8574)

12.377 The proposed rule could potentially slow the recovery of the Chesapeake Bay and its 

tributaries, mandated by EPA, if it is not sufficiently permissive of restoration activities. 

The current definition of “Waters of the United States,” which was left in limbo after the 

2006 Rapanos v. United States case, is regularly being interpreted in a way that has

prolonged permitting timeframes and incurred significant additional cost to Anne 

Arundel County government and partner agencies working to restore the health of the 

Chesapeake Bay and its tributaries. (p. 2)

Agency Response: See Summary Response. The agencies believe the proposed 

rule will result in increased clarity and certainty regarding the identification of 

“waters of the U.S.” The agencies received many helpful comments on the proposed 

rule which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public. None of the existing procedures, permitting 

mechanisms, efficient permitting tools such as general permits, or activity 

exemptions under Section 404(f)(1) of the Clean Water Act, will be modified as a 

result of this rulemaking; therefore, existing procedures will not be further 

complicated by this rule. Furthermore, the final rule will not directly alter the 

content or implementation of other local, state, or federal mandates, including 

permitting actions, as the final rule applies solely to the Clean Water Act definition 

of waters of the U.S.

Hampton Roads Planning District Commission (Doc. #9612)

12.378 The localities represented by the HRPDC face many challenges improving and 

maintaining public infrastructure due in part to their geographic position within the lower 

coastal plain of Virginia. Much of the Region is underlain by hydric soils and 

experiences seasonally high groundwater fluctuations. The HRPDC is concerned that 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

268

additional Federal or state regulatory oversight proposed by this Rule will further 

constrict localities’ ability to develop and maintain infrastructure. (p. 1)

Agency Response: See Summary Response. The scope of regulatory jurisdiction 

in this rule is narrower than that under the existing regulation. Fewer waters will 

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

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

categories such as tributaries. The rule is not designed to subject entities of any size 

to any specific regulatory burden. Rather, it is designed to clarify the statutory 

scope of the “waters of the U.S.”, consistent with science, the existing regulations, 

and Supreme Court precedent. In addition, see the exemptions for certain 

maintenance activities under section 404(f)(1) of the Clean Water Act and the Corps 

nationwide permits for descriptions of specific activities which may be exempt from 

CWA regulation or which may have an efficient permitting mechanism in place to 

facilitate appropriate infrastructure development.

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

12.379 Implementation of this proposed rule would show a marginal environmental benefit. The 

potential cost to comply with this proposed rule at a local, state, and federal level will 

probably far exceed the environmental benefit, especially in areas that are arid and semiarid, such as Colorado. Water quality, aquatic habitat, and vegetation are much different 

in areas that have perennial versus intermittent flow. This rule should focus on areas 

where there is a known environmental or ecological benefit and a pilot study should be 

conducted in each unique ecological region so that the EPA and stakeholders can 

determine the rules appropriate for each area and potential impacts. It is essential that 

this proposed rule demonstrate how the downstream waters will be adversely impacted. 

(p. 1-2)

Agency Response: See Summary Response. The Technical Support Document 

provides a summary of the scientific basis for the final rule and the Economic 

Analysis includes discussion on costs/benefits of the final rule. The goal of the 

CWA is to protect the chemical, physical, and biological integrity of our nation’s 

waters. The agencies have been implementing this mission since the inception of 

the CWA. The additional costs that may be incurred as a result of the rule were 

taken into account during its formulation; however, the updated Economic Analysis 

indicates the benefits of the rule outweigh any associated costs placed on the 

regulated public and on the agencies themselves. The scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

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

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

existing categories such as tributaries.

Custer County Commission (Doc. #10186)

12.380 Custer County has over 800 miles of non-paved roads. These roads all have ditches to 

drain the runoff from rain and snow thaw, into creeks that eventually carry the run off 

into reservoirs or rivers if it hasn’t evaporated or soaked into the ground before it reaches 

its destination. As issues come up with the county roads from nature and blading, the 

ditches are the logical place to get the needed dirt to repair the roads. If a permit is 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

269

needed for this purpose, it could cause delays and hardships for traffic and road crews. (p. 

1)

Agency Response: See Summary Response. The comment is outside the scope of 

this rulemaking effort as it does not pertain to CWA jurisdiction. The rule only 

provides a definition for “waters of the U.S.” The rule does not affect the CWA 

statute in which authorization may be required for discharges of dredged and/or fill 

material into waters of the U.S., or other activities in jurisdictional waters of the 

U.S. which require authorization. The final rule has been crafted to reduce existing 

confusion and inconsistency regarding the regulation of ditches. In addition, the 

rule does not affect activities that are currently exempt from CWA regulation. The 

rule also does not affect permitting tools such as the use of general permits that the 

Corps implements for expeditious review and efficiency in processing permit 

applications for discharges of dredged and/or fills material into waters of the U.S. 

The rule will improve consistency and predictability for all CWA programs and 

provides clarity regarding jurisdiction, thus reducing uncertainties and delays.

Clark County (Nevada) Regional Flood Control District (Doc. #11726)

12.381 The proposed rules states: “A review of the scientific literature, including the Report of 

the peer-reviewed science, shows that tributaries and adjacent waters play an important 

role in maintaining the chemical, physical and biological integrity of ...waters... because 

of their hydrological and ecological connections to ... those waters.” However, the postmeeting comments of the peer-review meetings says quite clearly that little is known of 

these hydrologic connections in the desert southwest. Those comments also indicate that 

the example used for Southwestern streams is not representative of streams in that region, 

most of which are ephemeral. (p. 2)

Agency Response: See Summary Response. There are appropriate levels of 

regional variation in implementation of the regulations; however, the agencies strive 

for national consistency. This appropriate regional variation can make it appear 

that there are inconsistencies in program execution. The rule aims to reduce any 

inappropriate inconsistencies and provide a bright line of clarity for the agencies, 

state partners, and the regulated public. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources. Tools exist that recognize this regional variation 

and provide assistance to field staff; for example, the ordinary high water mark 

regional manuals or the regional supplements to the wetland delineation manual, 

both of which are outside the scope of this rulemaking but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process consistent, predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

270

12.382 We believe it is appropriate for regulatory guidance and the currently proposed rule to 

recognize and allow for the substantial differences that exist across the nation in terms of 

geology, topography and meteorology. (p. 3-4)

Agency Response: See Summary Response. There are appropriate levels of 

regional variation in implementation of the regulations; however, the agencies strive 

for national consistency. This appropriate regional variation can make it appear 

that there are inconsistencies in program execution. The rule aims to reduce any 

inappropriate inconsistencies and provide a bright line of clarity for the agencies, 

state partners, and the regulated public. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources. Tools exist that recognize this regional variation 

and provide assistance to field staff; for example, the ordinary high water mark 

regional manuals or the regional supplements to the wetland delineation manual, 

both of which are outside the scope of this rulemaking but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process consistent, predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule.

Weld County (Doc. #12343)

12.383 The agencies argue that the proposed rule will allow for infrastructure projects to be more 

easily and efficiently regulated throughout the nation. However, the geographic, 

climactic, and land use conditions of the Western United States are inherently different 

than other parts of the country. It is therefore difficult and dangerous to develop a “onesize-fit-all” rule to regulate water. Such a rule will likely lead to significant increase in 

time and cost for county governments. (p. 1)

Agency Response: See Summary Response. There are appropriate levels of 

regional variation in implementation of the regulations; however, the agencies strive 

for national consistency. This appropriate regional variation can make it appear 

that there are inconsistencies in program execution. The rule aims to reduce any 

inappropriate inconsistencies and provide a bright line of clarity for the agencies, 

state partners, and the regulated public. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources. Tools exist that recognize this regional variation 

and provide assistance to field staff; for example, the ordinary high water mark 

regional manuals or the regional supplements to the wetland delineation manual, 

both of which are outside the scope of this rulemaking but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process consistent, predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

271

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule.

12.384 Some of the borrow pits look more like a ditch, some of them are simply a flat area which 

is the same elevation as an adjacent field, but lower than the raised road. When the 

borrow pits fill with water, they often appear to have a bed, banks, and a high water 

mark. During irrigating season, and during significant precipitation events, some of the 

borrow pits fill with sufficient water that a flow is established. However, this flow occurs 

during less than half of the year. Because of the unique nature of water and irrigation in 

the Western United States, it is important to parse through the new definitions provided 

by the agencies. Words like “tributary” “ordinary high water mark” “perennial flow” and 

“upland” may mean something completely different on the arid plains of Colorado than 

in the swamps of Florida. The agencies movement for clarification of the legal reach of 

the Clean Water Act needs to take into account the varying features of our national 

geography. (p. 4)

Agency Response: See Summary Response. See paragraph (b) of the final rule 

and the preamble section on “Waters and Features That Are Not Waters of the 

U.S.” for further discussion on excluded waters such as water-filled depressions 

created in dry land incidental to mining or construction activity. The preamble 

section on “Tributaries” provides additional clarification on the terms “tributary” 

and “ordinary high water mark.” 

The agencies believe the rule will result in increased clarity and certainty regarding

the identification of “waters of the U.S.” The agencies received many helpful 

comments on the proposed rule which resulted in refinement of the final rule to 

provide further clarity and certainty to the regulated public.

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

12.385 The decisions in Rapanos and Solid Waste both involve the need to remove water in 

order to make use of land. In Colorado, as in much of the West, the need is not so much 

to remove water or to dredge and fill, but to capture water and put it to beneficial use. 

The goal of much of water management in the West is to disrupt drainage patterns and to 

harness water so it may be transported not into other waters, but out of other waters and 

onto dry land for agriculture. This fundamentally different attitude towards water 

reemphasizes the importance of keeping decisions regarding intermittent water local. In 

the West, where water is bought and sold daily as a commodity, and a commodity 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

272

necessary to the livelihood of the region, a “one size fits all” type of rule will cause 

significant harm (p. 6)

Agency Response: See Summary Response. See paragraph (b) of the final rule 

and the preamble section on “Waters and Features That Are Not Waters of the 

U.S.” for further discussion on excluded waters such as wastewater recycling 

structures created in dry land. 

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process consistent, predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule.

12.386 The proposed rule provides several new definitions and descriptions. It is unclear how 

these definitions would apply to the unique aspects of the western landscape. (p. 6)

Agency Response: See Summary Response. The agencies believe the final rule 

will result in increased clarity and certainty regarding the identification of “waters 

of the U.S.” The agencies received many helpful comments on the proposed rule 

which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public. 

The final rule was developed to increase CWA program predictability and 

consistency by increasing clarity as to the scope of “waters of the United States” 

protected under the Act. Definitions of certain terms are provided for the first time 

(e.g. tributary), or are further clarified (e.g. adjacent). The final rule provides for 

certain categories of waters that are jurisdictional by rule, which will result in a 

more efficient process. See the updated Economic Analysis for additional 

discussion. 

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

273

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process consistent, predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule.

12.387 Another of the terms that requires better definition is “ordinary high water mark 

(OHWM).” The proposed rule relies heavily on the ability to determine whether a 

waterway has a bed, bank, and ordinary high water mark. The EPA notes that indicators 

of an OHWM may vary from region to region across the country. Fed. Reg. Vol. 79 No. 

76 at 22202. This is especially true in the Western United states where the climactic 

conditions are so variable. The agencies acknowledge as much: 

In many intermittent and ephemeral tributaries, including dry land systems in the arid 

and semi-arid west, OHWM can be discontinuous within an individual tributary due to 

the variability in hydrologic and climactic influences. Id. 

This variability in water flow again makes it difficult to use Eastern definitions to impose 

rules on a Western landscape. The term ordinary high water mark assumes a level of 

regularity in flow that is often not present in the ditches and roadside borrow pits of the 

West. 

The agencies clarify that even waterways that possess a bed, bank, and ordinary high 

water mark may not qualify as a “Water of the U.S.”

Under [the new] exclusion, water that only stands or pools in a ditch is not 

considered perennial flow, and therefore, any such upland ditch would not be subject 

to regulation. Fed. Reg. Vol. 79 No. 76 at 22203. 

However, this does not clarify how long the water may stand or pool before it becomes 

regulated. This exclusion also does not clarify whether water which stands and pools in 

places and flows in others would be regulated. As a part of the irrigation necessary to 

farm in Colorado, water often pools when fields are being irrigated. The roads that are 

maintained by the county and laid out in a grid pattern provide barriers where this water 

collects. Pursuant to the definition above regarding standing or pooling water, the 

County’s borrow pits should be exempt. (p. 8-9)

Agency Response: See Summary Response. See paragraph (b) of the final rule 

and the preamble section on “Waters and Features That Are Not Waters of the 

U.S.” for further discussion on excluded waters such as water-filled depressions 

created in dry land incidental to mining or construction activity, wastewater 

recycling structures, and certain ditches. The ordinary high water mark manuals 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

274

developed by the Corps provide appropriate indicators to consider when delineating 

the ordinary high water mark in the field. Examples of OHWM indicators may 

include breaks in the slope, changes in vegetation, and changes in the sediment 

texture and substrate. The OHWM manual for the Arid West acknowledges the 

challenges in identifying the ordinary high water mark in the region; however, it 

provides the applicable indicators in the region to use when delineating the lateral 

extent of the OHWM in the Arid West. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources.

Although outside the scope of the rule, the agencies continue to work to ensure 

accurate ordinary high water mark and bed and bank identification across the 

nation and particularly in the Arid West, including the manual for identifying the 

ordinary high water mark in the Arid West. 

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process consistent, predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule.

12.388 By attempting to use these terms interchangeably in a Western setting and an Eastern 

setting, the agencies are discounting geographic and climactic differences. Until the 

terms “tributary,” “ordinary high water mark,” “upland,” and “perennial flow” can be 

defined more clearly in reference to the different regions of the country, the rule will 

simply serve to increase confusion and costs for local governments. (p. 9)

Agency Response: See Summary Response. The agencies believe the rule will 

result in increased clarity and certainty regarding the identification of “waters of 

the U.S.” The agencies received many helpful comments on the proposed rule which 

resulted in refinement of the final rule to provide further clarity and certainty to the 

regulated public. 

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

275

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process consistent, predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule. 

12.389 The proposed rule change seeks to apply the Clean Water Act in a uniform and consistent 

manner throughout the country. However, the hydrology of the nation is not uniform and 

consistent. Weld County and the Western Unites States have a unique relationship with 

water that differs from more rain abundant locations. The need to irrigate dry land in 

order to make it productive involves significant infrastructure projects. The vagueness of 

the definitions provided creates the possibility of a significant increase in the need for 

federal approval of local infrastructure projects. (p.20)

Agency Response: See Summary Response. See paragraph (b) of the final rule 

and the preamble section on “Waters and Features That Are Not Waters of the 

U.S.” for further discussion on excluded waters such as wastewater recycling 

structures and certain ditches. 

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process consistent, predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

276

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule. 

None of the existing procedures, permitting mechanisms, efficient permitting tools 

such as general permits, or activity exemptions under section 404(f)(1) 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. Furthermore, the rule is 

not designed to subject entities of any size to any specific regulatory burden. 

Rather, it is designed to clarify the statutory scope of the “waters of the U.S.”, 

consistent with existing regulations, science, and Supreme Court precedent. The 

rule will improve efficiency and provide needed clarity regarding jurisdictional 

determinations, reducing uncertainties and delays. 

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

12.390 Under the Proposed Rule, any wetland or other water could be determined to be WOUS if 

it is found to significantly affect the chemical, physical or biological integrity of a TNW. 

This provision has the potential to bring a substantial number of wetland and open water 

features into the scope of Waters of the U.S., and is relevant in Colorado where there may 

be a biological or chemical nexus – even if semi-arid hydrologic conditions, as common 

in our area, result in infrequent surface or subsurface hydrologic connectivity. 

Mesa County requests that the requirement of determining a “significant nexus” be 

required in the Proposed Rule for non-tributary waters and wetlands. (p. 3)

Agency Response: See Summary Response. See the Technical Support Document 

for a summary of the scientific basis for the final rule. The agencies have 

determined that all tributaries, regardless of flow regime, have a significant nexus to 

the downstream (a)(1) to (a)(3) waters. Adjacent wetlands are also jurisdictional by 

rule. See the preamble section on “Case-Specific Waters of the U.S.” for discussion 

on the (a)(7) and (a)(8) waters which require a case-specific significant nexus 

determination.

12.391 In the semi-arid western region of the U.S. including Mesa County, there are rural land 

examples of prior converted cropland and ditches that are excavated wholly in uplands, 

drain only in uplands, and have less than perennial flow. The proposed rule exempts a 

certain type of uplands ditch. There is little consensus on how this language would (or 

would not) impact roadside ditches. The EPA and the USACE need to determine and 

document whether these types of ditches will be considered in parts or in whole under the 

new rule, as well as whether other ditches, not strictly in uplands, would be regulated, 

including those ditches adjacent to a WOUS. (p. 4)

Agency Response: See Summary Response. See paragraph (b) of the final rule 

and the preamble section on “Waters and Features That Are Not Waters of the 

U.S.” for further discussion on excluded waters such as certain ditches. The final 

rule has been crafted to reduce existing confusion and inconsistency regarding the 

regulation of ditches. 

It is important to note that unless a water body is explicitly identified in paragraph 

(a) as being jurisdictional by rule [(a)(1)-(6) waters] or subject to a case-specific 

significant nexus determination to ascertain its jurisdictional status [(a)(7) and (a)(8) 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

277

waters], a water body or landscape feature is excluded from jurisdiction under the 

CWA even if it is not explicitly listed in paragraph (b).

The final rule provides increased clarity and certainty regarding the identification 

of “waters of the U.S.” The agencies received many helpful comments on the 

proposed rule which resulted in refinement of the final rule to provide further 

clarity and certainty to the regulated public. 

Pocahontas County, Iowa (Doc. #13666)

12.392 Our county is in one of the 25 Level III Ecoregions wherein the USEPA has proposed to 

categorically claim all waters to have a significant nexus. Our county is also in the 

prairie pothole region wherein the USEPA has also proposed to categorically claim all 

waters to have a significant nexus. We object to both proposed categorical claims of 

jurisdiction. Choosing either will place huge economic burdens upon the owners of 

agricultural land in Pocahontas County. More-over you will be implementing the 

beginning of a starving nation with the loss of crop production! (p. 2)

Agency Response: See Summary Response. See the Technical Support Document 

for a summary of the scientific basis for the final rule. See the preamble section 

“Case-Specific Waters of the U.S.” for discussion on the (a)(7) and (a)(8) waters 

which require a case-specific significant nexus determination . 

The final rule provides increased clarity and certainty regarding the identification 

of “waters of the U.S.” The agencies received many helpful comments on the 

proposed rule which resulted in refinement of the final rule to provide further 

clarity and certainty to the regulated public. That refinement resulted in the 

determination that certain types of isolated waters in specific regions were 

“similarly situated” by rule and that a case-specific significant nexus evaluation is 

required to determine jurisdictional status.

Pinellas County Board of County Commissioners (Doc. #14426)

12.393 Across the United States there are significant differences in physical and environmental 

conditions that will make jurisdictional determinations problematic. For example, the 

proposed rule exempts ditches that only drain uplands and have less than perennial flow. 

In coastal areas like Florida, these types of ditches contain water year around due to high 

groundwater tables. Based on the proposed rule roadside ditches will be jurisdictional 

and per discussions with EPA “subject to all Clean Water Act requirements.” During the 

development of Numeric Nutrient Criteria in the state of Florida it was recognized that a 

one size fits all rule for water quality criteria was not appropriate. Obviously, if there are 

regional differences within one state that required regionalization of water quality 

standards for various water body types, it must be recognized that there is tremendous 

diversity across the Country when evaluating natural systems. We recommend that 

region-specific guidelines be developed with local stakeholders and used for 

determinations. (p. 2)

Agency Response: See Summary Response. See paragraph (b) of the final rule 

and the preamble section on “Waters and Features That Are Not Waters of the 

U.S.” for further discussion on excluded waters such as certain ditches. The final 

rule has been crafted to reduce existing confusion and inconsistency regarding the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

278

regulation of ditches. There are appropriate levels of regional variation in 

implementation of the regulations; however, the agencies strive for national 

consistency. This appropriate regional variation can make it appear that there are 

inconsistencies in program execution. The rule aims to reduce any inappropriate 

inconsistencies and provide a bright line of clarity for the agencies, state partners, 

and the regulated public. The agencies believe the clarity and certainty provided in 

the rule will result in further consistency, while still allowing for regional variation 

in implementation that may be necessary based on regional differences in aquatic 

resources. Tools exist that recognize this regional variation and provide assistance 

to field staff; for example, the ordinary high water mark regional manuals or the 

regional supplements to the wetland delineation manual, both of which are outside 

the scope of this rulemaking but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process consistent, predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule.

Waters of the United States Coalition (Doc. #14589)

12.394 If the Proposed Rule is adopted without appropriate exclusions, the Proposed Rule will 

have a profound negative impact on the existing operations of the Nation’s water supply, 

flood control, transportation and waste treatment infrastructure. For one, throughout the 

arid west, water is moved vast distances from one traditional water of the United States to 

another to provide drinking water for cities and irrigation water for farmers. A strict 

reading of the Proposed Rule could make aqueducts and irrigation canals waters of the 

United States. Along with that designation comes the requirement to attain Water Quality 

Standards, and to obtain Clean Water Act section 404 permits.

Of even greater concern is the possibility that the EPA or a state regulatory agency would 

adopt a total maximum daily load (“TMDL”) for an aqueduct, percolation pond or other 

water supply conduit on the premise that the conveyance is a water of the United States 

that is failing to meet applicable Water Quality Standards. A TMDL could in turn result 

in limitations on discharges into (and therefore use of) the aqueduct. This is not an 

unlikely scenario. In 2010 the California Regional Water Quality Control Board for the 

Central Valley Basin adopted a methylmercury TMDL that imposed requirements on the 

California Department of Water Resources (“DWR”). The basis for regulation was the 

Regional Board’s position that the DWR and affiliated agencies discharged 

methylmercury through the Sacramento-San Joaquin River Delta Estuary as part of their 

ongoing operations moving water into Southern California. 

If the aqueducts that DWR and other water purveyors rely on get reclassified as waters of 

the United States, it will only be a matter of time before similar actions are taken to 

control water quality within the aqueducts. Any limitations imposed would further 

constrain water availability in Southern California and limit the ability of local water 

districts and cities to provide supplies to their residents. Similarly, if flood control 

channels are considered waters of the United States, MS4 operators will have significant 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

279

difficulty maintaining their storm drain systems. Removing vegetation and sediment 

built up in the system would require a 404 permit as well as consultations with wildlife 

agencies. Even if no endangered species are found, the added cost and time constraints 

will unnecessarily hinder existing municipal operations. Inability to conduct timely 

maintenance could contribute to loss of life and property if storm channels are not 

maintained and flooding occurs. (p. 15-16)

Agency Response: The agencies have included an exclusion that applies to water 

distributary systems. The agencies have not considered these water distributary 

systems jurisdictional where they do not have surface connections back into, and 

contribute flow to, “waters of the United States.” In contrast, the agencies have 

consistently regulated aqueducts and canals as “waters of the United States” where 

they serve as tributaries, removing water from one part of the tributary network 

and moving it to another. The agencies have not in practice asserted jurisdiction 

over these types of features when created in dry land. These features often connect 

or carry flow to other water recycling structures, for example a channel or canal 

that carries water to a percolation pond. The exclusion in paragraph (b)(7) codifies 

long-standing agency practice and encourages water management practices that the 

Agencies agree are important and beneficial.

Pima Natural Resource Conservation District (Doc. #14720)

12.395 The District has no navigable streams nor any nexus to navigable streams. The 

requirement to obtain a 404 permit for standard work in a dry desert grassland appears to 

be totally irrational to our District Cooperators. It is a grotesque expansion of regulatory 

jurisdiction and bureaucracy beyond rational comprehension when there are no navigable 

streams in Pima County, Arizona and therefore none in the District which is 

geographically entirely within the boundaries of the County. (p. 1)

Agency Response: See Summary Response. The scope of regulatory jurisdiction 

in this rule is narrower than that under the existing regulation. Fewer waters will 

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

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

categories such as tributaries. The rule is not designed to subject entities of any size 

to any specific regulatory burden. Rather, it is designed to clarify the statutory 

scope of the “waters of the U.S.”, consistent with science, the existing regulations, 

and Supreme Court precedent. 

The agencies believe the final rule will result in increased clarity and certainty 

regarding the identification of “waters of the U.S.” The agencies received many 

helpful comments on the proposed rule which resulted in refinement of the final rule 

to provide further clarity and certainty to the regulated public. None of the existing 

procedures, permitting mechanisms, efficient permitting tools such as general 

permits, or activity exemptions will be modified as a result of this rulemaking; 

therefore, existing procedures should not be further complicated by this rule.

The rule requires specific characteristics to be present in order to determine a water 

to be a tributary or an adjacent water. The lack of a “navigable stream” in a county 

would not preclude waters in that county from being determined to be jurisdictional 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

280

under the CWA if the waters meet any of the (a)(1)-(a)(8) categories and are not 

excluded under paragraph (b) of the final rule.

Maryland Association of Soil Conservation Districts (Doc. #14932)

12.396 The situation here in Maryland is unique because of our proximity to the Chesapeake Bay 

and the TMDL with WIP requirements to install conservation practices. The potential for 

on farm ditches, ponds, and wetlands to be jurisdictional and require 402 or 404 Clean 

Water Act permits may significantly stifle voluntary conservation on farms. Also, failure 

to obtain a permit due to uncertainty as to whether it is required leaves farmers vulnerable 

to citizen suit, which we are unfortunately all too familiar with here in Maryland. 

Additional red tape and fear of Clean Water Act enforcement will not only leave us 

unable to continue to meet and surpass our TMDL goals for agriculture in Maryland, but 

also ultimately not attain the goal of clean water since most of the practices are installed 

for water quality benefit. (p. 2)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries and adjacent waters, and includes provisions for a number of excluded 

waters, some of which are excluded by rule for the first time. For example, under 

the final rule many ephemeral and intermittent ditches, and waters constructed in 

dry land, such as stormwater conveyance features, waste treatment systems, 

including treatment ponds and lagoons designed to meet the requirements of the 

CWA, wastewater recycling structures and basins, and artificial lakes and ponds, 

including settling basins and cooling ponds, are all excluded from waters of the U.S. 

See summary responses for 6.2: Excluded ditches and Topic 7: Features and waters 

not jurisdictional, for further discussion of excluded waters. Also see summary 

response 12.3. The final rule definitional rule neither changes nor imposes new 

requirements for NPDES implementation or TMDL implementation. See section 7.2 

for responses to comments on non-jurisdictional features such as artificial ponds

and stock ponds. See also section 6 for responses to comments on the jurisdictional 

nature of ditches.

City of Cape Coral (Doc. #14976)

12.397 The City of Cape Coral is located in Southwest Florida. It is surrounded by the 

Caloosahatchee River to the east and Matlacha Pass to the west. Like many communities 

in the state, the City has little relief. Cape Coral was constructed throughout the 1960’s 

and 1970’s via dredge and fill activities. The City contains 400 miles of canals within 

our 110 square mile area. Approximately 100 miles of these canals around the perimeter 

are currently designated as WOTUS. The other 300 are upstream within the interior of 

the City. (Attached figure)[not included herein] The water from these interior canals 

flows into the downstream waters via elevation differences at concrete structures (weirs). 

Should this rule go into effect, these freshwater canals would be considered to have a 

significant nexus, and over 300 miles of freshwater canals used for treating stormwater 

would be considered federal waters. The City would no longer have any area for 

treatment of stormwater runoff, and what is now considered our municipal separate storm 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

281

sewer system would be required to meet applicable water quality standards. This change 

would also impact Cape Coral’s Basin Management Action Plan (BMAP), as we have 

been given credit for retention within these canals by the Florida Department of 

Environmental Protection. 

Should this rule go into effect, all routine dredging and canal maintenance within these 

freshwater canals would be subject to USACE 404 regulations requiring the need for 

federal permitting in these waters. In summary, enacting this rule would leave the City 

with no area for treatment of stormwater, an increased need for projects to meet our 

BMAP, and greatly increased permitting issues. It will place an enormous burden on our 

taxpayers to meet the new criteria. (p. 1-2)

Agency Response: See Summary Response. Paragraph (b) of the final rule and 

the preamble section on “Waters and Features That Are Not Waters of the U.S.” 

provide discussion on excluded waters such as stormwater control features and 

certain ditches. The final rule has been crafted to reduce existing confusion and 

inconsistency regarding the regulation of ditches. The agencies believe the rule will 

result in increased clarity and certainty regarding the identification of “waters of 

the U.S.” Many helpful comments on the proposed rule were received which 

resulted in refinement of the final rule to provide further clarity and certainty to the 

regulated public, including the expanded exclusions related to stormwater 

management. 

Klamath Drainage District (Doc. #15139)

12.398 [T]he proposed Rule fails to take into account the significant differences that exist in the 

West from conditions that exist in the East, and the impracticality of imposing a one-sizefits-all approach to divergent climates, watershed characteristics, precipitation levels, and 

the shear economic impact of subjecting virtually all activities in any water source to 

regulation. Indeed if all water is deemed jurisdictional, litigation over the application of 

the rule may be diminished, which is one of the agencies stated goals, but the cost of 

subjecting many currently unregulated activities to regulation with the attendant delay is 

unwarranted. A further concern is whether in this current economic and political climate 

whether the Agencies can even administer a greatly expanded program without 

significant additional funding from a Congress that seems reluctant to fund the 

government and is openly hostile to increased regulation. (p. 4)

Agency Response: See Summary Response. There are appropriate levels of 

regional variation in implementation of the regulations; however, the agencies strive 

for national consistency. This appropriate regional variation can make it appear 

that there are inconsistencies in program execution. The rule aims to reduce any 

inappropriate inconsistencies and provide a bright line of clarity for the agencies, 

state partners, and the regulated public. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources. Tools exist that recognize this regional variation 

and provide assistance to field staff; for example, the ordinary high water mark 

regional manuals or the regional supplements to the wetland delineation manual, 

both of which are outside the scope of this rulemaking but are related resources.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

282

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process consistent, predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule. 

None of the existing procedures, permitting mechanisms, efficient permitting tools 

such as general permits, or activity exemptions under section 404(f)(1) 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.

The scope of regulatory jurisdiction in this rule is narrower than that under the 

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

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

important qualifiers on some existing categories such as tributaries. In developing 

the rule, the agencies considered all relevant implications that will result from the 

rule implementation including legal, economic, and implementation considerations, 

as well as the resulting effect on the regulated public. The Economic Analysis 

completed to support the rule contains details in this regard.

San Bernadino County, California (Doc. #16489)

12.399 (...) the DPW questions the scope of the scientific data presented in an EPA study, which 

is relied upon to make many broad conclusions in the proposed Rule.90 Specifically, the 

DPW is concerned that the EPA Study used in the assessment does not adequately 

address the hydrogeomorphic conditions present in the “arid Southwest”, and arguably 

makes generalized conclusions based on a few case studies.91 (p. 17)

Agency Response: See Summary Response. The Technical Support Document 

provides additional information regarding the scientific support for the conclusions 

reached in the final rule. 

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.The Corps will develop the tools necessary to assist its staff 

 

90 U.S. Environmental Protection Agency, Connectivity of Streams and Wetlands to Downstream Waters: A Review 

and Synthesis of the Scientific Evidence, Office of Research and Development, Washington DC., EPA/6001R111098B September 2013.

91 Id. Pages 4-57 to 4-70.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

283

with the jurisdictional determination process specific to section 404 during the 

implementation of the final rule to make the process consistent, predictable, 

efficient, and effective. The initial phase of implementing the rule will require 

education and training for agency staff as well as other stakeholders and the 

regulated public, which will include regionally-based training to ensure consistent 

and efficient implementation of the rule.

12.400 As the managing flood control agency for the largest county in the Country, and based in 

the arid Southwest, the DPW must stress that the hydro-geomorphology of the arid 

Southwest is shaped by infrequent but intense storm events, as well as multiple smaller 

events. In an arid environment, infrequent intense storm events may leave residual 

indicators of an OHWM that may be present for decades even though indicators of 

“active flow” (presence/absence of vegetation, aggregate sorting, etc.) are lacking.92 

Because many of these historic or remnant features with a discernable OHWM lack 

“relatively permanent” flow, they would not be deemed jurisdictional under current 

assessment criteria even though they may have surface connectivity to downstream 

navigable waters. In addition, the smaller storm events, have a minimal impact and leave 

negligible, temporary or indiscernible indicators of an OHWM. 

Similarly, in some watersheds, particularly those with urban development or 

transportation networks, flow from the upper reaches of the watershed have been 

historically diverted for flood control purposes. These diversions, basins and 

impoundments were constructed prior to the 1972 CWA amendments, and have 

permanently altered the hydrology in some watershed, resulting in remnant tributary 

networks with little or no active flow, yet still exhibiting a discernible OHWM with 

surface connectively to downstream jurisdictional resources. It should also be noted that 

creation of inactive, “remnant” or “historic” tributaries often result from natural changes 

within portions of a watershed. Such features may include remnant alluvial fan systems 

or any such historic feature(s) where flow has been altered. (p. 17-18)

Agency Response: See Summary Response. There are appropriate levels of 

regional variation in implementation of the regulations; however, the agencies strive 

for national consistency. This appropriate regional variation can make it appear 

that there are inconsistencies in program execution. The rule aims to reduce any 

inappropriate inconsistencies and provide a bright line of clarity for the agencies, 

state partners, and the regulated public. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources. Tools exist that recognize this regional variation 

and provide assistance to field staff; for example, the ordinary high water mark 

regional manuals or the regional supplements to the wetland delineation manual, 

both of which are outside the scope of this rulemaking but are related resources.

The ordinary high water mark manuals developed by the Corps provide 

appropriate indicators to consider when delineating the ordinary high water mark 

 

92 US Army Corps of Engineers, A Field Guide to the Identification of the Ordinary High Water Mark (OHWM) in 

the Arid West Region of the United States, Robert W. Lichvar and Shawn M. McColley, August 2008. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

284

in the field. Examples of OHWM indicators may include breaks in the slope, 

changes in vegetation, and changes in the sediment texture and substrate. The 

OHWM manual for the Arid West acknowledges the challenges in identifying the 

ordinary high water mark in the region; however, it provides the applicable 

indicators in the region to use when delineating the lateral extent of the OHWM in 

the Arid West. The agencies believe the clarity and certainty provided in the rule 

will result in further consistency, while still allowing for regional variation in 

implementation that may be necessary based on regional differences in aquatic 

resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process consistent, predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule. 

Central Utah Water Conservancy District (Doc. #17024)

12.401 (...) the propose rule fails to take into account the significant differences that exist in the 

West from conditions that exist in the East, and the impracticality of imposing a one-sizefits-all approach to divergent climates, water shed characteristics, precipitation levels, 

and the shear economic impact of subjecting virtually all activities in any water source to 

regulation. Indeed if all water is deemed jurisdictional, litigation over the application of 

the rule may be diminished, which is one of the agencies stated goals, but the cost of 

subjecting many currently unregulated activities to regulation with the attendant delay is 

unwarranted. A further concern is whether in this current economic and political climate 

whether the Agencies can even administer a greatly expanded program without 

significant additional funding from a Congress that seems reluctant to fund the 

government and is openly hostile to increased regulation. (p. 3)

Agency Response: See Summary Response. See the Economic Analysis for 

additional information on predicted changes in jurisdiction and costs/benefits for 

the final rule. The scope of regulatory jurisdiction in this rule is narrower than that 

under the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. There are 

appropriate levels of regional variation in implementation of the regulations; 

however, the agencies strive for national consistency. This appropriate regional 

variation can make it appear that there are inconsistencies in program execution. 

The rule aims to reduce any inappropriate inconsistencies and provide a bright line 

of clarity for the agencies, state partners, and the regulated public. The agencies 

believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

285

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process consistent, predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule.

Clyde Snow Attorneys at Law (Doc. #15139)

12.402 (...) the proposed Rule fails to take into account the significant differences that exist in 

the West from conditions that exist in the East, and the impracticality of imposing a onesize-fits-all approach to divergent climates, watershed characteristics, precipitation levels, 

and the shear economic impact of subjecting virtually all activities in any water source to 

regulation. Indeed if all water is deemed jurisdictional, litigation over the application of 

the rule may be diminished, which is one of the agencies stated goals, but the cost of 

subjecting many currently unregulated activities to regulation with the attendant delay is 

unwarranted. A further concern is whether in this current economic and political climate 

whether the Agencies can even administer a greatly expanded program without 

significant additional funding from a Congress that seems reluctant to fund the 

government and is openly hostile to increased regulation. (p. 4)

Agency Response: See Summary Response. See the Economic Analysis for 

additional information on predicted changes in jurisdiction and costs/benefits for 

the final rule. There are appropriate levels of regional variation in implementation 

of the regulations; however, the agencies strive for national consistency. This 

appropriate regional variation can make it appear that there are inconsistencies in 

program execution. The rule aims to reduce any inappropriate inconsistencies and 

provide a bright line of clarity for the agencies, state partners, and the regulated 

public. The agencies believe the clarity and certainty provided in the rule will result 

in further consistency, while still allowing for regional variation in implementation 

that may be necessary based on regional differences in aquatic resources. Tools 

exist that recognize this regional variation and provide assistance to field staff; for 

example, the ordinary high water mark regional manuals or the regional 

supplements to the wetland delineation manual, both of which are outside the scope 

of this rulemaking but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process consistent, predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule. The 

scope of regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

286

Dolores Water Conservancy District (Doc. #19461)

12.403 Beyond the disturbing over-reach by the Agencies, the proposed Rule exhibits a striking 

lack of knowledge or concern regarding the nature of infrastructure for irrigation, 

municipal, and industrial use in the western United States. For example, the Rule would 

arbitrarily exclude from jurisdiction man-made drainage ditches common in the Midwest 

and the eastern United States (i.e., because they “are excavated wholly in uplands, drain 

only uplands, and have less than perennial flow”) but include an enormous number of 

man-made irrigation ditches in the western United States (i.e., because they “contribute 

flow, either directly or through another water” subject to jurisdiction). This bias in the 

Rule will render it unworkable in the western United States and subject landowners and 

water development entities to significant risk and uncertainty for longstanding and 

customary water use practices, including many sponsored and subsidized by the federal 

government. (p. 4)

Agency Response: See Summary Response. See paragraph (b) of the final rule 

and the preamble section on “Waters and Features That Are Not Waters of the 

U.S.” for further discussion on excluded waters such as wastewater recycling 

structures and certain ditches. 

The scope of regulatory jurisdiction in this rule is narrower than that under the 

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

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

important qualifiers on some existing categories such as tributaries. The agencies 

believe the final rule will result in increased clarity and certainty regarding the 

identification of “waters of the U.S.” The agencies received many helpful comments 

on the proposed rule which resulted in refinement of the final rule to provide 

further clarity and certainty to the regulated public. These refinements included 

revisions to the ditch exclusions and the definition of “tributary”. It is important to 

note that waters that meet the paragraph (b) exclusions are not jurisdictional waters 

of the U.S. even if they also meet one of the categories of (a)(1)-(a)(8) waters. 

Additionally, unless a water body is explicitly identified in paragraph (a) as being 

jurisdictional by rule [(a)(1)-(6) waters] or subject to a case-specific significant 

nexus determination to ascertain its jurisdictional status [(a)(7) and (a)(8) waters], a 

water body or landscape feature is excluded from jurisdiction under the CWA even 

if it is not explicitly listed in paragraph (b). The preamble includes discussion on 

this point.

California Central Valley Flood Control (Doc. #19571)

12.404 Overall, these proposed rules fail to appreciate the unique nature of Delta and Central 

Valley waters and land, including the one-of-a-kind levee system and flood control 

challenges. Unlike many other levee systems, most Delta levees and many Central 

Valley levees are always in the water. Both inside and outside of the Delta, the presence 

of the existing system of drainage ditches and irrigation makes this land livable and 

productive. 

Perhaps most importantly, the rules fail to appreciate existing State of California 

constraints upon the flood control system. It is important to note that all waterways in 

California are already regulated and Central Valley reclamation districts already monitor 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

287

and report their discharges to the Central Valley Regional Water Quality Control Board. 

For any projects that require a Central Valley Flood Protection Board permit, California’s 

Title 23 regulations already allow the U.S. Army Corps of Engineers (Corps) to add its 

own requirements to the Board’s permits. Combined, this means that: 1) discharges 

affecting California’s waters already are regulated and activities related to those waters 

are already reported; and 2) the Corps already has the authority to add discharge 

conditions to projects that take place on or near levees if appropriate. 

Instead of preserving this adequately functioning system, the proposed regulatory 

guidance package would add redundant, occasionally arbitrary, and inflexible regulations 

that would burden public safety projects and Corps permitting staff. (p. 2-3)

Agency Response: See Summary Response. See paragraph (b) of the final rule 

and the preamble section on “Waters and Features That Are Not Waters of the 

U.S.” for further discussion on excluded waters such as wastewater recycling 

structures and certain ditches. 

The agencies believe the final rule will result in increased clarity and certainty 

regarding the identification of “waters of the U.S.” The agencies received many 

helpful comments on the proposed rule which resulted in refinement of the final rule 

to provide further clarity and certainty to the regulated public. These refinements 

included revisions to the ditch exclusions and the definition of “tributary”. It is 

important to note that waters that meet the paragraph (b) exclusions are not 

jurisdictional waters of the U.S. even if they also meet one of the categories of (a)(1)-

(a)(8) waters. Additionally, unless a water body is explicitly identified in paragraph 

(a) as being jurisdictional by rule [(a)(1)-(6) waters] or subject to a case-specific 

significant nexus determination to ascertain its jurisdictional status [(a)(7) and (a)(8) 

waters], a water body or landscape feature is excluded from jurisdiction under the 

CWA even if it is not explicitly listed in paragraph (b). The preamble includes 

discussion on this point. 

The agencies recognize that the state and local governments have well-defined and 

long-standing relationships in implementing affected CWA programs and these 

relationships will not be altered. This action will not have substantial direct effects 

on the states, on the relationship between the national government and the states, or 

on the distribution of power and responsibilities among the various levels of 

government. The agencies are not restricting the states’ efforts in developing or 

implementing statewide permits under CWA programs as a result of the rule.

Florida Association of Counties (Doc. #10193)

12.405 According to the Agencies, waters are “similarly situated” if they perform similar 

functions and are sufficiently close together such as to be evaluated as a “single 

landscape unit.”

93 They are sufficiently close together when they are “within a

contiguous area of land with relatively homogeneous soils, vegetation and landform,”

94

Guidance language included the Scientific Evidence Appendix provides for even more 

 

93 79 Fed. Reg. 76,222 1 3 (Apr. 21,20 14).

94 Id.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

288

concern. A staffer performing a case-by-case analysis will see that other waters need nor 

have any hydrologic connection whatsoever, and indeed, “in the aggregate, similarly 

situated wetlands may have significant effects on the quality of water many miles 

away.”

95

 Given the geology of the State of Florida, this language covers a lot of ground -

arguably, much more than the adjacency standard under the current rule.

Similarly, the phrase “in the same region” and its guidance portend a much larger reach

for federal regulators. The proposed rule provides that the Agencies intend to interpret 

this important phrase to mean “the watershed that drains to the nearest traditional 

navigable water, interstate water, or the territorial seas through a single point of entry.”

96

The single point of entry qualifier is defined as “the drainage basin within whose [sic] 

boundaries all precipitation flows to the neatest of [such waters],’” Watersheds in Florida 

are complicated and diverse, dominated by Karst topography in the north, disjointed by 

drainage systems to the south, and with many areas of low-elevation sheet flow. There 

are 29 major watersheds in Florida, with 24 of these bordering on the Atlantic Ocean or 

Gulf of Mexico.”‘ Most likely, the remaining five also drain toward jurisdictional waters. 

Watersheds of a smaller scale must also drain - most likely from a river, stream, tributary, 

wetland or impoundment – into a water of the United States. As a result, one could 

conclude that most any body of water in Florida can be interpreted to be “in the same 

region” and considered in combination with other waters to constitute a water of the 

United States.

Agency Response: See Summary Response. The agencies believe the rule will 

result in increased clarity and certainty regarding the identification of “waters of 

the U.S.” The scope of regulatory jurisdiction in this rule is narrower than that 

under the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. The 

agencies received many helpful comments on the proposed rule which resulted in 

refinement of the final rule to provide further clarity and certainty to the regulated 

public. Definitions of certain terms are provided for the first time (e.g. tributary), 

or are further clarified (e.g. adjacent) and a definition of “significant nexus” was 

included that also includes a descriptor of “similarly situated.” The preamble and 

Technical Support Document provide discussion on these two topics.

Association of Clean Water Administrators (Doc. #13069)

12.406 Due to state-to-state differences in geohydrology and water-related legal authorities, as 

well as uncertainty as to the effects of the rule on implementation of CWA Sections 

303(d), 402, 404 and 319 programs, ACWA finds it very difficult to comment on whether 

the Proposed Rule is suitable for all states. For example, some states question federal 

jurisdiction over all ephemeral tributaries since some rain-dependent streams flow so 

infrequently as to render their effect on downstream waters inconsequential. However, 

some states are supportive of this inclusion, either because they have identified a strong 

connection between ephemeral streams and downstream protection in their state or 

 

95 Id. at 22247.

96 Id, at 222 12.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

289

because case-by-case determinations of whether ephemeral streams have a significant 

nexus to downstream waters would be too resource and time intensive. (p. 2)

Agency Response: See Summary Response and Technical Support Document. 

The rule only provides a definition for “waters of the U.S.” The rule does not affect 

the CWA statute in which authorization may be required for discharges of dredged 

and/or fill material into waters of the U.S., or other activities in jurisdictional waters 

of the U.S. including for example, NPDES permits, water quality standards, Section 

319, or Section 311 requirements which also require authorization. The rule limits 

Clean Water Act jurisdiction only to those types of waters that have a significant 

nexus on downstream (a)(1)-(a)(3) waters, not waters with simply any hydrologic 

connection. The rule defines “tributary” by emphasizing physical characteristics 

created by sufficient volume, frequency and duration of flow; and the concept that a 

water must contribute flow, either directly or through another water, to a 

traditional navigable water, interstate water, or the territorial seas. The definition 

is based on the best available science, the intent of the Clean Water Act, and 

caselaw, and is also consistent with current practice. The agencies have determined 

that all tributaries, regardless of flow regime, have a significant nexus either 

individually or in combination with other tributaries in the region to downstream 

(a)(1)-(a)(3) waters. 

Tribes and states play a vital role in the implementation and enforcement of the 

CWA. Section 101(b) of the CWA states that it is Congressional policy to preserve 

the primary responsibilities and rights of states to prevent, reduce, and eliminate 

pollution, to plan the development and use of land and water resources. Tribes and 

states, consistent with the CWA, retain full authority to implement their own 

programs to more broadly and more fully protect the waters in their jurisdiction.

The agencies believe the clarity and certainty provided in the rule will result in 

further consistency, while still allowing for regional variation in implementation 

that may be necessary based on regional differences in aquatic resources. 

Western Coalition of Arid States (Doc. #14407)

12.407 The proposed definition of a tributary will virtually sweep in every natural or man-made

water feature in the arid West and beyond the current reach of the agencies’ CWA

authority. Most ephemeral drainages only flow in response to precipitation events and

typically occur only during the North American Monsoon or winter rain seasons. For

example, of the documented 284,908 miles of linear streams in Arizona, over 96 percent

were classified by the United States Geological Survey (USGS) as intermittent or

ephemeral.97 Rarely can a large industrial development project like a linear electrical

transmission line or water transmission pipe line be constructed without crossing or 

disturbing at least one or more of these ephemeral features and triggering the need for a 

CWA permit. (p. 9-10)

 

97 United States Geological Survey. Office of Water. Washington, DC. National Hydrography Dataset. October 

2013.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

290

Agency Response: See Summary Response. The rule limits Clean Water Act 

jurisdiction only to those types of waters that have a significant nexus on 

downstream (a)(1)-(a)(3) waters, not waters with simply any hydrologic connection. 

The rule defines “tributary” by emphasizing physical characteristics created by 

sufficient volume, frequency and duration of flow; and the concept that a water 

must contribute flow, either directly or through another water, to a traditional 

navigable water, interstate water, or the territorial seas. The definition is based on 

the best available science, the intent of the Clean Water Act, and caselaw, and is also 

consistent with current practice. The agencies have determined that all tributaries, 

regardless of flow regime, have a significant nexus either individually or in 

combination with other tributaries in the region to downstream (a)(1)-(a)(3) waters.

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resurces.

The ordinary high water mark manuals developed by the Corps provide 

appropriate indicators to consider when delineating the ordinary high water mark 

in the field. Examples of OHWM indicators may include breaks in the slope, 

changes in vegetation, and changes in the sediment texture and substrate. The 

OHWM manual for the Arid West acknowledges the challenges in identifying the 

ordinary high water mark in the region; however, it provides the applicable 

indicators in the region to use when delineating the lateral extent of the OHWM in 

the Arid West. The agencies believe the clarity and certainty provided in the rule 

will result in further consistency, while still allowing for regional variation in 

implementation that may be necessary based on regional differences in aquatic 

resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process consistent, predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule.

Florida Rural Water Association (Doc. #14897)

12.408 Changes to the definition can (...) have far-reaching impacts on Water Utilities. 

Florida’s flat terrain makes it highly susceptible to changes in the jurisdiction of the 

CWA. (p. 2)
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291

Agency Response: See Summary Response. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources. 

The ordinary high water mark manuals developed by the Corps provide 

appropriate indicators to consider when delineating the ordinary high water mark 

in the field. Examples of OHWM indicators may include breaks in the slope, 

changes in vegetation, and changes in the sediment texture and substrate. The 

OHWM manual provides the applicable indicators in the region to use when 

delineating the lateral extent of the OHWM. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources.

The agencies will develop the tools necessary to assist with the jurisdictional 

determination process in the implementation of the final rule to make the process 

consistent, predictable, efficient, and effective. The initial phase of implementing 

the rule will require education and training for agency staff as well as other 

stakeholders and the regulated public, which will include regionally-based training 

to ensure consistent and efficient implementation of the rule.

Western Urban Water Coalition (Doc. #15178 and #15178.1)

12.409 It is important that the agencies consider the scope of the Proposed Rule in the context of 

the full panoply of environmental and water supply challenges being faced by local 

communities in the West. This includes those challenges associated with climate change, 

most notably drought, forest fires, post fire floods, and the overall health of forested 

watersheds. 

The West is, in fact, the region which will be the most directly and significantly affected 

by the outcome of this rulemaking process. It is within this geographic region that one 

frequently finds dry arroyos and washes that flow only in response to infrequent storm 

events, isolated ponds, intermittent and ephemeral streams with a tenuous connection to 

downstream navigable waters, effluent dominated and dependent water bodies, and 

extensive ditch and canal systems designed to meet both agricultural and municipal 

needs. (Doc. #15178.1, p. 2)

Agency Response: See Summary Response. The ordinary high water mark 

manuals developed by the Corps provide appropriate indicators to consider when 

delineating the ordinary high water mark in the field. Examples of OHWM 

indicators may include breaks in the slope, changes in vegetation, and changes in the 

sediment texture and substrate. The OHWM manual for the Arid West 

acknowledges the challenges in identifying the ordinary high water mark in the 

region; however, it provides the applicable indicators in the region to use when 

delineating the lateral extent of the OHWM in the Arid West. The agencies believe 

the rule will result in increased clarity and certainty regarding the identification of 

“waters of the U.S.” The agencies received many helpful comments on the proposed 

rule which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public. The agencies believe the clarity and certainty 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

292

provided in the rule will result in further consistency, while still allowing for 

regional variation in implementation that may be necessary based on regional 

differences in aquatic resources.

The rule defines “tributary” by emphasizing physical characteristics created by 

sufficient volume, frequency and duration of flow; and the concept that a water 

must contribute flow, either directly or through another water, to a traditional 

navigable water, interstate water, or the territorial seas. The definition is based on 

the best available science, the intent of the Clean Water Act, and caselaw, and is also 

consistent with current practice.

12.410 It is also important to note that drainages in the arid West can have a mix of ephemeral 

and intermittent characteristics, which further add to their variability and the need for a 

case-by assessment to determine their jurisdictional status. Many intermittent drainages 

have reaches with shallow ground water levels that seasonally contribute flow to only a 

reach of the drainage, which can then be separated by a dry ephemeral reach. In the arid 

West, it is not uncommon to have intermittent drainages with scattered reaches of 

seasonal or sometimes perennial pools of water and/or wetlands fed by ground water 

seeps separated by dry ephemeral reaches. As the lengths of dry ephemeral reaches 

increase between the intermittent reaches, the potential decreases for seasonal flows to 

connect with a WUS and/or for affecting the chemical, physical, or biological integrity of 

a WUS, as discussed above for discontinuous features. (Doc. #15178.1, p. 16-17)

Agency Response: See Summary Response. The agencies believe the rule will 

result in increased clarity and certainty regarding the identification of “waters of 

the U.S.” The agencies received many helpful comments on the proposed rule which 

resulted in refinement of the final rule to provide further clarity and certainty to the 

regulated public. The agencies believe the clarity and certainty provided in the rule 

will result in further consistency, while still allowing for regional variation in 

implementation that may be necessary based on regional differences in aquatic 

resources. For example, the ordinary high water mark manuals developed by the 

Corps provide appropriate indicators to consider when delineating the ordinary 

high water mark in the field. Examples of OHWM indicators may include breaks in 

the slope, changes in vegetation, and changes in the sediment texture and substrate. 

The OHWM manual for the Arid West acknowledges the challenges in identifying 

the ordinary high water mark in the region; however, it provides the applicable 

indicators in the region to use when delineating the lateral extent of the OHWM in 

the Arid West.

The rule defines “tributary” by emphasizing physical characteristics created by 

sufficient volume, frequency and duration of flow; and the concept that a water 

must contribute flow, either directly or through another water, to a traditional 

navigable water, interstate water, or the territorial seas. The definition is based on 

the best available science, the intent of the Clean Water Act, and caselaw, and is also 

consistent with current practice.

12.411 [T]here is substantial variability in the types of waters within a given watershed in the 

arid West and as the proposed rule acknowledges, “[I]n the arid West, the agencies 

recognize there may be situations where the single point of entry watershed is very large 
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293

....” Aggregating highly variable waters over a very large region and using the combined 

potential effects of these waters on the physical, chemical, or biological integrity of a 

TNW to determine that all of these “similarly situated waters,” individually or 

collectively, are jurisdictional is not an approach supported by the facts. There is simply 

too much variability within waters in the arid West, particularly ephemeral and 

intermittent drainages, as discussed above, to make such a sweeping generalization on 

which to base the jurisdictional status of the waters. 

In the arid West, there can be substantial distance between “other waters” and a TNW 

and substantial time between precipitation and flow events. Within the watershed 

encompassing that distance, there can be numerous “other waters” with different 

relationships to the TNW including hydrology, landform, soils, vegetation, and distance 

to the TNW. It is not appropriate to assume that these “other waters” are similarly 

situated because it cannot be assumed that they perform similar functions and are located 

sufficiently close to a TNW to be evaluated as a single landscape unit. As an example 

from the Corps field guide to the identification of the OHWM in the arid West, 

“[E]xtreme weather events (e.g., summer thunderstorms) may produce locally intense 

precipitation over an entire watershed or perhaps just a portion of an entire watershed 

producing short-duration, potentially high-energy (depending on watershed size, relief, 

and soil conditions) flow in these areas and a complete lack of flow in others” (Lichvar 

and McColley 2008). These highly localized precipitation events are common in the arid 

West. When such events occur, the “other waters” in the entire watershed are not acting 

in a combined similar manner on a TNW (i.e., some drainages are conveying runoff that 

may reach a TNW, some drainages convey water for a short distance that does not reach 

a TNW, and other drainages remain dry). 

Another issue with the proposed rule’s approach of assessing the combined effects of 

similarly situated “other waters” in the region is that the approach is performing a 

cumulative effects analysis on the entire watershed without knowing what the action or 

actions are that are to be considered when determining the combined effects. Effects and 

connections differ in their intensity, duration, frequency, magnitude, predictability, 

location in the watershed, and significance on the physical, chemical, or biological 

integrity of a TNW. The importance of considering the difference in effects is evident in 

comments from the EPA SAB Panel for the Review of EPA Water Body Connectivity 

Report which state: “[T]he descriptions in the preamble of the proposed rule of evidence 

of physical, hydrological, and biological connectivity would be more scientifically 

rigorous if they focused on the magnitude or impact of the connection instead of the 

presence/absence (binary) perspective” (EPA SAB Panel 2014). 

As proposed, the rule would assume that if all of the combined similarly situated “other 

waters” could affect the physical, chemical, or biological integrity of a TNW, then 

individually, each water comprising the similarly situated waters affects the physical, 

chemical, or biological integrity of a TNW. This assumption is not logical and does not 

consider scale. All does not equal one. This is particularly true when considering the 

proposed large single-entry watershed size and the variability of “other waters” in the 

arid West. What proportion of other waters in the single-entry watershed would need to 

be adversely affected to create a significant impact on a TNW? What is the measure of 

significance when aggregating other waters and their effects on the physical, chemical, or 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

294

biological integrity of a TNW? The proposed rule needs to clearly state these important 

criteria. (Doc. #15178.1, p. 31-32)

Agency Response: See Summary Response. See the Technical Support Document 

for a summary of the scientific basis for the final rule. See the preamble section on 

“Tributaries” for further discussion concerning the jurisdictional status and flow 

regime of tributaries. The agencies believe the rule will result in increased clarity 

and certainty regarding the identification of “waters of the U.S.” The agencies 

received many helpful comments on the proposed rule which resulted in refinement 

of the final rule to provide further clarity and certainty to the regulated public. 

The goal of the CWA is to protect the chemical, physical, and biological integrity of 

our nation’s waters. The agencies have been implementing this mission since the 

inception of the CWA. The additional costs that may be incurred as a result of the 

rule were taken into account during its formulation; however, the updated 

Economic Analysis indicates the benefits of the rule outweigh any associated costs 

placed on the regulated public and on the agencies themselves. The scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries. The agencies believe the 

clarity and certainty provided in the rule will result in further consistency, while 

still allowing for regional variation in implementation that may be necessary based 

on regional differences in aquatic resources. The agencies believe they are not 

regulating any waters that have not previously been covered under the CWA 

regulations.

The final rule and preamble provides clarity concerning when waters can be found 

to be similarly situated and therefore combined for the purposes of conducting a 

significant nexus evaluation. See the preamble section on “Case-Specific Waters of 

the U.S.” for additional discussion. The final rule also provides a specific list of 

factors to be considered when conducting a significant nexus determination to 

provide clarity and predictability to the case-specific significant nexus 

determinations for (a)(7) and (a)(8) waters. 

The agencies recognize there may be situations in the arid West where the single 

point of entry watershed is very large, and it may be reasonable to evaluate all 

similarly situated waters in a smaller watershed. The preamble provides additional 

discussion concerning when circumstances warrant conducting a significant nexus 

evaluations on a different scale than the single point of entry watershed in the arid 

West. 

Oklahoma Municipal League (Doc. #16526)

12.412 The addition of new definitions for “adjacent,” “neighboring,” “riparian”, “floodplain,”

“tributary,” and “significant nexus” introduces widespread concerns for three reasons.

(With regard to implementation of the proposed new rule) the examples provided in the 

definitions suggest consequences – whether intended or unintended – in many real-life 

situations the proposed rule is not addressing.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

295

There are over 4 million miles of roads in this country with at least that many miles of 

ditches running alongside them. These ditches were constructed to shore up the road, not to 

transport water. How many of those miles have flowing water in them and how many of 

those lesser miles of water can in any candid way be said to significantly affect the integrity 

of a traditional jurisdictional water? Is there not another way to prevent degradation of 

navigable waters without subjecting all those millions of miles a priori to federal permitting 

authority with its attendant delays and costs?

Many states, including Oklahoma, are experiencing severe drought. This reality in 

conjunction with population and urban growth increase the need for reliable water supply. 

Consequently, they are promoting the very conservation measures encouraged by EPA, such 

as water reuse and green infrastructure. The proposed rule foreseeably will chill these 

initiatives by subjecting essential facilities to costly permit processes and delays. State and 

local governments are thus placed in an unnecessary “catch-22” by this inconsistency in 

EPA’s programs. (p. 4)

Agency Response: See Summary Response. See paragraph (b) of the final rule 

and the preamble section on “Waters and Features That Are Not Waters of the 

U.S.” for further discussion on excluded waters such as wastewater recycling 

structures, stormwater control features, and certain ditches. The agencies believe 

the rule will result in increased clarity and certainty regarding the identification of 

“waters of the U.S.” The agencies received many helpful comments on the proposed 

rule which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public. The agencies believe the clarity and certainty 

provided in the rule will result in further consistency, while still allowing for 

regional variation in implementation that may be necessary based on regional 

differences in aquatic resources. 

The rule is intended to avoid disincentives to the environmentally beneficial trend in 

green infrastructure stormwater management practices. None of the existing 

procedures, permitting mechanisms, efficient permitting tools such as general 

permits, or activity exemptions under section 404(f)(1) 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.

Washington State Water Resources Association (Doc. #16543)

12.413 The West is still largely an arid region with thousands of miles of arroyos, ditches, 

washes, dry streambeds and ephemeral or intermittent water bodies. Many of these 

features rarely feature water in them. When water is present, it is often in response to 

large storm events and oftentimes much of the water that enters these features is absorbed 

into the ground.

Under current agency guidance many of these features have been determined to be 

isolated or lacking a significant nexus to traditional navigable waters and are not 

currently jurisdictional. However, under the proposed rule, many of these features could 

be considered jurisdictional by rule. The proposed rule makes ephemeral and intermittent 

tributaries jurisdictional and also eliminates, to a large extent, the concept of an isolated 

water or wetland. As previously noted, this is an expansion of the Agencies’ jurisdiction 

and will make constructing and maintaining vital water supply infrastructure more 
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296

difficult and expensive. Given the unique nature of the West and its landscape, it appears 

that this jurisdictional expansion will ultimately impact the West disproportionately more 

than any other region. (p. 5-6)

Agency Response: See Summary Response. The scope of regulatory jurisdiction 

in this rule is narrower than that under the existing regulation. Fewer waters will 

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

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

categories such as tributaries. 

See paragraph (b) of the final rule and the preamble section on “Waters and 

Features That Are Not Waters of the U.S.” for further discussion on excluded 

waters such as wastewater recycling structures and certain ditches. The agencies 

believe the rule will result in increased clarity and certainty regarding the 

identification of “waters of the U.S.” The agencies received many helpful comments 

on the proposed rule which resulted in refinement of the final rule to provide 

further clarity and certainty to the regulated public. The agencies believe the clarity 

and certainty provided in the rule will result in further consistency, while still 

allowing for regional variation in implementation that may be necessary based on 

regional differences in aquatic resources. 

None of the existing procedures, permitting mechanisms, efficient permitting tools 

such as general permits, or activity exemptions under section 404(f)(1) 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. 

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

12.414 Recently, the importance of water in the Western U.S. was noted in the Administration’s 

2014 National Climate Assessment, which states:

“The Southwest is the hottest and driest region in the United States, where the availability 

of water has defined its landscapes, history of human settlement, and modern economy. 

Climate changes pose challenges for an already parched region that is expected to get 

hotter and, in its southern half, significantly drier. Increased heat and changes to rain and 

snowpack will send ripple effects throughout the region’s critical agriculture sector, 

affecting the lives and economies of 56 million people – a population that is expected to 

increase 68% by 2050, to 94 million. Severe and sustained drought will stress water 

sources, already over-utilized in many areas, forcing increasing competition among 
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297

farmers, energy producers, urban dwellers, and plant and animal life for the region’s most 

precious resource.”

The Administration is correct to express concern about meeting water supply needs in 

coming decades. Our members share this concern. However, we are genuinely 

concerned that the proposed rule will make it more difficult to meet water needs. 

In order to meet water supply and wastewater treatment needs, as well as stormwater 

control requirements, municipal utilities and irrigation districts must make substantial 

infrastructure investments, often requiring creative and innovative approaches. These 

investments will include new or expanded storage reservoirs; reuse facilities; 

desalinization plants; water collection, delivery and distribution pipelines; pump-back 

projects; groundwater recharge facilities; and reverse osmosis water treatment plants. 

Many of these facilities will, of necessity, be in somewhat close proximity to the types of 

“waters” discussed in the current proposal. It is essential that these critical activities, 

many of which may be undertaken in direct response to emergency conditions related to 

drought, fire, or post-fire damage, do not unnecessarily trigger a federal nexus and its 

concomitant lengthy and costly permitting procedures. (p. 6-7)

Agency Response: See Summary Response. See paragraph (b) of the final rule 

and the preamble section on “Waters and Features That Are Not Waters of the 

U.S.” for further discussion on excluded waters such as wastewater recycling 

structures, stormwater control features, and certain ditches. The agencies believe 

the rule will result in increased clarity and certainty regarding the identification of 

“waters of the U.S.” The agencies received many helpful comments on the proposed 

rule which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public. The agencies believe the clarity and certainty 

provided in the rule will result in further consistency, while still allowing for 

regional variation in implementation that may be necessary based on regional 

differences in aquatic resources. None of the existing procedures, permitting 

mechanisms, efficient permitting tools such as general permits, or activity 

exemptions under section 404(f)(1) 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. 

The rule does not diminish or in any way detract from the intent and purpose of 

Clean Water Act sections 101(b) and 101(g) regarding the states’ primary and 

exclusive authority over water allocation and water rights administration, as well as 

state-federal co-regulation of water quality. The agencies worked hard to ensure 

the rule reflects these fundamental principles. 

The Corps regulations define an “emergency” as “a situation which would result in 

an unacceptable hazard to life, a significant loss of property, or an immediate, 

unforeseen, and significant economic hardship if corrective action requiring a 

permit is not undertaken within a time period less than the normal time needed to 

process the application under standard procedures.” In emergency situations, Corps 

Division Engineers, in coordination with the Corps District Engineers, are 

authorized to approve special processing procedures to expedite permit issuance. 

The Corps also uses alternative permitting procedures, such as general permits and 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

298

letters of permission, when appropriate, to expedite processing of permit 

applications for emergencies. The Corps emergency permitting procedures can be 

found in 33 CFR 325.2(e). Certain nationwide permits do not require preconstruction notification and such activities can be completed without notification as 

long as they comply with the terms and conditions of such permits. In addition, 

certain discharges of dredged and/or fill material are exempt from regulation under 

section 404(f)(1)(b) under the Clean Water Act that are “for the purpose of 

maintenance, including emergency reconstruction.”

12.415 To the extent ditches fail to meet the rigid and narrow exemption language, and waters 

therein are therefore treated as jurisdictional, the time and costs associated with ditch 

construction, repair, maintenance and replacement will increase. In addition, in the arid 

West, as water shortages loom, a critical component of future water supply is the 

“sharing” of water rights between senior agricultural users and junior municipal providers 

on an interruptible supply, e.g., leasing/fallowing, basis However, to implement such 

sharing opportunities, it is oftentimes necessary to construct new water collection and 

transportation infrastructure. If such construction activity triggers section 404 and NEPA 

requirements, it may mean that the transaction becomes technically, economically, or 

temporally infeasible. (p. 9)

Agency Response: See Summary Response. See paragraph (b) of the final rule 

and the preamble section on “Waters and Features That Are Not Waters of the 

U.S.” for further discussion on excluded waters such as wastewater recycling 

structures, stormwater control features, and certain ditches. The agencies believe 

the rule will result in increased clarity and certainty regarding the identification of 

“waters of the U.S.” The agencies received many helpful comments on the proposed 

rule which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public, including providing clarification of the ditch 

exclusions and of the definition of “tributary”. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources. 

The rule does not diminish or in any way detract from the intent and purpose of 

Clean Water Act sections 101(b) and 101(g) regarding the states’ primary and 

exclusive authority over water allocation and water rights administration, as well as 

state-federal co-regulation of water quality. The agencies worked hard to ensure 

the rule reflects these fundamental principles.

12.416 Proposed Rule Could Hinder Disaster Response

The 2014 National Climate Assessment states that: “drought conditions present a huge 

challenge for regional management of water resources and natural hazards such as 

wildfire.” NWRA’s members agree that current and future drought conditions present a 

huge challenge. Western communities are not only dealing with droughts that place great 

stress on finite water resources. They are also combating the ever-larger and more 

frequent wildfires that strip the landscape of vegetation and the often massive flood 

events that come in the days and years after a wildfire has burned. These natural 

disasters impact people, communities and water managers. Responding to, and 
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299

recovering from, natural disasters is a daunting task that NWRA’s members are dedicated 

to meeting. However, we are concerned that the rule in its current form will make it 

more difficult to respond to, and recover from, these events. 

Disaster response requires the ability to act quickly and creatively. The proposed rule 

will make areas not previously jurisdictional subject to the timely and costly permitting 

requirements triggered by the CWA. As an example the proposed rule contains no 

exemption for stormwater runoff control facilities, such as those necessary to hold back 

debris and sediment from burn scar areas. This is just one example of how the proposed 

rule in its current form will make it more difficult to deal with disaster events. (p. 14)

Agency Response: See Summary Response. See paragraph (b) of the final rule 

and the preamble section on “Waters and Features That Are Not Waters of the 

U.S.” for further discussion on excluded waters such as stormwater control features 

and certain ditches. 

The Corps regulations define an “emergency” as “a situation which would result in 

an unacceptable hazard to life, a significant loss of property, or an immediate, 

unforeseen, and significant economic hardship if corrective action requiring a 

permit is not undertaken within a time period less than the normal time needed to 

process the application under standard procedures.” In emergency situations, Corps 

Division Engineers, in coordination with the Corps District Engineers, are 

authorized to approve special processing procedures to expedite permit issuance. 

The Corps also uses alternative permitting procedures, such as general permits and 

letters of permission, when appropriate, to expedite processing of permit 

applications for emergencies. The Corps emergency permitting procedures can be 

found in 33 CFR 325.2(e). Certain nationwide permits do not require preconstruction notification and such activities can be completed without notification as 

long as they comply with the terms and conditions of such permits. In addition, 

certain discharges of dredged and/or fill material are exempt from regulation under 

section 404(f)(1)(b) under the Clean Water Act that are “for the purpose of 

maintenance, including emergency reconstruction.”

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

12.417 Any energy company operating where project sites are located “adjacent to” or 

“neighboring” an ephemeral or intermittent stream will likely find itself within this new 

expanded framework of WOTUS. Even in arid regions of the West in the vicinity of 

depressions that are dry a majority of the time, but which flow in heavy rains, projects 

could now be caught within the redefined WOTUS and subject to additional permit 

obligations. 

Assessment of the effect on the chemical, physical, or biological integrity of such waters 

may be required to determine permitting obligations. While the agencies assert that the 

proposal will have no effect on permitting, if the landscape of jurisdictional waters is 

expanded, additional CWA permits will be needed that would delay and potentially halt 

energy projects (p. 17)

Agency Response: See Summary Response. The scope of regulatory jurisdiction 

in this rule is narrower than that under the existing regulation. Fewer waters will 
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300

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

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

categories such as tributaries. 

The rule provides a definition for “waters of the U.S.” and does not affect the CWA 

statute in which authorization may be required for discharges of dredged and/or fill 

material into or other activities within waters of the U.S. The rule is not designed to 

subject entities of any size to any specific regulatory burden. Rather, it is designed 

to clarify the statutory scope of the “waters of the U.S.”, consistent with existing 

regulations, science, and Supreme Court precedent. The agencies believe the 

proposed rule will result in increased clarity and certainty regarding the 

identification of “waters of the U.S.” 

The agencies received many helpful comments on the proposed rule which resulted 

in refinement of the final rule to provide further clarity and certainty to the 

regulated public. None of the existing procedures, permitting mechanisms, efficient 

permitting tools such as general permits, or activity exemptions will be modified as a 

result of this rulemaking; therefore, existing procedures should not be further 

complicated by this rule.

Pennsylvania Chamber of Commerce and Industry (Doc. #14401)

12.418 The PA Chamber would appreciate if the federal EPA recognized that a “one size fits all”

approach of applying federal regulation under the Clean Water Act, as is proposed with 

this rulemaking, is inappropriate, given regional differences in topographical, 

meteorological, hydrologic and other conditions. (p. 2)

Agency Response: See Summary Response. There are appropriate levels of 

regional variation in implementation of the regulations; however, the agencies strive 

for national consistency. This appropriate regional variation can make it appear 

that there are inconsistencies in program execution. The rule aims to reduce any 

inappropriate inconsistencies and provide a bright line of clarity for the agencies, 

state partners, and the regulated public. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources. Tools exist that recognize this regional variation 

and provide assistance to field staff; for example, the ordinary high water mark 

regional manuals or the regional supplements to the wetland delineation manual, 

both of which are outside the scope of this rulemaking but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process consistent, predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule.

12.419 While it is abundantly clear which waterways and wetlands in Pennsylvania are subject to 

state regulation, case-by-case determinations at the federal level are impractical, given 

the sheer number of routine regulatory decisions that must be made. Also, given the bevy 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

301

of activities and environmental resources that may or may not be subject to federal 

regulation under this proposal, the PA Chamber is concerned this proposal opens the door 

to selective enforcement. The PA Chamber continues to be concerned about the 

differences in regional decision-making among various EPA and Corps’ district or 

regional offices, and it is likely that the significant number of subjective elements laid out 

in this rulemaking will only further add to those concerns. (p. 3)

Agency Response: See Summary Response. There are appropriate levels of 

regional variation in implementation of the regulations; however, the agencies strive 

for national consistency. This appropriate regional variation can make it appear 

that there are inconsistencies in program execution. The rule aims to reduce any 

inappropriate inconsistencies and provide a bright line of clarity for the agencies, 

state partners, and the regulated public. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources. Tools exist that recognize this regional variation 

and provide assistance to field staff; for example, the ordinary high water mark 

regional manuals or the regional supplements to the wetland delineation manual, 

both of which are outside the scope of this rulemaking but are related resources.

The agencies received many helpful comments on the proposed rule which resulted 

in refinement of the final rule to provide further clarity and certainty to the 

regulated public which will result in further consistency. The Corps will develop the

tools necessary to assist its staff with the jurisdictional determination process 

specific to section 404 during the implementation of the final rule to make the 

process consistent, predictable, efficient, and effective. The initial phase of 

implementing the rule will require education and training for agency staff as well as 

other stakeholders and the regulated public, which will include regionally-based 

training to ensure consistent and efficient implementation of the rule.

The agencies recognize that the state and local governments have well-defined and 

long-standing relationships in implementing affected CWA programs and these 

relationships will not be altered. This action will not have substantial direct effects 

on the states, on the relationship between the national government and the states, or 

on the distribution of power and responsibilities among the various levels of 

government. The agencies are not restricting the states’ efforts in developing or 

implementing statewide permits under CWA programs as a result of the rule.

Comments specific to the implementation of CWA Enforcement Programs are 

outside of the scope of this rulemaking.

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

12.420 RDC urges the EPA and Corps to withdraw the proposed rule for “water of the United 

States.” (WOTUS), and halt efforts to further expand the EPA’s jurisdiction of areas in 

Alaska and across the United States. RDC has many concerns regarding the proposed 

rule, including many Alaska‐specific issues, as well as broader concerns at the national 

level. As the CWA triggers the onerous permitting process for areas in Alaska 

considered “waters of the U.S.,” RDC is further concerned the broad expansion that will 

likely result from this proposed rule will devastate the Alaskan economy. The expense 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

302

and uncertainty in the process for obtaining a permit under the CWA discourages 

investment in Alaska, a place where the cost of doing business is already high and the 

extreme weather conditions often delay or impact projects. The proposed rule would 

significantly expand the scope of navigable waters subject to Clean Water Act 

jurisdiction by regulating small and remote waters – many of which are in Alaska. The 

proposal is too fluid, and asserts federal control over waters that were under jurisdiction 

of Alaska and each individual state. Ultimately, WOTUS includes wetlands, 

development projects will be subject to additional lengthy and expensive federal 

permitting, added benefit to the environment. (p. 1-2)

Agency Response: See Summary Response. See the Economic Analysis for 

additional information on the costs/benefits of the final rule. The goal of the CWA 

is to protect the chemical, physical, and biological integrity of our nation’s waters. 

The agencies have been implementing this mission since the inception of the CWA. 

The additional costs that may be incurred as a result of the rule were taken into 

account during its formulation; however, the updated Economic Analysis indicates 

the benefits of the rule outweigh any associated costs placed on the regulated public 

and on the agencies themselves. The scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries. 

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

The agencies will develop the tools necessary to assist with the jurisdictional 

determination process in the implementation of the final rule to make the process 

consistent, predictable, efficient, and effective. The initial phase of implementing 

the rule will require education and training for agency staff as well as other 

stakeholders and the regulated public, which will include regionally-based training 

to ensure consistent and efficient implementation of the rule. 

12.421 Alaska contains approximately 174 million acres of wetlands’ (65% of the nation’s total), 

with nearly 80% the state underlain in permafrost. RDC is concerned about the potential 

vast consequences the proposed rule to define “waters of the United States” will have 

because of the immense wetlands and permafrost. Alaska has 63% of the nation’s 

jurisdictional waters and is one-fifth of the U.S. land mass, yet EPA’s analysis the 

definition of WOTUS rule making did not include adequate analysis of Alaska. RDC is 
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303

further concerned the rule will result in disproportionate impacts to Alaska, and the 

agencies should address the flawed economic analysis described in the rule. RDC’s 

members, from oil and gas, to maritime, Alaska Native corporations, and rural 

communities, will he unreasonably burdened by this proposed rule. Alaska and other 

states should have the authority to develop land use practices and protections, not the 

federal government. (p. 2)

Agency Response: See Summary Response. The agencies recognize that the state 

and local governments have well-defined and long-standing relationships in 

implementing affected CWA programs and these relationships will not be altered. 

This action will not have substantial direct effects on the states, on the relationship 

between the national government and the states, or on the distribution of power and 

responsibilities among the various levels of government. The agencies are not 

restricting the states’ efforts in developing or implementing statewide permits under 

CWA programs as a result of the rule. 

The rule does not diminish or in any way detract from the intent and purpose of 

Clean Water Act sections 101(b) and 101(g) regarding the states’ primary and 

exclusive authority over water allocation and water rights administration, as well as 

state-federal co-regulation of water quality. The agencies worked hard to ensure 

the rule reflects these fundamental principles. 

The agencies also recognize that there are appropriate levels of regional variation in 

implementation of the regulations; however, the agencies strive for national 

consistency. The agencies believe the clarity and certainty provided in the rule will 

result in further consistency, while still allowing for regional variation in 

implementation that may be necessary based on regional differences in aquatic 

resources; for example, the regional supplements to the wetland delineation manual, 

which is outside the scope of this rulemaking, but is a related resource which 

discusses permafrost and wetlands.

12.422 The technical definition of permafrost as “soil and/or rock that has remained below 32°F 

for more than two years, regardless if significant amounts of ice exist or not” will likely 

cause confusion for Alaska when considering how EPA and the Corps use it to define 

WOTUS. (p. 2)

Agency Response: See Summary Response. For the purposes of wetland 

delineation in Alaska, the Regional Supplement to the Corps of Engineers Wetland 

Delineation Manual: Alaska Region (Version 2.0) (which is outside the scope of this 

rulemaking effort) defines permafrost as: “A thickness of soil or other superficial 

deposits, or even bedrock, which has been colder than 0 °C for two or more years 

(Muller 1945).” The agencies have not used “permafrost” in the definition of 

“waters of the U.S.” See the delineation manual for further discussion on 

permafrost. 

12.423 In regards to “permafrost,” as the larger part of Alaska is considered permafrost, clarify if 

the inclusion of permafrost would then put even more of Alaska under the CWA 

permitting regime. (p. 2)
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304

Agency Response: See Summary Response. For the purposes of wetland 

delineation in Alaska, the Regional Supplement to the Corps of Engineers Wetland 

Delineation Manual: Alaska Region (Version 2.0) (which is outside the scope of this 

rulemaking effort) defines permafrost as: “A thickness of soil or other superficial 

deposits, or even bedrock, which has been colder than 0 °C for two or more years 

(Muller 1945).” The agencies have not used “permafrost” in the definition of 

“waters of the U.S.” See the delineation manual for further discussion on 

permafrost.

12.424 Equally important is the inclusion and use of the best available science, as well as 

research that includes temperate regions and is reflective of connections in an arctic 

environment. (p. 2)

Agency Response: See Summary Response. See the Technical Support Document 

for a summary of the scientific basis of the rule. There are appropriate levels of 

regional variation in implementation of the regulations; however, the agencies strive 

for national consistency. This appropriate regional variation can make it appear 

that there are inconsistencies in program execution. The rule aims to reduce any 

inappropriate inconsistencies and provide a bright line of clarity for the agencies, 

state partners, and the regulated public. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources. Tools exist that recognize this regional variation 

and provide assistance to field staff; for example, the ordinary high water mark 

regional manuals or the regional supplements to the wetland delineation manual, 

both of which are outside the scope of this rulemaking but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process consistent, predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule.

12.425 Given Alaska’s unique conditions, any revised or new guidance provided by the Corps 

should include regional guidance with examples or case studies. Development of 

regional guidance should include broad participation in the process from the regulated 

and regulatory communities. Likewise, the revised form the Corps and EPA are 

developing for field regulators for documenting the assertion or delineation of CWA 

jurisdiction should be specific to Alaska. Development of both national and regional 

forms should be a public process, open to review and comment. 

Agency guidance should recognize Alaska’s unique circumstances. While scarcity is an 

overriding concern elsewhere in the nation, the sheer abundance of wetlands in Alaska is 

an important element to take into consideration. Further, Alaska is a state with 

substantial, remote wetlands. Often there are challenges associated with identifying a 

nexus to traditional navigable waters, especially in ice-rich regions. The limited field 

season and the lack of understanding of functions for some types of Alaskan wetlands are 

two other challenging elements that should be recognized. (p. 3) 
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305

Agency Response: See Summary Response. There are appropriate levels of 

regional variation in implementation of the regulations; however, the agencies strive 

for national consistency. This appropriate regional variation can make it appear 

that there are inconsistencies in program execution. The rule aims to reduce any 

inappropriate inconsistencies and provide a bright line of clarity for the agencies, 

state partners, and the regulated public. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources. Tools exist that recognize this regional variation 

and provide assistance to field staff; for example, the ordinary high water mark 

regional manuals or the regional supplements to the wetland delineation manual, 

both of which are outside the scope of this rulemaking but are related resources.

The agencies are developing guidance to facilitate effective, consistent, and efficient 

implementation of the final rule once it becomes effective. The Corps will develop 

the tools necessary to assist its staff with the jurisdictional determination process 

specific to section 404 in the implementation of the final rule to make the process 

predictable, efficient, and effective. The initial phase of implementing the rule will 

require education and training for agency staff as well as other stakeholders and the 

regulated public, which will include regionally-based training to ensure consistent 

and efficient implementation of the rule.

12.426 Alaska, being a relatively young state with vast lands and few inhabitants, is mostly 

undeveloped. Alaska lacks critical infrastructure for community and resource 

development. RDC is concerned the proposed rule will further impact projects, given 

most of Alaska’s non‐mountainous lands are or would be considered wetlands. 

Rural Alaska, which has a vital need for improved infrastructure and projects, such as 

roadways, power lines, and pipelines, will have to obtain additional permits and be under 

greater, yet unnecessary scrutiny in order to be approved. RDC notes the impact will 

disproportionately affect rural Alaska, and in particular, Alaska Natives. 

Furthermore, much of Alaska’s lands are already owned by the government, with less 

than one percent in conventional private ownership. As a large percent of wetlands is 

under public management, it’s likely not to be available for development nor for 

compensatory mitigation.

Under the proposal, even if a project can get a permit, businesses will likely have to agree 

to costly restoration and/or mitigation projects. Moreover, the proposal does little or 

nothing to actually improve water quality. Instead, it gives EPA and the Corps virtually 

limitless authority to control community and development projects especially in Alaska. 

This proposed rule is seriously legally flawed and again, RDC urges EPA and the Corps 

to withdraw it. (p. 4)

Agency Response: See Summary Response. The goal of the Clean Water Act is 

“to restore and maintain the chemical, physical, and biological integrity of the 

Nation’s waters.” This goal includes the mission to maintain the integrity of the 

Nation’s waters, including those waters which may be less polluted. The rule is not 

designed to subject entities of any size to any specific regulatory burden. Rather, it 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

306

is designed to clarify the statutory scope of the “waters of the U.S.” consistent with 

science, existing regulations, and Supreme Court precedent. 

The agencies believe the rule will result in increased clarity and certainty regarding 

the identification of “waters of the U.S.” The agencies received many helpful 

comments on the proposed rule which resulted in refinement of the final rule to 

provide further clarity and certainty to the regulated public. None of the existing 

procedures, permitting mechanisms, efficient permitting tools such as general 

permits, or activity exemptions under section 404(f)(1) 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. 

Concerning potential environmental justice issues, please refer to the preamble 

section on “Related Acts of Congress, Executive Orders, and Agency Initiatives.” 

The rule does not affect the private availability of lands for compensatory 

mitigation.

12.427 If ultimately necessary, and to develop a balanced rule to continue to protect wetlands, 

RDC urges the EPA and Corps to meet with Alaskans and stakeholders in other states. 

These groups can help the EPA and Corps better understand what is already in place and 

effectively working in each state, while protecting the livelihood of Americans. It is in 

the best interest of all Alaskans to protect the lands and waters within Alaska’s borders.

RDC urges the EPA and Corps to improve and clarify the proposed rule to avoid 

litigation and unintended consequences. In an effort to provide a better understanding of 

the potential impacts to Alaska, RDC appreciates continued communications and 

opportunities to comment on the proposed rule. (p. 4)

Agency Response: See Summary Response. The agencies have and do engage in 

sustained coordination and partnerships with states and other partners. The rule 

public comment period was extended twice to ensure adequate time for comment 

and during that time the hundreds of stakeholder and outreach meetings were held, 

including some with state agencies. The agencies received many helpful comments 

on the proposed rule which resulted in refinement of the final rule to provide 

further clarity and certainty to the regulated public. 

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example,

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

307

The agencies are developing guidance to facilitate effective, consistent, and efficient 

implementation of the final rule once it becomes effective. 

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 in the implementation of the final rule 

to make the process predictable, efficient, and effective.

Greater Houston Partnership (Doc. #14726)

12.428 The Houston region sits upon a deep layer of clay soil deposits that pose significant land 

subsidence challenges. This, coupled with our high rainfall and flat terrain, have led to 

the implementation of subsidence prevention and flood damage reduction projects which 

could also be adversely impacted by the proposed rule by unnecessarily hindering their 

development, operations, and maintenance. (p. 1)

Agency Response: See Summary Response. The rule provides a definition for 

“waters of the U.S.” The rule does not affect the CWA statute in which 

authorization may be required for discharges of dredged and/or fill material into or 

other activities within waters of the U.S. In addition, the rule does not affect 

activities that are currently exempt from CWA regulation under Section 404(f)(1), 

which includes specific maintenance activities, nor will it affect the tools such as the 

use of general permits that the Corps implements for expeditious review and 

efficiency in processing permit applications for discharges of dredged and/or fill 

material into waters of the U.S. The rule will improve efficiency and provide needed 

clarity regarding jurisdictional determinations, reducing uncertainties and delays. 

The rule is not designed to subject any entities of any size to any specific regulatory 

burden. Rather, it is designed to clarify the statutory scope of the “waters of the 

U.S.”, consistent with Supreme Court precedent. In developing the rule, the agencies 

considered all relevant implications that will result from the rule implementation 

including legal, economic, and implementation considerations, as well as the 

resulting affect on the regulated public.

12.429 ... GHP is very concerned with the inclusion of tributaries in the waters of the U.S. The 

proposed definition of tributary includes natural, man-altered, or man-made water and 

includes waters such as rivers, streams, lakes, ponds, impoundments, canals, and ditches. 

This definition appears to inadvertently make constructed drainage infrastructure 

jurisdictional, which would trigger Clean Water Act (CWA) Section 404 permitting for 

many types of drainage system operations and maintenance. It would also complicate the 

determination of where a stormwater pollutant discharge occurs in Section 402 permitting 

situations. In contrast to other areas of the country, the Houston region receives 48 

inches per year of rain, has largely clay soils, and is extremely flat. This geology has 

required local governments in the area to plan, design, build, and operate an extensive 

network of drainage conveyance and detention systems, which may be interpreted as 

tributaries of downstream waters. For example, the Harris County Flood Control District 

operates over 2,500 miles of open channels, the City of Houston operates hundreds of 

miles of roadside ditches, and Houston area counties operate hundreds of miles of 

roadside ditches as well. (p. 1-2)

Agency Response: See Summary Response. The final rule provides clarity 

concerning which ditches and other landscape features and water bodies are not 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

308

waters of the U.S. The final rule excludes from CWA jurisdiction ephemeral and 

intermittent ditches that are not a relocated tributary or excavated in a tributary. 

The rule also excludes ditches that do not flow, either directly or through another 

water, into a water identified in paragraphs (a)(1) through (3) of this section. In 

addition, the final rule excludes stormwater control features created in dry land. 

These features remain excluded even if they meet any of the paragraph (a) 

categories. 

The rule only provides a definition for “waters of the U.S.” The rule does not affect 

the CWA statute in which authorization may be required for discharges of dredged 

and/or fill material into or other activities such as Section 402 permitting within 

waters of the U.S. In addition, the rule does not affect activities that are currently 

exempt from CWA regulation under Section 404(f)(1) nor will it affect the tools such 

as the use of general permits that the Corps implements for expeditious review and 

efficiency in processing permit applications for discharges of dredged and/or fill 

material into waters of the U.S. 

The rule improves efficiency and provides needed clarity regarding jurisdictional 

determinations, reducing uncertainties and delays. The rule is not designed to 

subject entities of any size to any specific regulatory burden. Rather, it is designed 

to clarify the statutory scope of the “waters of the U.S.”, consistent with existing 

regulations and Supreme Court precedent.

Please also see summary response at 7.4.4 that explains a new exclusion for 

stormwater control features.

FMC Corporation (Doc. #15533)

12.430 It appears that little effort was made to include western states and other western based 

entities in the development and peer review of this rule. The western U.S. has unique 

situations, including how water quantity, as well as water quality, is regulated. The CWA 

recognizes this through language dealing with produced water from oil and gas 

operations as well as language stating that the authority of states to regulate water 

quantities within their borders shall not be impaired. These sections in the CWA were in 

large part a response to arid western states concerns over the reach of the CWA. We are 

concerned that the proposed rule was not adequately informed, and encourage EPA to 

pause the rulemaking process and develop ways to ensure adequate input from the West. 

(p. 2)

Agency Response: See Summary Response. The agencies have and do engage in 

sustained coordination and partnerships with states and other partners. The rule 

public comment period was extended twice to ensure adequate time for comment 

and during that time hundreds of stakeholder and outreach meetings were held, 

including some with state agencies. The agencies believe the proposed rule will 

result in increased clarity and certainty regarding the identification of “waters of 

the U.S.” The agencies received many helpful comments on the proposed rule which 

resulted in refinement of the final rule to provide further clarity and certainty to the 

regulated public. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

309

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process predictable, efficient, and effective. The initial phase of 

implementing the rule will require education and training for agency staff as well as 

other stakeholders and the regulated public, which will include regionally-based 

training to ensure consistent and efficient implementation of the rule.

The agencies recognize that the state and local governments have well-defined and 

long-standing relationships in implementing affected CWA programs and these 

relationships will not be altered. This action will not have substantial direct effects 

on the states, on the relationship between the national government and the states, or 

on the distribution of power and responsibilities among the various levels of 

government. The agencies are not restricting the states’ efforts in developing or 

implementing statewide permits under CWA programs as a result of the rule.

The rule does not diminish or in any way detract from the intent and purpose of 

CWA sections 101(b) and 101(g) regarding the states’ primary and exclusive 

authority over water allocation and water rights administration, as well as statefederal co-regulation of water quality. The agencies worked hard to ensure the rule 

reflects these fundamental principles.

Water Advocacy Coalition (Doc. #17921.1)

12.431 Bed, banks, and OHWM can be seen even in features without ordinary flow. Particularly 

in the desert and semi-arid regions of the United States, field indicators of an OHWM can 

develop very easily. Naturally sparse vegetation and erodible soils of the deserts 

combined with monsoon storms results in a significant number of small channels (often 

only a few feet in width) yet with a defined bed and bank. Many of these features would 

likely not develop in humid regions of the U.S. and would be representative of 

unregulated sheet flow or upland-vegetated swales in humid regions. Therefore, the arid 

States are unfairly burdened by the OHWM concept, compared to Eastern and humid 

states. Crossing the threshold from a non-jurisdictional erosion feature to an albeit small 

channel with an OHWM in the desert occurs easily and is a significant source of 

jurisdictional uncertainty. Many of these exceedingly small channels would now become 

per se jurisdictional tributaries, even with discontinuous surface connections to another 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

310

water and a speculative nexus to traditional navigable waters, interstate waters, territorial 

seas, and/or impoundments. (p. 44)

Agency Response: See Summary Response. See the preamble section on 

“Tributaries” for additional information. The agencies believe that the 

characteristics required to meet the definition of “tributary” are indicators of 

sufficient volume, flow, and duration such that the tributaries have a significant 

nexus, either alone or in combination with other tributaries in the region, to the 

downstream (a)(1) to (a)(3) waters. The definition is based on the best available 

science, the intent of the Clean Water Act, and caselaw, and is consistent with 

current practice. 

The ordinary high water mark manuals developed by the Corps provide 

appropriate indicators to consider when delineating the ordinary high water mark 

in the field. Examples of OHWM indicators may include breaks in the slope, 

changes in vegetation, and changes in the sediment texture and substrate. The 

OHWM manual for the Arid West acknowledges the challenges in identifying the 

ordinary high water mark in the region; however, it provides the applicable 

indicators in the region to use when delineating the lateral extent of the OHWM in 

the Arid West. The agencies believe the clarity and certainty provided in the rule 

will result in further consistency, while still allowing for regional variation in 

implementation that may be necessary based on regional differences in aquatic 

resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process predictable, efficient, and effective. The initial phase of 

implementing the rule will require education and training for agency staff as well as 

other stakeholders and the regulated public, which will include regionally-based 

training to ensure consistent and efficient implementation of the rule.

Virginia Manufactures Association (Doc. #18821)

12.432 The Virginia General Assembly and the Virginia Department of Environmental Quality 

have enacted a comprehensive regulatory scheme that implements the federal Clean 

Water Act, and in many instances expands beyond the Act in order to address the unique 

water quality and natural resource characteristics of Virginia. The Proposal creates 

uncertainty because it fails to recognize the unique features of state programs, developed 

over decades of federal/state partnership, instead imposing a one-size-fits-all federal 

mandate without regard to individual state geography, climate, and water quality needs. 

(p. 2)

Agency Response: See Summary Response. The agencies recognize that the state 

and local governments have well-defined and long-standing relationships in 

implementing affected CWA programs and these relationships will not be altered. 

This action will not have substantial direct effects on the states, on the relationship 

between the national government and the states, or on the distribution of power and 

responsibilities among the various levels of government. The agencies are not 

restricting the states’ efforts in developing or implementing statewide permits under 

CWA programs as a result of the rule. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

311

The agencies recognize that there are appropriate levels of regional variation in 

implementation of the regulations; however, the agencies strive for national 

consistency. The agencies believe the clarity and certainty provided in the rule will 

result in further consistency, while still allowing for regional variation in 

implementation that may be necessary based on regional differences in aquatic 

resources; for example, the ordinary high water mark regional manuals or the 

regional supplements to the wetland delineation manual, both of which are outside 

the scope of this rulemaking but are related resources. The agencies understand 

that there is regional variation; however, the rule aims to reduce any inconsistencies 

and provide a bright line of clarity for the agencies, state partners, and the 

regulated public. The Corps will develop the tools necessary to assist its staff with 

the jurisdictional determination process specific to section 404 in the 

implementation of the final rule to make the process predictable, efficient, and 

effective. The initial phase of implementing the rule will require education and 

training for agency staff as well as other stakeholders and the regulated public, 

which will include regionally-based training to ensure consistent and efficient 

implementation of the rule.

12.433 The Agencies’ categorical approach to defining waters as jurisdictional, particularly the 

blanket per se inclusion of all tributaries, regardless of flow, is not only legally deficient, 

but would also be entirely unworkable in practice, particularly for implementation 

uniformly across all 50 states. The water features that are prevalent in Virginia are 

wholly different than those in other regions. Among other things, the Commonwealth is 

home to far more ephemeral waters than in other regions of the country. Under the 

Proposal such water would be categorically jurisdictional. Yet the Proposal does not 

account for geographic variability. The inevitable result is that certain states and regions, 

like Virginia, are going to be disproportionately affected by the Proposal. (p. 2)

Agency Response: See Summary Response. The rule defines “tributary” by 

emphasizing physical characteristics created by sufficient volume, frequency and 

duration of flow; and the concept that a water must contribute flow, either directly 

or through another water, to a traditional navigable water, interstate water, or the 

territorial seas. The definition is based on the best available science, the intent of 

the Clean Water Act, and caselaw, and is also consistent with current practice. The 

agencies believe that the characteristics required to meet the definition of 

“tributary” are indicators of sufficient volume, flow, and duration such that the 

tributaries have a significant nexus, either alone or in combination with other 

tributaries in the region, to the downstream (a)(1) to (a)(3) waters.

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

312

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

The final rule was developed to increase CWA program predictability and 

consistency by increasing clarity as to the scope of “waters of the United States” 

protected under the Act. The agencies note that the final rule provides for certain 

categories of waters that are jurisdictional by rule, which will result in a more 

efficient process.

Southern Nevada Home Builders Association (Doc. #3251)

12.434 We believe that the EPA’s proposed rule changes will have the effect of significantly 

expanding federal jurisdiction under the CWA to include small streams, dry washes, 

ephemeral streams and washes and other areas in Nevada and other arid southwestern 

states not previously subject to, or intended by Congress to be subject to, jurisdiction 

under the CWA. We understand from various statements that have been made by certain 

officials within the EPA that the stated purpose for the changes is to add clarity and

certainty to the CWA and the rules and regulations promulgated by the EPA and Army 

Corps of Engineers thereunder. However, regardless of whether the expansion of 

jurisdiction is intentional or an unintended consequence, we are very concerned with the 

current proposed rules, which do not appear to adequately consider or address numerous 

unique geographic, hydrologic or climate conditions applicable to arid, southwestern 

states like Nevada. (p. 1)

Agency Response: See Summary Response. There are appropriate levels of 

regional variation in implementation of the regulations; however, the agencies strive 

for national consistency. This appropriate regional variation can make it appear 

that there are inconsistencies in program execution. The rule aims to reduce any 

inappropriate inconsistencies and provide a bright line of clarity for the agencies, 

state partners, and the regulated public. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources. Tools exist that recognize this regional variation 

and provide assistance to field staff; for example, the ordinary high water mark 

regional manuals or the regional supplements to the wetland delineation manual, 

both of which are outside the scope of this rulemaking but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process predictable, efficient, and effective. The initial phase of 

implementing the rule will require education and training for agency staff as well as 

other stakeholders and the regulated public, which will include regionally-based 

training to ensure consistent and efficient implementation of the rule. 

The agencies believe that the characteristics required to meet the definition of 

“tributary” are indicators of sufficient volume, flow, and duration such that the 

tributaries have a significant nexus, either alone or in combination with other 

tributaries in the region, to the downstream (a)(1) to (a)(3) waters. The definition is 

based on the best available science, the intent of the Clean Water Act, and caselaw, 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

313

and is consistent with current practice. Landscape features that do not meet the 

definition of tributary are excluded from CWA jurisdiction.

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

12.435 The agencies’ interpretation of the phrase “ordinary high water mark” is overbroad as 

applied to ephemeral washes in the arid West: One of the fundamental flaws in the 

agencies’ construction of the term “tributary” is that it contains no clear definition of the 

upstream limit of jurisdiction. Current Corps rules and agency guidance indicate that the 

ordinary high water mark OHWM is the lateral limit of jurisdiction for non-wetland 

waters and that the upstream limit of this jurisdiction follows the watercourse until the 

OHWM is no longer “perceptible.” 33 C.F.R. § 328.4(c)(1); 51 Fed. Reg. 41206, 41217 

(Nov. 13, 1986). The OHWM is intended to determine the extent of jurisdiction once a 

water has been determined to be jurisdictional. It was never intended to establish 

jurisdiction in and of itself. Nevertheless, the proposal effectively would use OHWM as 

a basis for determining jurisdiction in the first instance. Any channel that is part of a 

system that connects to a downstream TNW or interstate water is automatically regulated 

as a tributary if it has an OHWM and a bed and banks, and jurisdiction would extend to 

the point where the channel begins. See 79 Fed. Reg. at 22202. In the arid West, this 

means that the determination of jurisdiction upstream is almost certainly in an ephemeral 

wash, where application of OHWM is suspect at best.

The OWHM is the traditional limit of jurisdiction on navigable-in-fact waters and was 

imported into the Section 404 program out of administrative necessity, without any real 

analysis of whether it applied. See 33 C.F.R. § 329.11(a)(1) (definition of OHWM under 

the Rivers and Harbors Act program); U.S. v. Cameron, 466 F. Supp. 1099, 1111 (M.D. 

Fla. 1978) (discussing the origin and meaning of the term); 42 Fed. Reg. 37122, 37129 

(July 19, 1977) (discussing the origin of the term in Rivers and Harbors Act program and 

its use in the 404 program). The Corps’ regulations provide: “The term ordinary high 

water mark means that line on the shore established by the fluctuations of water and 

indicated by physical characteristics such as clear, natural line impressed on the bank, 

shelving, changes in the character of soil, destruction of terrestrial vegetation, the 

presence of litter and debris, or other appropriate means that consider the characteristics 

of the surrounding areas.” 33 C.F.R. § 328.3(e) (italics in original). The OHWM is 

“intended to include those areas where water will be present with predictable regularity.”

Id. At its core, it defines the area where terrestrial vegetation cannot survive because of 

the constant presence of water. This is of questionable application in a desert 

environment where vegetation is already sparse and may be totally absent because of the 

absence of water. 

Although the L.A. District has attempted to develop guidance for identification of the 

OHWM in arid systems, the guidance suffers from the same flaws that application of 

OHWM concepts to desert washes has traditionally exhibited: it is not difficult to apply 

on major ephemeral systems where well-established vegetation lines are present, but it 

lacks any measurable, comprehensive standard for determining where jurisdiction ends at 

the upstream limit. See Lichvar and McColley, A Field Guide to the Identification of the 

Ordinary High Water Mark (OHWM) in the Arid West Region of the Western United 

States: A Delineation Manual (August 2008). At the top of the watershed, there is often 

evidence of water flow (“presence of litter and debris”) without a well-defined channel. 
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314

Given this lack of precision, the agencies are free to arbitrarily extend jurisdiction far up 

the watershed, past the point where any meaningful aquatic resources are present. 

Proof of the difficulty of applying the OHWM at the upstream limit of ephemeral systems 

is demonstrated by the guidance documents issued in the wake of Rapanos. See U.S. 

Army Corps of Engineers, Jurisdictional Determination Form – Instructional Guidebook 

(2007) (“Jurisdictional Guidebook”). The Jurisdictional Guidebook contains numerous 

photographs of ditches and what it refers to as ephemeral tributaries and then includes a 

highlighted line superimposed on the photograph to identify where the OHWM is 

located. See generally, id., p. 22 (Photo 18) (intermittent tributary), p. 23 (Photo 20) 

(ephemeral tributary but which is more of an erosional feature) & p. 25 (photos 27 and 

28) (ephemeral tributaries). The fact that the OHWM has to be highlighted to be 

identified demonstrates its inapplicability in this context, i.e., it is not a clear line 

impressed on the bank. The same can be said of the OHWM identified on ditch features 

in the Jurisdictional Guidebook. Id., p. 25 (photo 29) (stain mark on the side of a concrete 

ditch identified as OHWM), p. 36 (Photo 51) (non-jurisdictional ditch with an OHWM) 

& p. 37 (Photos 53 and 54) (flowing ditches with an OHWM highlighted). Again, these 

are not clear lines impressed on a bank. 

Thus, the use of OHWM as a basis to determine jurisdiction is highly questionable. 

Justice Scalia was dismissive of this practice (“This interpretation extended ‘the waters of 

the United States’ to virtually any land feature over which rainwater or drainage passes 

and leaves a visible mark – if only ‘the presence of litter and debris’”), Rapanos, 547 

U.S. at 715, and Justice Kennedy merely speculated that use of an OHWM to identify 

jurisdiction “presumably provides a rough measure of the volume and regularity of flow.”

Id. at 781. As is evident from the foregoing discussion, the use of OHWM on ephemeral 

systems, particularly at the top of the system, does not provide a “rough measure of 

flow.” Justice Kennedy goes on to say that “[a]ssuming it is subject to reasonably 

consistent application . . ., it may well provide a reasonable measure of whether specific 

minor tributaries bear a sufficient nexus with other regulated waters to constitute 

‘navigable waters’ under the Act.” Id. In referencing consistent application, Justice 

Kennedy cites to the General Accounting Office report from 2004 that specifically 

criticized the Corps for inconsistent practices. See General Accounting Office, Report to 

the Chairman, Subcommittee on Energy Policy, Natural Resources and Regulating 

Affairs, Committee on Reform, House of Representatives, Waters and Wetlands: Corps of 

Engineers Needs to Evaluate Its District Office Practices in Determining Jurisdiction 

(GAO-04-297), at pp. 3-4 (Feb. 2004). Those practices have not been subject to any 

national rulemaking that sets real standards on where jurisdiction begins and ends at the 

top of the watershed, nor have existing guidance documents been subject to public 

participation. This is simply too slender (and inconsistent) a reed on which to rest CWA 

jurisdiction.

Recommendation: The agencies should not consider the presence of an OHWM – as 

currently interpreted by the agencies in arid regions – to be sufficient evidence to assert 

jurisdiction in the absence of other evidence of connectivity. (p. 15-17)

Agency Response: The ordinary high water mark definition and manuals are not 

within the scope of this rulemaking effort. See Summary Response. See the 

preamble section on “Tributaries” for additional information. The agencies believe 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

315

that the characteristics required to meet the definition of “tributary” are indicators 

of sufficient volume, flow, and duration such that the tributaries have a significant 

nexus, either alone or in combination with other tributaries in the region, to the 

downstream (a)(1) to (a)(3) waters. The definition is based on the best available

science, the intent of the Clean Water Act, and caselaw, and is consistent with 

current practice. The ordinary high water mark manuals developed by the Corps 

provide for the appropriate indicators to consider when delineating the ordinary 

high water mark in the field. Such indicators may include breaks in the slope, 

changes in vegetation, and changes in the sediment texture and substrate. The 

manual for the Arid West acknowledges the challenges in identifying the ordinary 

high water mark in the region; however, it provides the applicable indicators in the 

region to use when delineating the lateral extent of such waters in the Arid West. 

The agencies believe the clarity and certainty provided in the rule will result in 

further consistency, while still allowing for regional variation in implementation 

that may be necessary based on regional differences in aquatic resources. 

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 in the implementation of the final rule 

to make the process predictable, efficient, and effective. The initial phase of 

implementing the rule will require education and training for agency staff as well as 

other stakeholders and the regulated public, which will include regionally-based 

training to ensure consistent and efficient implementation of the rule.

CalPortland Company (Doc. #14590)

12.436 The changes to the CWA jurisdictional language will be particularly impactful in the 

arid/semi-arid west, where ephemeral streams and isolated “other waters” are prominent 

features of the landscape. Given the specific hydrologic and geologic desert conditions 

that prevail in this area, the proposed rule’s expansion of CWA requirements goes far 

beyond anything that could be justified as a reasonable interpretation of the CWA’s 

jurisdiction over “navigable waters.” The proposed rule inappropriately proposes to 

expand CWA jurisdiction to features that are effectively dry land so long as they ever –

or might ever – contribute the slightest increment of water flow to downstream traditional 

navigable waters, no matter how small that flow or how far away a navigable water might 

be. Such an expansion would impose substantial costs and administrative burdens upon 

land development activities in the arid southwest, negatively affecting the local economy 

with no discernible environmental benefit. (p. 2)

Agency Response: See Summary Response. See the preamble section on 

“Tributaries” for additional information. The scope of regulatory jurisdiction in 

this rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. 

See the Economic Analysis for additional information on predicted change in 

jurisdiction. The agencies believe that the characteristics required to meet the 

definition of “tributary” are indicators of sufficient volume, flow, and duration such 

that the tributaries have a significant nexus, either alone or in combination with 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

316

other tributaries in the region, to the downstream (a)(1) to (a)(3) waters. The 

definition is based on the best available science, the intent of the Clean Water Act, 

and caselaw, and is consistent with current practice. 

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process predictable, efficient, and effective. The initial phase of 

implementing the rule will require education and training for agency staff as well as 

other stakeholders and the regulated public, which will include regionally-based 

training to ensure consistent and efficient implementation of the rule.

Business Alliance for a Sound Economy (Doc. #14898)

12.437 The Proposed Rule will unnecessarily expand the involvement of the Corps in 

development projects in coastal North Carolina without commensurate environmental 

benefits. 

North Carolina already has in place a set of robust regulatory programs that protect 

surface waters, wetlands, and groundwater beyond the scope of Clean Water Act 

jurisdiction, especially in the coastal region where BASE members operate. The state has 

regulations that apply specifically to wetlands that the Corps has determined to be nonjurisdictional. See 15A N.C. Admin. Code Section .1300. There is a set of regulations 

that regulates development activities in riparian buffers adjacent to surface waters. See 

generally 15A N.C. Admin. Code 2B.223. There is a state stormwater program, separate 

from and in addition to the NPDES stormwater program that applies in the coastal 

counties and around certain other “high quality waters.” See 15A N.C. Admin. Code 

Section .1000. The state’s Coastal Area Management Act that affects development of 

coastal wetlands, which includes be isolated wetlands. E.g., 15A N.C. Admin. Code 

7H.0205. Additionally, the Coastal Area Management Act does not apply solely to the 

discharge of fill material in a wetland but also regulates a variety of other activities that 

impact coastal wetland areas. 15A N.C. Admin. Code 7H.0205(e). Furthermore, 

groundwater is regulated by rules located in the North Carolina Administrative Code at 

Title 15A, Subchapter 2L. Under the subchapter, groundwater is classified according to 

best usage and assigned numeric water quality standards. Discharges of pollutants to 

groundwater can trigger corrective action requirements. Given this thorough regulatory 

regime, there is no need for additional federal regulation of surface waters and wetlands 

(p. 1-2)

Agency Response: See Summary Response. The agencies recognize that the state 

and local governments have well-defined and long-standing relationships in 

implementing affected CWA programs and these relationships will not be altered. 

This action will not have substantial direct effects on the states, on the relationship 

between the national government and the states, or on the distribution of power and 

responsibilities among the various levels of government. The agencies are not 

restricting the states’ efforts in developing or implementing statewide permits under 

CWA programs or state laws as a result of the rule. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

317

ERO Resources Corporation (Doc. #14914)

12.438 In the arid West, the current Section 404 policies and practices steer many project 

proponents away from alternatives that involve rivers and perennial streams and toward 

alternatives that involve dry ephemeral and intermittent drainages that are isolated from 

and/or lack a significant nexus to a TNW because such drainages are non-jurisdictional 

and any discharge of dredged or fill material into them will not require a Section 404 

permit. Avoidance of the need for a Section 404 permit is frequently a component for 

evaluating water supply project alternatives in the arid West (Dougherty et al. 2010). 

Currently, several proposed “off-channel” reservoirs in Colorado are located on 

ephemeral or intermittent drainages determined to be non-jurisdictional based on 

isolation. This same approach is also true for other types of projects in the arid West 

including pipelines, roads and drill pads.

Because current policy and practices steer many projects away from rivers and perennial 

streams toward non-jurisdictional ephemeral and intermittent drainages, fewer projects 

are proposed in jurisdictional waters and wetlands and there are fewer impacts on the 

resources and functions associated with jurisdictional waters and wetlands. The current 

regulations, policies, and practices work as they should to provide incentives to project 

proponents to develop alternatives that avoid impacts on these waters and wetlands, with 

greater potential to provide significant resources and functions (i.e., those with perennial 

water sources). As proposed, the rule would eliminate this incentive because all 

drainages that meet the definition of “tributary” would he jurisdictional by rule (including 

normally dry ephemeral drainages). In other words, under the proposed rule, there would 

no longer be an incentive for a project proponent to avoid perennial drainages because all 

tributaries would be jurisdictional by rule. This will result in greater adverse effects on 

the resources associated with perennial drainages. (p. 5-6)

Agency Response: See Summary Response. See the Technical Support Document 

for a summary of the scientific basis for the final rule. The rule is not designed to 

subject entities of any size to any specific regulatory burden. Rather, it is designed 

to clarify the statutory scope of the “waters of the U.S.” consistent with existing 

regulations and Supreme Court precedent. In developing the rule, the agencies 

considered all relevant implications that will result from the rule implementation 

including legal, economic, and implementation considerations, as well as the 

resulting effect on the regulated public. Prior to this final rule, most ephemeral and 

intermittent streams were jurisdictional waters of the U.S. afforded the same 

coverage as perennial streams. 

The final rule does not change the agencies’ mitigation sequencing (i.e., avoid, 

minimize, compensate) and the provisions of the 404(b)(1) guidelines (40 CFR part 

230). The final rule also does not change the compensatory mitigation requirements 

under 33 CFR part 332. 

12.439 The proposed rule needs to recognize the SWANCC and Rapanos opinions and preserve 

the ability to determine that a water or wetland is non-jurisdictional because it is isolated. 

As discussed below, determinations of non-jurisdiction for ephemeral and intermittent 

drainages based on isolation occur in the arid West. These non-jurisdictional 

determinations include: 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

318

 Ephemeral and intermittent drainages with substantial breaks in jurisdictional features

where the break in jurisdictional features makes it unlikely that flows reach a WUS.

 Ephemeral and intermittent drainages with no breaks in jurisdictional features that 

contain no surface flow during most years due to dry conditions and/or human surface 

and shallow ground water diversions that reduce streamflow to zero.

 Erosional gullies that do not have jurisdictional features except where they transport 

irrigation runoff.

 Ephemeral and intermittent drainages where the channel ends in a fan or sheet flows 

over the landscape and makes it unlikely that flows reach a WUS.

 Ephemeral and intermittent drainages where the channel loses definition due to 

agricultural or other activities that make it unlikely that flows reach a WUS.

 Ephemeral and intermittent drainages where the channel loses surface or subsurface 

that make it unlikely that flows reach a WUS.

 Ephemeral and intermittent drainages where the channel ends in a closed basin and it 

is unlikely that flows reach a WUS.

Currently, the channel above these breaks in jurisdiction would be considered isolated 

and/or lack a significant nexus to a WUS, even if portions of the channel above the 

breaks in jurisdiction had a bed and banks or an OHWM. These situations occur with 

enough frequency in the arid West that elimination of the criteria for isolation associated 

with breaks in jurisdiction and making ephemeral and intermittent drainages 

jurisdictional by rule would substantially increase the scope of CWA jurisdiction in the 

arid West. (p. 7-8)

Agency Response: See Summary Response. See the Technical Support Document 

for a summary of the legal basis for the final rule. See the updated Economic 

Analysis for additional discussion on predicted change in jurisdiction. The agencies 

received many helpful comments on the proposed rule which resulted in refinement 

of the final rule to provide further clarity and certainty to the regulated public. 

Some of these refinements included expansion of the exclusions in paragraph (b), 

clarification of the definition of “adjacent” and “tributary” and refinement of the 

definition of “significant nexus”. 

The scope of regulatory jurisdiction in this rule is narrower than that under the 

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

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

important qualifiers on some existing categories such as tributaries. 

The final rule was developed to increase CWA jurisdiction predictability and 

consistency by increasing clarity as to the scope of “waters of the United States” 

protected under the Act. The final rule provides for certain categories of waters 

that are jurisdictional by rule, which will result in a more efficient process. The 

definition of “tributary” and the preamble to the final rule in the “Tributaries” 

section discuss breaks in the ordinary high water mark of a tributary and the lack 

of scientific support for severing jurisdiction based on a break that can be 

reestablished. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

319

The agencies believe that the characteristics required to meet the definition of 

“tributary” are indicators of sufficient volume, flow, and duration such that the 

tributaries have a significant nexus, either alone or in combination with other 

tributaries in the region, to the downstream (a)(1) to (a)(3) waters. The definition is 

based on the best available science, the intent of the Clean Water Act, and caselaw, 

and is consistent with current practice. 

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process predictable, efficient, and effective. The initial phase of 

implementing the rule will require education and training for agency staff as well as 

other stakeholders and the regulated public, which will include regionally-based 

training to ensure consistent and efficient implementation of the rule.

12.440 The agencies need to consider the unintended consequences of the proposed rule. If 

implemented as proposed, the determination of the jurisdictional status of an “other 

water” will potentially take on great regional significance as numerous concerned parties 

in a watershed will closely monitor the JDs of “other waters” that could result in an entire 

class of wetlands or waters being determined jurisdictional. The JD process, which in the 

past has typically been between a permit applicant and the Corps, will become a 

watershed-wide process with multiple parties entering into the jurisdictional debate in an 

effort to protect their interests. This will not simplify or streamline the JD process and is 

likely to increase delays, conflicts, confusion, and challenges. This is particularly likely 

to happen in the arid West due to the large size of the single-entry point watersheds, the 

variability of waters within the watersheds, and numerous dry drainages. (p. 27)

Agency Response: See Summary Response. See the Technical Support Document 

for a summary of the applicable scientific basis for the final rule. Although the 

agencies believe that additional efficiencies will be gained through implementation 

of the rule, all jurisdictional determinations are site-specific, using available 

information for that review area. Site-specific conditions are considered when 

determining whether a water meets the (a)(7) or (a)(8) category requiring a casespecific significant nexus determination. The review area for a jurisdictional 

determination is generally limited to the area in which impacts to waters of the U.S. 

may occur. Although waters outside the landowner’s review area may be 

considered in a significant nexus determination the jurisdictional determination is 

only specific to waters on the landowner’s review area. Previous jurisdictional 

determinations for (a)(7) and (a)(8) waters made in the single point of entry 

watershed may be used in future jurisdictional determinations in the same single 

point of entry watershed. Only the agencies, and applicable states and tribes, have 

the authority to make a jurisdictional determination under the Clean Water Act. 

Perkinscoie (Doc. #15362)

12.441 The Southwest Developers request that the agencies reconsider and rework the Proposed 

Rule’s imposition of CWA jurisdiction on a certain category of regional aquatic features 

that are prevalent in the southwest, known as arid headwater streams. These streams, 

often found in arid areas in Arizona, Nevada, California, and other states where the 

Southwest Developers conduct development operations, arc both ephemeral and 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

320

intermittent. Moreover, they have characteristics like sporadic and variable f1ow, rapid 

infiltration and transpiration, vegetation uptake, channel deformation, isolation due to 

development or other impoundment, and distance to navigable or interstate waters. 

Because there is no significant connection between these arid headwaters and 

downstream navigable waters, they cannot be jurisdictional under Supreme Court 

precedent. Yet under the Proposed Rule, the agencies would extend CWA coverage over 

these regional aquatic features.

The Southwest Developers believe this proposed extension of jurisdiction is unwarranted. 

As a practical matter, if the Proposed Rule is finalized as currently written and unjustified 

jurisdiction is extended over these arid headwaters, it is likely to result in the Southwest 

Developers’ inability to develop in certain areas in the southwest or, at a minimum, to 

bear unfair and unwarranted increases in the time and costs they incur for permitting their 

projects. Accordingly, for the purpose of encouraging the agencies to revise the 

Proposed Rule, we are providing the agencies with technical information and analysis 

relevant to the unique hydrologic conditions of these regional features, based on the 

attached report prepared by SWCA Environmental Consultants (the “SWCA Report”). 

We have already provided some of this information in our April 10, 2014 comments on 

EPA’s draft report entitled Connectivity of Streams and Wetlands to Downstream 

Waters: A Review and Synthesis of the Scientific Evidence (Sep. 2013 External Review) 

(“Draft Connectivity Report”) and the Science Advisory Board’s (“SAB”) draft review of 

the Draft Connectivity Report. Since our comments, the SAB has issued its final review 

of the Draft Connectivity Report (Oct. 17, 2014). 

In a nutshell, the Southwest Developers submit that the Proposed Rule incorrectly deems 

certain aquatic features common in the southwest as jurisdictional without a scientific, 

and therefore without a legal, basis for doing so. As described in the SWCA Report, 

these arid headwaters often are not significantly connected to navigable waters. As a 

result, there is no basis for deeming these streams jurisdictional when they do not often 

(and maybe never) have an influence – much less a significant influence – on 

downstream waters. See SWCA Report at 1, 8, 12. Indeed, under the current Rapanos

Guidance, these streams are almost always deemed non-jurisdictional after an on-theground significant nexus determination. Id. This is the crux of the Southwest 

Developers’ concern: Rapanos requires a significant nexus between a headwater stream 

and a downstream water in order to deem that headwater jurisdictional. The Proposed 

Rule would do away with that requirement on the basis of the scientific conclusions of 

“connectivity” in the Draft Connectivity Report. But those scientific conclusions are 

without merit. (p. 1-2) 

Agency Response: See Summary Response. See the Technical Support Document 

for a summary of the legal basis for the final rule. See the updated Economic for 

additional discussion on predicted change in jurisdiction. The scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

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

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

existing categories such as tributaries. 

The final rule was developed to increase CWA program predictability and 

consistency by increasing clarity as to the scope of “waters of the United States” 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

321

protected under the Act. The agencies note that the final rule provides for certain 

categories of waters that are jurisdictional by rule, which will result in a more 

efficient process. The definition of “tributary” and the preamble to the final rule in 

the “Tributaries” section provide further discussion on tributaries. 

The agencies believe that the characteristics required to meet the definition of 

“tributary” are indicators of sufficient volume, flow, and duration such that the 

tributaries have a significant nexus, either alone or in combination with other 

tributaries in the region, to the downstream (a)(1) to (a)(3) waters. The definition is 

based on the best available science, the intent of the Clean Water Act, and caselaw, 

and is consistent with current practice. The goal of the CWA is to protect the 

chemical, physical, and biological integrity of our nation’s waters, including 

headwater streams which meet the definition of tributary. The agencies received 

many helpful comments on the proposed rule which resulted in refinement of the 

final rule to provide further clarity and certainty to the regulated public.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process predictable, efficient, and effective. The initial phase of 

implementing the rule will require education and training for agency staff as well as 

other stakeholders and the regulated public, which will include regionally-based 

training to ensure consistent and efficient implementation of the rule.

Leigh Hanson, Inc. (Doc. #15781)

12.442 Furthermore, the extension of WOTUS to dry or intermittent streams is particularly 

troubling for sand and gravel operations throughout the southwestern U.S. Mining of 

sand and gravel beyond the floodway, but immediately adjacent to the 100 year 

floodplain, is common in many parts of Nevada, Arizona, New Mexico, Texas and 

California. Mine access roads, haul roads and excavation equipment operate daily within 

the boundaries of the 100 year floodplain. Plant processing equipment is located by 

design just outside the floodplain. The extension of the flood plain boundary to include 

tributaries or dry man-made structures will increase the cost and scope of permitting 

efforts and significantly limit the footprint of existing and future operations, which 

directly reduces the amount of mineable reserves. 

If the inclusion of dry and intermittent streams is applied to 5 year floodplain permit 

renewals in metro Phoenix or Los Angeles, the uncertainty of whether existing 

operations’ permit renewals are approved or denied is significantly heightened. In 

addition, if the extension of floodplain boundaries prompts the involvement of FEMA in 

the permitting process, additional time delays and increased costs will likely result with 

limited benefit. (p. 4)

Agency Response: See Summary Response. Only the agencies, and applicable 

states and tribes, have the authority to make a jurisdictional determination under 

the Clean Water Act. The FEMA floodplain will only be used in the determination 

of whether a water may be considered “adjacent.” The rule is not designed to 

subject entities of any size to any specific regulatory burden. Rather, it is designed 

to clarify the statutory scope of the “waters of the U.S.” consistent with existing 

regulations and Supreme Court precedent. In developing the rule, the agencies 
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322

considered all relevant implications that will result from the rule implementation 

including legal, economic, and implementation considerations, as well as the 

resulting effect on the regulated public. 

The agencies believe the proposed rule will result in increased clarity and certainty 

regarding the identification of “waters of the U.S.” The agencies received many 

helpful comments on the proposed rule which resulted in refinement of the final rule 

to provide further clarity and certainty to the regulated public. None of the existing 

procedures, permitting mechanisms, efficient permitting tools such as general 

permits, or activity exemptions under Section 404(f)(1) 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. Furthermore, the final rule will not directly 

alter the content or implementation of other local, state, or federal mandates as the 

final rule applies solely to the Clean Water Act definition of waters of the U.S. The 

Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 in the implementation of the final rule 

to make the process predictable, efficient, and effective.

NAIOP, Commercial Real Estate Development Association (Doc. #16551)

12.443 It is not clear to us whether arroyos are intended to be regulated as “ephemeral streams.”

However, according to page 4-67 of the report issued to support EPA’s rulemaking. 

Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis 

of the Scientific Evidence (Report), “arroyos are ephemeral streams.” a. The Report 

further concludes at page 4-69 that “Many tributary streams to southwestern rivers are 

ephemeral, but they exert strong influences on the structure and function of the rivers.”

This suggests that EPA and the Corps intend to regulate intermittent, ephemeral streams 

such as arroyos as “tributaries.” Doing so would increase EPA’s jurisdiction 

dramatically as shown on page 4-57 of the report, which is copied below.

We have several concerns.

 The New Definition Does Not Adequately Consider the Varied Nature and Function of 

“Ephemeral Streams.” First, we feel that it is inaccurate to lump different kinds of 

intermittent and ephemeral water flows into the category of “ephemeral streams.” The 

function of the “bed and banks’ and the contribution of the flow to a regulated water vary 

among different types of ephemeral streams. Consider the difference among:

o A stream that flows seasonally as it is fed by snowmelt. Such a stream is likely to 

flow at a relatively steady rate until its source melts out in late summer. It will 

support wildlife and recharge groundwater in a relatively constant manner while it 

is flowing.

o A stream that flows underground in reaches. It is hard to determine whether such 

a flow is “groundwater” (i.e., unregulated by the Clean Water Act), and surely 

such a flow bears a strong connection to groundwater. Such a stream—

sometimes flowing above ground and sometimes below – could have water flow 

year round and still fall under the category of “ephemeral streams.”

o An arroyo (also known as a “wash” or a “gully”). These pathways for storm water 

runoff have formed naturally over time because, for every upward wrinkle of the 
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323

dirt and rock, there is a downward low point into which water has carved a 

downhill path. In some cases, arroyos flow with rain water runoff very rarely. 

When they do flow, it can be with a heavy sudden flow that ends soon thereafter.

 Each of these examples is a very different type of flow. Lumping them all 

together as “ephemeral streams” and regulating them similarly does not 

make sense to us.

 Lack of Clarity as to How Far Upstream. We believe there is a lack of clarity about how 

far upland the Clean Water Act extends. In the case of Smith v. United States Army 

Corps of Engineers, No. 1 :12-CV-01282-MV-LFG, filed in the New Mexico federal 

court in December of 2012, the Corps initially claimed jurisdiction over an arroyo 25 

miles away from the Rio Grande. The Corps later determined that the arroyo did not 

have a significant nexus, and the case was settled.

 This issue is of concern because, with New Mexico’s rugged terrain, there 

are many arroyos and many opportunities for uncertainty.

 Gullies, Rills and Arroyos All Function Similarly. It further does not make sense that 

“gullies and rills” are exempted from WOTUS, but arroyos are not. Functionally, each is 

a path of storm water runoff... runoff which could reach jurisdictional water. From our 

research, the only difference is that “gullies and rills” (to the EPA) are paths on farm 

fields. We found no support in the Report for treating functionally similar storm water 

paths (“gullies and rills” on the one hand and arroyos on the other) differently.

 Recommendation. For the above reasons, we agree with the recommendation of our 

national NAIOP leadership that a more reasonable and justifiable approach is, as a matter 

of policy, to not regulate arid ephemeral streams. Obviously, exceptions to this policy 

also make sense. For example, exceptions based on history such as if ephemeral stream 

has been (a) proven to flow, at a rate that is more than de minimus, into a regulated water,

for a determined number of hours (e.g., 240), for a determined number of years (e.g., 5 

consecutive), based on historic flow, or (b) the Corps has made a case-by-case 

determination under the significant nexus criteria. Given the lack of justification for 

treating ephemeral streams differently than gullies and rills—which function similarly in 

transporting storm water—please replace “(vii) Gullies and rills and non-wetland 

swales” with: (vii) Gullies, rills, non-wetland swales and arid ephemeral streams such as 

arroyos. (p. 1-4)

Agency Response: See Summary Response. See the exclusions under paragraph 

(b) of the final rule and the preamble section on “Waters and Features That Are Not 

Waters of the U.S.” for further clarification on the types of features that are 

excluded under the rule. The agencies received many helpful comments on the 

proposed rule which resulted in refinement of the final rule to provide further 

clarity and certainty to the regulated public. The final rule now requires the 

presence of a bed and bank and another indicator of the ordinary high water mark 

in order for a feature to meet the definition of “tributary.” The agencies believe that 

the characteristics required to meet the definition of “tributary” are indicators of 

sufficient volume, flow, and duration such that the tributaries have a significant 

nexus, either alone or in combination with other tributaries in the region, to the 

downstream (a)(1) to (a)(3) waters. The definition is based on the best available 
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324

science, the intent of the Clean Water Act, and caselaw, and is consistent with 

current practice. The agencies understand the regional variation in indicators such 

as the ordinary high water mark, which was impetus for the regional manuals 

developed by the Corps for the identification of the ordinary high water mark in 

regions such as the arid West. The exclusion in paragraph (b) added the term 

“erosional features that do not meet the definition of tributary” to clarify that such 

features are not jurisdictional under the Clean Water Act. 

Reclamation and Abandoned Mine Lands Divisions (Doc. #12857)

12.444 A large percentage of the closed depression prairie potholes in North Dakota do not 

overflow and don’t contribute any water to the traditional navigable waters. However, it 

appears many of these could be determined to be jurisdictional under the proposed rule 

for other reasons. Also, flows in ephemeral streams located in arid and semi-arid regions 

frequently dissipate before reaching a navigable stream and otherwise provide very little 

water to traditional navigable waters. (p. 2)

Agency Response: See Summary Response. If a prairie pothole meets the terms 

of a category (a)(1)-(a)(6) water then it is jurisdictional by rule. However, if a 

prairie pothole does not meet such categories then it may be considered under (a)(7) 

and would require a case-specific significant nexus determination to ascertain its 

jurisdictional status. The science has demonstrated that such waters can be 

determined similarly situated in the region by rule, and the final rule has done just 

that for the prairie potholes in the prairie pothole region of the U.S. However, the 

prairie pothole still requires a case-specific significant nexus determination to 

determine whether or not it is jurisdictional. 

The final rule further clarifies “significant nexus” by providing a definition under 

paragraph (c) of the term as well as a list of factors to be considered when making 

such a determination for additional clarity and predictability for the regulated 

public. The list of factors includes “contribution of flow,” which may include an 

analysis regarding the hydrologic connection, or absence of such a connection, and 

contribution provided by the prairie pothole. 

The rule defines “tributary” by emphasizing the physical characteristics created by 

sufficient volume, frequency and duration of flow, and that the water contributes 

flow, either directly or through another water, to a traditional navigable water, 

interstate water, or the territorial seas. The definition is based on the best available 

science, intent of the CWA, and caselaw, and is consistent with current practice. 

First, to meet the rule’s definition of “tributary” a water must flow directly or to 

another water or waters which eventually flow to an (a)(1)-(a)(3) water. If an 

ephemeral stream does not contribute such flow to an (a)(1)-(a)(3) water, then it 

would not meet the definition of tributary. Second, the rule requires two physical 

indicators of flow: there must be a bed and banks and an additional indicator of 

ordinary high water mark. A bed and banks and other indicators of ordinary high 

water mark are physical indicators of water flow and are only created by sufficient 

and regular intervals of flow.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

325

Arizona Mining Association (Doc. #13951)

12.445 Dry desert washes are unlikely to have any meaningful biological or chemical impact on 

downstream receiving waters: As noted above, the proposed rule assumes that if any 

feature meets the definition of “tributary” by contributing flow to a downstream regulated 

water, the feature will therefore have a “significant effect on the chemical, physical or 

biological integrity” of such downstream water. This assumption completely falls apart 

when applied to dry desert washes. 

In dry desert washes, flow is an abnormal condition, not the normal circumstance. 

Because sustained presence and flow of water is a necessity for support of biological 

processes or communities, biological processes or communities are simply absent from 

dry desert washes. This lack of biological impact is supported by the attached technical 

comments (prepared by Dr. Benjamin R. Parkhurst, HAF, Inc.). The comments 

addressed “stream connectivity as it relates to the aquatic ecology of ephemeral streams 

in the arid Southwest.” The comments set forth the following important conclusions 

regarding the potential for any aquatic biological connectivity between ephemeral washes 

in the arid West and downstream receiving waters:

 Desiccation is the most important environmental stressor for aquatic life in ephemeral 

drainages in the arid West. When ephemeral drainages in the arid West are dry, which is 

typically their condition, any potential aquatic biological connectivity with downstream 

waters is precluded because of the absence of water and of any aquatic life in the 

ephemeral drainages. 

 Despite the very limited time when ephemeral drainages contain flow as a result of storm 

events, such flows often create hydraulic turbulence and scouring that are major stressors 

for aquatic life. Consequently, even during flow events in ephemeral drainages, it is 

doubtful if any aquatic biological connectivity is occurring because of hydraulic 

turbulence and scouring and because of the lack of aquatic life in ephemeral drainages 

due to desiccation. 

o With respect to chemical processes, the proposed rule notes that “tributaries can 

influence the chemical composition of downstream waters, through the transport 

and removal of chemical elements and compounds, such as nutrients, ions, 

dissolved and particulate organic matter, pollutants, and contaminants” and that 

“ecosystem processes in tributaries transform, remove, and transport these 

substances to downstream waters.” 79 Fed. Reg. at 22205. Chemical 

transformations of materials are one of the primary reasons for the agencies 

attempting to expand their jurisdiction beyond TNWs and upstream into 

tributaries. However, such chemical transformations are dependent on flows in 

the channel – during high flows there is limited potential for any chemical 

transformations. In the arid West, water flows in ephemeral drainage features are 

“flashy” – water moves quickly across landscapes and then dissipates. The 

potential for chemical transformation from “channels” that carry this type of 

flashy or high flows is minimal to non-existent. 

o Due to infrequent flow and other related factors, ephemeral washes in the arid 

West lack relevant chemical or biological processes that could result in any 

identifiable chemical or biological impact on downstream receiving waters.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

326

Consequently, any justification for asserting jurisdiction over ephemeral washes 

in the arid West must be solely based on its connection to TNWs through a 

potential significant physical flow connection. However, as noted above, most

ephemeral washes, especially those washes located some distance from a TNW, 

lack even this characteristic.

o In summary, the point at which ephemeral washes in the arid West may have 

sufficient functionality so as to affect downstream receiving waters is unknown 

and may not exist. As noted in the proposed rule, the mere existence of a 

potential connection “does not by itself establish that it is a “significant nexus”; 

rather, “there is a gradient in the relation of waters to each other.” 79 Fed. Reg. at 

22193. The agencies have entirely ignored these principles as applied to 

ephemeral drainages, in particular ephemeral drainages in the arid West by 

automatically extending CWA jurisdiction to all such drainages unless they 

qualify as a narrowly defined gully or rill. It is improper from both a scientific 

and legal perspective to assume that all dry desert washes have sufficient 

functionality to have a significant impact or nexus to downstream TNWs. (p. 13-

15)

Agency Response: See Summary Response. There are appropriate levels of 

regional variation in implementation of the regulations; however, the agencies strive 

for national consistency. This appropriate regional variation can make it appear 

that there are inconsistencies in program execution. The rule aims to reduce any 

inappropriate inconsistencies and provide a bright line of clarity for the agencies, 

state partners, and the regulated public. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources. Tools exist that recognize this regional variation 

and provide assistance to field staff; for example, the ordinary high water mark 

regional manuals or the regional supplements to the wetland delineation manual, 

both of which are outside the scope of this rulemaking but are related resources.

The scientific literature demonstrates that streams, individually or cumulatively, 

exert a strong influence on the chemical, physical, and biological integrity of 

downstream waters. All tributary streams, including perennial, intermittent, and 

ephemeral streams, are chemically, physically, and biologically connected to 

downstream rivers via channels and associated alluvial deposits where water and 

other materials are concentrated, mixed, transformed, and transported. 

The final rule defines tributary and tributaries. The terms tributary and tributaries 

mean a water that contributes flow, either directly or through another water 

(including an impoundment identified in paragraph (a)(4) of this section), to a water 

identified in paragraphs (a)(1) through (3) of this section, and that is characterized 

by the presence of the physical indicators of a bed and banks and an ordinary high 

water mark. These physical indicators demonstrate there is volume, frequency and 

duration of flow sufficient to create a bed and banks and an ordinary high water 

mark, and thus to qualify as a tributary and be jurisdictional by rule. These 

physical indicators separate the jurisdictional tributaries from the erosional 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

327

features. The final rule also has exclusions for erosional features including gullies, 

rills, and other ephemeral features that do not meet the definition of tributary. 

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process predictable, efficient, and effective.

Freeport-McMoRan Inc. (Doc. #14135)

12.446 Further, due to the highly erodible nature of soils in the arid west and the infrequency of 

precipitation events, there is no defensible bright-line test to meaningfully distinguish 

between jurisdictional tributaries and non-jurisdictional gullies and rills under the 

approach proposed by EPA and the Corps, despite the importance of this distinction and 

the manifest need to exempt gullies and rills to ensure that the Proposed Rule does not 

attempt to regulate beyond the Clean Water Act’s statutory grant of authority. 

Consequently, we encourage the agencies to allow the collection of empirical data as well 

as identify factors, such as the magnitude, duration and frequency of flow to traditional 

navigable waters, that could be used to draw a line between those features that are 

erosional and in the nature of a gully or rill, and features that can more defensibly be 

considered jurisdictional tributaries. In the absence of a more defensible bright line test 

or site-specific empirical data demonstrating an actual meaningful connection between 

ephemeral features and the physical, chemical and biological integrity of a traditional 

navigable water, the Agencies have no authority to attempt to apply their proposed 

definition of “tributary” to ephemeral features in the arid west. We have raised these 

concerns in prior communications with the agencies (see attached letter to OMB), and 

provide more scientific and technical information as part of these comments. (p. 1)

Agency Response: See Summary Response. There are appropriate levels of 

regional variation in implementation of the regulations; however, the agencies strive 

for national consistency. This appropriate regional variation can make it appear 

that there are inconsistencies in program execution. The rule aims to reduce any 

inappropriate inconsistencies and provide a bright line of clarity for the agencies, 

state partners, and the regulated public. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources. Tools exist that recognize this regional variation 

and provide assistance to field staff; for example, the ordinary high water mark 

regional manuals or the regional supplements to the wetland delineation manual, 

both of which are outside the scope of this rulemaking but are related resources.

The scientific literature demonstrates that streams, individually or cumulatively, 

exert a strong influence on the chemical, physical, and biological integrity of 

downstream waters. All tributary streams, including perennial, intermittent, and 

ephemeral streams, are chemically, physically, and biologically connected to 

downstream rivers via channels and associated alluvial deposits where water and 

other materials are concentrated, mixed, transformed, and transported. 

The final rule defines tributary and tributaries. The terms tributary and tributaries 

mean a water that contributes flow, either directly or through another water 

(including an impoundment identified in paragraph (a)(4) of this section), to a water 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

328

identified in paragraphs (a)(1) through (3) of this section, and that is characterized 

by the presence of the physical indicators of a bed and banks and an ordinary high 

water mark. These physical indicators demonstrate there is volume, frequency and 

duration of flow sufficient to create a bed and banks and an ordinary high water 

mark, and thus to qualify as a tributary and be jurisdictional by rule. These 

physical indicators separate the jurisdictional tributaries from the erosional 

features. The final rule also has exclusions for erosional features including gullies, 

rills, and other ephemeral features that do not meet the definition of tributary. 

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process predictable, efficient, and effective.

Virginia Coal and Energy Alliance and Virginia Mining Issues Group (Doc. #14619)

12.447 Since the 1950s, virtually all of Virginia’s coal production has come from the Southwest 

Virginia Coalfields (“SVC”). Certain water features are encountered frequently within

and across the SVC. These include both naturally-occurring features (e.g., headwater and 

ephemeral streams, gullies and swales, natural drainages and other natural conveyances 

or waterbodies), as well as man-made water features associated with historic and ongoing 

mining activities (e.g., temporary and permanent diversion ditches, sediment and bench 

ponds, mine scar fills). To sustain the coal extraction methods authorized under the 

Surface Mining Control and Reclamation Act (“SMCRA”) and related federal and state 

mining laws requires repeated and diffuse land-disturbances and intensive water usage. 

Thus, mine operations in the SVC are constantly encountering and interfacing with these 

endemic water features. This is equally true throughout all stages of a mine’s “life ,”

from initial site development, to routine operation and expansion, to closure and 

reclamation. Importantly, the man-made and ephemeral features most frequently 

encountered during SVC mining operations have, for the most part, historically been 

considered non-jurisdictional. So, for the coal miners operating here, any sudden and 

sweeping changes to the jurisdictional status of these types of waters would carry an 

enormous weight, with the economic impact of more burdensome permitting and 

compliance, not to mention liability, compounded over all stages of operation. (p. 2)

Agency Response: See Summary Response. The agencies believe the proposed 

rule will result in increased clarity and certainty regarding the identification of 

“waters of the U.S.” None of the existing procedures, permitting mechanisms, 

efficient permitting tools such as general permits, or activity exemptions under 

Section 404(f)(1) 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. 

Additionally, the final rule provides exclusions for water-filled depressions created 

in dry land incidental to mining or construction activity, including pits excavated 

for obtaining fill, sand, or gravel that fill with water. These water-filled depressions 

would remain non-jurisdictional even after the life of the mine and such waters have 

been abandoned. Another exclusion provides that erosional features, including 

gullies, rills, and other ephemeral features that do not meet the definition of 

tributary are non-jurisdictional. The final rule also provides exclusions for 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

329

ephemeral and intermittent ditches that are not relocated tributaries or excavated 

in a tributary. These excluded waters may be encountered on an existing or 

proposed mine site and would not be considered jurisdictional waters under the 

Clean Water Act.

The Mosaic Company (Doc. #14640)

12.448 The proposed rule should provide regionally specific quantifiable methods for 

determining significant nexus. (p. 33)

Agency Response: See Summary Response. There are appropriate levels of 

regional variation in implementation of the regulations; however, the agencies strive 

for national consistency. This appropriate regional variation can make it appear 

that there are inconsistencies in program execution. The rule aims to reduce any 

inappropriate inconsistencies and provide a bright line of clarity for the agencies, 

state partners, and the regulated public. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources. Tools exist that recognize this regional variation 

and provide assistance to field staff; for example, the ordinary high water mark 

regional manuals or the regional supplements to the wetland delineation manual, 

both of which are outside the scope of this rulemaking but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process predictable, efficient, and effective. 

The final rule further clarifies “significant nexus” by providing a definition under 

paragraph (c) of the term as well as a list of factors to be considered when making 

such a determination for additional clarity and predictability for the regulated 

public.

Nevada Mining Association (Doc. #14930)

12.449 We do not believe that it is an exaggeration to state that the Proposal is sufficiently vague 

and expansive that it could potentially be construed to assert the Agencies’ jurisdiction 

over any type of liquid at a given site including, quite literally, a kitchen sink located 

outdoors. Indeed, the fact that EPA and the Corps, in the Proposal, believe that it is 

necessary to specifically exempt “puddles” (see 79 Fed. Reg. 22219) and “[artificial 

reflecting pools or swimming pools” (see, e.g., paragraph (a)(5)(iii) at 79 Fed. Reg. 

22263)98 from the definition of jurisdictional waters shows that the Agencies themselves

view the Proposal as otherwise broad enough to encompass these types of “waters” –

something no regulator or regulated entity would have previously thought might be the 

case.

The Proposal could be construed to encompass mining artificial ponds in the arid and 

semi-arid West designed to achieve zero discharge to surface water, and associated 

constructed channels and culverts carrying solutions, wastewaters and other liquids to and 

 

98 References to paragraphs of the Proposal such as (a)(5)(iii) refer to the Subsection in proposed 33 C.F.R. § 328.3.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

330

from such ponds, despite the fact that SWANCC squarely held that isolated manmade 

bodies of water are beyond the reach of the CWA. Similarly, contrary to Rapanos, the 

Proposal would classify all ephemeral or intermittent drainages that ultimately flow, 

directly or indirectly, via surface channel to a TNW or tributary as per se jurisdictional, 

even if only one drop from such a drainage reached the TNW or tributary every 10 years, 

or even every 50 years. Of greater concern, the Proposal could potentially be interpreted 

to mean that even if an ephemeral or intermittent drainage infiltrates into the ground 

miles from a TNW or tributary, and therefore never contributes one drop of surface flow 

to a tributary system to a TNW, it might still be deemed jurisdictional, if all other 

“similarly situated” ephemeral or intermittent drainages in the same watershed, when 

considered in the aggregate, could be said to have a significant impact on a downstream 

TNW. 

The result is that all mining companies with operations in the arid and semi-arid West 

might now be compelled to accept every isolated pond, ditch, constructed channel or 

drainage on their properties as a jurisdictional water, or would need to go through 

expensive and time consuming administrative proceedings with the Corps and EPA to get 

jurisdictional determinations otherwise. (p. 7)

Agency Response: See Summary Response. See the Economic Analysis for 

discussion on predicted change in jurisdiction. The agencies received many helpful 

comments on the proposed rule which resulted in refinement of the final rule to 

provide further clarity and certainty to the regulated public. 

The goal of the CWA is to protect the chemical, physical, and biological integrity of 

our nation’s waters. The agencies have been implementing this mission since the 

inception of the CWA. The additional costs that may be incurred as a result of the 

rule were taken into account during its formulation; however, the updated 

Economic Analysis indicates the benefits of the rule outweigh any associated costs 

placed on the regulated public and on the agencies themselves. The scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries. 

The agencies have maintained the waters “generally not considered jurisdictional” 

from the 1986 regulations, adding them as excluded waters within the final rule, and 

have added to them artificial reflecting pools or swimming pools. To those excluded 

waters the agencies have added additional exclusions, such as puddles, in order to 

provide clarity and certainty regarding the identification of “waters of the U.S.” 

None of the existing procedures, permitting mechanisms, efficient permitting tools 

such as general permits, or activity exemptions under Section 404(f)(1) of the Clean 

Water Act, were modified as a result of this rulemaking; therefore, existing 

procedures should not be further complicated by this rule. 

Additionally, the final rule provides exclusions for water-filled depressions created 

in dry land incidental to mining or construction activity, including pits excavated 

for obtaining fill, sand, or gravel that fill with water. These water-filled depressions 

will remain non-jurisdictional even after the life of the mine and such waters have 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

331

been abandoned. Another exclusion provides that erosional features, including 

gullies, rills, and other ephemeral features that do not meet the definition of 

tributary are non-jurisdictional. The final rule also provides exclusions for 

ephemeral and intermittent ditches that are not relocated tributaries or excavated 

in a tributary. These excluded waters may be encountered on an existing or 

proposed mine site and would not be considered jurisdictional waters under the 

Clean Water Act.

The final rule defines tributary and tributaries. The terms tributary and tributaries 

mean a water that contributes flow, either directly or through another water 

(including an impoundment identified in paragraph (a)(4) of this section), to a water 

identified in paragraphs (a)(1) through (3) of this section, and that is characterized 

by the presence of the physical indicators of a bed and banks and an ordinary high 

water mark. These physical indicators demonstrate there is volume, frequency and 

duration of flow sufficient to create a bed and banks and an ordinary high water 

mark, and thus to qualify as a tributary and be jurisdictional by rule. These 

physical indicators separate the jurisdictional tributaries from the erosional 

features. 

The agencies recognize that there are appropriate levels of regional variation in 

implementation of the regulations; however, the agencies strive for national 

consistency. The agencies believe the clarity and certainty provided in the rule will 

result in further consistency, while still allowing for regional variation in 

implementation that may be necessary based on regional differences in aquatic 

resources; for example, the ordinary high water mark regional manuals or the 

regional supplements to the wetland delineation manual, both of which are outside 

the scope of this rulemaking but are related resources. The Corps will develop the 

tools necessary to assist its staff with the jurisdictional determination process 

specific to section 404 in the implementation of the final rule to make the process 

predictable, efficient, and effective.

New Mexico Mining Association (Doc. #15158)

12.450 Whatever the merits of the Proposed Rule in other parts of the country, it ignores the 

unique features of arid landscapes that render this approach scientifically invalid. The 

Proposed Rule does properly consider the fact that many watersheds in the arid west are 

characterized by a combination of highly erodible soils and infrequent rain events. Under 

these conditions, what is erroneously treated as the “ordinary” high water mark of a 

particular feature may, in fact, have been formed by a single event in the distant past and 

does not bear any relationship to where water may flow in the future. Indeed, the Corps’

own research demonstrates that the presence of an “ordinary” high water mark in the west 

bears no relationship to present or future flows. Thus, rather than being an indicator of 

equilibrium conditions – as is the case in more humid environments – the “ordinary” high 

water mark will be produced by extraordinary events and will result in a broad regulatory 

overreach when used to define “waters” in the arid west.

In addition desert features meeting the proposed criteria typically lack regular flow, and 

as a result do not impact-the chemical or biological integrity of receiving waters. In 

many cases storm water seeps into the dry ground rather than flowing downstream, so 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

332

these so-called “tributaries” contribute no flow to downstream waters at all-meaning 

there is no physical connection that would establish jurisdiction under the Clean Water 

Act. Finally, the Proposed Rule seeks to regulate “tributaries” while exempting “gullies”

and “rills,” but the application of the proposed criteria in the arid west provides no way to 

distinguish between jurisdictional and non-jurisdictional features. 

The Proposed Rule attempts to create uniform national standards that do not account for 

the very significant differences between tributary systems in the arid west and other parts 

of the country that receive significantly more rainfall. The Proposed Rule attempts to 

justify this flawed approach in the arid by relying on a single river system, the San Pedro 

River in Arizona, which is unrepresentative of arid west water bodies. In fact, the only 

justification the Agencies offer for relying on the San Pedro is that it is “heavily studied,”

which cannot be a sensible basis on which to base the regulation of an entire region when 

nearby watersheds that have demonstrably different geological characteristics and flow 

regimes. The consequence is that vast areas of dry land in the desert will be regulated as 

“waters,” a substantial overreach by EPA and the Corps and one that will have significant 

impacts on the regulated community in the arid west, subjecting them to substantial 

burdens that will far exceed those experienced in other parts of the country. EPA and the 

Corps can and should do better, and limit their new regulations to features that are 

actually “waters” in some meaningful sense. (p. 2)

Agency Response: See Summary Response. The agencies believe that the 

characteristics required to meet the definition of “tributary” are indicators of 

sufficient volume, flow, and duration such that the tributaries have a significant 

nexus, either alone or in combination with other tributaries in the region, to the 

downstream (a)(1) to (a)(3) waters. The definition is based on the best available 

science, the intent of the Clean Water Act, and caselaw, and is consistent with 

current practice. 

The ordinary high water mark manuals developed by the Corps provide 

appropriate indicators to consider when delineating the ordinary high water mark 

in the field. Examples of OHWM indicators may include breaks in the slope, 

changes in vegetation, and changes in the sediment texture and substrate. The 

OHWM manual for the Arid West acknowledges the challenges in identifying the 

ordinary high water mark in the region; however, it provides the applicable 

indicators in the region to use when delineating the lateral extent of the OHWM in 

the Arid West. The agencies believe the clarity and certainty provided in the rule 

will result in further consistency, while still allowing for regional variation in 

implementation that may be necessary based on regional differences in aquatic 

resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 in the implementation of the final rule 

to make the process predictable, efficient, and effective. The initial phase of 

implementing the rule will require education and training for agency staff as well as 

other stakeholders and the regulated public, which will include regionally-based 

training to ensure consistent and efficient implementation of the rule.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

333

Council of Alaska Producers (Doc. #15782)

12.451 The Council is ... deeply concerned that the proposed rule fails to address how 

permafrost will be considered. Since most of Alaska is underlain by permafrost, this 

potential for almost total connectivity would significantly impact Section 404 permitting 

and wetlands mitigation. (p. 1)

Agency Response: See summary response. See the Technical Support Document 

for a summary of the scientific basis of the final rule. The agencies recognize the 

unique aquatic habitats present in Alaska and the challenges in determining 

jurisdiction when it may be different from the other States. The agencies believe the 

clarity and certainty provided in the rule will result in further consistency, while 

still allowing for regional variation in implementation that may be necessary based 

on regional differences in aquatic resources. The agencies recognize that there are 

appropriate levels of regional variation in implementation of the regulations; 

however, the agencies strive for national consistency. The Corps will develop the 

tools necessary to assist its staff with the jurisdictional determination process 

specific to section 404 in the implementation of the final rule to make the process 

consistent, predictable, efficient, and effective. The initial phase of implementing 

the rule will require education and training for agency staff as well as other 

stakeholders and the regulated public, which will include regionally-based training 

to ensure consistent and efficient implementation of the rule.

FMC Corporation (Doc. #16505)

12.452 It appears that little effort was made to include western states and other western based 

entities in the development and peer review of this rule. The western U.S. has unique 

situations, including how water quantity, as well as water quality, is regulated. The CWA 

recognizes this through language dealing with produced water from oil and gas 

operations as well as language stating that the authority of states to regulate water 

quantities within their borders shall not be impaired. These sections in the CWA were in 

large part a response to arid western states concerns over the reach of the CWA. We are 

concerned that the proposed rule was not adequately informed, and encourage EPA to 

pause the rulemaking process and develop ways to ensure adequate input from the West. 

(p. 2)

Agency Response: See summary response. See the Technical Support Document 

for a summary of the scientific basis of the final rule. The agencies have and do 

engage in sustained coordination and partnerships with states and other partners. 

The rule public comment period was extended twice to ensure adequate time for 

comment and during that time hundreds of stakeholder and outreach meetings were 

held, including some with state agencies. The agencies recognize the unique 

aquatic habitats present in the western U.S. and the challenges in determining 

jurisdiction when it may be different from the other States. The agencies believe the 

clarity and certainty provided in the rule will result in further consistency, while 

still allowing for regional variation in implementation that may be necessary based 

on regional differences in aquatic resources. The agencies recognize that there are 

appropriate levels of regional variation in implementation of the regulations; 

however, the agencies strive for national consistency. The Corps will develop the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

334

tools necessary to assist its staff with the jurisdictional determination process 

specific to section 404 during the implementation of the final rule to make the 

process consistent, predictable, efficient, and effective. The initial phase of 

implementing the rule will require education and training for agency staff as well as 

other stakeholders and the regulated public, which will include regionally-based 

training to ensure consistent and efficient implementation of the rule.

The agencies recognize that the state and local governments have well-defined and 

long-standing relationships in implementing affected CWA programs and these 

relationships will not be altered. This action will not have substantial direct effects 

on the states, on the relationship between the national government and the states, or 

on the distribution of power and responsibilities among the various levels of 

government. The agencies are not restricting the states’ efforts in developing or 

implementing statewide permits under CWA programs as a result of the rule.

Petroleum Association of Wyoming (Doc. #18815)

12.453 As a headwaters state in an arid region of the country, Wyoming has extensive ephemeral 

and intermittent drainages and associated wetland features in upper reaches of watersheds 

far removed from TNW. PAW believes the potential impact of the WOTUS proposed 

rule would be much greater in Wyoming than states with higher annual precipitation and 

what is commonly recognized as TNW and associated wetlands. Many of the ephemeral 

or intermittent drainages in Wyoming flow very infrequently, in small volumes, and often 

only in response to high precipitation/short duration events or rapid snowmelt. In some 

years, these types of drainage features may not flow at all. In other years, they may flow 

for only a period of a few days. In many, if not most, cases, they are miles or tens of 

miles away from any connection to tributaries of waters identified in paragraphs (a) (1) 

through (3) of the proposed rule. It is not uncommon for wetland areas or ponds to exist 

adjacent to or within these drainages, but again, far removed from any connection to 

TNW. Under these conditions, to categorically define such drainages and other waters as 

“tributaries” or “adjacent” waters and regulate them as WOTUS is inconsistent with the 

“significant nexus” upon which EPA relies.99 (p. 7)

Agency Response: See summary response. See the Technical Support Document 

for a summary of the scientific basis of the final rule. The agencies recognize the 

unique aquatic habitats present in the arid West and the challenges in determining 

jurisdiction when it may be different from the other States. The agencies believe the 

clarity and certainty provided in the rule will result in further consistency, while 

still allowing for regional variation in implementation that may be necessary based 

on regional differences in aquatic resources. The final rule defines tributary and 

tributaries. The terms tributary and tributaries mean a water that contributes flow, 

 

99 PAW disputes the application of and the agencies’ analysis, description and use of the significant nexus test as 

used in the rule and concurs with the legal analysis in the IPAA/AXPC/WEA comments referenced above. That 

notwithstanding , PAW’s point with regard to these water features in Wyoming is that the definitions of “tributary” 

and “adjacent” as categorical WOTUS is over-inclusive and exceeds the agencies’ jurisdiction when viewed in a 

fact-specific context. PAW believes that many drainages that would be categorically included as “tributaries” or 

“adjacent” waters under the proposed rule would fail the significant nexus test for jurisdiction on a case-specific 

basis, and therefore should not be included categorically under the rule.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

335

either directly or through another water (including an impoundment identified in 

paragraph (a)(4) of this section), to a water identified in paragraphs (a)(1) through 

(3) of this section, and that is characterized by the presence of the physical 

indicators of a bed and banks and an ordinary high water mark. 

The agencies believe that the characteristics required to meet the definition of 

“tributary” are indicators of sufficient volume, flow, and duration such that the 

tributaries have a significant nexus, either alone or in combination with other 

tributaries in the region, to the downstream (a)(1) to (a)(3) waters. The definition is 

based on the best available science, the intent of the Clean Water Act, and caselaw, 

and is consistent with current practice. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources. 

The agencies recognize that there are appropriate levels of regional variation in 

implementation of the regulations; however, the agencies strive for national 

consistency. The Corps will develop the tools necessary to assist its staff with the 

jurisdictional determination process specific to section 404 during the 

implementation of the final rule to make the process consistent, predictable, 

efficient, and effective. The initial phase of implementing the rule will require 

education and training for agency staff as well as other stakeholders and the 

regulated public, which will include regionally-based training to ensure consistent 

and efficient implementation of the rule.

Independent Petroleum Association of America (Doc. #18864)

12.454 Mid-Continent and Eagle Ford (KS, AR, LA, TX, OK) – Upon assessment of the 

Mississippian Lime in north central Oklahoma, there is an approximate five-fold increase 

(418 to 2,043) in infrastructure intersections with streams when transitioning from the 

National Hydrography Dataset (“NHD”) (more representative of maps used currently by 

the USACE) to the lidar (high-resolution) map where a synthetic streams network was 

generated that includes many ephemeral streams that are not delineated in the NHD 

dataset. If all ephemeral streams are considered tributaries, then the result would be a 

five-fold increase in the number of jurisdictional waters to consider. 

Based upon current law and interpretation, using the National Hydrology Dataset, 

pipelines intersected mapped streams at 418 locations and were subject to nationwide 

permits. Using the High Resolution Mapping, pipelines intersected lidar (high-resolution 

mapping data inclusive of all the ephemeral streams not often depicted on existing USGS 

quadrangles and which would all likely become waters of the United States under the 

proposed rule) at 2,043 locations. That represents a better than five-fold increase 

compared to the intersections assessed from using NHD. An excellent example of 

expanded jurisdiction is that identified by the State of Kansas. In 2011, Kansas estimated 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

336

that inclusion of ephemeral streams would increase jurisdictional stream miles from 

32,000 to 134,000 miles.100 (p. 11)

Agency Response: See Summary Response. See the Economic Analysis for the 

final rule for additional information on predicted change in jurisdiction. The scope 

of regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries.

The final rule defines tributary and tributaries. The terms tributary and tributaries 

mean a water that contributes flow, either directly or through another water 

(including an impoundment identified in paragraph (a)(4) of this section), to a water 

identified in paragraphs (a)(1) through (3) of this section, and that is characterized 

by the presence of the physical indicators of a bed and banks and an ordinary high 

water mark. These physical indicators demonstrate there is volume, frequency and 

duration of flow sufficient to create a bed and banks and an ordinary high water 

mark, and thus to qualify as a tributary. 

The agencies have been using remote sensing and desktop tools to delineate 

tributaries for many years where data from the field are unavailable or a field visit 

is not possible. Desktop reviews are sufficient in cases where the district has a high 

degree of confidence in the information used to identify the limits of jurisdictional 

waters. For example, desktop reviews may be based on detailed delineation reports 

prepared by professional wetland consultants. The level of mapping precision for an 

approved JD that identifies the limits of waters of the United States is at the 

discretion of the district. In some cases, districts may need to require professional 

surveys of jurisdictional boundaries, but in other cases, other mapping techniques 

may be adequate. See the preamble for further discussion on desktop tools in the 

“Tributary” section. The majority of this information is available for the public’s 

use; these tools can allow for greater consistency with currently available and 

accessible data sources.

12.455 South Central Oklahoma Oil Province (SCOOP) (OK) - There is substantial potential

under the proposed rule for expansion of jurisdiction along headwater drainages through 

capture of additional lengths of streams (up to 21,507 linear feet of additional jurisdiction 

within the approximately 1,500 acres of the study area). This represents a 52.4% increase 

in the amount of regulated waters. Additionally, there would be an approximately 100% 

increase in jurisdictional review area related to wetlands associated with typical 

floodplain soil types. The potential expansion of jurisdiction along headwater streams 

could result in increased permitting efforts. Specific examples include:

 Headwater areas would likely not be classified as “jurisdictional by rule” under the 

proposed rule, but rather would be placed in the class of waters that would require a 

case-by-case determination of whether they are jurisdictional (JD).

 

100 Letter to Nancy Stoner, Acting Assistant Administrator of Water, USEPA from Sam Brownback, Governor of 

Kansas (July 14, 2011). 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

337

 Increased field studies could be required to determine whether headwater streams 

were jurisdictional.

 There also could be increased time for the USACE to complete IDs on each 

headwater drainage. Currently there is no regulatory time limit for USACE to 

complete a JD. Some USACE districts have placed substantial paperwork 

requirements on submission of JDs and eliminated presumptive JDs (i.e., assume 

water is jurisdictional and complete permit activity without formal JD), which would 

further lengthen the permit review and approval process.

 The JD process can be more costly than the permit application process with a 

presumptive JD and could increase the time for getting a permit by a factor of 3.

Agency Response: See Summary Response. The additional costs that may be 

incurred as a result of the rule were taken into account during its formulation; 

however, the updated Economic Analysis indicates the benefits of the rule outweigh 

any associated costs placed on the regulated public and on the agencies themselves. 

The scope of regulatory jurisdiction in this rule is narrower than that under the 

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

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

important qualifiers on some existing categories such as tributaries. 

The agencies believe with the clarity and certainty provided in the rule, including 

the clarity and certainty pertaining to tributaries, that there will be efficiencies 

gained in making jurisdictional determinations. 

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process predictable, efficient, and effective. The initial phase of 

implementing the rule will require education and training for agency staff as well as 

other stakeholders and the regulated public, which will include regionally-based 

training to ensure consistent and efficient implementation of the rule. There is not 

expected to be a required timeframe for completion of a jurisdictional 

determination, which can be dependent on a variety of factors including climate and 

weather patterns.

The agencies received many helpful comments on the proposed rule which resulted 

in refinement of the final rule to provide further clarity and certainty to the 

regulated public. The final rule defines tributary and tributaries. The terms 

tributary and tributaries mean a water that contributes flow, either directly or 

through another water (including an impoundment identified in paragraph (a)(4) of 

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

and that is characterized by the presence of the physical indicators of a bed and 

banks and an ordinary high water mark. These physical indicators demonstrate 

there is volume, frequency and duration of flow sufficient to create a bed and banks 

and an ordinary high water mark, and thus to qualify as a tributary.

12.456 Within a major stream setting study site, the proposed rule identifies floodplains as one 

mechanism that would be used to demonstrate connectivity to establish jurisdiction over 

waters, potentially including those with no direct surface connection. However, the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

338

proposed rule does not define floodplain. As such, there is no indication of whether 

floodplains mapped by the Federal Emergency Management Agency (FEMA) that are 

based on current water flow modeling, would be the standard or if some other definition 

of floodplain would be used. Absent guidance in the rule, the analysis used the extent of 

mapped alluvial soils (Port Silt Loam) as the maximum boundary of the floodplain of 

subject creek. This resulted in an approximately 241 acre increase in jurisdictional area 

(nearly a 50% increase).

The potential for expanded federal jurisdiction and associated case-by-case JDs would 

potentially have the following impacts:

 Selecting locations for pipeline corridors, either for transport of oil/gas or transport of 

produced water, would likely become more at risk. The topography and length of any 

of these corridors would dictate potential delays and level of siting effort required to 

mitigate potential delays. In any case, these activities would potentially require 

greater cost and time to complete JDs and receive permits.

 Siting access roads to pads, infrastructure, and pipelines would likely become more 

challenging. Because these access corridors are likely to be more extensive, wider, 

and prefer to follow least cost routes, establishing acceptable routes would be 

challenged to avoid crossings of headwater drainages with associated greater cost and 

time to acquire permits.

 Development of SPCC plans and stormwater controls would likely become more 

involved as there potentially would be an increased number of receiving waters. The 

time to develop such measures also could be increased due to the need to wait for a 

JD. (p. 12)

Agency Response: See Summary Response. The Science Report and the SAB 

review confirm that wetlands and open waters in floodplains are chemically, 

physically and biologically connected along a “connectivity gradient” with 

downstream rivers and influence the ecological integrity of such rivers. When 

determining the jurisdictional limits under the CWA for adjacent waters, the 

agencies will rely on published Federal Emergency Management Agency (FEMA) 

Flood Zone Maps to identify the location and extent of the 100-year floodplain. See 

the preamble section on “Adjacent Waters” for additional information on the 

floodplain and how to determine the 100-year floodplain. 

The additional costs that may be incurred as a result of the rule were taken into 

account during its formulation; however, the updated Economic Analysis indicates 

the benefits of the rule outweigh any associated costs placed on the regulated public 

and on the agencies themselves. The scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries. 

The agencies believe with the clarity and certainty provided in the rule, including 

the clarity and certainty pertaining to tributaries, that there will be efficiencies 

gained in making jurisdictional determinations. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

339

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 in the implementation of the final rule 

to make the process predictable, efficient, and effective. The initial phase of 

implementing the rule will require education and training for agency staff as well as 

other stakeholders and the regulated public, which will include regionally-based 

training to ensure consistent and efficient implementation of the rule.

With respect to the jurisdictional status of stormwater control features as waters of 

the U.S., please see compendium 7, summary response at 7.4.4. See also essay 12.5 

on SPCC. See also Compendium 11 and Economic Analysis section 8 for an 

explanation of how the agencies considered the effects of the final rule on all CWA 

programs.

12.457 Bakken (ND, MT): While none of the prairie potholes in the Bakken Study Area would 

be likely jurisdictional waters of the United States under the current regulations:

 Approximately 31 acres of 127 acres of prairie potholes in the Bakken Study Area 

probably would be considered waters of the United States under the proposed 

regulations, primarily because of their connection to downstream waters of the United 

States by ditches.

 The additional 96 acres of the 127 acres of prairie potholes have the potential to be 

considered jurisdictional under the proposed rule because of physical connection to 

downstream waters of the United States either by ditches or by subsurface flows. (p. 

13)

Agency Response: See Summary Response. If a prairie pothole meets the terms 

of a category (a)(1)-(a)(6) water then it is jurisdictional by rule. However, if a 

prairie pothole does not meet such categories then it may be considered under (a)(7) 

and would require a case-specific significant nexus determination to determine its 

jurisdictional status under the CWA. The science has demonstrated that such 

waters can be determined similarly situated in the region by rule and this final rule 

has done just that. However, the prairie pothole still would require a significant 

nexus determination to determine whether or not it is jurisdictional. The final rule 

further clarifies “significant nexus” by providing a definition under paragraph (c) 

of the term as well as a list of factors to be considered when making such a 

determination for additional clarity and predictability for the regulated public. The 

list of factors includes “contribution of flow,” which may include an analysis 

regarding the hydrologic connection, or absence of such a connection, and 

contribution provided by the prairie pothole.

12.458 While the current regulations, for the most part, do not require permits at the federal level 

for impacts on prairie potholes and connecting ditches, there would be potential for 

considerable additional time and costs required to complete JDs for prairie potholes 

because:

 Desktop information (soil permeability and grain size) is not a good predictor for 

determining subsurface flow and, thus, more effort would be required to determine 

connectivity to downstream waters of the United States on a case-by-case basis. The 

USACE likely will require site-specific evaluations of connection to downstream 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

340

waters of the United States, including the use of soils data, climate (e.g., 

precipitation), geography, and other factors, and may require subsurface explorations 

(i.e., deep soil borings) to deduce the subsurface environment (i.e., permeability).

 While the proposed regulations are focused on physical connections (e.g., ditches or 

subsurface flow) of prairie potholes with downstream waters of the United States, 

indications are that indirect connections (e.g., prairie potholes acting as water sinks 

influencing downstream flows without a physical connection to downstream waters of 

the United States) could be involved in future regulatory proposals which would 

make all prairie potholes jurisdictional under such proposals.

 Although ditches draining prairie potholes generally are not considered jurisdictional 

waters under the current regulations, many ditches draining prairie potholes to 

downstream waters likely will be considered jurisdictional under the proposed 

regulations.

 The above factors affecting the determination of JD would likely require desktop and 

field studies to determine connection to downstream waters of the United States. 

These field studies could involve deep soil borings although it is likely that the 

USACE will accept applicant-prepared JDs based on the desktop and field studies.

 These studies, in addition to the added layer of review of the applicant JDs by the 

USACE, will add additional cost to a project and additional time of at least several 

weeks to the current typical permitting process and a project’s schedule. Perhaps of 

even greater concern would be the inability to comprehensively plan with a level of 

certainty the layout for pads, infrastructure, and access roads and pipeline corridors to 

mitigate potential delays in obtaining JDs. (p. 13-14)

Agency Response: See Summary Response. If a prairie pothole meets the terms 

of a category (a)(1)-(a)(6) water then it is jurisdictional by rule. However, if a 

prairie pothole does not meet such categories then it may be considered under (a)(7) 

and would require a case-specific significant nexus determination to determine its 

jurisdictional status under the CWA. The science has demonstrated that such 

waters can be determined to be similarly situated in the region by rule and this final 

rule has done just that. However, the prairie pothole still would require a 

significant nexus determination to determine whether or not it is jurisdictional. 

The final rule further clarifies “significant nexus” by providing a definition under 

paragraph (c) of the term as well as a list of factors to be considered when making 

such a determination for additional clarity and predictability for the regulated 

public. The list of factors includes “contribution of flow,” which may include an 

analysis regarding the hydrologic connection, or absence of such a connection, and 

contribution provided by the prairie pothole. 

Shallow subsurface flow has been used in significant nexus evaluations to inform 

adjacency calls associated with approved jurisdictional determinations under the 

2008 Rapanos guidance. Thus, the Corps is experienced in determining flow, which 

may be used in a significant nexus determination, under the final rule.

The agencies have been using remote sensing and desktop tools to delineate 

tributaries for many years where data from the field are unavailable or a field visit 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

341

is not possible. Desktop reviews are sufficient in cases where the district has a high 

degree of confidence in the information used to identify the limits of jurisdictional 

waters. For example, desktop reviews may be based on detailed delineation reports 

prepared by professional wetland consultants. The level of mapping precision for an 

approved JD that identifies the limits of waters of the United States is at the 

discretion of the district. In some cases, districts may need to require professional 

surveys of jurisdictional boundaries, but in other cases, other mapping techniques 

may be adequate. See the preamble for further discussion on desktop tools in the 

“Tributary” section. The majority of this information is available for the public’s 

use; these tools can allow for greater consistency with currently available and 

accessible data sources. 

The agencies believe with the clarity and certainty provided in the rule, including 

the clarity and certainty pertaining to tributaries, that there will be efficiencies 

gained in making jurisdictional determinations. The Corps will develop the tools 

necessary to assist its staff with the jurisdictional determination process specific to 

section 404 during the implementation of the final rule to make the process 

predictable, efficient, and effective. The initial phase of implementing the rule will 

require education and training for agency staff as well as other stakeholders and the 

regulated public, which will include regionally-based training to ensure consistent 

and efficient implementation of the rule.

12.459 The potential for expanded federal jurisdiction and associated case-by-case JDs could 

have the following impacts in the Bakken Study Area:

 For well pads under existing regulations, most prairie potholes are non-jurisdictional, 

no USACE permitting is required, and siting considerations are related to resource 

and engineering design needs. Under the proposed regulations, many prairie 

potholes would become jurisdictional, and siting of pads near prairie potholes likely 

would have to include IDs and consideration of USACE permitting requirements in 

addition to resource and engineering design factors. Mitigating for these delays 

would require the siting of pads at locations that do not directly impinge on a pothole 

(or connecting ditch) and avoiding locations that could affect subsurface flow, where 

subsurface flow might be basis for a prairie pothole to be considered jurisdictional. 

Depending on the subsurface flow regime, putting a well pad anywhere downgradient of prairie potholes could be problematic from a permitting perspective. Upgradient siting also could be an issue, depending on the water source for the prairie 

pothole (surface runoff or subsurface flows). Permits would still be able to be 

acquired, but the process would add time to the Project schedule and cost to the 

Project budget.

 Under the proposed regulations, selecting corridors for pipelines in the Bakken area 

likely would become more involved due to the need to mitigate potential conflicts 

and delays with areas likely to be jurisdictional. Under the current regulations, these 

corridors could be sited along a line through the center of the prairie pothole area 

without regulatory conflicts. However, under the proposed rule, to avoid the pothole 

area might require considerable rerouting to avoid these potential costs and delays 

for ID determinations.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

342

 As with the SCOOP Play, development of SPCC plans and stormwater controls in 

the Bakken Play area likely would become more involved because of the potential 

for an increased number of receiving waters (jurisdictional prairie potholes and 

connecting ditches). The time to develop such measures also could be increased due 

to the need to wait for a JD. (p. 14)

Agency Response: See Summary Response. The rule is not designed to subject 

entities of any size to any specific regulatory burden. Rather, it is designed to 

clarify the statutory scope of the “waters of the U.S.” consistent with existing 

regulations and Supreme Court precedent. None of the existing procedures, 

permitting mechanisms, efficient permitting tools such as general permits, or 

activity exemptions under Section 404(f)(1) 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. 

If a prairie pothole meets the terms of a category (a)(1)-(a)(6) water then it is 

jurisdictional by rule. However, if a prairie pothole does not meet such categories 

then it may be considered under (a)(7) and would require a case-specific significant 

nexus determination to determine its jurisdictional status under the CWA. The 

science has demonstrated that such waters can be determined similarly situated in 

the region by rule and this final rule has done just that. However, the prairie 

pothole still would require a significant nexus determination to determine whether 

or not it is jurisdictional. The final rule further clarifies “significant nexus” by 

providing a definition under paragraph (c) of the term as well as a list of factors to 

be considered when making such a determination for additional clarity and 

predictability for the regulated public. The list of factors includes “contribution of 

flow,” which may include an analysis regarding the hydrologic connection, or 

absence of such a connection, and contribution provided by the prairie pothole. 

Shallow subsurface flow has been used in significant nexus evaluations to inform 

adjacency calls associated with approved jurisdictional determinations under the 

2008 Rapanos guidance. Thus, the Corps is experienced in determining flow, which 

may be used in a significant nexus determination, under the final rule.

The agencies have been using remote sensing and desktop tools to delineate 

tributaries for many years where data from the field are unavailable or a field visit 

is not possible. Desktop reviews are sufficient in cases where the district has a high 

degree of confidence in the information used to identify the limits of jurisdictional 

waters. For example, desktop reviews may be based on detailed delineation reports 

prepared by professional wetland consultants. The level of mapping precision for an 

approved JD that identifies the limits of waters of the United States is at the 

discretion of the district. In some cases, districts may need to require professional 

surveys of jurisdictional boundaries, but in other cases, other mapping techniques 

may be adequate. See the preamble for further discussion on desktop tools in the 

“Tributary” section. The majority of this information is available for the public’s 

use; these tools can allow for greater consistency with currently available and 

accessible data sources. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

343

The agencies believe with the clarity and certainty provided in the rule, including 

the clarity and certainty pertaining to tributaries, that there will be efficiencies 

gained in making jurisdictional determinations. The Corps will develop the tools 

necessary to assist its staff with the jurisdictional determination process specific to 

section 404 in the implementation of the final rule to make the process predictable, 

efficient, and effective. The initial phase of implementing the rule will require 

education and training for agency staff as well as other stakeholders and the 

regulated public, which will include regionally-based training to ensure consistent 

and efficient implementation of the rule.

Washington Farm Bureau (Doc. #3254)

12.460 The language proposed in the rule and interpretive policy stretches Justice Kennedy’s 

“significant nexus” plurality beyond the point of reason. In certain circumstances, it 

arguably erases the exemptions for normal farming and ranching, agricultural stormwater 

and irrigation return flow. At any rate, the vagueness in drafting invites litigation and

costly argument over the post-rule / post-policy status of the exemptions.

This ambiguity is especially troubling in rainy areas like Western Washington, where it is 

not hard to imagine disagreements over what the rule and policy mean when they refer to 

subsurface groundwaters and hydrological connections between “navigable” waters (as 

newly and more expansively defined). In effect, this proposed change disconnects 

regulation from any reasonable connection to true navigability or commerce. One thing 

does appear certain: these proposed rule and policy actions will prompt new waves of 

citizen suit litigation against farmers and ranchers, producing uncertain legal precedents 

in court. That outcome is unacceptable and unfair to Washington’s farm and ranch 

families. It also runs counter to other important policy goals, like farmland preservation. 

(p. 3)

Agency Response: See Summary Response. See the Technical Support Document 

for a summary of the legal and scientific bases for the final rule. The scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries. 

The rule is not designed to subject entities of any size to any specific regulatory 

burden. Rather, it is designed to clarify the statutory scope of the “waters of the 

U.S.” consistent with existing regulations and Supreme Court precedent. None of 

the existing procedures, permitting mechanisms, efficient permitting tools such as 

general permits, or activity exemptions under Section 404(f)(1) 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. The agencies received many helpful 

comments on the proposed rule which resulted in refinement of the final rule to 

provide further clarity and certainty to the regulated public. The use of shallow 

subsurface flow has been removed from use as an indicator of adjacency under the 

final rule. See the “Adjacent Waters” section in the preamble for additional 

discussion on adjacent waters. This rule does not impact the citizen suit provisions 

under the Clean Water Act.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

344

Washington Cattlemen’s Association (Doc. #3723.2)

12.461 In Washington State citizens work directly with the Department of Ecology (DOE) in 

regards to regulation of non-point water quality. The EPA proposal will actually yield 

fewer advances in cleaning up and protecting water quality. This erosion in water quality 

will occur when landowners realize that they no longer are working with a State led 

agency DOE and now as they will be forced to work with the Federal Government. The 

EPA proposed rule steps directly on State sovereignty and flushes future work and efforts 

that might be invested over time on water quality efforts in Washington State. The rule 

should be withdrawn.

The WCA believes EPA clearly does not understand the challenges the DOE faces every 

day enforcing the Washington State Water Pollution Control Act RCW 90.48. In 

Washington State there are countless geographic features that are currently left to the 

DOE for regulation. Under this proposal it is unclear if the Corps would supersede the 

previously recognized authority that it has relied upon via the delegated authority and 

regulate or, if it would rely upon State regulations. This issue needs to be clarified. It

appears that cattlemen and women would be required to work with the DOE for nonpoint issues as well as the Corps of Engineers. This is more time consuming and 

burdensome for landowners in Washington, and contrary to the stated goal of 

streamlining the jurisdiction and permitting process.

In Washington State it is common for cattle to graze within the “ordinary high water 

mark” of a water body and to drink directly from surface water. These types of activities 

have occurred on a continual basis predating Statehood in Washington State. It is not 

realistic for EPA to expect private landowners to obtain 404 permits for normal 

agricultural activities that are currently exempt under the Federal Clean Water Act. 

While WCA believed that the “normal farming and ranching” exemption previously

exempted such activities from 404 permitting, it appears from the new IR that grazing is 

no longer an exempted activity unless the rancher has, and is following precisely, an 

approved NRCS Prescribed Grazing plan. (p. 3)

Agency Response: See Summary Response. None of the existing procedures, 

permitting mechanisms, efficient permitting tools such as general permits, or 

activity exemptions under Section 404(f)(1) 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. Furthermore, the final rule will not directly alter the 

content or implementation of other local, state, or federal mandates as the final rule 

applies solely to the Clean Water Act definition of waters of the U.S. The agencies 

recognize that the state and local governments have well-defined and long-standing 

relationships in implementing affected CWA programs and these relationships will 

not be altered. This action will not have substantial direct effects on the states, on 

the relationship between the national government and the states, or on the 

distribution of power and responsibilities among the various levels of government. 

The agencies are not restricting the states’ efforts in developing or implementing 

statewide permits under CWA programs as a result of the rule. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

345

Montana Farm Bureau Federation (Doc. #12715)

12.462 Montana’s landscape is much different than anything located on the east coast. 

Determinations such as this are better left in the hands of state level regulators such as 

Montana’s Department of Natural Resources or Department of Environmental Quality.

(p. 4)

Agency Response: See Summary Response. The final rule will not directly alter 

the content or implementation of other local, state, or federal mandates as the final 

rule applies solely to the Clean Water Act definition of waters of the U.S. The 

agencies recognize that the state and local governments have well-defined and longstanding relationships in implementing affected CWA programs and these 

relationships will not be altered. This action will not have substantial direct effects 

on the states, on the relationship between the national government and the states, or 

on the distribution of power and responsibilities among the various levels of 

government. The agencies are not restricting the states’ efforts in developing or 

implementing statewide permits under CWA programs as a result of the rule. 

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources. 

The agencies are developing guidance to facilitate effective, consistent, and efficient 

implementation of the final rule once it becomes effective. 

The agencies strive to achieve consistency across the country in all districts and 

regions in application of the rule for jurisdictional determinations. The agencies 

also recognize that there are variations that occur in geography, hydrology, climate, 

etc., which affect jurisdictional determinations. The initial phase of implementing 

the rule will require education and training for agency staff as well as other 

stakeholders and the regulated public. This training and outreach will be 

regionally-based to ensure appropriate consideration is given to ecoregional 

variation and to ensure consistent and efficient implementation of the rule. 

Bayless and Berkalew Co. (Doc. #12967)

12.463 Dry desert washes might run twice a year in a good year for only a couple of hours. Yet, 

according to the proposed rule, would now be subject to EPA oversight before I could 

carry out ordinary ranch activities. In such an arid environment, it is very likely that an 

agricultural improvement meant to utilize ephemeral water could take on riparian 

characteristics, but have very little connectivity if any at all to navigable waters. (p. 3)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

346

Agency Response: See Summary Response. The agencies received many helpful 

comments on the proposed rule which resulted in refinement of the final rule to 

provide further clarity and certainty to the regulated public. The final rule defines 

tributary and tributaries. The terms tributary and tributaries mean a water that 

contributes flow, either directly or through another water (including an 

impoundment identified in paragraph (a)(4) of this section), to a water identified in 

paragraphs (a)(1) through (3) of this section, and that is characterized by the 

presence of the physical indicators of a bed and banks and an ordinary high water 

mark. These physical indicators demonstrate there is volume, frequency and 

duration of flow sufficient to create a bed and banks and an ordinary high water 

mark, and thus to qualify as a tributary and be jurisdictional by rule. Ephemeral 

tributaries have a significant nexus either individually or in aggregate. 

The agencies are developing guidance to facilitate effective, consistent, and efficient 

implementation of the final rule once it becomes effective. 

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

Nebraska Cattlemen (Doc. #13018)

12.464 Nebraska is comprised of over 77,000 square miles of area with over 92 percent of that 

area used for agricultural purposes. From west to east, the State moves from low 

precipitation high plains to higher precipitation grasslands in the east. There are an 

infinite number of scenarios that call for good judgment in determining whether or not a 

particular water body is or should be subject to federal CWA jurisdiction. This rule 

would impose a blanket jurisdictional determination over thousands of acres of private 

property. The effect would be to impose illegal and unnecessary property restrictions and 

uncertainty as to what that actually means to a farmer or rancher. (p. 9)

Agency Response: See Summary Response. The final rule does not have an effect 

on farmers’ ability to make decisions about activities on their private lands. The 

statutory authority of the CWA does not convey to the Federal Government any 

ownership of or property rights in any private lands. Therefore, private property 

will not be negatively impacted by the Federal Government as a result of the final 

rule. The agencies only have authority to regulate jurisdictional activities under the 

Clean Water Act in waters of the U.S.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

347

Illinois Corn Growers Association (Doc. #13996)

12.465 Farmers near main waterways as the Illinois and Mississippi Rivers need to have clear 

direction as to which water and drainage bodies and features are jurisdictional/nonjurisdictional so that their rights can be protected by the courts rather than the varying 

discretion of agency regulators. (p. 3)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. The final rule 

provides definitions of tributaries and adjacent waters, and includes exclusions for 

several types of waters, including certain ditches. The agencies note that the final 

rule provides for certain categories of waters that are jurisdictional by rule, which 

will result in a more efficient and predictable process. The Corps will develop the 

tools necessary to assist its staff with the jurisdictional determination process 

specific to section 404 during the implementation of the final rule to make the 

process predictable, efficient, and effective. The final rule aims to reduce any 

inconsistencies and provide a bright line of clarity for the agencies, other partner 

agencies, and the regulated public. 

None of the existing procedures, permitting mechanisms, efficient permitting tools 

such as general permits, or activity exemptions under Section 404(f)(1) 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. Additionally, the final 

rule includes a definition of adjacency, which states that waters subject to 

established, normal farming, silviculture, and ranching activities (33 USC § 

1344(f)(1)) are not adjacent.

Westlands Water Districts (Doc. #14414)

12.466 Recharge and percolation ponds that have a surface connection to traditional navigable 

waters would be subject to federal regulation under the Proposed Rule. These ponds are 

used to percolate groundwater and to hold water before it is put to use or discharged to 

waters of the United States. These ponds are critical to the use of recycled water in the 

West. If they are classified as waters of the United States, these ponds would need 

federal permits for maintenance and refurbishing. These permits could require mitigation 

treatment, and could require that the ponds meet water quality standards under the Clean 

Water Act. Again, nothing in the Clean Water Act suggests that these resources are 

subject to federal regulation under the Act. (p. 24)

Agency Response: See Summary Response. The agencies received many helpful 

comments on the proposed rule which resulted in refinement of the final rule to 

provide further clarity and certainty to the regulated public. The final rule includes 

exclusions for wastewater recycling structures created in dry land: detention and 

retention basins built for wastewater recycling, groundwater recharge basins, and 

percolation ponds built for wastewater recycling, and water distributary structures 

built for wastewater recycling.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

348

LeValley Ranch, LTD (Doc. #14540)

12.467 The proposed presumption that all waters that meet the definition of tributary are 

jurisdictional by rule is only accurate over a portion of the spectrum of potential tributary 

types. The presumption is applicable at the wet end of the spectrum (e.g., rivers and 

perennial streams) and becomes increasingly less applicable as one moves toward the 

drier end of the tributary spectrum, particularly with smaller drainages in the arid West. 

At the drier portion of the tributary spectrum, the presumption of jurisdictional by rule is 

no longer accurate and becomes arbitrary. (p. 6)

Agency Response: See Summary Response. The final rule defines tributary, 

which can include tributaries with ephemeral and intermittent flow when they 

present the required indicators of OHWM and bed/banks to indicate sufficient 

volume, frequency, and duration of water flow. The science has demonstrated that 

tributaries with these features have a strong connection to (a)(1)-(3) waters and the 

agencies have determined that these waters have a significant nexus to these 

downstream waters either individually or in aggregate. Having these physical 

indicators separate the jurisdictional tributaries from erosional features. Erosional 

features that do not meet the definition of tributary are excluded under the rule. 

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 in the implementation of the final rule 

to make the process predictable, efficient, and effective.

12.468 Designating the water in such internal infrastructure as waters of the United States would 

prevent local government agencies from using that infrastructure and hence from 

providing critical water supply services, recycling water for re-use, or responding to 

wildfires and other critical emergencies. This would result in project-specific and 

cumulative significant environmental impacts relating to water supplies, hydrology, 

emergency services, public services and utilities, agriculture, air quality, biological 

resources, soil erosion, land use and planning, population and housing, and others. These 

impacts, particularly the impacts to water supply, would be dire in certain areas of the 

West, including California, which are suffering from historical drought conditions and 

are experiencing enormous water supply, agricultural, socioeconomic and other impacts. 

Because of the potential impacts of the Proposed Rule on the human environment, the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

349

agencies should prepare an EIS prior to adoption or implementation of the Rule that 

discloses and analyzes these impacts. (p. 30-31)

Agency Response: See Summary Response. The agencies received many helpful 

comments on the proposed rule which resulted in refinement of the final rule to 

provide further clarity and certainty to the regulated public. The final rule includes 

a list of excluded waters and features under paragraph (b) which includes certain 

ditches and wastewater recycling structures created in dry land, including 

groundwater recharge basins and water distributary structures built for wastewater 

recycling. Such excluded waters cannot become jurisdictional even if they meet the 

terms of a jurisdictional category under paragraph (a) of the final rule. 

The Army has prepared a final environmental assessment and Findings of no 

Significant Impact in accordance with the NEPA. See Preamble for discussion.

California Association of Winegrape Growers (Doc. #14593)

12.469 Farmers and ranchers in California have expressed their frustration with the broad and 

inconsistent application of the CWA by Corps field staff. California has a diverse 

landscape that is unique from much of the rest of the United States; therefore, it is even 

more important for jurisdictional determinations to be considered carefully and on a caseby-case basis.

Based on how the Corps has been implementing the current Guidance, CAWG fears that 

the Proposed Rule (and forthcoming guidance based upon the Proposed Rule) will greatly 

expand the Agencies’ claim of jurisdiction over many areas of California that were –

appropriately – heretofore unaffected. This is particularly true of the transitional areas 

between the Central Valley floor and the surrounding low foothills, as well as the 

numerous other watersheds with similar topography. These areas often contain seasonal 

and/or isolated wetlands or swales. Because of the gradual elevation descent from the 

foothills to the Valley floor, water runs downhill during rain events. Remember that the 

Central Valley has an arid, Mediterranean climate in which it only rains three months out 

of the year. It does not rain continuously during this time, but rather, rain events occur 

sporadically throughout those three months. It is during major rain events – often only a 

few days per year – that swales will direct water downhill, onto neighboring properties, 

and into the regional watershed. These watersheds contain numerous tributaries that are 

considered “non-navigable relatively permanent” (i.e. contain water at least 3 months of 

the year) under the current Guidance. These tributaries eventually reach a traditional 

navigable waterway, but not for any extended period of time, and not in any significant 

volume. (p. 16)

Agency Response: See Summary Response. The scope of regulatory jurisdiction 

in this rule is narrower than that under the existing regulation. Fewer waters will 

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

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

categories such as tributaries. 

The final rule defines tributary, which can include tributaries with ephemeral and 

intermittent flow when they present the required indicators of OHWM and 

bed/banks to indicate sufficient volume, frequency, and duration of water flow. The 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

350

science has demonstrated that tributaries with these features have a strong 

connection to (a)(1)-(3) waters and the agencies have determined that these waters 

have a significant nexus to these downstream waters either individually or in 

aggregate. Having these physical indicators separate the jurisdictional tributaries 

from erosional features. Erosional features that do not meet the definition of 

tributary are excluded under the rule.

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 in the implementation of the final rule 

to make the process predictable, efficient, and effective. None of the existing 

procedures, permitting mechanisms, efficient permitting tools such as general 

permits, or activity exemptions under Section 404(f)(1) of the Clean Water Act, 

including those related to normal farming activities and irrigation and drainage 

ditch maintenance, will be modified as a result of this rulemaking; therefore, 

existing procedures should not be further complicated by this rule. 

Oregon Farm Bureau (Doc. #14727)

12.470 Oregon’s diverse geography and precipitation levels create unique issues in different 

regions. In western Oregon, over decades agriculture landowners have developed 

sophisticated drainage systems necessary for supporting family farms. Due to the 

importance of these drainage systems, by law Oregon has developed drainage districts to 

ensure that waterways are appropriately maintained to ensure water is efficiently and 

effectively drained from agricultural lands. In fact, these districts have a legal obligation 

to maintain ditches and waterways to ensure water can appropriately drain. Based on the 

new/expanded definition, and again for the first time, these drainage districts will require 

404 permits prior to cleaning these ditches. Some of these activities require removal-fill 

permits under Oregon law, and by adding new, cumbersome, and expensive CWA 

regulations, these districts will have significant difficulty meeting their legal obligations 

of draining water. If a drainage district cannot meet its obligation, farmers and ranchers 

will ultimately suffer. (p. 5-6)

Agency Response: See Summary Response. The scope of regulatory jurisdiction 

in this rule is narrower than that under the existing regulation. Fewer waters will 

be defined as “waters of the United States” under the rule than under the existing 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

351

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

categories such as tributaries. 

The final rule defines tributary, which can include tributaries with ephemeral and 

intermittent flow when they present the required indicators of OHWM and 

bed/banks to indicate sufficient volume, frequency, and duration of water flow. The 

science has demonstrated that tributaries with these features have a strong 

connection to (a)(1)-(3) waters and the agencies have determined that these waters 

have a significant nexus to these downstream waters either individually or in 

aggregate. Having these physical indicators separate the jurisdictional tributaries 

from erosional features. Erosional features that do not meet the definition of 

tributary are excluded under the rule.

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 in the implementation of the final rule 

to make the process predictable, efficient, and effective. None of the existing 

procedures, permitting mechanisms, efficient permitting tools such as general 

permits, or activity exemptions under Section 404(f)(1) of the Clean Water Act, 

including those related to normal farming activities and irrigation and drainage 

ditch maintenance, will be modified as a result of this rulemaking; therefore, 

existing procedures should not be further complicated by this rule.

Tennessee Farm Bureau Federation (Doc. #14978)

12.471 Tennessee’s landscape is different than that found in Oregon or Florida. The proposed 

rule tries a one size fits all approach. This will not work. We have pointed out that many 

things have changed since 1972. We ask the Agencies to recognize this. We believe the 

U.S. Supreme Court has given the Agencies an opportunity to reconsider failed policies 

of the past, and move forward with clarity for landowners and cooperative federalism 

among states. (p. 8)

Agency Response: See Summary Response. See the Technical Support Document 

for a summary of the legal basis for the final rule. There are appropriate levels of 

regional variation in implementation of the regulations; however, the agencies strive 

for national consistency. This appropriate regional variation can make it appear 

that there are inconsistencies in program execution. The rule aims to reduce any 

inappropriate inconsistencies and provide a bright line of clarity for the agencies, 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

352

state partners, and the regulated public. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources. Tools exist that recognize this regional variation 

and provide assistance to field staff; for example, the ordinary high water mark 

regional manuals or the regional supplements to the wetland delineation manual, 

both of which are outside the scope of this rulemaking but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 in the implementation of the final rule 

to make the process predictable, efficient, and effective. None of the existing 

procedures, permitting mechanisms, efficient permitting tools such as general 

permits, or activity exemptions under Section 404(f)(1) of the Clean Water Act, 

including those related to normal farming activities and irrigation and drainage 

ditch maintenance, will be modified as a result of this rulemaking; therefore, 

existing procedures should not be further complicated by this rule. 

Colorado Agricultural Aviation Association (Doc. #15033)

12.472 CoAAA and NAAA members would be affected as states adjust their policies: Most 

states have delegated authority for CWA permitting responsibilities including PGPs. The 

types of pesticide uses covered and compliance requirements of PGPs vary remarkably 

from state to state, affecting aerial applicators who routinely work across state lines. 

Furthermore, many state PGPs regulate pesticide discharges into, over or near “waters of 

the states.’ instead of WOTUS, which could establish tensions between the agencies’

proposed rule and state statutes and regulatory policies for water and pesticide programs. 

No doubt delegated states would have to adapt to the agencies’ proposed rule, which 

could severely strain their budget s and manpower resources. In arid and semi-arid 

regions of the West particularly Colorado where a majority of headwaters originate, and 

throughout the country, policy makers and pesticide users likely will be scrambling to 

unravel the complex net of overlapping jurisdiction proposed by the agencies. It is not 

surprising that many state and local governmental organizations, agricultural and 

environmental commissioners, governors and Congress have called on the agencies to 

withdraw the proposed rule. We echo their statements, and urge the rule be withdrawn. 

(p. 5)

Agency Response: See summary response 12.3. The final definitional rule does not 

change or introduce new requirements for complying with the NPDES pesticides 

general permit (PGP). 

Arizona Farm Bureau Federation (Doc. #15064)

12.473 The West, and specifically Arizona, utilizes a complex system of irrigation waterways, 

many of which are indirectly if not directly associated with navigable waterways. 

Irrigation ditches are typically close to larger sources of water, irrigation canals, or actual 

navigable waters that are the source of irrigation water- and may channel return flows 

back to those sources. Given the breadth of the definitions in the proposed rule, the vast 

majority of ephemeral drainage features and ditches on farmland and pastures would be 

categorically regulated as jurisdictional tributaries und the proposed rule. (p. 2)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

353

Agency Response: See Summary Response. The final rule will exclude from 

regulation ephemeral and intermittent ditches that are not a relocated tributary or 

excavated in a tributary. The rule will also exclude ditches that do not flow, either 

directly or through another water, into a water identified in paragraphs (a)(1) 

through (3) of this section. The rule also excludes wastewater recycling structures, 

including water distributary structures built for wastewater recycling. The agencies 

recognize that there are appropriate levels of regional variation in implementation 

of the regulations; however, the agencies strive for national consistency. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources.

12.474 State agencies and local governments were not consulted in creating this proposed rule 

and therefore the benefit of local knowledge is lacking in the rule all together. The arid 

Southwest is evidently different from the Midwest and the East Coast, yet as is often the 

case, the EPA fails to recognize regional differences in applying a “one size fits all”

permitting and regulatory program. (p. 4)

Agency Response: See Summary Response. The agencies circulated the proposed 

rule for public comment and extended the comment period deadline twice in order 

to obtain comments from the regulated community, including state and local 

agencies. Thousands of comments were provided by state and local agencies. During 

that time hundreds of stakeholder and outreach meetings were held, including some 

with state agencies. The agencies have and will continue to engage in sustained 

coordination and partnerships with states and other partners. 

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

Goehring Vineyards, Inc. (Doc. #19464)

12.475 Farmers and ranchers in California have expressed their frustration with the broad and 

inconsistent application of the CWA by Corps field staff. California has a diverse 

landscape that is unique from much of the rest of the United States; therefore, it is even 

more important for jurisdictional determinations to be considered carefully and on a caseby-case basis. 

Based on how the Corps has been implementing the current Guidance, I fear that the 

Proposed Rule (and forthcoming guidance based upon the Proposed Rule) will greatly 

expand the Agencies’ claim of jurisdiction over many areas of California that were -
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

354

appropriately – heretofore unaffected. This is particularly true of the transitional areas 

between the Central Valley floor and the surrounding low foothills, as well as the 

numerous other watersheds with similar topography. These areas often contain seasonal 

and/or isolated wetlands or swales. Because of the gradual elevation descent from the 

foothills to the Valley floor, water runs downhill during rain events. Remember that the 

Central Valley has an arid, Mediterranean climate in which it only rains three months out 

of the year. It does not rain continuously during this time, but rather, rain events occur 

sporadically throughout those three months. It is during major rain events – often only a 

few days per year – that swales will direct water downhill, onto neighboring properties, 

and into the regional watershed. These watersheds contain numerous tributaries that are 

considered “non-navigable relatively permanent” (i.e. contain water at least 3 months of 

the year) under the current Guidance. These tributaries eventually reach a traditional 

navigable waterway, but not for any extended period of time, and not in any significant 

volume. 

Based on the plain language of the Proposed Rule and its preamble, it is conceivable that 

entire watersheds in California could be deemed jurisdictional. Clearly this was not the 

intent of the CWA, nor is it an effective use of resources to protect the true waters of the 

U.S. (p. 16)

Agency Response: See Summary Response. See the Economic Analysis for 

additional information on predicted changes in jurisdiction. The agencies disagree 

that entire watersheds will be determined to be jurisdictional under the final rule. 

The agencies do not have authority to regulate a landowner’s property. The 

agencies only have authority to regulate jurisdictional activities in jurisdictional 

waters of the U.S. under the Clean Water Act. The scope of regulatory jurisdiction 

in this rule is narrower than that under the existing regulation. Fewer waters will 

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

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

categories such as tributaries. 

The final rule was developed to increase CWA program predictability and 

consistency by increasing clarity as to the scope of “waters of the United States” 

protected under the Act. Definitions of certain terms are provided for the first time 

(e.g. tributary), or are further clarified (e.g. adjacent). The final rule provides for 

certain categories of waters that are jurisdictional by rule, which will result in a 

more efficient process. See the updated Economic Analysis for additional 

discussion. 

The final rule defines tributary, which can include tributaries with ephemeral and 

intermittent flow when they present the required indicators of OHWM and 

bed/banks to indicate sufficient volume, frequency, and duration of water flow. The 

science has demonstrated that tributaries with these features have a strong 

connection to (a)(1)-(3) waters and the agencies have determined that these waters 

have a significant nexus to these downstream waters either individually or in 

aggregate. Having these physical indicators separate the jurisdictional tributaries 

from erosional features. Erosional features that do not meet the definition of 

tributary are excluded under the rule.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

355

Charlotte-Mecklenburg Storm Water Services (Doc. #3431)

12.476 This general comment refers to Section 328.3, Federal Register pages 22262-22263. 

Differences in regional conditions should be recognized and regional guidance should be 

developed and published with a public comment period. (p. 3)

Agency Response: See Summary Response. There are appropriate levels of 

regional variation in implementation of the regulations; however, the agencies strive 

for national consistency. This appropriate regional variation can make it appear 

that there are inconsistencies in program execution. The rule aims to reduce any 

inappropriate inconsistencies and provide a bright line of clarity for the agencies, 

state partners, and the regulated public. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources. Tools exist that recognize this regional variation 

and provide assistance to field staff; for example, the ordinary high water mark 

regional manuals or the regional supplements to the wetland delineation manual, 

both of which are outside the scope of this rulemaking but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process consistent, predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule.

Arizona Public Service Company (Doc. #15162)

12.477 In the arid Southwest, watersheds are extremely large with the potential that many small, 

insignificant waters would be determined to be WOTUS. (p. 11).

Agency Response: See Summary Response. The agencies recognize there may be 

situations in the arid West for the significant nexus determinations under (a)(7) and 

(a)(8) waters where the single point of entry watershed is very large, and it may be 

reasonable to evaluate all similarly situated waters in a smaller watershed. The 

preamble provides additional discussion concerning when circumstances warrant 

conducting a significant nexus evaluations on a different scale than the single point 

of entry watershed in the arid West. Only those waters that are determined to have 

a significant nexus would be jurisdictional under (a)(7) and (a)(8) waters. If there 

are water features that meet any of the exclusions then those water features would 

not be jurisdictional by rule. If a water feature does not meet any of the specified 

exclusions but does meet any of the (a)(1)-(a)(6) categories then they would be 

jurisdictional by rule. It is important to note that if a water feature does not meet 

an (a)(1)-(a)(6) category and is not subject to a case-specific nexus evaluation under 

(a)(7) or (a)(8), then it is not jurisdictional even if it is not specifically itemized as 

excluded in paragraph (b). The agencies believe that this approach will provide 

regulators and the public with the clarity and predictability to determine whether 

any water body is jurisdictional on a case-by-case basis.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

356

Western States Water Council (Doc. #9842)

12.478 The WSWC recognizes that further discussion between the states and your agencies is 

needed to develop the specifics of such a process, particularly in light of the considerable 

variety of hydrologic and geologic conditions that exist across the nation. As such, the 

WSWC urges your agencies to work with the WSWC and through the above-requested 

state-federal workgroup to identify and develop specific, quantifiable measures for 

determining significance consistent with the WSWC’s rebuttable presumption concept. 

(p. 5)

Agency Response: See Summary Response. The agencies are developing 

guidance to facilitate effective, consistent, and efficient implementation of the final 

rule once it becomes effective. The agencies strive to achieve consistency across the 

country in all districts and regions in application of the rule for jurisdictional 

determinations. The agencies also recognize that there are variations that occur in 

geography, hydrology, climate, etc., which affect jurisdictional determinations. The 

initial phase of implementing the rule will require education and training for agency 

staff as well as other stakeholders and the regulated public. This training and 

outreach will be regionally-based to ensure appropriate consideration is given to 

ecoregional variation and to ensure consistent and efficient implementation of the 

rule. 

The agencies recognize that the state and local governments have well-defined and 

long-standing relationships in implementing affected CWA programs and these 

relationships will not be altered. This action will not have substantial direct effects 

on the states, on the relationship between the national government and the states, or 

on the distribution of power and responsibilities among the various levels of 

government. The agencies are not restricting the states’ efforts in developing or 

implementing statewide permits under CWA programs as a result of the rule. The 

rule does not diminish or in any way detract from the intent and purpose of CWA 

sections 101(b) and 101(g) regarding the states’ primary and exclusive authority 

over water allocation and water rights administration, as well as state-federal coregulation of water quality. The agencies worked hard to ensure the rule reflects 

these fundamental principles.

Central Arizona Project (Doc. #3267)

12.479 It is under this revised definition of a tributary that we interpret the entire Central Arizona 

Project (CAP) aqueduct system as being considered a tributary of a traditional WOTUS 

because, among other connections, the CAP interconnects and uses Lake Pleasant to store 

water in winter months for release in summer months. If CAP were to fall under the 

revised definition, it would inevitably lead to more costly, complex and time-consuming 

permitting as well as the potential for significant water shortages for Arizona cities 

during aqueduct repair and maintenance activities. Arizona is a desert state and 

dependent on the CAP to provide an uninterrupted flow of water for essential users; 

recent studies also state that CAP water is responsible for one-half of the State’s Gross 

Annual Product. (p. 3)

Agency Response: See Summary Response. The rule only provides a definition 

for “waters of the U.S.” The rule does not affect the CWA statute and the existing 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

357

exemptions including water transfers. The scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. 

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

WaterLaw (Doc. #13053)

12.480 The West’s arid nature necessarily means that ditches for the carriage of water for 

beneficial use originate at the banks of a stream; western ditches rarely, if ever, 

commence in upland zones. Yet the proposed rule exempts irrigation and water supply 

ditches from waters of the United States only if the ditch is “excavated wholly in uplands, 

drains only uplands, and [has] less than perennial flow”. Fed. Reg. Vol. 79, No. 76, at 

22203-4. Western irrigation ditches or water supply ditches do not function to drain 

uplands, are generally not constructed wholly in uplands, and by design, these ditches 

divert from a river, stream, lake or reservoir.1 Accordingly, the Rule will cast a broad net 

over tens of thousands of existing water supply pipelines, conduits, and irrigation ditches 

throughout the West. (p. 4-5)

Agency Response: See Summary Response. See paragraph (b) of the final rule 

and the preamble section on “Waters and Features That Are Not Waters of the 

U.S.” for additional information on excluded features such as certain ditches. The 

scope of regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries. 

The final rule will exclude from regulation ephemeral and intermittent ditches that 

are not a relocated tributary or excavated in a tributary and that would not have 

the effect of draining a wetland. The rule will also exclude ditches that do not flow, 

either directly or through another water, into a water identified in paragraphs (a)(1) 

through (3) of this section. The agencies believe the rule will result in increased 

clarity and certainty regarding the identification of “waters of the U.S.” The 

agencies received many helpful comments on the proposed rule which resulted in 

refinement of the final rule to provide further clarity and certainty to the regulated 

public.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

358

12.481 Colorado’s legislative and practical requirement to return unused water to a stream rather 

than wasting it necessarily conflicts with the Rule’s intent to regulate all ditches 

developed to apply water to beneficial use in Colorado. Other states have similar 

legislative provisions against waste. (p. 5)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. See Summary Response. Refer to the exclusions in paragraph (b) of the 

rule and the preamble section “Waters and Features that Are Not Waters of the 

United States” for further information regarding excluded man-made features such 

as stormwater control features, certain ditches, and water recycling features. 

Central Utah Water Conservancy District (Doc. #14534)

12.482 The propose rule fails to take into account the significant differences that exist in the 

West from conditions that exist in the East, and the impracticality of imposing a one-sizefits-all approach to divergent climates, watershed characteristics, precipitation levels, and 

the shear economic impact of subjecting virtually all activities in any water source to 

regulation. (p. 3)

Agency Response: See Summary Response. There are appropriate levels of 

regional variation in implementation of the regulations; however, the agencies strive 

for national consistency. This appropriate regional variation can make it appear 

that there are inconsistencies in program execution. The rule aims to reduce any 

inappropriate inconsistencies and provide a bright line of clarity for the agencies, 

state partners, and the regulated public. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources. Tools exist that recognize this regional variation 

and provide assistance to field staff; for example, the ordinary high water mark 

regional manuals or the regional supplements to the wetland delineation manual, 

both of which are outside the scope of this rulemaking but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 in the implementation of the final rule 

to make the process consistent, predictable, efficient, and effective. The initial phase 

of implementing the rule will require education and training for agency staff as well 

as other stakeholders and the regulated public, which will include regionally-based 

training to ensure consistent and efficient implementation of the rule.

Colorado Water Congress Federal Affairs Committee (Doc. #14569)

12.483 To the extent isolated waters, as aggregated, intermittent or ephemeral streams, or even 

all tributaries become jurisdictional, it will impede entities’ ability to timely respond to 

the devastating impacts of the forest fires ravaging the West. Post-fire, it is necessary to 

both restore damaged infrastructure, including essential utility infrastructure which may 

be located in close proximity to so-called jurisdictional waters, and to construct new 

facilities designed to hold back debris flows and sediment laden water as rainfall races off 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

359

of what are now newly burned and hence impervious surfaces. Unnecessary permitting 

requirements will only add to the difficulties associated with meeting these challenges. 

(p. 4)

Agency Response: See Summary Response. The agencies disagree that the rule 

will impede the ability to fight forest fires. The Corps regulations define an 

“emergency” as “a situation which would result in an unacceptable hazard to life, a 

significant loss of property, or an immediate, unforeseen, and significant economic 

hardship if corrective action requiring a permit is not undertaken within a time 

period less than the normal time needed to process the application under standard 

procedures.” In emergency situations, Corps Division Engineers, in coordination 

with the Corps District Engineers, are authorized to approve special processing 

procedures to expedite permit issuance. The Corps also uses alternative permitting 

procedures, such as general permits and letters of permission, when appropriate, to 

expedite processing of permit applications for emergencies. The Corps emergency 

permitting procedures can be found in 33 CFR 325.2(e). Certain nationwide 

permits do not require pre-construction notification and such activities can be 

completed without notification as long as they comply with the terms and conditions 

of such permits. In addition, certain discharges of dredged and/or fill material are 

exempt from regulation under section 404(f)(1)(b) under the Clean Water Act that 

are “for the purpose of maintenance, including emergency reconstruction.” 

None of the existing procedures, permitting mechanisms, efficient permitting tools 

such as general permits for discharges associated with certain non-exempt activities 

related to maintenance or clean-up and restoration, or activity exemptions under 

section 404(f)(1) of the Clean Water Act, such as those for normal silviculture 

activities, will be modified as a result of this rulemaking; therefore, existing 

procedures should not be further complicated by this rule.

12.484 In the arid West, as water shortages loom, a critical component of future water supply is 

the “sharing” of water rights between senior agricultural users and junior municipal 

providers on an interruptible supply, e.g., leasing/fallowing, basis. However, to 

implement such sharing opportunities, it is oftentimes necessary to construct new water 

collection and transportation infrastructure. If such construction activity triggers section 

404 and NEPA requirements, it may mean that the transaction becomes technically, 

economically, or temporally infeasible. (p. 5)

Agency Response: See Summary Response. If construction activity occurs in 

waters of the U.S. and results in a non-exempt discharge of dredged and/or fill 

material into such waters, then the activity would require authorization under 

section 404 of the Clean Water Act. However, the final rule has an exclusion for 

wastewater recycling structures created in dry land, including detention and 

retention basins built for wastewater recycling and water distributary structures 

built for wastewater recycling. Additionally, the rule does not diminish or in any 

way detract from the intent and purpose of CWA sections 101(b) and 101(g) 

regarding the states’ primary and exclusive authority over water allocation and 

water rights administration, as well as state-federal co-regulation of water quality. 

The agencies worked hard to ensure the rule reflects these fundamental principles.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

360

EcoSynthesis Scientific & Regulatory Services (Doc. #14586)

12.485 ...the Definition is too broadly worded for some channel features of the arid West. For 

such areas, there must be substantial continuity, and stability in position, for an 

ephemeral feature to be interpreted as actually contributing enough flow, on a regular 

(even if not annual) basis, to have a significant nexus. For the discussion of connectivity 

and the jurisdictional definition to be so broadened that it is applicable also to all 

surrounding uplands – the runoff from which also flows into downstream waters – is not 

appropriate. (p. 1-2)

Agency Response: See Summary Response. The agencies do not have authority to 

regulate a landowner’s property. The agencies only have authority to regulate 

jurisdictional activities in jurisdictional waters of the U.S. under the Clean Water 

Act.

EcoSynthesis Scientific & Regulatory Services (Doc. #14586)

12.486 In the arid West, there are innumerable drainage courses which have bed and bank only 

in their headwaters reaches, and then disappear into alluvial fans or merely into the 

generalized upland landscape for great distances, sometimes miles, before one reaches 

the next identifiable bed and bank. There are also many features which have no bed and 

bank, nor other indicators noted in 33 CFR 328, over most of their length, but which may 

have a bed and bank where they pass through areas of specific soils (such as semicohesive silty soils of valley bottom landforms). Another common situation is a gentle 

hillslope where the channel, such as it is, is not located in a stable location. A fragment 

of bed and bank might be found in one spot, and another disconnected one elsewhere on 

the slope (laterally), with no connectivity of either to downstream waters. The Rule’s 

language is much too broad to conform to the discussions of connectivity upon which its 

determination of significant nexus depends. Peer reviewers made exactly these 

comments, in effect, but their concerns were not reflected in the Rule or Definition. (p. 2)

Agency Response: See Summary Response. The agencies believe that the 

characteristics required to meet the definition of “tributary” are indicators of 

sufficient volume, flow, and duration such that the tributaries have a significant 

nexus, either alone or in combination with other tributaries in the region, to the 

downstream (a)(1) to (a)(3) waters. The definition is based on the best available 

science, the intent of the Clean Water Act, and caselaw, and is consistent with 

current practice. 

The final rule defines tributary, which can include tributaries with ephemeral and 

intermittent flow when they present the required indicators of OHWM and 

bed/banks to indicate sufficient volume, frequency, and duration of water flow. The 

science has demonstrated that tributaries with these features have a strong 

connection to (a)(1)-(3) waters and the agencies have determined that these waters 

have a significant nexus to these downstream waters either individually or in 

aggregate. Having these physical indicators separate the jurisdictional tributaries 

from erosional features. Erosional features that do not meet the definition of 

tributary are excluded under the rule.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

361

Council of Country Club Presidents (Doc. #14919)

12.487 When we have heavy storm conditions, the County advises us what weirs will be opened, 

what lakes will be raised, so developed areas downstream will not be flooded. This is a 

very complex maneuver, a balancing act, mutually operated by our clubs and the County, 

literally on a moment to moment basis. To consider controlling this from afar is 

ludicrous, and dangerous to those of us who live here. Since the activities of the weather 

and the other described potential sources of problems are natural in origin, they will 

happen. But, after years of experience and huge investment the plans now in place and 

the experts we use to respond to problems are in control, and experience proves they have 

the situation well in hand. (p. 1)

Agency Response: See Summary Response. See paragraph (b) of the final rule 

and the preamble section on “Waters and Features That Are Not Waters of the 

U.S.” for additional information on excluded features such as certain stormwater 

control features. The final rule will not affect the operation of any existing flood 

control structures. Additionally, the rule does not diminish or in any way detract 

from the intent and purpose of CWA sections 101(b) and 101(g) regarding the 

states’ primary and exclusive authority over water allocation and water rights 

administration, as well as state-federal co-regulation of water quality. The agencies 

worked hard to ensure the rule reflects these fundamental principles.

Utility Water Act Group (Doc. #15016)

12.488 [Referring to the proposed use of “subsurface and sporadic hydrological flowpaths” to 

determine CWA jurisdiction based on adjacency] In most parts of the country, these areas 

would be very difficult to identify in years of drought conditions or even in years of 

normal rainfall, and these “flowpaths” could be significant distances from upgradient 

isolated wetlands or pools of ponded water. In coastal plain regions, the landscape is full 

of wetlands over which the Agencies have not asserted jurisdiction. As shown in the 

following wetland map of a utility project site area in the Southeast (a map that has been 

verified by the Corps), many wetlands in this region are deemed “isolated” and therefore 

considered non-jurisdictional at present. However, these wetlands could have some flow 

connection to WOTUS (and therefore be considered adjacent waters under the Proposed 

Rule), or be considered to occur in the same floodplain (depending how it is defined), 

riparian area, or ecoregion (depending on how those concepts are defined), and therefore 

be considered “other waters” under the Proposed Rule. If these isolated wetlands were 

WOTUS, this would add substantial costs and burdens to work on the site. (p. 51)

Agency Response: See Summary Response. The Rule will be effective 60 days 

after publication in the Federal Register. Under existing Corps’ regulations and 

guidance, Corps’ approved jurisdictional determinations generally are valid for five 

years. The preamble addresses the status of final JDs and permits as well as 

pending JDs and permits. However, the scope of regulatory jurisdiction in this rule 

is narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

362

Already issued permits are not affected by this rule. Additional implementation 

guidance that is specific to section 404 will be provided by the Corps once the rule is 

effective which will contain more specific aspects of “grandfathering” situations. If 

there are remaining questions, after the publication of the Rule, you may contact 

your local Corps District Office for clarification of section 404-related concerns.

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

12.489 In the arid west, current policies and practices steer many projects away from rivers and 

perennial streams to ephemeral and intermittent streams where there are fewer impacts to 

wetlands and other jurisdictional waters. Expanding the definition will have the 

unintended consequence of taking away this incentive and could result in greater overall 

environmental impacts. To ensure clarity and avoid unintended consequences, we ask 

that the rule specifically incorporate critical elements to make it consistent with the 

Regional Supplement to the Corps of Engineers Manual, Arid West Region (2008) and 

the National Permit (NWP) regulations. For example, the rule should specify nonjurisdictional determinations for ephemeral or intermittent streams where it is unlikely 

that the flow would reach traditionally navigable waters considering any of the following:

 Substantial breaks in jurisdictional features

 Fan or sheet flow or gullies lacking stream definition

 Percolation of flows into groundwater

 Lack of jurisdictional features, such as an ordinary high water mark

 Lack of potential to affect the chemical, biological, and/or physical integrity of a 

traditionally navigable water. (p. 5-6)

Agency Response: See Summary Response. The final rule states that a water that 

otherwise qualifies as a tributary under this definition does not lose its status as a 

tributary if, for any length, there are one or more constructed breaks (such as 

bridges, culverts, pipes, or dams), or one or more natural breaks (such as wetlands 

along the run of a stream, debris piles, boulder fields, or a stream that flows 

underground) so long as a bed and banks and an ordinary high water mark can be 

identified upstream of the break. Paragraph (b) of the final rule excludes 

groundwater and erosional features such as gullies from jurisdiction under the 

Clean Water Act. The agencies have determined that all categories of waters 

jurisdictional by rule under (a)(1)-(a)(6), and those (a)(7)-(a)(8) waters on a casespecific basis, have a significant nexus to downstream (a)(1)-(a)(3) waters and are 

jurisdictional under the Clean Water Act.

The ordinary high water mark manuals developed by the Corps provide 

appropriate indicators to consider when delineating the ordinary high water mark 

in the field. Examples of OHWM indicators may include breaks in the slope, 

changes in vegetation, and changes in the sediment texture and substrate. The 

OHWM manual for the Arid West acknowledges the challenges in identifying the 

ordinary high water mark in the region; however, it provides the applicable 

indicators in the region to use when delineating the lateral extent of the OHWM in 

the Arid West.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

363

Northern Colorado Water Conservancy District, Berthoud, Colorado (Doc. #15114)

12.490 This proposal would change the jurisdictional status of many ephemeral and intermittent 

drainages in the arid West that have long been regarded as non-jurisdictional. The vast 

majority of drainages in Colorado fit in this category. The expansion of jurisdiction 

under the regulatory changes proposed may have serious unintended consequences, 

including the risks inherent in a regulatory approach that will consume and dilute scarce 

federal and non-federal agency resources as the result of the extension of jurisdictional 

status to virtually the entire universe of drainages. (p. 5)

Agency Response: See Summary Response. See the Economic Analysis for 

additional information on predicted changes in jurisdiction. The scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries. 

The agencies believe that the characteristics required to meet the definition of 

“tributary” are indicators of sufficient volume, flow, and duration such that the 

tributaries have a significant nexus, either alone or in combination with other 

tributaries in the region, to the downstream (a)(1) to (a)(3) waters. The definition is 

based on the best available science, the intent of the Clean Water Act, and caselaw, 

and is consistent with current practice. 

The final rule defines tributary, which can include tributaries with ephemeral and 

intermittent flow when they present the required indicators of OHWM and 

bed/banks to indicate sufficient volume, frequency, and duration of water flow. The 

science has demonstrated that tributaries with these features have a strong 

connection to (a)(1)-(3) waters and the agencies have determined that these waters 

have a significant nexus to these downstream waters either individually or in 

aggregate. Having these physical indicators separate the jurisdictional tributaries 

from erosional features. Erosional features that do not meet the definition of 

tributary are excluded under the rule.

The agencies believe with the clarity and certainty provided in the rule that there 

will be efficiencies gained in making jurisdictional determinations. The Corps will 

develop the tools necessary to assist its staff with the jurisdictional determination 

process specific to section 404 during the implementation of the final rule to make 

the process predictable, efficient, and effective. The initial phase of implementing 

the rule will require education and training for agency staff as well as other 

stakeholders and the regulated public, which will include regionally-based training 

to ensure consistent and efficient implementation of the rule. 

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

12.491 (...) [T]he wide diversity of landscapes across our country provides great variation of 

hydrology, connectedness, and ecological integrity. This vast geography and variability 

cannot easily be defined by a single definition that fits all the unique characteristics 

across this country and that can appropriately integrate all of its variables without 

creating implementation challenges and unintended consequences. A broad definitional 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

364

framework is necessary to provide consistency and fairness in implementation across the 

country, but a process is also needed to fine-tune the definition by region or other 

appropriate scales so it is appropriately applicable to variations in region, hydrology, and 

landscapes. (p. 2)

Agency Response: See Summary Response. There are appropriate levels of 

regional variation in implementation of the regulations; however, the agencies strive 

for national consistency. This appropriate regional variation can make it appear 

that there are inconsistencies in program execution. The rule aims to reduce any 

inappropriate inconsistencies and provide a bright line of clarity for the agencies, 

state partners, and the regulated public. The agencies believe the clarity and 

certainty provided in the rule will result in further consistency, while still allowing 

for regional variation in implementation that may be necessary based on regional 

differences in aquatic resources. Tools exist that recognize this regional variation 

and provide assistance to field staff; for example, the ordinary high water mark 

regional manuals or the regional supplements to the wetland delineation manual, 

both of which are outside the scope of this rulemaking but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process consistent, predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule.

Grand Valley Water Users Association (Doc. #15467)

12.492 All “tributaries” would be categorized as jurisdictional, including ephemeral and 

intermittent drainages. This is problematic in the arid West where an ephemeral 

“tributary” may not be jurisdictional because there is no significant nexus to traditionally 

navigable water. (p. 3)

Agency Response: See Summary Response. The agencies believe that the 

characteristics required to meet the definition of “tributary” are indicators of 

sufficient volume, flow, and duration such that the tributaries have a significant 

nexus, either alone or in combination with other tributaries in the region, to the 

downstream (a)(1) to (a)(3) waters. The Corps will develop the tools necessary to 

assist its staff with the jurisdictional determination process specific to section 404 

during the implementation of the final rule to make the process predictable, 

efficient, and effective. The initial phase of implementing the rule will require 

education and training for agency staff as well as other stakeholders and the 

regulated public, which will include regionally-based training to ensure consistent 

and efficient implementation of the rule. 

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

365

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

Cache La Poudre Water Users Association (Doc. #15499)

12.493 Particularly troubling is the EPA’s effort to gain jurisdiction over man made reservoirs 

and ditches. As the EPA is no doubt aware, in Colorado and throughout the West, very 

few such manmade ditches and reservoirs would qualify to be exempted under the 

Proposed Rule’s very narrow exemption parameters. Thus, with the Proposed Rule, 

CWA jurisdiction would suddenly sweep in literally thousands of ditches and reservoirs 

that serve millions of people and irrigate hundreds of thousands of acres in the West. (p. 

2)

Agency Response: See Summary Response. See paragraph (b) of the final rule 

and the preamble section on “Waters and Features That Are Not Waters of the 

U.S.” for additional information on excluded features such as certain ditches and 

wastewater recycling structures. The scope of regulatory jurisdiction in this rule is

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries. 

The agencies believe the rule will result in increased clarity and certainty regarding 

the identification of “waters of the U.S.” The agencies received many helpful 

comments on the proposed rule which resulted in refinement of the final rule to 

provide further clarity and certainty to the regulated public.

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

12.494 Of particular concern to the Lower Ark WCD is the preservation and promotion of 

irrigated agriculture, the economic engine of the Lower Arkansas Valley of Colorado. 

Preserving the existing use of “native” in-basin water and so-called “foreign” water 

transferred into the basin from the Colorado River basin are critical issues for irrigated 

agriculture within the Lower Arkansas Valley. (p. 2)

Agency Response: See Summary Response. See paragraph (b) of the final rule 

and the preamble section on “Waters and Features That Are Not Waters of the 

U.S.” for additional information on excluded features such as certain ditches and 

wastewater recycling structures. The agencies believe the rule will result in 

increased clarity and certainty regarding the identification of “waters of the U.S.” 

The agencies received many helpful comments on the proposed rule which resulted 

in refinement of the final rule to provide further clarity and certainty to the 

regulated public. 

The rule does not diminish or in any way detract from the intent and purpose of 

CWA sections 101(b) and 101(g) regarding the states’ primary and exclusive 

authority over water allocation and water rights administration, as well as state-
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

366

federal co-regulation of water quality. The agencies worked hard to ensure the rule 

reflects these fundamental principles.

Cloud Peak Energy (Doc. #18010)

12.495 The current definition is problematic as many of the physical indicators used to define the 

OHWM may occur wherever land has water flowing across it, regardless of frequency or 

duration. Many of the indicators (e.g., changes in character of the soil, destruction of 

native terrestrial vegetation, presence of litter and debris) can be observed in very small 

drainages and even in upland areas, especially in arid areas in Wyoming. Use of the term 

OHWM “as is” will result in the inclusion of ephemeral channels that have little 

influence over the quality or quantity of downstream waters. (p. 3-4)

Agency Response: See Summary Response. The agencies believe that the 

characteristics required to meet the definition of “tributary” are indicators of 

sufficient volume, flow, and duration such that the tributaries have a significant 

nexus, either alone or in combination with other tributaries in the region, to the 

downstream (a)(1) to (a)(3) waters. The Corps will develop the tools necessary to 

assist its staff with the jurisdictional determination process specific to section 404 

during the implementation of the final rule to make the process predictable, 

efficient, and effective. The initial phase of implementing the rule will require 

education and training for agency staff as well as other stakeholders and the 

regulated public, which will include regionally-based training to ensure consistent 

and efficient implementation of the rule. 

The agencies believe the clarity and certainty provided in the rule will result in 

further consistency, while still allowing for regional variation in implementation 

that may be necessary based on regional differences in aquatic resources. Tools 

exist that recognize this regional variation and provide assistance to field staff; for 

example, the ordinary high water mark regional manuals or the regional 

supplements to the wetland delineation manual, both of which are outside the scope 

of this rulemaking but are related resources.

Coalition of Renewable Energy Landowner Associations (Doc. #14626)

12.496 State Engineers and their staffs make hydrologic assessments of surface flow and ground 

water assessment within their respective states for planning purposes. Interstate 

compacts set protocol and establish legal foundations between states on surface flow and 

ground diversion. Does a significant nexus determination to create a new water of the 

United States violate existing compact laws between states? These agreements address 

interstate commerce and water quality and believe that as a regional concern the issues 

related to navigability and water quality are more than adequately addressed without 

invoking federal jurisdiction. These agreements in many cases establish comprehensive 

standards of practice required and necessary for water measurement and delivery and deal 

with the issues related to silt flow and use sound science based upon long-term 

monitoring and long-range forecasting. We are concerned that waters of the U.S. rules 

and the application on a case by case basis do not take into account regional variability in 

water quality, weather conditions, and flow patterns. (p. 5)
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367

Agency Response: See Summary Response. The agencies recognize that there 

are appropriate levels of regional variation in implementation of the regulations; 

however, the agencies strive for national consistency. The agencies believe the 

clarity and certainty provided in the rule will result in further consistency, while 

still allowing for regional variation in implementation that may be necessary based 

on regional differences in aquatic resources. Tools exist that recognize this regional 

variation and provide assistance to field staff; for example, the ordinary high water 

mark regional manuals or the regional supplements to the wetland delineation 

manual, both of which are outside the scope of this rulemaking but are related 

resources. 

The rule does not diminish or in any way detract from the intent and purpose of 

CWA sections 101(b) and 101(g) regarding the states’ primary and exclusive 

authority over water allocation and water rights administration, as well as statefederal co-regulation of water quality. The agencies worked hard to ensure the rule 

reflects these fundamental principles. The agencies recognize that the state and 

local governments have well-defined and long-standing relationships in 

implementing affected CWA programs and these relationships will not be altered. 

This action will not have substantial direct effects on the states, on the relationship 

between the national government and the states, or on the distribution of power and 

responsibilities among the various levels of government. The agencies are not 

restricting the states’ efforts in developing or implementing statewide permits under 

CWA programs as a result of the rule.

Western Resource Advocates (Doc. #16460)

12.497 In other parts of the country, clarifying the definition of WOTUS may have an impact on 

many Clean Water Act programs. However, in the West, this rule will almost exclusively 

affect state certification and federal permitting for the discharge of dredged and fill 

materials under section 404 of the Act.101 This is so because the all six states in WRA’s 

region have delegated section 402 point source discharge programs and all have 

definitions of waters of the state that are already much broader than that of the federal 

agencies, but do not have authority to issue their own section 404 permits. (p. 4-5)

Agency Response: See Summary Response. The agencies believe that the rule will 

significantly improve consistency and predictability for all Clean Water Act 

programs. The rule only provides a definition for “waters of the U.S.” The rule does 

not affect the CWA statute in which authorization may be required for discharges 

of dredged and/or fill material into waters of the U.S., or other activities in 

jurisdictional waters of the U.S., including for example, NPDES permits, and water 

quality certifications. The agencies recognize that the state and local governments 

have well-defined and long-standing relationships in implementing affected CWA 

programs and these relationships will not be altered. This action will not have 

substantial direct effects on the states, on the relationship between the national 

government and the states, or on the distribution of power and responsibilities 

 

101 As well as state certification for other federal permits and licenses, i.e., Federal Energy Regulatory Commission 

hydropower licenses. 
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368

among the various levels of government. The agencies are not restricting the states’ 

efforts in developing or implementing statewide permits under CWA programs as a 

result of the rule.

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

12.498 We strongly urge that the federal agencies emphasize and increase coordination with state 

and tribal co-regulators in development of the final rule and associated guidance, and in 

implementation. Numerous states and tribes have developed effective and proven 

technical and field methods to document many of the connections and types of waters 

defined in the rule. We believe that where such procedures are consistent with the overall 

requirements of the rule, they should be readily accepted. 

Numerous states and tribes also have existing agreements with Corps Districts and other 

agencies regarding regulatory procedures that are addressed by or may be affected by the 

proposed rule. To the extent that such agreements can be maintained (recognizing the 

need for consistency with the overall rule), regulatory delays will be minimized. (p. 4)

Agency Response: See Summary Response. The agencies extended the comment 

period twice in order to ensure adequate time for public comments. The public 

comment period also included hundreds of outreach and stakeholder events, 

including many with local and state agencies. The agencies received numerous 

letters from state and tribal co-regulators, which were reviewed prior to drafting 

the final rule and were helpful in developing the final rule language. Upon 

promulgation of the final rule, individual Corps Districts may find it necessary to 

re-evaluate any existing agreements with state/local agencies regarding jurisdiction 

under the final rule. 

The agencies recognize that the state and local governments have well-defined and 

long-standing relationships in implementing affected CWA programs and these 

relationships will not be altered. This action will not have substantial direct effects 

on the states, on the relationship between the national government and the states, or 

on the distribution of power and responsibilities among the various levels of 

government. The agencies are not restricting the states’ efforts in developing or 

implementing statewide permits under CWA programs as a result of the rule.

12.499 We urge the federal agencies to continue attention to distinguishing between the 

jurisdictional definition of Waters of the United States and the waters that are assumable 

by states under §404(g) of the CWA. 

The preamble to the proposed rule includes the statement: 

“Today’s proposal does not affect the scope of waters subject to state assumption of 

the section 404 regulatory program under Section 404(g) of the CWA. ... The scope 

of waters that are subject to state and tribal permitting is a separate inquiry and must 

be based on the statutory language of the CWA. ...” 

We concur with this statement, but are also of the opinion that a more definitive 

clarification of the scope of assumable waters is needed to facilitate ongoing development 

of state-federal coordination. (p. 4)
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369

Agency Response: See Summary Response. The final rule does not affect the 

scope of waters subject to assumption under Section 404(g) of the CWA. The 

agencies recognize that the state governments have well-defined and long-standing 

relationships in implementing affected CWA programs and these relationships will 

not be altered. This action will not have substantial direct effects on the states, on 

the relationship between the national government and the states, or on the 

distribution of power and responsibilities among the various levels of government. 

The agencies are not restricting the states’ efforts in developing or implementing 

statewide permits under CWA programs as a result of the rule.

National Parks Conservation Association (Doc. #15130)

12.500 In addition to protecting scientifically-important headwater, ephemeral, and intermittent 

streams themselves, the rule also provides for the evaluation of these waters in 

“networks” and aggregation of small features. When considered together, these networks 

represent a collection of waters with strong connectivity to downstream water bodies and 

other features (Gomi, Sidle, and Richardson 2002), like park units. Taken individually, 

small streams in headwater systems may not always display discretely significant 

contributions to higher order streams; however, their strong biological and chemical 

connections become more apparent when headwater streams are analyzed as the networks 

that science has clear methods for identifying (e.g., see NCDWQ 2010 and various 

guidance documents from USACE).102

These stream types are important to national parks across the country. The southwestern 

U.S. and Colorado River watershed, for example, is especially reliant on intermittent and 

ephemeral streams (Levick et al. 2008). These streams constitute over 81 percent of all 

streams in this region, which includes such icons as the Grand Canyon National Park, 

Lake Mead National Recreation Area, and the Glen Canyon National Recreation Area. 

These parks alone have over 12 million visitors each year (NPS 2013). Colorado River 

headwaters are in Rocky Mountain National Park. The Colorado River supplies seven 

states with water, hydropower, flood control, recreation, and habitats. Many areas in the 

Colorado watershed have generally arid climates where many important streams dry up 

or flow infrequently. Reliable water flows in the Colorado are also necessary to fulfill 

the U.S.’s 1944 treaty obligation to annually deliver certain volumes to Mexico. Longterm trends in precipitation and temperature patterns suggest mean annual runoff in this 

area will decrease by 8.5 percent by 2050, making it especially important to protect the 

quality and quantity of what little water may be left (DOI 2011).

Glacier National Park’s Flathead River region is an area where headwater pollution 

threatens U.S. national parks. The Flathead River feeds the iconic Glacier National Park, 

but the river has its headwaters in British Columbia, Canada. The U.S. Congress and 

Canadian Parliament both designated these combined areas as the world’s first 

 

102 Overzealous application of the aggregation concept is prevented by the rule’s requirement that the case-specific 

scientific analysis of aggregations be “more than speculative or insubstantial,” as Justice Kennedy suggested. 

Furthermore, delineations of streams with significant nexuses are fairly reliable in areas with healthy bank 

vegetation, which helps channel locations to not naturally move over time; this is especially true in mountainous 

areas which contain many headwaters with winter permafrost that hardens banks and slows stream flow (Crawford 

and Stanley 2014).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

370

International Peace Park, the Waterton-Glacier Peace Park, which the United Nations 

recognized as a World Heritage Area in 1995. However, recently, a Canadian land-use 

plan almost permitted significant pollution in the headwaters of the Flathead River 

Valley, thereby directly threatening the internationally significant natural resources in 

Glacier National Park (NPCA 2010a). Fortunately, the British Columbia Premier and 

Montana Governor agreed to protect the trans-boundary Flathead River valley from 

energy exploitation. Recent regulatory uncertainties regarding the “waters of the United 

States” threaten to expand the same problem within the U.S.

Shenandoah National Park is home to major headwaters for the Chesapeake watershed. 

The Shenandoah River and neighboring tributaries feed into the Chesapeake Bay, which 

is the largest estuary system in North America. There are over 55 national park units in 

the Chesapeake region, and the bay’s rate of flow and quality affect drinking water, 

recreation, and commercial fishing in the surrounding regions. A 2010-2012 survey 

found that only 31 percent of the Chesapeake Bay was attaining water quality standards 

(including dissolved oxygen, water clarity, underwater bay grasses, and chlorophyll-a 

concentrations – all vital to aquatic ecosystem health). The goal is to have 60 percent 

attain these standards by 2025 (FLCCB 2014). Seventeen million people live in the 

Chesapeake watershed, which spans six states and the District of Columbia, has nearly 

12,000 miles of shoreline, and is the largest estuary system in North America with 150 

major rivers and streams, and 100,000 smaller streams, creeks, and rivers (Chesapeake 

Bay Program). The Shenandoah watershed provides some of the cleanest contributions 

to the Bay (USGS watershed online mapper), and this is largely a result of strong 

protections for the streams in and surrounding the park.

In addition, the Snake River’s headwaters largely overlap the southwest areas of 

Yellowstone National Park (having strong connection to Jackson Lake). The Snake 

River passes through Grand Teton National Park, the Snake River Wild and Scenic River, 

and many non-national park lands in between. Flowing east, Yellowstone National Park 

also contains one of the branches of the headwaters of the Missouri River, which 

eventually flows into the Mississippi River and Gulf of Mexico. (p. 3-4)

Agency Response: See Summary Response. See the Technical Support Document 

for a summary of the scientific basis for the final rule. The scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

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

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

existing categories such as tributaries. 

The agencies recognize that ephemeral and intermittent tributaries also have a 

significant nexus either individually or in aggregate to downstream (a)(1) to (a)(3) 

waters. The goal of the CWA is to protect the chemical, physical, and biological 

integrity of our nation’s waters, including headwater streams which meet the 

definition of tributary. The agencies received many helpful comments on the 

proposed rule which resulted in refinement of the final rule to provide further 

clarity and certainty to the regulated public.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

371

Mercatus Center at George Mason University (Doc. #12754)

12.501 A danger of increased federal jurisdiction is one-size-fits-all rulings that ignore the 

realities of vastly different ecosystems across the United States. To produce a 

comprehensive economic and environmental benefit-cost analysis for each different 

ecosystem within the United States, An example of this difference is the common 

occurrence of ephemeral and intermittent streams in desert areas in the western United 

States. For example, 94 percent of Arizona’s and 88 percent of New Mexico’s 

waterways are intermittent or ephemeral in nature. Often, a variety of environmental 

factors create waterways during rainstorms where none existed previously. As such, this 

jurisdictional increase may disproportionately affect development in the Desert 

Southwest. The agencies’ own study of ephemeral and intermittent streams noted that 

such formations are prominent in areas of high economic growth in Nevada and 

Arizona.103 Extending de facto jurisdiction to these areas would require that much of this 

development be subject to lengthy, costly permitting processes. The agencies have yet to 

show thoroughly that the environmental benefits would outweigh the economic costs. (p. 

5)

Agency Response: See Summary Response. See the Economic Analysis for a 

discussion on the predicted changes in jurisdiction and costs/benefits of the final 

rule. See paragraph (b) of the final rule and the preamble section on “Waters and 

Features That Are Not Waters of the U.S.” for additional information on excluded 

features such as erosional features which do not meet the definition of tributary. 

The agencies believe that the characteristics required to meet the definition of 

“tributary” are indicators of sufficient volume, flow, and duration such that the 

tributaries have a significant nexus, either alone or in combination with other 

tributaries in the region, to the downstream (a)(1) to (a)(3) waters. The agencies will 

develop the tools necessary to assist with the jurisdictional determination process in 

the implementation of the final rule to make the process predictable, efficient, and 

effective. 

There are appropriate levels of regional variation in implementation of the 

regulations; however, the agencies strive for national consistency. This appropriate 

regional variation can make it appear that there are inconsistencies in program 

execution. The rule aims to reduce any inappropriate inconsistencies and provide a 

bright line of clarity for the agencies, state partners, and the regulated public. The 

agencies believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

 

103 EPA, The Ecological and Hydrological Significance of Ephemeral and Intermittent Streams in the Arid and semiArid American Southwest, November 2008, http://www.epa.gov/esd/landsci/pdf/EPHEMERAL_STREAMS_REPORT_Final_508-Kepner.pdf. 
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372

U.S. Congress, Barrasso et al. (Doc. # 4901)

12.502 We fail to understand why the EPA has not adequately consulted our Governors about a 

rule that has such a significant impact on the economy of our states. For example, rural 

states in the West have sizeable ranching and farming operations that will be seriously 

impacted by this rule. Despite the claim that the Army Corps will exempt 53 farming 

practices as established by the Natural Resource Conservation Service, the list of 53 does 

not cover all existing agricultural practices. There are a number of farming and ranching 

practices, such as the application of pesticides, that are not covered on this list that occur 

every day in the West without penalty. Under this new proposed rule, it appears those 

farmers and ranchers will need to get a permit or be penalized if they continue to use 

those non-covered practices in new federal waters. (p. 1)

Agency Response: See Summary Response. The proposed rule was placed on 

public notice, specifically to solicit from all interested parties, including states. The 

public comment period was also extended twice in order to accommodate additional 

time requirements for providing responses. Also, hundreds of outreach and 

stakeholder events were held during the public comment period including many 

with local and state agencies. The agencies received numerous letters from state coregulators, which were reviewed prior to drafting the final rule and were helpful in 

developing the final rule language. None of the existing procedures, permitting 

mechanisms, efficient permitting tools such as general permits, or activity 

exemptions under section 404(f)(1) 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. This comment also pertains to the Interpretive Rule 

regarding agricultural exemptions, which was withdrawn on January 29, 2015, and 

is beyond the scope of this rulemaking effort.

U. S. Congress, Cartwright et al. (Doc. #4983)

12.503 We write as members of Congress representing areas located within the Chesapeake Bay 

watershed, to thank you for your leadership on efforts to restore the Bay and other critical 

waters throughout our region, and to urge you to continue to act to protect tributary 

streams and wetlands in our watershed and across the nation. (p. 1)

Agency Response: See Summary Response. The agencies acknowledge the 

congressional support for the rule.

United States House of Representatives (Doc. #17458)

12.504 Having access to a clean water source is vital to our region’s continued economic growth. 

More than two million area residents and 42 million visitors who frequent our worldclass hotels, casinos, restaurants, shows, and shops annually are dependent on our limited 

water resources. This necessity is all the more challenged by the fact that 90% of our 

water comes from one source, Lake Mead, which is fed by the Colorado River and in is 

adversely affected by a extreme drought. (p. 5)

Agency Response: See Summary Response. The goal of the CWA is to protect the 

chemical, physical, and biological integrity of our nation’s waters. The agencies 

have been implementing this mission since the inception of the CWA. The final rule 

was developed to increase CWA program predictability and consistency by 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

373

increasing clarity as to the scope of “waters of the United States” protected under 

the Act. 

12.505 Accordingly, I appreciate the hard work of the Administration on proposing a rule to do 

just that. I applaud the intent of the Administration to protect the waters of the United 

States, but do have some concerns about your proposed rule and how it will impact 

communities like mine in the desert Southwest. It is imperative that we get this rule right 

so there is predictability moving forward. (p. 5)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. There are 

appropriate levels of regional variation in implementation of the regulations; 

however, the agencies strive for national consistency. This appropriate regional 

variation can make it appear that there are inconsistencies in program execution. 

The rule aims to reduce any inappropriate inconsistencies and provide a bright line 

of clarity for the agencies, state partners, and the regulated public. The agencies 

believe the clarity and certainty provided in the rule will result in further 

consistency, while still allowing for regional variation in implementation that may 

be necessary based on regional differences in aquatic resources. Tools exist that 

recognize this regional variation and provide assistance to field staff; for example, 

the ordinary high water mark regional manuals or the regional supplements to the 

wetland delineation manual, both of which are outside the scope of this rulemaking 

but are related resources.

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process consistent, predictable, efficient, and effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public, which will include regionallybased training to ensure consistent and efficient implementation of the rule.

12.506 The proposed rule (Definition of “Waters of the United States” Under the Clean Water 

Act), includes for the first time a regulatory definition of “tributary.” This language 

references “sedimentary tributaries” expanding coverage to systems that were not 

covered under the Clean Water Act before. Can you clarify the intent of this new 

definition and how systems, in particular ephemeral streams that are common in the 

desert Southwest, will be impacted? (p. 5)

Agency Response: See Summary Response. See paragraph (b) of the final rule 

and the preamble section on “Waters and Features That Are Not Waters of the 

U.S.” for additional information on excluded features such as erosional features 

which do not meet the definition of tributary. The final rule contains a definition of 

tributary which was modified in response to comments to provide increased clarity. 

The agencies believe that the characteristics required to meet the definition of 

“tributary” are indicators of sufficient volume, flow, and duration such that the 

tributaries have a significant nexus, either alone or in combination with other 

tributaries in the region, to the downstream (a)(1) to (a)(3) waters. The Corps will 

develop the tools necessary to assist its staff with the jurisdictional determination 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

374

process specific to section 404 during the implementation of the final rule to make 

the process predictable, efficient, and effective. The agencies recognize that there 

are appropriate levels of regional variation in implementation of the regulations; 

however, the agencies strive for national consistency. The agencies believe the 

clarity and certainty provided in the rule will result in further consistency, while 

still allowing for regional variation in implementation that may be necessary based 

on regional differences in aquatic resources.

Congress of the United States (Doc. #19302)

12.507 As you are aware, Florida is unique in its topography and underground aquifer system. 

Our state is only slightly above sea-level and is relatively flat, which makes the state 

dependent upon an effective stormwater management system. The water management 

system also protects and improves the quality of water in Florida. Accordingly, the state 

has an extensive network of man-made ditches, canals, and ponds for flood control, 

irrigation, storm water management, and water quality improvement. 

We have heard concerns from Florida stakeholders on potential impacts this proposed 

rule could have on our communities. We believe that these concerns warrant further 

analysis of the costs and benefits of the proposed rule on our state. Accordingly, we 

request an additional 60 day extension of the comment period to provide your agency 

additional time to work with our state agencies and stakeholders to review and 

understand the proposed rule and its impact on our state; and collect and analyze data on 

possible adjustments that could be made to the proposed rule. We look forward to 

learning the results of those discussions. (p. 1)

Agency Response: See Summary Response. See paragraph (b) of the final rule 

and the preamble section on “Waters and Features That Are Not Waters of the 

U.S.” for additional information on excluded features such as certain ditches and 

stormwater control features. The proposed rule was placed on public notice in 

April 2014 and the public comment period was extended twice in order to ensure 

adequate time for comment. 

12.2. 401

Summary Response

Section 401 of the Clean Water Act requires applicants for federal licenses or permits that will 

result in discharges into navigable waters to seek certification from the state in which the 

discharge originates that the discharge will comply with certain provisions of the CWA including 

state water quality standards as identified and adopted by the state. Although state standards 

must apply at a minimum to federally defined waters, the states identify which waters have 

standards and may adopt standards for additional waters within the state. In implementing 

section 401, the states have the discretion to certify, deny, or waive certification and some states 

do use a state issued permit to certify projects. Other states use a specific certification.

The final rule does not establish any regulatory requirements, and questions about 

implementation of the CWA Section 401 program are beyond the scope of the rulemaking. 
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Instead, the final rule is a definitional rule that clarifies the scope of “waters of the United States” 

consistent with the Clean Water Act (CWA), Supreme Court precedent, and science. Programs 

established by the CWA, such as the section 402 National Pollution Discharge Elimination 

System (NPDES) permit program, the section 404 permit program for discharge of dredged or 

fill material, and the section 311 oil spill prevention and clean-up programs, all rely on the 

definition of “waters of the United States.” Entities that currently are regulated under these 

programs that protect “waters of the United States” will continue to be. 

Because the scope of regulatory jurisdiction in the final rule is narrower than under the existing 

regulation, the rule does not expand the number of dischargers who need section 402 or 404 

permits or 401 certification. The rule does not change requirements in existing section 402 or 

404 permits or 401 certifications, and does not change requirements for future section 402 or 404 

permits or 401 certifications. The rule does not change the Clean Water Act’s definition of “point 

source” or “discharge of a pollutant” and does not establish new categories of point sources or 

discharges. The rule was not changed to address comments to this effect. 

Along with a narrowing of jurisdiction, the rule also significantly reduces the uncertainty and 

number of case-specific determinations that will be required, reducing state and federal workload 

associated with jurisdictional determinations. In addition, the existing state programs 

implementing the CWA were developed under the prior regulatory definition of “Waters of the 

United States,” but may include other state waters beyond the scope of federal jurisdiction. 

Existing programs have in the past and can continue in the future to address the scope of “Waters 

of the United States” under the final rule without an increase in administrative and programmatic 

costs.

Specific Comments

Virginia Department of Transportation (Doc. #12756)

12.508 One unintended consequence of the proposed rule as written is the impact on State 

Section 401 programs, such as Virginia’s Water Protection Permit (VWPP) program. 

While a feature may be considered a WOUS under the proposed rule, the Corps may not 

have permitting authority over most maintenance activities that involve the removal of 

material with bucket-type equipment and disposal at a suitable upland location. However, 

the VWPP requires a permit for this activity when the Corps does not require or issue a 

permit. (p. 9)

Agency Response: Comments noted, however, as noted in summary response 12.2, 

states may use a permit to provide certification which will be based on the scope of 

state water quality standards. In addition, the definition of a discharge is outside 

the scope of this rulemaking. 

California State Water Resources Control Board (Doc. #15213)

12.509 (...) [W]e rely heavily on the Agencies’ activities under the section 404 dredge and fill 

program to leverage our limited staff resources in the section 401 water quality 

certification program. A narrow definition of “waters of the United States” would require 

additional state resources to achieve the same level of protection as is afforded under the 

section 404 program today. By contrast, the proposed definition of “waters of the United 
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376

States” will not increase the type and number of water bodies that are protected only 

under state law, and will also reduce the number of case -by -case determinations. This 

will facilitate the processing of CWA section 401 certification applications, and decrease 

Water Boards staffs’ time spent on ensuring that impacts to waters are addressed and 

appropriately mitigated and monitored. Improved alignment of federal and state 

jurisdictional waters will also likely decrease permit processing time to the benefit of 

applicants. (p. 3)

Agency Response: The final rule includes several changes to provide the 

additional clarity mentioned while reducing the number of case-specific 

determinations of jurisdiction required. As noted in summary response 12.2, the 

state Section 401 certification is based on the state water quality standards which by 

definition apply to waters identified by the state. 

Georgia Environmental Protection Division (Doc. #16348)

12.510 Based on the proposed definition of WOTUS, more projects will likely be subject to 404 

permitting requirements by the Corps. That would result in some increases to EPD’s 401 

water quality certification review and issuance process. This is a program within EPD 

that has already experienced a decrease in funding from EPA. The increase in work 

would be difficult for staffing and the impacts would be felt by all applying for permits. 

The Corps routinely regulates impacts to ephemeral streams in Georgia, so any increases 

to the linear feet of stream that may be regulated will likely be less than the increases to 

acres of wetlands that may be regulated. This will particularly be true in the southern 

half of the state, where isolated wetland features that occur in the landscape may now be 

subject to 404 protections under the proposed rule. 

More wetlands and ponded areas would be expected to become jurisdictional waters 

under the proposed rule. EPD already covers ditches and channels as point sources under 

our stormwater permitting program. EPD expects a likely increase in coverages under 

the NPDES stormwater permits. 

In fully considering the economic impacts of the proposed rule, EPA and the Corps 

should also estimate the additional administrative and programmatic costs that might be 

experienced by state governments who implement various CWA programs. (p. 2)

Agency Response: See summary response 12.2 above. For specific discussion of 

the jurisdictional status of stormwater control features as waters of the U.S., please 

see compendium 7, summary response at 7.4.4.

Water Advocacy Coalition (Doc. #17921.1)

12.511 Under CWA section 401, any applicant for a federal license or permit to conduct any 

activity that will result in a discharge into waters of the United States (e.g., a section 404 

permit) must obtain a State water quality certification. Because the proposed rule will 

result in increased section 404 permitting requirements, and more activities will affect the 

expanded universe of waters of the United States, more activities will trigger section 401 

state water quality certification requirements.104 Project proponents will increasingly 

 

104 See 33 U.S.C. § 1341. 
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have to go through the 401 certification process and comply with applicable WQS, 

effluent limits, and other conditions imposed by the States. Furthermore, States may 

struggle to process certification requests as they work to manage the influx of new permit 

applications, thus increasing the burdens on States’ already strained resources. There will 

also be more opportunities for States and interest groups to block or delay projects during 

the certification process. (p. 76-77)

Agency Response: Please see summary response 12.2 above. The authorities 

granted under CWA section 401 to states are outside the scope of this rulemaking. 

National Association of Home Builders (Doc. #19540)

12.512 The Proposed Rule will Result in Increased Clean Water Act Section 401 Water Quality 

Certification Requirements.

Under the CWA, an applicant for a federal license or permit to conduct any activity that 

may result in a discharge to waters of the United States (e.g., a Section 402 or 404 

permit) must provide the federal agency with a Section 401 certification.105 The 

certification, made by the state, declares that the discharge will comply with applicable 

provisions of the Act, including water quality standards. A state’s water quality 

standards specify the designated use of a water body (e.g., for drinking water supply or 

recreation), pollutant limits necessary to protect the designated use, and policies to ensure 

that existing water uses will not be degraded by pollutant discharges. 

Section 401 provides states with two distinct powers: one, the power indirectly to deny 

federal permits or licenses by withholding certification; and two, the power to impose 

conditions upon federal permits by placing limitations on certification. Generally, 

Section 401 certification has been applied to hydropower projects seeking a license from 

the Federal Energy Regulatory Commission (FERC) and to dredge and fill activities in 

wetlands and other waters that require permits from the Corps (CWA Section 404). It 

also is applied to permit requirements for industrial and municipal point source 

dischargers (CWA Section 402). 

Under the proposed overbroad definition of waters of the United States, more waters will 

be subject to federal permits. As a result, states with already limited budgets will have to 

devote additional resources toward certifying those permits. This will increase the 

burdens already placed on states under Sections 303 and 305 of the Act. What’s more, 

the time necessary to complete the state certification process only increases project delays 

for the permit applicant. And, in a worst case scenario, the state can deny the federal 

permit all together, stopping a home builder or land developer in his/her tracks. (p. 120)

Agency Response: See summary response 12.2 above. The authorities granted 

under CWA section 401 to states are outside the scope of this rulemaking. Section 

401 applies only to federally issued licenses or permits and does not apply to Section 

402 or other permits issued by states that have been authorized to implement the 

program.

 

105 33 U.S.C. § 1341. 
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CONSOL Energy, Inc. (Doc. #14614)

12.513 CONSOL is concerned with the impact the proposed rule will have on state and federal 

water quality standards. If finalized as proposed, the State and federal authorities would 

be obligated to develop new legislation, use restrictions, and water quality standards for 

the additional jurisdictional waters that would be created by the proposed rule. This 

would create a significant burden for the regulatory community, and industry, as these 

new standards are developed. (p. 3)

Agency Response: See summary response 12.2 above. Section 401 only applies to 

adopted state standards and applicable federal standards. States may adopt new 

standards during their normal triennial review.

Continental Resources, Inc. (Doc. #14655)

12.514 With a broader definition of jurisdictional waters, more activities are likely to require 

federal permits (e.g., Section 402 and 404 permits), and these activities are more likely to 

discharge into navigable waters. States will now need to consider whether the new 

federal permits are consistent with their Section 401 water quality standards. These 

impacts occur on the state level- not the federal level; however, Continental will face 

additional state permit requirements and the attendant increase in costs and delays. Given 

the extent to which uncertainty remains on the federal side, that same uncertainty will 

permeate state decisions. In addition, the need for additional water quality review and 

compliance determinations will undoubtedly put a heavy strain on states’ resources, and 

any associated delays will hinder Continental’s projects and their approval. (p. 19)

Agency Response: See summary response 12.2 above. Section 401 only applies to 

federally issued licenses or permits. 

American Gas Association (Doc. #16173)

12.515 Under another Army Corps program, CWA §401 water quality certifications, states 

authorities issue companion certifications, and will not do so unless the Corps makes an 

advance jurisdictional determination of the presence or absence of WOTUS. As the 

states and other stakeholders attempt to apply the Proposed Rule, gas utilities can expect 

that these certifications will bring additional processing delays, increase determinations 

of the need for individual CWA § 404 permits in lieu of nationwide permit eligibility, and 

lead to more disagreement and conflict between state and federal field offices as to 

appropriate jurisdiction over projects. 

AGA is also concerned that even if regulators and project proponents agree that federal 

action may not be necessary, a third party can intervene under the citizen suit provisions 

of the CWA to compel enforcement based on its own views that federal action was 

required under the broad terms of the proposed WOTUS definition. AGA therefore urges 

the Agencies to issue a revised proposed rule which adequately describes metrics for 

determining jurisdiction that can be clearly applied in the field, and provide a clear line of 

compliance that reduces regulatory exposure and third-party litigation risk. (p. 12-13)

Agency Response: The final rule includes several changes to provide the 

additional clarity requested. The changes include identifying the specific functions 

to be accessed in a significant nexus evaluation, providing more exclusions as part of 

the rule text for the first time, and reducing the number of case-specific 
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379

determinations of jurisdiction required. The final rule does not change the Section 

404 permitting program or which permits apply to activities. The proposed rule 

represents a narrowing of jurisdiction and does not directly impact the need for 

permits. The citizen suit provisions of the CWA and applicability were outside the 

scope of this rulemaking.

Nebraska Cattlemen (Doc. #13018)

12.516 NDEQ has also administered the §401 and §303 programs since delegation in the 1970s. 

The impact on §401 will be an increase in the number of certifications that the State will 

need to issue because there will be more federal actions to trigger certification needs. 

This may add more bureaucracy, time, and red tape to the existing process. Nebraska 

Cattlemen comment that this increase in the resources of state government will raise the 

NDEQ’s budget and potentially state taxes. (p. 15)

Agency Response: See summary response 12.2 above. 

Missouri Corn Growers Association (Doc. #16569)

12.517 It is believed the proposed rule will also impact state water pollution permitting as well as 

its 401 certification. It also presents the real possibility states will be left picking up the 

burden and costs of addressing and assessing the water quality in thousands of addition 

miles of streams, ditches and water bodies to determine whether they are impaired, listing 

them on the 303d list, and writing TMDLs. (p. 7)

Agency Response: See summary response 12.2 above. 

Airports Council International – North America (Doc. #16370)

12.518 In an effort to further understand the jurisdictional reach and related impacts of the 

Proposed Rule the following question need(s) to be answered:

How would this rule cascade into State permitting, including 401 certification? (p. 6)

Agency Response: See summary response 12.2 above. Along with a narrowing of 

jurisdiction, the rule also significantly reduces the uncertainty and number of casespecific determinations that will required, reducing state and federal workload. 

Environmental Defense Fund (Doc. #14946)

12.519 In the wake of SWANCC and Rapanos, the CWA permitting programs have become more 

complicated, resource-intensive, uncertain and slow. Making case-by-case 

determinations · of whether individual waters have a significant nexus to downstream 

navigable waters is 8 to 10 times more resource intensive than the permitting process was 

pre-SWANCC and Rapanos.

106

 This also has had a significant chilling effect on CWA 

enforcement. EPA has declined to pursue hundreds of enforcement actions due to 

‘‘.jurisdictional uncertainty.”

107

 

106 R. Meltz, C. Copeland, “The Wetlands Coverage of the Clean Water Act (CWA): Rapanos and Beyond”, at 11 

(Congressional Research Service, September 2014) http://nationalaglawcenter.org/wpcontent/uploads/assets/crs/RL33263.pdf

107 Id
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A further source of urgency for finalizing the rule quickly is the strain and constraints the 

current uncertainty regarding the scope of waters protected by the Clean Water Act is 

having on state water quality programs. A recent study by the Environmental Law 

Institute reveals that least 36 states have legal restrictions that could impair the ability of 

state water quality agencies to protect waters left unprotected by the CWA in the wake of 

SWANCC and Rapanos.

108

 In fact, many states have predicated their state water quality 

laws upon the federal Clean Water Act, providing that the state laws be “no more 

stringent than” the CWA. (p. 2-3)

Agency Response: The final rule has been developed to reduce the number of and 

uncertainty surrounding case-specific determinations of jurisdiction. Issues 

associated with enforcement are outside the scope of this rulemaking.

Society of American Foresters (Doc. #15075)

12.520 Water quality standards have been largely established based on expectations and needs 

for larger streams. But smaller headwater streams and other waterbodies, which can 

comprise the majority length of a stream networks, often have very different processes

and water quality conditions (Ice and Binkley 2003). Therefore, expansion of per se 

WOTUS to include ephemeral headwater streams could confuse existing water pollution 

control measures like state BMP programs. 

For example, dissolved oxygen (DO) concentrations in stream water tends to be high for 

cold streams and rivers (solubility of DO inversely related to water temperature), 

especially if not exposed to high biochemical oxygen demand (BOD) or bottom sediment 

oxygen demand (SOD). But recent research in forest streams finds that, during low flow 

periods, some headwater reaches can exhibit low DO concentrations even with cold water 

temperatures. This is probably due to a preponderance of recently emerged hyporheic or 

groundwater comprising the flow. Natural conditions, such as low gradient and high 

SOD, can also lead to low DO concentrations (Ice and Sugden 2006). These conditions 

are not currently fully recognized in water quality standards, and the extension of 

categorical WOTUS to include ephemeral streams and wetlands has the potential to not 

only expand jurisdictional waters but also lead to inappropriate classification of 

watersheds as impaired. (p. 4-5)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. See summary response 12.2 above. 

Water Environment Federation Member Association Governmental Affairs Committees 

Representing EPA Region 7 (Doc. #15185)

12.521 EPA has long struggled with evaluating water quality impacts and risk factors associated

with short-term wet weather conditions, and to date this regulatory area has not been

 

108 “State Constraints: State-Imposed Limitations on the Authority of Agencies to Regulate Waters Beyond the 

Scope of the Federal Clean Water Act” (An ELI 50-State Study, May 2013), 

http://www.eli.org/sites/default/files/eli-pubs/d23-04.pdf
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

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adequately resolved. However, the Proposed Rule cites various nexus situations that

would very much depend on such short-term wet weather conditions. Therefore, EPA

needs to stipulate the basic technical and administrative approaches that are intended to

be used at the source in order to define frequency, duration, and water quality-based risk

factors that are directly associated with wet weather events that reportedly transport

pollutants of concern to downstream designated beneficial use areas. In other words,

how does EPA intend to establish applicable, defensible water quality standards and

monitoring requirements at the claimed pollutant sources, such as ephemeral stream areas

under short-term wet weather conveyance conditions?

Due to past litigation, the inherent problem with EPA guidance and many of the State 

water quality standards to date is that there has been no ability to establish upper bounds 

in stormwater flow and resultant stream flows for the evaluation of pollutants of concern 

within any water quality-based NPDES permitting activities. Quite the opposite –

NPDES wastewater point-source discharge permits are primarily based on applying water 

quality standards under extremely low flow dry weather conditions for acute and chronic 

toxicity periods of exposure; that is, during times where transport of pollutants of concern 

from ephemeral source areas would not logically occur. Therefore, if the ultimate intent 

of the Proposed Rule under the various “Waters of the U.S.” classifications is to include 

and manage short-term stormwater flow condition events, then EPA must also logically 

address the corresponding frequency, duration, and risk factors under such short-term 

conditions to be applied to pollutant source ephemeral areas and appropriate “Other 

Waters” areas under the Proposed Rule. It is not sufficient to simply cite cases of 

technical evidence for “connectivity” involving various physical, chemical, and 

biological factors without mentioning the underlying causative statistical stormwater flow 

boundary conditions for each of those cases.

As a related matter, such “connectivity” link to water quality standards will be very 

important in extending the Proposed Rule to the existing TMDL Program where

downstream water quality shows impairment. In addition, the Proposed Rule mentions 

that certain means of stormwater conveyance may potentially be considered to be “point 

sources”; whereas such point sources may have been previously considered to represent 

non-point sources. This would imply that certain previous TMDL determinations, 

involving both point source waste load allocations and non-point source load allocations, 

may have to be re-examined and re-issued as a result of the Proposed Rule.

Bottom line: It is suggested that “connectivity” factors need to separately distinguish 

short-term wet weather impacts from long-term impacts (e.g., bio-accumulative impacts) 

and must describe how established water quality standards are to be addressed in a 

meaningful, defensible manner at the pollutant source. (p. 2-3)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. See summary response 12.2 above. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

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12.3. 402 - NPDES

Agency Summary Response

CWA Section 402 – NPDES Implementation

This response addresses comments regarding the rule’s relationship to NPDES implementation, 

including NPDES permitting, pesticides and agriculture, and water transfers regardless of where 

such comments appear in the Response to Comments document. Comments and responses 

related to the waste treatment system exclusion and to stormwater are addressed in the comment 

compendium on non-jurisdictional features and waters. 

Summary of Comments

NPDES Permitting – General Comments 

The agencies received some comments on how the proposed rule would affect NPDES 

permitting. Commenters were generally concerned that the proposed rule did not adequately 

consider impacts to Clean Water Act permitting programs beyond Section 404, including Section 

402. Some comments suggested that any change in CWA jurisdiction as a result of the new rule 

would trigger a need to review existing individual and general NPDES permits, as well as to 

revise future permitting requirements. Some comments generally perceived that the rule would 

expand CWA jurisdiction and therefore would require more entities to obtain NPDES permits for 

discharges of pollutants, therefore adding costs, uncertainties, monitoring requirements, and 

permitting delays for regulated entities and NPDES permitting authorities. A number of 

commenters raised issues concerning whether the rule would require NPDES regulation of 

sources currently considered to be nonpoint sources. A number of comments were concerned 

with whether certain features would be considered to be jurisdictional for purposes of both 

NPDES and Section 404 permitting; similarly, some comments raised concerns about discharges 

facing dual regulation under NPDES and Section 404. Some commenters held that states have 

adequate authority to regulate waters beyond the reach of the Clean Water Act, making a rule 

addressing the jurisdiction of the Clean Water Act unnecessary. There were comments 

suggesting that state NPDES programs only regulate waters under a state definition of regulated 

waters. 

Agricultural-related Comments 

A number of commenters raised issues concerning whether this rule will require farmers to get 

NPDES permits for the application of fertilizer (including manure), pesticides, or herbicides, etc. 

to fields, surrounding ditches, or ephemeral streams, where such permits have not previously 

been required. Similarly, there were comments concerning ways in which this rule might affect 

the applicability of FIFRA or the pesticides general permit (PGP) for mosquito or other pest 

control activities. In addition, there were comments concerning the applicability of the Clean 

Water Act exemptions for agricultural stormwater and irrigation return flows.

Water Transfers
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The agencies received comments on how the proposed rule would affect NPDES permitting for 

water transfers. These comments generally fell into two categories: those that urged that 

discharges from water transfers should not require NPDES permits and those that urged that the 

conduit for the water transfer should not be considered a water of the U.S. Some asked the 

agencies to continue to defend the water transfers rule. Others urged that EPA use this rule to 

clarify that water transfers will not require NPDES permits. The second category of comments 

urged that the conduit for the water transfer should not be considered a water of the U.S. Some 

suggested regulatory language to accomplish that end. One noted that, because the discharge 

from the ditch is already permitted; the ditch does not need to be; and that treating the ditch as a 

WUS could reduce water quality protections because water flowing from the ditch would then be 

a water transfer that is not subject to NPDES permit regulations.

Summary Response

NPDES Permitting – General Comments 

The final rule does not establish any regulatory requirements, and questions about 

implementation of the NPDES program are beyond the scope of the rulemaking. Instead, the 

final rule is a definitional rule that clarifies the scope of “waters of the United States” consistent 

with the Clean Water Act (CWA), Supreme Court precedent, and science. Programs established 

by the CWA, such as the section 402 National Pollution Discharge Elimination System (NPDES) 

permit program, the section 404 permit program for discharge of dredged or fill material, and the 

section 311 oil spill prevention and clean-up programs, all rely on the definition of “waters of the 

United States.” Entities that currently are regulated under these programs that protect “waters of 

the United States” will continue to be. 

Because the scope of regulatory jurisdiction in the final rule is narrower than under the existing 

regulation, the rule does not expand the number of dischargers who need NPDES permits. The 

rule does not change requirements in existing NPDES permits, and does not change requirements 

for future NPDES permits. The rule does not change the Clean Water Act’s definition of “point 

source” or “discharge of a pollutant” and does not establish new categories of point sources or 

discharges. The rule was not changed to address comments to this effect. As is current law and 

practice, entities discharging pollutants into waters of the United States must obtain and comply 

with an NPDES permit, including conducting any monitoring and reporting prescribed in the 

permit. 

This rule does not change how NPDES permitting programs are administered by authorized 

states or EPA. State, tribal, and local governments have well-defined and longstanding 

relationships with the Federal government in implementing CWA programs and these 

relationships are not altered by the final rule. EPA has authorized forty-six states and the U.S. 

Virgin Islands to administer the NPDES program and issue permits, and EPA issues permits in 

four states, in Indian Country, in the other territories, and for certain other discharger categories. 

EPA authorizes states to administer NPDES programs after determining that the states’ laws and 

regulations are at least as stringent as the federal regulations for running a NPDES program. 

Authorized state NPDES programs regulate discharges to waters of the United States located 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

384

within that state. Some states’ laws allow them to regulate more waters than are jurisdictional 

under the Clean Water Act, and some states establish their own separate permitting systems for 

discharges that the Clean Water Act does not cover. This rule does not affect states’ NPDES 

program administration, does not impose additional regulatory requirements on states or 

regulated entities, and does not inhibit states’ abilities to regulate discharges to waters that are 

not covered by the CWA, if they choose to be more expansive. The agencies note that not all 

states have the ability to protect waters beyond the scope of the CWA. (see State Constraints: 

State-Imposed Limitations on the Authority of Agencies to Regulate Waters Beyond the Scope 

of the Federal Clean Water Act, Environmental Law Institute, May 2013.) 

To the extent that a water is jurisdictional, it would be jurisdictional for the purposes of any 

section of the Clean Water Act. The rule itself does not impose any requirements on discharges 

to waters of the United States. Discharges of dredged or fill material require a Section 404 

permit, while discharges of other pollutants require a Section 402 NPDES permit. Certain 

entities may have multiple kinds of discharges that require Section 404 or NPDES permits, 

depending on the discharge. Whether and how a particular activity is subject to CWA permitting 

requirements is a fact-specific question and is beyond the scope of this rulemaking. The 

agencies did prepare an economic analysis of the potential indirect costs and benefits that may 

result from an increase in the number of positive jurisdictional determinations associated with 

CWA programs. See, Economic Analysis Section 8 and Compendium 11. 

Agricultural-related Comments 

Issues relating to permitting requirements for the application of fertilizer (including manure), 

pesticides, herbicides, and any other substances are beyond the scope of the rule. This rule does 

not change existing CWA permitting requirements regarding the application of pesticides or 

fertilizer on farm fields, nor does this rule affect the interplay between FIFRA and CWA 

requirements. If an activity was exempted or excluded before this rule, under the agricultural 

stormwater and irrigation return flows exemptions from the CWA or any other exemptions, it 

will remain exempted or excluded. The rule simply addresses which waters are subject to CWA 

jurisdiction, by clarifying those types of waters that have a “significant nexus” with downstream 

traditional navigable waters, interstate waters, and territorial seas. 

Water Transfers

This rulemaking does not make any changes to EPA’s Water Transfers Rule. Comments about 

the Water Transfers Rule and its application to particular situations are beyond the scope of the 

rulemaking. The Water Transfers Rule explains that “an activity that conveys or connects waters 

of the United States without subjecting the transferred water to intervening industrial, municipal, 

or commercial use” does not require a National Pollutant Discharge Elimination System 

(NPDES) permit. Nothing in the final rule affects this. The final rule does not change 

requirements in existing NPDES permits, and does not change requirements for future NPDES 

permits. The rule does not change the Clean Water Act’s definition of “point source” or 

“discharge of a pollutant” and does not establish new categories of point sources or discharges. 

Some commenters urged that no conduit for a water transfer should be considered a water of the 

U.S., and some suggested regulatory language that would achieve that outcome. EPA is 
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385

declining to adopt this recommendation. The Water Transfers Rule addresses whether a water 

transfer is the “addition” of a pollutant that may require a section 402 permit. The definition of 

“waters of the United States is an entirely separate question, and the agencies do not believe 

jurisdiction should be linked to water transfers in this way. Also, as is evidenced in the record 

for the Water Transfers Rule, in some instances the conduits that transfer water between two 

waterbodies are themselves waters of the United States. The agencies have consistently regulated 

aqueducts and canals as “waters of the United States” where they serve as tributaries. The 

agencies have not in practice asserted jurisdiction over these types of features where they do not 

have surface connections back into, and contribute flow to, “waters of the United States.” The 

exclusion in paragraph (b)(7) codifies long-standing agency practice and encourages water 

management practices that the Agencies agree are important and beneficial. See summary 

response at 7.4.2.

Some commenters urged that all waters used in industrial processes should be considered not to 

be waters of the U.S. In support of that position, some commenters noted that, under EPA’s 

Water Transfers Rule, waters during transfers retain their status as WUS unless the water was 

subject to an intervening industrial process. As noted above, this rule and the Water Transfers 

Rule address entirely separate questions, and statements in the Water Transfers Rule should not 

be used in assessing the jurisdiction of the CWA. In response EPA also notes that in the case of 

the WTR, the intervening industrial process results in a CWA permit being required for the 

transfer. Thus, there is no inconsistency with that outcome and a finding that in some 

circumstances waters held for industrial process can be considered to be subject to CWA 

jurisdiction.

Specific Comments

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

12.522 Would a permit [under the federal NPDES General Permit] be needed to spray pesticide 

on land that is crisscrossed with erosion features that are considered ephemeral streams, 

even if there is no water present? Would that change if the land was in a flood plain? (p. 

11)

Agency Response: NPDES permit coverage is not required for applications of 

pesticides occurring outside of waters of the U.S. for the purposes of controlling 

pests on agricultural crops, forest floors, or range lands. The Clean Water Act 

(CWA) also exempts discharges of agricultural stormwater or irrigation return flow 

from the need for NPDES permits. Discharges of pesticides directly to a water of the 

U.S., whether wet or dry at the time of application, are required to be covered under 

an NPDES permit. A water of the U.S. does not lose its jurisdictional status if it 

becomes dry during extraordinary circumstances such as drought or if it flows 

continuously during parts of the year and has no flow during dry months. A 

discharger will need a permit regardless of whether the waters of the United States 

are wet, partially wet, or dry at the time of the discharge. General NPDES permits 

from EPA and the states are available for such discharges.

12.523 The Forest Service sets Best Management Practices (BMPs) under the Clean Water Act.

Will the Forest Service submit these for approval to EPA?
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Which Federal agency – EPA or the Forest Service – is responsible for assuring that these 

BMPs are consistent with relevant State laws and regulations, especially in (Section) 402 

delegation states? (p. 12-13)

Agency Response: This comment is outside the scope of the rulemaking. Although 

the specific context for comments regarding the U.S. Forest Service are somewhat 

unclear, we presume you are referring to the Forest Service’s National Best 

Management Practices (BMP) Program, including their 2012 National Core BMP 

Technical Guide. With respect to that document, the U.S. Forest Service provided 

the draft Technical Guide to the EPA for comment, and the EPA provided 

comments to ensure that the document was most effective in protecting water 

quality. We defer to the U.S. Forest Service regarding their specific legal authorities 

and responsibilities.

12.524 Can you explain why a home builder might need to get a Section 402 permit?

What does a home builder need to do to obtain a Section 402 permit?

What about a 404 permit?

What percentage of homes or commercial developments would need some type of Clean 

Water Act permit? (p. 19)

Agency Response: Permitting requirements are outside the scope of the final rule. 

Pennsylvania Department of Environmental Protection Water Management Office (Doc. #7985)

12.525 The rule’s focus on Section 404 permitting is problematic for Section 402 permitting. It 

appears that the rule, which grows out of Section 404 cases decided by the United State 

Supreme Court, is focused on providing clarification for purposes of Section 404 

permitting. This clarity in the Section 404 context, however, will come at the expense of 

clarity and common sense administration of the Section 402 NPDES program. (p. 5)

Agency Response: Please see essay 12.3 above. 

12.526 EPA staff assurances and presentations suggest that despite the new rule, the 

implementation of the Section 402 and 404 programs in Pennsylvania will not change. 

This does not provide sufficient certainty to Pennsylvania. Because the rule as drafted 

can be interpreted in ways that could significantly impact the administration of these 

programs, the language of the rule itself must be clarified in a manner that provides 

assurance to the public, the regulated community and to states such as Pennsylvania with 

The proposed rule will impose a significant impact on available resources to implement 

robust programs and bountiful water resources. (p. 5)

Agency Response: Please see essay 12.3 above and Economic Analysis Section 8.

12.527 The proposed rule will impose a significant impact on available resources to implement 

CWA program requirements. If the issues related to the definitions, and uncertainty 

about how EPA and ACOE administration of the terms described above are not 

addressed, the number of water bodies needing to be assessed, water quality standards 

established, and determinations of impairment will significantly increase. For example, a 

shallow subsurface aquifer with an established connection to a water body into which 

septic systems discharge under the proposed rule could now be defined as jurisdictional 
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387

triggering the need for an NPDES permit to discharge. Would the aquifer itself also have 

to be assessed, added to the list of water bodies and defined as impaired or not? (p. 6)

Agency Response: Please see essay 12.3 above, Compendium 11, and Economic 

Analysis Section 8. The agencies have never interpreted the CWA to include 

groundwater or shallow subsurface flow as a “water of the United States.” As is 

current practice, non-jurisdictional features can help form a significant nexus 

between jurisdictional waters. See essay 5.0. 

12.528 As written, many of the proposed definitions have the potential to expand the scope of 

“CWA jurisdictional” waters. This will result in states expending a significant amount of 

resources assessing, listing, and issuing NPDES discharge permits for activities that have 

traditionally, and should continue to be, treated as a nonpoint sources, with no real 

meaningful benefit to protection of water resources in Pennsylvania. For example, 

discharges from best management practices for the treatment of stormwater runoff, 

individual discharges to MS4 systems, and septic systems discharging into an aquifer 

with an established hydrologic connection could all potentially be subject to NPDES 

permit requirements, even though they are all subject to state law regulations and permit 

requirements. States do not have the resources to deal with the increase in workload that 

this change could potentially cause, without any increased water quality protection. (p. 6)

Agency Response: Please see essay 12.3 above and Economic Analysis [insert 

proper section]. The final rule does not establish any new regulatory requirements 

nor does it change or add to the CWA’s definition of “point source.” With respect to 

MS4s and the jurisdictional status of stormwater control features as waters of the 

U.S., please see compendium 7, summary response at 7.4.4

Virginia Department of Transportation (Doc. #12756)

12.529 Another unintended consequence is the impact on Section 402 programs, specifically 

Municipal Separate Storm Sewer Systems (MS4) permitting. MS4 permittees have been 

mapping outfalls to jurisdictional waters for over a decade. Features that the permittees 

have mapped as regulated outfalls may be considered regulated waters according to the 

proposed rule. The outfall mapping would no longer be valid and would have to be redone at a multi-million dollar cost for VDOT alone. These newly regulated waters would 

then need to be evaluated for compliance with the Water Quality Standards and possibly 

end up on the impaired waters list. More impaired waters leads to more Total Maximum 

Daily Load (TMDL) requirements. More TMDL requirements lead to more Wasteload 

Allocations (WLAs) assigned to MS4s and point source discharges. WLAs lead to more 

action plans developed by MS4s at a multi-million dollar cost to VDOT alone. (p. 9)

Agency Response: Please see essay 12.3 above and compendium 7, summary 

response at 7.4.4. 

California Association of Sanitation Agencies (Doc. #12832)

12.530 If these “adjacent” wastewater and recycled water facilities, including spreading grounds, 

are defined to be within the jurisdiction of the CWA, it would adversely impact CASA’s 

member agencies’ ability to augment groundwater supplies and to effectively provide 

wastewater treatment services. The plethora of additional and unnecessary requirements, 

regulations, and permitting associated with making these areas into jurisdictional waters, 
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388

including but not limited to the procurement of an NPDES permit, assigning designated 

uses, exposure to penalties and potential third party liability for effluent violations, and 

impairment of the ability to operate and maintain these areas, would erect new mandates 

with no benefit to the surrounding ecosystems and waterbodies. Such a result represents 

an extreme disincentive to sustainable water supply development and a significant 

impairment of wastewater agencies’ ability to protect public health and safety through 

innovative and effective wastewater treatment. (p. 4)

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

recognize the importance of water reuse and recycling, particularly in areas like 

California where water supplies can be limited and droughts can exacerbate supply 

issues. The agencies specifically exclude constructed detention and retention basins 

created in dry land used for wastewater recycling as well as groundwater recharge 

basins and percolation ponds built for wastewater recycling.

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

12.531 As you know, Montana sought and was granted primacy to implement the National 

Pollutant Discharge Elimination System permit system in our State, but even beyond the 

NPDES (MPDES in Montana) permit protections, the Montana DEQ has broad authority 

to enjoin pollution of state waters or the placement of waste where it will cause pollution, 

to require cleanup of any material which may pollute state water, and to inspect and 

require monitoring to prevent pollution. Mont. Code Ann. § 75-5-601 et seq. The point is 

that Montana has taken primary responsibility for its land and waters as was assumed by 

Congress when it enacted the Clean Water Act (33 U.S.C. S l25l(b)). The laws and 

regulations we implement and enforce assure the protection of the quality of traditional 

navigable waters in and flowing from our State. There accordingly is no justification, in 

terms of protection of the nation’s navigable waters, for extending the reach of the Clean 

Water Act. (p. 2)

Agency Response: Please see essay 12.3 above. See also Section I of the Technical 

Support Document for the legal basis for the rule.

Alabama Department of Transportation (Doc. #13948)

12.532 Your proposed rule is a significant expansion of the Clean Water Act that will affect 

every American, and have a significant impact on my business and State due to the 

proposed increased jurisdiction over all waters. The expanded jurisdiction affects 

vegetation management applicators’ ability to keep right-of-ways safe and passable 

because they would need to obtain costly NPDES permits to treat near water bodies and 

ditches considered jurisdictional under the proposed rule. Such applications keep our 

roadways and power lines clear and safe. (p. 1)

Agency Response: Please see essay 12.3 above. . 

Interstate Mining Compact Commission (Doc. #14114)

12.533 Obtaining a discharge permit is a costly and uncertain process which can take years. In 

the absence of an appeal process under the proposed rule, individuals and entities may be 
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389

forced to obtain a permit to avoid potential federal enforcement action and criminal or

civil penalties due to the uncertainties embodied in determining jurisdiction under the 

rule, when in fact there may well be no jurisdiction for the federal permitting process. (p. 

3)

Agency Response: Please see essay 12.3 above. The scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

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

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

existing categories such as tributaries. In addition, the rule provides greater clarity 

regarding which waters are subject to CWA jurisdiction, reducing the instances in 

which permitting authorities, including the states and tribes with authorized section 

402 and 404 CWA permitting programs, to address jurisdictional issues and make 

jurisdictional determinations on a case-specific basis.

County Commissioners Association of Pennsylvania (Doc. #14579)

12.534 Production agriculture is one of the top industries and economic drivers in the 

commonwealth, with more than 7.7 million acres devoted to farmland. Farmers, ranchers 

and even water quality advocates have noted that the proposed WOTUS regulation is 

likely to curtail many voluntary water quality improvement projects if such projects 

would trigger the cost and delay of seeking federal permits, and make it increasingly 

difficult to meet required water quality requirements. 

We also note that state pesticide/herbicide programs and regulations will need to be 

reevaluated under the proposed WOTUS rule, as the EPA has a pesticide/herbicide 

permit for all Waters of the U.S. within threshold guidelines. This means anytime a 

pesticide/herbicide is applied on or near Waters of the U.S. a permit is needed, including 

strict program and paperwork requirements for pesticide use in communities of more than 

10,000. In addition, the use of some pesticide products could be jeopardized by the 

proposed definition – for example, when farmers and other landowners seek to use landbased pesticides with labels that state “do not apply to water” or that require no-spray 

setbacks from jurisdictional waters to avoid potential spray drift. Confusion over what 

are federal “waters” may expose pest-control operators to litigation and threaten effective 

pest management. (p. 8)

Agency Response: Please see essay 12.3 above. 

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

12.535 State agencies authorize the location of waste treatment lagoons and solid waste disposal 

units. If groundwater is considered a conduit to a water of the U.S., then waste disposal 

into a State authorized lagoon or disposal unit could be considered a discharge into a 

water of the U.S. that EPA can regulate through a permit under Section 402 of the Act. 

In fact, some may argue that the water in the lagoon or the leachate from a landfill should 

be considered a water of the U.S. In litigation, citizen plaintiffs have taken the position 

that if a discharge onto land or into groundwater can move through groundwater and 

reach a water of the U.S. that discharge is subject to regulation under the Clean Water 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

390

Act. Some courts have agreed.109 In one case, the Conservation Law Foundation alleged 

that septic systems are point sources that must obtain NPDES permits because nutrients 

from septic systems move through groundwater and impact navigable water. In that case, 

EPA disagreed that the septic systems were categorically point sources, arguing that an 

NPDES permit can be required for a discharge to groundwater only where it is directly 

and immediately connected hydrologically to surface water. Conservation Law 

Foundation et al. v U.S. EPA, et. al., Case No. 1:10-cv-11455-MLW, Memorandum in 

Support of Defendants’ Motion for Summary Judgment, at 20-21 (also noting that a 

hydrological connection to surface water via groundwater is a site-specific 

determination).110

In contrast to the position EPA took in its summary judgment motion in the Conservation 

Law Foundation case, in the proposed rule the Agencies take the position that 

groundwater connections categorically form the basis for Clean Water Act jurisdiction. 

Since the rule was proposed, more cases have been filed relying on this misguided theory. 

See Wildearth Guardians v. The Western Sugar Cooperative, (Case 1:14-cv-01503-BNB) 

(D. Colo., May 29, 2014) (alleging on-site wastewater ponds are point sources that 

discharge to waters of the U.S. through groundwater that has a significant biological, 

chemical and physical nexus to the South Platte River). (p. 5-6)

Agency Response: See essay 7.1 regarding the waste treatment system exclusion 

and essay 7.3.6 regarding the jurisdictional status of groundwater. See also essay 5.0 

and the response to comment 5.63 regarding using groundwater connections to 

establish significant nexus. Under existing regulations and the current final rule, 

waste treatment systems are not waters of the United States. Continuing current 

practice, any waste treatment system would need to comply with the Clean Water 

Act by obtaining a section 404 permit if constructed in waters of the United States, 

and a section 402 permit for discharges from the waste treatment system into waters 

of the United States. The agencies have consistently interpreted the Clean Water Act 

to exclude shallow or deep groundwater from the geographic scope of the waters of 

the United States. The final rule continues to exclude groundwater, including 

groundwater drained through subsurface drainage systems. This decision reflects 

current agencies’ practice and provides greater clarity. This exclusion applies to all 

groundwater, including shallow subsurface flow. Nothing in this rule limits or 

impedes any existing or future state or tribal efforts to further protect their waters. 

While groundwater connections may contribute to establishing a significant nexus, 

groundwater is not a water of the United States. See essay 5.0 and the response to 

comment 5.63. While groundwater is excluded from jurisdiction, the agencies 

recognize that the science demonstrates that waters with a shallow subsurface 

connection to jurisdictional waters can have important effects on downstream 

 

109 In Hawai’i Wildlife Fund v. County of Maui, 2014 U.S. Dist. LEXIS 74256, *31 (D. Hawaii, May 30, 2014) the 

court held that the County of Maui is liable for discharging effluent into a wastewater reclamation facility without a 

NPDES permit where the effluent went into on-site injection wells to a shallow groundwater aquifer and eventually 

to the Pacific Ocean. In N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007), cert. denied, 552 

U.S. 1180 (2008), the court held that a manmade pond created to treat sewage was a water of the U.S. due to a 

groundwater connection and the possibility of flooding.

110 The court dismissed the case on jurisdictional grounds, holding the plaintiffs did not have standing.
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391

waters. When assessing whether a water an (a)(7) or (a)(8) water performs any of 

the functions identified in the rule’s definition of significant nexus, the significant 

nexus determination can consider whether shallow subsurface connections 

contribute to the type and strength of functions provided by a water or similarly 

situated waters. However, neither shallow subsurface connections nor any type of 

groundwater, shallow or deep, are themselves “waters of the United States.” The 

final rule does not change the EPA’s position that discharges that may move 

through groundwater to reach a water of the United States would require an 

NPDES permit. 

National Association of State Departments of Agriculture (Doc. #15389)

12.536 State §402 National Pollutant Discharge Elimination System (NPDES) permits regulate a 

wide range of discharges, including for agriculture pesticide NPDES general permits and 

Concentrated Animal Feeding Operations (CAFO). Pesticide NPDES general permits 

were written by states in all but a few instances, and regulate pesticide applications “into, 

over or near” water. They vary widely by state in scope and whether they regulate 

discharges to “waters of the U.S.” or “waters of the State.” The proposed WOTUS rule 

will likely have significant impacts on the scope of such permits, state efforts to enforce 

them, and potential third-party lawsuits. 

Because many ditches and ephemeral or intermittent features in or near farm fields, 

pastures, and woodlots could well become newly-jurisdictional under the proposed rule, 

application in or around those features of terrestrial pesticides (those products lacking a 

FIFRA label explicitly allowing application into, over, or near “waters”) might result in 

CWA violations and citizen suit vulnerabilities from inadvertent pesticide contact with 

these types of newly-jurisdictional waters. For use of FIFRA-labeled aquatic pesticides, 

EPA’s Pesticide General Permit (PGP) covers use patterns for: (1) mosquito and other 

flying insect pest control; (2) weed and algae control; (3) animal pest control; and (4) 

forest canopy pest control. Agricultural use patterns of terrestrial pesticides are not 

covered under the PGP. We are concerned the agencies have not given enough 

consideration to the financial and policy impact of the proposed rule or the legal 

conundrum represented by the interface between the requirements of the CWA and 

FIFRA relative to pesticide use in “waters.”

For example, would farmers and ranchers routinely making seasonal treatment of, 

noxious weeds in fields containing dry ephemeral conveyances or manmade ditches now 

also be required to comply with NPDES permit requirements? If so, would these 

producers need to secure individual NPDES permits, since terrestrial pesticide use is not 

covered by the PGP? Most applicators using terrestrial pesticides may not be aware that 

treatment areas they are treating may for the first time contain newly-jurisdictional 

“waters,” and in addition to FIFRA label requirements, they might now also need to 

comply with NPDES performance requirements for “aquatic” pesticide applications. 

This would pose an extreme difficulty for commercial applicators applying terrestrial 

pesticides by air, when such ephemeral features could well be unmarked, dry or hidden 

by vegetation.

Even if landowners and applicators were only to suspect that the new rule might extend 

federal jurisdiction onto areas where they routinely treat ditches or ephemeral 
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392

conveyances with terrestrial pesticides, the time it would take to verify the precise 

locations and WOTUS status of any jurisdictional conveyances, and then also satisfy 

applicable NPDES permit compliance steps, would be an unwarranted burden and source 

of ongoing legal uncertainty. Furthermore, timely pest control would be precluded if 

producers and others have to wait months for the agencies to apply their “best 

professional judgment” to determinations of whether a potential “significant nexus”

exists that may influence their pest control plans or where the jurisdictional boundaries of 

encountered floodplains may be. These concerns extend beyond pesticide use – we are 

also concerned that the application of other agricultural inputs in a similar manner, such 

as fertilizer, would also be problematic under the proposed rule. (p. 5-6)

Agency Response: Please see essay 12.3. Issues related to the permitting of 

pesticide or herbicide applications are outside the scope of the proposed and final 

rule. The rule does not change the requirements for complying with the pesticide 

general permit (PGP). Please also see Economic Analysis Section 8 – Estimate of 

Clean Water Act Section 402 Costs and Benefits. 

Governor’s Office – State of Utah (Doc. #16534)

12.537 Utah has long been delegated from EPA the responsibility of administering the National 

Pollutant Discharge Elimination System (NPDES) Program. This is the program 

governed by Section 402 of the Clean Water Act. By statute, anyone discharging 

pollutants to “Waters of the State,” which are defined as all Utah waters, both ground 

water and surface waters, including ephemeral and intermittent streams, must secure a 

permit to do so.

111

 Utah has no other surface water permitting program other than the one 

administered under the federal NPDES program. 

Under the proposed EPA rule, it appears that a significant number of Utah stream miles 

will become non-jurisdictional since the waters flow into closed basins that are neither 

tributaries of navigable waters or have a significant nexus to navigable waters. The state 

estimates this to be 983 stream miles, or 5.8% of all Utah perennial stream miles, 24,933 

miles of intermittent stream, or 16.1% of all Utah intermittent streams and 24,933 lake 

acres, or 16.1% of all Utah lake acreage. It is not possible to determine, except on a caseby-case basis, the increased number of intermittent stream miles that would become 

jurisdictional under the proposed rule due to the need to identify if the intermittent 

streams are defined by a bed, bank and ordinary high-water mark. 

If the proposed rule goes into effect, Utah may be obligated to develop a companion state 

surface water permitting program to the federal NPDES program, otherwise 62 NPDES 

permits may become invalid as a consequence of the receiving waters associated with 

those permits being deemed non-jurisdictional. (p. 11-12)

Agency Response: See essay 12.3 above. Additionally, EPA notes that while some 

states’ legal authorities allow the state to regulate waters more broadly than the 

Clean Water Act and may regulate discharges into groundwater, the agencies have 

never interpreted the CWA to include groundwater as a “water of the United 

States.” Where the legal authority exists, some states currently choose to 

 

111 Utah Code Ann. § 19-5-10 7 (West 1953).
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393

administer a surface water permitting program for discharges into waters of the 

state in addition to administering an authorized NPDES program. Comments 

speculating on a state’s potential for developing such a separate permitting program 

are outside the scope of this final rule. 

Allen Boone Humphries Robinson LLP (Doc. #19614)

12.538 Stormwater programs run by municipalities will be required to impose more stringent 

controls on facilities with parking lots, storage pads, or other large paved areas. These 

facilities would become subject to more stringent stormwater management requirements, 

potentially including the requirement to obtain National Pollutant Discharge Elimination 

System (NPDES) permits for the first time, and to treat their stormwater before it leaves 

the property. This will impact grocery stores, shopping centers, big box stores, stadiums, 

airports, schools, churches, hospitals, and many other kinds of commercial and 

institutional facilities. (p. 6)

Agency Response: Please see Compendium 7, summary response 7.4.4. 

Permitting requirements for municipal stormwater discharges and the scope of the 

stormwater regulatory program are outside the scope of this rule. 

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

12.539 The issue of hydrologic trespass, or impacts caused outside of the property boundaries, is 

also a concern. Declaring portions of stormwater management systems as “waters of the 

US” will limit maintenance techniques available and could lead to hydrologic trespass 

offsite from existing drainage conveyances. (p. 2)

Agency Response: Please see essay 7.4.4. 

12.540 Clarification of the proposed rule should be made concerning pesticide applications and 

permitting requirements per Section 402 National Pollution Discharge Elimination 

System program as many stormwater conveyance systems are currently treated. (p. 3)

Agency Response: Please see essay 12.3 above as well as essay 7.4.4.

City of Phoenix, Arizona, Office of Environmental Programs (Doc. #7986)

12.541 The overly broad definition of “tributary” substantially increases the areas considered to 

be WOTUS, and therefore, substantially increases the areas covered by the Stormwater 

Pesticide General Permit. This would increase the administrative effort and cost of many 

of the City’s basic maintenance activities, again with no additional benefit to the 

environment. We respectfully request that all potential increase over the current 

regulated WOTUS be deleted. (p. 2)

Agency Response: Please see essay 12.3 above; Compendium 8 regarding 

tributaries, Compendium 11 regarding economics, and the Economics Analysis 

Section 8. Additionally, EPA notes that there is no “stormwater pesticide general 

permit” as the commenter states and the final rule does not affect the applicability 

or implementation of the pesticides general permit (PGP). 

City of Aurora Water Department Administration (Doc. #8409)

12.542 Any change that redefines WOTUS has the possibility of also affecting other notable 

CWA sections such as the Water Quality Standards and National Pollution Discharge 
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394

Elimination Standards (NPDES). This change will likely add complexity and additional 

costly regulations to a substantially greater number of water bodies than are currently 

regulated. (p. 1)

Agency Response: Please see essay 12.3 above; Compendium 11; and Economic 

Analysis Section 8. 

Southern California Association of Governments (Doc. #8534)

12.543 Congress established a system where discharges from point sources into Waters of the 

United States must be regulated with National Pollutant Discharge Elimination System 

permits and must be subject to technology-based standards. The point of compliance is 

ultimately the point of discharge into the Waters of the United States. If the point source 

is itself a Water of the United States then where is the point of compliance, and what 

standard applies? The Proposed Rule would thereby create substantial confusion about 

which standard applies and where. Moreover, if the treatment system is required to meet 

discharge standards within the system, where is treatment to occur? (p. 2) 

Agency Response: Please see essay 12.3 above. The final rule does not change or 

establish NPDES implementation requirements, and permitting requirements are 

beyond the scope of the rule. EPA maintains its longstanding position that a ditch 

can be both a point source and a water of the United States. See the Technical 

Support Document. The final rule asserts jurisdiction only over ditches that meet 

the definition of “tributary.” See essay 6.0 regarding ditches. Tributaries are waters 

of the United States and subject to the Clean Water Act. See also essay 7.1 regarding 

the waste treatment system exclusion. The final rule does not change the waste 

treatment system exclusion. Waste treatment systems are not waters of the United 

States. As is current practice, any waste treatment system would need to comply 

with the Clean Water Act by obtaining a section 404 permit if constructed in waters 

of the United States, and a section 402 permit for discharges from the waste 

treatment system into waters of the United States. The appropriate placement of the 

waste treatment system impoundment will be driven by the Section 404(b)(1) 

guidelines analysis during the course of the Corps’ permitting process, and by the 

specific design of the permittee’s treatment train. 

Board of Commissioners, Carroll County, Maryland (Doc. #8667) 

12.544 County-maintained, man-made conveyances and ditches, used to treat or mitigate 

stormwater in particular, should not be subject to a Section 404 permit. Ephemeral flows 

in these ditches are already captured through the CWA Section 402 NPDES MS4 permit 

process. Adding the Section 404 permit process to these facilities increases counties’

maintenance costs and NPDES MS4 permit compliance costs, which further encumbers 

the process and decreases the expedience with which local jurisdictions can implement 

mitigation projects and measures. 

Since stormwater activities are not explicitly exempt under the proposed rule, we are 

concerned that MS4 ditches could be classified as “Waters of the U.S.” If these facilities 

flow into a Water of the U.S.,” they are already regulated through the Section 402 

NPDES MS4 permit process. Doubling up on the permit coverage and requirements will 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

395

just create a more cumbersome, expensive, and lengthy process for local jurisdictions, 

with greater cost to taxpayers and slower progress toward Bay clean-up.

This will create enforcement conflicts and overlapping responsibilities for Federal 

agencies. Even if this is not the current intention of the agencies, they may be forced to 

do so through citizen and interest group lawsuits. These additional requirements in the 

process will also create a need for additional staff for the Federal agencies. (p. 2)

Agency Response: Please see essay 7.4.4 on MS4s and stormwater control 

features. 

City of Chesapeake Department of Public Works (Doc. #9615)

12.545 Under the proposed Rule, the City’s ability to perform required routine maintenance and 

retrofitting of stormwater management facilities to improve water quality could be 

severely limited because most of the City’s facilities would be regulated as WOUS. The 

proposed Rule may require unnecessary and resource intensive Section 404 permitting 

for routine maintenance and retrofitting of the City’s stormwater management facilities.

(p. 7)

Agency Response: Please see summary essay 7.4.4 on MS4s and stormwater 

control features.

Somerset County (Pennsylvania) Commissioners (Doc. #9734)

12.546 Shifting compliance for MS4, not only burdens a County with unanticipated, 

unaffordable, unnecessary expenses, but also reduces the opportunity to create other costeffective storm water management systems. The proposal, therefore, represents a giant 

step backward from stretching fiscal resources with regional approaches. ... These 

infrastructure projects are maintained by municipalities and private developers and the 

rule will affect them. (p. 2)

Agency Response: Please see summary response at 7.4.4. 

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

12.547 The proposed rule also applies to all CWA programs, not just in Section 404. Storm 

water programs, traditionally regulated under CWA Section 402, are not exempt under 

the proposed rule and may be further regulated under numerical water quality standards 

(including total maximum daily loads). As stated, these new requirements would 

potentially extend EPA’s reach into local land use activities for storm water management. 

(p. 5)

Agency Response: Please see summary response essay 7.4.4. 

Association of California Water Agencies (Doc. #12978)

12.548 The proposed rule fails to recognize important distinctions between section 402 and 

section 404 of the CWA.

The Supreme Court and the Ninth Circuit Court of Appeals have noted that the definition 

of “waters of the United States” for both sections 402 and 404 is functionally equivalent 

(See Rapanos, 547 U.S. at 742; San Francisco Baykeeper, et al. v. Cargill Inc., 481 F.3d 

700, 705, 704, n.4 (9th Cir. 2007). Nevertheless, there are important distinctions between 
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396

the two sections. Section 402 is an exception to the general prohibition against the 

discharge of any pollutant to navigable waters (33 U.S.C. § 1342(a)). That section allows 

for the discharge of pollutants from point sources by permit and is primarily concerned 

with regulation of pollution – which when discharged into waters of the United States, 

travels downstream (Id. at § 1342(a); Rapanos, 547 U.S. at 744‐745). By contrast, 

section 404, which allows for the discharge of dredged or fill material, is primarily 

concerned with the regulation of material “which is typically deposited for the sole 

purpose of staying put, [and] does not normally wash downstream . . . .” (Rapanos, 547 

U.S. at 744). This distinction is important because, as discussed more fully below, the 

requirements of section 402 may still apply to man‐made, non‐stream conveyances that 

are not themselves jurisdictional, whereas, the requirements of section 404 do not. 

The Supreme Court has noted that while the definition of “waters of the United States” is 

the same for both sections, just because a water body is non-jurisdictional under section 

404, does not necessarily mean that it lies outside the purview of EPA for purposes of its 

enforcement of section 402 (Rapanos, 547 U.S. at 743). The Court has stated that “there 

is no reason to suppose that our construction [of ‘waters of the United States’ under 

section 404] significantly affects the enforcement of § [402] . . . . The [CWA] does not 

forbid the ‘addition of any pollutant directly to navigable waters from any point source,’

but rather the ‘addition of any pollutant to navigable waters.’ “(Id. emphasis in original). 

Consequently, a water body that is non-jurisdictional under section 404, may still be 

subject to EPA’s enforcement authority under section 402. For example, it is possible that 

a pollutant discharged to an intermittent channel such as a gully, rill, or non-wetland 

swale (not considered “waters of the United States” even under the proposed rule (79 

Fed. Reg. 76, 22199)) may eventually wash downstream into navigable water. Even 

though the channel to which the pollution was originally discharged does not constitute 

“waters of the United States,” EPA may still regulate such a discharge because it 

constitutes the addition of a pollutant to navigable waters (Rapanos, 547 U.S. at 743). 

Thus, characterizing man‐made, non‐stream conveyances as tributaries is unnecessary for 

subjecting them to the permitting requirements of section 402. Such facilities, when 

discharging pollutants to waters of the U.S. (which may affect the physical, chemical, or 

biological integrity of navigable waters), are subject to the permitting requirements of 

section 402, whether they constitute tributaries under the definition of waters of the U.S. 

or not. Such man‐made, non‐stream conveyances, however, should not automatically be 

subject to the permitting requirements of section 404 because the discharge of “fill”

material does not automatically affect the physical, chemical, or biological integrity of 

navigable waters that might be located some distance downstream. For example, 

replacing a length of pipe on a flume (such as those found on EID’s Project 184) that may 

indirectly contribute flow to a traditional navigable water, does not affect the chemical, 

physical, or biological integrity of that water. In this sense, the proposed rule would 

unnecessarily expand jurisdiction of “tributaries” to man‐made facilities. (p. 7-8)

Agency Response: See essay 12.3. The final rule does not change or impose any 

new requirements for the NPDES permit program. The final rule does not change 

the EPA’s position that discharges may move through groundwater to reach a water 

of the United States and such discharges require an NPDES permit. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

397

12.549 If expanded to include water conveyance infrastructure, the tributary definition would 

make EPA’s water transfers rule exclusion from section 402 permits inconsistent with the 

requirements for section 404 permits. (p. 8)

Agency Response: See essay 12.3. 

Pinellas County Board of County Commissioners (Doc. #14426)

12.550 The County has other permitted discharges and operations including our Solid Waste 

facility and reuse water operations that currently discharge into drainage systems not 

considered WOTUS; however, based on the proposed rule the areas in question would 

become WOTUS. How would such a determination impact these permits and 

operations? It is clear that additional CWA requirements including water quality 

standards and additional permitting for maintenance activities will apply to a larger 

portion of the County’s stormwater system under the proposed rule. MS4’s and other 

NPDES permittees are already heavily regulated and additional requirements that 

increase costs for achieving permit criteria and water quality improvements is concerning 

and unnecessary. (p. 3)

Agency Response: Please see essays 12.3 and 7.4.4. 

Waters of the United States Coalition (Doc. #14589)

12.551 Discharges from water supply facilities into traditional navigable waters are generally 

exempt from the Clean Water Act’s NPDES requirements under the Act itself, and EPA’s 

water transfer rule. Nonetheless, if the actual conveyances are classified as waters of the 

United States, activities within the canals and aqueducts could require a separate permit 

from the ACOE. (p. 24)

Agency Response: See essay 12.3. 

Klamath Drainage District - Clyde Snow Attorneys at Law (Doc. #15139)

12.552 The statement that “[t]he agencies propose ... no change to the regulatory status of water 

transfers” appears multiple times in the Preamble.112 EPA’s Water Transfers Rule 

excludes any “activity that conveys or connects waters of the United States without 

subjecting the transferred water to intervening industrial, municipal, or commercial use”

from the National Pollutant Discharge Elimination System (“NPDES”) created by 

CWA.113 The Water Transfers Rule does not define “waters of the United States,”

although EPA relied on one of the definitions the agencies propose to change in the 

proposed Rule.114 In addition to the statements in the preamble, the final rule should state 

expressly in the text of the Code of Federal Regulations that it does not change the 

regulatory status of water transfers. (p. 4)

Agency Response: See essay 12.3. 

 

112 79 Fed. Reg. at 22189; see also id. at 22193, 22199 and 22217.

113 40 C.F.R. § 122.3(i) (“Water transfer means an activity that conveys or connects waters of the United States

without subjecting the transferred water to intervening industrial, municipal, or commercial use .... “).

114 See 40 C.F.R. § 122.2; 73 Fed. Reg. 33,697, at 33,699, note 2 (June 13, 2008).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

398

Sacramento County, California (Doc. #15518)

12.553 Water reuse facilities are being built across the country to generate an additional water 

supply for irrigation purposes and sometimes drinking water. It is unclear how the 

proposed definitional changes would impact the pesticide general permit program, which 

is used to control weeds and vegetation around ditches, water transfer, reuse and 

reclamation efforts and drinking and other water delivery systems. Additional 

clarification is needed by the agencies. (p. 5)

Agency Response: Please see essay 12.3. The final rule does not affect or change 

the requirements for and implementation of the pesticides general permit (PGP). 

Montana Wool Growers Association (Doc. #5912)

12.554 By expanding WOTUS, the Proposed Rule makes more waters susceptible to point 

source regulation. Therefore, more agricultural activities are likely to result in a 

discharge into a WOTUS and be subject to point source regulation. The EPA has 

clarified “NPDES permits will NOT be required for the application of fertilizer or 

pesticides to farm fields. While this may be true of upland farm fields with no 

connection to WOTUS, it is not true of all farm fields and agricultural land. For instance, 

Section IV(D) of this comment letter explains how most ditches will be WOTUS under 

the Proposed Rule, meaning NPDES permits would be required for pesticide application 

along ditch banks (whether the ditches were currently dry or carrying water). (p. 11)

Agency Response: Please see essay 12.3. The final rule does not affect or change 

the requirements for and implementation of the pesticides general permit (PGP). 

Western Coalition of Arid States (Doc. #14407)

12.555 We believe the proposed rule will unfairly require our WESTCAS members to obtain 

additional §402 and §404 permits to operate their groundwater recharge projects. At a 

minimum, our members would be required to apply for and obtain coverage under a §402 

Pesticide General Permit to address herbicide application activities to control vegetation, 

and possibly coverage under a federal §404 Nationwide General Permit for any 

maintenance activities that involve excavating or grading to control compaction. In 

addition, our members that use treated effluent for recharge may also be required to apply 

for and obtain individual NPDES discharge permits before their flows could be

discharged into the basins. (p. 9)

Agency Response: Please see essay 12.3. The final rule includes a new exclusion at 

(b)(7) for some groundwater recharge projects. The requirements for and 

implementation of the pesticides general permit (PGP) or any NPDES permits are 

beyond the scope of this rule. 

Georgia Municipal Association (Doc. #14527.1)

12.556 The proposed rule affects all Section 402 National Pollutant Discharge Elimination 

System programs, which include municipal separate storm sewer systems (MS4s) and 

pesticide application permits (EPA Program). Section 303 Water Quality Standards 

(WQS) program will be affected as well as stormwater, green infrastructure, and total 

maximum daily load (TMDL) standards. Examples of programs which could be affected 

by the proposed rule include but not limited to are redefining local floodplain 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

399

management programs, the process and management of stormwater in regards to runoff 

control and the treatment to process runoff for water quality, redefining land use plans 

and ordinances, routine maintenance of dirt roads and watershed delineation are just to 

name a few. (p. 6)

Agency Response: Please see essays 12.3, 7.4.4, and the Economic Analysis section 

8. 

12.557 How does a local jurisdiction maintain a dirt road and ditch under the proposed rule 

without getting a permit? Roads are bladed, creating off-fall many times into the ditch, 

and the ditch usually has to have sediment removed for the runoff to move in a positive 

direction, which is usually a stream or at minimum a channel that is dry and when wet 

leads to the stream. As proposed, it would appear to me that 402 permits would be 

required for maintenance of dirt roads. Permitting would become a nightmare for the 

local jurisdiction. (p. 9)

Agency Response: See Compendium 6 (Ditches). The final rule excludes many 

ditches from jurisdiction, including ephemeral ditches that are not a relocated 

tributary or excavated in a tributary; intermittent ditches that are not a relocated 

tributary, excavated in a tributary, or drain wetlands; and ditches that do not 

connect to a traditional navigable water, interstate water, or territorial sea either 

directly or through another water are excluded, regardless of whether the flow is 

ephemeral, intermittent, or perennial. 

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

12.558 Local governments use pesticides and herbicides in public safety infrastructure to control 

weeds, prevent breeding of mosquitoes and other pests, and limit the spread of invasive 

species. While the permit has general requirements, more stringent monitoring and 

paperwork requirements are triggered if more than 6,400 acres are impacted in a calendar 

year. For local governments who have huge swathes of land, the acreage limit can be 

quickly triggered. The acreage limit also becomes problematic as more waterbodies are 

designated as a waters of the U.S. (p. 7)

Agency Response: Please see essay 12.3. The final rule does not affect or change 

the requirements for and implementation of the pesticides general permit (PGP). 

Please see Compendium 11 and Economics Analysis for an explanation of how EPA 

evaluated the final rule’s impact on other CWA programs.

Washington State Water Resources Association (Doc. #16543)

12.559 As more so-called jurisdictional waterbodies (...) are considered jurisdictional, additional 

point and nonpoint sources will need to be included in TMDL calculations. It may also 

be necessary to reopen existing TMDL allocations for purposes of including within the 

calculations the new point and nonpoint sources. (p. 8)

Agency Response: The final definitional rule does not change EPA’s or states’ 

procedures for assessing and listing waters. Please see Compendium 11 and 

Economics Analysis for an explanation of how EPA evaluated the final rule’s impact 

on other CWA programs, including TMDLs. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

400

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

12.560 Stormwater programs run by municipalities will be required to impose more stringent 

controls on facilities with parking lots, storage pads, or other large paved areas. These 

facilities would become subject to more stringent stormwater management requirements, 

potentially including the requirement to obtain National Pollutant Discharge Elimination 

System (NPDES) permits for the first time, and to treat their stormwater before it leaves 

the property. This is likely to impact grocery stores, shopping centers, big box stores, 

stadiums, airports, schools, churches, hospitals, and many other kinds of commercial and 

institutional facilities. (p. 8)

Agency Response: Please see essay 7.4.4. Permitting requirements for municipal 

stormwater discharges and the scope of the stormwater regulatory program are 

outside the scope of this rule.

12.561 The on-site storage of materials that drip over time onto paved areas will result in more 

stringent and extensive stormwater management requirements under section 402. (p. 10)

Agency Response: Please see essay 7.4.4. Permitting requirements for municipal 

stormwater discharges and the scope of the stormwater regulatory program are 

outside the scope of this rule.

12.562 The on-site storage of materials that blow onto vacant areas (or are carried by rain in the 

facility’s stormwater) can trigger new/more stringent section 402/404 permitting 

requirements. (p. 10)

Agency Response: Please see essay 7.4.4. Permitting requirements for municipal 

stormwater discharges and the scope of the stormwater regulatory program are 

outside the scope of this rule.

12.563 The stormwater collection point can, for the first time, itself be treated as a jurisdictional 

water and become subject to a section 402 permit for discharges from the facility. (p. 10)

Agency Response: Please see essay 7.4.4. 

12.564 Materials used inside the facility (e.g., metal dust) are tracked outside via the loading 

dock and mixed with stormwater, triggering more stringent section 402 requirements. 

Routine dust suppression programs and/or vehicle washing will make this problem worse. 

(p. 10)

Agency Response: Please see essay 7.4.4. Permitting requirements for municipal 

stormwater discharges and the scope of the stormwater regulatory program are 

outside the scope of this rule.

12.565 Control of weeds growing near ditches and impoundments, whether through mechanical 

techniques or herbicide applicators, can trigger section 404 or 402 permitting 

requirements. (p. 10)

Agency Response: Please see essay 12.3. The requirements for and 

implementation of the pesticides general permit (PGP) are beyond the scope of this 

rule. 

12.566 Retailers, shopping centers, and other businesses with paved parking lots will be more 

likely to be required to treat their stormwater/snowmelt runoff before it leaves their 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

401

property. For example, “big box” retail stores with garden centers or vehicle 

maintenance services are particularly likely to face more stringent Clean Water Act 

permitting required by EPA and the Corps. In some cases, these businesses would be 

required to obtain NPDES permits for the first time for discharges to WOTUS. (p. 14)

Agency Response: Please see 7.4.4. Permitting requirements for municipal 

stormwater discharges and the scope of the stormwater regulatory program are 

outside the scope of this rule.

John Deere & Company (Doc. #14136.1)

12.567 The Proposed Definitions Will Increase Clean Water Act Section 402 Permitting 

Obligations Which Do Not Consider Agricultural Requirements

The proposed definitions will significantly expand the geographic area under which the 

agencies are obligated to exercise authority over discharging sources under the National 

Pollutant Discharge Elimination System (NPDES) set forth in Section 402 of the CWA. 

Essential farming activities, which vary significantly based on local soil, weather, pest, 

and overall crop conditions, will trigger the permitting and liability requirements for 

discharges of “pollutants” required by Section 402 of the CWA. 

Under the NPDES, all facilities discharging pollutants from any “point source” into 

waters of the United States are required to obtain a permit. Although “return flows from 

irrigated agriculture” are exempt from the NPDES, sprayers and nozzles on farm 

equipment have been deemed to be “point source conveyances” requiring such a 

permit.115 Thus, the application of nutrients or pesticides at, near, or over “waters of the 

United States” through the use of a nozzle or sprayer could be deemed the discharge of a 

pollutant requiring coverage under a NPDES permit. If residue in ditches remains after 

application, NPDES regulation will extend to areas that have potential to carry flow only 

rarely. A greatly expanded geographic area over which the EPA exercises jurisdiction 

will result in the agency’s effective regulation over a significant portion of agricultural 

practices it currently does not regulate. 

The expanded reach of EPA’s geographical jurisdiction under Section 402 is of particular

concern given court cases holding that permits for new or increased point source 

discharges into impaired waters must ensure compliance with water quality 

standards.11622 Under the CWA it is, therefore, conceivable that the EPA could require, 

and at the same time deny, a permit to a farmer for the application of nutrients to his/her 

field, resulting in the possible loss of such crops. (p. 10)

Agency Response: Please see essay 12.3. The Ditches are jurisdictional under the 

rule only if they both meet the definition of “tributary” and are not are not excluded 

under paragraph (b)(3) in the rule. Please see Compendium 6, Ditches.

12.568 The Proposed Rule Does Not Address How NPDES Permit Requirements Would Be 

Administered in Conjunction With Integrated Pest Management Systems and Would

Duplicate Other EPA Regulations Addressing Pesticides.

 

115 National Cotton Council of America v. U.S. EPA, 553 F.3d 927 (6th Cir. 2009).

116 Friends of Pinto Creek v. EPA, 504 F. 3d 1007 (9th Cir. 2007).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

402

Over the past 40 years, government, associations, universities and farmers have worked 

on defining Integrated Pest Management (IPM) Plans. IPM is best defined as the practice 

of preventing or suppressing damaging populations of insect pests by application of the 

comprehensive and coordinated integration of multiple control tactics. IPM plans are 

used by growers around the country and are necessary to identify the pest and pressures 

that reduce yields, and determine the correct course of comprehensive action to ensure 

plant health. For example, growing cotton may require treating over a dozen insect and 

weeds over the life cycle of the plant. These decisions to address various pests are often 

made within a short timeframe, and once the pest is identified, immediate treatment is 

needed to ensure plant health. Requiring an individual NPDES permit each time one of 

those pest management decisions needs to be made could result in delays in treating 

insects and weeds, leading to damage and potential destruction of the crop. 

Additionally, the NPDES permitting requirements made applicable to more land area 

would be a duplicative regulation, since the safety of the uses impacted has already been 

evaluated by EPA under the Federal Insecticide, Fungicide and Rodenticide Act 

(FIFRA). EPA’s evaluation under FIFRA is extensive with consideration of potential for 

movement away from the site of application and any necessary restrictions for protection 

of water quality. Pesticides registered for use under FIFRA do not pose unreasonable 

risks to human health or the environment when used as directed by the approved label. (p. 

10-11)

Agency Response: Please see essay 12.3. The final rule does not affect or change 

the requirements for and implementation of the pesticides general permit (PGP). 

Permitting requirements are beyond the scope of this rule.

Katy Area Economic Development Council, Inc. (Doc. #15182)

12.569 Working with the State of Texas and Counties, the EPA should refine and implement 

storm water quality processes, practices and procedures that are implemented under 

Section 402 of the CWA. Katy Area EDC and WHA feel that the storm water program 

represents a better and more effective avenue for achieving real and affordable 

improvements to water quality within the contemplated zone of CWA jurisdiction 

expansion in the Western Gulf Coastal Plain (WGCP). (p. 2)

Agency Response: Please see essay 7.4.4. 

Automotive Recyclers Association (Doc. #15343)

12.570 Rather, ARA urges the agencies instead to focus its collective efforts on making the 

current programs under the CWA more effective and ensuring that all regulated industries 

are actually complying with the program mandates. ARA strongly believes that no new 

definitions of the waters of the US are necessary to protect and promote our nations 

waters; rather ARA members who are regulated under the NPDES urge regulators to 

better allocate program resources to ensure that ALL facilities subject to NPDES are 

permitted and monitored. Too often professional automotive recyclers hear from EPA 

inspectors that the “facility down the road will not be inspected because it is not on the 

inspection list”.... implying that the facility has never fulfilled its statutory obligation to 

apply for a permit to discharge stormwater runoff to our nation’s waters. EPA must work 

to obtain participation by all regulated facilities. Outcome measurements of the current 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

403

program need to be evaluated and if necessary changes need to be made before any new 

programs should be considered. (p. 3)

Agency Response: Please see essay 12.3 above, Compendium 11, and Economics 

Analysis Section 8 for an explanation of how the agencies considered the effect of the 

final rule on states that administer the NPDES program. Comments on EPA’s 

inspection policies are outside the scope of this final rule. 

12.571 Again, in an attempt to clarify exactly which waters are considered waters of the US, 

ARA believes that the agencies have made the entire NPDES unworkable. (p. 4)

Agency Response: Please see essay 12.3 above, Compendium 11, and Economics 

Analysis Section 8 for an explanation of how the agencies considered the effect of the 

final rule on states that administer the NPDES program. NPDES permit program 

requirements are beyond the scope of this rule.

12.572 EPA has developed technology based and water quality standards to prevent the 

discharge of 126 pollutants in toxic amounts in our nation’s waters. According to EPA’s 

Water Permitting Guide, these pollutants have been grouped into three general categories 

under the NPDES program: conventional, toxic and non-conventional. Also, NPDES 

permits are issued only to direct point source discharges and direct sources discharge 

wastewater directly into the receiving water body. Note that the discharge which is 

regulated is defined as going into only one water body. The proposed rule fails to detail 

how the direct point paradigm would apply to adjacent, neighboring waters or waters that 

have significant nexus with the water body which is directly receiving the discharge. (p. 

5-6)

Agency Response: Please see essay 12.3 above, Compendium 11, and Economics 

Analysis Section 8 for an explanation of how the agencies considered the effect of the 

final rule on states that administer the NPDES program. NPDES permit program 

requirements are beyond the scope of this rule.

12.573 Also monitoring requirements are developed for each pollutant. If the number of waters 

receiving a permitted facility discharge increases, than so will the burden on the facility 

to monitor the discharge into an increased number of waters. The complexity of the 

proposal is daunting and will do little to actually improve the health of our nation’s 

waters.

For instance, when a regulated facility applies for a stormwater permit, the body of water 

to which the facility expects to discharge stormwater runoff is well defined. The facility 

is informed by the permit authority about the required actions that must be taken in terms 

of monitoring and reporting and a stormwater pollution prevention plan is established 

based on the characteristics of the specific water body to which the stormwater runoff 

will discharge. Each water body is defined by state water quality standards and has limits 

on the levels of chemicals that it can absorb and remain “healthy.” The proposed new 

definitions however, do not outline how a permit can cover discharges to neighboring, 

adjacent or significant nexus water bodies that are deemed to be connected to the main 

water body to which the facility is discharging. (p. 6)

Agency Response: Please see essay 12.3 above, Compendium 11, and Economics 

Analysis Section 8 for an explanation of how the agencies considered the effect of the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

404

final rule on states that administer the NPDES program. NPDES permit program 

requirements are beyond the scope of this rule. See also essay 7.4.4 regarding 

stormwater. 

12.574 Many automotive recycling facilities are already subject to very complicated permits and 

do not understand the need for additional regulations. For example, a permit today may 

contain an effluent limit for total suspended solids (TSS) based on national effluent limit 

guidelines (technology based), a limit for ammonia based on prevention of aquatic 

toxicity (water quality-based) and a five day biochemical oxygen demand (BOD 5) limit 

based for part of the year on effluent limit guidelines and for the remainder of the year on 

water quality considerations for a specific body of water. ARA does not understand how 

the agencies will be able to develop workable permit limits when multiple waters which 

are adjacent or have a significant nexus to the main receiving waters are now defined as 

waters of the US and are next to or are downstream from the main water of jurisdiction.

Also, general permits may only be issued to dischargers within a specific geographical 

area such as city, county or state political boundaries. How will the proposed rule handle 

a discharger who now because of the new water body definitions will be discharging 

across established boundary systems?(p. 6)

Agency Response: Please see essay 12.3 above, Compendium 11, and Economics 

Analysis Section 8 for an explanation of how the agencies considered the effect of the 

final rule on states that administer the NPDES program. NPDES permit program 

requirements are beyond the scope of this rule. 

12.575 Several other questions surface that are not addressed in the proposed rule, such as:

 Who will regulate, monitor and enforce the runoff to these multiple and connected 

waters? When there are multiple and alleged connected waters, on which water 

quality standards will the permit be based?

 Why will small industrial facilities want to absorb the additional regulatory burdens 

when facilities down the street often neglect to fulfill their permit obligations and as 

such are not on EPA’s radar screen and therefore remain unregulated?

 How will the agencies account for the pollutants which come from multiple facilities 

which discharge stormwater runoff to the same water bodies?

o These questions underscore the fact that this proposed rule is not only 

unnecessary but also unworkable. ARA urges the agencies to focus on improving 

the current program by ensuring that all discharging facilities are permitted rather 

than to try to amend a national program based on court decisions that are 

geographic and industry specific as well as often driven by special interests. (p. 6-

7)

Agency Response: Please see essay 12.3 above, Compendium 11, and Economics 

Analysis Section 8 for an explanation of how the agencies considered the effect of the 

final rule on states that administer the NPDES program. NPDES permit program 

requirements are beyond the scope of this rule. Comments on EPA’s or states’ 

inspection and enforcement policies are beyond the scope of this final rule. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

405

Aluminum Association (Doc. #15388)

12.576 (...) [I]f ditches are required to meet water quality standards, this would most likely 

eliminate any designated mixing zones associated with the previous receiving stream. 

The current NPDES permitting process requires the discharger to meet water quality 

criteria under the low flow condition of the receiving stream and meet all applicable acute 

and chronic toxicity levels, thus ensuring the receiving stream is protected for its 

designated uses. The additional criteria of meeting water quality criteria prior to the 

discharge point without a mixing zone is a significant unnecessary burden on the 

regulated community. 

The agency should therefore consider the possible breadth of this part of the proposal and 

limit the scope of the tributary definition to exclude waters upstream of the point where 

federal regulation occurs (e.g., at the permitted outfall for facilities covered by an NPDES 

permit). (p. 5-6)

Agency Response: See essay 12.3. See also Compendium 6, Ditches. 

Council of Industrial Boiler Owners (Doc. #15401)

12.577 Many CIBO members are subject to the NPDES permitting program. NPDES permits

regulate the discharge of pollutants through point sources. A NPDES permit is required 

when a facility’s point source is discharging into a federal jurisdictional water. With the 

uncertainty of what will be determined to be a jurisdictional water under the proposed 

rule, a facility may discharge from a point source into a water feature that is not 

recognized by the facility to be a jurisdictional water but that is determined to be one later 

Similarly, the rule creates regulatory risk for non-NPDES permitted dischargers. A 

source not currently subject to the NPDES permitting program could become subject to 

the program not by any change on behalf of the discharger, but by a change in the 

classification of the receiving ditch, puddle, or other water. This puts facilities at risk of 

violating their NPDES permits, the CWA, or unwittingly becoming subject to NPDES 

requirements, and it creates another regulatory burden for authorized states. Ditches, 

swales, ponds, and other waters that are part of specifically permitted or unpermitted 

stormwater and wastewater management systems at manufacturing sites should be clearly 

exempt from jurisdictional waters determinations. (p. 5-6)

Agency Response: Please see essay 12.3 above, Compendium 11, and Economics 

Analysis Section 8 for an explanation of how the agencies considered the effect of the 

final rule on states that administer the NPDES program. . Additionally, the final 

rule retains the existing waste treatment system exclusion: waste treatment systems 

are not waters of the United States. Please see essay 7.1. The final rule adds a new 

exclusion for stormwater control features constructed to convey, treat, or store 

stormwater that are created in dry land. Please see essay 7.4.4.

Indiana Manufacturers Association (Doc. #15704)

12.578 It is incumbent upon EPA to more clearly explain the activities (i.e., filling, excavating, 

etc.) that are allowed to proceed without the requirement to obtain a permit. EPA should 

communicate with state agencies such as IDEM to clarify that all on-site structures 

associated with the management of water that transport, store, and treat waters are not 

jurisdictional when covered by a Section 402 permit. (p. 2)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

406

Agency Response: The final rule retains the existing waste treatment system 

exclusion: waste treatment systems are not waters of the United States. Please see 

essay 7.1. Exclusions from permitting requirements for discharges to jurisdictional 

waters are beyond the scope of this rule. 

DBMC & Associates (Doc. #15770)

12.579 It appears that the expansion of Section 404 jurisdiction that would result from this 

proposed rule will overlap that of the Section 402 program. At several locations in the 

proposed rule and its supporting documentation, a significant nexus is described as 

having three possible components; physical integrity, chemical integrity and biological 

integrity. Chemical integrity, including sediment run-off is already regulated by the 

storm water component of the Section 402 program. Industry, commercial and 

residential developments and utility projects, which are those most commonly getting 

Section 404 permits, are regulated for storm water quality across the country. The 

Section 404 program has traditionally regulated “dredge and fill” operations in TNWs 

and waters that flow directly into TNWs and adjacent wetlands. This program originated 

to maintain our country’s big river navigation system117. To expand jurisdiction of the 

Section 404 program up into the headwaters of every watershed in the country, where 

most development projects occur, is not only outside the intent of Section 404 of the Act 

but also requires the regulated community to have to respond to two agencies on the same 

water quality issue. Please clarify if that is the intent of the jurisdictional expansion 

proposed by the rule. Please explain why the Section 402 program does not currently 

provide adequate protections to small tributaries. (p. 4-5)

Agency Response: Please see section 12.4 regarding the implementation of the 

Section 404 permitting program. See also essay 12.3 regarding how the final rule 

does not change or impose new NPDES requirements. The commenter asks why 

“the section 402 program does not currently provide adequate protections to small 

tributaries.” If, for example, a small tributary headwater stream is determined to be 

jurisdictional, it is jurisdictional for purposes of both sections 402 and 404. A

discharge of pollutants other than dredged or fill material is subject to permitting 

under section 402. Discharge of dredged or fill material to that small tributary 

headwater stream is subject to section 404. A permit under one section of the CWA 

cannot be assumed to “protect the stream” if the discharge is subject to another 

CWA permit requirement. 

Federal Water Quality Coalition (Doc. #15822)

12.580 Based on the expanded definition of waters of the U.S. in the proposed rule, and based on 

EPA’s Draft Connectivity Report that asserts that all water is part of an aquatic 

ecosystem, FWQC members must now reevaluate the regulatory status of all water 

located on their property, or near their activities, irrespective of the location or 

disposition of that water. That reevaluation could affect their ability to use water 

management features, because under CWA section 402 discharges into waters of the U.S. 

must be permitted and meet water quality standards. That reevaluation also could affect 

 

117 See history of corps on the USACE home page. http://www.usace.army.mil/About/History.aspx
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

407

FWQC members’ ability to maintain those features, because under CWA section 404 

dredging or filling a water of the U.S. must be permitted and mitigated. (p. 6)

Agency Response: See essay 12.3. See also section 12.4 regarding the 

implementation of the Section 404 permitting program, and Compendium 7 

discussing features that are not jurisdictional. Section (b) of the final rule states that 

waste treatment systems are not waters of the United States (as is current practice), 

and additionally states that certain stormwater control features and wastewater 

recycling structures created in dry land: detention and retention basins built for 

wastewater recycling, groundwater recharge basins, and percolation ponds built for 

wastewater recycling, and water distributary structures built for wastewater 

recycling are excluded from jurisdiction.

12.581 The agencies also do not appear to have focused on how the proposed rule will affect 

permit programs. In her June 30, 2014 blog, Acting Assistant Administrator Stoner said

that “permits will NOT be applied for the application of fertilizer to fields or surrounding 

ditches or seasonal streams.”

118

 This statement is not accurate. The proposed rule makes 

all water in a flood plain and all seasonal streams federally regulated waters of the U.S. 

The application of fertilizer or pesticides to a water of the U.S. can require a permit.119 

The blog also says that “The pesticide general permit only requires a NPDES permit 

where pesticides are applied directly to a water of the U.S.” This statement also is 

incorrect. The pesticide general permit expressly applies to pesticide applications that 

take place near water, such as along the bank of a stream, because EPA takes the position 

that this pesticide will end up in a water of the U.S.120 EPA’s pesticide permit also says 

“Delineated Waters of the United States may or may not be wet at the time of discharge;

however, discharges to such are still considered discharges to Waters of the United 

States.”

121

 Administrator Stoner’s blog also says that “Pesticide applicators can avoid 

direct contact with jurisdictional waters when spraying crop fields.” That would be true 

only if the field, or any other area of land, does not have erosional features that EPA or 

the Corps might consider an ephemeral stream. A permit could be needed to spray 

pesticide on any land that is crisscrossed with erosion features that are considered 

ephemeral streams, even if there is no water present. (p. 55)

Agency Response: Please see essay 12.3. The requirements for and 

implementation of the pesticides general permit (PGP) are beyond the scope of this 

rule.

Water Advocacy Coalition (Doc. #17921.1)

12.582 Under the proposed rule, any channelized features that contribute flow, including 

manmade features, are jurisdictional tributaries.122 This extends to new features, 

 

118 http://blog.epa.gov/epaconnect/2014/06/setting-the-record-straight-on-wous/ 

119 Nat’ Cotton Council of Am. v. EPA, 553 F.3d 927 (6th Cir. 2009).

120 U.S. EPA, Pesticide General Permit for Discharges From the Application of Pesticides, Authorization to 

Discharge under the National Pollutant Discharge Elimination System (2011), at 1-1, 9-21 (permit applies at water’s 

edge as well as in water).

121 Id. at A-8 (defining waters of the U.S. to include areas that are not wet at the time of discharge).

122 See 79 Fed. Reg. at 22,263.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

408

including a facility’s internal conveyances that are not included in existing NPDES 

permits. A NPDES permit is required for the discharge of any pollutant from any point 

source into waters of the United States.123 Thus, a NPDES permit would be required for 

the discharge of a pollutant from a point source into any system or feature covered by the 

proposed expanded waters of the United States definition, such as ditches and other 

manmade conveyances. Moreover, with the proposed rule’s substitution of the new 

waters of the United States definition in 40 C.F.R. § 122.2, a NPDES permit will be 

required for stormwater discharges into newly covered features, including MS4 ditches 

and other stormwater conveyances. Ditches and conveyances, including those used for 

collecting and conveying stormwater, could be regulated as both point sources and as 

waters of the United States.124. In other words, point source flow into the feature or 

system would be regulated, as well as discharges from the system. This will result in the 

need for additional permits, duplicative regulation, and an increased risk of third party 

litigation. 

As discussed in more detail below, as waters of the United States, these features would be 

subject to section 303 WQS, including numeric effluent limitations.125 For features that 

do not meet WQS, a TMDL must be established.126

In addition, as waters of the United States, even routine maintenance on ditches or 

stormwater conveyances or other actions taken to comply with NPDES permit 

requirements (e.g., changing pH, dredging out solids, or building a structure to take 

samples) could now require either a 402 or 404 permit. For example, the installation of 

baffles and weirs to facilitate removal of pollutants such as sediment in stormwater (as 

required by stormwater permits) would now require complex section 404 permitting 

procedures. As another example, the stormwater program requires the construction of 

ditches/stormwater retention ponds to manage stormwater. And if the ditches and ponds 

created pursuant to stormwater BMPs are treated as waters of the United States, this will 

result in a never-ending cycle of regulation. Ultimately, these more burdensome 

permitting requirements will result in increased costs and delays. 

The proposed rule covers tributaries that have been channelized or otherwise altered for 

use to create water delivery systems (or for water reuse systems) could now be subject to 

CWA regulation (including but not limited to the sections 303 and 404 requirements 

noted elsewhere in this section). And, adding the proposed rule’s definition of “adjacent 

waters,” which includes all waters in floodplain and riparian areas, it could mean that 

holding and recharge ponds that are part of such systems also would be jurisdictional. 

For example, regulators may have no choice but to require an NPDES permit for storm 

flows that are diverted to basins for possible water supply, or a section 404 permit for 

maintenance activities. 

Furthermore, the transfer of stormwater from one stormwater conveyance to another 

stormwater conveyance may trigger permitting requirements because each conveyance 

 

123 33 U.S.C. §§ 1311, 1342.

124 See 33 U.S.C. § 1362(14) (a point source is a discernible, confined and discrete conveyance – which includes 

ditches)

125 33 U.S.C. § 1311(b)(1)(C); § 1313(e)(3)(A).

126 33 U.S.C. § 1313(d).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

409

could be both a point source and water of the United States under the proposed rule. 

With the state of the Water Transfer Rule in flux,127, this could lead to multiple permits 

required throughout a stormwater system. These increased permitting requirements may 

lead to lengthier permitting delays. For example, if the proposed rule is made final, and 

the EPA Water Transfers Rule is ultimately vacated, the Central Arizona Project 

(“CAP”)

128 would be regulated under the NPDES program and would need to obtain a 

permit to discharge into a traditional water of the United States, such as Lake Pleasant.129 

Additionally, CAP could be required to obtain separate permits each time it introduces 

water into the CAP system. CAP anticipates that, “[i]n both instances, CAP could be 

required to treat water as it moves into and out of the CAP system based on differences in 

the chemical, biological, or physical characteristics of the source and receiving water.” 

Because “treatment methods for that volume of water are technically impractical and the 

costs of compliance are prohibitively expensive,” this outcome would be “disastrous” for 

CAP and other water delivery systems across the country and their customers. The entire 

CAP likely would be considered a water of the United States, and a section 404 permit 

would be required for maintenance within the canal. Any State, tribal, federal, or 

regulated community costs related to regulating and/or permitting these areas has not 

been considered. 

The cost of NPDES permitting requirements already has affected small businesses and 

cities, and in some instances the permits are cost prohibitive. For example, the courtordered requirement for an NPDES permit for mosquito spraying is impacting public 

health, with jurisdictions having to decide whether to pay for the cost of the permit or not 

spray. Many have had to make the hard fiscal choice of not spraying because of the cost. 

In recent years, cities like Brewerton, Alabama; Orchard City, Colorado; and Cedaredge, 

Colorado could not spray for mosquitoes due to the high costs and liability associated 

with NPDES permits. Western Slope and Delta County, Colorado have expressed 

concerns about citizen lawsuits, along with issues finding aerial spraying companies to 

perform vector control due to liability and costs. The city of Laramie, Wyoming 

struggled with increased costs of mosquito control due to the increase its applicators had 

to charge due to NPDES permits. Oregon’s Department of Environmental Quality had to 

halt invasive species treatments for the same reason as Brewerton and other jurisdictions. 

We are concerned EPA and the Corps’ proposed rule will cause even more cities and 

small businesses applying pesticides to struggle with high permit costs. 

Even if the agencies do not intend to extend jurisdiction to features such as ditches within 

MS4s and other stormwater conveyances under the proposed rule, ambiguity in the rule 

 

127 see Catskill Mountains, et al. v. United States EPA, Nos. 08- CV-5606 (KMK), 08-CV-8430 (KMK), 2014 WL 

1284544 (S.D.N.Y. Mar. 28, 2014)

128 The Central Arizona Project is a water provision system that brings about 1.5 million acre-feet of Colorado River 

water per year to Pima, Pinal, and Maricopa Counties (the counties in which Arizona’s most populous cities, such as 

Phoenix and Tucson, are located). It has an approximately 336-mile long system of aqueducts, tunnels, pumping 

plants, and pipelines. See http://www.cap-az.com/. 

129 See Central Arizona Project, Action Brief: Discussion and Consideration of Action to Adopt Position on the 

Proposed Rule, ‘Definition of Waters of the United States Under the Clean Water Act’ (the ‘Proposed Rule’) (June 

5, 2014), http://www.cap-az.com/documents/meetings/06-05-

2014/6.%20%20Clean%20Water%20Act%20060514.pdf. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

410

would invite third party challenges. The CWA allows for citizen suits over discharges 

that EPA and the Corps have decided not to regulate.130 Here, the agencies have left 

ambiguity in the proposed rule with respect to items such as where the discharge point is, 

when a point source is discharging to a “water of the United States,” the definition of 

“ditch,” the definition of “upland,” and the extent to which the rule would reach internal 

conveyances that are not included in existing NPDES permits. As in Baykeeper, the 

ambiguities in the proposed rule would leave the agencies and stakeholders vulnerable to 

citizen suits. (p. 77-79)

Agency Response: Please see essay 12.3. Please also see essay 7.4.4 regarding 

stormwater management, and Technical Support Document Section 1. The final 

rule does not affect or change the requirements for and implementation of the 

pesticides general permit (PGP), which are beyond the scope of this rule. The 

agencies disagree that the rule subjects ditches to regulation for the first time. 

Instead, the rule for the first time explicitly excludes certain ditches from the 

definition of “waters of the United States.” See Compendium 6, Ditches.

North Houston Assoc., West Houston Assoc., Woodlands Development Co. (Doc. #12259) 

12.583 We believe that the expansion of jurisdiction into the upper reaches of tributaries and into 

the isolated waters will not appreciably improve water quality of traditional navigable 

waters (TNW). The EPA should, in concert with the State and Counties, better refine and 

implement storm water quality processes, practices and procedures that are implemented 

under Section 402 of the CWA. We feel that the storm water program represents a better 

and more effective avenue for achieving real and affordable improvements to water 

quality within the contemplated zone of CWA jurisdiction expansion in the WGCP. (p. 3)

Agency Response: Please see essay 12.3 above, as well as essay 7.4.4 regarding 

stormwater. 

Pennsylvania Grade Crude Oil Coalition (Doc. #15773)

12.584 Under (the Pennsylvania Erosion and Sediment Control General Permit), erosion and 

sediment control and storm water management best management practices (BMPs) must 

be implemented and maintained, and a post-construction storm water management plan 

must be developed to manage changes in storm water runoff after the earth disturbance 

activities have ended and the project site is permanently stabilized. Where post 

construction BMPs stay in place, long-term operation and maintenance schedules must be 

prepared that allow for inspection of BMPs and repair, replacement or other routine 

maintenance to ensure proper operation. State oil and gas agencies typically will require 

drainage ditches to be constructed and stabilized with appropriate erosion and sediment 

controls. These controls may include installation of water bars within the ditches and 

lining the channels with riprap. Under the Proposed Rule, any maintenance or repair of 

these ditches required by the ESCGP-2, including the placement of riprap, would be 

prohibited by the Corps without a Section 404 permit. (p. 8)

 

130 See, e.g., San Francisco Baykeeper, 481 F.3d at 706 (citizen suit alleging illegal discharge within an industrial 

facility into ponds that the agencies declined to assert jurisdiction over).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

411

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see summary response at 7.4.4. Please also see 

Compendium 6, Ditches.

Hispanic Landscape Alliance (Doc. #15171.1)

12.585 The proposed WOTUS rule will directly and negatively impact the landscape services 

industry, both with respect to new and existing landscapes that are designed, built, and 

maintained by such industry. The expanded jurisdiction in the proposed rule will expand 

the National Pollutant Discharge Elimination Systems (NPDES) permit requirements. 

Such an effect will require businesses in the landscape services industry, including those 

owned and staffed by Hispanics, to obtain permits to perform normal tasks associated 

with the proper and safe application of algaecides, herbicides, insecticides, and other 

related products near natural or constructed residential lakes, ponds, or other water bodies 

on residential properties. The same permitting requirements may extend to land-based 

pesticide applications which would greatly expand the jurisdiction of protected waters 

under the proposed rule and increase the direct and negative effects on NHLA members 

and their ability to maintain landscapes properly. Such effects would have the potential 

to limit the growth and proper management of landscapes, thereby also limiting the many 

scientifically documented social, economic, and environmental benefits of properly 

managed landscapes. Such benefits include significant carbon sequestration, water 

quality improvement through filtration, oxygen creation, psychological benefits, 

contributions to improved property values, and other factors. (p. 2-3)

Agency Response: Please see essay 12.3 above. The requirements for and 

implementation of the pesticides general permit (PGP) are beyond the scope of this 

rule.

12.586 The proposed WOTUS rule will also cause potential significant change to Section 404 of 

the CWA by requiring new legal and regulatory costs for NHLA members as important 

small businesses. Such changes may require new permits for common landscape 

management and development tasks (e.g. debris removal from a water body, pesticide 

and fertilizer application, minor site development) that did not previously require permits. 

Further, as defined by the proposed rule, Section 404 permits could be now required to 

plant vegetation or features in areas noted as floodplain or deemed to be under the 

jurisdiction of the definitions in the proposed rule. Requiring permits for such tasks 

would likely add significant time and cost and could require NHLA members to hire 

consultants and legal counsel to comply. This could have lasting and detrimental 

economic effects on the Hispanic component of the landscape services industry. Such 

permit requirement burdens may also diminish land value because of limitations on the 

future development of such lands. Diminished land values along with increased 

economic burdens on the small businesses that design, build, and manage such lands 

would have lasting negative economic effects. (p. 3)

Agency Response: Please see section 12.4 for responses regarding the impacts on 

the section 404 permitting program. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

412

National Association of Home Builders (Doc. #19540)

12.587 The Proposed Rule will Result in Increased Clean Water Act Section 402 National 

Pollutant Discharge Elimination System (NPDES) Permitting Requirements.

Under the proposed rule, any channelized features that contribute flow, including manmade features, are jurisdictional tributaries.131

 An NPDES permit is required for the 

discharge of any pollutant from any point source into “waters of the United States.”

132

 

Thus, an NPDES permit would be required for the discharge of a pollutant from a point 

source into any system or feature covered by the proposed expanded “waters of the 

United States” definition, such as ephemeral streams, ditches, and other man-made 

conveyances. Moreover, with the proposed rule’s substitution of the new “waters of the 

United States” definition in 40 C.F.R. § 122.2, an NPDES permit will be required for 

stormwater discharges for newly covered features, including MS4 ditches and other 

stormwater conveyances. Ditches and conveyances, including those used for collecting 

and conveying stormwater, could be regulated as both point sources and as “waters of the 

United States.”

133

 In other words, flow into the feature or system would be regulated as 

well as discharges from the system. This will result in the need for additional permits, 

duplicative regulation, and an increased risk of third party litigation.

As discussed in more detail below, as “waters of the United States,” these features would 

be subject to the CWA Section 303 water quality standards (WQS), including numeric 

effluent limitations.134 For features that do not meet water quality standards, a total 

maximum daily load (TMDL) must be established.135

In addition, as “waters of the United States,” even routine maintenance on ditches and 

stormwater conveyances or other actions taken to comply with NPDES permit 

requirements (e.g., changing pH, dredging out sediments, or building a structure to take 

samples) could now require either a Section 402 or 404 permit. For example, the 

installation of baffles and weirs to facilitate removal of pollutants such as sediment in 

stormwater (as required by stormwater permits) would now require complex Section 404 

permitting procedures. Further, the stormwater program requires the construction of 

ditches and stormwater retention ponds to manage stormwater. If stormwater BMPs are 

treated as “waters of the United States,” this will result in a never-ending cycle of 

regulation. Ultimately, these more burdensome permitting requirements will result in 

increased costs and delays, but result in little or no environmental benefit. 

Similarly, the transfer of stormwater from one stormwater conveyance to another 

stormwater conveyance may trigger permitting requirements because each conveyance 

could be considered to be both a point source and a “water of the United States” under 

the proposed rule. With the state of the Water Transfers Rule (regulation in which EPA 

codified its position that NPDES requirements do not apply to water transfers from an 

 

131 See 79 Fed. Reg. at 22,263.

132 33 U.S.C. §§ 1311, 1342.

133 See 33 U.S.C. § 1362(14) (a point source is a discernible, confined and discrete conveyance – which includes 

ditches). 

134 33 U.S.C. § 1311(b)(1)(C); § 1313(e)(3)(A).

135 33 U.S.C. § 1313(d). 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

413

area where water is available to another area where water is scarce) in flux, this could 

lead to multiple permits required throughout a stormwater system.136 These increased 

permitting requirements may lead to lengthier permitting delays. For example, if the 

proposed rule is made final and the EPA water transfers rule is ultimately vacated, the 

Central Arizona Project (CAP) would be regulated under the NPDES program and would 

need to obtain a permit to discharge into a traditional “water of the United States,” such 

as Lake Pleasant.137 Additionally, CAP could be required to obtain separate permits each 

time it introduces water into the CAP system. CAP anticipates that, “[i]n both instances, 

CAP could be required to treat waters as it moves into and out of the CAP system based 

on differences in the chemical, biological, or physical characteristics of the source and 

receiving water.”

138

 Because “treatment methods for that volume of water are technically 

impractical and the costs of compliance are prohibitively expensive,” this outcome would 

be “disastrous” for CAP and other water delivery systems across the country and their 

customers.139

Similarly, the proposed rule captures tributaries that have been channelized or otherwise 

altered to create water delivery systems (or water reuse systems) that could now be 

subject to CWA regulation (including, but not limited to, CWA Section 303 and 404 

requirements noted elsewhere in this section). And, in light of the proposed “adjacent 

waters” definition, which includes all waters in floodplain and riparian areas, holding and 

recharge ponds that are part of such systems also would be jurisdictional. For example, 

regulators may have no choice but to require an NPDES permit for storm flows that are 

diverted to basins for possible water supply or a Section 404 permit for maintenance 

activities. Thus, the entire CAP, for example, likely would be considered a “water of the 

United States,” and a Section 404 permit would be required for maintenance within the 

canal. Any state, tribal, federal, or regulated community costs related to regulating 

and/or permitting these areas have not been considered. 

The cost of NPDES permitting requirements already has affected small businesses and 

cities and, in some instances, the permits are cost prohibitive. For example, the courtordered requirement for an NPDES permit for mosquito spraying is impacting public 

health with jurisdictions having to decide whether to pay for the cost of the permit or not 

spray. Many have had to make the hard fiscal choice of not spraying because of the cost 

of obtaining and operating pursuant to a permit. In recent years, cities like Brewerton, 

Alabama, Orchard City, Colorado, and Cedaredge, Colorado, could not spray for 

mosquitoes due to the high costs and liability associated with NPDES permits. Western 

 

136 National Pollutant Discharge Elimination System (NPDES) Water Transfers Rule, 73 Fed. Reg. 33,697 (June 13, 

2008) (codified at 40 C.F.R. § 122.3(i) (2008)) (hereinafter Water Transfers Rule); See Catskill Mountains, et al. v. 

United States EPA, Nos. 08—CV-5606 (KMK), 08—CV-8430 (KMK), 2014 WL 1284544 (S.D.N.Y. Mar. 28, 

2014). 

137 The Central Arizona Project is a water provision system that brings about 1.5 million acre-feet of Colorado River 

water per year to Pima, Pinal, and Maricopa counties (the counties in which Arizona’s most populous cities are 

located, such as Phoenix and Tucson). It has an approximately 336-mile long system of aqueducts, tunnels, 

pumping plants, and pipelines. See http://www.cap-az.com/; See also Central Arizona Project, Action Brief, 

“Discussion and Consideration of Action to Adopt Position on the Proposed Rule, ‘Definition of Waters of the 

United States Under the Clean Water Act’ (the ‘Proposed Rule’)” (June 5, 2014). 

138 See id. 

139 Id.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

414

Slope and Delta County, Colorado, have also expressed concerns about citizen lawsuits 

along with issues finding aerial spraying companies to perform vector control due to 

liability and costs. The city of Laramie, Wyoming, struggled with the increased costs of 

mosquito control due to the increase its applicators had to charge due to NPDES permits. 

Oregon’s Department of Environmental Quality had to halt invasive species treatments

for the same reason. EPA and the Corps’ proposed rule will cause even more cities and 

small businesses applying pesticides to struggle with high permit costs.

Even if the Agencies do not intend to extend jurisdiction to features such as ditches 

within MS4s and other stormwater conveyances under the proposed rule, the ambiguity 

in the rule is sure to invite third party challenges. The CWA clearly allows for citizen 

suits over discharges that EPA and the Corps have decided not to regulate.140 Here, the 

Agencies have left ambiguity in the proposed rule with respect to items such as where the 

discharge point is, when a point source is discharging to a water of the United States, the 

definition of “ditch,” the definition of “upland,” and the extent to which the rule would 

reach internal conveyances that are not included in existing NPDES permits. As in 

Baykeeper, the ambiguities in the proposed rule would leave the Agencies and 

stakeholders vulnerable to citizen suits. (p. 120-122)

Agency Response: Please see essay 12.3 above, as well as essay 7.4.4 regarding 

stormwater management, and Technical Support Document Section 1. The final 

rule does not affect or change the requirements for and implementation of the 

pesticides general permit (PGP), which are beyond the scope of this rule. The

agencies disagree that the rule subjects ditches to regulation for the first time. 

Instead, the, rule for the first time explicitly excludes certain ditches from the 

definition of “waters of the United States.” See Compendium 6, Ditches.

Texas Mining and Reclamation Association (Doc. #10750)

12.588 Finally, the Agencies should explicitly recognize, as they have in prior practice,

141 that 

channels, diversions, ditches, feeder streams, wetlands, and other on-site features 

carrying flow to and from ponds and impoundments used to treat wastewater and 

stormwater are part and parcel of water treatment systems at mine sites. Such features 

are necessary to convey and manage wastewater and stormwater within the mine site, and 

they help sediment and other pollutants settle out before any water is released to 

downstream waters of the United States. Water that is conveyed from the mine site to 

downstream jurisdictional waters requires an NPDES permit and, not surprisingly, 

NPDES permitting authorities have typically agreed that it would be senseless to require 

additional permits above the point of discharge to downstream jurisdictional waters. 

Nevertheless, to avoid any potential confusion in the field concerning the scope of the 

waste treatment system exclusion, the Agencies should make it clear that the exclusion 

encompasses all components of the treatment system, including but not limited to 

ponds/impoundments and the related flowing waters within a mining project site that are 

necessary to convey waters to and from those ponds and impoundments. (p. 16)

 

140 See, e.g., San Francisco Baykeeper v. Cargill Salt Div., 481 F.3d 700, 706 (9th Cir. 2007) (citizen suit alleging 

illegal discharge within an industrial facility into ponds that the agencies declined to assert jurisdiction over). 

141 36See fn. 7.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

415

Agency Response: Please see essays 12.3 and 7.1 regarding the waste treatment 

system exclusion. 

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

12.589 The agencies suggest that it is not possible to estimate the impact of the proposal on 

NPDES permitting. It is appropriate to presume if the landscape of jurisdictional waters 

is expanded, there will be a need to review existing individual and general NPDES 

permits, as well as to revise future permitting requirements. The agencies have not 

properly addressed the impact of this proposal on CWA 402 permitting. (p. 6)

Agency Response: Please see essay 12.3 and Economics Analysis section 8 for an 

explanation of how the agencies considered impacts to all Clean Water Act 

programs, including the Section 402 program. 

Pennsylvania Coal Alliance (Doc. #13074)

12.590 As part of each mining permit application in Pennsylvania, the operator must develop, 

among other things, an operation plan, a description of the treatment systems, an erosion 

and sedimentation (E&S) plan and a reclamation plan. These plans will identify the 

anticipated locations of many water features, including existing streams and wetlands and 

planned diversion ditches, runoff collection ditches, sediment ponds, and treatment 

ponds. The E&S plan will identify the E&S control measures to be used during each 

stage of mining. The reclamation plan will identify the anticipated conditions of the 

property following mining activities. When issued, the mining permit will include an 

NPDES permit for discharges from the identified outfalls to currently recognized “waters 

of the United States.” The NPDES permit will identify monitoring requirements for each 

outfall. For some discharges, effluent limitations will also be identified. (p. 9)

Agency Response: The agencies did not identify a question contained in this 

comment, but see essays 12.3 and 7.1. NPDES permitting requirements are beyond 

the scope of this rule.

12.591 Pennsylvania already has a comprehensive spill response program, with mine operators, 

among others, being required to develop and implement an environmental emergency 

response plan, including a Preparedness, Prevention and Contingency (PPC) Plan, as part 

of the NPDES permit application process for stormwater discharges associated with 

mining activities. (p. 12)

Agency Response: Please see essays 12.3 and 7.4.4 for an explanation of how the 

agencies considered impacts to the Section 402 permitting program and how the 

final rule addresses stormwater control features. See also compendium section 12.5 

and the Economic Analysis for an explanation of how the agencies considered 

impacts to the Section 311 program. 

12.592 The adverse consequences to mining companies of deeming their artificial ponds and 

associated ditches and other constructed channels to be jurisdictional waters would be 

enormous. Newmont would be required to obtain CWA 402 permits from the State to 

discharge tailings to its tailings impoundments, to discharge pregnant solutions and 

barren solutions to its pregnant and barren heap leach solution ponds, to discharge water 

into its quench ponds, and to discharge waters into ditches that are associated with these 

ponds. Indeed, Newmont might have to shut down operations, and lay off hundreds of 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

416

employees, while seeking CWA 402 permits. In addition, in order to modify any of its 

artificial ponds or constructed channels, or to close them or to reclaim them as operations 

cease or change, Newmont would need to obtain CWA 404 permits from the Corps. That 

is because changing the configuration or volume of the ponds or channels, or closing or 

reclaiming them, would invariably require that all or portions of these ponds or channels 

be filled in.142 Such modifications to channels and expansions of artificial ponds are not 

infrequent. Thus, on top of the reclamation permits, closure permits, and construction 

permits that Newmont now obtains from the State of Nevada and from the BLM to build, 

close, and reclaim ponds or channels, Newmont would need extra permission from EPA 

and the Corps to design and construct its ponds or channels, and to close them at the end 

of operations. In addition, of course, a 404 permit would carry with it mitigation 

obligations. 

But there is more. Arguably, the State (or EPA) would have to establish, and Newmont 

would have to meet, water quality standards and Total Maximum Daily Loads 

(“TMDLs”) 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 § 303(d). Indeed, Newmont 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. (p. 24)

Agency Response: Regarding the questions contained in this comment on the 

waste treatment system exclusion, please see essay 7.1. The final rule also establishes 

an exclusion for water filled depressions created in dry land incidental to mining or 

construction activity, including pits excavated for obtaining fill, sand, or gravel that 

fill with water. See section (b)(4)(E) of the final rule. 

Tennessee Mining Association (Doc. #14582)

12.593 The Proposed Rule raises concerns as to whether federal jurisdiction over wet weather 

conveyances will cause confusion at the least or create obstacles and additional cost for 

mining operations. Impacts to wet weather conveyances from moving equipment across 

a wet weather conveyance during operation will also become a substantial issue and 

create enforcement concerns. Moreover, Section 402 Permits are not typically written to 

protect wet weather conveyances since they have no uses; rather the effluent limits are 

based upon impact to the jurisdictional stream. In the event wet weather conveyances are 

jurisdictional under the Proposed Rule, the state may be forced to unnecessarily impose 

more stringent effluent limits causing increased exposure of operators and permittees to 

citizen suits or federal and state enforcement. (p. 4-5)

Agency Response: Please see essays 12.3 and 7.4.4. 

Continental Resources, Inc. (Doc. #14655)

12.594 Under Section 402, a NPDES permit is required for the discharge of any pollutant from 

any point source into any water or feature deemed jurisdictional under the Proposed Rule. 

 

142 Under Newmont’s reclamation and closure plans, which are approved by the Bureau of Land Management

(“BLM”) and the State of Nevada, its artificial ponds and associated channels are typically drained at closure, and

the ponds and channels filled, graded, and vegetated to support post-mining land use(s).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

417

Given the expansions in jurisdiction described above, NPDES permitting obligations for 

non-stormwater discharges, and associated water quality standards, will increase 

exponentially. There are many implications for stakeholders, including the increased 

regulation of internal conveyances, conveyances subject to water quality standards and 

total maximum daily loads (“TMDLs”), permit delays, loss of flexibility in state 

regulatory programs, and increased risk of third party litigation and agency enforcement. 

(p. 18)

Agency Response: Please see essay 12.3. See also Economic Analysis Section 8 and 

Compendium 11 for an explanation of how the agencies considered the cost impacts 

to the Section 402 program. 

12.595 Under Section 402, a NPDES permit is required for stormwater discharges into any water 

or feature defined as jurisdictional. Given the broad expansion of waters that would be 

jurisdictional under the Proposed Rule, previously unregulated conveyances used for 

collecting and conveying stormwater (e.g., ditches with ephemeral flow) might now be 

regulated as both stormwater conveyances and as jurisdictional waters. Currently, 

Continental incorporates numerous standard site construction features-such as access 

road ditches, run-on ditches, and retention ponds-that have been routinely considered 

non-jurisdictional under the current rule but would likely be jurisdictional under the 

Proposed Rule. Storm water maintenance activities along existing roads could also be 

subject to NWP 3 (maintenance), NWP 19 (minor dredging), NWP 43 (stormwater 

management facilities) or NWP 45 (repair of uplands damaged by discrete events) if 

ditches are broadly considered “tributaries.” There are many implications for Continental 

associated with these new requirements, including increased permitting requirements,

new conveyances subject to water quality standards, additional compliance conditions to 

implement erosion and sediment control measures, increased delays, and increased risk of 

third party litigation and agency enforcement. (p. 18)

Agency Response: Please see essay 7.4.4 regarding the final rule’s treatment of 

stormwater control features. Also see Compendium 6, Ditches.

12.596 In North Dakota, the state has looked to EPA’s Multi-Sector General Permit (“MSGP”) 

for oil and gas extraction (Part 8, Section I) to require state permitting when there is a 

reportable spill off location that impacts a jurisdictional water. Normally, discharges of 

storm water runoff from field activities or operations associated with oil and gas 

exploration, production, processing or treatment operations, or transmission facilities are 

exempt from NPDES permit coverage. However, a NPDES permit is required under the 

MSGP if the facilities have a discharge of storm water resulting in (1) the discharge of a 

reportable quantity for which notification was required under 40 C.F.R. §§ 110.6. 117.21, 

302.6; or (2) the contribution to a violation of a water quality standard. Given the 

expansion of jurisdiction to virtually all waters, ditches, prairie potholes, and drainages, 

and the adoption of broad geographic areas being aggregated (e.g., the floodplain and 

riparian area concepts in the adjacent definition and the single landscape unit in the 

significant nexus definition), Continental is concerned that it will need to obtain a 

NPDES permit whenever there is any minor spill. (p. 18)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

418

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

than that under the existing regulation. The final rule does not affect the current 

applicability or requirements for compliance with the MSGP. See also essay 7.4.4. 

12.597 The expanded jurisdiction is also likely to result in additional state permitting 

requirements. For example, the North Dakota Department of Health (“NDDoH”) is 

considering reissuance of the NPDES storm water discharge general permit associated 

with mining, extraction or paving materials preparation. Under this permit, storm water 

discharges associated with industrial activities are subject to regulation requirements of 

Section 402 of the CWA, enforced by the North Dakota Pollutant Discharge Elimination 

System (“NDPDES”) permitting program. Permit requirements include sampling for 

dewatering of uncontaminated storm water and melt water, and the requirement for 

companies to obtain NDPDES permits will inevitably increase with more jurisdictional 

waters. NDDoH currently requires an industrial discharge permit for hydrostatic test 

water, and additional permitting and compliance conditions may be required if that 

discharge goes to a newly classified jurisdictional water. In contrast, the Montana 

Department of Environmental Quality (“MTDEQ”) does not currently require discharge 

permits for upland discharges of hydrostatic test water. More of these discharges would 

now require permit coverage and subsequent compliance requirements. (p. 18-19)

Agency Response: Please see essays 12.3 and 7.4.4. NPDES permit requirements 

are outside the scope of the final rule. 

Nevada Mining Association (Doc. #14930)

12.598 The adverse consequences to mining companies of deeming their artificial ponds and 

associated ditches and other constructed channels to be jurisdictional waters would be 

enormous. NvMA member companies would be required to obtain CWA 402 permits 

from the State to discharge tailings to their tailings impoundments, to discharge pregnant 

solutions and barren solutions to their pregnant and barren heap leach solution ponds, to 

discharge water into their quench ponds, and to discharge waters into ditches that are 

associated with these ponds. Indeed, NvMA member companies might have to shut 

down operations, and lay off hundreds of employees, while seeking CWA 402 permits. 

In addition, in order to modify artificial ponds or constructed channels, or to close them 

or to reclaim them as operations cease or change, an operator would need to obtain CWA 

404 permits from the Corps. That is because changing the configuration or volume of the 

ponds or channels, or closing or reclaiming them, would invariably require that all or 

portions of these ponds or channels be filled in.143 Such modifications to channels and 

expansions of artificial ponds are not infrequent. Thus, on top of the reclamation permits, 

closure permits, and construction permits that NvMA member companies now obtain 

from the State of Nevada and from the BLM or US Forest Service to build, close and 

reclaim ponds or channels, operators would need extra permission from EPA and the 

Army Corps to design and construct its ponds or channels, and to close them at the end of

 

143 Under reclamation and closure plans, which are approved by the Bureau of Land Management (“BLM”) and the 

State of Nevada, its artificial ponds and associated channels are typically drained at closure, and the ponds and 

channels filled, graded, and vegetated to support post-mining land use(s).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

419

operations. In addition, of course, a 404 permit would carry with it mitigation 

obligations. (p. 14)

Agency Response: See essay 12.3 and 7.1. The final rule also establishes an 

exclusion for water filled depressions created in dry land incidental to mining or 

construction activity, including pits excavated for obtaining fill, sand, or gravel that 

fill with water. See section (b)(4)(E) of the final rule.

National Mining Association (Doc. #15059)

12.599 Calling on-site water features jurisdictional would also trigger increased Section 402 

permitting obligations for mining-related activities. In particular, many ditches, which 

are already regulated as stormwater conveyances under Section 402(p), as well as ditches 

conveying waters to ponds and impoundments, if jurisdictional, would be subject to water 

quality standards, total maximum daily loads (TMDLs), and NPDES requirements. As a 

result, companies needlessly will have to treat not only discharges from such ditches to 

downstream waters, but also discharges into those very same ditches.

By way of another example, under the proposed rule mining companies could be put in 

the impossible situation of having features designed to either store or treat mining-related 

materials to improve water quality be themselves required to meet water quality 

standards. Under such a scenario, how would any mining operation meet existing permit 

limits if the very systems the Agencies relied on in determining available compliance 

technologies – i.e. ponds, impoundments, ditches, and conveyances – are no longer 

available to assist with pre-discharge treatment? Were this to happen, nearly every U.S. 

mine subject to CWA requirements would be immediately out of compliance, and would 

have to treat any water before it entered any mine conveyance system. In other words, 

without clarifying language the proposed rule would create the absurd result of 

mandating that mining operators treat water to meet NPDES requirements before water is 

conveyed to water treatment systems designed to ensure that the water meets such 

NPDES requirements.

Likewise, with respect to Section 402, by essentially moving the extent of federal CWA 

jurisdiction upstream, the proposal would lead to confusion concerning outfall and 

receiving waters determinations. During the last 40 years, innumerable NPDES permits 

have been issued, each of which identifies one or multiple outfalls, which in turn each 

have a designated “receiving water” and monitoring location. Some of these 

determinations were made decades ago, and have been reflected in the last six or seven 

successive NPDES permit renewals. Will permittees and permit issuers now be required 

to reassess determinations that have been reasonably relied on by regulators and 

permittees alike for decades – and which the Agencies have not identified as causing any 

environmental problems – based on the new proposal? 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. 17)

Agency Response: See summary response at 12.3. See also Compendium 11 and 

Economic Analysis section 8 for an explanation of how the agencies considered the 

effects of the final rule on all CWA programs, including section 402. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

420

Ohio Oil & Gas Association (Doc. #15122)

12.600 Most comments are addressing the effects of this proposed rule on the CWA 404 

program. There will be an equal effect on the CWA 402 NPDES permitting program. 

More NPDES permits may now be necessary for ditches that were never before 

regulated. These delays should be contemplated and accounted for. (p. 3-4)

Agency Response: Please see essay 12.3. See also Compendium 11 and Economic 

Analysis section 8 for an explanation of how the agencies considered the effects of 

the final rule on all CWA programs, including section 402. Also please see 

Compendium 6, Ditches.

South Carolina Association of Counties (Doc. #15573)

12.601 Under the rule, Section 402 permits would be necessary for common farming activities 

like applying fertilizer or pesticide or moving cattle if materials (fertilizer, pesticide or 

manure) would fall into low spots or ditches. Section 404 permits would be required for 

earthmoving activity, such as plowing, planting or fencing, except as part of established 

farming ongoing at the same site since 1977. Technically, EPA could absolutely require 

a permit for cows or hogs crossing a stream or wet pasture. Under federal regulations, 

manure is a Clean Water Act pollutant. If a low spot on a pasture is a jurisdictional 

wetland or ephemeral stream under the new rule, EPA or a citizens group could sue the 

owner of the livestock that discharge manure into those jurisdictional waters without a 

Section 402 permit. (p. 1)

Agency Response: Please see essay 12.3. 

Coeur Mining, Inc. (Doc. #16162)

12.602 Coeur Mining is required to manage storm and runoff water in the course of conducting 

its business. The proposed rule will impose federal CWA regulation to features that are 

constructed and used pursuant to other federal and state regulatory programs. Mining 

companies, inclusive of Coeur Mining, may routinely maintain, modify, move, or reclaim 

ditches during the life of the mine because of the dynamic nature of mining operations. If 

mining companies must now obtain Section 404 permit coverage each time they have to 

conduct one of these ditch-related activities, operations would effectively come to a halt 

due to the delays and burdens of permitting. Or worse, mining companies might find 

themselves in a position where they are unable to comply with other regulatory 

requirements such as the reclamation requirements of the 43 C.F.R. 3809. 

In addition to the implications for Section 404 permitting, the proposed rule is also likely 

to trigger increased Section 402 permitting obligations for mining-related activities as 

additional waters within mine sites that were previously non-jurisdictional become 

jurisdictional. In particular, many ditches, which are already regulated as stormwater 

conveyances under Section 402(p), as well as ditches conveying waters to ponds and 

impoundments, could likely be considered jurisdictional waters subject to water quality 

standards, total maximum daily loads, and NPDES requirements. As a result, companies 

needlessly will have to treat not only discharges from such ditches to downstream waters, 

but also discharges to those very same ditches. Additionally, by way of another example, 

under the proposed rule mining companies could be put in the impossible situation of 

having features designed to either store or treat mining-related materials to improve water 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

421

quality be themselves required to meet water quality standards. The Agencies should 

meet with stakeholders and federal and state regulatory Agencies to fully understand the 

implications on other federal and state regulatory programs and revise the rule to avoid 

duplication and conflicting requirements. (p. 4)

Agency Response: Please see essay 12.3. See also Compendium 11 and Economic 

Analysis section 8 for an explanation of how the agencies considered the effects of 

the final rule on all CWA programs, including section 402. Also, see essay 7.4.4 

regarding the final rule’s treatment of stormwater control features and essay 7.1 

regarding the waste treatment system exclusion. 

American Gas Association (Doc. #16173)

12.603 The proposed definitions (...) create a real risk that stormwater management structures 

erected or managed by natural gas utilities may be regulated dually as Waters of the U.S. 

and a point source under existing regulations. Natural gas utilities obtain National 

Pollutant Discharge Elimination System (“NPDES”) permits for limited, temporary storm 

water discharges from digging short, narrow ditches to install gas lines, or for short-term 

(1-2 days) hydrostatic test water discharges, and erect structures as part of required 

stormwater management plans and best management practices to manage construction 

stormwater, run-off and post-construction stormwater. Under the proposed definitions, 

any time a natural gas utility erects a structure, removes sediment for testing, or pursues 

ongoing mitigation of a project on a site that experiences ordinary (non-perennial) flow 

that ultimately drains to a downstream water, those activities may be subjectively viewed 

as taking place in “adjacent” waters or “tributary”-like conveyances to navigable waters. 

Such a result would impose unduly burdensome requirements for natural gas utilities’

routine work to be regulated under CWA programs. The Agencies should clarify these 

definitions so that such structures and conveyances, including ditches, would not be 

considered both a point source discharge and a WOTUS, merely because they drain into a 

feature that may or may not ultimately be connected to a WOTUS. (p. 9-10)

Agency Response: Please see essays 12.3, 7.1, and 7.4.4. 

Dominion Resources Services (Doc. #16338)

12.604 We operate under NPDES individual and general permits for many of our industrial 

facilities such as, but not limited to, electricity generating stations, natural gas extraction 

facilities and natural gas compressor stations. We also regularly obtain construction 

general stormwater permits that regulate stormwater discharges associated with a range 

of construction projects including electric transmission and distribution construction and 

maintenance, natural gas transmission construction and distribution, and traditional and 

renewable electricity generation development and maintenance. These permits regulate 

discharges to WOTUS including imposing limits, treatment requirements and a range of 

monitoring and reporting requirements. To the extent that additional features are 

considered WOTUS under the proposed rules and do not fall under an exemption, these 

permitting requirements could be required “upstream” of what would be the current 

permitted discharge point. For example, ditches or ephemeral features that have 

historically been operated as stormwater conveyance structures could now be considered 

WOTUS. Instead of the permitted point of compliance being imposed at the point where 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

422

these features discharge to current WOTUS, discharges into these features could now 

require permitting if finalized as proposed. (p. 4-5)

Agency Response: Please see essays 12.3, and 7.4.4. 

Kentucky Oil and Gas Association (Doc. #16527)

12.605 NPDES permits are required for the discharge of pollutants into “waters of the United 

States.” Currently, there are many facilities that discharge wastewater into areas absent 

“waters of the United States.” This proposed rule would vastly expand the presence of 

waters of the United Sates throughout the landscape. As a result, many facilities would 

be subject to the NPDES permitting requirements that require costly water monitoring 

and reporting that would likely not be protective of the environment as discharges are not 

polluted. (p. 7)

Agency Response: Please see essay 12.3. The requirements for the NPDES 

permitting program are beyond the scope of this rule. Under the final rule, the scope 

of regulatory jurisdiction is narrower than that under the existing regulations.

Pennsylvania Aggregates and Concrete Association (Doc. #16353)

12.606 There are broad effects on each and every CWA program, including Sections 401 Water 

Quality Certification, 402 NPDES Permitting, 404 Permitting, and Sections 303, 304, 305 

Water Quality Standards. As a very simple example, an NPDES permit is required for 

discharge of any pollutant from any point source into any water or feature covered by 

proposed WOTUS definition. A broader definition will result in increased NPDES 

obligations and subsequent increased state resources – all unsupported by scientific need. 

(p. 7)

Agency Response: Please see essay 12.3. See also compendium 11 and Economic 

Analysis Section 8 for an explanation of how the agencies considered impacts to all 

CWA programs, including the Section 402 program. Under the final rule, the scope 

of regulatory jurisdiction is narrower than that under the existing regulations. 

Independent Petroleum Association of America (Doc. #18864)

12.607 Review of the agencies’ waters of the United States related definitions leads to the 

conclusion of expanded jurisdiction of CWA 402 (NPDES) permitting authority, a point 

which is noticeably absent from economic analyses conducted by the agencies. For 

example, under the proposed definition, a rain dependent stream that is ephemeral would 

qualify as a water of the United States and discharge to such would require a permit.144

Additionally, if there is a jurisdictional ditch that experiences perennial flow, pursuant to 

the proposal, it will fall within the definition of water of the United States.145 Any direct 

discharge to a jurisdictional ditch would now require a NPDES permit. Also, if there are 

a series of “other waters”, including wetlands, that are similarly situated when they 

perform similar functions that are sufficiently close together or close to a navigable 

water, discharges to such waters are now subject to NPDES permitting.146 In spite of 

 

144 Executive Order, 58 Fed. Reg. 51735.

145 Id. at 22203.

146 Id. at 22211.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

423

these examples of expanded implementation of waters of the United States, the agencies 

suggest that it is not possible to estimate the impact of the proposal on NPDES 

permitting. Economic Analysis, p. 27. With regard to new and existing individual and 

general NPDES permits, a review of those permitted activities relative to the new 

proposed definition will undoubtedly expand NPDES regulated activities and represent 

significant economic impacts. The agencies have simply failed to complete the economic 

analysis of the proposal relative to CWA 402 permitting. In order to accurately reflect the 

impact of this proposal, a more thorough assessment of impacts on CWA 402 permitting 

is essential. (p. 6)

Agency Response: Please see essay 12.3. See also compendium 11 and Economic 

Analysis Section 8 for an explanation of how the agencies considered impacts to all 

CWA programs, including the Section 402 program. Under the final rule, the scope 

of regulatory jurisdiction is narrower than that under the existing regulations. 

National Farmers Union (Doc. #6249)

12.608 The proposed rule does not address pesticide applications other than applications directly 

to a jurisdictional water. Similarly, it is clear that the proposed rule does not specifically 

address fertilizer applications. This is not the proper venue for discussing these 

applications. Future opportunities will arise to work with EPA on these topics, especially 

the problem of redundant CWA and Federal Insecticide, Fungicide, and Rodenticide Act 

(FIFRA) regulations governing pesticide applications. (p. 10-11)

Agency Response: Please see essay 12.3. Regulations governing pesticide 

applications are beyond the scope of this rule. 

California Agricultural Commissioners and Sealer Association (Doc. #9670)

12.609 The significant change in the definition of “other waters” will lead to broad expansions in 

the numbers of locations coming under jurisdiction and likewise increase the number of 

new permits needed by agricultural operations to perform many routine farming 

practices. This will generate added burdens and costs and cause undue overlapping of 

enforcement upon agriculture. In the context of agricultural pesticide use, pesticides are 

already regulated by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). 

Their use is monitored for adherence to labeling restrictions to protect the environment, 

NPDES requirements are being addressed nationwide, and discharges to waters of the 

U.S. are already being regulated and monitored in California by both the State and 

Regional Water Quality Control Boards. (p. 1)

Agency Response: Please see essay 12.3. See also compendium 11 and Economic 

Analysis Section 8 for an explanation of how the agencies considered impacts to all 

CWA programs, including the Section 402 program. Regulations governing 

pesticide applications are beyond the scope of this rule. 

Riverside County Farm Bureau (Doc. #12729)

12.610 The prospect of additional federal land use controls or removal of land from agricultural 

production is concerning. EPA and the Corps’ Proposed Rule, along with the Interpretive 

Rule, will have material economic impacts on our members. Coupled together, the 

Proposed Rule and the Interpretive Rule will significantly increase potential liability for 

farmers and ranchers. Many ephemeral streams, ponds, depressions, and ditches found 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

424

across fields and pastures will now fall under EPA’s and the Corps’ jurisdiction, and may 

require permits for activities taking place on the land. While the Agencies have 

exempted 56 farming and ranching practices, as long as they meet the specific NRCS 

standards, any deviation from these standards can result in hefty fines. Further, the 

exemptions only apply to CWA Section 404 and do not provide any insulation from 

CWA Section 402 NPDES permitting requirements for waters that may become 

jurisdictional under the Proposed Waters of the U.S. Rule. For example, while the 

Interpretive Rule may allow a farmer to plant cover crops in jurisdictional waters without 

first seeking a CWA Section 404 permit, the Interpretive Rule will not prevent the need 

for a CWA Section 402 NPDES permit for other activities that may result in a discharge 

of pollutants. (p. 2)

Agency Response: The Interpretive Rule was withdrawn and comments on it are 

outside the scope of the proposed and final Clean Water Rule. Please see 

Compendium 14 – Miscellaneous.

Colorado Farm Bureau (Doc. #12829)

12.611 This jurisdictional expansion will be disastrous for farmers and ranchers. Farmers need 

to apply weed, insect, and disease control products to protect their crops. On much of our 

most productive farmlands (areas with plenty of rain), it would be extremely difficult to 

avoid entirely the small wetlands, ephemeral drainages, and ditches in and around farm 

fields when applying such products. If low spots in farm fields are defined as 

jurisdictional waters, a federal permit will be required for farmers to protect crops. 

Absent a permit, even accidental deposition of pesticides and herbicides into these 

“jurisdictional” features (even at times when the features are completely dry) would be 

unlawful discharges. 

The same goes for the application of fertilizer—including organic fertilizer (manure) –

another necessary and beneficial aspect of many farming operations. It is simply not 

feasible for farmers to avoid adding fertilizer to low spots within farm fields that may 

become jurisdictional. As a result, the proposed rule will impose on farmers the burden 

of obtaining a section 402 discharge permit to fertilize their fields – and put EPA into the 

business of regulating whether, when, and how a farmer’s crops may be fertilized. In 

fact, if low spots on pastures become jurisdictional wetlands or tributaries, EPA or 

citizens groups could sue the owner of cows that “discharge” manure into those “waters”

without a section 402 permit. They could sue any time a farmer plows, plants, or builds a 

fence across small jurisdictional wetlands or ephemeral drains.147 Federal permits would 

be required (again, subject to the very narrow exemption of certain activities from section 

404 permits) if such activities cause fertilizer, dirt, or other pollutants to fall into low 

spots on the field, even if they are dry at that time. (p. 3-4)

Agency Response: Please see essay 12.3. Under the final rule, the scope of 

regulatory jurisdiction is narrower than that under the existing regulations.

 

147 A plow has been found to be a point source. See Borden Ranch P’ship v. United States Army Corps of Eng’rs, 

261 F.3d 810 (9th Cir. 2001).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

425

AEP Ohio (Doc. #12847)

12.612 CWA Expansion Talking Points:

 Expanding the definition of “waters of the U.S.” also expands the scope of waters 

subject to NPDES permits for mosquito control applications. This makes it more 

difficult for professional applicators to obtain permits and treat areas at high risk for 

West Nile Virus and Dengue Fever, creating a great concern for public health and 

safety. West Nile Virus claimed some 286 lives in 2013.

 This rule would make it more difficult to control harmful pests on private and public 

property if any water is near the area. Professional applicators and homeowners 

would have to obtain permits to protect properties from pests like ticks, which carry 

harmful diseases like Lyme Disease.

 The expanded jurisdiction affects vegetation management applicators’ ability to keep 

right-of-ways safe and passable because they would need to obtain costly NPDES 

permits to treat near water bodies and ditches considered jurisdictional under the 

proposed rule. Such applications keep our roadways and power lines clear and safe.

 Under the rule, EPA could compel states to place restrictions on the amount or type of 

fertilizer that can be used on public and private property including individual home 

lawns, gardens, parks and golf courses.

 Expanding the definition of “waters of the U.S.” also expands the scope of waters 

subject to NPDES permits for algae and aquatic weed control applications. Golf 

course water hazards and man-made lakes in residential communities or on an 

individual’s private property could be subject to these expanded permitting 

requirements.

 The expanded scope of the Clean Water Act could leave landowners and 

professionals applying fertilizers and pesticides vulnerable to nuisance lawsuits.

 Well-maintained lawns are important for the environment and properly-cared for 

lawns reduce runoff into nearby waters. One of the unintended consequences of 

EPA’s proposed rule could be increased erosion and run-off into many connected 

water bodies.

 Uncontrolled growth of poison ivy, poison oak, and poison sumac poses risk to 

children and adults alike as more than one-half of the U.S. population is allergic to 

these noxious weeds, which must be controlled with herbicides which are labeled for 

use in riparian locations by the EPA. (p. 1)

Agency Response: Please see essay 12.3. Under the final rule, the scope of 

regulatory jurisdiction is narrower than that under the existing regulations.

Bayless and Berkalew Co. (Doc. #12967)

12.613 The normal farming exemption only applies to discharges of “dredged or fill material”

under Section 404. It does not apply to discharges of manure, fertilizer, herbicide etc. 

which are regulated under Section 402 and often come into contact with stock ponds and 

upland ditches. (p. 3)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

426

Agency Response: Please see essay 12.3. Exemptions from permitting 

requirements for discharges to jurisdictional waters are beyond the scope of this 

rule.

Nebraska Cattlemen (Doc. #13018)

12.614 To further articulate this point Nebraska Cattlemen would like to point out a serious 

concern that the attempt to fix the §404 problem creates many more problems under other 

sections of the CWA. If enacted as proposed, the definition of “waters of the United 

States” would affect the scope of all provisions of the CWA that use the term. This 

would include the §402 National Pollutant Discharge Elimination System (NPDES) 

permit program; the §303 water quality standards and total maximum daily load 

programs; the §401 state water quality certification process; and the §311 oil spill 

program. As noted earlier, the Existing Guidance (the model for this rule) was limited on 

its face to §404 determinations and had no practical impact on the other sections listed 

above. By essentially overlaying the Existing Guidance (as modified by the proposed 

rule) on these other sections, EPA will create significant cost, confusion, increase 

unnecessary bureaucracy, infringe on state programs, and expose agricultural producers 

to new liability. (p. 12)

Agency Response: Please see essays 12.2, 12.3 and Economics Analysis Section 8 

describing how the agencies considered impacts to the other Clean Water Act 

programs.

12.615 Many producers have gone through the NPDES permitting process and are currently 

operating under a General Permit or an Individual Permit. This regulatory structure has 

evolved at the state level in tandem with the federally delegated NPDES program since 

its inception. All determinations have been made under the state definition of regulated 

waters. If the proposed rule is adopted, the Nebraska regulatory scheme suddenly leaves 

the producer wondering if his or her operation is effectively permitted or exempted. This 

is because, with the broad categorical definition of tributaries and neighboring waters, it 

is possible that currently exempted operations may now be subject to federal CWA 

jurisdiction. What’s worse is that a producer may have, in good faith, constructed a 

landscape feature to divert flow away from livestock operations and now those very 

features may themselves be a “tributary” or an “adjacent” water. (p. 14)

Agency Response: The final rule does not change existing permits or other actions 

taken to implement the CWA. Existing permits will remain effective for the life of 

that permit unless the permit is withdrawn. The scope of regulatory jurisdiction in 

this rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. In addition, the rule provides greater clarity 

regarding which waters are subject to CWA jurisdiction, reducing the instances in 

which permitting authorities, including the states and tribes with authorized section 

402 and 404 CWA permitting programs, to address jurisdictional issues or make 

jurisdictional determinations on a case-specific basis. The definition of “adjacent” in 

the rule does not include those waters that are subject to established, normal 

farming, silviculture, and ranching activities. Wetlands and farm ponds being used 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

427

for normal farming activities, as those terms are used in the Clean Water Act and its 

implementing regulations, are not jurisdictional under the Act as an “adjacent” 

water. Waters subject to normal farming, silviculture, and ranching activities 

instead will continue to be subject to case-specific review, as they are today. 

12.616 The recent need to establish a process to obtain coverage for pesticide applications “on or 

near” water creates another point of potential turmoil if the proposed rule is adopted. The 

National Cotton Council decision caused much confusion on how states would issue 

permits for application of pesticides on or near water bodies. NDEQ developed and 

issued a General Permit with cooperation from the Region VII office of EPA. The 

General Permit is appropriate for Nebraska’s varying conditions. It may not, however, 

cover all of the expansion of categorical federal jurisdiction and “other waters” as 

contemplated in the proposed rule. Nebraska Cattlemen is directly impacted by this issue 

and comment that the State has adequately addressed any concern here.

In summary, an expansion of CWA jurisdiction and an overlay of §404 decision-making 

process to §402 is not only unlawful, it does not make sense. The State of Nebraska has 

developed a surface water discharge permitting system that is now built on forty years of 

implementation. Do not fix what is not broken. Do not expose producers to liability and 

uncertainty by drastically changing the NPDES program with an unlawful expanded 

federal definition. (p. 14-15)

Agency Response: Please see essay 12.3. Please see the Technical Support 

Document for a discussion about one definition of waters of the U.S. that applies to 

all CWA programs. Also, please note that the final rule does not overlay § 404 

decision-making processes onto the § 402 programs. 

Missouri Agribusiness Association (Doc. #13025)

12.617 Administrator McCarthy stated that if you don’t need a permit before, you don’t need to 

get one now. In her June 2014 blog, Acting Assistant Administrator Stoner said that 

“permits will not be applied for the application of fertilizer to fields or surrounding 

ditches or seasonal streams” and that “the pesticide general permit only requires a 

NPDES permit where pesticides are applied directly to a water of the U.S.” These 

statements are incorrect and would not withstand logical scrutiny. Floodplains and 

ephemeral streams are everywhere in the rural landscape. Thus under the proposed rule, 

fertilizer and pesticide applications would be near WOTUS. By any definition, the 

tractor is very ‘near’ the ditch in the picture used above. Because the proposed rule 

makes water in a flood plain and ephemeral streams WOTUS and federally regulated, it 

is totally logical that applicators of fertilizer or pesticides would now or soon in the future 

be forced to obtain a permit. The pesticide general permit expressly applies to pesticide 

applications that take place near water. Administrator Stoner’s blog also says that 

“Pesticide applicators can avoid direct contact with jurisdictional waters when spraying 

crop fields.” Again, refer to the above picture. It is totally reasonable to assume that a 

permit with set-back provision may someday be required under the proposed rule. (p. 4)

Agency Response: Please see essay 12.3. Permitting requirements pesticide 

applications are beyond the scope of this rule.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

428

North American Meat Association (Doc. #13071)

12.618 The proposed rule would expand federal jurisdiction significantly, which will have a 

direct and indirect impact on many industries and entities, public and private. For 

example, stormwater programs run by municipalities will be required to impose more 

stringent controls on facilities with parking lots, storage pads, or other large paved areas. 

These facilities would be subject to more stringent stormwater management 

requirements, which could force them to obtain NPDES permits for the first time and to 

treat stormwater before it leaves the property. (p. 10)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

Iowa Corn Growers Association (Doc. #13269)

12.619 We believe this rule will create additional uncertainty for farmers who could face citizen 

lawsuits. In making many of these newly defined features WOTUS, the rulemaking 

could invite activist suits challenging the application of pesticides or fertilizers on, over, 

in or near these drainage features. This was the same rationale used in the 2009 Cotton 

Council decision on aquatic pesticides requiring a CWA National Pollution Discharge 

Elimination System (NPDES) permit. (p. 6)

Agency Response: Please see essay 12.3. 

USA Rice Federation (Doc. #13998)

12.620 We understand that discharges of irrigation return flow to a water of the U.S. are exempt 

from NPDES permitting under CWA sections 402(l)(1) and 502(14). However, if a ditch 

on a rice farm is a water of the U.S. and fertilizer and pesticides are present in the water 

that is drained from the field, even at very low levels, citizen plaintiffs could allege that 

the return flow to the ditch was not composed “entirely” of irrigation return flow.148

Even if the claims are spurious, it is beyond the means of many farmers to defend against 

such lawsuits. (p. 6)

Agency Response: Please see essay 12.3. 

Western Growers Association (Doc. #14130)

12.621 How do these regulatory exclusions for ditches interact with the Clean Water Act’s 

definition of “point source,” which also clearly includes ditches? The statutory definition 

of “point source,” another element of Clean Water Act jurisdiction, explicitly lists “ditch”

as a point source.149 Moreover, in Rapanos, the plurality Justices lead by Justice Scalia 

 

148 See CWA § 505. Such claims have been brought against farmers outside of the rice industry. For example, in 

Fishermen Against the Destruction of the Environment v. Closter Farms, 300 F.3d 1294, 1297-98 (11th Cir. 2002) 

the plaintiff sued a sugar cane farmer that a operated drainage system. There, the court ultimately agreed that the 

drainage was for agricultural purposes and therefore was exempt irrigation return flow. In another case, Pacific 

Coast Federation of Fisherman’s Associations, et al. v. Glaser, et al., No. CIV S-2:11-2980-KJM-CKD (E.D. Cal. 

Sept. 16, 2013) the plaintiffs’ initial case against the Bureau of Reclamation and an irrigation district that drained 

water from farmers’ fields was also dismissed. However, the court allowed the plaintiffs to file an amended 

complaint alleging that draining groundwater from the field did not have an agricultural purpose so this litigation is 

ongoing. Pacific Coast Federation of Fisherman’s Associations, et al. v. Murillo, et al., No. CIV S-2:11-2980-KJMCKD (E.D. Cal. Mar. 27, 2014). 

149 33 U.S.C. § 1362(14) (2012).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

429

preferred to think of ditches and channels as point sources rather than as “waters of the 

United States,” at least so far as the NPDES permit program is concerned. It is therefore 

entirely possible that a non-perennial upland ditch discharging into another water might 

qualify as the relevant point source even if it cannot be considered a “water of the United 

States.” Neither the proposed new regulation nor the agencies’ commentary deals with 

this potential dual legal status of ditches as the agencies should.150 (p. 15)

Agency Response: Please see the Technical Support Document Section I and 

Compendium 6 - Ditches.

Kentucky Farm Bureau Federation (Doc. #14567)

12.622 The Agencies apparently do not adequately recognize the role States play as co-regulators 

of waters under the CWA. Under section 303 of the Clean Water Act, all States identify 

the designated uses of regulated waters within their respective State, as well as the 

criteria to protect those uses. Under section 401, States review federal actions and certify 

whether that action will meet State water quality standards. Under section 402, 46 States 

implement the National Pollution Discharge Elimination System (NPDES) permitting 

program. In addition, States have their own statutes authorizing State Clean Water 

regulatory programs and defining waters of the State in some cases more broadly than the 

federal definition. In Kentucky, state law established the Kentucky Water Quality 

Authority (KWQA) in 1994 to work with the Kentucky Division of Water to develop and 

implement regional and statewide water quality plans, and has performed exceptionally in 

working with the agricultural community to implement best management plans to reduce 

agricultural runoff and improve water quality. Under the KWQA all farms over 10 acres 

must develop and implement an effective Agriculture Water Quality Plan. This program 

has worked remarkably well. (p. 2)

Agency Response: Please see essay 12.2 and 12.3, as well as Compendium 11 and 

Economics Analysis Section 8 for a description of how the agencies considered 

impacts to all Clean Water Act programs. 

Oregon Farm Bureau (Doc. #14727)

12.623 The new definition of “Waters of the United States” will undoubtedly undermine the 

progress Oregon has made in improving water quality. The new definition that expands 

the jurisdictional reach of the CWA will, for the first time, require permits for a number 

of ongoing activities. New permit requirements will most likely occur in a number of 

situations.

...the broad definition creates new land features that are subject to CWA. For instance, 

riparian areas, ditches and ordinarily dry ephemeral “tributaries” will be subject to CWA 

water quality standards, but also require landowners to obtain an NPDES permit prior to 

applying any herbicide or fertilizer to these non-water features. In many cases, to 

improve or maintain riparian areas in Oregon and to comply with the AWQMA, 

landowners need the ability to apply herbicides without unnecessary federal regulation. 

 

150 U.S. Army Corps of Engineers & U.S. EPA, Definition of “Waters of the United States” Under the Clean Water 

Act; Proposed Rule, 79 Fed. Reg. 22,188, 22,219 (April 21, 2014). Noting the potential jurisdiction as a point source 

but not discussing the issue at length. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

430

Additional costs associated with new regulations will weaken any progress that can be 

made and may even reverse the good work by Oregon landowners. (p. 5)

Agency Response: Please see essay 12.2 and 12.3, as well as Compendium 11 and 

Economics Analysis Section 8 for a description of how the agencies considered 

impacts to all Clean Water Act programs. Under the final rule, the scope of 

regulatory jurisdiction is narrower than that under the existing regulations. See 

Final Rule Preamble and Technical Support Document Section 1. 

Windsong Farm Golf Club (Doc. #14746)

12.624 Expanding the definition of “waters of the U.S.” also expands the scope of waters subject 

to NPDES permits for mosquito control applications. This makes it more difficult for 

professional applicators to obtain permits and treat areas at high risk for West Nile Virus 

and Dengue Fever, creating a great concern for public health and safety. West Nile Virus 

claimed some 286 lives in 2013. (p. 1)

Agency Response: Please see essay 12.3. Requirements for coverage under the 

Pesticides General Permit (PGP) is beyond the scope of this rule.

12.625 The expanded jurisdiction affects vegetation management applicators’ ability to keep 

right-of-ways safe and passable because they would need to obtain costly NPDES permits 

to treat near water bodies and ditches considered jurisdictional under the proposed rule. 

Such applications keep our roadways and power lines clear and safe. (p. 2)

Agency Response: Please see essay 12.3. Requirements for coverage under the 

Pesticides General Permit (PGP) are beyond the scope of this rule. 

12.626 Expanding the definition of “waters of the U.S.” also expands the scope of waters subject 

to NPDES permits for algae and aquatic weed control applications. Golf course water 

hazards and man-made lakes in residential communities or on an individual’s private 

property could be subject to these expanded permitting requirements. (p. 2)

Agency Response: Please see essay 12.3. Requirements for coverage under the 

Pesticides General Permit (PGP) are beyond the scope of this rule. 

Santa Barbara County Farm Bureau (Doc. #14966)

12.627 The prospect of additional federal land use controls or removal of land from agricultural 

production is concerning. EPA and the Corps’ Proposed Rule, along with the Interpretive 

Rule, will have material economic impacts on our members. Coupled together, the 

Proposed Rule and the Interpretive Rule will significantly increase potential liability for 

farmers and ranchers. Many ephemeral streams, ponds, depressions, and ditches found 

across fields and pastures will now fall under EPA’s and the Corps’ jurisdiction, and may 

require permits for activities taking place on the land. While the Agencies have 

exempted 56 farming and ranching practices, as long as they meet the specific NRCS 

standards, any deviation from these standards can result in hefty fines. Further, the 

exemptions only apply to CWA Section 404 and do not provide any insulation from 

CWA Section 402 NPDES permitting requirements for waters that may become 

jurisdictional under the Proposed Waters of the U.S. Rule. For example, while the 

Interpretive Rule may allow a farmer to plant cover crops in jurisdictional waters without 

first seeking a CWA Section 404 permit, the Interpretive Rule will not prevent the need 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

431

for a CWA Section 402 NPDES permit for other activities that may result in a discharge 

of pollutants. (p. 2)

Agency Response: The Interpretive Rule was withdrawn and comments on it are 

outside the scope of the proposed and final Clean Water Rule. Please see 

Compendium 14 – Miscellaneous. See also Essay 12.3. 

National Corn Growers Association (Doc. #14968)

12.628 The Agencies rightly point out that this rulemaking has not changed the application of the 

Section 404 exemptions for “normal farming activities” or the application of the 

“agricultural stormwater exemption” from Section 402 permitting. We agree. But there 

are far more troubling consequences of making these drainage features WOTUS.

In making these farm drainage features WOTUS the rulemaking would invite activist 

lawsuits challenging the application of fertilizers or pesticides onto, over, into or near to 

these drainage features as being an illegal point source discharge needing a Section 402 

National Pollution Discharge Elimination System (NPDES) permit. That was the logic 

adopted by a federal court in the Cotton Council decision that ruled that aquatic 

pesticides applied from a nozzle onto, over, into or near WOTUS require a CWA NPDES 

permit. The court reached this conclusion even though the pesticides are only allowed to 

be used under separate, longstanding federal pesticide law following a mandated rigorous 

and expensive scientific study, review and labeling process. The lawsuits challenging 

farmers’ use of terrestrial pesticides under the agricultural stormwater exemption, even 

though used under a label and requirements created in the federal process, would 

effectively result in the federal NPDES permitting of the use of pesticides in the entire 

farm field, or the establishment of mandatory, large buffers around these features in 

which agricultural production would not occur. The same is true for the use of fertilizers 

near or in these drainage features. This is despite the fact that it is universally recognized 

as appropriate and needed, including under federal conservation practice standards, to 

fertilize the grass stands in and immediately adjacent to these drainage features to ensure 

a healthy, erosion controlling and soil stabilizing stand. Such activist lawsuits and the 

resulting federal law would effectively end the agricultural stormwater exemption’s 

meaningful application in farm fields where these WOTUS drainage features are located. 

(p. 11-12)

Agency Response: Please see essay 12.3. 

Missouri Soybean Association (Doc. #14986)

12.629 The rule will bring into jurisdiction nearly every square inch of land within a floodplain 

and therefore the rule will obligate farmers, industries and municipalities to obtain 

NPDES permits for pesticide use on active farmland and other areas as well as prevent 

(and potentially make unlawful) the land application of wastewater, biosolids and sludge, 

animal manure to the land. NPDES permits as well as other state-only no-discharge 

permits prohibit the application of wastewater and manure to “waters of the state” which 

in Missouri includes “waters of the US”. This fact alone will have enormous and 

immediate impacts on agriculture as land application of manure is the sole manure 

management method for Animal Feeding Operations. However, we are also concerned 

about how this will impact and restrict the use of commercial fertilizer on river bottom 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

432

farmland as no one would consider the placement of fertilizer in a jurisdictional Waters 

of the US as a sound “best management practice”. Giving the lack of clarity in the rule, 

farmers may be forced to conduct jurisdictional determinations on all their crop land. It 

is expected that most river bottom crop land will be jurisdictional and therefore, farmers 

will need permits to legally conduct routine farming operations. Even if EPA “looks the 

other way”, and uses some form of “enforcement discretion” for these sorts of 

circumstances, ultimately farmers are the ones left absorbing all the regulatory 

uncertainty and risk as well as exposing themselves to greater legal liability. All of this 

leaves farmers in a sort of legal jeopardy that is simply not acceptable to Missouri 

soybean farmers. (p. 8)

Agency Response: Under the final rule, the scope of regulatory jurisdiction is 

narrower than that under the existing regulations. Please see essay 12.3. 

Department of Public Works, City of Chesapeake, Virginia (Doc. #5612.1)

12.630 Most of the storm water ditches within the City of Chesapeake are ephemeral or 

intermittent and many of them have bed and bank and contribute flow to a WOUS during 

rain events; therefore, under the proposed Rule, most of Chesapeake’s stormwater ditches 

could be considered WOUS and subject to regulatory oversight under the CWA. These 

are the same stormwater ditches that require preventative maintenance and retrofitting to 

comply with the City’s MS4 permit under Section 402 of the CWA. If stormwater 

management ditches become WOUS, would they then become subject to TMDL 

requirements? Would the EPA propose a TMDL for an impaired ditch? Would the 

Virginia Department of Environmental Quality then need to develop water quality 

standards for a ditch? Without more specific exemptions provided for purpose built 

stormwater management facilities including, but not limited to stormwater ditches and 

ponds, the proposed Rule may have unreasonable, burdensome and unintended 

consequences. (p. 3)

Agency Response: The final rule includes an exclusion for stormwater control 

features constructed to convey, treat, or store stormwater that are created in dry 

land. Please see Compendium 7, summary response at 7.4.4. 

Bayer CropScience (Doc. #16354)

12.631 The FIFRA jeopardy described previously for terrestrial pesticide products would be 

compounded if CWA citizen suits were filed by third parties alleging improper pesticide 

applications to newly-jurisdictional waters. Every state but four is primarily responsible 

for regulating discharges of pesticides to jurisdictional waters, and have developed and 

implemented Pesticide National Pollutant Discharge Elimination System (NPDES) 

General Permits following the 2009 National Cotton Council v. EPA decision of the 6

th

Circuit Court of Appeals. Any changes to the regulations and policies that govern which 

waters and man-made conveyances are jurisdictional will have a direct effect on these 

programs. Not only will this affect the activities of states and their budgets, but farmers, 

public health agencies, pesticide applicators, and other pesticide users will experience 

uncertain economic impacts and legal jeopardy. (p. 5)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

433

Agency Response: Please see essay 12.3. See also Compendium 11 and Economic 

Analysis section 8 for an explanation of how the agencies considered the effects of 

the final rule on all CWA programs, including section 402. 

American Horticultural Industry Association (Doc. #16359)

12.632 EPA and the Corps fail to assess the impacts of the proposed rule on the public health and

our nation’s infrastructure. The proposed rule would expand current NPDES permit 

requirements for mosquito and aquatic weed control to roadside ditches, rights-of-ways, 

small stormwater retention ponds, and man-made water features. Efforts to fight invasive 

species could also be hampered by new permit requirements. (p. 3)

Agency Response: Please see essays 12.3 and 7.4.4. NPDES permit requirements 

are beyond the scope of this rule.

South Dakota Farm Bureau (Doc. #16524)

12.633 The rule states “Any normal farming activity that does not result in a point source 

discharge of pollutants into waters of the U.S. still does not require a permit.” When an 

area in a cropped field or pasture meets the criteria for waters of the U.S. and the owner 

or operator drives a sprayer applying herbicides or pesticide, or a fertilizer spreader 

applying plant nutrients, the implement is a point source. The owner or operator is now 

required to get a permit. In South Dakota this will affect an estimated 40% of the farmers 

and ranchers. These areas are “Waters of the U.S.” under the definitions of “all 

tributaries of a traditional navigable water” and “adjacent or neighboring”. (p. 1)

Agency Response: Please see essay 12.3. The scope of regulatory jurisdiction in 

this rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. In addition, the rule provides greater clarity 

regarding which waters are subject to CWA jurisdiction, reducing the instances in 

which permitting authorities, including the states and tribes with authorized section 

402 and 404 CWA permitting programs, to make jurisdictional determinations on a 

case-specific basis. The definition of “adjacent” in the rule does not include those 

waters that are subject to established, normal farming, silviculture, and ranching 

activities. Wetlands and farm ponds being used for normal farming activities, as 

those terms are used in the Clean Water Act and its implementing regulations, are 

not jurisdictional under the Act as an “adjacent” water. Waters subject to normal 

farming, silviculture, and ranching activities instead will continue to be subject to 

case-specific review, as they are today. 

New York Farm Bureau (Doc. #16547)

12.634 To be in compliance, farmers will be forced to obtain approval under a Section 402 

discharge permit just to carry out their comprehensive nutrient management plan to 

fertilize their fields. This means that EPA will be deciding when, how, and even if a 

farmer may fertilize crops or protect them from insects and disease instead of allowing 

agronomic conditions and conservation efficacy dictate how to best protect water quality 

through on-farm activities that vary from day to day. In this way, EPA’s proposal will 

turn New York’s CAFO program into a circuitous permit system focused on paperwork 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

434

instead of achieving any true environmental and water quality gains. In its simplest form, 

it is the difference between EPA’s knowledge versus timely, site-specific conservation 

wisdom to achieve the common goal of sustainable clean water.

How long will approval for this type of discharge take when, for instance, an Army 

Worm infestation can claim a whole hay field in a single day and then move across the 

street to the next farm – as we saw in New York in 2012. It is impossible to imagine 

federal regulators being able to respond in the timeframes necessary to meet agriculture’s 

season and often very timely needs.

We are also concerned about the classification of agricultural stormwater runoff. If EPA 

classifies a wet spot in a corn field as water of the U.S., then manure application in that 

area is immediately a point source discharge that requires a NPDES permit. Previously, 

depending on the size of the farm, the manure application was dictated by the farm’s 

nutrient management plan approved as part of its CAFO permit. Any runoff from the 

field after a rain event was treated as agricultural stormwater and regulated by the state as 

a non-point source of pollution. However, under the new definitions, these exemptions 

are effectively removed and the state loses much of its non-point source oversight. (p. 4)

Agency Response: Please see essay 12.3. Nothing in the final rule changes the 

exemption for agricultural stormwater or implementation of CAFO program.

12.635 By effectively removing the agricultural stormwater exemption, as explained above, and 

regulating areas of fields and farmsteads as waters of the U.S., we have serious concerns 

that this will weaken or at least bring uncertainty to our successful state water quality 

programs. By changing the traditional role of the state to regulate this non-point source 

pollution – as in the past and as the CWA intended – this proposal undermines all the 

collaborations and measureable improvements that our non-point programs have 

achieved. (p. 5)

Agency Response: Please see essay 12.3. Nothing in the final rule changes the 

exemption for agricultural stormwater or the implementation of the CAFO 

program. 

Missouri Corn Growers Association (Doc. #16569)

12.636 The rule will bring into jurisdiction nearly every inch of land within a floodplain. 

Therefore, the rule will obligate farmers, industries and municipalities to obtain NPDES 

permits for pesticide use on active farmland and other areas as well as prevent (and 

potentially make unlawful) the land application of wastewater, bio-solids and sludge, 

animal manure to the land. NPDES permits as well as other state-only no-discharge 

permits prohibit the application of wastewater and manure to “waters of the state.” For 

Missouri, this includes “waters of the US”. This fact alone will have enormous and 

immediate impacts on agriculture as land application of manure is the sole manure 

management method for animal feeding operations. We are also concerned about how 

this will impact and restrict the use of commercial fertilizer on river bottom farmland as 

no one would consider the placement of fertilizer in a jurisdictional Waters of the US as a 

sound “best management practice”. Giving the lack of clarity in the rule, farmers may be 

forced to conduct jurisdictional determinations on cropland. It is expected most river 

bottom cropland will be jurisdictional. Therefore, farmers will need permits to legally 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

435

conduct routine farming operations. Even if EPA “looks the other way,” and uses some 

form of “enforcement discretion” for these circumstances, ultimately farmers are the ones 

left absorbing all the regulatory uncertainty and risk as well as exposing themselves to 

greater legal liability. This ambiguity is simply not acceptable to MCGA as it potentially 

places farmers in legal jeopardy. (p. 7)

Agency Response: Please see essay 12.3. Nothing in the final rule changes the 

exemption for agricultural stormwater, the implementation of CAFO program, or 

the implementation of the pesticides general permit (PGP). 

Florida Crystals Corporation (Doc. #16652)

12.637 Expanding the scope of federal CWA jurisdiction also will increase the dysfunction of 

the CWA § 402 program. Under the CWA, states must promulgate water quality 

standards for all of the “navigable waters” in their boundaries, which then are the basis 

for effluent limitations for waters that flow into them. 33 U.S.C. § 1313. This already is a 

cumbersome process for the significant waters to which the CWA clearly applies, but 

expanding the scope of the CWA’s regulatory jurisdiction will make it even more 

cumbersome. If virtually every ditch, pond and lake becomes part of the federal 

“navigable waters,” then States will need to promulgate water quality standards for all of 

those minor water bodies and issue CWA § 402 permits for a much broader array of 

activities. It makes little sense to completely federalize the management of all virtually 

all state waters, when the state already has more efficient, less onerous procedures to 

accomplish the same goal of environmental protection. (p. 11)

Agency Response: Under the final rule, the scope of regulatory jurisdiction is 

narrower than that under the existing regulations. Please see essay 12.3. See also 

Compendium 11 and Economic Analysis section 8 for a description of how the 

agencies considered the final rule’s effects on the Section 402 program. 

Montana Stockgrowers Association et al (Doc. #16937)

12.638 (...) under the current definition of waters of the U.S. if a rancher’s cow crosses his 

irrigation ditch (possibly a “point source” according to the definition above) [Point source 

is defined as “any discernible, confined and discrete conveyance, including, but not 

limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, 

rolling stock, concentrated animal feeding operation, or vessel or other floating craft, 

from which pollutants are or may be discharged.] and drinks (“discharging rock or sand, a 

pollutant,” according to the definitions) into the water and the ditch flows into a stream 

several miles away that is not considered a WOTUS, then this activity would be clear of 

the NPDES permitting system. If the proposed rule redefining and expanding WOTUS 

were to come into effect, then that stream would now be considered a WOTUS meeting 

the threshold for a rancher needing a NPDES permit. Our organization is concerned 

(that) this additional regulation will significantly burden livestock producers and our state 

agency that administers the NPDES program. (p. 6)

Agency Response: Please see essay 12.3. See also Compendium 11 and Economic 

Analysis section 8 for a description of how the agencies considered the final rule’s 

effects on the Section 402 program.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

436

West Virginia Farm Bureau (Doc. #17091)

12.639 While the rule claims to exempt specific conservation practices, the exemptions apply 

only to “dredge and fill” permit requirements and provide no protection from potential 

liability and Section 402 NPDES permit requirements for discharges of other pollutants. 

Routine farming activities commonplace across West Virginia such as weed control, 

fertilizer/manure applications, and fence building could trigger Clean Water Act liability 

and Section 402 permit requirements. This would be disastrous to farming in the 

Mountain State! The permitting requirements, paper jungle and threats of fines will 

likely drive many of our folks out of the business. (p. 1)

Agency Response: Please see essay 12.3. See also Compendium 11 and Economic 

Analysis section 8 for a description of how the agencies considered the final rule’s 

effects on the Section 402 program. Additionally, the Interpretive Rule was 

withdrawn and comments on it are outside the scope of this final rule. Please see 

Compendium 14 – Miscellaneous for other responses to Interpretive Rule 

comments. 

Fresno County Farm Bureau (Doc. #15085)

12.640 (...) while the Interpretive Rule may allow a farmer to plant cover crops in jurisdictional 

waters without first seeking a CWA Section 404 permit, the Interpretive Rule will not 

prevent the need for a CWA Section 402 NPDES permit for other activities that may 

result in a discharge of pollutants. (p. 2)

Agency Response: The Interpretive Rule was withdrawn and comments on it are 

outside the scope of this final rule. Please see Compendium 14 – Miscellaneous for 

other responses to Interpretive Rule comments. 

Agribusiness Association of Kentucky (Doc. #18005)

12.641 Because ditches and ephemeral drainages are ubiquitous on farm and ranch lands –

running alongside and even within farm fields and pastures – the proposed rule will make 

it impossible for many farmers to apply fertilizer or crop protection products to those 

fields without triggering potential CWA liability and permit requirements. A CWA 

pollutant discharge to navigable waters arguably will be deemed to occur each time even 

a molecule of fertilizer or pesticide falls into a jurisdictional ditch, ephemeral drainage or 

low spot – even if the feature is dry at the time of the purported “discharge.” Courts (and 

EPA) have long held that there is no de minimis defense to CWA discharge liability. 

Thus, farmers will have no choice but to “farm around” these features – allowing wide 

buffers to avoid activities that might result in a discharge – or else obtain an NPDES 

permit for farming. Such requirements are contrary to congressional intent and would 

present substantial additional hurdles for farmers who wish to conduct practices essential 

to growing and protecting their crops. (p. 16-17)

Agency Response: See essay 12.3. Under the final rule, the scope of regulatory 

jurisdiction is narrower than that under the existing regulations.

12.642 For pesticide applications, a section 402 “general” permit may or may not be available, as 

many pesticide NPDES general permits have been drafted for specific types of 

applications that would not include row crop production. Several EPA public statements 

during the comment period have indicated that general permits are available for pesticide 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

437

use, but EPA has provided no specific information on how many states actually offer 

general permit coverage for pesticide applications to row crops. Meanwhile, EPA has 

been utterly silent on the absence of any general permits (to our knowledge) for fertilizer 

application (outside the CAFO context). Does EPA plan to pursue federally mandated 

and enforceable “nutrient management plans” for row crop farmers across the nation, as it 

has for CAFOs? Regardless, unless and until EPA and the states that administer the 

section 402 permitting program issue general permits for fertilizing crops, farmers may 

have no choice but to pursue individual permits simply to fertilize their crops grown 

within or near the countless newly jurisdictional low spots on farm fields. (p. 21)

Agency Response: See essay 12.3. Under the final rule, the scope of regulatory 

jurisdiction is narrower than that under the existing regulations.

Airlines For America (Doc. #15439)

12.643 The first of (our) concerns relates to runoff from areas of airports that are dedicated to the 

operation of commercial aircraft. Discharges from these areas already are appropriately 

permitted under the Clean Water Act where they reach Waters of the U.S. as currently 

defined. Any expansion of the definition of WOTUS to include upstream waters on the 

airport site itself (e.g., collection ditches, conveyance pipes, and holding ponds) – as now 

implied by the Agencies’ WOTUS proposal – would also imply new “discharges” within 

the meaning of the Act into those newly designated upstream waters. Under such an 

approach, permits would be required to authorize these new points of discharge and, 

under a likely interpretation of the CWA, those permits would establish effluent 

limitations and mandate treatment at new locations within the airport’s footprint. This 

new regulatory reach could render billions of dollars of existing investment in collection 

and treatment systems obsolete. Further, it would create an untenable situation with 

respect to the extensive federal statutory and regulatory program that defines permissible 

structures and activities within this Aircraft Operation Area (“AOA”), which limit and 

may prohibit the replacement of existing pollution control systems with new systems 

putatively required by the new definition of Waters of the U.S. Yet it does not appear that 

the EPA has considered or accounted for this critical consequence in developing the 

Proposed Rule. (p. 2-3)

Agency Response: Under the final rule, the scope of regulatory jurisdiction is 

narrower than that under the existing regulations. The rule includes a new 

exclusion for stormwater control features constructed to convey, treat, or store 

stormwater that are created in dry land. Please see the summary response at 7.4.4 in 

Compendium 7. For the final rule provisions related to ditches, please see

Compendium 6. Comments concerning reconciliation of CWA and FAA regulations 

are beyond the scope of this definitional rule.

12.644 The Proposed Rule Will Disrupt the Existing, Effective Pollution Control Strategies 

Deployed at Airports Pursuant to Existing NPDES Permits and May Compromise 

Protection of Downstream Waters.

Airfield runoff from commercial airports is regulated through the National Pollutant 

Discharge Elimination System (“NPDES”) program. Indeed, transportation facilities 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

438

with airport deicing operations (among other attributes) were expressly included as Phase 

1 stormwater sources in 1990151 and have been subject to regulation under the NPDES 

program from that time forward. EPA has participated in that regulation by issuing a 

series of general stormwater permits to authorize such discharges. The latest such permit 

is the federal Multi-Sector General Permit for Stormwater Discharges Associated With 

Industrial Activity, dated September 29, 2008 (the “MSGP”). 

Adding aviation-specific content to the MSGP and the related state general permits is 

EPA’s 2012 Deicing ELG. That nationwide regulation established standards for the 

discharge of runoff from pavement deicing operations at existing and new sources and, at 

new sources, from aircraft deicing operations. EPA is in the process of incorporating the 

provisions of the Deicing ELG into its upcoming renewal of the MSGP. 

Finally, where non-stormwater discharges originate from airfields, or where permitting 

agencies determine that a general permit is unsuitable to control Phase 1 stormwater at a 

given site, individual NPDES permits authorize and control discharges from aircraft 

operations areas at airports. 

In the aggregate, then, NPDES permits are in place to authorize and control discharges 

from airports subject to permitting as Phase 1 stormwater sources, as well as at airports 

that discharge non-stormwater from their aircraft operations areas.152 These permits 

regulate discharges as they leave airport property and enter water bodies currently 

understood to be jurisdictional Waters of the U.S. As required of all NPDES permits, 

these permits impose requirements on these discharges that reflect applicable technologyand water quality-based effluent limitations, as well as monitoring and reporting 

requirements and NPDES Standard Conditions. Compliance with these permits is 

designed to assure and, in practice, does assure that downstream waters are insulated and 

protected from pollutant loadings originating upstream of the permitted outfalls. 

Upstream of these permitted outfalls, however, within the fence line of the airport, are 

complex drainage basins consisting of water features, including surface water features, 

that are the subject of A4A’s concern with respect to the Agencies’ current rulemaking. 

These features routinely include a combination of engineered surface and subsurface 

collection and conveyance systems, often augmented by retention and detention basins or 

ponds, all designed to expeditiously move runoff away from active aircraft operations 

and direct it to some combination of treatment, recycling or discharge through permitted 

outfalls. 

These systems of collection and treatment, which represent billions of dollars of 

investment, are sited and designed specifically to support the safe operation of 

commercial aircraft. Conveyance ditches and subsurface piping carry runoff away from 

active operational areas, per FAA mandates. Stormwater management systems are 

placed well away from aircraft operations and designed in compliance with strict setback, lighting, height and other limitations that assure that they do not interfere with 

 

151 40 C.F.R. 122.26(b)(14)(viii). 

152 EPA, of course, is aware of this extensive permit-based control, having developed an inventory of these permits 

which it assembled through information collection requests spanning the years 2004-2006. This inventory is 

available in the record of the Deicing ELG. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

439

those operations. Moreover – and this is a key point discussed below in Section B2 –

these systems are designed to serve functions that can conflict with certain goals of the 

Clean Water Act. For example, while the CWA aims to protect water bodies that attract 

bird habitat, FAA requirements call for the elimination of habitat for birds and terrestrial 

animals whose presence on the airfield would pose a threat to the safety of the flying 

public. The potentially conflicting mandates thus must be made amenable to 

reconciliation. (p. 4-5)

Agency Response: Under the final rule, the scope of regulatory jurisdiction is 

narrower than that under the existing regulations. See essay 12.3. The rule include a 

new exclusion for stormwater control features constructed to convey, treat, or store 

stormwater that are created in dry land. Please see the summary response at 7.4.4 in 

Compendium 7. For the final rule provisions related to ditches, please see

Compendium 6: Ditches. 

Beaufort County (South Carolina) Stormwater Utility (Doc. #7326)

12.645 Since the regulations are jointly issued by EPA and USACE, there are at least two 

important consequences: 

 Municipal Separate Storm Sewer System (MS4) permit requirements and water 

quality standards must be met in stormwater conveyances and retention structures that 

are determined to be WOTUS. Not only would the discharge leaving the system be 

regulated, but all flows entering the MS4 would be regulated as well. Even if the 

agencies do not initially plan to regulate an MS4 as WOTUS, they may be forced to 

do so through CWA citizen suits, unless MS4s are explicitly exempted from the 

requirements. 

 USACE dredge and fill requirements would be applicable in WOTUS. Therefore, 

stormwater ponds and drainage ditches would be required to meet water quality 

standards and jurisdictional requirements – even during routine maintenance 

activities. (p. 4)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

Orange County Sanitation District (Doc. #16335.1)

12.646 OCSD is concerned with the lack of clarity in the apparent intent for direct EPA NPDES 

permitting authority for non-point pollution sources. Since the definitions for “Waters of 

the United States” are being added to 40 CFR, Part 122 under the NPDES program, 

would the Proposed Rule conceivably provide EPA with direct NPDES permitting 

authority over certain qualifying non-point pollution sources for the first time? It is 

suggested that EPA clearly state its intent on this issue to avoid unnecessary confusion

over the basis for program control, especially under the more difficult case-specific 

instances involving “Other Waters” and ephemeral areas.

A parallel authority issue with “Waters of the State” may be created in this proposed rule. 

The proposed rule does not address parallel “Waters of the State” authority already in 

place for various States as to which entity will likely have primary responsibility for 

program management and enforcement. For example, the Nebraska Department of 

Environmental Quality has legislation in place that already addresses the key elements 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

440

contained in the Proposed Rule, including groundwater nexus considerations, which the 

Proposed Rule excludes. Similar to above, it is suggested that EPA clearly state its intent 

on the issue of either independent EPA or parallel authority among States, in order to 

avoid unnecessary confusion over the basis for program control; especially where States 

already possess similar or even greater authority. (p. 3-4)

Agency Response: Please see essay 12.3. 

Alliant Energy Corporate Services (Doc. #18791)

12.647 Alliant Energy (suggests that the) EPA and the Corps (...) defer jurisdiction of waters 

captured by activities already covered under other sections of the CWA, such as NPDES 

discharges into a WOTUS. (p. 4) 

Agency Response: The definition of “waters of the United States” applies across 

all Clean Water Act programs. Discharges of dredged or fill material into waters of 

the United States are subject to permitting under section 404 of the Act. Discharges 

of other pollutants are subject to permitting under section 402. If a water is 

jurisdictional, either a 402 or 404 permit may be needed for discharges into the 

water, depending on the type of discharge. 

Association of American Pesticide Control Officials (Doc. #1651)

12.648 PCO contends the proposed changes to the definition of “Waters of the U.S.” will impact 

the full range of CWA programs, with specific concerns for the National Pollutant 

Discharge Elimination System, and other water quality standards programs. Moreover, 

both the WOTUS proposal and the Interpretive Rule will significantly impact FIFRA 

State Lead Agency programs and other state regulatory agency jurisdictions and 

responsibilities. Because of the scope of potential impacts on state programs, as well as 

the complexity of the scientific, legal, and technical elements of this proposal, additional 

time is needed to adequately respond to the WOTUS and Interpretive Rule proposals. (p. 

1)

Agency Response: Please see essay 12.3. See also Compendium 11 and Economic 

Analysis section 8 regarding how the agencies analyzed the effects of the final rule 

on all CWA programs. Additionally, the Interpretive Rule was withdrawn and 

comments on that rule are outside the scope of the proposed and final Clean Water 

Rule. See Compendium 14 – Miscellaneous. 

12.649 AAPCO’s concerns address two major themes: 1) As FIFRA co-regulators with the EPA 

Office of Pesticide Programs, State Pesticide Control Programs have an active role in 

implementation of the Pesticide General Permit along with our delegated state NPDES 

programs; and 2) many of the 56 NRCS Conservation Practices listed by the Interpretive 

Rule contain pest control and crop protection components that fall under the authority of 

state pesticide regulatory programs and may actually trigger Pesticide General Permit or 

NPDES jurisdiction regardless of their exempt status under the Section 404 Wetlands 

Provisions. Therefore, additional time is needed to adequately study and prepare 

comments on the agencies’ Interpretive Rule. Furthermore, the Interpretive Rule has 

raised a number of questions among state agencies, especially regarding the relationship 

among state regulatory programs, EPA and Army Corps, the national Natural Resources 

Conservation Service and NRCS State Office programs. Given the complexity of these 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

441

working relationships and that both the WOTUS proposal and the Interpretive Rule were 

published simultaneously, a 45 day comment period is not adequate to prepare informed 

comments on the Interpretive Rule. (p. 2)

Agency Response: Please see essay 12.3. See also Compendium 11 and Economic 

Analysis section 8 regarding how the agencies analyzed the effects of the final rule 

on all CWA programs. Additionally, the Interpretive Rule was withdrawn and 

comments on that rule are outside the scope of the proposed and final Clean Water 

Rule. See Compendium 14 – Miscellaneous. 

NW Colorado Council of Governments Water Quality/ Quantity Committee (Doc. #10187)

12.650 The proposed rule should clarify that groundwater collections systems are not exempt 

from Section 402 permits for several reasons. First, subterranean systems for draining 

reservoirs and other water bodies are common in the headwaters region; protecting 

downstream water quality with a Section 402 permit is essential to maintaining 

downstream water quality. Second, produced water from oil and gas extraction may be 

considered groundwater collection systems. In both of these cases, downstream water 

quality may be degraded if Section 402 permit jurisdiction is challenged.153 The 

proposed rule should clarify that groundwater collection and drainage systems are not 

exempt from Section 402 requirements. (p. 8-9)

Agency Response: NPDES permitting requirements for discharges from 

groundwater collection systems are beyond the scope of this rule.

Professional Landcare Network (Doc. #11831)

12.651 The proposed rule would expand National Pollutant Discharge Elimination System 

(NPDES) permit requirements for products used to control algae, weeds, mosquitoes, and 

other pests in natural and man-made residential community lakes, ponds, and fountains, 

as well as on an individual homeowner’s property. It could also expand these permit 

requirements to terrestrial pesticide applications that may include a ditch or other feature 

determined to have a “significant nexus” to a “Water of the United States.” In addition, 

Clean Water Act Section 404 permits could be required to install trees, plants, and other 

landscape features on private property that are deemed to be in a floodplain or include 

Waters of the United States.

The rule will harm our public health and infrastructure. EPA and the Corps fail to assess 

the impacts of the proposed rule on the public health and our nation’s infrastructure. The 

proposed rule would expand current NPDES permit requirements for mosquito and 

aquatic weed control to roadside ditches, rights-of-ways, small stormwater retention 

ponds, and man-made water features. The costs and legal liabilities associated with these 

permits could slow down or reduce efforts to protect the public health and infrastructure 

from destructive pests. (p. 2)

 

153 While current Colorado law would not exempt groundwater collection systems from Section 402 permitting, QQ 

is concerned about the argument that a specific exemption in the Clean Water Act preempts state authority over 

groundwater collection systems.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

442

Agency Response: Under the final rule, the scope of regulatory jurisdiction is 

narrower than that under the existing regulations. The final rule includes a new 

exclusion for stormwater control features as waters constructed to convey, treat, or 

store stormwater that are created in dry land. The rule also includes a new 

exclusion for certain artificial waters. Please see Compendium 7 – Features and 

Waters Not Jurisdictional. See also essay 12.3 and Compendium 6-Ditches. 

Southeast Florida Utility Council (Doc. #11879)

12.652 The practical consequences of this massive inclusion of all ditches in south Florida as 

WOTUS will create a significant increase in the amount of new NPDES permit 

applications and unduly burden an already over tasked DEP. Thus shifting the focus of 

DEP from, focusing on enforcement and regulation environmental issues to issuing 

permits for discharges that would otherwise have no adverse impact on the environment. 

Furthermore, utilities will be forced to increase rates charged to customers because of the 

unwarranted need to identify and permit all point sources discharging into these roadside, 

stormwater, and irrigation ditches. (p. 2)

Agency Response: Under the final rule, the scope of regulatory jurisdiction is 

narrower than that under the existing regulations. The final rule includes a new 

exclusion for stormwater control features waters constructed to convey, treat, or 

store stormwater that are created in dry land. Please see Compendium 7, summary 

response at 7.4.4. With respect to the jurisdictional status of ditches, under the 

final rule, please see the preamble and Compendium 6.

12.653 DEP currently exempts storage ponds from requiring a NPDES permit so long as the 

pond itself is not a water of the state. See Rule 62-610.830, Florida Administrative Code. 

However, if these storage ponds are now considered WOTUS, the Florida exemption by 

rule will be superseded by the Proposed Rule and any future attempts to exempt these 

storage ponds would require EPA involvement. SEFLUC recommends EPA adopt 

existing exemptions under state delegated NPDES programs. (p. 3)

Agency Response: The final rule defines “waters of the United States” to include 

eight categories of jurisdictional waters, maintains existing exclusions for certain 

categories of waters, and adds additional categorical exclusions that are regularly 

applied in practice. The final rule includes a new categorical exclusion for 

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

stormwater that are created in dry land. The rule also includes a new exclusion for 

certain artificial waters. Please see Compendium 7 – Features and Waters Not 

Jurisdictional. “Storage ponds” that do not qualify for exclusion under paragraph 

(b) of the final rule may be jurisdictional as waters that are jurisdictional in all 

instances, waters that are jurisdictional but only if they meet specific definitions in 

the rule, or jurisdictional as waters subject to case-specific analysis.

12.654 A large area of the groundwater system in South Florida experiences limited confinement 

between shallow aquifers and surface waters. As written, the Proposed Rule’s definition 

of other waters could also include groundwater in the surficial aquifer, which may have a 

connection to category 1-3 navigable waters. As a result, SEFLUC is concerned the 

NPDES permitting requirements would apply to direct or indirect discharges to shallow 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

443

aquifers and require water to be treated to such levels so as to no longer make 

underground injection a feasible alternative for water disposal. (p. 4)

Agency Response: See summary essay at 12.3 with respect the NPDES program. 

In regards to whether the Clean Water Rule regulates groundwater, the agencies 

have consistently interpreted the CWA to exclude groundwater from the geographic 

scope of the waters of the United States. The agencies have clarified that subsurface 

connections can serve as a hydrologic, nonjurisdictional connection that agencies 

would consider when making case-specific significant nexus determinations. 

Additional details can be found in the summary response of 7.3.6 Groundwater, 

Including Groundwater Drained through Subsurface Drainage Systems above, 

which discusses the rationale for that connection.

Duke Energy (Doc. #13029)

12.655 For all of the states in which Duke Energy operates, the NPDES permit program is 

administered by the authorized States. As the number of NPDES permits that must be 

issued increases, the cost of issuing, monitoring, and enforcing these permits will fall 

predominantly on the States at a time when most State budgets are under severe strain. 

This expansion of the program will inevitably lead to delays in the issuance of these 

important permits or reissuance of existing permits. Again, these delays and cost 

increases will not increase environmental quality. (p. 52-53)

Agency Response: Please see essay 12.3. See also Compendium 11 and Economic 

Analysis section 8 for an explanation of how the agencies considered the effects of 

the final rule on all CWA programs, including section 402. 

More dischargers will be required to obtain permits under § 402 and 404 of the Act, 

and entities engaged in previously upland discharges will be required to obtain state 

water quality certifications. This will greatly increase the administrative burden 

borne by the States. For each potential discharge for which a federal permit is 

sought, the State will have to assess the impact of that activity on navigable waters 

in the state, determine whether there is a reasonable assurance that the activity will 

not violate applicable effluent limitations or water quality standards, and develop 

any conditions that must be placed on the activity in order to achieve such 

reasonable assurance.154 The State must also provide public notice of applications 

for certifications and, in some circumstances, hold “public hearings in connection 

with specific applications.”

155 The additional administrative burden placed on the 

States by an increased number of certification requests could frustrate the States’

ability to effectively maintain the quality of waters within their boundaries by 

spreading thin the limited resources that each State is able to devote to evaluating 

certification requests. Moreover, the influx of new applications could lead to 

additional backlog and costly delays that will impact much needed critical 

infrastructure projects, such as transmission or gas pipeline construction. This 

additional administrative burden placed on the state will not result in improved 

environmental quality. (p. 54-55)

 

154 40 CFR § 121.2(a).

155 33 USC § 1341(a)(1).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

444

Please see essay 12.3. See also Compendium 11 and Economic Analysis section 8 for 

an explanation of how the agencies considered the effects of the final rule on all 

CWA programs, including section 402. See also essay 12.2. 

Murray Energy Corporation (Doc. #13954)

12.656 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 like Murray’s. This would significantly increase 402 

compliance costs, particularly when viewed in light of the additional requirements under 

EPA’s currently proposed 2013 Multi-Sector General Permit for stormwater discharges 

(which serves as a model for corresponding permits in delegated states). (p. 14)

Agency Response: EPA does not agree that the final rule result in significantly 

more permits needed under the § 402 program for the reasons explained in the 

preamble. Please see Economic Analysis Section 8 for an explanation of the final 

rule’s effects on the Section 402 program. 

Southern Company (Doc. #14134)

12.657 The expansion of jurisdiction affected by the current proposal also has the potential to 

significantly impact regulatory efficiency outside of CWA Section 404 permitting. For 

instance, a broader definition of waters of the U.S. would mean expanded regulation and 

increased National Pollutant Discharge Elimination System (NPDES) permitting load 

under CWA Section 402. Under EPA’s 402 permitting program, the proposal would lead 

not only to additional discharges being subject to NPDES permits (i.e., discharges to 

newly jurisdictional waters), but also more compliance obligations associated with those 

permits (e.g., water quality-based effluent limits for discharges to newly jurisdictional 

waters). Other CWA regulatory programs that would be similarly impacted include the 

Oil Pollution Prevention regulations under 40 CFR § 112 (where more sources could 

become subject to spill pollution control and countermeasure (SPCC) requirements due to 

their proximity to newly deemed jurisdictional waters) and EPA’s 316(b) rules governing 

cooling intake water structures (where applicability is based in large part on whether 

structures are drawing from waters of the U.S.). (p. 18-19)

Agency Response: Under the final rule, the scope of regulatory jurisdiction is 

narrower than that under the existing regulations. Please see essay 12.3. See also 

Compendium 11 and Economic Analysis section 8 for an explanation of how the 

agencies considered the effects of the final rule on all CWA programs, including 

section 402. See also essay 12.5 regarding SPCC. 

American Public Power Association (Doc. #15008)

12.658 Electric Utility Facilities Could Require Expanded Spill Prevention Control. Facilities 

with oil storage capacity that, due to their location, have a potential to discharge to waters 

of the U.S. must prepare and implement a Spill Prevention, Control, and 

Countermeasures (SPCC) plan. With the proposed rule’s increased scope of WOTUS to 

cover ditches and manmade impoundments, as well as all features in floodplain and 

riparian areas, many facilities, particularly in the arid West, would need SPCC plans that 

did not need them before. Facilities that already have SPCC plans also would be affected 

because many have plans that rely on the use of on-site ditches or impoundments to 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

445

collect spilled oil (e.g., as secondary or tertiary containment) and prevent it from reaching 

a WOTUS. A rule that classifies those ditches and impoundments as a WOTUS could 

eliminate current spill control plans using that approach and vastly expand planning, 

compliance, and cleanup costs. (p. 11-12)

Agency Response: See essays 12.3 and 12.5. 

Eagle River Water & Sanitation District (Doc. #15116)

12.659 We do support the protections that the proposed definition would provide regarding 

NPDES discharges to ephemeral streams, however, such discharges are already regulated 

under the Colorado Water Quality Control Act (25-8-101 et seq., C.R.S.). There is a 

clear difference between the types of pollutants that Section 402 and 404 programs are 

intended to control. Therefore, it is recommended that the final notice recognize 

appropriate differences in the application of the proposed waters of the United States 

definition, and clarify that any waivers or similar provisions that are unique to the 404 

program, including NWPs, continue to apply. This would be similar to the language in 

the preamble:

“The rule does not affect longstanding permitting exemptions in the CWA for 

farming, silviculture, ranching and other specified activities. Where waters would be 

determined jurisdictional under the proposed rule, applicable exemptions in the CWA 

would continue to preclude application of CWA permitting requirements.” (Federal 

Register, Vol. 79, No. 76,ApriI 21, 2014, p.222189) (p. 5)

Agency Response: See section 12.4 for an explanation of the continued availability 

of CWA Section 404 nationwide permits and 404(f) permitting exemptions. 

Exemptions from permitting for discharges to jurisdictional waters are beyond the 

scope of this rule.

Southern IL Power Cooperative (Doc. #15214)

12.660 No nationwide permit exists for new fossil fuel generation capacity. Rather than 

planning for CWA permit compliance at the boundary (such as the cooling water intake 

or the NPDES outfall) a proposed plant would be confronted with internal permitting for 

stormwater management, spill control, and all other water movement. The situation 

could be even more challenging with respect to natural gas plants that require pipelines to 

transport gas to any new gas-fired plants. As we look to bring new sources of generation 

on line, we are concerned that the siting and permitting of new natural gas pipelines will 

be further delayed. (p. 8) 

Agency Response: . See essay 12.3.

Automotive Recyclers Association (Doc. #15343)

12.661 ARA respectfully requests that EPA and the Army Corps of Engineers withdraw this rule 

for the following reasons: (...) the NPDES works now as it is intended and professional 

automotive recycler facilities need no additional regulatory burden to do their part to 

protect our nation’s waters. (p. 2) 

Agency Response: Please see essays 12.3 and 12.4. See also Compendium 11 and 

Economic Analysis section 8 for an explanation of how the agencies considered the 

effects of the final rule on all CWA programs, including section 402.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

446

Washington County Water Conservancy District (Doc. #15536)

12.662 The need for clarity regarding the regulatory status of “impoundments” is heightened by 

the uncertain legal status of the EPA’s 2008 Water Transfers Rule.156 Under the Water 

Transfers Rule, any activity that “conveys or connects waters of the United States without 

subjecting the transferred water to intervening industrial, municipal, or commercial use”

is defined as a “water transfer” that is exempt from National Pollutant Discharge 

Elimination System (NPDES) permitting requirements.157 As the Agencies are aware, a 

federal district court vacated the Water Transfers Rule in March 2014.158 If this decision 

is upheld and the Agencies adopt their current definition for “tributary,” the problems 

caused by the Agencies’ overly-broad definition will be compounded. Water users would 

not only be facing the potential regulation of off-river storage facilities as jurisdictional 

“impoundments,” but would also be subject to potential NPDES permitting requirements 

for routine waters transfers associated with such facilities. The uncertainty surrounding 

these types of permitting exemptions underscores the need for agency caution and 

restraint to avoid unduly burdening the regulated public.159 (p. 17)

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

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

important qualifiers on some existing categories such as tributaries. See essay 12.3. 

Yazoo Valley EPA (Doc. #15838)

12.663 The expanded jurisdiction affects vegetation management applicators’ ability to keep 

right-of-ways safe and passable because they would need to obtain costly NPDES permits 

to treat near water bodies and ditches considered jurisdictional under the proposed rule. 

Such applications keep our roadways and power lines clear and safe. (p. 1)

Agency Response: Please see essay 12.3. 

Lake County, Illinois Stormwater Management Commission (Doc. #15381)

12.664 There is much uncertainty on the effects the proposed definition change would have on 

county governments, given the definition would apply to all CWA programs (e.g., 

National Pollutant Discharge Elimination System; Water Quality Standards; stormwater, 

green infrastructure, pesticide permits, and TMDL standards, etc.), not just the 404 

program. These programs could potentially subject Lake County to increasingly complex 

and costly federal regulatory requirements under the proposed rule, particularly with 

 

156 National Pollutant Discharge Elimination System (NPDES) Water Transfers Rule, 73 Fed. Reg. 33,697 (June 13, 

2008) (codified at 40 C.F.R. §§ 122.1-122.64 (2014)) [hereinafter, Water Transfers Rule].

157 Id. at 33,697; 40 C.F.R. § 122.3(i).

158 See Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA, 8 F. Supp. 3d 500 (S.D.N.Y. 2014). We are 

aware that EPA has appealed this decision to the U.S. Court of Appeals for the Second Circuit.

159 The WWG notes that, within the Preamble, the Agencies have stated that they are not intending the revised 

definition of “waters of the United States” to change to the regulatory status of water transfers under EPA’s Water 

Transfers Rule. Proposed Rule, 79 Fed. Reg. at 22,189, 22193, 22,199, 22,218. The WWG agrees with and supports 

this conclusion. Further, we urge the Agencies to expressly include text within the Code of Federal Regulations 

confirming that the definition of “waters of the United States” does not change the regulatory status of water 

transfers.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

447

respect to the County’ s stormwater management program and green infrastructure 

(including best management practices, or BMPs). (p. 1)

Agency Response: With respect to MS4s and the jurisdictional status of 

stormwater control features, including green infrastructure, as waters of the U.S., 

please see Compendium 7, summary response at 7.4.4. Also please see essay 12.3. 

See also Compendium 11 and Economic Analysis section 8 for an explanation of 

how the agencies considered the effects of the final rule on all CWA programs, 

including section 402. 

Florida Stormwater Association, Inc. (Doc. #7965)

12.665 Since the regulations are jointly issued by EPA and the Corps, there are at least two 

significant consequences of which Florida local governments should be aware:

 Municipal Separate Storm Sewer System permit requirements and water quality

standards must be met in stormwater conveyances and retention structures that are 

determined to be WOTUS, including numeric nutrient criteria applicable to Class III 

(“recreational”) water bodies, anti-degradation requirements and other permit 

conditions. 

 Dredge and fill permitting of the Corps will be applicable to stormwater attenuation 

ponds, drainage ditches and other conveyances that are determined to be WOTUS –

even during routine maintenance activities. (p. 9)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

12.666 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. (p. 21)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

Water Environment Federation Member Association Governmental Affairs Committees 

Representing EPA Region 7 (Doc. #15185)

12.667 Intent for Direct EPA NPDES Permitting Authority for Non-Point Pollution Sources? 

Since the definitions for “Waters of the U.S.” are being added to 40 CFR, Part 122 under 

the NPDES program, would the Proposed Rule conceivably provide EPA with direct 

NPDES permitting authority over certain qualifying non-point pollution sources for the 

first time? It is suggested that EPA clearly state its intent on this issue to avoid 

unnecessary confusion over the basis for program control, especially under the more 

difficult case-specific instances involving “Other Waters” and ephemeral areas. (p. 1)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

448

Agency Response: Nothing in the final rule changes the definition of “point 

source” or provides additional authority to regulate non-point sources under the 

NPDES program. See essay 12.3.

United States Senate, Senator David Vitter, et al. (Doc. #3536)

12.668 Although we understand individual cases [referring to stormwater flow limit-related 

issues at certain Air Force bases mentioned in previous two paragraphs] may soon be 

settled, we wish to express our strong opposition to EPA’s regulation of newly developed 

and redeveloped property at military bases as well as the agency’s stormwater agenda atlarge. Members of Congress have repeatedly reminded EPA of the statutory limits placed 

on the agency’s authority to regulate stormwater flow apart from pollutant discharges. 

As Members of the Senate Environment and Public Works Committee have previously 

warned, if EPA wishes to establish new stormwater discharge regulations – including

discharge standards for developed and redeveloped property at military bases and 

elsewhere-it must first report to Congress on the necessity of such regulations.160 Until 

such time, EPA may not impose stormwater restrictions upon newly developed and 

redeveloped property, whether directly on sites otherwise exempted from permitting 

under CWA Section 402(p)(l), or indirectly through the MS4 permitting program. 

Moreover, EPA has no authority under the stormwater or other CWA programs to 

regulate the mere flow of water on public and private property.161 (p. 1-2)

Agency Response: Regulation of stormwater under the NPDES program is 

beyond the scope of this rulemaking.

12.669 How will storm water drains be addressed in the proposed rule, especially those that feed 

into ephemeral rivers and streams? (p. 4)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

12.3.1 Stormwater and MS4s

Summary Response

Please see Compendium 7, summary response at 7.4.4, and summary response 12.3.

Specific Comments

District Department of the Environment, Government of the District of Columbia (Doc. #12716)

12.670 In many urban areas, small creeks and storm sewer systems are sometimes 

interconnected, some to the point where it is difficult to distinguish one from the other. 

This is often the result of many years of development, addressing flood control issues and 

 

160 See Letter from Senator David Vitter, et al., to Nancy K. Stoner, Acting Assistant Administrator, Environmental 

Protection Agency Office of Water (May 30, 2013) (attached).

161 In addition, Section 438 of the Energy Independence and Security Act (EISA) does not change or expand EPA’s 

CWA authority, nor does it sanction the CWA’s National Pollutant Discharge Elimination System (NPDES) as a 

means to achieve EISA standards. See 42 U.S.C. § 17094.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

449

piping and paving over streams to facilitate development. Those small piped streams are, 

subsequently, used for storm conveyance as well as stream flow. DDOE’s stormwater 

documentation and mapping information indicates that this is the situation within the 

District. Many parts of the District’s Municipal Separate Storm Sewer System (MS4) 

enclose what were once running streams. Two common examples are:

 Perennial streams that flow into a pipe and are conveyed through MS4 conveyance 

system and eventually discharged to larger waters, such as the Anacostia river 

(examples: Fort Chaplin Run, Fort Davis Tributary); and

 Perennial streams, whose headwaters have been piped and incorporated into the storm 

sewer system (to address flood control issues and facilitate development) that 

eventually become day-lighted streams and flow into other surface water streams 

(example: Piney Branch, for which approximately 3⁄4 of its main stem has been piped 

prior to its confluence with Rock Creek).

The proposed rule’s definition of the term “tributary” could have implications for streams 

that fit these categories. Depending on interpretation, this definition could result in a 

number of consequences for urban jurisdictions, including for how and where 

jurisdictions monitor and assess MS4 discharges, and stream health, and for subjecting 

storm sewer maintenance to CWA permitting requirements. In one section of the 

preamble to the proposed rule (79 FR 22199; 3nl column), tributaries are described to 

include:

The term tributary means a water physically characterized by the presence of a bed and 

banks and ordinary high water mark, as defined at 33 CFR 328.3(e), which contributes 

flow, either directly or through another water, to a water identified in paragraphs (a)(l) 

through (4). In addition, wetlands, lakes, and ponds are tributaries (even if they lack a 

bed and banks or ordinary high water mark) if they contribute flow, either directly or 

through another water to a water identified in paragraphs (a)(l) through (3). A water that 

otherwise qualifies as a tributary under this definition does not lose its status as a 

tributary if, for any length, there are one or more man-made breaks (such as bridges. 

culverts. pipes. or dams), or one or more natural breaks (such as wetlands at the head of 

or along the run of a stream. debris piles. boulder fields, or a stream that flows 

underground) so long as a bed and banks and an ordinary high water mark can be 

identified upstream of the break. A tributary including wetlands, can be a natural, manaltered. or manmade water and includes waters such as rivers, streams, lakes, ponds, 

impoundments, canals, and ditches not excluded in paragraphs (b)(3) or (4).

At present, DDOE’s ambient monitoring program (which assesses the health of District 

waters and supports development of the District’s 305(b) report) collects samples from 

above-ground sections of waterbodies. Sections of streams that flow through pipes are 

not considered “surface waters” and therefore are not included in the reported length of 

the water body. A separate MS4 monitoring program has historically monitored outfalls 

that often have “dry weather discharge” present with the intent to characterize MS4 

discharges and pollutant concentrations.

In both of the stream examples above, it is clear that observed discharges from outfall 

examples during “dry” periods (without recent (72-96 hours) precipitation) are not 

stormwater flows. However, it is not clear whether these waters would be considered
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

450

“groundwater infiltration to the MS4” or whether these qualify as “man-altered 

tributaries” and therefore waters of the US. 

Section 1.2 of the District’s permit identifies that “diverted stream flows” and 

“uncontaminated ground water infiltration” are authorized non-stormwater discharges to 

the MS4. Given the proposed rule’s “tributary” definition, it may be necessary for the 

District to assess all of its urban waterways to verify which portions should be considered 

part of the storm sewer system and which are creeks or streams (or were historically 

creeks and streams and defined as “tributaries” under the proposed rule).

The results of this assessment could necessitate changes to both the District’s ambient 

monitoring and MS4 permit-related monitoring efforts and associated reporting if pipes 

once considered part of the MS4 system are now tributaries that are “waters of the US”

that aren’t appropriate for outfall discharge monitoring, but may require other water 

quality assessments. At this time, DDOE is in the process of developing a “Revised 

Monitoring Framework,” as required by the District’s MS4 Permit. Timely resolution of 

these issues is critical to the development of a quality monitoring framework document.

Finally, if pipes once considered part of the MS4 are now considered “waters of the US,”

it is possible that projects to repair, maintain, or improve that MS4 system would be 

subject permitting requirements under Section 404 of the Clean Water Act. Such an 

outcome would add considerable cost, complexity, and delay to urban jurisdictions’

efforts to maintain and improve their storm sewer systems. Furthermore, in the case of 

the District, this would add considerable administrative burden to review and certify such 

projects for consistency with District water quality standards. (p. 1-3)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

State of Washington Department of Ecology (Doc. #13957)

12.671 It is not clear how Section 402 permitted facilities will be treated under the proposed rule. 

The proposed language could be interpreted to mean that any ditch system that discharges 

to a “water of the US” would be jurisdictional. Many roadside ditches and municipal 

separate storm sewer systems (MS4s) discharge to jurisdictional wetlands and streams. 

These systems are permitted and regulated under Section 402 and require periodic 

maintenance. Where they do not contain streams, they should be able to be maintained 

without the need for permitting. Washington recommends that ditches in uplands and 

draining only uplands as part of an MS4 management system should be non-jurisdictional 

upstream of the discharge point to a wetland or tributary. 

The proposed rule should also clarify that those constructed parts of stormwater 

management systems that often look and act like natural systems (for example, treatment 

swales and ponds, infiltration ponds, treatment wetlands, rain gardens, and compost 

filters) are exempt similar to the wastewater treatment exemption. Some of these 

treatment systems, permitted pursuant to Section 402, meet wetland criteria, especially if 

they were thoughtfully designed and implemented. However, when they are specifically 

constructed for storm water conveyance and treatment those features should be excluded 

from the definition of “waters of the US”. This clarification could be in the preamble or 

regulatory guidance letters for implementing the rule. (p. 5-6)

Agency Response: Please see Compendium 7, summary response at 7.4.4.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

451

Georgia Municipal Association (Doc. #14527.1)

12.672 The proposed rule affects all Section 402 National Pollutant Discharge Elimination 

System (NPDES) programs, which include municipal separate storm sewer systems 

(MS4s) and pesticide application permits (EPA Program). Section 303 Water Quality 

Standards (WQS) program will be affected as well as stormwater, green infrastructure, 

and total maximum daily load (TMDL) standards. Examples of programs which could be 

affected by the proposed rule include but not limited to are redefining local floodplain 

management programs, the process and management of stormwater in regard s to runoff 

control and the treatment to process runoff for water quality, redefining land use plans 

and ordinances, routine maintenance of dirt roads and watershed delineation are just to 

name a few. (p. 6)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see Compendium 7, summary response at 7.4.4. 

Please see essay 12.3. See also Compendium 11 and Economic Analysis section 8 for 

an explanation of how the agencies considered the effects of the final rule on all 

CWA programs.

12.673 Many local jurisdictions are required to be permitted under the Clean Water Action for 

nonpoint-source discharges. As part of the permit and also TMDL pollutant mitigation, 

the reduction of the discharge and the mitigation of the pollutant through best 

management practices (BMP’s) are required to the maximum extent possible. If the 

proposed rule is adopted, many stormwater ditch issues will require additional time for 

the permitting processes which in most cases would contribute additional pollutants to the 

Waters of the United States due to the continuation of the illicit discharge to the system.

An even bigger issue that I have argued for two decades is that under current rules an in -

stream BMP’s are not allowed through regulation by the COE under the CWA. Local 

MS4’s through permit basically become a point source discharge. In the wastewater 

permitting process the influent is directly transported to a treatment plant, treated and 

released. In the stormwater world local stormwater management system are not afforded 

that luxury. The conveyance systems in streams are not permitted to treat the pollutant in 

stream. Hundreds of Millions of dollars across the nation have been spent at the local 

level attempting to mitigate the pollution before it reach the stream. In some cases there 

has been some success but stormwater runoff in general comes from multiple sources 

which cannot be control at the source. Allowing the expansion of the proposed rule will 

make it even more difficult to treat stormwater runoff. 

If this proposed rule is adopted and moves forward, construction site issues could become 

cumbersome if the ditch is considered a Water of the United States. Staffs of local 

governments have a hard enough time currently achieving compliance with erosion and 

sediment control requirements from contractors and developers. It is very difficult 

educating and convincing local governing boards to accept the fact. (p. 8)

Agency Response: With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4. Also please note that nothing in the final rule changes 

the definition of “point source” or provides additional authority to regulate nonpoint sources under the NPDES program.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

452

Waters of the United States Coalition (Doc. #14589)

12.674 Federal regulations prohibit states from adopting “waste transport or waste assimilation 

as a designated use” for waters of the United States. (40 C.F.R. § 131.10(a).) As a result, 

States, including California, will not allow water bodies classified as waters of the United 

States to be used as treatment systems if the basic fishable swimmable standard is not 

attained in all parts of the water body. 

Waters of the US Coalition members are very concerned that the Proposed Rule will 

convert off-stream treatment, water supply and flood control projects into waters of the 

United States and thereby prevent or hinder their use. 

For example, if the Proposed Rule converts existing portions of municipal separate storm 

sewer system (“MS4”) or other manmade drains into waters of the United States, those 

portions of the MS4 will no longer be available for implementation of best management 

practices (“BMPs”) or treatment controls that will benefit downstream traditional 

navigable waters. The Proposed Rule will thereby force dischargers who operate MS4s 

or other non-jurisdictional conveyances to attain Water Quality Standards within their 

operating systems. Such compliance is in many cases infeasible and will force 

dischargers into non-compliance. Moreover, dischargers will not be able use treatment 

controls within the system, and will have far fewer tools to implement clean water goals. 

That was not the intent of the Clean Water Act. (p. 10-11)

Agency Response: With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4. Also please note that as explained in the preamble, 

under the CWA, states may protect more waters than those that are considered 

jurisdictional under the CWA.

12.675 Under the Proposed Rule, Western’s percolation ponds could be considered waters of the 

United States because they are very similar to wetlands and they will have a hydrologic 

connection to the Santa Ana River. As such, a Clean Water Act section 404 or other 

NPDES permit could be required for maintaining the ponds once they are constructed. 

Moreover, the percolation basins will be located adjacent to (and will be connected to) 

natural drainage ditches and/or manmade channels that convey storm water and urban 

runoff. These ditches and channels could be considered waters of the United States under 

the Proposed Rule, and could make Western’s proposed percolation ponds waters of the 

United States by virtue of their connection and proximity to both the ditches and the 

Santa Ana River. 

The cost to construct recharge basins is significant and must be factored into the cost to 

produce and deliver the water. In the case of the Arlington Recharge Project the budget 

is $10 million. The project was made economically feasible by the contribution of local 

and State grants amounting to $2 million. If the project is reclassified as waters of the 

United States it will be subject to a range of permitting requirements. Limitations could 

also be imposed on the quality of the source water used for the project. The additional 

burden of obtaining federally required permits, and potential limitations imposed based 

on the quality of source water could make the project infeasible. (p. 13)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

453

Agency Response: Paragraph (b)(7) of the rule clarifies that wastewater recycling 

structures created in dry land are excluded. This new exclusion clarifies the 

agencies’ current practice that such waters and water features used for water reuse 

and recycling are not jurisdictional when constructed in dry land. The agencies 

specifically exclude constructed detention and retention basins created in dry land 

used for wastewater recycling as well as groundwater recharge basins and 

percolation ponds built for wastewater recycling. Please also see Compendium 7, 

summary response at 7.4.4. 

12.676 MS4s could be reclassified as tributaries. While portions of many storm drain systems 

are constructed out of natural drainage, there are a host of manmade drains that were 

constructed in uplands that would be considered tributaries under the Proposed Rule. 

This is because they are open ditches with perennial flow that ultimately drain to a 

traditional navigable water. Perennial flow can come from rain water, urban runoff, or 

rising groundwater entering road cut drains and other portions of the system. Changing 

the legal character of these channels will conflict with the plain text of the Clean Water 

Act which classifies them as point sources. The change will significantly hinder the 

ability of MS4 operators to develop projects that would normally be constructed within 

the MS4. (p. 23)

Agency Response: With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4. Also please see the Technical Support Document

Section I with respect to the legal issues raised by this comment.

Arizona Department of Transportation (Doc. #15215)

12.677 Lastly, ADOT has had the opportunity to review the comments prepared by the American 

Association OF State Highway and Transportation Officials (AASHTO) and the National 

Association of Flood & Stormwater Management Agencies (NAFSMA) and agrees with 

the points laid out in their letters. Specifically worth noting are AASHTO’s comments 

regarding “roadside ditches, which must be regularly cleared so that they do not become 

overgrown with vegetation, clogged with silt, or otherwise unable to function as part of 

the road’s stormwater management system. Ditch maintenance is a major challenge 

because of the sheer number of miles that each State department of transportation is 

required to maintain.” When it becomes necessary to address Section 404 permits for 

these types of routine MS4 maintenance projects, delays can compromise infrastructure 

and may result in wetland formation in some cases (which then, leads to additional delays 

and costs to permit). Therefore, ADOT fully support the AASHTO recommendations for 

exclusions by rule. (p. 3) 

Agency Response: The rule for the first time explicitly excludes certain ditches 

from the definition of waters of the United States. The rule excludes all ditches with 

ephemeral flow that are not excavated in or relocate a tributary. The rule also 

excludes ditches with intermittent flow that are not excavated in or relocate a 

tributary or drain wetlands, regardless of whether or not the wetland is a covered 

water. Finally, ditches that do not connect to a traditional navigable water, 

interstate water, or territorial sea either directly or through another water are 

excluded, regardless of whether the flow is ephemeral, intermittent, or perennial. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

454

The final rule has been crafted to reduce existing confusion and inconsistency 

regarding the regulation of ditches. While the final rule does not include an explicit 

exclusion for roadside ditches, the agencies expect the exclusions included in the 

final rule will address the vast majority of roadside and other transportation 

ditches. Also, the CWA exemption for ditch maintenance remains in effect and is 

not changed by this rule. With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4. Also see Compendium 6 – Ditches.

Florida Department of Transportation (Doc. #18824)

12.678 If under the proposed rule portions of currently regulated stormwater management 

systems could be deemed WOTUS, the very stormwater management systems designed 

to collect, convey, treat and discharge stormwater may be subject to the establishment of 

Total Maximum Daily Loads (TMDLs) pursuant to Section 303(d) of the CWA. Thus, 

the water entering into the stormwater management system may be subject to pollutant 

load reduction requirements to meet TMDL allocations. This could drastically curtail the 

States’ ability to focus restoration efforts on currently impaired natural water bodies and 

would likely increase restoration costs to an economically unsustainable level. In most 

cases, it would be technically infeasible to treat stormwater flowing into a stormwater 

management system to meet TMDL allocations prior to treatment. (p. 2)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

Director of Public Works, City of Goose Creek, South Carolina (Doc. #18827)

12.679 Since the regulations are jointly issued by EPA and the Corps, there are at least two

significant consequences which will affect the City of Goose Creek: 

MS4 permit requirements and water quality standards must be met in stormwater 

conveyances and retention structures that are determined to be Waters of the U.S., 

including applicable water quality criteria and other permit conditions. 

Dredge and fill permitting policies of the Corps will be applicable to stormwater 

attenuation ponds, drainage ditches and other conveyances that are determined to be 

Waters of the U.S., even during routine maintenance activities. (p. 2)

Agency Response: With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4. Permitting policies for discharges to jurisdictional 

waters are beyond the scope of this rule.

State of Alaska (Doc. #19465)

12.680 EPA and the Corps failed to consider the consequences of a proposed rule that seeks to 

impose a broad array of CWA requirements.

[EPA and the Corps have promulgated a rule that applies not only to Section 404 

permitting, but to other aspects of the CWA, including 402 permitting and regulatory 

requirements under Section 303.] (An) example is how this proposed rulemaking will 

affect stormwater management, because under the rule, multi-sector (MS4) stormwater 

conveyances, including ditches, will likely be jurisdictional under the proposed rule, and 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

455

also subject to state water quality standards. Would activities to maintain those 

conveyances also be subject to 404 permitting? (p. 16)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

Skamania County Board of Commissioners (Doc. #2469)

12.681 Since stormwater management activities are not explicitly exempt under the proposed 

rule, we are concerned that man-made conveyances and facilities for stormwater 

management could now be classified as a “water of the US.” Some counties and cities 

own Municipal Separate Storm Sewer System (MS4) infrastructure including ditches, 

channels, pipes and gutters that flow into a “water of the U.S.” and are therefore 

regulated under the CWA Section 402 stormwater permit program. There is a significant 

potential threat for counties that own MS4 infrastructure because they would be subject 

to additional water quality standards (including total maximum daily loads) if their 

stormwater ditches are considered a “water of the U.S.” Not only would the discharge 

leaving the system be regulated, but all flows entering the MS4 would be regulated as 

well. Even if the agencies do not initially plan to regulate an MS4 as a “water of the 

U.S.,” they may be forced to do so through CWA citizen suits, unlessMS4s are explicitly 

exempted from the requirements. 

Further, stormwater management is often not funded as a water utility, but rather through 

a 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. Skamania County cannot 

assume additional unnecessary or unintended costs. 

By shifting the point of compliance for MS4 systems further upstream, the proposed rule 

could reduce opportunities for establishment of cost effective regional stormwater 

management systems. Many counties and stormwater management agencies are 

attempting to stretch resources by looking for regional and integrated approaches for 

managing stormwater quality. The rule would potentially inhibit those efforts.

Please consider the following:

 Skamania County is comprised of open ditches, some underground storm lines and 

none of them are regulated.

 Staff time alone would be an estimate of $15,000 annually plus any damage from not 

being able to repair an emergent condition to prevent further damage during a 

flooding event.

 Any increase in regulation of our drainage system could cripple small counties like 

ours. This could require a hydraulics engineer to stay on top of this, so add another 

$115,000 to our personnel expense. (p. 5)

Agency Response: With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4. Please also see essay 12.3. See also Compendium 11 and 

Economic Analysis section 8 for an explanation of how the agencies considered the 

effects of the final rule on all CWA programs, including section 402. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

456

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

12.682 This proposal would apply not only to Section 404 permits, but also to other Clean Water 

Act programs, such as: 

 Section 402 National Pollution Discharge Elimination System (NPDES) program;

 Section 303 Water Quality Standards (WQS) program; and, 

 Other programs including storm water, green infrastructure pesticide permits and total 

maximum daily load (IMDL) standards. There is concern of a potential threat for 

counties that own MS4 infrastructure because they would be subject to additional 

water quality standards (including total maximum daily loads) if their storm water 

ditches are considered a “Water of the U.S.” Not only would the discharge leaving 

the system be regulated, but all flows entering the MS4 would be regulated as well. 

Even if the agencies do not initially plan to regulate an MS4 as a “Water of the U.S.”, 

they may be forced to do so through CWA citizen suits, unless MS4s are explicitly 

exempted from the requirements. (p. 2)

Agency Response: With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4. With respect to the rule’s relationship to NPDES 

implementation, including NPDES permitting, please see summary response at 12.3

in this Compendium. See also Compendium 11 and Economic Analysis section 8 for 

an explanation of how the agencies considered the effects of the final rule on all 

CWA programs. 

Board of County Commissioners, St. Mary’s County, Maryland (Doc. #4279)

12.683 In addition to the above, it appears that the proposed regulation will impact the 

implementation of proposed projects that have been mandated through Watershed 

Implementation Plan (WIP) and NPDES MS-4 permits by further restricting areas 

suitable for retrofit and restoration. Local jurisdictions have already spent significant 

operating and capital resources on either programming and designing efforts that will 

most likely need to be modified, be rendered difficult to implement, result in additional 

expenditures, or result in the imposition of additional water quality standards. (p. 2)

Agency Response: With respect to the rule’s relationship to NPDES 

implementation, including NPDES permitting, please see summary response at 12.3 

in this Compendium. With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4.

Pennington County Board of Commissioners (Doc. #4384)

12.684 There is a significant impact to our County as our MS4 consists of ditches, swales and 

underground pipes. There are some curb and gutter systems however, the storm sewer 

system predominately consists of vegetated swales. The MS4 area comprises of 

approximately 20 square miles of the total area of the County. The MS4 area would be 

subject to additional water quality standards (including total maximum daily loads) if our 

stormwater ditches were to be considered a “water of the U.S.”. Not only would the 

discharge leaving the systems be regulated, but all flows entering the MS4 would be 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

457

regulated as well. In 2013, Pennington County spent approximately $450,000 to 

$500,000 in expenses relating to items needed to meet the current Clean Water Act 

mandated on MS4s. This includes, street sweeping, debris removal, maintenance and 

replacement of stormwater culverts, etc. Our stormwater programs are funded thru the 

County General Fund. If stormwater costs significantly increased due to this proposed 

rule, not only will it impact our ability to focus our available resources on real, priority 

water quality issues, but it may also require funds be diverted from other government 

services that we are required to provide such as law enforcement, fire protection services, 

etc. With the Federal Government continually reducing their obligations such as PILT, 

we cannot afford to have any such increases due to unnecessary mandates from the 

expansion of the Clean Water Act. (p. 2)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

City of San Diego, Transportation & Storm Water Department (Doc. #7950.1)

12.685 Our primary concern with the proposed rule is that the City ‘S MS4 infrastructure, 

including green infrastructure, could be considered a “Water of the United States”

(WOTUS) and reduce our ability to effectively manage urban runoff to improve water 

quality and water resources. (p. 1)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

12.686 The Proposed Rule identifies human-altered channels and human-made structures, 

including potentially storm water (MS4) infrastructure, as a WOTUS. The consequence 

is that water quality standards (including total maximum daily loads) would have to be 

met within the MS4 and would undermine how the system is operated; the potential for 

beneficial capture, treatment and reuse of dry and wet weather flows would be 

diminished; and it would be more difficult for the City to comply with the requirement to 

reduce pollutants discharged from the MS4 to the “maximum extent practicable”. (p. 2)

Agency Response: With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4.

12.687 If promulgated as proposed, much of the MS4 maintenance activities required by NDPES 

permit under CWA Section 402, could require a Section 404 permit as well as Section 

401 certification. (p. 2)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

City of Chesapeake Department of Public Works (Doc. #9615)

12.688 The Rule proposes changing the category “adjacent wetlands” to “adjacent waters” so 

that water bodies such as ponds adjacent to jurisdictional waters are WOUS by Rule. The 

unintended consequence of this strategy will create duplicative and conflicting federal 

authority over stormwater management facilities. For example, Section 402 of the CWA 

currently regulates the City of Chesapeake’s stormwater management facilities under the 

NPDES permit program (MS4). If EPA expands regulatory oversight of the CWA into 

adjacent waters to include, but limited to stormwater management ponds, the City of 

Chesapeake will be required to comply with duplicative and conflicting regulatory 

programs. The City’s MS4 permit requires that they maintain their stormwater drainage 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

458

facilities and retrofit facilities to meet new TMDL allocations; however, the Corps will 

also require permits, in addition to avoidance/minimization measures and compensatory 

mitigation for work within these regulated features. These duplicative and antagonistic 

programs may require more documentation, time and resources, while reducing clarity 

and predictability for the regulated community. (p. 4)

Agency Response: With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4. The scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries. In addition, the rule provides greater clarity regarding which waters 

are subject to CWA jurisdiction, reducing the instances in which permitting 

authorities, including the states and tribes with authorized section 402 and 404 

CWA permitting programs, to address jurisdictional issues or make jurisdictional 

determinations on a case-specific basis.

Board of Supervisors, Imperial County (Doc. #10259)

12.689 The proposed rule does not discuss the interrelationship of WOTUS and municipal

separate storm sewer systems (MS4). The interconnected nature of storm drain systems 

regulated under MS4 permits and the broad nature of the definitions in the proposed rule 

could lead to legal uncertainty and regulatory confusion. It is especially important for the 

Agencies to provide clear guidance on where an MS4 ends and WOTUS begins for 

counties in the Southwest, where engineered drainage systems have mostly replaced the 

natural drainage patterns in urbanized watersheds. 

The current definition of tributary states that “a water that otherwise qualifies as a 

tributary...does not lose its status if, for any length, there are one or more man-made 

breaks (such as bridges, culverts, pipes, or dams)...so long as a bed and bank with an 

ordinary high water mark can be identified upstream of the break.” (79 Fed. Reg. at 

22263). The proposed rule would render a number of open channels per se jurisdictional 

under the broad definition of tributary and subject local agencies to further regulation. In 

addition, due to the proximity of WOTUS channels, it is possible that MS4 channels 

could be considered “adjacent” waters and therefore jurisdictional. (p. 5-6)

Agency Response: With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4. The scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries. 

Maryland Association of Counties (Doc. #11120)

12.690 The proposed definition could expand the scope of Section 402 municipal separate storm 

sewer system (MS4) permits and Section 303 Water Quality Standards programs. 

Expansion of these programs will place additional stress and uncertainty on county 
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459

TMDL and clean water efforts, particularly for stormwater and environmental site design 

(ESD) structures. (p. 2)

Agency Response: With respect to MS4s and the jurisdictional status of 

stormwater control features, including green infrastructure, as waters of the U.S., 

please see Compendium 7, summary response at 7.4.4. The scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

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

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

existing categories such as tributaries. 

Association of California Water Agencies (Doc. #12978)

12.691 Municipal separate storm sewers are permitted under Section 402(p) of CWA and most 

operate with an NPDES permit, yet the proposed rule would sweep entire systems, or 

elements thereof, into definition of “waters of the U.S.” This would fundamentally limit 

their ability to function as part of the storm sewer system because waters of the U.S. 

cannot be used to treat water. Those elements that are deemed WOTUS would have to be 

replaced with another feature that would replicate its function. (p. 6)

Agency Response: With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4.

City of Artesia (Doc. #13043.2)

12.692 Municipal separate storm sewer systems (MS4s) can range from the very large and 

complex, which utilize natural or man-made water features to the relatively simple 

depending on the size topography, climate, and budget of the community and are 

currently regulated under the CWA as a point source discharge under Sec. 402(p). In 

parts of the western United States, and in California especially, MS4s often use water 

features that meet the proposed definition of a tributary. Canals, ditches, and other 

conveyance structures built for the purpose of ushering storm water to retention ponds or 

other bodies of water would see their regulatory structures fundamentally change if they 

were to be considered a “waters of the U.S.” By naming these features, “waters of the 

U.S.” the runoff into these facilities as well as the eventual discharge from them would 

have to be regulated. The degree of regulation would increase from “maximum extent 

practicable” under Section 402(p) to numeric effluent limits required to attain water 

quality standards specified for the particular water of the U.S. and routine maintenance 

work within one of these features would require a Section 404 permit from the Corps. (p. 

2)

Agency Response: With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4. Please note that permitting and the meaning of 

“maximum extent practicable” are beyond the scope of this rulemaking.

Village of Palm Springs (Doc. #13217)

12.693 Change in the definition will also affect our section 402 National Pollution Discharge 

Elimination System (NPDES) permit program consisting of multiple structures such as 

curbs, gutters, catch basins, storm drains, culverts and piping that interconnect and are 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

460

needed for the permit requirements. MS4 has no “waters of the United States” as part of 

this permit. If the definition changes it would complicate the permit process even further 

because of the additional new terms and many other integrated categories. Many parts of 

the definition are open to interpretation because they are undefined. (p. 1)

Agency Response: With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4.

North Palm Beach County Improvement District (Doc. #13218)

12.694 Currently, maintenance of the stormwater management system is a requirement in both 

the State Environmental Resource Permit and the MS4 Permit. Delays in obtaining 

Dredge & Fill permits may negatively impact the permitted stormwater systems’ flood 

protection and water quality benefits. If the maintenance of the system is delayed, the 

MS4 permittees run the risk of third-party lawsuits. (p. 1)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

12.695 Typically the stormwater treatment system is throughout the stormwater system and 

ultimately discharges through a control structure into the receiving water body at the 

downstream end of the system. By definition, the components of an MS4 system do not 

include Waters of the State or Waters of the United States. Accordingly, the MS4 permit 

authorizes point discharges into Waters of the State. If stormwater treatment systems 

become WOTUS, then the MS4 points of discharge move upstream of the stormwater 

treatment system water body, resulting in a reduction in the MS4 area. The MS4 area 

then becomes strictly a roadway conveyance system and any contributing area to that 

roadway system. (p. 2)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

Pinellas County Board of County Commissioners (Doc. #14426)

12.696 The extension of the definition will also broaden the applicability of the definition of 

Major Outfalls under the NPDES MS4 permit to include nearly every outfall in minor 

channels or wetlands not currently considered as qualified. The effort to inventory these 

newly considered outfalls and to perform the additional maintenance and inspection 

requirements will present a significant financial burden to permitted MS4s. Additional 

permitting for maintenance of these systems may also impair the timely completion of 

NPDES permit required maintenance. In addition, many wetlands, lakes, and ponds that 

will be included in the proposed definition are on private property which presents a 

conflict in permitting, maintenance, and enforcement requirements as MS4 permitted 

entities have no jurisdiction over privately owned lands for these purposes. (p. 3)

Agency Response: Please see Compendium 7, summary response at 7.4.4. Please 

note that permitting requirements and the definition of “Major Outfall” in the 

NPDES regulations are outside the scope of this rulemaking.

Riverside County Flood Control and Water Conservation District (Doc. #14581)

12.697 Both the CWA and its implementing regulations establish a distinction between MS4 and 

WOTUS. MS4 permits contain specific requirements regarding the operation and 

maintenance of the MS4, including the control of non-stormwater discharges into the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

461

MS4 (which are required to be “effectively prohibit[ed]” pursuant to 33 U.S.C. § 

1342(p)(3)(B)(ii)) as well as monitoring requirements. The regulation of MS4s is 

accomplished by these permits, which are extensive and, complex in scope. 

In public statements, EPA and Corps representatives have indicated that the Proposed 

Rule is not intended to expand the reach of jurisdictional waters. However, the definition 

of “tributary” in the Proposed Rule could arguably transform water bodies that have been 

considered and regulated as MS4 into jurisdictional WOTUS. Under the “tributary”

definition, any water body which includes a channel with a bed, bank and OHWM “does 

not lose its status as a tributary if, for any length, there are one or more man-made breaks 

(such as bridges, culverts, pipes, or dams).... so long as a bed and bank and an [OHWM] 

can be identified upstream of the break. Moreover, a tributary.... can be natural, manaltered, or man-made water....” 79 Fed. Reg. at 22199. 

The complexity of MS4 systems in the urban environment makes these determinations 

difficult. Western Riverside County is dominated by major up-thrust mountain ranges 

that bound our watersheds, including the San Bernardino, San Jacinto and Santa Ana 

Mountains. These features create a substantial grade differential, and the urbanized areas 

are peppered with hills, plateaus and other vertical features that, in turn, contain small, 

ephemeral water courses with indications of bed and bank. The majority of our storm 

drains collect runoff from these upland areas and convey them through urbanized 

communities to stream segments lower in the valley. There is thus a robust mix of 

natural waterbodies and man-made flood control channels and storm sewers. The need 

for a clear boundary between what is considered an MS4 and what is considered a 

jurisdictional water is thus very important. 

The regulatory definitions of both an”MS4” and an “outfall” plainly distinguish between 

an MS4, which is not a WOTUS, and the water into which the MS4 discharges, which is, 

by definition, an MS4 discharges “to” a WOTUS. 40 CFR 122.26(b)(8) through an 

“outfall”. 40 C.F.R. § 122.26(b)(9). There is no “outfall” and no discharge where one 

portion of an MS4 connects to another or where a WOTUS discharges or flows into 

another WOTUS. In litigation involving Los Angeles County, the United States Court of 

Appeals for the Ninth Circuit has held that “[a]s a matter of fact and law, the MS4 is 

distinct from the two navigable rivers [the Los Angeles and San Gabriel Rivers]”. 

Natural Resources Defense Council, Inc. v. County of Los Angeles, 673 F.3d 880, 899 

(9t” Cir. 2011), reversed on other grounds, Los Angeles County Flood Control Dist. v. 

Natural Resources Defense Council, Inc., 568 U.S., 133 S.Ct. 710 (2013). Such a view is 

correct with respect to the waters already designated as WOTUS in Riverside County. 

This distinction has been recognized both by the EPA and the United States Supreme 

Court. In the Preamble to the original version of the MS4 regulations, the EPA drew a 

clear distinction between waters in an MS4 and a WOTUS: “[W]aters of the United 

States are not storm sewers for purposes of this rule.” 53 Fed. Reg. 49416, 49442 (Dec. 7, 

1988). This distinction was affirmed by the United States Supreme Court in the Los 

Angeles County Flood Control Dist. case, in which the Court unanimously reversed the 

Ninth Circuit, which had erroneously held that the “discharge” from an MS4 had 

occurred when waters flowed from an engineered portion of the Los Angeles River into 

another portion of that same river. 133 S. Ct. at 712. 
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462

Applying WOTUS status to miscellaneous MS4 lines because they fell within the 

proposed definition of “tributaries” would create regulatory chaos without any benefits to 

water quality or the quality of’ the receiving waters into which the line discharges. The 

District and other municipalities in the county could be faced with operating an 

interconnected, but distinct, storm drain system, some of which was considered MS4 and 

some of which was considered WOTUS. The District and other MS4 operators in 

Riverside County might be required to obtain CWA Section 404 Permits and Section 401 

Certifications if permit-required work was being done in these isolated open channels or 

other conveyances, even though those channels are part of the storm drain system. 

Similarly, water quality standards (and potentially TMDLs) would apply to these isolated 

jurisdictional waters. 

The purpose of the MS4 permit program is to reduce pollutants collected by the MS4 

from the urban watershed and discharged to WOTUS. MS4 operators are, therefore, 

required to address such pollutants within the framework of the MS4 permit and to 

evaluate their performance through monitoring of the outfalls to a WOTUS. If the 

Proposed Rule’s “tributary” definition causes lines currently deemed to be MS4 to 

instead be designated WOTUS (a designation that cannot apply to MS4 catch basins, 

pipes and culverts since they are not “navigable” and do not fall under any WOTUS 

definition in the Proposed Rule), MS4 operators might have to address each storm drain 

pipe discharging into a channel as a separate “outfall” and point of compliance for 

discharges regulated by the MS4 permit. MS4 operators might be liable for multiple 

violations of their MS4 permit for MS4 discharges into isolated jurisdictional waters if 

the permit prohibited MS4 discharges that exceeded water quality standards, as is typical 

in many California MS4 permits. Though EPA representatives have indicated that “wellcrafted” MS4 permits may reduce this risk, this assumes that permitting agencies are 

willing to limit liability to only certain discharges into WOTUS. Also, it is unclear 

whether a permitting agency could, by permit, immunize MS4 operators from the threat 

of citizen suits brought for discharges into a WOTUS. In any event, MS4 operators 

should not be forced to depend on permitting agencies to address such core jurisdictional

issues. 

The designation of portions of MS4s as jurisdictional waters also could harm the ability 

of operators to address contaminated stormwater and urban runoff in regional treatment 

facilities. The District has determined that such regional solutions are generally 

preferable to structural best management practices (BMPs) maintained at individual 

private properties. Such individual BMPs may not be adequately maintained over time, 

especially if the property is occupied by numerous tenants or resold. Regional treatment 

systems, which may be operated and maintained by MS4 operators, are more efficient as 

well. However, MS4 operators in Southern California have been informed that a WOTUS 

cannot be used to transport such stormwater to a regional treatment because, pursuant to 

40 CFR 131.10(a), such use would violate the prohibition against a state adopting waste 

transport or waste assimilation as a designated use for any waters of the United States. 

The District does not agree with this interpretation, but the designation of WOTUS in 

what had been considered MS4 would exacerbate this issue. It is thus important that the 

final WOTUS rule leave no confusion as to where the MS4 ends and a WOTUS begins. 

At minimum, the Agencies should include language making clear the distinction between 

the MS4 and WOTUS in the Preamble to the final WOTUS rule. (p. 9-11)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

463

Agency Response: The agencies’ longstanding practice is to view stormwater 

water control measures that are not built in “waters of the United States” as nonjurisdictional. Conversely, the agencies view some waters, such as channelized or 

piped streams, as jurisdictional currently even where used as part of a stormwater 

management system. Nothing in the proposed rule was intended to change that 

practice. Nonetheless, the agencies recognize that the proposed rule brought to light 

confusion about which stormwater control features are jurisdictional waters and 

which are not, and agree that it is appropriate to address this confusion by creating 

a specific exclusion in the final rule for stormwater controls features that are 

created in dry land. With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4. EPA notes the final rule does not change the definition 

of “outfall.” The commenter may be confusing the question of “what is a discharge” 

with what is a waters of the U.S. If there is no discharge, a § 402 permit would not 

be required even where the flow enters a waters of the U.S. Please see the Technical 

Support Document Section 1 for the Agencies’ legal rationale.

City of Buckeye, Arizona (Doc. #14591)

12.698 There are many Municipal Separate Storm Sewer Systems (MS4s) in the United States. 

Some are cities. Others are various types of public entities (DOTs, counties, 

nontraditional MS4s, etc.). Some of these MS4s are regulated under the MS4 NPDES 

permitting program. Many more of these MS4s are not regulated and are not covered 

under an MS4 permit. Some MS4s (e.g.: counties and DOTs) have portions of their 

systems that are regulated under MS4 permits (inside an Urbanized Area) and portions 

that are not regulated (outside of Urbanized Areas). Taken together, all these MS4s own, 

operate, and maintain millions of Stormwater Control Measures (SCMs) and Best 

Management Practices (BMPs). These SCMs and BMPs include both structural and nonstructural practices, programs, and features. In order for these MS4s to operate and 

maintain their systems in an efficient and cost-effective manner, the WOTUS 

jurisdictional status of the vast majority of these constructed SCMs and BMPs must be 

clear. Determining the WOTUS jurisdictional status of most of these constructed SCMs 

and BMPs on a case-by-case basis is not manageable or practicable. It is essential that 

clarity be provided by having specific and explicit exclusion language in the new rule for 

most of these constructed SCMs and BMPs, including roadside ditches.

There is a price paid for lack of clarity. If MS4 owners and operators are unclear or 

unsure about the WOTUS jurisdictional status of their constructed SCMs and BMPs, 

their work will be more difficult and less efficient. Staff resources and time will be 

diverted to this status issue. MS4s’ work and performance to protect, restore, and 

improve water quality will be diminished.

If a significant number of urban SCMs are determined to be WOTUS, the operation and 

maintenance of those SCMs will become much more complicated, difficult, and 

expensive for the public entities responsible for these MS4s, without any corresponding 

positive environmental outcomes. In fact, the MS4s’ work and performance to protect, 

restore, and improve water quality will be diminished. Such determinations may be the 

result of agency judgment or the outcome of third party lawsuits, based on interpretations 

of rule language. (p. 2-3)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

464

Agency Response: Please see Compendium 7, summary response at 7.4.4.

Harris County Flood Control District (Doc. #15049)

12.699 Since stormwater management activities are not explicitly exempt under the proposed 

rule, concerns have been raised that man-made conveyances and facilities for stormwater 

management could now be classified as a Water of the U.S. Municipal separate storm 

sewer systems (MS4) infrastructure including ditches, channels, pipes and gutters that are 

now deemed non-jurisdictional, but that under the new definitions of the proposed rule, 

could be deemed a Water of the U.S. This would potentially change the locations of 

outfalls for MS4s, and therefore the point of regulation, as defined in the CWA’s Section 

402 (NPDES Program). Alternatively, the proposed rule could result in double regulation 

of waters under Section 402 and Section 404 of the CWA, which is not a workable 

solution. Even if the agencies do not initially plan to treat an MS4 as a Water of the U.S., 

they may be forced to do so as a result of CWA legal challenges that attempt to address 

lack of clarity in the proposed rule. 

This is a significant potential impact for the District and other MS4 permittees that own 

MS4 infrastructure because these newly jurisdictional facilities would trigger 

requirements for the state to expend resources to designate beneficial uses pursuant to

CWA Section 131.10 requirements. Further, MS4 permittees will face expanded 

regulation and costs as they will now have to ensure that discharges from outfalls to these 

new Waters of the U.S. meet designated water quality standards. It is also unclear how 

the proposed definitional changes may impact the Pesticide General Permit program. (p. 

4)

Agency Response: Please see Compendium 7, summary response at 7.4.4. Please 

see essay 12.3. The final rule does not change or impose any new requirements for 

the pesticides general permit (PGP). 

Carroll County Board of Commissioners (Doc. #15190)

12.700 Since stormwater activities are not explicitly exempt under the proposed rule, we are 

concerned that MS4 ditches could be classified as “Waters of the U.S.” If these facilities 

flow into a “Water of the U.S.,” they are already regulated through the Section 402 

NPDES MS4 permit process. Doubling up on the permit coverage and requirements will 

just create a more cumbersome, expensive, and lengthy process for local jurisdictions, 

with greater cost to taxpayers and slower progress toward Bay clean-up. 

This will create enforcement conflicts and overlapping responsibilities for Federal 

agencies. Even if this is not the current intention of the agencies, they may be forced to 

do so through citizen and interest group lawsuits. These additional requirements in the 

process will also create a need for additional staff for the Federal agencies. (p. 2)

Agency Response: With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4. In addition, the rule adds an exclusion for certain 

ditches. The rule excludes all ditches with ephemeral flow that are not excavated in 

or relocate a tributary. The rule also excludes ditches with intermittent flow that are 

not excavated in or relocate a tributary or drain wetlands, regardless of whether or 

not the wetland is a covered water. Finally, ditches that do not connect to a 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

465

traditional navigable water, interstate water, or territorial sea either directly or 

through another water are excluded, regardless of whether the flow is ephemeral, 

intermittent, or perennial. 

Sacramento County, California (Doc. #15518)

12.701 Stormwater management activities are not explicitly exempt under the proposed rule. We 

are concerned that man-made conveyances and facilities for stormwater management and 

pollutant removal could now be considered a water of the U.S. By shifting the point of 

compliance for MS4 systems further upstream, the proposed rule could reduce 

opportunities for establishment of cost effective regional stormwater management 

systems. Many counties and stormwater management agencies are attempting to stretch 

resources by looking for regional and integrated approaches for managing stormwater 

quality. The rule would potentially inhibit those efforts. (p. 5)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

City of Oceanside (California) Water Utilities Department (Doc. #16509)

12.702 If promulgated as proposed, much of the MS4 maintenance activities required by NDPES 

Permit under CWA Section 402, could require a Section 404 permit as well as Section 

401 water quality certifications. This could infer that water quality standards would 

apply in features such as open channels rather than after the discharge into “traditional”

navigable waters. With respect to M54 facilities, the significant nexus test is inapplicable 

because MS4 facilities are already regulated under CWA section 402. Specifically, to the 

extent that MS4 facilities may significantly affect traditional navigable waters, they are 

regulated like other point source discharges to a WOTUS, and are subject to extensive 

NPDES permit requirements. Since they are so regulated, it is not necessary to capture 

such facilities under the definition of WOTUS because their physical, chemical, and 

biological impacts to traditional navigable waters are addressed through the terms of the 

applicable NPDES permit. (p. 3)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

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

12.703 A broader definition of Waters of the U.S. will make it more difficult for jurisdictions to 

maintain compliance with Total Maximum Daily Load (TMDL) limits and identify 

stormwater treatment options. (p. 1)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

12.704 Because the Clean Water Act prohibits placement of best management practices (BMPs) 

in Waters of the U.S., expanding the definition of Waters of the U.S. can significantly 

limit future options for compliance. 

EXAMPLE: The MS4 Permit identifies points of compliance for the Bacteria TMDL. 

For the San Diego River, a compliance point occurs in the lower portion of Forrester 

Creek. Measurements in Forrester Creek will determine if jurisdictions are meeting the 

required bacteria limits. Expanding the definition of Waters of the U.S. to include 

ditches and other “offline” MS4 conveyances with connectivity to the Creek would 

significantly limit opportunities to treat stormwater before it reaches the receiving water. 

(p. 2)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

466

Agency Response: Please see Compendium 7, summary response at 7.4.4.

12.705 The proposed definition change would have an adverse impact to the Agricultural Water 

Quality (AWQ) and Integrated Pest Control (IPC) programs within the County’s 

Department of Agriculture, Weights, and Measures (AWM). 

Currently, the AWQ program regulates 457 agricultural facilities in the unincorporated 

areas of the County. AWQ inspects nurseries, golf courses, cemeteries, and pest control 

businesses in order to ensure potential pollutants like sediment, pesticides, fertilizers, and 

trash do not enter the County’s storm drains, creeks, rivers, and beaches. This program is 

an integral component for the County to comply with the MS4 permit. The proposed 

changes to the definition of Waters of the U.S. could increase the level of regulation on 

water bodies located in the County’s current inventory of regulated agricultural facilities 

and could add new federal permitting requirements to current facilities or require the 

implementation of additional BMPs. Under the proposed definition change, agricultural 

facilities currently posing a low threat to water quality could require the same level of 

County regulatory resources as facilities with high threats to water quality. The increased 

allocation of resources would not likely yield a significant improvement in water quality. 

It is imperative that the County’s resources continue to be deployed as efficiently as 

possible. (p. 4)

Agency Response: Nothing in the final rule affects local regulation of “regulated 

agricultural facilities.” With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4. See essay 12.3. Also please note that requirements in or 

implementation of any applicable general permit under the NPDES pesticide 

general permit program is beyond the scope of this rulemaking.

City of St. Petersburg, Florida (Doc. #18897)

12.706 The proposed rule adds to the regulatory cacophony governing the protection of the 

City’s water bodies and exposes it to greater liability. The City, like many other 

jurisdictions, is seeking greater predictability as to the scope of the CWA. The difficulty 

in applying a consistent analysis to jurisdictional delineations of ditches is evidenced by 

the new definitions addressed, supra, in this letter. Adding a new layer of waters of the 

U.S. to the City’s compliance responsibilities is burdensome and exposes it to greater 

liability under the CWA’s TMDL program, especially given the role of many of the 

potential new water bodies in stormwater retention and attenuation. Ditches, 

impoundments, and other manmade stormwater features have been installed as innovative 

solutions to addressing urban pollution. They should be subject to best management 

practices under the CWA and other regulatory frameworks, but not the water quality 

criteria developed to protect our natural and traditionally navigable waters. Furthermore, 

the current permitting time frame does not allow proper maintenance scheduling. Adding 

more agencies and more complex, overbroad rules will only make this process more 

time-consuming. (p. 3)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

12.707 The proposed rule raises some additional concerns over the increased reporting and 

monitoring of some activities, including ditch maintenance and existing pesticide permit 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

467

programs used to control weeds and vegetation around ditches. It is not clear within the 

proposed rule the extent that these environmental management programs are affected by 

the permitting conditions, as there is no current exception for these practices under 

current permitting procedures. In low-lying areas, wetland plants, including mangroves, 

encroach into the floodway when maintenance is not performed routinely. In a city with 

over 50 miles of ditches, priorities need to be established for maintenance. Mangroves 

often become an issue during permitting and may require mitigation to offset their 

removal in the City’s manmade ditches. Mitigation is expensive and the City does not 

have the land available for such vast mitigation. (p. 4-5)

Agency Response: Permit requirements are beyond the scope of this rule. With 

respect to MS4s and the jurisdictional status of stormwater control features as 

waters of the U.S., please see Compendium 7, summary response at 7.4.4.

National Association of Flood & Stormwater Management Agencies (Doc. #13613)

12.708 The broad definitions in the proposed rulemaking, especially the definition of Tributary 

in conjunction with Adjacent, can lead to the conclusion that MS4s would be deemed 

Waters of the US. The distinction between MS4s and WOTUS is critical and begs the 

question of how CWA Sections 303 and 402 will be applied to historic MS4s deemed to 

be WOTUS. NAFSMA requests that the EPA clearly define what is considered to be an 

MS4 and what is determined to be a WOTUS, and reaffirm that an MS4 cannot be 

WOTUS. (p. 1)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

Iowa League of Cities (Doc. #18823)

12.709 Utilization of only the data analyzed in the Economic Analysis would lead to unintended 

consequences of what the Agency has determined to be “indirect costs,” which are 

impacts to the CWA programs and not just from jurisdictional changes. While this is 

viewed as indirect to the EPA, these costs will be directly borne by the local jurisdictions 

for new waters identified because of this rulemaking. Municipal Separate Storm-water 

Sewer Systems (MS4) and other storm-water systems including drains, roads, pipes, 

ditches and other components that channel runoff will have significant direct and indirect 

costs associated because of permit costs, wetlands and stream mitigation costs and project 

delay. Important matters such as delay and additional permitting do not get calculated 

into a simplistic understanding of affordability of two percent of median household 

income (MHI), which the Agency utilizes to make determinations on significant cost 

impacts to local communities. 

The Agency would likely respond that this uncertainty could be easily taken care of 

through a Preliminary Jurisdictional Determination (PJD). The League is concerned that 

this is an insufficient answer because an increased amount of PJD’s would lead to longer 

delays for simple routine maintenance or other projects. Member cities have also raised 

concern about allowing flexibility for determinations from the Army Corps of Engineers 

(ACE). It’s important to also note that once the PJD is complete, a new water determined 

to be under the jurisdiction of the EPA and ACE would be subject to other federal 

legislation such as the National Environmental Protection Act (NEPA), the Endangered 

Species Act (ESA) and Section 106 of the National Historic Preservation Act (NHPA). 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

468

The delays caused by these statutory requirements are not fully analyzed by the 

Economic Analysis of Proposed Revised Definition of Waters of the US. 

City Example: A city in Iowa over the past few years attempted to redevelop a stormwater ditch that connected to a small river. A short time before the public bid process, 

the ACE ordered them the halt the project as the small river was a WOTUS which was 

connected to the Mississippi River. The city had to completely redesign the project and 

was delayed by 12 months to perform a wetland study with completion of the other 

federal statutory requirements at a significant cost. This small city was completely 

caught off guard by jurisdiction over this small river and has expressed concern over 

expansion of jurisdiction to further small water bodies by the ambiguity of the rules 

language.

Request for EPA Response: We would ask that the EPA more clearly identify how PJDs 

would be processed to avoid unnecessary delays and to provide a better analysis of new 

waters that would be impacted because of the rule. (p. 2-3)

Agency Response: With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4. The scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries. The agencies also intend to retain the concept of preliminary JDs. 

There are two types of jurisdictional determinations; preliminary and approved 

jurisdictional determinations. Preliminary jurisdictional determinations indicate 

which waters on a property may be waters of the U.S., presume all waters on a 

property are jurisdictional, are not legally binding instruments, and enable a 

landowner to set aside the issue of jurisdiction and move directly into the permit 

evaluation phase of the process. Preliminary jurisdictional determinations cannot 

be used to decline jurisdiction and are generally more expedient than approved 

jurisdictional determinations. Approved jurisdictional determinations are the 

official Corps determination that jurisdictional “waters of the United States,” or 

“navigable waters of the United States,” or both, are either present or absent on a 

particular site. An approved JD precisely identifies the limits of those waters on the 

project site determined to be jurisdictional under the Clean Water Act/Rivers and 

Harbors Act. The majority of jurisdictional determinations completed by the Corps 

are preliminary.

The rule by itself imposes no direct costs. The potential costs and benefits incurred 

as a result of this rule are considered indirect, because the rule is a definitional 

change to a term that is used in the implementation of CWA programs (i.e., sections 

303, 305, 311, 401, 402, and 404). Entities currently are, and will continue to be, 

subject to the provisions of these programs. Each of these programs may 

subsequently impose direct or indirect costs as a result of implementation of their 

specific provisions.

12.710 The proposed rule language is not clear on the impact to (...) storm-water collection 

systems. The language is broad and inclusive, which is evident by the need to exclude 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

469

swimming pools from the application of the rule. The language provides broad 

inclusions and cities are concerned with being dependent upon agency judgments and 

discretion for exclusions: rules need to be clear enough that cities do not have to either 

guess at application of a rule or wait for the agency to interpret a rule that creates 

uncertainty. It is unworkable for cities to rely on agency judgments and discretion for 

exclusions. There is a concern about the magnitude of the requests the agencies will be 

forced to address and the timeliness of the agencies response given the uncertainty of the 

proposed regulation. Cities cannot be faced with significant delays to address critical 

storm-water infrastructure while waiting for agency action. Cities should be provided 

clarity by the agencies so that they can effectively plan and budget for the operation and 

maintenance of the storm-water collection systems without the uncertainty of the 

discretion of the agencies and when it will receive that agency judgment. (p. 3)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

12.711 (...) uncertainty is centered on whether (stormwater) collection systems, or portions of 

the systems, will be required to meet State Water Quality Standards (WQS) under Section 

303(d) or potentially a total maximum daily load (TMDL) because they will now be 

considered a water of the United States. WQS and TMDL were not designed for this 

application so application within a collection system seems improper. WQS define goals 

for a waterbody by designating its uses and setting criteria to protect those uses, but there 

is no established designated use for MS4s. Without a designated use, the default required 

designated use is as “fishable/swimmable,” unless the state demonstrates that it is not 

attainable for one of six particular reasons, none of which is because the waters serve as 

storm-water conveyances. A pending EPA proposed rule on water quality standards 

could make use designation analyses more stringent (i.e., by requiring a “highest 

attainable use” presumption). The Agency has stated that that the federal agency does 

not set WQS/TMDL standards for Iowa. Thus, our triennial review and revision of Iowa 

WQS could be slowed down through a discussion over setting standards within stormwater collection systems.

Request for EPA Response: Clearly identify new waters within MS4 systems and 

whether these will be subject to Section 303( d) WQS. (p. 4)

Agency Response: With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4. Nothing in the final rule changes how water quality 

standards are implemented and comments about a pending proposed rule on water 

quality standards is beyond the scope of this rulemaking.

12.712 Large communities in Iowa have been working diligently to control storm-water flow as 

the regulation of storm-water by EPA has increased. This has included separating storm 

systems and developing new storm-water projects that would include canals, ditches, 

tunnels, etc. These major municipal systems want to understand how their systems will 

be impacted internally and if there is the possibility that portions of their systems will 

now be included as a water of the United States. (p. 5)

Agency Response: Please see Compendium 7, summary response at 7.4.4.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

470

12.713 Also, small communities in Iowa have utilized roadside ditches extensively to move 

storm-water through their communities. These communities want to better understand if 

it is the intention of the Agency to include their ditches now a point source thus subject to 

WQS and potentially require permitting under Section 404. These communities have 

raised concern that routine maintenance or weed removal could trigger additional 

requirements that were never contemplated by the city. These ditches are used to funnel 

water away from low-lying roads, properties and businesses to prevent accidents and 

flooding incidences. Ultimately, local governments are liable for maintaining the 

integrity of their ditches, even if federal permits are not approved by the federal agencies 

in a timely manner. Many local governments who are subject to Section 404 permitting 

requirements report the process can be extremely time-consuming, cumbersome and 

expensive. (p. 5)

Agency Response: The agencies for the first time establish by rule that certain 

ditches are excluded from jurisdiction. With respect to MS4s and the jurisdictional 

status of stormwater control features as waters of the U.S., please see Compendium 

7, summary response at 7.4.4. Also see Compendium 6 - Ditches. 

Georgia Municipal Association (Doc. #14527.1)

12.714 Many local jurisdictions are required to be permitted under the Clean Water Action for 

nonpoint-source discharges. As part of the permit and also TMDL pollutant mitigation, 

the reduction of the discharge and the mitigation of the pollutant through best 

management practices (BMP’s) are required to the maximum extent possible. If the 

proposed rule is adopted, many stormwater ditch issues will require additional time for 

the permitting processes which in most cases would contribute additional pollutants to the 

Waters of the United States due to the continuation of the illicit discharge to the system. 

An even bigger issue that I have argued for two decades is that under current rules an instream BMP’s are not allowed through regulation by the COE under the CWA. Local 

MS4’s through permit basically become a point source discharge. In the wastewater 

permitting process the influent is directly transported to a treatment plant, treated and 

released. In the stormwater world local stormwater management system are not afforded 

that luxury. The conveyance systems in streams are not permitted to treat the pollutant in 

stream. Hundreds of millions of dollars across the nation have been spent at the local 

level attempting to mitigate the pollution before it reach the stream. In some cases there 

has been some success, but stormwater runoff in general comes from multiple sources, 

which cannot be controlled at the source. Allowing the expansion of the proposed rule 

will make it even more difficult to treat stormwater runoff. 

If this proposed rule is adopted and moves forward, construction site issues could become 

cumbersome if the ditch is considered a Water of the United States. Staffs of local 

governments have a hard enough time currently achieving compliance with erosion and 

sediment control requirements from contractors and developers. It is very difficult 

educating and convincing local governing boards to accept the fact that environmental 

compliance of the CWA and the costs associated with them must be passed on to the 

development community. They are perceived as unnecessary and prohibiting growth and 

economic development. (p. 8-9)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

471

Agency Response: With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4. Also please note that the final rule does not increase 

regulation of non-point sources. Regulation under the CWA is focused on point 

source discharges, including storm water point sources discharges to waters of the 

U.S. Comments about nonpoint source regulation are beyond the scope of this 

rulemaking.

Massachusetts Water Resources Authority (Doc. #15546)

12.715 Further, stormwater management is often not funded as a water utility, but rather through 

our member counties’ general funds. If stormwater costs significantly increase due to the 

proposed rule, not only will it potentially impact their ability to focus available resources 

on real, priority water quality issues, but it may also require that funds be diverted from 

other vital government services such as police, fire, and emergency medical services. 

South Carolina’s counties cannot assume additional unnecessary or unintended costs 

without a proportional reduction in other county services without violating state laws. 

Many of our member counties have begun preparing contingency plans to remove natural 

and man-made systems from the County’s public works inventory. South Carolina 

counties may have to consider seeking authority from the South Carolina General 

Assembly to assess new targeted taxes similar to the “rainfall” taxes enacted by several 

counties in Maryland to address the expected cost increases for stormwater control. 

Additionally, some counties have reported plans to delay beneficial green infrastructure 

projects until such time as they are assured by the EPA or Corp that such projects can be 

constructed without unnecessary and burdensome financial costs to their taxpayers. 

By shifting the point of compliance for MS4 systems further upstream, the proposed rule 

could reduce opportunities for establishment of cost effective regional stormwater 

management systems. Many counties and stormwater management agencies are 

attempting to stretch resources by looking for regional and integrated approaches for 

managing stormwater quality. The rule would potentially inhibit those efforts. (p. 5-6)

Agency Response: With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4. See also Compendium 11 and Economic Analysis section 

8 for an explanation of how the agencies considered the effects of the final rule on all 

CWA programs, including section 402. 

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

12.716 The inevitable designation of component parts of Section 402 permitted MS4 systems as 

waters of the United States, rendering their operation illegal under federal regulations. (p. 

4)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

12.717 CWA 402 Program: Many permitted MS4 features would be rendered waters of the 

United States, making operation of the MS4, as permitted, illegal. Perhaps nowhere is 

the conflict and consequence – intended or otherwise – of the Proposed Rule more 

dramatically illustrated than in the context of the nation’s innumerable multiple separate 

storm sewer or “MS4” systems. Regulated and permitted under Section 402 of the CWA, 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

472

MS4s exist for the purpose of channelizing (as opposed to surface sheet flows) and 

transporting storm water runoff and the various pollutants and waste that inevitably get 

swept up into such flows.

MS4s are composed of everything from highly engineered treatment facilities to pipes to 

concrete-lined channels to ditches. It is indisputable that with the broad and inclusive 

definitions of “tributary” and “adjacent waters” in the Proposed Rule, component features 

of MS4s nationwide will be deemed jurisdictional waters of the United States. 

This is not a mere labeling exercise or circumstance without consequence. Quite to the 

contrary, the Code of Federal Regulations expressly prohibits utilization of a water of the 

United States as a conveyance feature for an MS4 system: “[I]n no case shall a state

adopt waste transport . . . as a designated use for any water of the United States.” 40 

C.F.R. § 131.3(i). 

As discussed in greater detail below, in California, the water quality control program is 

carried out by the State Water Resources Control Board and nine Regional Water Quality 

Control Boards. They implement both federal and state water quality control statutes and 

regulations primarily via adoption and enforcement of regional Basin Plans. It is in the 

Basin Plans that beneficial uses, water quality standards, and total maximum daily loads 

(TMDLs) are specified. The noted regulation, 40 C.F.R. § 131.3(i), prohibits Basin Plans 

from acknowledging waste transport as an appropriate use for designated waters of the 

United States. 

But the very purpose of an MS4 is the capture and transportation of waste in storm water 

so that it is directed to appropriate treatment points and not allowed to sheet flow directly 

into receiving waters. Designating a component feature of a permitted MS4 system as a 

jurisdictional tributary renders operation of the MS4 illegal. In such an instance, you 

would have a system permitted under one provision of the CWA, Section 402, and at the 

same time its operation would violate CWA Section 404 and section 131.3(i) of the 

regulations. (p. 28-29)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

Greater Houston Partnership (Doc. #14726)

12.718 We don’t believe that EPA and USACE intended to make municipal separate storm 

sewer systems (MS4s) jurisdictional, but a straightforward reading of the proposal 

suggests that large portions of Houston area MS4s, which include drainage channels and 

ditches, would be considered jurisdictional if the rule were finalized as proposed. GHP 

strongly suggests that the proposed rule be modified to include an explicit exemption for 

all facilities that are developed or operated for drainage and detention purposes, including 

those that are part of an MS4. (p. 2)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

American Society of Civil Engineers (Doc. #19572)

12.719 (...) the agencies must address the absence of MS4 impacts in the proposed rule and 

consider the unintended consequences of the rule on promoting green infrastructure. (p. 

11)

Agency Response: Please see Compendium 7, summary response at 7.4.4.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

473

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

12.720 Administrator and the State determines appropriate for the control of such pollutants.”

EPA regulations set forth detailed requirements for MS4 permits covering the full range 

of controls for the MS4 system defined broadly as “a conveyance of system of 

conveyances including roads with drainage systems, municipal streets, catch basins, 

curbs, gutters, ditches man-made channels or storm drains” 40 CFR 122.26. 

Under EPA’ regulations, MS4 permits have become increasingly more stringent. A 

recent EPA study notes that NPDES permitting authorities are employing a variety of 

different requirements in their MS4 permits to address urban storm water pollution.

These include, for example, numeric performance and/or design standards in MS4 

permits to control discharges from new development and redevelopment. That study also 

notes that some MS4 permits include numeric effluent limitations expressed as water 

quality based effluent limits (WQBELs) for specific pollutant parameters based on 

applicable waste load allocations or other water quality objectives.”

162

 This has become 

especially true under the Chesapeake Bay TMDL where many permits now require 

retrofitting 20% of impervious surfaces within the permit time frames.163

The practical effect of not expressly exempting MS4 systems would be to impose an 

additional and redundant set of requirements over a system that is already obligated to 

meet the CWA’s “fishable and swimmable” goals. Specifically, under the proposed rule, 

any component of an MS4 system, whether natural drainage ditch or man-made cement 

flow way, functioning as intended by treating and conveying storm water to discharge 

point, would arguably be a WOTUS subject to water quality standards, use designations 

and anti-degradation requirements beyond the conditions of the MS4 permit itself. 

Discharges into any component of the system would themselves be subject to permitting 

under either section 402 or 404 and perhaps even TMDL requirements under section 303. 

Even normal maintenance such as clearing vegetation and removing silt might require a 

section 404 permit. 

Such duplicative regulation would especially impact aggregate operators. Many 

aggregate sites are also regulated by the local municipal SW system and must meet 

performance standards under the applicable MS4 permit. Many operators institute 

controls to capture and manage the impacts of storm water from their sites and often 

implement green infrastructure projects such as rain gardens and bio-swales. Unless the 

agencies explicitly exempt MS4s as part of a waste treatment system, operators face 

onerous conditions for any discharges of storm water where such additional regulation 

would not provide any greater water quality benefits. (p. 46-47)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., please see Compendium 7, summary response at 7.4.4.

 

162 EPA “Post-construction Performance Standards & Water Quality Based Requirements.” A compendium of 

permitting approaches. (June 2014).

163 Maryland Department of the Environment’s recently issued MS4 permits to Phase I jurisdictions define the 

permit area as “the entire geographic area within the political boundaries of a Phase I NPDES municipal stormwater 

jurisdiction” (e.g. MDE Fact Sheet for Prince Georges County, Md., MS4 permit, May 28, 2013. )
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

474

Montana Mining Association (Doc. #14763)

12.721 In addition to the implications for Section 404 permitting, the proposed rule is also likely 

to trigger increased Section 402 permitting obligations for mining-related activities as 

additional waters within mine sites that were previously non-jurisdictional become 

jurisdictional. In particular, many ditches, which are already regulated as stormwater 

conveyances under Section 402(p), as well as ditches ‘ conveying waters to ponds and 

impoundments, could likely be considered jurisdictional waters subject to water quality 

standards, total maximum daily loads, and NPDES requirements. As a result, companies 

needlessly will have to treat not only discharges from such ditches to downstream waters, 

but also discharges to those very same ditches. Additionally, by way of another example, 

under the proposed rule mining companies could be put in the impossible situation of 

having features designed to either store or treat mining-related materials to improve water 

quality be themselves required to meet water quality standards. (p. 4)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

American Gas Association (Doc. #16173)

12.722 AGA urges the Agencies to categorically exclude Municipal Separate Storm Sewer 

Systems (MS4s) from the definition of WOTUS. MS4s include ditches and/or road-side 

stormwater conveyances within a town. It is unclear under Proposed Rule whether an 

MS4 feature on a natural gas utility project site, not meeting the exclusions proposed by 

the agencies, could be a WOTUS. If so, any such determination would have major 

implications for local government entities that have to comply as permittees under the 

§404 program to perform any modifications, repairs, or maintenance. (p. 10)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

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

12.723 It is unclear how the proposed definitional changes would impact application of 

pesticides used to control weeds and vegetation around ditches, settling basins, levees, 

water transfer, reuse, and reclamation efforts and other water delivery systems. (p. 2)

Agency Response: See essay 12.3. The final rule neither changes nor establishes 

new requirements for complying with the pesticides general permit (PGP). 

Permitting requirements are beyond the scope of this rule.

New York Farm Bureau (Doc. #15616)

12.724 We are concerned about the classification of agricultural stormwater runoff. If EPA 

classifies a wet spot in a corn field as a water of the U.S., then manure application in that 

area is immediately a point source discharge that requires a NPDES permit. Previously, 

depending on the size of the farm, the manure application was dictated by the farm’s 

nutrient management plan approved as part of its CAFO permit. Any runoff from the 

field after a rain event was treated as agricultural stormwater and regulated by the state as 

a non-point source of pollution. However, under the new definitions, these exemptions 

are effectively removed and the state loses much of its non-point source oversight. (p. 4)

Agency Response: See essay 12.3. The definition of point source and the

exemption for agricultural stormwater are beyond the scope of this rule. Issues 

relating to permitting requirements for the application of fertilizer (including 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

475

manure), pesticides, herbicides, and any other substances are also beyond the scope 

of the rule.

County Engineers Association of Ohio (Doc. #1997)

12.725 Under these changes, we also believe that Municipal Separate Storm Sewer Systems 

(MS4s) including roadside ditches would be considered Waters of the United States. Not 

only would discharges from these systems be subject to new regulations, but so would 

drainage entering these systems. Costs of accommodating these increases is not only 

potentially burdensome, but the right-of-way needs to accommodate increased 

regulations would be subject to criticism and opposition from adjoining property owners. 

(p. 2)

Agency Response: With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4. Comments about the implications of possibly needing to 

change rights-of-way are beyond the scope of this rulemaking.

North Carolina Water Quality Association (Doc. #12361)

12.726 Any final rule must clarify that stormwater treatment and conveyance systems are not 

jurisdictional waters of the United States. A local government should not, for example, 

have to be concerned that a regulator or citizen suit plaintiff may assert that an NPDES 

permit is required to discharge stormwater into its MS4 system. Likewise, it must be 

clear that a Clean Water Act§ 404 permit is not required to perform maintenance work on 

an MS4 BMP. (p. 1)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

Minnesota Cities Stormwater Coalition (Doc. #14647)

12.727 There is a price paid for lack of clarity. If MS4 owners and operators are unclear or 

unsure about the WOTUS jurisdictional status of their constructed SCMs and BMPs, 

their work will be more difficult and less efficient. Staff resources and time will be 

diverted to this status issue. MS4s will be less confident about their operations and 

maintenance programs. MS4s’ work and performance to protect, restore, and improve 

water quality will be diminished. (p. 3)

Agency Response: The Agencies’ final rule provides clarity and includes an 

exclusion for stormwater control features that are built in dry land. Please see 

Compendium 7, summary response at 7.4.4.

Southeast Metro Stormwater Authority (Doc. #14935)

12.728 SEMSWA is troubled that the proposed tributary definition will likely expand what is 

considered jurisdictional Waters of the US. Many remote ephemeral drainages that were 

not considered Waters of the US, based on an individual determination made by the local 

USACE office, would be brought into the scope of jurisdictional Waters of the US under 

the proposed rule. SEMSWA is especially concerned because the proposed Rule could 

result in increased permitting for routine maintenance activities for our stormwater 

system, which translates to more resources to prepare for, and less time for actual 

implementation, of that critical maintenance. Additionally, the definition impacts the 

wetlands associated with designed treatment of stormwater runoff under our MS4 permit. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

476

As we commented on with other proposed federal regulations, please allow local and 

regional agency personnel, including the USACE, the ability to manage their regulatory 

responsibilities using individual determinations based on site specific conditions. Let 

those regulators that value the regional watersheds, apply their knowledge, effectively 

and efficiently, to protect them. Please do not eliminate needed flexibility in permitting, 

and consider excluding wetlands designed for treatment as part of our MS4 permit 

efforts. (p. 1-2)

Agency Response: With respect to MS4s the jurisdictional status of stormwater 

control features as waters of the U.S., please see Compendium 7, summary response 

at 7.4.4. Also please see summary response at 7.1 regarding the waste treatment 

system exclusion. 

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

12.729 Simply stated, the Proposed Rule impacts the City of Northglenn by redefining the 

meaning of the Waters of the U.S., and creating jurisdictional uncertainty. The Proposed 

Rule does not clearly distinguish between jurisdictional and non-jurisdictional; ditches, 

water quality ponds, constructed wetlands, detention/retention ponds and green 

infrastructure, resulting in significant economic impacts to public and private

infrastructure owners. Language defining and excluding all man-made stormwater 

facilities (and their required maintenance) must be added to the Proposed Rule. 

Complying with the Proposed Rule is projected to result in double regulation (from 

NPDES and WOTUS), and significantly higher costs with unknown environmental 

benefit for our community.

Additionally, any change to the definition of “Waters of the U.S.” directly affects existing 

CWA programs such as the Water Quality Standards (WQS) program and the National 

Pollution Discharge Elimination System (NPDES) program, adding complexity to a large 

number of new water features (e.g. permanent Best Management Practices) that are 

maintained as part of our permitted Municipal Separate Storm Sewer System. Much of 

the new language in the Proposed Rule would suggest that large portions of our already 

permitted MS4 will now be included as WOTUS. (p. 2)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

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

12.730 The Proposed Rule as to MS4s should undergo a new comment period. The Proposed 

Rule is silent as to whether certain MS4s can constitute jurisdictional waters and what 

types of MS4s would be become jurisdictional. There is also no analysis as to the

Proposed Rule’s impact on the water supply and flood control functions of MS4 

operators such as the County. The Proposed Rule is not only silent on its application and 

analysis, but EPA has acknowledged in public meetings that application to the MS4 was 

not contemplated. Thus, any formal rule adopted by the Agencies would be arbitrary and 

capricious as all relevant factors have not been examined. Motor Vehicle Manufacturers 

Assoc. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29 (1983). (p. 2)

Agency Response: The agencies proposed a rule clarifying the scope of waters of 

the United States in April, 2014, and solicited comments for over 200 days. This 

final rule reflects the over 1 million public comments on the proposal, the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

477

substantial majority of which supported the proposed rule, as well as input provided 

through the agencies’ extensive public outreach effort, which included over 400 

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

energy companies, counties, municipalities, environmental organizations, other 

federal agencies, and many others. Also, please see Compendium 7, summary 

response at 7.4.4.

12.731 Although the Agencies will receive comments on how to regulate MS4s, the Agencies 

cannot adopt a final rule because the Proposed Rule did not allow notice and a fair 

opportunity to comment due to its silence and lack of analysis on its application to MS4s. 

Chocolate Manufacturers Association v. Block, 755 F.2d 1098 (4th Cir. 1985). Without 

any discussion as to whether and how the Proposed Rule applies to MS4s, notice is 

inadequate. (p. 2)

Agency Response: The Agencies are not changing their approaches to regulating 

MS4s. As a result of public comment and to provide greater clarity, the final rule 

now includes an exclusion for stormwater control features built in dry land. Please 

see Compendium 7, summary response at 7.4.4. 

12.732 If certain MS4s will be defined as waters of U.S., additional consideration should be 

given as to when a “discharge” occurs necessitating a NPDES permit. Currently, the 

discharge point for a MS4 into a jurisdictional water is the point of outfall. Without this 

definitional separation, however, there would be no “discharge” under the Supreme 

Court’s decisions in South Fla. Water Management Dist v. Miccosukee Tribe, 541 U.S. 

95, 105 (2004), and Los Angeles County Flood Control District v. Natural Resources 

Defense Council, inc., 133 S.Ct. 710 (2013), as a MS4 and water of the U.S. would be 

one and the same. (p. 2)

Agency Response: The rule does not change the point of outfall as the discharge 

point for an MS4. It also does not change any determination of whether a discharge 

has occurred. It simply provides a definition for the term “waters of the United 

States.” Please see the Technical Support Document Section I. To provide more 

clarity, the final rule includes a new exclusion for stormwater control features built 

in dry land. Please see Compendium 7, summary response at 7.4.4.

12.733 If certain MS4s will be defined as waters of the U.S., the Proposed Rule is unclear as to 

how man-made and man-altered channels will be regulated under Sections 401, 402 and 

404 of the CWA. A local Orange County example of this is Peters Canyon Channel, an 

agricultural drainage channel built on upland that now serves as a flood control channel. 

If this channel was classified as waters of the U.S., any construction or maintenance work 

would require permit approval under Section 401 and 404 of the CWA, and beneficial 

uses and water quality standards would need to be established. If it was not, as seems 

appropriate, the channel would be considered part of the MS4 and be subject to discharge 

limitations of municipal MS4 permits as well as waste load allocations under applicable 

Total Maximum Daily Loads (“TMDL”). However, the lack of clarity in the current 

regulations casts confusion as to the status of this and similar channels under the CWA. 

The Proposed Rule fails to introduce any clarity on this issue. (p. 2-3)

Agency Response: Implementation of CWA programs remain unchanged and the 

responsibility of determining the jurisdictional status of various features in the first 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

478

instances is with the relevant permitting authority (e.g., local USACE District office, 

a state with an approved permitting program, or a U.S. EPA Regional office). 

Regarding MS4s and the jurisdictional status of stormwater control features, please 

see Compendium 7, summary response at 7.4.4. 

SD1 (Doc. #15140)

12.734 SD1, which manages storm water in 29 cities, and portions of unincorporated Boone, 

Campbell, and Kenton Counties are required to comply with the Commonwealth of 

Kentucky’s Phase II Municipal Separate Storm Sewer System (MS4) general permit. 

This permit currently contains requirements for storm water discharges into Waters of the 

Commonwealth. In that permit, the state responded to a commenter that: 

“Connections to subsurface drainage, such as Class V injection wells, sinkholes, 

drywells, karst windows, sinking streams, or other karst features are regulated by the 

Safe Drinking Water Act (Underground Injection Control program). This program is 

directly implemented in the Commonwealth of Kentucky by the U.S. Environmental 

Protection Agency, Region IV. As such, these conveyances are not considered 

outfalls under the Kentucky Municipal Separate Storm Sewer Program.”

It is not clear that this response would remain accurate under the expanded definition of 

WOTUS. This interpretation is now open to question with the inclusion of the term 

“shallow subsurface hydrologic connection” in the definition of “neighboring” or 

“adjacent” waters in the definition of WOTUS (USACE and EPA 2014). It is also not 

clear how “wet weather conveyances” would be treated under the expanded definition, or 

who would have the burden of proof that a MS4 feature was not jurisdictional. With an 

expanded definition of WOTUS, some states may have to designate uses and adopt 

federal criteria (or equally protective criteria) for water bodies that were previously 

considered Waters of the State but not WOTUS. This would result in increased costs to 

the state as well as MS4 permittees.

Despite EPA’s numerous presentations to help people understand how the rule will or 

will not impact MS4 permits and their implementation, there remain significant confusion 

and different interpretations of these potential impacts. For example, the Utah 

Association of Counties expressed significant concerns about lack of clarity of these 

potential impacts during a July 11, 2014 presentation at the National Association of 

Counties in New Orleans (Ward 2014).

This confusion is manifested in the Kentucky MS4 General Permit. For example, 

Part(1)(E) of the general permit contains definitions for the MS4 (which includes ditches, 

man-made channels, and storm drains); point source (which includes ditches, channels, 

and conduits); and outfalls (which include other conveyances).

The potential impact on regional storm water management facilities has also not been 

adequately addressed. For example, there are numerous headwater streams and other 

water features within MS4s that are not currently considered to be WOTUS. Regional 

storm water facilities are typically cost effective ways to control the impact of storm 

water discharges on existing WOTUS. If the point of water quality standards compliance 

is shifted further upstream, it is possible that regional facilities would no longer be viable. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

479

These examples point out the wide-ranging potential for unforeseen consequences of 

moving forward with the proposed rule as currently written. This further supports our 

contention that the rule will very likely increase workload, reduce certainty and 

predictability, and increase the number of case-specific determinations in the 

administration of the CWA. (p. 6-7)

Agency Response: With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4. See also Compendium 11 and Economic Analysis 

section 8 for an explanation of how the agencies considered the effects of the final 

rule on all CWA programs, including section 402. Comments on the UIC program 

are beyond the scope of this rule.

County of San Diego (Doc. #15172)

12.735 The proposed definition change would have an adverse impact to the Agricultural Water 

Quality (AWQ) and Integrated Pest Control (IPC) programs within the County’s 

Department of Agriculture. Weights, and Measures (AWM). 

Currently, the AWQ program regulates 457 agricultural facilities in the unincorporated 

area s of the County. AWQ inspects nurseries, golf courses, cemeteries, and pest control 

businesses in order to ensure potential pollutants like sediment, pesticides, fertilizers, 

and trash do not enter the County’s storm drains, creeks, rivers, and beaches. This 

program is an integral component for the County to comply with the MS4 perm it. The 

proposed changes to the definition of Waters of the U.S. could increase the level of 

regulation on water bodies located in the County’s current inventory of regulated 

agricultural facilities and could add new federal permitting requirements to current 

facilities or require the implementation of additional BMPs. Under the proposed 

definition change, agricultural facilities currently posing a low threat to water quality 

could require the same level of County regulatory resources as facilities with high threats 

to water quality. The increased allocation of resources would not likely yield a 

significant improvement in water quality. It is imperative that the County’s resources 

continue to be deployed as efficiently as possible.

The IPC program conducts weed control in County-owned and operated ditches and flood 

control channels. Currently, IPC is able to effectively and efficiently eradicate weeds as 

needed. The proposed change may be interpreted in a way that county-operated ditches 

and flood control channels would be directly regulated under the CWA as Waters of the 

U.S. The change could delay the County’s ability to efficiently control weeds due to 

increased regulation and oversight caused by the revised definition and expanded 

permitting requirements. Failure to control invasive and exotic weeds could trigger state 

and federal quarantines resulting in financial and ecological burdens for the County and 

its residents. At stake is the County’s $1.7 billion agricultural industry, heavily 

dependent on its ability to export products. Without swift mitigation of quarantined 

weeds, our interstate and international trading partners could impose import restrictions 

and prohibitions, limiting market access for local farmers, far removed from weeds in a 

flood channel. Additionally, overgrown weeds significantly restrict water flow and could 

cause floods. (p. 3)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

480

Agency Response: Local regulation of “regulated agricultural facilities” is beyond 

the scope of this rule Please see Compendium 7, summary response at 7.4.4

regarding MS4s and stormwater control features. The requirements in or 

implementation of any general permit issued pursuant to the NPDES pesticide 

general permit program is also beyond the scope of this rule.

Minnesota Cities Stormwater Coalition (Doc. #16929)

12.736 EPA has publicly stated that a water can be both part of an MS4 conveyance system and 

Water of the Unites States. This is a very confusing concept, from the perspective of 

regulated MS4 permittees. It is particularly confusing in light of another public statement 

from EPA presentations on this rulemaking: “Remember: Clean Water Act permitting 

requirements apply ONLY when there is a .discharge of a pollutant from a point source 

into a Water of the U.S.”. How does an MS4 system discharge to a WOTUS if the 

WOTUS is a component of the MS4 conveyance system? If there is no discharge, do the 

CWA permitting requirements apply? How does an MS4 permittee meet its permit 

requirements for the operation and maintenance of its system when a·component of its 

system is also WOTUS? 

We request that an alternative approach be considered. A water should only be WOTUS 

or part of an MS4, never both simultaneously. If a water is WOTUS, the discharge points 

from the MS4 to the water would be clearly viewed as outfalls under the MS4 permit. 

The water leaving the WOTUS could reenter the MS4. This approach may be much 

more clear and “cleaner” than the current concept of waters being both WOTUS and MS4 

components simultaneously. (p. 6)

Agency Response: The Agencies regard both approaches to effectively be the 

same. Please see Compendium 7, summary response at 7.4.4.

Sacramento Stormwater Quality Partnership (Doc. #17005)

12.737 The Proposed Rule claims the appropriateness of including tributaries “by rule” is 

because tributaries have a significant nexus to a traditional navigable water, and that they 

affect the physical, chemical, and biological integrity, of a traditional navigable water. 

With respect to MS4 facilities, the significant nexus test is inappropriate because MS4 

facilities are already regulated under CWA section 402. Specifically, to the extent that 

MS4 facilities may significantly affect traditional navigable waters, they are regulated 

like other point source discharges to a WOTUS, and are subject to extensive NPDES 

permit requirements. Since MS4s are regulated under a parallel provision (CWA section 

402), it is inappropriate to be providing potential exclusions instead of specifically 

excluding MS4 facilities. (p. 4)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

Ventura Countrywide Stormwater Quality Management Program (Doc. #18762)

12.738 The Proposed Rule creates new and significant uncertainty with respect to how it would 

be applied to storm water related facilities. Under the newly proposed definitions, 

groundwater recharge facilities, storm water conveyance channels, and other storm water 

related facilities could now be found to be a WOTUS. The exclusions in the Proposed 

Rule do not adequately cover or incorporate these types of facilities. Unless the Proposed 

Rule is further revised to address this uncertainty by clearly excluding the types of 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

481

facilities discussed herein, significant confusion will result with respect to what 

constitutes a WOTUS. Moreover, if such facilities are found to be WOTUS, the 

regulatory burden associated with establishing, maintaining, and operating these facilities 

will increase, and result in significant costs to municipal ratepayers. However, 

considering that these facilities are highly regulated for the protection of water quality, 

these increased burdens and costs will not result in better environmental protection. 

Storm water managers will also be left guessing as to their legal responsibilities, and 

storm water agencies could be open to legal liability from third parties. The Program 

recommends that the Proposed Rule be revised to avoid these results. (p. 2)

Agency Response: With respect to MS4 and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4. Specifically, the Agencies specifically excluded 

constructed detention and retention basins created in dry land that are used for 

wastewater recycling, including groundwater recharge basins and percolation ponds 

built for wastewater recycling. The new exclusion also covers water distributary 

structures that are built in dry land for water recycling. The Agencies have not 

considered these water distributary systems jurisdictional where they do not have 

surface connections back into, and contribute flow to, “waters of the United States.” 

The exclusion in paragraph (b)(7) codifies the long-standing agency practice that 

water reuse and recycling structures are important and beneficial in protecting the 

chemical, physical, and biological integrity of the nation’s water under CWA.

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

Association (Doc. #14928)

12.739 ... [T]he jurisdictional classification of ditches and MS4 systems to waters of the U.S. 

contradicts the 1987 CWA amendments when Congress created §402(p), authorizing the 

agency to issue CWA permits to MS4 system operators. If the agencies proceed in 

designating all MS4’s as tributaries, there is no need for the MS4 program, as every 

facility discharging stormwater to a MS4 will need a CWA permit. (p. 13)

Agency Response: Comments about the effect of § 402 (p) are beyond the scope of 

this rulemaking. The Agencies agree that further clarity about separate storm 

sewer systems is appropriate. Please see Compendium 7, summary response at 

7.4.4. Please see the Technical Support Document Section I. concerning the 

Agencies’ legal rationale 

Kentucky Stormwater Association (Doc. #18912)

12.740 KSA requests clarification on how the regulated MS4 programs will be impacted and the 

additional regulatory burden expected upon our local government membership. The KSA 

is concerned that the extension of the WOTUS definition will require regulatory 

oversight and direction that is already being provided by the state. In essence, KSA is 

concerned that the new rule will add regulatory burden to our local tax payers without 

additional benefit. (p. 1)

Agency Response: With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4. . See also Compendium 11 and Economic Analysis 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

482

section 8 for an explanation of how the agencies considered the effects of the final 

rule on all CWA programs, including section 402. 

Association of State Floodplain Managers (Doc. #19452)

12.741 It should be noted that a regulatory system that works for dredge and fill activities may 

not be efficient for 402 permitting, and vice versa. Therefore it is likely that other 

regulatory tools – including exemptions (e.g. for maintenance), general permits, and so 

on - may be needed to effectively accommodate both program areas.

Urban agencies are concerned with MS4 stormwater collection systems, and the extent to 

which these systems may become subject to §404 permitting. (p. 9)

Agency Response: Permitting requirements and exemptions from permitting are

beyond the scope of this rule. With respect to MS4s and the jurisdictional status of 

stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4.

12.742 ASFPM recognizes that the §402 and §404 programs have distinctly different goals and 

requirements as applied to stormwater management. Therefore, we urge that EPA 

recognize these distinctions in the final rule and in guidance. (p. 9)

Agency Response: Please see response to previous comment.

United States House of Representatives (Doc. #17458)

12.743 MS4 permittees are currently responsible for direct discharges from their stormwater 

management systems into Waters of the United States (WOTUS). MS4 stormwater 

systems include canals, ditches, structures, pump stations, lakes, ponds, wetlands, pipes, 

swales, and roadways that provide retention, treatment and conveyance of stormwater. 

Under the proposed rule these facilities will arguably become WOTUS, resulting in the 

broadening of the number of county maintained facilities that would subject to federal 

permitting. Under this scenario, MS4 permittees will have their jurisdictional facilities 

reduced to only the pipe system associated with road drainage. As a result, the number of 

MS4 permittees, the number of applicable storm water management programs and the 

size of the MS4 contributing drainage area will be reduced, along with the ability to 

implement effective restoration programs associated with traditional MS4 programs. The 

treatment systems constructed to meet NPDES permit requirements will effectively be 

eliminated. Was it the intent of the EPA and the US Army Corps of Engineers to shrink 

the size of the MS4 program and, if not, do the agencies intend to propose revisions to the 

rule to exempt MS4 permitted stormwater systems and associated facilities from the 

definition of WOTUS? If the agencies do intend storm/surface water management 

systems to fall under the scope of the rule, where do the federal agencies propose local 

governments construct treatment systems, particularly in a region such as South Florida 

where the population is wholly dependent on surface water management and flood 

control? (p. 2)

Agency Response: The Agencies did not intend change the size of the MS4 

program. The MS4 regulatory program is beyond the scope of this rule. To provide 

additional clarity, the final rule contains a new exclusion for stormwater control 

features. Please see Compendium 7, summary response at 7.4.4.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

483

12.744 A majority of wastewater utilities in Florida have implemented water reuse (recycling) as 

part of a broader statewide water policy to reduce the impacts on traditional water 

resources and to “expand” the water pie. Many of those utilities implement their water 

reuse programs through the construction of infrastructure that directly discharges 

reclaimed water into the existing permitted storm water management systems of golf 

courses or residential developments. The reclaimed water supplements the existing 

surface water that is then utilized for irrigation of the golf courses and common areas. 

The Florida Department of Environmental Protection regulates the reclaimed water 

network and the utilities are responsible for monitoring intermittent wet weather 

discharges from the onsite storm water management systems during wet weather events. 

The continued beneficial expansion of water reuse programs would be significantly 

curtailed were the receiving storm water management systems to be considered Waters of 

the United States. How do the agencies intend to revise the proposed rule to exempt 

water reuse projects? (p. 3)

Agency Response: The Agencies specifically excluded constructed detention and 

retention basins created in dry land that are used for wastewater recycling, 

including groundwater recharge basins and percolation ponds built for wastewater 

recycling. The new exclusion also covers water distributary structures that are built 

in dry land for water recycling. The Agencies have not considered these water 

distributary systems jurisdictional where they do not have surface connections back 

into, and contribute flow to, “waters of the United States.” The exclusion in 

paragraph (b)(7) codifies the long-standing agency practice that water reuse and 

recycling structures are important and beneficial in protecting the chemical, 

physical, and biological integrity of the nation’s water under CWA.

12.3.1 Green Infrastructure

Summary Response

Many commenters expressed concern that the proposed rule could mean that “green 

infrastructure” facilities would become jurisdictional waters and as a result would require a 404 

permit for maintenance activities. Use of “green infrastructure” for stormwater management is 

on the increase and is actively promoted by EPA. To provide additional clarity about whether 

stormwater control features such as bioretention basins, rain gardens and other green 

infrastructure are jurisdictional, the Agencies included in the final rule a new exclusion for 

stormwater control features built in dry land. Please see Compendium 7, summary response at 

7.4.4. 

Specific Comments

Allen Boone Humphries Robinson LLP (Doc. #19614)

12.745 (...) municipal utilities and water providers are interested in assisting EPA in pursuing 

“green’ infrastructure” options for stormwater control. However, the installation of such 

infrastructure, including artificially constructed wetlands, natural detention basins, and 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

484

pervious drainage ways or channels could prove problematic if such infrastructure was 

found to then be located within, or itself became, waters of the U. S. (p. 6-7)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

Skamania County Board of Commissioners (Doc. #2469)

12.746 Green infrastructure is often utilized as a stormwater management tool to lessen flooding 

and protect water quality. Green infrastructure is not explicitly exempt under the 

proposed rule. The proposed rule could inadvertently impact a number of these county 

maintained sites by requiring Section 404 permits for non-MS4 and MS4 green 

infrastructure construction projects. Additionally, it is unclear under the proposed rule 

whether a Section 404 permit will be required for maintenance activities on green 

infrastructure areas once the area is established. (p. 5)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

City of San Diego, Transportation & Storm Water Department (Doc. #7950.1)

12.747 If a swale or a non-jurisdictional ditch connects an upstream water body to a downstream 

WOTUS, the upstream water body can be considered an adjacent water to the WOTUS, 

thereby potentially discouraging the use of green infrastructure. (p. 2)

Agency Response: It is unclear how the facts presented would discourage green 

infrastructure or change existing policy Please see Compendium 7, summary 

response at 7.4.4.

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

12.748 It is unclear under the proposed rule whether a Section 404 permit will be required for 

maintenance activities on green infrastructure areas once the area is established. Green 

infrastructure development could be delayed due to the increased burden of permitting 

regulations which would also increase operational costs. This will limit the application of 

green infrastructure.

Recommendation: In the proposed rule, clearly distinguish between landscape features 

that are not waters or wetlands and those that are jurisdictional. (p. 2)

Agency Response: With respect to the jurisdictional status of stormwater control 

features as waters of the U.S., including green infrastructure, please see 

Compendium 7, summary response at 7.4.4.

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

12.749 Other infrastructure projects, including construction and maintenance activities 

associated with storm water management, could also be federally regulated. Local 

governments use green infrastructure – storm water detention ponds, bio-swales, 

vegetative buffers, and constructed wetlands – to address storm water runoff problems 

and protect water quality. (p. 5)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

City of Artesia (Doc. #13043.2)

12.750 Many communities, including ours, have already planned and constructed projects to 

replace concrete with green infrastructure. Green infrastructure is particularly helpful 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

485

within MS4s. Storm water detention ponds are now a common feature that replace grey 

infrastructure and storm flow channels are planted and hard-scaped to slow storm flows, 

allowing more water to percolate into the soil and reduce the velocity of storm flow. 

Detention ponds keep storm water on site, but they must be maintained to maximize their 

storage and percolation capacity. They often have overflow features to prevent them 

from flooding. These features could be characterized as wetlands, tributaries or wetlands 

swales, or ‘‘other waters” under the proposed rule. As such, the degree of regulation and 

the associated cost would increase from being an element of an M54 to being a “waters of 

the U.S.” Green infrastructure features that meet the definition of a tributary, wetland, or 

“other water” would become too costly to implement due to stringent water quality 

standards and costly and time-consuming Corps permitting. (p. 2)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

Carson Water Subconservancy District (Doc. #13573)

12.751 CWSD is currently working with the counties in the watershed to develop green 

infrastructure to address stormwater pollution concerns. It has been brought to our 

attention by some of our partners that the proposed rule could inadvertently impact a 

number of these county-maintained sites by requiring Section 404 permits for nonMunicipal Separate Storm Sewer Systems (MS4) green infrastructure construction 

projects. (p. 2)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

Waters of the United States Coalition (Doc. #14589)

12.752 [G]reen infrastructure including but not limited to constructed wetlands, swales and other 

low impact development BMPs could be classified as waters of the United States under a 

strict reading of the Proposed Rule. These BMPs are often intentionally built to mimic 

natural wetlands and either hold water on a perennial basis or provide typical wetland 

habitat and drain to downstream traditional navigable waters. If green infrastructure 

BMPs are classified as waters of the United States, cities (and private property owners) 

who construct and operate them will be required to obtain federal permits to maintain 

them. Discharges into the BMPs may also require an NPDES permit. This is an outcome 

that EPA has stated that it does not intend, but under a strict reading of the Proposed 

Rule, could occur. For that reason, the Proposed Rule needs to be revised. (p. 17)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

Harris County Flood Control District (Doc. #15049)

12.753 Green infrastructure, which includes existing regional stormwater treatment systems and

low-impact development stormwater treatment systems, is not explicitly exempt under 

the proposed rule. A number of local governments, as well as private developers, are 

using green infrastructure as a stormwater management tool to lessen flooding and 

protect water quality by using vegetation, soils and natural processes to hold and treat 

stormwater runoff. The proposed rule could inadvertently impact a number of these 

facilities by requiring Section 404 permits for green infrastructure construction projects 

that are jurisdictional under the new definitions in the proposed rule. Additionally, it is 

unclear under the proposed rule whether a Section 404 permit will be required for 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

486

maintenance activities on green infrastructure areas once the area is established. A 

specific exemption is needed for this type of facility. (p. 4)

Agency Response: Please see Compendium 7, summary response at 7.4.4

Sacramento County, California (Doc. #15518)

12.754 Green infrastructure is often utilized as a stormwater management tool to lessen flooding

and protect water quality. Green infrastructure is not explicitly exempt under the 

proposed rule. The proposed rule could inadvertently impact a number of these county 

maintained sites by requiring Section 404 permits for non-MS4 and MS4 green 

infrastructure construction projects. Additionally, it is unclear under the proposed rule 

whether a Section 404 permit will be required for maintenance activities on green 

infrastructure areas once the area is established. (p. 5)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

Navajo County Board of Supervisors (Doc. #19569)

12.755 Green infrastructure is often utilized as a storm water management tool to lessen flooding 

and protect water quality. Green infrastructure is not explicitly exempt under the 

proposed rule. The proposed rule could inadvertently impact a number of these countymaintained sites by requiring Section 404 permits for non-MS4 and MS4 green 

infrastructure construction projects. 

Additionally, it is unclear under the proposed rule whether a Section 404 permit will be 

required for maintenance activities on green infrastructure areas once the area is 

established. (p. 4)

Agency Response: Please see the response to the previous comment.

Washington State Water Resources Association (Doc. #16543)

12.756 Though EPA demands the use of BMPs to control stormwater flows, promotes the 

construction of stormwater retention/detention facilities, and encourages the use of 

“green infrastructure,” most such activities occur in locations where run-off naturally 

occurs, i.e., swales, depressions, normally dry arroyos or washes, ephemeral streambeds, 

etc. In order to construct, maintain, repair and replace such facilities, additional 

regulatory hurdles, and the attendant costs, will have to be overcome, as there is no 

stormwater control exemption. (p. 9)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

Iowa League of Cities (Doc. #18823)

12.757 Another area within storm-water systems that has raised concerns is the utilization of 

green infrastructure for the management of storm-water runoff. This includes projects 

that include permeable paving, dike systems, vegetation, soils and natural processes. 

Some cities within the Iowa have been lauded by the EPA for their usage of this type 

infrastructure to control storm-water and gaining additional benefits important to the EPA 

of nutrient reduction and flood mitigation. These cities now have to question whether 

these projects will need to meet WQS or if maintenance of the systems will require a 

Section 404 permitting process. Neither, the proposed rule language nor the preamble 

guidance address these systems for storm-water management. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

487

City Example: After the 2008 flooding, some cities in Iowa have been utilizing green 

infrastructure, such as newly constructed wetlands, to control flooding and act as a part of 

their storm water system. They are concerned that these efforts that have been praised 

could now be brought under further regulation.

Request for EPA Response: We request that the EPA specifically exclude green 

infrastructure and outline the Agency’s understanding of what is included within green 

infrastructure similar to what was done for agricultural practices under the joint 

interpretive rule with the Department of Agriculture. (p. 4-5)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

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

12.758 Municipal Water Utility – Municipal water utilities have to have section 404 and section 

402 permits and in some instances the use of these permits can implicate the need for a 

section 401 water quality certification from the state. Western municipal utilities and 

water providers are interested in assisting EPA in pursuing “green infrastructure” options 

for stormwater control. Stormwater flows remain one of the largest impediments to 

meeting water quality standards. However, the installation of such infrastructure, 

including artificially constructed wetlands, natural detention basins, and pervious 

drainage ways or channels, could prove problematic if such infrastructure was found to 

then be located within, or if itself became, “waters of the U.S.” (p. 17)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

Katy Area Economic Development Council, Inc. (Doc. #15182)

12.759 The new rule appears to expand the current reach of federal jurisdiction, potentially 

making large areas of the Katy Area and Houston MSA subject to land use restrictions 

and management, as imposed by federal agencies. The cities, counties and drainage 

districts, with authority over development in this region, have begun to embrace a wide 

variety of low impact and green infrastructure construction as the best method to 

accommodate drainage. Activities pertaining to land development often produce storm 

water releases from developed property that are better from a chemical and physical 

effect on the watershed than from a vacant or undeveloped property condition. CWA’s 

goals are to protect the chemical, physical, and biological integrity of the navigable 

waters. An overbroad assertion of the federal reach actually undermines the goals of the 

CWA and progress made in active water quality projects in the Houston region. (...) 

This will further discourage the move to develop green infrastructure construction and act 

as a drain on the economy of the Katy Area and Houston Region. (p. 1-2)

Agency Response: The agencies have included a new exclusion for stormwater 

control features built in dry land. Please see compendium 7, summary response at 

7.4.4.

American Society of Civil Engineers (Doc. #19572)

12.760 Potential Impacts of the Rule on Encouraging Green Infrastructure

Civil engineers build both traditional hard or “grey” infrastructure such as dams and 

levees, but also actively work to incorporate natural systems into designs. Often times, 

nature is the best engineer. For the reason, the Society supports the development of 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

488

“green infrastructure”. Many municipalities are now looking to manage stormwater with 

the use of bio-swales, artificial wetlands, low impact development stormwater treatment 

systems, green alleys and streets and rain gardens. Green infrastructure uses vegetation, 

soils and natural processes to manage water and create healthier urban environments. 

Often these systems are often designed to hold water as it permeates into the soil. There 

are significant concerns that this holding function could trigger jurisdiction under the 

proposed rule. It’s also unclear whether a §404 permit will be required for maintenance 

activities on green infrastructure projects. (p. 10)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

North Houston Assoc., West Houston Assoc., Woodlands Development Co. (Doc. #12259) 

12.761 Certainly, throughout the Houston region this would be the result of the proposed rule. 

This must not be ignored, the steps – even for the simplest Nationwide Permit – are 

numerous, and the total time required must be counted in months in the best cases. Much 

of the drainage system is the responsibility of the public entities that must operate 

efficiently on the public resources. The continuing move to natural floodplains, with 

created tributaries utilizing techniques such as bio filter and bioswales, would then create 

– under the proposed rule – “navigable waters” for all future purposes, including 

maintenance or modifications. As a result of this proposed jurisdiction expansion, the 

green initiatives will come to a screeching halt. This is inherent given the realistic 

resources available to local governments. (p. 2)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

North American Meat Association (Doc. #13071)

12.762 The proposed rule may also reach green infrastructure. EPA has pushed permittees to 

develop and implement green infrastructure in recent years.164 Because green 

infrastructure is not exempt under the proposed rule, a section 404 permit, and other 

monitoring and regulatory requirements, could now be required for green infrastructure 

construction and maintenance where the green infrastructure is developed in areas 

considered to be “waters of the U.S.” under the proposed rule. The potential for 

additional regulation will discourage the development of green infrastructure. (p. 13)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

Airports Council International – North America (Doc. #16370)

12.763 In an effort to further understand the jurisdictional reach and related impacts of the 

Proposed Rule the following questions need to be answered:

 Could agencies interpret the rule to mean Green Infrastructure Best Management 

Practices (BMPs) (vegetated swales, amended filter strips, etc.) are WOTUS? How 

would this affect ongoing maintenance of these installations? Specifically, the

Proposed Rule describes physical, chemical, and biological integrity as part of 

 

164 See, e.g., EPA, Greening CSO Plans: Planning and Modeling Green Infrastructure for Combined Sewer Overflow 

Control (March 2014). 
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determining a significant nexus. Could a green roof on a building be considered 

WOTUS, as it could qualify as a wetland? (p. 6)

 With the Proposed Rule’s expanded status of WOTUS upstream of National Pollution 

Discharge Elimination System (NPDES)-regulated points of discharge, is there a 

regulatory conflict created with NPDES/MS-4 regulations in Section 402? (p. 6)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

Louisville and Jefferson County Metropolitan Sewer District (Doc. #15413)

12.764 Under the terms of MSD’s Consent Decree, in order to minimize the occurrence of 

CSO’s and to improve the overall water quality, MSD has been implementing, 

subsidizing and requiring the use green infrastructure with the use of bioswales, lowimpact development stormwater treatment systems, green alleys, streets, and rain 

gardens. Green infrastructure uses vegetation, soils and natural processes to manage and 

slow the flow of stormwater into the collection system by holding water. MSD is 

concerned that this holding function could trigger jurisdiction under the proposed rule. 

Accordingly, MSD requests clarification. (p. 3) 

Agency Response: Please see Compendium 7, summary response at 7.4.4.

Lake County Stormwater Management Commission (Doc. #16893)

12.765 There is much uncertainty on the effects the proposed definition change would have on 

county governments, given the definition would apply to all CWA programs (e.g., 

National Pollutant Discharge Elimination System; Water Quality Standards; stormwater, 

green infrastructure, pesticide permits, and TMDL standards, etc.), not just the 404 

program. These programs could potentially subject Lake County to increasingly complex 

and costly federal regulatory requirements under the proposed rule, particularly with 

respect to the County’s stormwater management program and green infrastructure 

(including best management practices, or BMPs). (p. 1)

Agency Response: Please see Compendium 7, summary response at 7.4.4.

12.4. 404 – DREDGED AND FILL MATERIAL

Summary Response

The final rule does not establish any regulatory requirements, and questions about 

implementation of the Section 404 program are beyond the scope of the rulemaking. Instead, the 

final rule is a definitional rule that clarifies the scope of “waters of the United States” consistent 

with the Clean Water Act (CWA), Supreme Court precedent, and science. Programs established 

by the CWA, including the section 404 permit program for discharge of dredged or fill material, 

all rely on the definition of “waters of the United States.” Entities that currently are regulated 

under these CWA programs that protect “waters of the United States” will continue to be. 

Because the scope of regulatory jurisdiction in the final rule is narrower than under the existing 

regulation, the rule does not expand the number of dischargers who need Section 404 permits. 

The rule does not change requirements in existing Section 404 permits, and does not change 
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490

requirements for future Section 404 permits. The rule does not change the Clean Water Act’s 

definition of “point source” or “discharge of a pollutant” and does not establish new categories 

of point sources or discharges. The rule was not changed to address comments to this effect. As 

is current law and practice, entities discharging certain pollutants into waters of the United States 

must obtain and comply with a section 404 permit, including implementing of any requirements 

identified in the permit. 

Specific Comments

Rural County Representatives of California (Doc. #5537)

12.766 The expansion of the definition of Waters of the U.S., as drafted, will also force counties 

to seek Section 404 permits for the now-routine maintenance of such “waterways” as 

roadside ditches and storm water drains. Public infrastructure ditch systems can stretch 

for hundreds of miles across local jurisdictions, and it is unclear how these systems will 

be classified under the rule. This is particularly onerous for rural counties, as many are 

already struggling with tough budgeting decisions in the face of diminishing funding 

from the state and decreased public appetite for approving new taxes to cover such costs. 

It also could dramatically interfere with the ability of counties to properly maintain 

roadways to keep them safe and accessible to rural residents, particularly since the U.S. 

Army Corps of Engineers is already significantly backlogged in evaluating and 

processing of 404 permits. (p. 3)

Agency Response: The rule reduces existing confusion and inconsistency 

regarding the regulation of ditches by explicitly excluding certain categories of 

ditches, thereby appropriately reducing regulatory burdens. In the final rule EPA 

and the Corps have maintained exclusions for ditch maintenance and other 

currently excluded activities and also added exclusions for some waters that were 

identified in public comments as possibly being found jurisdictional under proposed 

rule language where this was never the agencies’ intent. This includes stormwater 

control features created in dry land. These exclusions reflect current agencies’ 

practice, and their inclusion in the rule as specifically excluded furthers the 

agencies’ goal of providing greater clarity over what waters are and are not 

protected under the CWA.

Arizona Department of Transportation (Doc. #15215)

12.767 (...) [W]ithout clarification of the upper extent of a tributary, if more small drainages are 

considered jurisdictional or “potentially jurisdictional” per the Corps’ current preliminary 

jurisdictional determination process, this could increase permitting costs, compliance 

costs and risk, and could influence the regulation of ditches that would become 

jurisdictional due to the direct or indirect connection of flow to a jurisdictional water. 

ADOT also requests that the EPA and Corps provide some insight regarding the 

procedure by which the rule would be implemented and jurisdictional determinations be 

made. Will the current Preliminary and Approved Jurisdictional Determinations 

approach continue with the proposed new definition? (p. 2)

Agency Response: Previous definitions of “waters of the United States” regulated 

all tributaries without qualification. This final rule more precisely defines 

“tributaries” as waters that are characterized by the presence of physical indicators 
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491

of flow – bed and banks and ordinary high water mark – and concludes that such 

tributaries are “waters of the United States.” The physical indicators of bed and 

banks and ordinary high water mark demonstrate that there is sufficient volume, 

frequency and flow in such tributaries to a traditional navigable water, interstate 

water, or the territorial seas to establish a significant nexus. “Tributaries” as 

defined are jurisdictional by rule. 

12.768 From this, stems compliance with Clean Water Act Section 402 stormwater regulations. 

Specifically, for ADOT, a large increase in labor and costs would occur in order to 

implement and comply with the requirements of the MS4 permit (e.g., outfall mapping 

requirements). ADOT supports the general concept of clearly identifying a point of 

definition where MS4 infrastructure stops and where stormwater management features 

begin and end. It is important that the EPA and Corps clarify what is a MS4 and what are 

Waters (i.e., uphold that a MS4 are not Waters). (p. 2-3)

Agency Response: The rule does not change current mapping requirements for 

MS4s as described in their NPDES permits. With respect to the jurisdictional status 

of stormwater control features as waters of the U.S., please see Compendium 7, 

summary response at 7.4.4.

Skamania County Board of Commissioners (Doc. #2469)

12.769 In recent years, Section 404 permits have been required for ditch maintenance activities 

such as cleaning out vegetation and debris. While, in theory, a maintenance exemption 

for ditches exists, it is difficult for local governments to use the exemption. The federal 

jurisdictional process is not well understood and the determination process can be 

extremely cumbersome, time-consuming and expensive, leaving counties vulnerable to 

lawsuits if the federal permit process is not streamlined. (p.4)

Agency Response: The final rule has been crafted to reduce existing confusion 

and inconsistency regarding the regulation of ditches by explicitly excluding certain 

categories of ditches, such as ditches that flow only after precipitation and most 

roadside ditches. It does not alter those activities identified as exempt from 

regulation under CWA section 404(f)(1) including ditch maintenance. This rule 

appropriately reduces regulatory burdens while minimizing costs for states, tribes, 

counties and municipalities charged with maintaining the nation’s roads.

Lincoln County Conservation District, State of Washington (Doc. #4236)

12.770 Redefining Crab Creek and its tributaries as “Waters of the United States” in the current 

proposal automatically involves and reinforces the role of the Army Corps of Engineers 

for any work done in and along these streams, and this adds additional 404 permits to the 

permitting workload. (p. 5)

Agency Response: Previous definitions of “waters of the United States” regulated 

all tributaries without qualification. This final rule more precisely defines 

“tributaries” as waters that are characterized by the presence of physical indicators 

of flow – bed and banks and ordinary high water mark – and concludes that such 

tributaries are “waters of the United States.” The great majority of tributaries as 

defined by the rule are headwater streams that play an important role in the 

transport of water, sediments, organic matter, nutrients, and organisms to 
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492

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

water mark demonstrate that there is sufficient volume, frequency and flow in such 

tributaries to a traditional navigable water, interstate water, or the territorial seas 

to establish a significant nexus. “Tributaries” as defined are jurisdictional by rule. 

The rule covers, as tributaries, only those features that science tells us function as a 

tributary and that meet the significant nexus test articulated by Justice Kennedy. 

Features not meeting this legal and scientific test are not jurisdictional under this 

rule. 

Murray County (Minnesota) Board of Commissioners (Doc. #7528)

12.771 For example, under Section 404(e) of the Act, the Army Corps may issue general permits 

to authorize activities that have a minimal individual and cumulative adverse 

environmental effect on the integrity of navigable waters. One such permit, Nation Wide 

Permit 39, authorizes filling of one-half acre of wetlands for residential, commercial, or 

institutional development purposes. Unfortunately, Nation Wide Permits can be 

eliminated within any Army Corps District by the adoption of Regional General Permits 

– which can be more restrictive than Nation Wide Permits based on the unique nature of 

waters within the District. The current threshold to authorize District level regulation is 

extremely low. We encourage and support heightened scrutiny on the regulatory 

procedure that permits Anny Corps Districts to depart from the Nation Wide Permitting 

rules. (p. 3)

Agency Response: As you point out, even where waters are covered by the CWA, 

the agencies have adopted many streamlined regulatory requirements to simplify 

and expedite compliance through the use of measures such as general permits 

developed at the national, regional or state level. This final rule does not affect

existing general permits or the development of future general permits consistent 

with CWA section 404(e). The agencies will continue to utilize general permits and 

other simplified procedures, particularly as they affect crossings of ephemeral and 

intermittent tributaries to ensure that projects that offer significant social benefits, 

such as renewable energy development, can proceed with the necessary 

environmental safeguards while minimizing permitting delays.

Dayton Valley Conservation District (Doc. #10198)

12.772 Furthermore, we have concerns that Section 404, the “dredge and fill” permit program, 

could cause other enforcement issues involving activities such as weed control, fertilizer 

applications, and construction of fences or ditches. This additional oversight will provide 

very minimal benefits to the overall water quality in the Carson River watershed, while 

enforcement would most likely increase expenses for producers as well as resource 

Managers. (p. 2)

Agency Response: The final rule focuses on identifying waters that are clearly 

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

to understand, consistent, and environmentally more protective. It is important to 

note that the final rule does not alter the definition of “discharge of dredged 

material,” “discharge of “fill material,” or types of activities requiring CWA section 

404 permits. 
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493

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

12.773 With the proposed definition’s emphasis upon the significant nexus of a water, including 

wetlands, either alone or in combination with other similarly situated waters in the region 

(i.e., the watershed that drains to the nearest jurisdictional water), it is anticipated that the 

404 permitting program will expand and this has been confirmed by the U.S. Army Corps 

of Engineers Economic Analysis, p. 29. Assessment of whether such “other waters” and 

any related discharges would significantly affect the chemical, physical, or biological 

integrity of a jurisdictional water is required under the new proposed definition.

 Eastern Kansas. Under the current regulations (bed to bank) a typical operator does 

not need to obtain a permit from the Army Corps of Engineers when building an 

access road to the new drill site when the road crosses a stream if the disturbance is

less than one-tenth of an acre per crossing. The roads have historically been built 

following “best management practices”. The changes proposed by the agencies to 

Section 404 of the Clean Water Act could significantly impact oil and gas operations 

in these areas. Broadening the regulations to include “waters located within the 

riparian area” and “all adjacent waters in a watershed (with) significant nexus with 

their traditional navigable water” potentially expands WOTUS jurisdiction beyond 

the “high water” mark to include the drainage area of a tributary – from ridge top to 

ridge top on either side of a stream. Even if the definition of Riparian Area is 

physically limited, the definition of “Other Waters” is so vague, that “case specific”

analysis of ephemeral streams could consider the entire watershed to be “nexus” to a 

navigable river, or the entire upland around a wetland to be “nexus”, and, therefore, 

require permits. The result of these changes likely mean every stream crossing and 

well pad will require a nationwide permit, and, possibly, an individual permit. The 

costs associated with these potential new permitting requirements will be significant. 

These would likely result in extended permitting timelines and could render many 

projects uneconomical.

 Central Kansas. Upon assessment of the Mississippian Lime in south central Kansas 

there is an approximate five-fold increase in infrastructure intersections with streams 

when transitioning from the National Hydrography Dataset (more representative of 

maps used currently by the Corps) to the lidar (high-resolution) map where a 

synthetic streams network was generated that includes many ephemeral streams that 

aren’t delineated in the NHD dataset. If all ephemeral streams are considered 

tributaries, then the result would be a five-fold increase in the number of 

jurisdictional waters to consider. Based upon current law and interpretation, using the 

National Hydrology Dataset - Pipelines intersected mapped streams (NHD dataset) at 

418 locations and were subject to nationwide permits. Using the High Resolution 

Mapping, pipelines intersected lidar (high-resolution mapping data inclusive of all the 

ephemeral streams not often depicted on existing USGS quadrangles and which 

would all likely become WOTUS under the proposed rule) at 2,043 locations (fivefold increase compared to the intersections assessed from using NHD).

o Summary: Using the lidar data that includes again the ephemeral streams, a 

significant emphasis on understanding of EPA’s implementation of OHWM, bed 

and bank, or presence of a 100-year floodplain is essential to determine whether 

the operations would have an impact on WOTUS. From an industry viewpoint of 
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494

assessing impacts, it is very difficult to read the agencies’ proposal and determine 

the extent of the “floodplain”, “OHWM”, “bed and bank” where there is little if 

any definition of that in the rule. For example, on the floodplain issue, the words 

of “inundated during periods of moderate to high flows” could mean 100-year and 

500-year frequency and mapping. But if it said “frequency” that might entail 

maybe a 2-year or such floodplain. On page 62 of the rule, EPA says “when 

determining whether a water is located in a floodplain, the agencies will use best 

professional judgment to determine the flood interval to use (for example, 10 to 

20 year flood interval zone)”. (p. 4-5)

Agency Response: In response to requests from commenters and to provide 

greater clarity and consistency, in the final rule the agencies establish a definition of 

neighboring which provides additional specificity, including establishing a 

floodplain interval and providing specific distance limits from traditional navigable 

waters, interstate waters, the territorial seas, impoundments, and tributaries. As 

recommended by the public and based on science, the defining limits for 

“neighboring” are primarily based on the reliance of a 100-year floodplain. The 

agencies concluded that the use of the riparian area was unnecessarily complicated 

and that as a general matter, waters in the riparian area will also be in the 100-year 

floodplain. Further, should the riparian area on occasion extend beyond the 100-

year floodplain, the agencies have the ability to perform a case-specific significant 

nexus analysis on a water out 4,000 feet from the ordinary high water mark or high 

tide line of a traditional navigable water, interstate water, the territorial sea, 

impoundment, or tributary. The agencies have drawn these lines based on their 

technical expertise and experience in order to provide a rule that is practical to 

understand and implement and protects those waters that significantly affect the 

chemical, physical, or biological integrity of traditional navigable waters, interstate 

waters or the territorial seas. Because science indicates that connectivity is on a 

gradient, the agencies have also identified limited circumstances in which waters 

that do not meet the definition of “neighboring” may be determined on a casespecific basis to have a significant nexus. 

CONSOL Energy, Inc. (Doc. #14614)

12.774 CONSOL is concerned with activities that would fall under Section 404 permitting 

requirements. Section 404 permitting is a lengthy and involved process that requires 

Section 401 state water quality certification. If on-site mining water management 

features are included in the definition of “waters of the US” it will further complicate the 

permitting process, increase costs, and impede maintenance of these features; while 

providing little to no environmental protection. (p. 3)

Agency Response: The final rule reflects input from many commenters urging 

EPA and the Corps to improve upon the April 2014 proposal to help in minimizing 

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

predictability and consistency for regulated entities. Specifically, the final rule 

includes a new exclusion for stormwater control features constructed to convey, 

treat, or store stormwater that are created in dry land. This exclusion responds to 

numerous stakeholders’ concerns that the proposed rule would adversely affect 

their ability to operate and maintain their stormwater systems, and also to address 
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495

confusion about the state of practice regarding jurisdiction of these features at the 

time the rule was proposed. Please see Compendium 7, summary response at 7.4.4.

12.775 CONSOL supports the efforts of the EPA to protect “waters of the US” from damage, but 

does not believe this proposal serves its intended purpose. In addition to considerable 

permitting delays, these changes would lead to additional costs for mitigation and 

delineation efforts, and severely limit our ability to avoid currently regulated 

jurisdictional waters, while extending waters of the US coverage into areas that have no 

significant hydrologic connection to jurisdictional waters. Additionally, CONSOL feels 

the proposed change is unwarranted due to existing federal regulations being sufficient.

(p. 4)

Agency Response: Members of Congress, developers, farmers, state and local 

governments, energy companies, and many others requested new regulations to 

make the process of identifying waters protected under the CWA clearer, simpler, 

and faster. Chief Justice Roberts’ concurrence in Rapanos underscores the value of 

this rulemaking effort. 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. 

Association County Commissioners of Georgia (Doc. #5912)

12.776 Once a ditch is under federal jurisdiction, the Section 404 permit process can be 

extremely cumbersome, time-consuming and expensive, leaving counties vulnerable to 

citizen lawsuits if the federal permit process is not significantly streamlined. 

Furthermore, the Corps does not have the resources to handle what will likely be a greatly 

expanded permitting program. This is a recipe for bureaucratic morass and a 

dysfunctional permitting process. (p. 1)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. That being said, the final rule does not affect the existing permitting 

process or streamlined regulatory tools that are available to simplify and expedite 

compliance such as general permits developed at the national, regional or state level, 

consistent with CWA section 404(e).

Nebraska Cattlemen (Doc. #13018)

12.777 Any change to the interpretation of “waters of the United States” should focus only on 

§404 where many problems currently exist. The other sections of the Act are largely 

administered by the states and no business case has been made for a need to change this 

area of the Act. In addition, without any limit to federal jurisdiction under the proposed 

rule EPA has also illegally usurped the federalism principles laid out in the CWA and 

should withdraw the proposed rule and re-propose a rule that takes in to account states’

rights. (p. 16)

Agency Response: As you point out, there are a number of CWA programs that 

utilize the definition of “waters of the United States.” States and tribes may be 
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496

authorized by the EPA to administer the permitting programs of CWA sections 402 

and 404. Additional CWA programs that are of importance to states and tribes 

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

standards and total maximum daily load (TMDL) programs under section 303, and 

the section 401 state water quality certification process. States and tribes, consistent 

with the CWA, retain full authority to implement their own programs to more 

broadly and more fully protect the waters in their jurisdiction. Nothing in this rule 

limits or impedes any existing or future state or tribal efforts to further protect their 

waters. In fact, providing greater clarity regarding what waters are subject to CWA 

jurisdiction will reduce the need for permitting authorities, including the states and 

tribes with authorized section 402 and 404 CWA permitting programs, to make 

jurisdictional determinations on a case-specific basis.

County Engineers Association of Ohio (Doc. #1997)

12.778 The primary concerns of definition changes are those of a cumbersome review process 

that further slows down our ability to construct infrastructure improvements and 

potentially impede maintenance of ditches that affect roadway safety and welfare of 

adjoining property owners. The system is already backlogged with various construction / 

water quality permits. Once these drainage facilities are deemed jurisdictional, we would 

expect more time-consuming and expensive requirements to ensue. (p. 1)

Agency Response: The rule reduces existing confusion and inconsistency 

regarding the regulation of ditches by explicitly excluding certain categories of 

ditches, thereby appropriately reducing regulatory burdens. In the final rule EPA 

and the Corps have also added exclusions for some waters that were identified in 

public comments as possibly being found jurisdictional under proposed rule 

language where this was never the agencies’ intent. This includes stormwater 

control features created in dry land. Please see Compendium 7, summary response 

at 7.4.4. These exclusions reflect current agencies’ practice, and their inclusion in 

the rule as specifically excluded furthers the agencies’ goal of providing greater 

clarity over what waters are and are not protected under the CWA.

Minnesota County Engineers Association (Doc. #6996.2)

12.779 We are very concerned with the proposed new rules defining WOUS and the efficiency 

of the Section 404 Clean Water Act permit process. The proposed rules at 88 pages as 

published in the Federal Register are so complex and confusing; we are concerned our 

County members, especially in smaller and mid-size Counties without environmental 

resource specialists, will be able to identify which waters require permits and which do 

not. We are concerned the regulators will also have difficulty with this question. The 

ambiguity will result in additional costs and delays as we attempt to make this 

determination. It will also inevitably result in inadvertent violations and court challenges. 

We very much need a clear, concise, unambiguous and workable definition. 

The current permit process for local transportation projects requiring LOP or individual 

permits can be very slow. We understand the Corps is working very hard to process the 

permits in a timely manner, but because of a complex process including Section 106 

historic review, USFWS endangered species review, written environmental documents, 

compounded by sequestration staff cuts, we see permit delays of months and even years 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

497

in isolated cases. This is extremely costly in terms of project costs, delays and continued 

risk to public safety. 

We suggest the Corps develop a general permit for local transportation projects with an 

accelerated review schedule. In addition, the Corps needs sufficient staff to process 

permits in a timely manner. Thank you for the opportunity to review and comment. If 

you have any questions or would like to discuss, please contact us. We want to assist in 

developing a Federal permit process which protects all the Waters of the United States. 

However, it needs to be a clear, unambiguous and efficient process to avoid unacceptable 

costs to public health, safety and welfare related to extensive delays in moving projects 

forward. (p. 1-2)

Agency Response: Please see summary response 12.4. The final rule reflects 

comments received from stakeholders during the agencies’ extensive public 

outreach efforts urging us to improve upon the April 2014 proposal. Specifically, the 

final rule provides more bright lines and simplifies definitions that identify waters 

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

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

and consistency for landowners and regulated entities. However, the final rule does 

not affect requirements relating to other statutes such as the National Historic 

Preservation Act or Endangered Species Act. This final rule also does not affect

existing general permits or the development of future general permits consistent 

with CWA section 404(e). 

Division of Transportation, Kane County, Illinois (Doc. #9831) 

12.780 We are concerned that more county-owned ditches would likely fall under federal 

oversight. The federal jurisdictional process is not well understood and the determination 

process can be extremely cumbersome, time consuming and expensive, leaving counties 

vulnerable to lawsuits if the federal permit process is not streamlined. Previously, ditches 

were never considered to be jurisdictional by the Corps. Whether or not a ditch is 

regulated under Section 404 has significant financial implications for our organization. 

Additionally, the Corps, which oversees the 404 permit program, is already severely 

backlogged in evaluating and processing permits. (p. 1)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations. The rule 

reduces existing confusion and inconsistency regarding the regulation of ditches by 

explicitly excluding certain categories of ditches, thereby appropriately reducing 

regulatory burdens. These exclusions reflect current agencies’ practice, and their 

inclusion in the rule as specifically excluded furthers the agencies’ goal of providing 

greater clarity over what waters are and are not protected under the CWA.

NW Colorado Council of Governments Water Quality/ Quantity Committee (Doc. #10187)

12.781 The proposed rule does create some confusion over how the current assessments for 

Nationwide Permits (NWPs) for some dredge and fill activities may change with the new 

definition of “adjacent.” Currently, NWPs are available for the dredging and filling of 

material if the activity does not impact more than 300 linear feet of the streambed. As 
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498

discussed above in comment b. 3. NWPs are essential to local government functions. As 

proposed, the definition of “adjacent” waters would include riparian areas and 

floodplains, which creates ambiguity as to how agencies will calculate whether 300 linear 

feet is calculated. QQ recommends clarifying that current practice of assessing 300 feet 

of the streambed, not waters in the neighboring riparian area or floodplain, remains in 

place. (p. 5)

Agency Response: As you point out, even where waters are covered by the CWA, 

the agencies have adopted many streamlined regulatory requirements to simplify 

and expedite compliance through the use of measures such as nationwide general 

permits (NWP). This final rule does not affect the terms and conditions of existing 

NWPs, environmental thresholds established in current NWPs or definitions 

(including the definition of “stream bed”) used in the implementation of the NWP 

program. See also summary response 12.4.

Professional Landcare Network (Doc. #11831)

12.782 Under the proposed rule, Clean Water Act Section 404 (wetlands dredge and fill) permits 

could be required to install trees, plants, and other landscape features on private property 

that includes Waters of the United States or is deemed to be in a floodplain. The 

installation of turf, trees, and plants protects water quality and provides other 

environmental benefits. The EPA and the Corps should encourage these activities, rather 

than subject them to permits. (p. 2)

Agency Response: The agencies have been, and will continue to be supportive of

vegetative planting activities for purposes of water quality improvement and other 

benefits. The final rule does not alter the definition of “discharge of dredged 

material,” “discharge of “fill material,” or types of activities requiring CWA section 

404 permits. To the extent that the commenter is referring to stormwater 

management practices that may resemble landscape features, please see 

Compendium 7, summary response at 7.4.4.

United States Congress, Kildee et al. (Doc. #6846)

12.783 As you prepare to finalize the rule Docket ID No. EPA-HQ-OW-2011-0880, regarding 

the definition of “waters of the U.S.” in the Clean Water Act, we encourage you to work 

with the state of Michigan as it continues the process to maintain its delegated authority 

in accordance with Sec. 404(g) of the CWA to operate its Sec. 404 permitting program 

for dredged and fill material that is currently run by the Michigan Department of 

Environmental Quality. (p. 1)

Agency Response: It is important to note that the final rule does not affect the 

scope of waters subject to assumption under CWA section 404(g). That being said, 

EPA and the Corps will continue to work closely with the Michigan Department of 

Environmental Quality as the State carries out its CWA responsibilities. 
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499

12.4.1 Transition Process for Final Rule

Specific Comments

State of Oregon (Doc. #15218)

12.784 (...) [W]e recommend that the agencies add provisions to the final rule to clarify whether 

and, if so, to what extent the rule is intended to apply to actions that have already 

occurred. This includes its application to existing and pending permits and jurisdictional 

determinations. (p. 2)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits. The final rule does not change how jurisdictional issues are dealt with in 

other CWA programs. The final rule does not change existing permits or other 

actions taken to implement the CWA. Existing permits will remain effective for the 

life of that permit unless the permit is withdrawn. Since pending permits are based 

on the approved JD that accompanies the permit application, those determinations 

will not change unless the applicant asks.

State of Oregon (Doc. #15218)

12.785 With regard to the administration of the proposed rule, we recommend that the rule 

contain a specific timeframe for the agencies to make their “waters of the United States”

jurisdictional call. This timeframe should apply whenever a permit application is 

submitted to the Corps, and anytime a jurisdictional call is otherwise needed or requested. 

(p. 2)

Agency Response: The rulemaking does not change the existing regulatory 

process including timelines.

Association of State Drinking Water Administrators (Doc. #15530)

12.786 Implementation Guidance: Finally, we recommend that EPA and the Corps develop all 

needed implementation guidance associated with a final rule in a timely manner. States 

believe that, even with the clarity provided by a final rule, there will be many sitespecific challenges in its implementation borne of regional differences and case-specific 

scenarios. ASDWA recommends that EPA and the Corps work with states in the 

development of such guidance and publish any such regional implementation guidance 

for this rule shortly after final rule issuance. Timely issuance of implementation 

guidance will, we believe, enhance the ability of states to work with EPA and the Corps 

to successfully implement this rule. (p. 2)

Agency Response: State, tribal and local governments have well-defined and 

longstanding working relationships with the Corps and EPA in implementing Clean 

Water Act programs. The final rule reflects the current state of the best available 

science and is guided by the need for clearer, more consistent and easily 

implementable standards to govern administration of the Act. The agencies will 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

500

continue a transparent review of the science and learn from ongoing experience and 

expertise as the rule is implemented. The agencies plan to work with our regulatory 

partners on timely development of necessary training and guidance, as appropriate, 

to build upon existing working relationships and to ensure successful 

implementation of this rule. 

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

12.787 There should be heightened concern that regional Corps offices “sometimes” require 

Section 404 permits for maintenance activities on public safety infrastructure 

conveyances. While a maintenance exemption for some channels exists on paper, in 

practice it is based on the “best professional judgment” of each individual reviewing the 

applications. 

Recommendation: Supply a standard operating procedure so inconsistencies are not 

presented by a subjective “best professional judgment” that can vary with each 

individual. (p. 2)

Agency Response: The final rule has been crafted to reduce existing confusion 

and inconsistency regarding the regulation of ditches by explicitly excluding certain 

categories of ditches, such as ditches that flow only after precipitation and most 

roadside ditches. It does not alter those activities identified as exempt from 

regulation under CWA section 404(f)(1), including maintenance activities. This rule 

appropriately reduces regulatory burdens while minimizing costs for states, tribes, 

counties and municipalities charged with maintaining the nation’s roads.

Maricopa County Board of Supervisors (Doc. #14132)

12.788 Countless projects around the United States have formal and informal Jurisdictional 

Determinations (JD) by the COE on which the private and public developers rely. The 

rule must specifically express in rule language and in the Preamble that the rule will not 

overturn or modify such determinations. From our review, the rule does not explain how 

existing WUS delineations will be treated when the new rule becomes final (i.e. ongoing 

projects or expiring 5-year permits). Further and in order to bring certainty to those who 

hold determinations, the rule should expressly state that developers have a refreshed 5-

year period to commence construction on their project based on the JD they are holding 

when the rule becomes final. These transition provisions will bring certainty to those 

who hold JDs. This certainty for JDs is even more important after recent changes to 

EPA’s public position on JDs. As late as July 2, 2014, EPA’s “Questions and Answers 

About Waters of the US” recounted on the EPA webpage that, “the proposed rule does 

NOT mean that previous decisions about jurisdiction have to be revisited.” (Copy 

Enclosed as it is no longer on-line.) However, that same document is now on the EPA 

webpage entitled, “Facts About the Waters of the U.S. Proposal,” and that definitive 

language protecting previous JDs has been removed.165. It appears that EPA now 

believes that JDs must be revisited when the rule is passed. The rule must be amended to 

state that the rule does not overturn or modify these determinations. (p. 3)

 

165 http://www2.epa.gov/sites/production/files/2014-09/documents/facts_about_wotus.pdf (page 4) (last visited on 

October 2, 2014)
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Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits.

Lee County, Florida (Doc. #15241)

12.789 Under existing rules and case law, a waterbody is considered a water of the U.S. if it is a 

wetland adjacent to a water of the U.S. In contrast, under the proposed rule, all water 

bodies adjacent to a water of the U.S. could be considered themselves waters of the U.S., 

regardless of type and whether any sort of nexus or hydraulic connection has been shown 

and without any consideration of whether a berm or levee separates them. While the 

agencies have been adamant that the proposed rule does not “protect any new types of 

waters that have not historically been covered”, the language of the proposed rule can 

clearly be read to expand the agencies’ jurisdiction. Therefore, it is unclear how waters 

that were previously found to be non-jurisdictional, but that are re-evaluated and found to 

be jurisdictional, would be addressed. The agencies should address this retroactivity 

problem by including a “grandfather” provision in the proposed rule. (p. 2)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations. Consistent 

with existing Corps regulations and guidance, all approved jurisdictional 

determinations completed and/or verified by the Corps must be in writing and 

generally will remain valid for a period of five years. The preamble addresses the 

status of final JDs and permits as well as pending JDs and permits.

Snowmass Water and Sanitation District (Doc. #16529)

12.790 Effect on Previously Issued Jurisdictional Determinations. The proposed rule does not 

address the effect of the proposed changes on previously issued jurisdictional 

determinations (JDs) confirming non-jurisdiction. The rule should make clear that the 

new criteria will not apply to any JDs (preliminary or approved) issued prior to 

finalization of the rule. It should also clarify that activities already constructed in areas 

that are subsequently defined as jurisdictional are “grandfathered” and will not require 

after-the-fact or other permitting. (p. 9)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits. 

Western Urban Water Coalition (Doc. #15178)

12.791 The Proposed Rule does not indicate whether it applies to approved jurisdictional 

determinations under existing rules and agency guidance. The Final Rule should 

grandfather existing jurisdictional determinations and state that the new regulation 

applies only to permit applications received after the effective date of the Proposed Rule. 
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502

There is a strong reliance interest in the water industry on existing determinations that 

should not be upset by the Final Rule. (p. 8)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits. 

Association of State Drinking Water Administrators (Doc. #15530)

12.792 ...we recommend that EPA and the Corps develop all needed implementation guidance 

associated with a final rule in a timely manner. States believe that, even with the clarity 

provided by a final rule, there will be many site-specific challenges in its implementation 

borne of regional differences and case-specific scenarios. ASDWA recommends that 

EPA and the Corps work with states in the development of such guidance and publish 

any such regional implementation guidance for this rule shortly after final rule issuance. 

Timely issuance of implementation guidance will, we believe, enhance the ability of 

states to work with EPA and the Corps to successfully implement this rule. (p. 2)

Agency Response: State, tribal and local governments have well-defined and 

longstanding working relationships with the Corps and EPA in implementing Clean 

Water Act programs. The final rule reflects the current state of the best available 

science and is guided by the need for clearer, more consistent and easily 

implementable standards to govern administration of the Act. The agencies will 

continue a transparent review of the science and learn from ongoing experience and 

expertise as the rule is implemented. The agencies plan to work with our regulatory 

partners on timely development of necessary training and guidance, as appropriate, 

to build upon existing working relationships and to ensure successful 

implementation of this rule. 

Minnesota Chamber of Commerce (Doc. #16473)

12.793 Grandfathering Issues Need to Be Addressed. The Proposed Rule needs to address its 

effect upon existing or pending jurisdictional determinations (JDs). Minnesota has 

numerous JDs and CWA permit applications pending. The agencies should clarify that 

previously issued JDs and CWA permits, as well as pending JDs and CWA permits, will 

not be reopened or changed based upon the new rule. (p. 2)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits. The final rule does not change how jurisdictional issues are dealt with in 

other CWA programs. The final rule does not change existing permits or other 

actions taken to implement the CWA.

Water Advocacy Coalition (Doc. #17921.1)

12.794 The proposed rule does not address grandfathering issues or how the rule’s changes 

would affect existing or pending JDs. We recommend that the agencies clarify that 
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503

previously issued JDs and CWA permits, as well as pending JDs and CWA permits, will 

not be reopened or changed based on the new rule. 

A federal agency may not enact a regulation with a retroactive effect unless Congress 

conveys that authority in express terms.166 Some courts have held that an administrative 

rule is retroactive if it “takes away or impairs vested rights acquired under existing law, 

or creates a new obligation, imposes a new duty, or attaches a new disability in respect to 

transactions or considerations already past.”

167

 The proposed rule would adopt new 

standards for defining jurisdiction. To avoid unlawful retroactive application, the 

agencies must clarify that previously issued JDs and CWA permits will not be reopened 

to reconsider jurisdiction under the new standards. 

In addition, new requirements should not be applied retroactively to JD and permit 

applicants who have invested substantial efforts under the previous standards. In 

previous instances, the Corps and EPA have limited application of new regulations to 

new permit applications. With the 2008 Mitigation Rule, for example, the Corps and

EPA provided that the final rule would apply only to permit applications received after 

the effective date of the rule and provided the district engineer discretion to make 

determinations under the previous standards where applying the new rules to a particular 

project would “result in substantial hardship to a permit applicant.”

168

 The same standard 

should apply here. 

In outreach meetings, the agencies have stated that existing JDs issued by the Corps will 

continue to be valid and that the agencies will not be re-reviewing existing, valid 

determinations.169 But it is not entirely clear what this means, nor is there any statement 

in the preamble confirming that this is the agencies’ intent. In fact, in a June 30 Q&A 

document published by EPA with a blog post by Nancy Stoner, the agencies stated, “Any 

existing jurisdictional determination issued by the Corps will continue to be valid, and we 

will not re-review existing, valid determinations.”

170

 Now, without any indication or 

notice that the June 30 Q&A document has been revised, the Stoner blog post links to a 

different Q&A document that no longer contains this statement. Have the agencies 

changed their position on revising previous determinations? 

The agencies should make it clear that the rule will not open previously issued JDs or 

CWA permits under any circumstances. In addition, the agencies’ statements fail to 

address JDs and permit applications that are already pending (and may be close to being 

issued). It would be unfair to applicants and regulators who have already put a great deal 

of time and money into the permit process if they had to start over based on the new rule. 

 

166 Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988).

167 National Mining Ass’n v. U.S. Dep’t of Interior, 177 F.3d 1 (D.C. Cir. 1999); Ass’n of Accredited Cosmetology 

Schs. v. Alexander, 979 F.2d 859, 864 (D.C. Cir. 1992).

168 73 Fed. Reg. 19,594, 19,608 (Apr. 10, 2008).

169 For example, on a stakeholder call with the Association of Clean Water Administrators (ACWA) regarding the 

proposed waters of the United States Rule, EPA stated, “The agencies haven’t figured out grandfathering, but they 

don’t intend to do anything retroactively to anyone who has been issued permits.” ACWA, State-EPA Co-regulator 

Call #2 on Waters of the U.S. (June 12, 2014).

170 Nancy Stoner blog entry, Setting the Record Straight on Waters of the U.S. (June 30, 2014) 

http://blog.epa.gov/epaconnect/2014/06/setting-the-record-straight-on-wous/ (June 30, 2014) (attached hereto as 

Exhibit 21)
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504

Accordingly, the agencies should clarify that decisions on pending JDs and permit 

applications will be made based on existing law and will not be subject to the new rule. 

(p. 90-91)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits. 

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

12.795 It is essential that the agencies develop a comprehensive grandfathering clause that 

allows existing approved or preliminary jurisdictional determinations to remain effective, 

and that it allows those determinations to be extended without applying the new rule. 

Moreover, pending applications for determinations should also be completed under the 

current Rapanos guidance. Jurisdictional determinations are the first step in very lengthy 

permitting processes and once made, form the basis of critical investment and design 

considerations that if disturbed would have substantial adverse economic consequences. 

(p. 7)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits.

12.796 Existing AJDs and PJDs should not be disturbed: The proposal is strangely silent on 

whether or how it might affect approved jurisdictional determinations (“AJDs”) or 

preliminary jurisdictional determinations (“PJDs”) that are in existence on the date the 

revised rule becomes effective.171 At least in Arizona, in order to avoid the lengthy delay 

often associated with performing an AJD in the wake of Rapanos, applicants often have 

felt it necessary to utilize the PJD process rather than completing a formal AJD, with the 

result that there are far more PJDs being issued than AJDs.172

 

171 An approved JD is an official determination by the Corps regarding the presence or absence of waters of the U.S. 

at a site, and one that EPA has had a chance to review, consistent with the process outlined in the agencies’ 

December 2008 jurisdictional guidance. A preliminary jurisdictional determination is a nonbinding written 

indication from the Corps that essentially identifies all waters on a site as regulated (i.e., no significant nexus 

analysis is conducted). AJDs and PJDs are described in Corps Regulatory Guidance Letter 08-02, Jurisdictional 

Determinations (June 26, 2008). Despite their less formal nature, significant work often goes into the preparation of 

a proposed PJD for Corps review, and in some cases negotiation may be required before the Corps is comfortable 

approving a PJD (e.g., over the question of which washes exhibit an ordinary high water mark).

172 In a recent article appearing in E&E’s Greenwire publication and entitled “Bed, bank and beyond: EPA rule 

proposal stumps arid Ariz.”, the chief of the Corps’ Arizona office was quoted as follows: “We do hundreds of 

preliminary JDs and maybe a handful of approved JDs in a year.” Available at

http://www.eenews.net/stories/1060007241 She also indicated that the office had handled “fewer than 50” requests 

for AJDs with a significant nexus analysis since 2008, when the Corps issued the RGL that put PJDs front and 

center as an option for an entity seeking a quicker path to a permit.
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505

For regulated entities, there may be little or no practical distinction between PJDs and 

AJDs: both are approved by the Corps and both are used in project planning and 

financing. Many projects (such as mines and housing developments) have long term 

planning horizons, with the CWA determination typically being secured relatively early 

in the process. The delineation is the used in project planning, either to avoid the need 

for a permit or to minimize impacts to waters if they cannot be completely avoided. The 

Section 404 permit (or the determination that one is not needed) also is required to secure 

project financing, where such financing is needed (which is typical with large 

development projects). If the final rule allows for the reopening of AJDs and PJDs to 

reevaluate jurisdiction based on the new rules, it will significantly disturb existing 

expectations and investments. Therefore, the final rule should clarify that any PJD or 

AJD in existence on the date the new rule becomes effective will remain valid. 

The joint commenters are particularly concerned about the treatment of existing AJDs 

and PJDs because of inconsistent information provided by the agencies during the public 

comment period. As of July 2, EPA had on its website a document entitled Questions 

and Answers About Waters of the U.S.173 On page three of that document, EPA stated 

“the proposed rule does NOT mean that previous decisions about jurisdiction will have to 

be revisited” (capitalization in original). The document went on to state: “Any existing 

jurisdictional determination issued by the Corps will continue to be valid, and we will not 

re-review existing, valid determinations.” Corps and agency representatives made similar 

statements at a meeting with representatives of the National Mining Association on July 

9, 2014. 

As of October 1, however, the July 2 version of the question and answer document is no 

longer available on the EPA website. Instead, a different version is available (now also 

bearing the Corps’ logo) that says nothing about the status of existing jurisdictional 

determinations.174 The joint commenters are concerned that by removing the assurance 

that existing AJDs and PJDs would not be disturbed, the agencies are signaling that they 

do wish to have the authority to reopen and potentially modify existing jurisdictional 

determinations. For the reasons discussed above, this would create significant 

uncertainty and would greatly burden parties who have already gone through the often 

time-consuming and expensive process of securing a determination from the Corps. In 

some cases, construction may have begun or be imminent, or financing could have been 

secured based on a proposed project design that is in turn based on the existing AJD or 

PJD. It would be fundamentally unfair for the agencies to reopen existing AJDs or PJDs 

that are in place on the effective date of any new rules. (The joint commenters also 

question whether the agencies could lawfully reopen AJDs or PJDs without having made 

clear their intent to be able to do so in the proposed rule). 

Recommendation: The agencies should state unequivocally in the final rule that AJDs 

and PJDs in effect on the date the final rule becomes effective should not be disturbed or 

reopened. (p. 45-47)

 

173 A copy of the version of the question and answer document accessed on July 2 is attached to these comments as 

Attachment 1.

174 The current version of the document is available at http://www2.epa.gov/sites/production/files/2014-

09/documents/q_a_wotus.pdf (accessed October 1, 2014).
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Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits.

12.797 Extensions of existing AJDs and PJDs should be allowed without need for a revised 

determination: The final rules also should not be applied to requests to extend existing 

AJDs or PJDs. Delineations are typically approved for 5 year periods. The recent 

economic downturn resulted in delays of some projects, with the result that they have not 

commenced but have AJDs or PJDs that will expire shortly after the likely effective date 

of any new rules. Significant planning has occurred on those projects based on the 

existing AJD or PJD, and numerous other federal, state and local approvals will have 

been obtained based on the existing project design. Those projects should not be required 

to seek new delineations that might require re-opening these other permits or approvals or 

making significant revisions to already planned projects. 

Even more recent determinations could be at risk if the agencies do not provide 

assurances that existing AJDs or PJDs will remain valid. For example, one of the joint 

commenters secured an AJD from the Corps in September 2013 (which is therefore valid 

until September 2018). Securing the AJD was the first step in planning a complicated 

project. A Section 404 permit application has been filed, and an Environmental Impact 

Statement (“EIS”) is being prepared. Those processes, especially the EIS process, are 

likely to take several years. It is hoped that a final Section 404 permit and EIS will be 

completed prior to expiration of the AJD, but there is no guarantee that this will be the 

case. Even if it is, construction may not have started by the time the AJD expires, and it 

certainly will not be completed by that date. In such a scenario, it would be incredibly 

disruptive, as well as unfair, for the agencies to require a re-evaluation of jurisdiction at 

the proposed site. 

Recommendation: Assuming there have been no changes on the ground, the agencies 

should commit to extending without change any existing AJDs or PJDs that are in effect 

on the date any final rule becomes effective. (p. 47-48)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits.

12.798 Pending requests for AJDs or PJDs that have been in process for a substantial period 

should be processed under the guidance in place when they were submitted: Finally, 

requests for jurisdictional determination that have been in process for a significant period 

of time (e.g., nine months) at the time the new rule goes into effect should be processed 

under the previous agency guidance (i.e., that issued in December 2008). In these cases, 

applicants will have invested significant time and money in preparing analysis consistent 

with the governing guidance, and it is unfair to change the rules of the game in the middle 

of the agency review process. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

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Recommendation: Requests for delineation that have been in process for a significant 

period of time (e.g., nine months) as of the date the new rule goes into effect should be 

processed under the existing guidance and not the terms of the new rule. (p. 48)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits.

Associated General Contractors of America (Doc. #14602)

12.799 The proposed rule does not address grandfathering issues or how the rule’s changes 

would affect existing or pending jurisdictional determinations (JDs). AGC recommends 

that the agencies clarify that previously issued JDs and CWA permits, as well as pending 

JDs and CWA permits, will not be reopened or changed based on the new rule. 

In outreach meetings, the agencies have stated that existing JDs issued by the Corps will 

continue to be valid and that the agencies will not be re-reviewing existing, valid 

determinations. But it is not entirely clear what this means, nor is there any statement in 

the preamble confirming that this is the agencies’ intent. In addition, the agencies’

statements fail to address JDs and permit applications that are already pending (and may 

be close to being issued).

The agencies should make it clear that the rule will not open previously issued JDs or 

CWA permits under any circumstances. It would be unfair to applicants and regulators 

who have already put a great deal of time and money into the permit process if they had 

to start over based on the new rule. Accordingly, the agencies should clarify that 

decisions on pending JDs and permit applications will be made based on existing law and 

will not be subject to the new rule. (p. 18-19)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits.

12.800 Without clear definitions to guide field staff, permitting decisions will continue to be 

arbitrary and inconsistent. Vague and ambiguous regulatory provisions will continue to 

cause confusion, deny the regulated community fair notice of what is required, and waste 

time and money; all with little benefit to the environment. This lack of clarity is unduly 

burdensome for critical infrastructure and private projects. (p. 19)

Agency Response: The final rule is intended to provide greater clarity and 

consistency regarding which waters are subject to CWA jurisdiction, reducing the 

instances in which permitting authorities need to make jurisdictional 

determinations on a case-specific basis. In order to accomplish this aim, the final 

rule includes a number of key improvements including, but not limited to, the 

following. In response to comments and to provide greater clarity and consistency, 

in the rule the agencies establish a definition of neighboring which provides 

additional specificity requested by some commenters, including establishing a 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

508

floodplain interval and providing specific distance limits from traditional navigable 

waters, interstate waters, the territorial seas, impoundments, and tributaries. In 

order to add clarity to the definition of significant nexus, the agencies have listed in 

the definition the functions that will be considered in a significant nexus analysis. 

The preamble also includes a definition of bed and banks adapted largely from 

longstanding agencies’ practice as well as input from commenters. To provide 

additional clarity and for ease of use for the public, the agencies are including the 

Corps’ existing definitions of ordinary high water mark and high tide line in EPA’s 

regulations as well.

Vulcan Materials Company (Doc. #14642)

12.801 The proposed rule does not include any provisions for ‘grandfathering’ activities and 

authorizations in effect at the time the rule is finalized. Grandfathering provisions are 

warranted as activities and authorizations are based on jurisdictional determinations using 

the criteria applicable when the evaluation and decisions regarding permitting were 

reached by the agencies. The objectives of the process have not changed and retroactive 

application of new jurisdictional determinations would be overly burdensome and 

difficult to implement. (p. 3)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. 

Preliminary jurisdictional determinations are not definitive determinations of the 

presence or absence of areas within regulatory jurisdiction and do not have 

expiration dates. The preamble addresses the status of final JDs and permits as well 

as pending JDs and permits.

O’Neil LLP (Doc. #14651)

12.802 Need to Grandfather the Effect of the New Rule. Should the Agencies decide to adopt a 

new rule to define the scope of waters regulated under the CWA, it is imperative that the 

Agencies clearly provide for a grandfathering system whereby: (1) all development 

associated with an application for a Section 404 permit filed prior to the effective date of 

the final Rule is exempt from the new definition of “waters” and the new Rule, and (2) all 

development associated with a Preliminary JD or an approved JD issued prior to the 

effective date of the final Rule is exempt from the new definition of “waters” and the new 

Rule. 

Project applicants expend substantial time and financial resources on environmental 

consultant work, biological studies, project planning and design, project land-use 

entitlement, and the like prior to submitting an application to the ACOE for a Section 404 

permit. It is common for applicants to spend years and many tens of thousands (and even 

hundreds of thousands or millions) of dollars conducting such work leading up to the 

permit application. Furthermore, once filed, additional substantial time and financial 

resources are expended by a project applicant in conducting further environmental review 

connected with the Section 404 application, such as NEPA analysis and compliance, the 

analysis of project alternatives under Section 404(b)(1), responding to public comments 

and agency comments on the ACOE’s public notice of the application, Section 401 water 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

509

quality certification, compliance with the National Historic Preservation Act, the federal 

Endangered Species Act, etc. 

It would be extremely unfair and would produce an unjustifiable economic hardship to 

Applicants for a Section 404 permit to have to revise (or re-do or even start over on) 

studies, plans, analyses, designs, prior approvals, prior entitlements, and the like, because 

the new Rule was being applied to such a project after the Section 404 permit application 

had already been filed. Moreover, similar considerations of fairness and avoidance of 

undue economic hardship should compel the Agencies to make clear to the public in the 

final Rule, that the final Rule will not be applied retroactively to any project which has 

already obtained a Preliminary JD or an approved JD prior to the effective date of the 

final Rule. (p. 5-6)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits.

Business Alliance for a Sound Economy (Doc. #14898)

12.803 Grandfathering: The Proposed Rule does not address grandfathering issues or how the 

rule’s changes would affect existing or pending jurisdictional determinations (JDs). In 

the interest of fairness, the agencies should explicitly state that previously issued JDs and 

permits, as well as pending JDs and permit applications, will not be reopened or changed 

based on the new rule. Some BASE members have invested a significant amount of time 

and energy in applying for JDs and permits, and grandfathering is the appropriate way of 

preserving the value of those efforts. (p. 3)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits. 

CEMEX (Doc. #19470)

12.804 The proposed rule lacks any “grandfathering” provision. Our mine plans often call for 

long-term, phased mining which depend on regulatory certainty to make sound business 

decisions. Without clear grandfathering language, our mine plans are now at risk of 

being subject to new and expansive jurisdictional determinations. (p. 3)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits. 

National Association of Home Builders (Doc. #19540)

12.805 The Proposed Rule does not address what to do with Existing Clean Water Act Permits 

(i.e. “Grandfathering”).
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510

The proposed rule does not address grandfathering issues or how the rule’s changes 

would affect existing or pending jurisdictional determinations (JDs). The Agencies must 

clarify that previously issued JDs and CWA permits, as well as pending JDs and CWA 

permits, will not be reopened or changed based on the new rule.

Importantly, a federal agency may not enact a regulation with a retroactive effect unless 

Congress conveys that authority in express terms.175 Some courts have held that an 

administrative rule is retroactive if it “takes away or impairs vested rights acquired under 

existing law, or creates a new obligation, imposes a new duty, or attaches a new disability 

in respect to transactions or considerations already past.”

176

 The proposed rule would 

adopt new standards for defining jurisdiction. To avoid unlawful retroactive application, 

the Agencies must clarify that previously issued JDs and CWA permits will not be 

reopened to reconsider jurisdiction under the new standards. 

In addition, new requirements should not be applied retroactively to JD and permit 

applicants who have invested substantial efforts under the previous standards. The Corps 

and EPA have done this in the past. With the 2008 Mitigation Rule, for example, the 

Agencies provided that the final rule would apply only to permit applications received 

after the effective date of the rule and provided the district engineer discretion to make 

determinations under the previous standards where applying the new rules to a particular 

project would “result in substantial hardship to a permit applicant.”

177

 The same standard 

should apply here. 

In outreach meetings, the Agencies have stated that existing JDs issued by the Corps will 

continue to be valid and that the Agencies will not be re-reviewing existing, valid 

determinations.178 But it is not entirely clear what this means, nor is there any statement 

in the preamble confirming that this is the Agencies’ intent. In fact, in a June 30, 2014 

EPA blog post by Nancy Stoner, the Agencies stated, “Any existing jurisdictional 

determination issued by the Corps will continue to be valid, and we will not re-review 

existing, valid determinations.”

179

 Now, without any indication or notice that the June 30 

post has been revised, the Stoner blog post no longer contains this statement. Have the 

Agencies changed their position on revising previous determinations? 

The Agencies should make it clear that the rule will not open previously issued JDs or 

CWA permits under any circumstances. In addition, the Agencies’ statements fail to 

address JDs and permit applications that are already pending (and may be close to being 

issued). It would be unfair to applicants and regulators who have already put a great deal 

of time and money into the permit process if they had to start over based on the new rule. 

 

175 Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). 

176 National Mining Ass’n v. U.S. Dep’t of Interior, 177 F.3d 1 (D.C. Cir. 1999); Assoc. of Accredited Cosmetology 

Schs. v. Alexander, 979 F.2d 859, 864 (D.C. Cir. 1992). 

177 73 Fed. Reg. 19,594, 19,608 (Apr. 10, 2008). 

178 For example, on a stakeholder call with the Association of Clean Water Administrators (ACWA) regarding the 

proposed “waters of the United States” rule, EPA stated, “The agencies haven’t figured out grandfathering, but they 

don’t intend to do anything retroactively to anyone who has been issued permits.” ACWA, State-EPA Co-regulator 

Call #2 on Waters of the U.S. (June 12, 2014). 

179 Nancy Stoner blog entry, Setting the Record Straight on Waters of the U.S. (June 30, 2014), available at 

http://blog.epa.gov/epaconnect/2014/06/setting-the-record-straight-on-wous/ (Note: the original text of the blog 

entry is available at http://www.bayjournal.com/article/setting_the_record_straight_on_waters_of_the_us). 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

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Accordingly, the Agencies must clarify that decisions on pending JDs and permit 

applications will be made based on existing law and will not be subject to the new rule. 

(p. 130-131)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. 

Preliminary jurisdictional determinations are not definitive determinations of the 

presence or absence of areas within regulatory jurisdiction and do not have 

expiration dates. The preamble addresses the status of final JDs and permits as well 

as pending JDs and permits. 

Wyoming Mining Association (Doc. #14460)

12.806 The rule does not address how the Corps will handle existing determinations or 

applications that have not completed the review process at the time the rule is 

promulgated. The rule must clearly outline how these situations are to be handled. 

Applications that are currently under review at the time the rule is promulgated should be 

reviewed within the regulatory framework that was in place at the time of the submittal. 

This has been accepted practice by the Corps and EPA. For example, with the 

implementation of the 2008 Mitigation Rule, the Corps and EPA provided that the final 

rule would apply only to permit application received after the effective date of the rule. 

Further new requirements should not be applied retroactively to existing jurisdictional 

determinations. In outreach meetings, the agencies have stated that existing jurisdictional 

determinations issued by the Corps will continue to be valid and that the agencies will not 

be re-reviewing existing, valid determinations. 180 WMA strongly recommends that 

clarification be added to the rule to address the grandfathering issue. (p. 7)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits. 

The Mosaic Company (Doc. #14640)

12.807 The Proposed Rule Needs to Address Grandfathering Issues. The proposed rule does not 

address grandfathering issues or how the rule changes would affect existing or pending 

jurisdictional determinations (JDs) and permits. Any rulemaking effort should include a 

provision to ensure all previous jurisdictional determinations, existing permits, and 

permit applications currently under review would not be revoked, reopened, or otherwise 

subject to additional review based on the proposed new rule. (p. 4)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

 

180 For example, on a stakeholder call with the Association of Clean Water Administrators (ACWA) regarding the 

proposed water of the U.S. Rule, EPA stated, “The agencies haven’t figured out grandfathering, but they don’t 

intend to do anything retroactively to anyone who has been issued permits.” ACWA, State-EPA Co-regulator Call 

#2 on Waters of the U.S. (June 12, 2014.)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

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must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits. 

12.808 In outreach meetings, the agencies have stated that existing JDs issued by the Corps will 

continue to be valid and that the agencies will not be re-reviewing existing, valid 

determination.181 But there is not any statement in the preamble or the affected sections

of the Code of Federal Regulations confirming this is the agencies’ intent. The agencies 

should make it clear that the rule will not be applied to or have any effect on previously 

issued JDs or CWA permits. In addition, the agencies’ statements do not address JD 

requests and permit applications that are currently pending (and may be close to being 

issued) prior to the effective date of the proposed rule. It would be arbitrary and grossly 

unfair to applicants and regulators who have already invested a great deal of time and 

resources into the permit process if they had to start over based on the new rule. 

Accordingly, the agencies should clarify in the language of the rule itself, that decisions 

on pending JDs and permit applications will be made based on existing law and will not 

be subject to the new rule. (p. 4)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits. 

Ohio Oil & Gas Association (Doc. #15122)

12.809 Noticeably the proposed rule does not include any grandfathering provisions or timing for 

implementation. It is easy to envision the absolute havoc and confusion this could cause. 

For example, will the agencies reopen jurisdictional decisions? Will the paperwork that 

has already been submitted for jurisdictional determinations, and which has been waiting 

for a determination, be reviewed under the new rule or the existing rule? These timing 

issues must be addressed. 

Industry, developers, etc. are wary of the long delays these new rules would cause. 

Jurisdiction determinations will likely take longer; and with more waters qualifying as 

jurisdictional there will be less ability to rely on Nationwide Permits; and all of this will 

put heavier workloads on those who process individual permits – which will cause further 

delays in what can already be an 18 to 24-month long permit process. Further permitting 

backlogs will stifle business. Moreover, we understand some USACE districts have even 

eliminated presumptive jurisdictional determinations and still require the submission of 

data – further lengthening decision time frames. Timing issues must be contemplated and 

addressed in the proposed rule. (p. 3)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

 

181 For example, on a stakeholder call with the Association of Clean Water Administrators (ACWA) regarding the 

proposed waters of the U.S. Rule, EPA stated, “The agencies haven’t figured out grandfathering, but they don’t 

intend to do anything retroactively to anyone who has been issued permits.” ACWA, State-EPA Co-regulator Call 

#2 on Waters of the U.S. (June 12, 2014).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

513

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits. 

Vulcan Materials Company (Doc. #16566)

12.810 The proposed rule does not include any provisions for ‘grandfathering’ activities and 

authorizations in effect at the time the rule is finalized. Grandfathering provisions are 

warranted as activities and authorizations are based on jurisdictional determinations using 

the criteria applicable when the evaluation and decisions regarding permitting were 

reached by the agencies. The objectives of the process have not changed and retroactive 

application of new jurisdictional determinations would be overly burdensome and 

difficult to implement. (p. 3)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits. 

Independent Petroleum Association of America (Doc. #18864)

12.811 The Agencies’ Failure To Address Grandfathering Of Pending And Existing Clean Water 

Act Authorizations and Interpretations In The Proposal Is Unlawful.

The Associations have significant concerns with the resulting operational changes that 

this proposal represents. If the agencies conclude this proposal is the program they are 

going to implement, they must include a grandfathering provision that would 

acknowledge the validity of:

 past permitting decisions and currently pending applications for authorization to 

include, but not limited to, jurisdictional determinations, individual permits, letters of 

permission , and general permits issued pursuant to Section 404 of the CWA;

 issued NPDES permits pursuant to Section 402 of the CWA; and,

 current SPCC Plans and implicit or direct approvals, pursuant to Section 311 of the 

CWA, and that but for major modifications to such facilities, their regulatory status 

will remain compliant.

Existing authorizations must be deemed precedent for future assessments for facilities 

that continue to reflect operations as initially authorized.

The agencies must address grandfathering in an additional proposal that will be subject to 

an extensive opportunity for public review and comment. Failure to address this 

important issue that will have a significant impact on many is improper. Those adversely 

impacted include the regulated community and state and federal regulatory authorities 

whose increased administrative burdens within this proposal are significant. The result of 

this proposal is inappropriate and not supported by the CWA, the regulations or the 

federal Administrative Procedure Act. (p. 32) 

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

514

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits. 

The final rule does not change how jurisdictional issues are dealt with in other 

CWA programs. The final rule does not change existing permits or other actions 

taken to implement the CWA. The final rule does not affect existing permits during 

the life of those permits. See Summary Response.

Transportation Corridor Agencies (Doc. #16897)

12.812 The TCAs are (...) concerned that the Rule fails to address how the Agencies’ proposed 

change in the definition of the term “Waters of the United States” will apply to projects 

that already have secured Clean Water Act (“CWA”) section 404 permits (“404 permits”) 

and/or jurisdictional determinations (“JD”) prior to the effective date of the Rule. Nancy 

Stoner, EPA’s Acting Assistant Administrator for Water, recently wrote in an article that 

“the proposed rule does NOT mean that previous decisions about jurisdiction will have to 

be revisited.” Any existing jurisdictional determination issued by the Corps will continue 

to be valid, and we will not re-review existing, valid determinations.182 While EPA’s 

current fact sheet on the Rule,183 largely mirrors the points Nancy Stoner made in her 

article, it noticeably omits a statement clarifying that the Proposed Rule will not be 

applied retroactively. 

Because the Proposed Rule also is silent on this issue, TCA urges the Agencies to 

confirm that the Rule will not be applied retroactively. The Corps has approved 404 

permits for all of the TCAs projects constructed to date. While open to traffic, 

construction continues on these validly-permitted projects. The TCAs are constructing 

various improvements to the projects, including additional lanes and interchanges. In 

November 2012, the Corps approved a JD for an approved five-mile extension of State 

Route 241. In reliance on the JD, the TCA designed the extension to avoid Waters of the 

United States.184 EPA cannot reasonably expect the TCAs to stop work on authorized 

projects, re-assess potential water resource impacts, secure new JDs, and possibly obtain 

new or modified Section 404 permits in the face of a new rule. 

Revisiting existing permits and JDs also would be unworkable for the Corps. Hundreds, 

if not thousands, of infrastructure projects across the country that have obtained 404 

permits or have been designed to avoid the need for such permits are in various stages of 

completion. Applying the Proposed Rule retroactively could call each project into 

question and require Corps action on hundreds (or thousands) of 404 permit applications 

and JD requests, all at the same time. Coupled with the over 1,600 projects awaiting 

individual 404 permits, some that have been pending since 2007,185 it is clear that the 

Corps lacks the resources to revisit existing permits and JDs. 

 

182 Bay Journal, Setting the Record Straight on Waters of the US, July 20, 2014,

http://www.baylournal.com/article/setting_the_record_straight_on_waters_of_the_us (Emphasis in original)

183 See http://www2.epa.gov/sites/production/files/2014-09/documents/facts about wotus.pdf

184 Exhibit 2. Letter from Army Corps of Engineers to TCA finding that the proposed Tesoro Extension would not 

occur within waters of the United States. 

185 http://geo.usace.army.mil/egis/f?p=340:6:0::N0
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

515

For project developers, the need to secure a new or modified permit mid-project could 

trigger new studies, evaluations and approvals under a range of federal (and state) laws, 

including the National Environmental Policy Act, the Endangered Species Act, Section 

106 of the National Historic Preservation Act, and Section 4(f) of the Department of 

Transportation Act. A developer could also find that an approved, designed, funded and 

partially-constructed project no longer constitutes the least environmentally damaging 

practicable alternative (“LEDPA”), forcing the developer to start over from scratch or 

abandon its project. The need for a new or modified permit could also subject projects to 

new legal challenges, which is especially problematic for transportation projects, where 

due to shortened statute of limitations, lawsuits otherwise would be time-barred. 

Finally, applying the regulatory changes prospectively is consistent with Current Corps 

practices. For example, projects approved under a nationwide permit are not required to 

obtain coverage under a new nationwide permit upon its reauthorization.186 Similarly, 

projects that have obtained JDs under the existing CWA regulations should be able to 

continue to rely on those determinations for a period of five years.187

In closing, the TCAs urge the Agencies either to withdraw the Proposed Rule because its 

expanded jurisdiction violates the Clean Water Act, or in the alternative should clarify 

that 404 permits and JDs issued prior to the effective date of the final rule are governed 

by the section 404 rules and guidance documents in effect prior to the final rule. (p. 2-3)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations. Consistent 

with existing Corps regulations and guidance, all approved jurisdictional 

determinations completed and/or verified by the Corps must be in writing and 

generally will remain valid for a period of five years. The preamble addresses the 

status of final JDs and permits as well as pending JDs and permits. 

Arizona Public Service Company (Doc. #15162)

12.813 Existing Determinations. The proposed rule fails to address grandfathering issues or how 

existing or pending JDs would be affected, if at all. This can leave many regulated or 

potentially regulated entities in the lurch. Since regulated entities and the general public 

have not had an opportunity to review and comment on the Agencies’ handling of 

grandfathering issues, APS strongly recommends that this proposed rule be withdrawn so 

that the Agencies, states, tribes, regulated entities, environmental groups, and the public 

can participate in development of a clear, concise, meaningful, and well-thought out 

revision to the WOTUS definition. The fact that the WOTUS definition impacts so many 

programs under the CWA should cause the Agencies to pause and reconsider finalization 

of this proposal. (p. 7-8)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

 

186 77 Fed. Reg. 10,184 (Feb. 21, 2012); 33 CFR § 330.6(b).

187 U.S. Army Corps of Engineers Jurisdictional Determination Form Instructional Guidebook 47, FN 4(May 30, 

2007) 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

516

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits.

12.814 If, despite the many deficiencies identified in these comments and the comments of 

UWAG, FWQC, and WAC, the Agencies finalize the rule as proposed, given the overly 

broad definition of WOTUS ascribed by the Agencies, APS could be required to come 

into compliance with various regulations on a broad scale and in an unreasonably short 

period of time. Using the 262 SPPC plans discussed above as an example, it is clear that 

a phased-in period for compliance is justified. One approach to phasing in compliance 

would be to provide a compliance schedule for counties within each ecoregion. This 

would help the regulated community comply given the sheer size of the ecoregions and 

the large number of facilities encompassed therein. (p. 15)

Agency Response: This action does not change an owner/operator's ability to 

determine whether there is a reasonable expectation that an oil discharge from a 

non-farm facility, such as an electrical substation or switchyard, could reach waters 

of the U.S. or adjoining shorelines, if the facility's aggregate oil storage capacity 

exceeds 1,320 gallons of oil. These applicability determinations must be based solely 

upon consideration of the geographical and location aspects of the facility (such as 

proximity to waters of the U.S. or adjoining shorelines, land contour, drainage, etc.) 

and must exclude consideration of man-made features such as dikes, equipment or 

other structures, which may serve to restrain, hinder, contain or otherwise prevent 

a discharge to waters of the U.S. See 40 CFR part 112.1(d)(1)(i). Once subject to 

the SPCC rule, an owner/operator must prepare and implement an SPCC plan. 

EPA provided cost estimates in the most recent ICR renewal for the SPCC rule 

(2012) for plan preparation and maintenance. See EPA ICR No. 0328.15, OMB 

Control No. 2050-0021. Plan preparation costs generally range from $4,000 to 

$7,000 and plan maintenance costs range from around $900 to $1,200 annually for 

small- to medium-size oil storage facilities.

Spectra Energy Corp (Doc. #14273)

12.815 Spectra is concerned that the implementation of the new rule could cause problems for 

these and other projects because the proposed rule fails to address grandfathering issues. 

Moreover, EPA has issued confusing guidance on this topic during the comment period. 

For example, EPA has stated that “[t]he agencies haven’t figured out grandfathering, but 

they don’t intend to do anything retroactively to anyone who has been issued permits.”

188

Additionally, EPA has published conflicting reports as to whether existing jurisdictional 

determinations will continue to be valid.189 These ambiguous statements and conflicting 

reports raise the concern that EPA may reopen pending or existing permits and 

jurisdictional determinations.

 

188 Association of Clean Water Administrators, State-EPA Coregulator Call #2 on Waters of the U.S. at 4 (June 12, 

2014), available at http://www.acwa-us.org/#!__wous.

189 See Nancy Stoner, Acting Assistant Adm’r for Water, Setting the Record Straight on Waters of the US, EPA 

Connect; The Official Blog of EPA’s Leadership (June 30, 2014) (originally linking to a document with the 

assurance that the agency “will not review existing, valid determinations,” but inexplicably eliminating that 

assurance in a subsequent version of the document).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

517

Spectra urges the agencies to adopt a grandfather provision in the final rule that clarifies 

that previously issued and currently pending jurisdictional determinations and CWA 

permits will not be reopened or modified based on the new definition of “waters of the 

United States.”

Spectra recommends the following suggested grandfather language:

 Pending and final permit applications and jurisdictional determinations are unaffected 

by this rule, and such applications and determinations will be evaluated under the 

prior jurisdictional understanding of “waters of the United States.” Additionally, if 

the district engineer determines that application of this rule would result in substantial 

hardship, the permit or jurisdictional determination may be given pursuant to prior 

guidance regarding “waters of the United States.” (p. 3-4)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits.

CropLife America (Doc. #14630.1)

12.816 This proposed rule also fails to address how previously issued permits and pending 

jurisdictional determinations and permits will be affected. CropLife recommends that the 

agencies explicitly exempt previously issued permits and pending jurisdictional 

determinations and permits from new requirements under this proposed rule. Businesses 

did not have sufficient notice of this proposal when they made business decisions 

involving previously issued permits and pending determinations potentially affected by 

this proposed rule. (p. 5-6)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits. The final rule does not affect existing valid permits. 

Metropolitan Water District of Southern California (Doc. #14637)

12.817 Lastly, the Agencies should clarify that the new regulations will not be given retroactive 

effect. One way to do this would be to state that the new regulations will apply only to 

permit applications received after the effective date of the proposed rule. (p. 6)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits. 

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

Association (Doc. #14928)

12.818 SRP has ... concerns over the agencies treatment of jurisdictional determinations. 

Nothing in the preamble or proposed rule discusses the status of valid, existing 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

518

jurisdictional determinations or draft determinations under agency review. SRP urges the 

agencies to clarify that existing RGL’s and issued agency jurisdictional determinations 

will remain valid under the final rule, and to clarify how pending determinations will be 

affected by the rule. (p. 15)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits. Existing regulatory guidance letters (RGL) will remain effective until such 

time as the Corps rescinds or amends that RGL. 

Utility Water Act Group (Doc. #15016)

12.819 Not only would the Proposed Rule cause a clear change in status for these streams (from 

non-jurisdictional to jurisdictional), but it also would impose uncertainty on future project 

development. Project development has not begun. Under the terms of the jurisdictional 

determination (finding no jurisdiction), that ruling applies through 2015. Yet it is 

conceivable that the Agencies might try to assert jurisdiction in this type of situation 

starting in 2015, if the Proposed Rule is issued as a final rule. If the Agencies tried to 

assert jurisdiction under a new WOTUS definition over the features in a similar situation, 

a project developer may argue that such effort would constitute unlawful, retroactive 

agency action. It is unclear how such a dispute would resolve, however. In the 

meantime, the developer would be left with the risk that the Agencies could try to bring 

enforcement action if project development proceeded without obtaining a § 404 permit 

and other CWA authorizations. (p. 50)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits. 

Exxon Mobil Corporation (Doc. #15044)

12.820 The Proposed Rule also fails to provide any procedural clarity regarding its 

implementation. It provides no opportunity for a landowner to challenge the Agencies’

categorical presumption of jurisdiction for a particular tributary or adjacent water when 

there is qualitative or quantitative evidence that the water in question should not be 

deemed jurisdictional under the Clean Water Act. It does not indicate how the Agencies 

intend to treat previous jurisdictional determinations (including determinations of no 

jurisdiction). The Agencies should confirm that all prior jurisdictional determinations 

that resulted in a finding of no jurisdiction will be grandfathered. The Proposed Rule 

does not have an implementation plan or effective date, and does not address how the 

Agencies intend to address pending or in-process jurisdictional determinations and permit 

applications. (p. 2)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

519

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits. 

Northern Colorado Water Conservancy District, Berthoud, Colorado (Doc. #15114)

12.821 Effect on Previously Issued Jurisdictional Determinations. The proposed rule does not 

address the effect of the proposed changes on previously issued jurisdictional 

determinations (JDs) confirming non-jurisdiction. The rule should make clear that its 

new criteria will not apply to any JDs (preliminary or approved) issued prior to 

finalization of the rule. It should also clarify that activities already constructed in 

subsequently defined jurisdictional areas are “grandfathered” and will not require afterthe-fact or other permitting. (p. 9-10)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits. 

Beaver Water District (Doc. #15405)

12.822 Either the regulation or the guidance document should address the issues of retroactivity 

and grandfathering under the rule. These issues could arise in a number of development 

scenarios, including those associated with water infrastructure and mitigation banks. 

BWD has supported the creation by a non-profit of a mitigation bank in the Beaver Lake 

watershed. It may be appropriate, for example, that development associated with 

mitigation banks is exempted from changes in jurisdictional determinations under revised 

regulations for the period of the banking agreement, unless otherwise agreed to by the 

banker and the Corps. (p. 2)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits.

Washington County Water Conservancy District (Doc. #15536)

12.823 [Regarding impacts on infrastructure projects] In order for the regulated community to 

best prepare to comply with any new jurisdictional requirements and ensure continued 

operations of the various infrastructure projects affected by the Proposed Rule, any final 

rulemaking should include a “grandfathering” provision that exempts permit applications 

that have been submitted prior to the finalization of the Proposed Rule, from any new 

jurisdictional determinations resulting from the redefinition of waters of the United 

States. (p. 29)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

agencies do not intend to reopen existing approved jurisdictional determinations 

unless requested to do so by the applicant. The preamble addresses the status of 

final JDs and permits as well as pending JDs and permits.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

520

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

12.824 The Proposed Rule does not address grandfathering or provide for a smooth transition for 

pending applications and jurisdictional determinations. Although not unique to 

Pennsylvania, PIOGA notes that the lack of a grandfathering provision is a concern for its 

members. PIOGA requests clarity regarding the extent to which the Proposed Rule 

would be applied to areas that were previously determined to be non-jurisdictional. 

PIOGA requests that language be inserted into the Proposed Rule to preserve previous 

non jurisdictional determinations and prevent the expansion of previous jurisdictional 

determinations. Similar grandfathering provisions have been included in the Nationwide 

Permit renewals. (p. 15)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits. 

Association of State Floodplain Managers (Doc. #19452)

12.825 ASFPM recommends that the final rule include a clear schedule for implementation 

including provisions for grandfathering of actions approved by federal agencies under the 

existing jurisdictional regulations. Although EPA has stressed that the proposed 

regulation does not increase the scope of jurisdiction compared to the pre-Rapanos 

requirements, it seems clear that in some instances jurisdiction may expand in 

comparison to the post-Rapanos guidance that is currently in place. We assume that 

approved jurisdictional determinations will be effective until their normal expiration date, 

and that an activity previously permitted under the CWA will also be grandfathered. 

However, confirmation of these positions should be included in the final rule. (p. 9-10)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations. Consistent 

with existing Corps regulations and guidance, all approved jurisdictional 

determinations completed and/or verified by the Corps must be in writing and 

generally will remain valid for a period of five years. The preamble addresses the 

status of final JDs and permits as well as pending JDs and permits. 

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

12.826 ASWM recommends that the final rule include a clear schedule for implementation 

including provisions for grandfathering of actions approved by federal agencies under the 

existing jurisdictional regulations. 

Although EPA has stressed that the proposed regulation does not increase the scope of 

jurisdiction compared to the pre-Rapanos requirements, it seems clear that in some 

instances jurisdiction may expand in comparison to the post-Rapanos guidance that is 

currently in place. We assume that approved jurisdictional determinations will be 

effective until their normal expiration date, and that an activity previously permitted 

under the CWA will also be grandfathered. However, confirmation of these positions 

should be included in the final rule. 
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We also suggest that review of permit applications that have already been public noticed 

be completed without the necessity for a new jurisdictional determination out of fairness 

to the applicant, given that requiring a new JD and potentially new design could be 

exceptionally costly for the applicant.

Where permit applications have been submitted but not yet public noticed, we suggest 

that the federal agencies or state co-regulators be given discretion to continue without a 

new JD where such an action could result in significant cost to the applicant (e.g. where 

winter field conditions make it impractical to complete a new JD for several months), and 

where impacts of proceeding under the existing rule is not expected to result in major 

adverse impacts. (p. 9)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations. Consistent 

with existing Corps regulations and guidance, all approved jurisdictional 

determinations completed and/or verified by the Corps must be in writing and 

generally will remain valid for a period of five years. The preamble addresses the 

status of final JDs and permits as well as pending JDs and permits.

12.4.1 Comments on How Proposed Rule would Affect Permit Processes and Evaluation of 

Impacts/Compensatory Mitigation

Specific Comments

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

12.827 Small entities in the utility industry have expressed that this proposed rule could 

eliminate the advantages of Nationwide Permit 12 – Utility Line Projects (NWP 12). 

Utility companies use NWP 12 to construct and maintain roads that provide access to the 

utility grid. Under NWP 12 a “single and complete” project that results in less than a 1⁄2 

acre loss of waters of the U.S. is allowed to proceed under NWP 12 rather than obtain an 

individual CWA permit.190 Currently, each crossing of a road over a water of the U.S. is 

treated as a “single and complete” project. The proposed rule creates large areas in which 

NWP 12 could no longer be used at all. Under this proposed rule waters in the same 

riparian area or floodplain all become adjacent waters and therefore waters of the U.S. If 

all of the waters in the riparian area or floodplain are treated as one interconnected water 

of the U.S. it would be virtually impossible for small utility companies to use NWP 12. 

Small utilities would need to apply for the more costly and time consuming individual 

permits. This is a direct cost imposed solely as a result of the changes to the definition of 

the term “waters of the United States” proposed in this rule. (p. 7-8)

Agency Response: This rule does not change the implementation of regulations 

which cover “waters of the United States”, including those associated with NWPs, 

and the implementation of those regulations is outside the scope of this rule. That 

 

190 Reissuance of Nationwide Permits, 77 Fed. Reg. 10195 (February 21, 2012). 
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522

said, the scope of regulatory jurisdiction in this rule is narrower than that under the 

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

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

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

rule provides greater clarity regarding which waters are subject to CWA 

jurisdiction, reducing the instances in which permitting authorities, including the 

states and tribes with authorized section 402 and 404 CWA permitting programs,

make jurisdictional determinations on a case-by-case basis.

Tennessee Valley Association (Doc. #17470)

12.828 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 

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 would 

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 project 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. (p. 5)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries.

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

12.829 A review of the Proposed Rule language, as well as a GIS analysis of specific sites and 

watershed areas within Florida, indicates a likely expansion of federal wetlands 

regulatory jurisdiction stemming from the Proposed Rule, which would have far-reaching 

effects on the regulated community. Under the proposed definition of “waters of the 

United States,” previously determined isolated wetlands, as well as agricultural wetland 

swales and ditches, would be subject to permitting requirements under Section 404 of the 

CWA for any proposed activity that would discharge dredged or fill material to them, 

unless the activity is exempt from regulation (see Section 404 Permitting, U.S. 

Environmental Protection Agency. Web. 15 Oct. 2014). These waters already are 

regulated by the State of Florida to address water quality and use of land and water 

resources within the state. Federal jurisdiction over these areas would subject land 

owners to additional regulatory requirements that would necessitate increased time and 

expense to address, with no demonstrated benefit to environmental protection. 

The Section 404 permitting process requires the applicant to: 
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523

1. Demonstrate through an “alternatives analysis” that the proposed project is the “least 

environmentally damaging practicable alternative.” Section 230.10(a), 40 CFR, 

states that “no discharge of dredged or fill material shall be permitted if there is a 

practicable alternative to the proposed discharge which would have less adverse 

impact on the aquatic ecosystem, so long as the alternative does not have other 

significant adverse environmental consequences.”

2. Demonstrate how impacts to waters of the United States have been minimized. 

Section 230.10(d), 40 CFR, states that “no discharge of dredged or fill material shall 

be permitted unless appropriate and practicable steps have been taken which will 

minimize potential adverse impacts of the discharge on the aquatic ecosystem.”

Subpart H of 40 CFR Part 230 outlines several actions that can be taken by the 

applicant to meet the minimization criteria. 

3. Provide sufficient compensatory mitigation consistent with the criteria outlined in the 

2008 Compensatory Mitigation Rule (40 CFR Part 230; 33 CFR Parts 325 and 332). 

After conducting the alternatives analysis and complying with 

avoidance/minimization criteria, the applicant may be required to provide 

compensatory 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. 49-50)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

524

Gila River Indian Community (Doc. #13619)

12.830 The Proposed Rule does not expressly exempt irrigation canals, but instead defines 

“tributary” to include “canals, and ditches not exempted in paragraphs (b)(3) or (4)” of 

the proposed definition of “waters of the United States.”

191 These sections define ditches 

but do not define or describe canals. Under this approach, the P-MIP canal system could 

become jurisdictional under a broad interpretation of the Proposed Rule, even if this is 

not the Agencies’ intent at this point in time. This would have deleterious impacts on the 

Community in general and P-MIP canals in particular, and runs contrary to Congressional 

intent underlying the CWA. 

Some of these on-Reservation features of the P-MIP system include spillways and storm 

water drainage channels to discharge storm water and prevent flooding on the 

Reservation. The Community is concerned that the construction and maintenance of 

features, which exist to protect the P-MIP system and related infrastructure, could require 

federal permits under the Proposed Rule. This would require P-MIP and other 

Community entities to adjust their construction schedules and budgets to account for 

greater federal permitting and oversight. 

The expansive definition that the Proposed Rule advances for “waters of the United 

States” could also enable the Corps to assert jurisdiction over certain drainage features 

that P-MIP has constructed, but for which the CWA provides exemptions. While the 

Proposed Rule does not expressly render previously exempted features jurisdictional, any 

future maintenance on these drainage and flood protection features or construction of new 

drainage features, cannot suddenly be allowed to become jurisdictional. For example, PMIP has constructed a number of flood protection and excess flow features, such as storm 

water discharges connected to ephemeral desert washes that have qualified for CWA 

statutory exemptions for irrigation activities in the past. The Agencies cannot now seek 

to make these tributaries jurisdictional, and thus waters of the United States under the 

Proposed Rule. Other examples of these flood protection projects include protective 

levees, emergency spillways, and over chutes designed to discharge storm water. The 

existing and extensive connections that the P-MIP system currently has with the Gila 

River and to a lesser extent the downstream Salt River through these features make it 

possible that future maintenance activities could be viewed as jurisdictional, despite 

receiving Agency exemptions in the past. It is therefore critical that the Final Rule clarify 

that previously exempt features remain exempt. Otherwise, this scenario would 

exacerbate costs necessary to maintain and expand the emergency protection capacity of 

the P-MIP system and would inhibit longstanding development plans. As has already 

been stated, the Agencies’ lack the legal authority to assert jurisdiction over these types 

of features, which are expressly exempted from Agency jurisdiction under the CWA.192

Beyond P-MIP features designed to protect against flooding and excess flows, the system 

includes multiple ponds, sumps, and regulating reservoirs. The Proposed Rule would 

give the Agencies discretion to define these features as “wetlands and open waters”

where they are connected to canals that could be encompassed within the expansive 

 

191 Id. at 22202. 

192 S. Rep. 95-370, at 76 (1977); 33 U.S.C. § 1344.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

525

definition of waters of the United States currently under consideration by the Agencies. 

More importantly, the Community intends to extend these canals to reservoirs located on 

the Reservation. The Agencies might determine that these reservoirs are “wetlands and 

open waters” under the Proposed Rule because one could argue that these waters are 

“adjacent” to or “neighboring” jurisdictional waters and are physically, chemically, and 

biologically connected with a downstream jurisdictional water.

The Community is extremely concerned that the Proposed Rule could cause future 

routine maintenance and construction on the P-MIP system to require a federal permit, 

where none is currently required because some of the system’s features described above 

could be encompassed under the Proposed Rule. This scenario would have a significant 

impact on the ability of the Community to perform routine maintenance and construction 

work, develop work schedules and anticipate costs in fulfillment of our established goals 

for the P-MIP system and our obligations to Community members. (p. 4-5)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. In addition, the rule provides greater clarity regarding which waters are 

subject to CWA jurisdiction, reducing the instances in which permitting authorities, 

including the states and tribes with authorized section 402 and 404 CWA permitting 

programs, address jurisdictional issues and make jurisdictional determinations on a 

case-by-case basis.

12.831 Current federal policy is also moving toward the streamlining of permitting requirements 

to reduce costs and time delays. The Proposed Rule, however, would add time and costs

by bringing more waterways within the definition of “waters of the United States,” and 

thus trigger the need for additional permits and environmental analyses. In the Moving 

Ahead for Progress in the 21st Century Act (“MAP-21”), which governs federal 

transportation funding, Congress included significant provisions to streamline the 

environmental review process and speed up the completion of transportation projects. 

The Community is concerned that unlike the HEARTH Act and MAP-21, which make 

federal permitting and oversight more efficient and less burdensome, the Proposed Rule 

would add regulatory oversight over wider swaths of Community land and impede 

development. (p. 7)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. In addition, the rule provides greater clarity regarding which waters are 

subject to CWA jurisdiction, reducing the instances in which permitting authorities, 

including the states and tribes with authorized section 402 and 404 CWA permitting 

programs, address jurisdictional issues and make jurisdictional determinations on a 

case-by-case basis.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

526

State of Washington Department of Ecology (Doc. #13957)

12.832 Washington interprets the draft rule to not affect the way the state regulates its waters. 

Washington’s definition of “waters of the state” in the state water pollution control act 

(RCW 90.48) protects additional waters not covered under the federal Clean Water Act 

such as prior converted croplands and isolated wetlands. Washington will continue to 

regulate all waters of the state regardless of federal jurisdiction. However, Washington 

appreciates that the rule more clearly identifies what types of waters would be considered 

jurisdictional under the federal Clean Water Act. This is important when proponents may 

need Section 404 permits from the Corps and related Section 40 I certifications from the 

state. 

These clarifications regarding “waters of the US” should help streamline permitting since 

those waters identified in the rule would not require individual jurisdictional 

determinations. While Washington protects its waters under state law, this uncertainty in 

federal jurisdiction has resulted in permitting delays when a jurisdictional determination 

is required. Although this proposed rule may help streamline determination for some 

waters, such as tributaries, it may take longer to receive a jurisdictional call when using 

the significant nexus test since these will require case-by-case determinations. (p. 2-3)

Agency Response: The agencies believe that the rule will result in a reduction of 

case-specific determinations which was achieved by making tributaries and adjacent 

waters jurisdictional by rule coupled with limits on the two types of categories of 

waters that require a case-specific analysis. Therefore, the agencies do not foresee 

an increase in delays due to workload on jurisdictional determinations. The agencies 

believe the final rule will simplify the process of making jurisdictional 

determinations.

Office of the Governor, State of Kansas (Doc. #14794)

12.833 Mitigation for impacts on ephemeral channels and adjacent waters will escalate the costs 

of projects intended to improve water supply and conservation. State pesticide programs 

and regulations will need to be revised as the line between applications to terrestrial and 

aquatic resources becomes blurred by the proposed rule. Counties will become restrained 

in routine ditch maintenance or control of noxious weeds for fear of running afoul of the 

Act. New permitting conditions and limitations for land applications of livestock waste 

or wastewater sludge that affect minor drainages add operational costs to agricultural and 

municipal waste water management. (p. 5)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. See also essay 12.3. Issues relating to permitting requirements for the 

application of fertilizer (including manure), pesticides, herbicides, and any other 

substances are beyond the scope of the rule.

12.834 Because of the sweeping scope of the proposed rule to all aspects of the Clean Water Act, 

the quest by the Federal agencies to reduce the burden of their staffs’ workload in making 

jurisdictional determinations will shift other workload burdens to Kansas agency staff. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

527

Application of the Clean Water Act through water quality standards, total maximum daily 

loads, 305b assessments, or certain permitting, e.g., general NPDES permits for pesticide 

applications on, over or near waters that see flow only on the occasion of localized rain, 

will divert and distract State resources away from the more pressing priority of protecting 

the established surface waters of the State. It cost Kansas over $300,000 annually (in 

2004 dollars) to conduct 500 simplified, expedited Use Attainability Analyses (UAAs) on 

Kansas streams. Should the proposed rule come into force, Kansas can expect to expend 

significantly greater amounts over a number of years re-doing those UAAs and 

performing new UAAs as our universe of classified streams expands many times over 

with the inclusion of ephemeral tributaries. The impetus for the proposed rule was 

clarification of Clean Water Act jurisdiction after the Supreme Court’s SWANCC and 

Rapanos decisions, decisions that narrowed the scope of Federal authority when 

protecting wetlands from impacts of solid waste disposal and commercial development 

through the Section 404 program. Two tests for jurisdiction arose from the Rapanos 

decision. The first test came from the plurality of the Supreme Court as expressed by 

Justice Scalia that jurisdiction applied to relatively permanent waters, i.e., not ordinarily 

dry channels. The second test came from Justice Kennedy’s introduction of finding a 

significant nexus of waters having an ecologic interconnection (but not a speculative or 

insubstantial connection). The proposed rule overrides the Scalia test and parses the 

Kennedy test to equate connectivity to significant ecological function, thereby promoting 

a near boundless view of Federal authority. Furthermore, the sweep of the rule applies all 

Clean Water Act programs to an expanded population of waters, resulting in extension to 

agricultural activities that the Act has historically viewed as exempt. The resulting 

overreach by the Federal agencies complicates matters better suited for State resource 

management. Proclamations from the Federal agencies that the proposed rule represents 

no expansion in jurisdiction under the Clean Water Act contradicts recent statements 

from EPA that 60% of waters in the Nation need Federal protection. And yet, historical 

positions and documents of the Federal agencies clearly establish that ephemeral 

channels were not viewed automatically as WOTUS. (p. 5-6)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. In addition, the rule provides greater clarity regarding which waters are 

subject to CWA jurisdiction, reducing the instances in which permitting authorities, 

including the states and tribes with authorized section 402 and 404 CWA permitting 

programs, address jurisdictional issues or make jurisdictional determinations on a 

case-by-case basis.

Office of Water Management, Pennsylvania Department of Environmental Protection (Doc. 

#14845)

12.835 The proposed rule will impose a significant impact on available resources to implement 

CWA program requirements. If the issues related to the definitions, and uncertainty 

about how EPA and ACOE administration of the terms described above are not 

addressed, the number of water bodies needing to be assessed, water quality standards 

established, and determinations of impairment will significantly increase. For example, a 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

528

shallow subsurface aquifer with an established connection to a water body into which 

septic systems discharge under the proposed rule could now be defined as jurisdictional 

triggering the need for an NPDES permit to discharge. Would the aquifer itself also have 

to be assessed, added to the list of water bodies and defined as impaired or not? (p. 6)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. Groundwater is not a “water of the United States” even though it can 

serve as a component of a significant nexus. NPDES permits are now and will 

continue to be needed for discharges that reach a “water of the United States” even 

if the discharge flows through a shallow subsurface aquifer before reaching a waters 

of the U.S. 

National Association of State Departments of Agriculture (Doc. #15389)

12.836 The proposed rule will impact all CWA programs and adversely impact states. (...) 

NASDA is particularly concerned the proposal would impose new policies and 

responsibilities on state agencies across all CWA delegated state programs, handicapping 

state budgets and available manpower, and complicating ongoing programs with citizens 

for agricultural pest control, public health, wildlife, water and natural resource 

management, and invasive species control programs. (...) Potential effects would 

include:

§404: Producers and others seeking to make improvements to or develop their properties 

would face increased §404 wetlands dredge-and-fill permit costs, delays, and likely 

greatly-increased mitigation costs as they wend their way through the policy morass of 

Best Professional Judgment (BPJ) determinations of “floodplain” adjacency, “significant 

nexus” or “aggregated” impacts. These §404 policy changes will further confuse farmers 

and others; NASDA already has commented on the agencies Interpretive Rule and 

confusion and likely adverse effects that action is causing.193 (p. 5-6). 

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. In addition, the rule provides greater clarity regarding which waters are 

subject to CWA jurisdiction, reducing the instances in which permitting authorities, 

including the states and tribes with authorized section 402 and 404 CWA permitting 

programs, address jurisdictional issues or make jurisdictional determinations on a 

case-by-case basis. Further, the Interpretive Rule has been withdrawn.

Wyoming Department of Environmental Quality (Doc. #16393)

12.837 (...) regulatory uncertainties will not be limited to ephemeral streams and tributaries. For 

example, beginning around 1998, Wyoming experienced a rapid growth in coal bed 

methane production (CBM). Containing the CBM-produced water in reservoirs was and 

 

193 NASDA comments on the Interpretive Rule are attached as Appendix A.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

529

is the most common water management practice. More than a thousand reservoirs were 

built in small, headwater ephemeral channels to contain the CBM discharges. The vast 

majority of reservoirs were built on channels that were determined by the Corps to be 

non-jurisdictional and therefore did not require 404 permits. These reservoirs are not 

“treatment” facilities, and the discharges to them were permitted by Wyoming under 

State WYPDES permits. Since 2010, CBM production has been in decline and many of 

the containment reservoirs now need to be reclaimed. Reclamation of those reservoirs 

may be delayed or impeded by the proposed rule, as the jurisdictional status of the stream 

channels and reservoir ponds is unclear under the proposal. It seems likely that they 

would be considered “other waters” under the proposed rule, and new jurisdictional 

evaluations may need to be done to determine if 404 permits are needed to reclaim the 

sites. That process is sure to increase costs to the State and other private and public 

interests. 

Wyoming raised this CBM reservoir issue during an EPA webinar on the proposed rule 

on September 5, 2014, and EPA’s response was uncertain as to the jurisdictional status of 

those waters. The response is particularly troubling given EPA’s frequent and very 

public assurances that the proposed rule is simply meant to clarify existing regulation and 

not expand the scope and jurisdiction of the CWA. The response underscores Wyoming’s 

concern that EPA and the Corps are in fact expanding CWA jurisdiction. (p. 6)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. Specifically, the agencies have limited the tributaries that are “waters of 

the United States” to those that have both a bed and banks and another indicator of 

ordinary high water mark. Even where waters are covered by the CWA, the 

agencies have adopted many streamlined regulatory requirements to simplify and 

expedite compliance through the use of measures such as general permits developed 

at the national, regional or state level. However, current general permits or the 

future development of general permits consistent with CWA section 404(e) are 

beyond the scope of the final rule.

12.838 (...) the expansion of federal authority into upper drainages will result in additional costs 

and permitting delays for stream restoration projects in intermittent and ephemeral 

channels and flood plains. The same will be true for the implementation of conservation 

practices in those areas. In fact, implementation of conservation practices by landowners 

in drainages that were formerly determined non jurisdictional may now require 404 

permits under the proposed rule. This concern is compounded by recent direction from 

EPA in its “interpretative rule” as to what agricultural conservation practices are 

exempted under CWA § 404(f)(1)(A) and how those exemptions are to be evaluated in 

the future. EPA’s interpretative rule, together with the significant expansion of federal 

jurisdiction under the proposed rule will expand federal oversight and regulation of land 

use and water resources in Wyoming, particularly in areas where minimal to no impact to 

traditionally navigable waters will ever occur. (p. 6)

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

than that under the existing regulation. Fewer waters will be defined as “waters of
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

530

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

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

tributaries. In addition, the rule provides greater clarity regarding which waters are 

subject to CWA jurisdiction, reducing the instances in which permitting authorities, 

including the states and tribes with authorized section 402 and 404 CWA permitting 

programs, address jurisdictional issues or make jurisdictional determinations on a 

case-by-case basis. Further, the Interpretive Rule has been withdrawn.

Governor’s Office – State of Utah (Doc. #16534)

12.839 In Utah, there are numerous washes or gullies which have these characteristic and 

contribute flow on a seasonal or less-than-seasonal basis. In the west, livestock 

producers have placed stock-watering ponds along washes and gullies to collect and store 

water for livestock uses. These areas have not previously fallen under the jurisdiction of 

the CWA and, therefore, have not required a 404 permit. Because of the nature of these 

areas, routine maintenances is required. Under the proposed rule these producers would 

be required to obtain a 404 permit to maintain their stock watering ponds. This will add a 

substantial burden to livestock producers as it will create additional costs and a 

significant amount of time as it currently takes at least 4-6 months for a permit to be 

issued. In addition, this process will provide another avenue for environmental 

organizations to halt grazing on public lands. (p. 9)

Agency Response: The final rule specifically indicates artificial lakes or ponds 

created by excavating and/or diking dry land and used primarily for such purposes 

as stock watering, irrigation, settling basins, or rice growing are not “waters of the 

United States.” 

12.840 The state, through the Utah Division of Parks and Recreation, manages large areas of 

public land in Utah. When building or maintaining facilities that may impact streams, it 

has participated in Utah Department of Water Rights Stream Alteration Program (Stream 

Alterations) Project review through Utah’ s Stream Alteration process takes 

approximately 30 days from application to permit. However, if a permit requires Army 

involvement, the permitting process time increases from 30 days to a minimum of 6 

months. The state is concerned that agencies like the Division of Parks and Recreation 

will be required to go to the Army for any water crossing which will greatly impact 

construction costs and timelines. The Division of Parks and Recreation current Army 

permits have taken well over a year to complete and, in some cases, have stretched into 

two years. Without information on the regulatory processes that will arise from this rule, 

it is hard to determine the costs and impacts of the rule. The state is also concerned about 

new mitigation measures and costs that may now be required by the proposed Rule. (p. 

12)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. In addition, the rule provides greater clarity regarding which waters are 

subject to CWA jurisdiction, reducing the instances in which permitting authorities, 

including the states and tribes with authorized section 402 and 404 CWA permitting 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

531

programs, address jurisdictional issues or make jurisdictional determinations on a 

case-by-case basis.

12.841 In the State of Utah, agriculture uses 80% of the available water resources.194 Any 

changes to the jurisdictional reach of the CWA will have dramatic effect on the 

agricultural industry. It will create uncertainty in which practices are acceptable. As an 

example, an agricultural producer using groundwater might believe her practices are 

exempt under the Proposed Rule, while these waters might be determined as 

jurisdictional if there is a “shallow subsurface connection” to core waters thus 

necessitating a CWA permit. 

The Proposed Rule would not only create uncertainty, but it will create time delays in 

obtaining permits which previously were not required. Further, it will lead to an increase 

in permitting and increase costs to the agricultural producer which will increase food cost 

to the public. Even if permits are eventually determined not to be necessary, there are 

still costs associated with Environmental Assessments (EAs) and cultural resource 

assessments, which would be necessary to make those determinations. With an average 

wait for 404 permits being 4-6 months, that could be the loss of an entire grazing permit, 

or crop production. In an industry that is so completely reliant on climate, it is difficult to 

anticipate and plan for the unforeseen events and variability in climate. Aside from the 

wait time in permitting and the cost of EAs to determine if there is a need for a permit, 

there is the cost of a 404 permit. It is estimated that an individual permit to deposit fill 

material costs $43,687 with an additional $11,797 for each acre of water affected.195 This 

would make any permit necessarily cost-prohibitive for most agricultural producers in the 

state. 

The Proposed Rule will increase the cost for certain projects as new permits will be 

required. While the agencies have given assurances that normal farming practices will be 

exempted from permitting, the normal farming practices exemption only applies to 404 

permitting, not to any of the other permits required by the CWA if the water is 

determined to be jurisdictional.196 While most of the east does not rely on irrigation 

systems of ditches and pumps to spread the water, the arid west utilizes intricate 

irrigation systems that are essential for production. With those differences in mind, the 

examples cited in the proposal to demonstrate normal farming practices do not include 

irrigation practices, but practices related to tillage.197 It is clear that western states and 

their farming practices were not considered in the development of these rules. (p. 14)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. In addition, the rule provides greater clarity regarding which waters are 

 

194 Flowing Toward 2050: Utah’s Water Outlook, Utah Foundation, Research Report 723, at 3 (Sept. 20 14), 

available at http://www.utahfoundation.orgluploads/rr723.pdf (accessed 11/ 10/14).

195

 Sunding & Zilberman, The Economics of Environmental Regulation By Licensing: An Assessment of Recent 

Changes to the Wetland Permitting Process, 42 Natural Resources J. 59, 74-75 (2002).

196

 State of Utah Comment Letter on Interpretive Rule, dated July 7, 2014.

197 See 33 C.F .R. I344(f).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

532

subject to CWA jurisdiction, reducing the instances in which permitting authorities, 

including the states and tribes with authorized section 402 and 404 CWA permitting 

programs, make jurisdictional determinations on a case-by-case basis. The rule also 

does not change other farm related exemptions such as the exemption for irrigation 

return flows or agricultural stormwater discharges. Further, the Interpretive Rule, 

which is referred to in this comment, has been withdrawn.

Nebraska Department of Roads (Doc. #16896)

12.842 The Corps and EPA indicate that the categorical determinations of jurisdiction in the 

proposed rule should save time and resources. Because some of the definitions are broad 

and the rule is somewhat vague, the process to implement the rule will cause NDOR to 

acquire jurisdictional determinations for any jurisdictionally uncertain area. This will end 

up increasing the workload for NDOR as well as the Corps, costing more time rather than 

less. With all of the exemptions proposed in the rule, applicants could spend significant 

time evaluating whether certain exemptions apply, resulting in additional analysis and 

evaluation of transportation projects by the Corps and NDOR. Additionally, wetland 

mitigation resulting from the potential expansion of jurisdiction would result years of 

obligation by NDOR to maintain and ensure success of mitigation sites, which translates 

to higher costs and creates an undue burden on NDOR as well as Nebraska landowners.

(p. 2-3)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The agencies believe that the rule will result in a reduction of casespecific determinations which was achieved by making tributaries and adjacent 

waters jurisdictional by rule coupled with limits on the two types of categories of 

waters that require a case-specific analysis. Therefore, the agencies do not foresee 

an increase in delays due to workload on jurisdictional determinations. The agencies 

believe the final rule will simplify the process of making jurisdictional 

determinations.

Arizona State Land Department (Doc. #16903)

12.843 In addition to the fact that the Proposed Change has the potential to sweep an unknown 

and seemingly limitless amount of State Trust land within federal jurisdiction, the 

Department is also concerned because the Proposed Rule is silent regarding existing 

Clean Water Act (CWA) Section 404 permits and determinations of “No Significant 

Nexus.” The Department holds several CWA Section 404 permits and a determination of 

“No Significant Nexus” for State Trust land that is host to several multi-year build-out 

projects demanded by historic and projected population growth. For example, one such 

permit has been held for nearly fifteen years; to now subject it to the shifting regulatory 

environment surrounding the CWA will have immeasurable impacts on the value and 

development potential of the affected State Trust land. To further subject Arizona’s State 

Trust land to continued regulatory uncertainty and vagaries conflicts with the 

Department’s federally-mandated fiduciary responsibilities. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

533

The proposed definitions fail to clarify the meaning of waters of the United States. 

Rather than provide certainty, these explanations simply add one more layer of confusion 

to an already muddled understanding. Instead of augmenting the current definition with 

nebulous language, any additional definitions should be vetted in accordance with the 

best available scientific standards and informed by stakeholders in the course of a 

transparent process. To do otherwise simply increases confusion and frustration 

surrounding the process. (p. 3-4)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The rule also does not change the existing permit process, and existing 

permits will remain valid for the life of that permit. The definitions included in the 

final rule were developed using the best available science including a comprehensive 

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

Review and Synthesis of the Scientific Evidence”. This science report provides much 

of the technical basis for the rule. This report is based on a review of more than 

1,200 publications from the peer-reviewed literature.

State of Illinois, State Representative’s Office, 94th District (Doc. #16994)

12.844 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 scope of regulatory jurisdiction in this rule is narrower 

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. In addition, the economic analysis has been updated for the final rule. 

Please see summary response for Topic 11: Costs/Benefits and the Agencies 

Economic Analysis document for details on the estimated costs and benefits of the 

rule.

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

12.845 The case-by-case analysis of non-adjacent “other waters” and wetlands to determine if a 

“significant nexus” exists has the potential to go beyond Supreme Court case law and 

allows for an extreme amount of subjectivity by the individual federal agent or agents 

conducting this analysis. As each determination yields subjective results on a case-bycase basis then, by definition, that subjectivity creates uncertainty. From a legal sense, 

that subjectivity has the potential to lead to arbitrary and capricious findings under the 

Administrative Procedure Act when these determinations are challenged in court, thus 

creating even more uncertainty. As this subjectivity in the analysis becomes more 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

534

pervasive within the framework of the rule as proposed, the potential for more and more 

litigation over the fine details of the “significant nexus” determinations will threaten to 

make the rule subjective and uncertain by its very nature, which could undermine the 

Agencies’ intent in clarifying the regulatory status of “other waters.” As a result, 

parishes in Louisiana could be left in the lurch as to how their comprehensive land use 

plans and stormwater or watershed management plans may be affected by the uncertainty 

inherent in the subjectivity of the case-by-case desktop review by the Agencies. (p. 2)

Agency Response: 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 waters, interstate waters, and the territorial seas. 

The final rule establishes two exclusive circumstances under which case-specific 

evaluations will be made to determine whether or not a water has a “significant 

nexus” and is therefore a “water of the United States”. Thus, the agencies disagree 

with the commenter regarding the number and subjectively of such case-specific 

determinations.

Wyoming Water Development Commission (Doc. #17059)

12.846 If this rule is implemented it will create the additional burden of obtaining a 404 USCOE 

permit for all kinds of small projects in the arid uplands of Wyoming. Projects such as 

road culverts, stock dams, stock water pipelines, and buried power lines will all be 

required to obtain a 404 permit because they are crossing a dry channel with a defined 

bed, bank and high water line. Along with the 404 permit comes the required NEPA 

project analysis which will significantly delay very simple projects with little or no 

impact to the landscape. Additionally, the current USCOE staff level of two (2) 

employees in Wyoming will be inadequate to handle the new permit demand. Will the 

USCOE be adding new staff positions to address the new workload? The Federal 

Government currently operates at a rather large budget deficit now, and adding new 

employees does not seem like a viable option. (p. 2)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The agencies believe that the rule will result in a reduction of casespecific determinations which was achieved by making tributaries and adjacent 

waters jurisdictional by rule coupled with limits on the two types of categories of 

waters that require a case-specific analysis. Therefore, the agencies do not foresee 

an increase in delays due to workload on jurisdictional determinations. The agencies 

believe the final rule will simplify the process of making jurisdictional 

determinations.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

535

Allen Boone Humphries Robinson LLP (Doc. #19614)

12.847 Substantially expanded federal jurisdiction over land areas and activities may trigger 

section 404 dredge and fill requirements for the first time. These requirements would 

apply to much more than just work that takes place in wetlands, impacting many other 

activities. In addition to the cost and delays involved with obtaining permits, firms will 

also face much higher mitigation costs to offset the impact of work done in newlydefined WOTUS areas. (p. 6)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries.

Skamania County Board of Commissioners (Doc. #2469)

12.848 The Corps, which oversees the 404 permit program, is already severely backlogged in 

evaluating and processing permits. This puts our nation’s counties, including Skamania 

County and flood and stormwater management agencies in a precarious position 

especially those who are balancing small budgets against public health and safety needs. 

(p. 4)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The agencies believe that the rule will result in a reduction of casespecific determinations which was achieved by making tributaries and adjacent 

waters jurisdictional by rule coupled with limits on the two types of categories of 

waters that require a case-specific analysis. Therefore, the agencies do not foresee 

an increase in delays due to workload on jurisdictional determinations. The agencies 

believe the final rule will simplify the process of making jurisdictional 

determinations.

Sweetwater County (Wyoming) Board of County Commissioners (Doc. #6863)

12.849 It seems that it would be easy to classify the hundreds of miles of Sweetwater County

roadway ditches as waters of the United States since the majority of these county ditches 

have an ephemeral flow that directly or indirectly empties into the Green and Colorado 

River systems. If this interpretation is correct, then Sweetwater County may be forced to 

bear the increased costs and time delays of obtaining Clean Water Act Section 404 

permits to complete routine ditch maintenance such as replacing culverts. Any 

maintenance delays resulting from additional EPA permitting requirements could lead to 

law suits if property damage occurs because of these additional permitting requirements.

(p. 2)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

because the rule puts important qualifiers on some existing categories such as 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

536

tributaries. The rule for the first time explicitly excludes certain ditches from the 

definition of waters of the United States. The rule excludes all ditches with 

ephemeral flow that are not excavated in or relocate a tributary. The rule also 

excludes ditches with intermittent flow that are not excavated in or relocate a 

tributary or drain wetlands, regardless of whether or not the wetland is a covered 

water. Finally, ditches that do not connect to a traditional navigable water, 

interstate water, or territorial sea either directly or through another water are 

excluded, regardless of whether the flow is ephemeral, intermittent, or perennial. 

The final rule has been crafted to reduce existing confusion and inconsistency 

regarding the regulation of ditches. While the final rule does not include an explicit 

exclusion for roadside ditches, the agencies expect the exclusions included in the 

final rule will address the vast majority of roadside and other transportation 

ditches. Also, the CWA exemption for ditch maintenance remains in effect and is 

not changed by this rule.

County of Butler (Pennsylvania) Board of Commissioners (Doc. #6918.1)

12.850 The §404 permit process is complex, time consuming and expensive, leaving local 

governments and public agencies responsible for public safety vulnerable to legal 

ramifications. Under the proposed language, virtually every roadside ditch could reach 

navigable waters (directly or indirectly) subject to federal permitting jurisdiction. 

Ditches are pervasive in counties across the nation and were never considered to be 

within federal jurisdiction. Whether or not a ditch is regulated under §404 has significant

financial implications for both State and local governments and public agencies. If a 

project is determined as jurisdictional, other federal laws and environmental impact 

statements would be triggered. While waiting on costly permits and the lengthy 

regulatory process, the purpose of the CWA I and soil erosion are undermined. Instead 

of qualifying, quantifying and limiting those waters which have the greatest impact on 

“waters of the U.S.”, almost every water system, natural and man-made, falls within 

federal jurisdiction pursuant to the proposed rule which substantially broadens the 

geographic scope of CWA jurisdiction. Encompassing all waters under federal 

jurisdiction was not the legislative purpose twenty-five (25) years ago nor was an overall 

expansive definition permitted by the Supreme Court. The proposed rule ignores 

federalism concepts. Direct impact cost and benefit estimates are incomplete and the 

methodologies utilized are misleading. By simply applying common sense, the Rapanos 

decision could be interpreted administratively by the EPA and the Corps to alleviate the 

permits which have been applied for in a more timely and streamlined manner without the 

current proposal which exceeds their authority as noted by the Court. (p. 12-13)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The rule for the first time explicitly excludes certain ditches from the 

definition of waters of the United States. The rule excludes all ditches with 

ephemeral flow that are not excavated in or relocate a tributary. The rule also 

excludes ditches with intermittent flow that are not excavated in or relocate a 

tributary or drain wetlands, regardless of whether or not the wetland is a covered 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

537

water. Finally, ditches that do not connect to a traditional navigable water, 

interstate water, or territorial sea either directly or through another water are 

excluded, regardless of whether the flow is ephemeral, intermittent, or perennial. 

The final rule has been crafted to reduce existing confusion and inconsistency 

regarding the regulation of ditches. While the final rule does not include an explicit 

exclusion for roadside ditches, the agencies expect the exclusions included in the 

final rule will address the vast majority of roadside and other transportation 

ditches. Also, the CWA exemption for ditch maintenance remains in effect and is 

not changed by this rule.

White Pine County (Nevada) Board of County Commissioners (Doc, #6936.1)

12.851 The U.S. Army Corps of Engineers will see a mandated increase in workload, and if 

unplanned for, will cause delays in permit applications being processed. (p. 2)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The agencies believe that the rule will result in a reduction of casespecific determinations which was achieved by making tributaries and adjacent 

waters jurisdictional by rule coupled with limits on the two types of categories of 

waters that require a case-specific analysis. Therefore, the agencies do not foresee 

an increase in delays due to workload on jurisdictional determinations. The agencies 

believe the final rule will simplify the process of making jurisdictional 

determinations.

Office of the City Manager - City of Westminster (Colorado) (Doc. #7327)

12.852 It is not clear whether the City would need a 404 permit to clean out a ditch segment for 

maintenance purposes. If so, this would drastically affect the City’s ability to resolve 

these concerns for the betterment of its citizens. (p. 3)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The rule for the first time explicitly excludes certain ditches from the 

definition of waters of the United States. The rule excludes all ditches with 

ephemeral flow that are not excavated in or relocate a tributary. The rule also 

excludes ditches with intermittent flow that are not excavated in or relocate a 

tributary or drain wetlands, regardless of whether or not the wetland is a covered 

water. Finally, ditches that do not connect to a traditional navigable water, 

interstate water, or territorial sea either directly or through another water are 

excluded, regardless of whether the flow is ephemeral, intermittent, or perennial. 

The final rule has been crafted to reduce existing confusion and inconsistency 

regarding the regulation of ditches. While the final rule does not include an explicit 

exclusion for roadside ditches, the agencies expect the exclusions included in the 

final rule will address the vast majority of roadside and other transportation 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

538

ditches. Also, the CWA exemption for ditch maintenance remains in effect and is 

not changed by this rule.

Murray County (Minnesota) Board of Commissioners (Doc. #7528)

12.853 One of the main concerns is the lack of appropriate recognition for wetlands created and 

enhanced by water quality projects. Current requirements demand that wetlands 

impacted by a water-resource improvement project be mitigated at a 2:1 ratio, but fail to 

recognize the creation of new wetlands or the enhancement of degraded wetlands as part 

of the project, which subsequently become waters of the United States.” In addition, 

environmental enhancement projects, such as the Hay Creek / Norland Impoundment 

Project, which proposed to create over 200 acres of wetlands, have gone over two years 

without receiving an Army Corps decision on approvals for the proposed project. 

Clearly, the current system is broken. (p. 3)

Agency Response: Decisions regarding funding, implementation, and mitigation 

for water-resource projects are outside the scope of this rule.

Board of Supervisors- Del Norte County, California (Doc. #8376)

12.854 The expansion of the definition of Waters of the .U.S., as drafted, will also force counties 

to seek Section 404 permits for the now-routine maintenance of such “waterways” as 

roadside ditches and storm water drains. Public infrastructure ditch systems can stretch 

for hundreds of miles across local jurisdictions, and it is unclear how these systems will 

be classified under the rule. This is particularly onerous for rural counties as many are 

already struggling with tough budgeting decisions in the face of diminishing funding 

from the state and decreased public appetite for approving new taxes to cover such costs. 

It also could drastically interfere with the ability of counties to properly maintain 

roadways to keep them safe and accessible to rural residents, particularly since the Corps 

is already significantly backlogged in evaluating and processing of 404 permits.

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The rule for the first time explicitly excludes certain ditches from the 

definition of waters of the United States. The rule excludes all ditches with 

ephemeral flow that are not excavated in or relocate a tributary. The rule also 

excludes ditches with intermittent flow that are not excavated in or relocate a 

tributary or drain wetlands, regardless of whether or not the wetland is a covered 

water. Finally, ditches that do not connect to a traditional navigable water, 

interstate water, or territorial sea either directly or through another water are 

excluded, regardless of whether the flow is ephemeral, intermittent, or perennial. 

The final rule has been crafted to reduce existing confusion and inconsistency 

regarding the regulation of ditches. While the final rule does not include an explicit 

exclusion for roadside ditches, the agencies expect the exclusions included in the 

final rule will address the vast majority of roadside and other transportation 

ditches. Also, the CWA exemption for ditch maintenance remains in effect and is 

not changed by this rule.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

539

Scott County Soil and Water Conservation District (Doc. #8410)

12.855 Under the rule as written, Section 402 permits would be necessary for common farming 

activities like applying fertilizer, pesticides, herbicides, or moving livestock, if materials 

(i.e. manure) would fall into low spots or ditches. Section 404 permits would be required 

for earthmoving activity, such as plowing, planting or fencing, except as part of 

“established” farm “ongoing” at the same site since 1977. This 1977 rule, in and of itself, 

is problematic in that established and ongoing are not defined leading to less clarity and 

certainty. We are concerned that if more waters are considered jurisdictional, then 

landowners will have to obtain additional section 404 permits for work they have 

historically performed for the good of this country’s natural resources. The 

administrative process of applying for permits may slow the application of conservation 

to the landscape, ultimately leading to less conservation measures applied to the land. (p. 

2)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The agencies believe that the rule will result in a reduction of casespecific determinations which was achieved by making tributaries and adjacent 

waters jurisdictional by rule coupled with limits on the two types of categories of 

waters that require a case-specific analysis. Therefore, the agencies do not foresee 

an increase in delays due to workload on jurisdictional determinations. The agencies 

believe the final rule will simplify the process of making jurisdictional 

determinations. Also, as you note, the exemptions for ongoing farming and other 

activities remain in effect and are not affected by this rule.

Commissioners Office, Dickinson County, Kansas (Doc. #10257.1)

12.856 Under the proposed changes any ditch, gully, or fencerow in a back yard or pasture could 

be subject to the new regulations which would require a 404 permit for any work, no 

matter how minor. These changes are very simply an attempt by the federal government 

to control private properties under the guise of the clean water act, and they are totally 

unacceptable. The impact that these changes would have in the way of permitting and 

restrictions would be devastating to Kansans. (p. 1)

Agency Response: The agencies disagree. The scope of regulatory jurisdiction in 

this rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries.

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

12.857 The proposed rule would increase the number of drainages counties would have to permit 

under Section 404 of the CWA in order to maintain for flood control. Adding this burden

will affect road construction and ditch maintenance projects, flood control channels, 

drainage ditches and culverts used to prevent flooding. Once drainage is under federal 

jurisdiction, the permitting process can be extremely burdensome, time-consuming as 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

540

well as expensive. This leaves counties vulnerable to citizen suits under our public 

health, safety and welfare responsibilities. (p. 5)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The rule for the first time explicitly excludes certain ditches from the 

definition of waters of the United States. The rule excludes all ditches with 

ephemeral flow that are not excavated in or relocate a tributary. The rule also 

excludes ditches with intermittent flow that are not excavated in or relocate a

tributary or drain wetlands, regardless of whether or not the wetland is a covered 

water. Finally, ditches that do not connect to a traditional navigable water, 

interstate water, or territorial sea either directly or through another water are 

excluded, regardless of whether the flow is ephemeral, intermittent, or perennial. 

The final rule has been crafted to reduce existing confusion and inconsistency 

regarding the regulation of ditches. While the final rule does not include an explicit 

exclusion for roadside ditches, the agencies expect the exclusions included in the 

final rule will address the vast majority of roadside and other transportation 

ditches. Also, the CWA exemption for ditch maintenance remains in effect and is 

not changed by this rule.

Pike County (Illinois) Soil and Water Conservation District (Doc. #12748)

12.858 We are concerned that if more waters are considered jurisdictional, then landowners will 

have to obtain additional section 404 permits for work they have historically performed 

for the good of this country’s natural resources. The administrative process of applying 

for permits may slow the application of conservation to the landscape, ultimately leading 

to less conservation measures applied to the land. (p. 2)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. 

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

12.859 Changes proposed by the EPA and Army Corps via its “waters of the United States”

regulations198 would draw at least 63 percent to 90 percent of the Delta and Central 

Valley into the jurisdiction of the federal government. The proposed “floodplain”

definition could encompass the entire region. This would result in dramatic slowdown or 

stoppage of key work needed to protect Californians. In the recent past, the process of 

obtaining Section 401, 404, or Section 10 permits (hereafter, “permits”) from the U.S. 

Army Corps of Engineers in order to complete these vital projects has become more and 

more cumbersome. Presently, obtaining a permit can add between 10 months and three 

years to project timelines, and can add a million dollars or more to the project costs. 

 

198 Docket Nos. EPA-HQ-OW-2011-0880; FRL-9901-47-OW
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

541

Legally, local governments still remain liable for flood damages caused during these 

delays.199 Because some cases take years to resolve, Corps staff appears to be 

overwhelmed by the current permit workload. Adding more jurisdictional areas would 

merely add to this workload and further delay necessary flood control and other 

development projects.

The expansion of jurisdiction proposed by the regulation would unnecessarily subject 

even areas that historically have not been governed by the federal government, including 

the land side of levees and drainage and farm ditches, to this onerous and complex 

process. (p. 1-2)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The agencies believe that the rule will result in a reduction of casespecific determinations which was achieved by making tributaries and adjacent 

waters jurisdictional by rule coupled with limits on the two types of categories of 

waters that require a case-specific analysis. Therefore, the agencies do not foresee 

an increase in delays due to workload on jurisdictional determinations. The agencies 

believe the final rule will simplify the process of making jurisdictional 

determinations.

12.860 Viewed together, these facts and statements tend to indicate that the Corps and EPA 

intend to assert regulatory jurisdiction over waters comprising between 63 percent and 90 

percent of the Delta. This means that reclamation districts and other agencies conducting 

even routine maintenance, operations, or drainage will find themselves swept up among 

this vast new assumption of Federal jurisdiction. Delta landowners, farmers irrigating 

their lands, and even local governments maintaining stormwater and roadside 

conveyances will also find their activities covered under the Clean Water Act, subjecting 

them to new permitting requirements and potential litigation or enforcement actions.

Currently, those seeking to obtain Section 401, 404, and/or Section 10 permits already 

must anticipate adding 10-36 months to their project timelines (and longer in some cases 

and areas), in order to account for permitting time and efforts. This would no doubt 

include projects needed to comply with Army Corps Public Law 84-99 flood control 

criteria, or those necessary to improve areas to Federal Emergency Management Agency 

standards for floodplains. Based on the time it takes staff to review applications and 

complete the permitting process, Federal staff workloads appear to already be substantial. 

An expansion of jurisdiction via an expanded definition of “tributary” would mean a 

corresponding expansion in completion time, potentially resulting in increased project 

costs and compromised public safety in the meantime.

While it will not be hard to say farewell to the convoluted and occasionally arbitrary 

“recapture” regime applied by the Corps, no Delta flood control agency looks forward to 

the uncertainty and difficulties caused by additional, mandatory permitting requirements 

 

199 See Arreola v Monterey 99 Cal. App. 4th 722 (Local maintaining agency liable for damages caused by flooding 

even where timely approval of levee maintenance permit by regulatory agency could have prevented flooding). 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

542

that would be imposed by these new rules. These rules simply reach too far, and penalize 

the Delta for accidents of elevation and for necessary economic, public health, and public 

safety efforts. If these rules are enacted, they should be accompanied by immediate, 

contemporaneous and practical guidance and put general permitting procedures in place, 

in order to ensure that public safety projects can continue to advance without delay. 

Otherwise, the resulting regulatory gridlock will almost certainly lead to loss of PL-84-99 

status, if not loss of life or property, for many districts in California’s Central Valley. (p. 

4-5)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The agencies believe that the rule will result in a reduction of casespecific determinations which was achieved by making tributaries and adjacent 

waters jurisdictional by rule coupled with limits on the two types of categories of 

waters that require a case-specific analysis. Therefore, the agencies do not foresee 

an increase in delays due to workload on jurisdictional determinations. The agencies 

believe the final rule will simplify the process of making jurisdictional 

determinations. Further, the final rule includes expanded provisions describing the 

types of ditches and stormwater control features that are specifically excluded from 

regulation.

12.861 Thus, Delta reclamation districts (and landowners) will be placed into an impossible 

situation: Either comply with expensive, time-consuming water quality and discharge 

permits, or face the specter of Clean Water Act enforcement or litigation. Districts in 

rural Delta areas may have $50,000 or less per year to spend on maintenance200, and may 

not be able to afford either the newly necessary permitting or the resulting fines or 

litigation. 

In order to avoid an uneven and potentially costly result for the Central Valley, the Corps 

and EPA must withdraw the current proposal. The rules should not be advanced unless 

and until EPA and the Corps collaborate with Central Valley flood control officials on 

concurrent guidance, general and regional permitting, and permit streamlining efforts that 

promote public safety interests throughout the Central Valley and Delta. Any such 

assistance and streamlining should be accompanied by a regulatory recognition that the 

proposed “one-size-fits-all” approach simply cannot work, particularly in California’s 

Central Valley and Delta. Finally, these efforts must be launched at the same time as any 

proposed rules that would give the Corps and EPA more authority over flood control 

projects and other projects.

Without these efforts, public safety will become something that California’s Central 

Valley simply cannot afford, and may not be able to afford, either the newly necessary 

permitting or the resulting fines or litigation. (p. 6-7)

 

200 Indeed, the Sacramento Bee reported in the early 2000s on Reclamation District 556, which sits in the Delta near 

the town, and which was struggling to maintain 12.5 miles of levee on $50,000 a year. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

543

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries.

12.862 Because of the unique burdens placed on our region, the California Central Valley Flood 

Control Association must oppose the proposed rule in its current form. With the passage 

of this rule, much of the Central Valley and nearly all of the reclamation districts’

territory will fall under Clean Water Act jurisdiction. Projects on the landside of levees 

will become newly jurisdictional, resulting in huge delays and cost overruns. 

Meanwhile, the current Section 10, Section 401, and Section 404 permitting processes 

remain full of uncertainties for reclamation districts, and result in high costs and 

unneeded delays. This permitting process would not change even as the permitting 

jurisdiction vastly expands. Additionally, permitting Corps and EPA staff to apply their 

“best judgment” in the application of existing floodplain standards will have disastrously 

uneven consequences. Finally, because of the way most of their levees are designed, 

California’s Central Valley flood control system operators and maintainers would be 

bound to presumptions and permit standards that could never be rebutted. (p. 8)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The agencies believe that the rule will result in a reduction of casespecific determinations which was achieved by making tributaries and adjacent 

waters jurisdictional by rule coupled with limits on the two types of categories of 

waters that require a case-specific analysis. Therefore, the agencies do not foresee 

an increase in delays due to workload on jurisdictional determinations. The agencies 

believe the final rule will simplify the process of making jurisdictional 

determinations. The final rule is a definitional rule that clarifies the scope of “waters 

of the United States” consistent with the Clean Water Act (CWA), Supreme Court 

precedent, and science. The final rule does not establish any regulatory 

requirements or change implementation of CWA programs or processes, which are 

outside the scope of this rule.”

Carson Water Subconservancy District (Doc. #13573)

12.863 We are aware of projects in our area that are dependent upon Corps permits which have 

been delayed because the Corps was unable to issue permits in a timely manner due to its 

workload. In the past 10 years there have been times when proposed water quality 

improvement projects in the Carson River were delayed a year or two because of the 

Corps’ backlog of pending permits. If the current backlog is one to two years, what will 

the backlog be when additional projects identified by the proposed rule will need Corps 

approval? (p. 2)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations, in part 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

544

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

tributaries. The agencies believe that the rule will result in a reduction of casespecific determinations which was achieved by making tributaries and adjacent 

waters jurisdictional by rule coupled with limits on the two types of categories of 

waters that require a case-specific analysis. Therefore, the agencies do not foresee 

an increase in delays due to workload on jurisdictional determinations. The agencies 

believe the final rule will simplify the process of making jurisdictional 

determinations. 

12.864 We have concerns that Section 404, the “dredge and fill” permit program, could cause 

other enforcement issues involving activities such as weed control, fertilizer applications, 

and construction of fences or ditches. This additional oversight will provide very 

minimal benefits to the overall water quality in the Carson River watershed, while 

enforcement would most likely increase expenses for producers. (p. 3)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. It is not clear how narrowing and clarifying the scope of jurisdiction 

could lead to expanded enforcement issues. 

Brown County, Kansas (Doc. #13603)

12.865 The inclusion of all tributaries as waters of the US is a major expansion of actual 

practice. Typically ephemeral channels upstream of the blue lines on a USGS contour 

map were normally not considered waters of the US by the general public. On occasion a 

404 permit would be requested on larger projects, but the general public ignored any 

federal jurisdiction, and to our knowledge the Corps and EPA has seldom pursued private 

land owners that failed to get a permit for work on these headwater ephemeral channels. 

So in our view the proposed definition of waters of the US will include all ephemeral 

channels and doubles or triples the actual miles of channels regulated. (p. 1)

Agency Response: The agencies disagree with the commenter’s description of 

tributary. Tributary is defined in the final rule; they must have a bed and banks 

and another indicator of ordinary high water mark. The scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

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

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

existing categories such as tributaries

Cascade County Commissioners (Doc. #16904)

12.866 It appears the current permitting process for larvicide treatment in waterways and/or 

pesticide (mosquito abatement) and herbicide (weed management) applications along 

waterways will remain unchanged under the new rule; however additional clarification is 

suggested.

Cascade County has historically applied for and received a CWA-404 Permit for aerial 

and land-based larvicide applications in jurisdictional waters where mosquito larvae are 

present. The larvicide prevents mosquito larvae from maturing to the adult stage and is 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

545

an effective mosquito control measure. The current permitting process has been routine 

and the permit easily acquired. How will the new rulemaking affect the current permit 

process or delay authorization for larvicide and pesticide applications? Likewise, the 

County utilizes chemical and biologic measures for weed management. What additional 

regulations might be required for herbicide applications adjacent to waterways or along 

stream banks when manufacturer instructions are followed? Similar to the situation 

whereby NRCS conservation practices will change in future years, so will larvicide, 

pesticide and herbicide treatments. How will the rulemaking accommodate future 

practices when new products for insect and weed management are approved in the 

market? (p. 3)

Agency Response: We presume the commenter meant to refer to the 402 

Pesticides General Permit (PGP) (rather and 404). Obtaining coverage under the 

402 PGP is efficient and streamlined and should continue to be. See also summary

response for Section 12.3.

City of Portsmouth, Virginia (Doc. #17057)

12.867 If the City has to provide mitigation for impacts incurred greater than allowed under the 

Nationwide Permit program, the mitigation may have to be in the form of stream 

mitigation instead of wetland mitigation. Stream mitigation credits tend to be more 

expensive and harder to come by than wetland mitigation credits. Therefore, we have a 

heightened concern as to how this will impact our Public Works and ditch maintenance 

efforts. (p. 6)

Agency Response: Comments regarding implementation including potential 

compensatory mitigation requirements are outside the scope of this rule. That said, 

the scope of regulatory jurisdiction in this rule is narrower than that under the 

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

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

important qualifiers on some existing categories such as tributaries.

Nebraska Association of Resources Districts (Doc. #11855)

12.868 Permit requirements under the CWA already add an additional layer of federal regulatory 

oversight on top of the state-based regulatory scheme, and result in significant cost 

increases and overall delay in the development process. For example, due to limited staff 

support at the Corps’ Omaha District Office, individual permits under section 404 of the 

CWA (hereafter “404 Permits”) currently take up to eighteen (18) months to process. 

Permitting costs typically range between $25,000 and $100,000, accounting for legal, 

technical and logistical (e.g., mitigation) costs. Engaging the Corps in the permit 

application process is no guarantee a permit will be granted; in those instances where a 

permit is denied, development of a property at its highest and best use is effectively 

precluded. These costs, along with the uncertainty of the permit approval process, will 

only increase under the Proposed Rule’s expansion of the scope of federal jurisdiction, 

and will directly impinge on land-use decisions at the state and local level. (p. 3)

Agency Response: Comments regarding the issuance of permits are outside the 

scope of this rulemaking. Further, the scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

546

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries.

Western Coalition of Arid States (Doc. #14407)

12.869 (If ditches do not meet one of both of the proposed exclusions in the Rule) many of the 

maintenance activities needed in order to operate transmission and distribution ditches 

will become subject to state and federal §402 or §404 permit requirements. These 

activities include: converting open ditches to concrete lined or closed pipe systems; 

replacing damaged linings; channel or bank stabilizations; control system and structure 

modifications; construction of seepage controls; mechanical and chemical plant and 

aquatic animal controls; and silt or debris removal. In each instance, coverage under a 

§402 Pesticide General Permit, §402 Construction General Permit, or §404 Nationwide 

General Permit may be required. And if the ditch operator discharges excess flows into a 

groundwater recharge facility that is also an adjacent (a)(6) water, coverage under an 

individual §402 discharge permit will also be required. (p. 15)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The final rule also includes expanded provisions describing ditches 

specifically excluded from regulation.

Western Urban Water Coalition (Doc. #15178.1)

12.870 In the arid West, the current Section 404 policies and practices steer many project 

proponents away from alternatives that involve rivers and perennial streams and toward 

alternatives that involve dry ephemeral and intermittent drainages that are isolated from 

and/or lack a significant nexus to a TNW because such drainages are non-jurisdictional 

and any discharge of dredged or fill material into them will not require a Section 404 

permit. Avoidance of the need for a Section 404 permit is frequently a component for 

evaluating water supply project alternatives in the arid West (Dougherty et al. 2010). 

Currently, several proposed “off-channel” reservoirs in Colorado are located on 

ephemeral or intermittent drainages determined to be non-jurisdictional based on 

isolation. This same approach is also true for other types of projects in the arid West 

including pipelines, roads and drilling pads. 

Because current policy and practices steer many projects away from rivers and perennial 

streams toward non-jurisdictional ephemeral and intermittent drainages, fewer projects 

are proposed in jurisdictional waters and wetlands and there are fewer impacts on the 

resources and functions associated with such jurisdictional waters and wetlands. The 

current regulations, policies, and practices work as they should to provide incentives to 

project proponents to develop alternatives that avoid impacts on these waters and 

wetlands with greater potential to provide significant resources and functions (i.e., those 

with perennial water sources). Projects can be permitted much more quickly and 

mitigation efforts, which add significantly to the financial burdens associated with these 

beneficial water and wastewater initiatives, can be minimized. As proposed, the rule 

would eliminate this incentive because all drainages that meet the definition of 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

547

“tributary” would be jurisdictional by rule (including normally dry ephemeral drainages). 

In other words, under the proposed rule, there would no longer be an incentive for a 

project proponent to avoid perennial drainages because all tributaries would be 

jurisdictional by rule. This will result in greater adverse effects on the resources 

associated with perennial drainages. The following discussion on isolation and 

SWANCC, and significant nexus and Rapanos provide context for the how the proposed 

rule’s treatment of ephemeral and intermittent streams is contrary to current policy and 

practice and how the proposed rule would expand the geographic scope of CWA 

jurisdiction in the arid West. (p. 7-8)

Agency Response: Tributary is more narrowly defined in the final rule. 

According to the final rule, a tributary must have a bed and banks and an ordinary 

high water mark. The scope of regulatory jurisdiction in this rule is narrower than 

that under the existing regulation. Fewer waters will be defined as “waters of the 

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

the rule puts important qualifiers on some existing categories such as tributaries.

Wyoming County Commissioners Association (Doc. #15434)

12.871 Should the proposed rule be adopted as written, counties will have no choice but to 

presume that every road or bridge improvement that crosses or otherwise might disturb a 

dry bed, headwater, or conveyance is automatically a water of the U.S. As a result 

counties will face the immediate impact of costly and lengthy requirements to secure a 

404 permit. For many counties this requires hiring specialized consultants and engineers 

who design and oversee construction of the project in order to satisfy 404 permit 

specifications. In addition to the immediate expense, the delay required to secure a 404 

permit in some cases can push back county improvement projects for a year or more due 

to Wyoming’s short construction season, difficult terrain, and inclement weather.

Even upon successful issuance of a permit, costs to counties do not cease at completion 

of construction. Counties are also required to monitor the regrowth of vegetation, often 

for years as mitigation is affected by outside influences like drought. The EPA’ s 

economic analysis fails to consider the ongoing direct expenses and time delays incurred 

by counties when a 404 permit is necessary. (p. 9)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. In addition, the rule provides greater clarity regarding which waters are 

subject to CWA jurisdiction, reducing the instances in which permitting authorities, 

including the states and tribes with authorized section 402 and 404 CWA permitting 

programs, make jurisdictional determinations on a case-by-case basis. Specific 

comments related to permit issuance are outside the scope of this rule.

Idaho Association of Commerce & Industry (Doc. #15461)

12.872 For mine sites, the following activities would be affected (anticipated increase in 

activities) by the proposed rule: (...) Increased permitting includes monitoring, 

reporting, and mitigation requirements, such as additional water treatment, or, as is often 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

548

the case, avoiding the jurisdictional area (e.g., cancel or move a construction project to 

avoid CWA issues). (p. 8)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. In addition, the rule provides greater clarity regarding which waters are 

subject to CWA jurisdiction, reducing the instances in which permitting authorities, 

including the states and tribes with authorized section 402 and 404 CWA permitting 

programs, make jurisdictional determinations on a case-by-case basis.

Massachusetts Water Resources Authority (Doc. #15573)

12.873 In recent years, Section 404 permits have been required for ditch maintenance activities 

such as cleaning out vegetation and debris. While, in theory, a maintenance exemption 

for ditches exists, it is difficult for local governments to use the exemption. The federal 

jurisdictional process is not well understood and the determination process can be 

extremely cumbersome, time-consuming, and expensive, leaving counties vulnerable to 

lawsuits if the federal permit process is not streamlined. Ditches are pervasive in 

counties across the nation and, until recently, were never considered to be jurisdictional 

by the Corps. SCAC’s member counties are concerned that regional Corps offices 

sometimes require Section 404 permits for maintenance activities on public safety 

infrastructure conveyances. While a maintenance exemption for ditches exists on paper, 

in practice it is narrowly crafted. Whether or not a ditch is regulated under Section 404 

has significant financial implications for our counties. The Corps, which oversees the 

404 permit program, is already severely backlogged in evaluating and processing permits. 

This puts our nation’s counties and flood and stormwater management agencies in a 

precarious position, especially those who are balancing small budgets against public 

health and safety needs. 

Many of our member counties have reported concerns that road and bridge applications, 

and other infrastructure maintenance programs that have traditionally been authorized 

pursuant to nationwide permitting programs will in the future require individual permits. 

The current nationwide permits can be obtained by many of our members within a two to 

three month period, at a cost to the taxpayer of as little as $1500.00. If these projects 

were required to obtain individual permits, the time period is estimated to add two to 

three years to the construction approval process. The additional costs for such permits 

would run into the hundreds of thousands of dollars due to required engineering studies, 

mitigation planning, and staff time. 

The increase in time and cost will have two major impacts on counties. First, an 

additional two to three year delay in project construction will mean that projects designed 

to protect life, health and property will be unnecessarily delayed, thus putting the lives of 

our local citizens in danger. The second impact on local government will be the useless 

and unnecessary reduction in funding for other vital public services. For every dollar of 

increased cost for unnecessary permitting, proportional reductions in other local 

programs will have to be made. South Carolina law prohibits counties from simply 

raising local taxes to offset these additional costs. (p. 4-5)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

549

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The agencies believe that the rule will result in a reduction of casespecific determinations which was achieved by making tributaries and adjacent 

waters jurisdictional by rule coupled with limits on the two types of categories of 

waters that require a case-specific analysis. Therefore, the agencies do not foresee 

an increase in delays due to workload on jurisdictional determinations. The agencies 

believe the final rule will simplify the process of making jurisdictional 

determinations. The rule for the first time explicitly excludes certain ditches from 

the definition of waters of the United States. The rule excludes all ditches with 

ephemeral flow that are not excavated in or relocate a tributary. The rule also 

excludes ditches with intermittent flow that are not excavated in or relocate a 

tributary or drain wetlands, regardless of whether or not the wetland is a covered 

water. Finally, ditches that do not connect to a traditional navigable water, 

interstate water, or territorial sea either directly or through another water are 

excluded, regardless of whether the flow is ephemeral, intermittent, or perennial. 

The final rule has been crafted to reduce existing confusion and inconsistency 

regarding the regulation of ditches. While the final rule does not include an explicit 

exclusion for roadside ditches, the agencies expect the exclusions included in the 

final rule will address the vast majority of roadside and other transportation 

ditches. Also, the CWA exemption for ditch maintenance remains in effect and is 

not changed by this rule. In addition, the rule does not change the current 

permitting program. Please see summary response for Topic 11: Costs/Benefits and 

the Economic Analysis document for details on the estimated costs and benefits of 

the rule.

Washington State Water Resources Association (Doc. #16543)

12.874 The previously noted “expansion” will, in turn, have negative real world consequences 

without any concomitant environmental benefits. Adoption of the proposal would 

significantly increase the time required before an entity can construct or modify 

necessary infrastructure; significantly increase the costs associated with the permitting, 

construction and potentially the operation of such infrastructure; unnecessarily increase 

post-permitting mitigation costs; and potentially even preclude the construction and 

operation of the infrastructure, placing at risk the ability to timely meet essential 

consumptive use and environmental/recreational water needs. For example:

 To the extent waters are deemed jurisdictional, it becomes necessary to go 

through the section 404 permitting process prior to undertaking any dredge and 

fill activities. This, in turn, triggers the need for state section 401 certifications 

and may also trip consultation requirements under the Endangered Species Act. 

Perhaps most importantly, the federal nexus invokes the provisions of the 

National Environmental Policy Act (NEPA), another costly and time consuming 

process involving the examination of numerous alternatives, the imposition of 

additional mitigation requirements, and exposure to costly and lengthy 

administrative and judicial challenges. This would be true even if the project 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

550

crosses only a number of dry arroyos or washes which may periodically flow only 

in response to precipitation events. As NWRA members can attest, for any large 

project the NEPA process entails years, if not over a decade, of additional work 

and millions, if not tens of millions, of additional ratepayer or taxpayer dollars in 

situations involving the construction of necessary water, wastewater and 

stormwater infrastructure.

 To the extent additional waters, such as all intermittent or ephemeral streams are 

now jurisdictional, the ability to utilize nationwide 404 permit provisions is 

placed at risk. As the scope and length of jurisdictional waters expands, the 

ability to meet the limitations governing qualification for nationwide status 

contracts.

 To the extent isolated waters, as aggregated, intermittent or ephemeral streams, or 

even all tributaries become jurisdictional, it will impede entities’ ability to timely 

respond to the devastating impacts of the forest fires ravaging the West. Post-fire, 

it is necessary to both restore damaged infrastructure, including essential utility 

infrastructure which may be located in close proximity to so-called jurisdictional 

waters, and to construct new facilities designed to hold back debris flows and 

sediment laden water as rainfall races off of what are now newly burned and 

hence impervious surfaces. Unnecessary permitting requirements will only add to 

the difficulties associated with meeting these challenges. (p. 7-8)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. 

League of Oregon Cities (Doc. #16546)

12.875 (...) broadening of jurisdictional regulation is likely to increase permitting and mitigation 

requirements which can result in additional time, complexities and cost to projects 

including roadway construction, utility facility expansions, and installation of water lines, 

intakes and outfalls. These additional requirements could come in the form of 

compliance considerations under the Endangered Species Act as well as the National 

Historic Preservation Act. With mounting infrastructure needs and facilities on the verge 

of non-compliance, we have significant concerns that the proposed rule will result in 

further litigation, increased costs or permitting delays. (p. 2)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries.

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

12.876 Many common situations/activities at industrial and commercial facilities could trigger 

Clean Water Act requirements because of the expanded “waters of the U.S.” (WOTUS) 

definition [including]: (...)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

551

 Advocacy groups contend that air emissions from facilities that leave deposits, 

such as on the vacant areas (or other waters) in this example, will require a section 

402 or 404 permit. (p. 10)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The existing permitting programs are not changed by this rule. 

12.877 Building products manufacturers are located in every part of the country. Materials used 

in their products like sawdust, clay, and dust, can get into their stormwater and, 

ultimately, into their ditches. These ditches must periodically be cleaned out so they can 

flow properly. Currently, most of these ditches are regulated by the States through the 

section 402 stormwater program. Under the revised WOTUS definition, they would 

likely have to obtain section 404 permits to remove clay sediment from these ditches 

when maintaining them. Requiring building products companies to get section 404 

permits for ditch maintenance would be a costly, time-consuming mandate that puts 

additional economic stress on the industry (as well as on the construction industry) while 

doing nothing to actually improve water quality. 

Moreover, building products plants are likely to face much tougher stormwater 

management requirements under the WOTUS proposal. Facilities that have sediment in 

runoff would be more likely to have to get section 402 point source permits and treat their 

runoff. This has already happened at a plant in the Northeast, where the state agency’s 

abrupt reinterpretation of its stormwater program resulted in a section 402 permit and 

treatment being required before rain water could be pumped out of an onsite clay pit. 

Despite the fact that the rain water was already the quality of drinking water, the 

company was required to treat it before allowing it to flow off-site. This struggling 

industry should not be required to waste precious resources to install treatment 

technologies that yield no environmental benefit. (p. 12)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. Further, the final rule includes expanded provisions describing the 

ditches and stormwater control features that are excluded from regulation. The 

final rule does not change the existing ditch maintenance exemption.

12.878 Electric generation, transmission and associated activities – The proposed rule will 

likely have negative impacts on electric utilities of all sizes by (1) delaying critical 

electric transmission line projects, thereby affecting grid resiliency, (2) hindering 

generation from domestic sources of energy and, (3) delaying the restoration of former 

utility sites. In order to streamline permitting of power line projects, utilities currently 

rely on the Corps’ nationwide permits – in particular NWP 12 for utility lines. Utilities 

may construct, maintain, and repair power lines, access roads, poles, towers, substations 

in or crossing WOTUS so long as less than 1⁄2 acre of water is affected. But NWP 12 can 

be used only if each “single and complete” project (separate and distant crossing) does 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

552

not result in the loss of more than 1⁄2 acre of WOTUS. Utility companies are often able to 

configure transmission lines to avoid most wetland and stream impacts, and thereby stay 

within the 1⁄2 acre limit. But once ditches, ponds and other features – often found on rural 

land spanned by transmission lines – are considered jurisdictional, staying within NWP 

12 limits will often be uncertain if not impossible. Utilities are concerned that individual 

crossings would no longer be evaluated separately, (not to mention corresponding 

concern associated with the treatment of adjacent waters in floodplains and riparian areas, 

and the scope of “other waters”) and the construction, maintenance or repair of any of 

these structures would require a far more expensive and time-consuming individual 

section 404 permit – a significant new burden with little or no corresponding 

environmental benefit. (p. 14)

Agency Response: Implementation of the 404 nationwide permit program is 

outside the scope of this rule. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. 

12.879 Moreover, the infrastructure needed to construct and maintain transmission lines requires 

construction of access roads to bring equipment to the poles/towers. These access roads 

and related ditches are likely to trigger section 404 permitting, which in turn may trigger 

National Environmental Policy Act (NEPA) review and Endangered Species Act (ESA) 

concerns. Expanding the amount of federal jurisdictional areas under the revised WOTUS 

definition makes these siting problems both more common and more difficult to navigate. 

In addition, utilities would likely also need section 402 NPDES permits to use herbicides 

to control vegetation within the line’s right-of-way if there is a possibility for the 

herbicide to get into a WOTUS.

As the electric utility industry faces the issue of connecting more remote generation 

sources to the grid, projects will require the siting of hundreds of miles of new 

transmission lines. Both the generating facility and its transmission lines would face 

added costs and delays from the revised WOTUS definition described above. Significant 

costs and delays will result from uncertainty about whether ditches, swales and other 

features – either on the plant site itself or crossed by new transmission lines or pipelines 

that are often many miles long and cross various landscapes are jurisdictional.

Finally, the WOTUS rule would hamper efforts to restore former utility sites and make 

them available for other productive uses. These restoration efforts typically require 

cleaning and filling onsite ditches, canals and treatment ponds, as well as grading and 

other groundwork. These features often have not been treated as jurisdictional in the 

past, but may be deemed WOTUS under the proposed rule. Thus, the work would 

require a section 404 permit and burdensome compensatory mitigation. The added costs 

and delays could result in companies electing to mothball rather than restore sites. (p. 14-

16)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations, in part 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

553

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

tributaries. In addition, the rule provides greater clarity regarding which waters are 

subject to CWA jurisdiction, reducing the instances in which permitting authorities, 

including the states and tribes with authorized section 402 and 404 CWA permitting 

programs, make jurisdictional determinations on a case-by-case basis. Further, the 

final rule includes expanded provisions describing the ditches and treatment ponds 

that are excluded from regulation. Also, the existing permit programs are not 

changed by this rule. 

John Deere & Company (Doc. #14136.1)

12.880 Contrary to the claims of agency officials, the proposed definition of “waters of the 

United States” (WOTUS) would significantly expand the waters and land over which the 

agencies will exercise jurisdiction. A determination that an area is a WOTUS subjects 

that area to several requirements under the CWA. The adoption of definitions enlarging 

the geographical area of agency jurisdiction under the CWA will, therefore, impose 

numerous time-consuming permitting obligations, additional permit requirements and 

limitations that are incompatible with many time-sensitive critical farming activities. 

These permitting requirements, which carry civil and criminal penalties for violations, 

along with potential citizen lawsuits, fail to take into account the narrow time frames 

during which farmers must plant, cultivate and harvest their crops for optimal results. 

This expanded jurisdiction thus will effectively make the EPA and Corps the primary 

agencies exercising regulatory authority over certain agriculture activities in the United 

States. This is very concerning, as neither agency has as its primary mission the 

regulation of on-farm activity involving the timely cultivation of crops and livestock 

husbandry.

The proposed WOTUS definition likewise will increase the agencies’ permitting 

authority under CWA Sections 402 and 404 to worksites and manufacturing facilities, 

which could impede ongoing operations, future site expansions and construction 

development that our economy depends upon to support jobs and spur much-needed 

growth. (p. 1-2)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. In addition, the rule provides greater clarity regarding which waters are 

subject to CWA jurisdiction, reducing the instances in which permitting authorities, 

including the states and tribes with authorized section 402 and 404 CWA permitting 

programs, make jurisdictional determinations on a case-by-case basis. To the extent 

that this comment is also referring to the Interpretive Rule, that rule has been 

withdrawn.

12.881 The Proposed Definitions Expand the Agencies Geographic Reach Under CWA section 

404(f)(1) Thereby Creating Greater Uncertainty and Burdens for Agriculture. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

554

The agencies have asserted in the proposed rule that the definitional changes do not affect 

any of the exemptions from CWA section 404 permitting requirements, including those 

for normal farming, silviculture and ranching activities.201 This assertion misses the 

mark. The normal farming, silviculture and ranching activities exemption set forth in 

Section 404(f) was enacted by Congress in response to concerns that the 1972 Federal 

Water Pollution Control Act Amendments would require farmers to obtain Section 404 

permits very broadly on agricultural land. While intended by Congress to be interpreted 

broadly and reasonably, the application of the exemption has been narrowed and often 

only exempts a specific activity, rather than the land or the water in which the activity is 

conducted. Thus, under, the proposed WOTUS definition, additional land and water will 

become jurisdictional regardless of the normal farming, ranching and silviculture 

exemption. In addition, this exemption is not available to section 402 NPDES permits. 

Section 404 establishes the permit program for discharges of “dredged or fill material”

into waters of the United States. Without a section 404 permit such discharges are 

prohibited by section 301(a) of the CWA into the waters of the United States.202 This 

permit program is the central enforcement tool of the CWA. An unpermitted discharge is 

a CWA violation and subjects the discharger to strict liability.203

To qualify for the conditional exemption, a farmer, not the EPA or the Corps, has the 

burden to demonstrate that proposed activities satisfy the “normal farming, silviculture 

and ranching activities requirements of Section 404(f)(1).”

204 In many instances this 

burden may be difficult to meet since the term “normal” in section 404(f) applies to 

activities associated with the farm or land itself, not agriculture generally. The regulations 

do not specify the precise area to look at in determining whether there is an established 

farming operation. Nor are there minimum limits placed on the “area” being brought into 

farming use. Courts have held that the normal farming activity exemption is available 

only to activities that are part of an “established farming operation” at the site.205 (p. 11)

Agency Response: The agencies continue to assert that the final rule does not 

affect any of the exemptions under 404(f). To further clarify this, the definition for 

Adjacent in the final rule has been expanded to state that waters subject to 

established, normal farming, silviculture, and ranching activities are not adjacent. 

12.882 The Proposed Definitions Will Subject More Land To The Recapture Provisions Set 

Forth In CWA Section 404(f)(2), Resulting in Unintended Consequences.

The “recapture” provision set forth in CWA section 404(f)(2) provides that discharges 

related to activities that change the use of the waters of the United States, including 

wetlands, and reduce the reach, or impair the flow or circulation of waters of the United 

States are not exempted under the normal agricultural activities set forth in section 

404(f)(1). The “normal” farming exemption provided by CWA section 404(f)(1) does 

 

201 79 Fed. Reg. 22,199 (April 21, 2014).

202 33 U.S.C. Secs. 1311(a), 1362(12)(2014).

203 United States v. Pozsgai, 999 F.2d 724 (3rd Cir. 1993); United States v. Brace, 41 F. 3d 117 (3rd Cir.1994).

204 United States v. Brace, 41 F.3d 117, 124 (3d Cir. 1994), cert. denied, 515 U.S. 1158 (1995), citing United States 

v. Akers, 785 F.2d 814, 819 (9th Cir.), cert. denied, 479 U.S. 828, 107 S.Ct. 107, 93 L.Ed.2d 56 (1986).

205 Brace, 41 F.3d at 125.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

555

not apply to activities constituting a “new use” of an area subject to the agencies’

jurisdiction and that do not adversely affect the area’s hydrology. 

An expanded waters of the United States definition means that more land will, by 

necessity, be subject to the recapture provisions set forth in CWA section 404(f)(2). A 

farmer or rancher removing land from the Conservation Reserve Program will now be 

required to assess in much greater detail and with far greater certainty those portions of 

his land falling within the jurisdictional waters of the United States. A farmer wanting to 

convert this land back into production will also be required to demonstrate that this action 

does not constitute a “new use” and will not adversely affect the area’s hydrology. 

An unintentional consequence of an expansive WOTUS definition extending Section 404 

permitting requirements to significant portions of farmland may be that farmers will not 

change the use of their land for fear that any such change would trigger the Section 

404(f)(2) recapture provisions. This uncertainty will discourage farmers and ranchers 

from implementing new types of conservation technologies for fear that they may be 

locked into a certain farming practice, or worse, subject to civil and criminal enforcement 

and citizen lawsuits. (p. 12)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The agencies continue to assert that the final rule does not affect any of 

the exemptions under 404(f) or recapture under 404(f)(2). To further clarify this, the 

definition for Adjacent in the final rule has been expanded to state that waters 

subject to established, normal farming, silviculture, and ranching activities are not 

adjacent. 

12.883 The Proposed WOTUS Definition Increases the Number of Projects Required to Obtain 

Section 404 Permits, Thereby Impeding Much-Needed Improvements to the Nation’s 

Infrastructure.

Under the proposed rule a substantial portion of the nation’s waters and land would be 

jurisdictional under the CWA, thereby resulting in more projects and activities being 

required to obtain section 404 dredge and fill permits. The section 404 permit process is 

lengthy and costly, often requiring the use of consultants and legal counsel. Failure to 

obtain permits can result in enforcement actions and potential civil or criminal penalties 

of up to $37,500 per day. Such an expansion of the CWA’s jurisdictional reach will add 

delays and costs to an already-overburdened Corps regulatory program. It will also erect 

significant economic barriers to important projects at a time when our country is facing 

the need for massive infrastructure improvements.206 (p. 14)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

 

206 Deidre G. Duncan, Kerry L. McGrath, EPA and U.S. Army Corps Seek to Expand Jurisdiction Under the Clean 

Water Act, Engage Volume 13, Issue 1 (March 2012), http://www.fedsoc.org/publications/detail/epa-and-us-armycorps-seek-to-expand-jurisdiction-under-the-clean-wateract. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

556

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

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

tributaries. In addition, the rule provides greater clarity regarding which waters are 

subject to CWA jurisdiction, reducing the instances in which permitting authorities, 

including the states and tribes with authorized section 402 and 404 CWA permitting 

programs, make jurisdictional determinations on a case-by-case basis.

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

12.884 The rule will not result in greater clarity and efficiency, but will simply force disputes 

from the JD phase to the permit phase. 

The preamble of the Proposed Rule goes to great lengths to justify this paradigmatic shift 

from case-by-case to categorical by-rule imposition of jurisdiction, and it justifies the 

shift under the guise of certainty and efficiency. See, e.g., id. at 22,190 (“The purposes of 

the proposed rule are to ensure protection of our nation’s aquatic resources and make the 

process of identifying ‘waters of the United States’ less complicated and more efficient. 

The rule achieves these goals by increasing CWA program transparency, predictability, 

and consistency. This Rule will result in more effective and efficient CWA permit 

evaluations with increased certainty and less litigation”). While this “certainty” and 

“efficiency” may arguably be true from the perspective of the Agencies (i.e., it is 

“certain” in that everything is now categorically jurisdictional; it is “efficient” in that 

Agency personnel are no longer going to bother with tasks like visits to the field to 

actually investigate the nature of a given feature), it is far from certain and efficient from 

the perspective of the regulated community. Quite to the contrary, this categorical 

proclamation of jurisdiction simply defers disputes, conflict, and inevitable litigation 

from the jurisdictional determination phase to the permit phase. 

Admittedly, the jurisdictional delineation phase of the Agencies’ Section 404 regulatory 

program can be time consuming, labor intensive, and expensive. But it serves an 

essential function for the regulated community. Being able to vet and devise which 

features on a given property holding are or are not jurisdictional can help inform and 

define a future project proposal. Avoidance, minimization, and mitigation strategies can 

be considered and analyzed far more effectively and impactfully early on in the planning 

stages of a project. The investigation, debate, and analysis of CWA jurisdiction can 

greatly inform this early process. 

But under the approach of the Proposed Rule, all of this early analysis and potential for 

collaboration is done away with. All features potentially fitting within the broad 

definitions of the Proposed Rule are categorically jurisdictional with no further analysis. 

And the applicant is instead forced into a permit process necessitating a specific project 

proposal in advance, with all of its attendant avoidance, minimization, and mitigation 

strategies hardened in advance, for features which that applicant may deeply contest are 

in fact jurisdictional. 

Thus, the Proposed Rule eliminates the forum for collaboration and throws all potential 

disputes into the forum of hard line proposals, advance study at significant cost, and 

where stakes preclude avenues of compromise. This will not lead to increased clarity and 

efficiency. On the contrary, it will heighten conflict, increase costs, and ensure increased 

litigation. (p. 27-28)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

557

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. In addition, the rule provides greater clarity regarding which waters are 

subject to CWA jurisdiction, reducing the instances in which permitting authorities, 

including the states and tribes with authorized section 402 and 404 CWA permitting 

programs, make jurisdictional determinations on a case-by-case basis.

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

12.885 The EPA and Corps should evaluate the potential impacts approval of the proposed rule 

will have on existing permits and permit stipulations. The evaluation should be published 

with potential opportunities for mitigation. (p. 3)

Agency Response: Implementation of the permitting program is beyond the scope 

of this rule. That said, the scope of regulatory jurisdiction in this rule is narrower 

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries.

Cooperative Network (Doc. #15184)

12.886 A vast expansion of the Clean Water Act that would create significant challenges for 

cooperatives that build and maintain power lines in largely rural service territories. 

Specifically, it appears that existing general permits may become inadequate to address 

basic utility construction, power restoration, and other maintenance activities if the 

WOTUS definition is changed as proposed. Because this proposed rule would include 

intermittent and ephemeral streams and ditches and floodplains as a WOTUS, the scope 

of projects will be amplified and could trigger notification and other general permit 

provisions that don’t apply today, or exceed the scope of the respective general permit 

and trigger site-specific permitting. Restoring power after a storm event is a life safety 

concern that becomes infinitely more complex when utilities would possibility need to 

obtain a site-specific permit, obtain regulatory approval under an existing general permit, 

or become subject to general permit conditions that did not apply previously. (p. 2)

Agency Response: Implementation of the 404 general permit program is outside 

the scope of this rule. That said, the scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries. 

Automotive Recyclers Association (Doc. #15343)

12.887 As you well know, the major components of a NPDES stormwater permit include a 

statement authorizing the discharge, and the specific locations for which a discharge is 

authorized. Permit writers also spend a majority of their time deriving appropriate 

effluent limits based on applicable technology-based and water quality-based standards. 

Under the proposed rule, it appears that the permit writers would need to understand the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

558

new water categories and definitions and include the different standards for the different 

water bodies in the permit. No protocol was proposed in the rule for this process and the 

rule also is silent on creating an infrastructure under which affected industries could 

provide input on their stormwater discharges to multiple water bodies.

As well, the rule offered no discussion on how additional waterway characteristics will 

affect the MSGP which covers multiple facilities within a specific category. In deciding 

whether to develop a general permit, permitting authorities must consider several factors 

including whether only a small percentage of facilities to be covered have the potential 

for violations of water quality standards. This decision process might have to change if 

there were additional waters under the proposed rule that would now have the potential to 

be polluted by the said facilities. (p. 7)

Agency Response: Please see summary responses for Sections 12.3 and 7.4.4.

Council of Industrial Boiler Owners (Doc. #15401)

12.888 CIBO members are concerned that the proposed requirement that waters be aggregated 

with other “similar waters” in the region for determining whether they have a significant 

nexus to navigable waters. This will cause a gridlock in the CWA permitting process for 

facilities expecting to permit a project or activity with a Nationwide Permit (NWP) and 

facilities that are subject to National Pollutant Discharge Elimination System (NPDES) 

permits. (p. 4)

Agency Response: In the final rule, the agencies provided additional clarity by 

expanding the discussion of “similarly situated” in the preamble and the rule 

identifies (paragraph (a)(7)) five subcategories of waters (praire potholes, Carolina 

and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal 

praire wetlands) that the agencies have determined are “similarly situated” for 

purposes of a significant nexus determination.

12.889 NWPs streamlined wetland permits specifically authorized by the CWA that authorize 

specific, limited activities which allow applicants to design projects in a way that 

comports with the regulatory parameters of the NWP and lends predictability to the 

issuance of a permit. These permits are reauthorized every five years by the Corps, 

which requires each NWP to be re-analyzed under the rigorous National Environmental 

Policy Act (NEPA) process and the CWA 404(b)(1) process. These reviews ensure that 

any project authorized under a NWP is in public interest and will not significantly 

degrade US waters and that few impacts will be incurred by the project.

This proposed rule, with its aggregate impacts focus, could greatly complicate the 

reissuance of the NWPs, and perhaps invite legal challenges to regulatory conclusions 

reauthorizing NWPs. Without NWPs, the Corps would otherwise have to issue 

individual permits for each project, which take almost seven times longer to process than 

regular NWPs.207 Without these NWPs, the Corps could not provide an adequate level of 

review for major projects, which would reduce its ability to enforce wetland laws. The 

 

207 Congressional Research Service, January 30, 2012; The Army Corps of Engineers’ Nationwide Permits Program: 

Issues and Regulatory Developments; Copeland, Claudia, p.2, available at http://www.fas.org/sgp/crs/natsec/97-

223.pdf
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

559

proposed rule and its aggregate impacts on wetlands, once aggregated with other 

wetlands and expanded determinations of their significant nexus to downstream waters 

would impede this already efficient Corps program and the Corps will be forced to reduce 

the number of NWPs they issue. This potential effect of the proposed rule greatly 

increases the regulatory burden of the Corps and creates the possibility for unnecessary 

wetland degradation. (p. 4-5)

Agency Response: Implementation of the 404 nationwide permit program is 

outside the scope of this rule. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. 

Idaho Association of Commerce & Industry (Doc. #15461)

12.890 Electric utilities also are required to obtain permits under section 404 of the CWA 

whenever it engages in dredging or filling activities within the ordinary high water mark 

of a WOTUS. Currently, much of the work can be done under Nation Wide Permits 

because of the nature of the work and limited extent of the impact. Because of the 

uncertainty of whether currently non-jurisdictional waters and ephemeral features will 

become jurisdictional under the significant nexus definition of the proposed rule, electric 

utilities will be required to engage in additional permitting, including acquiring 

Individual Permits, and mitigation that would not be necessary under the existing 

definition of WOTUS208. Individual Permits are often complicated and expensive 

because they require consultation with multiple state and federal agencies, along with 

acquiring associated 401 permits. The cost of obtaining a Nation Wide Permit can vary 

from $10,000 to $40,000, while the cost of obtaining and Individual Permit is 

substantially higher, ranging from $100,000 to $500,000, depending on the complexity of 

the project. With an expansion of waters that are considered jurisdictional, many projects 

that would not require an Individual Permit today will require one under the proposed 

definition. Therefore, contrary to the Agencies claim, the cost impact to the regulated 

community will be significant. 

To emphasize this point, much of the impact on electric utilities of the proposed rule 

occurs during activities that preserve electricity reliability and protect national security. 

Transmission and distribution corridors, substations, and new generation facilities are and 

will continue to be a critical component of preserving electric reliability to customers, 

including important national security functions through that reliability. The delivery of 

electricity to support: these critical functions requires the construction, expansion, 

operation, and maintenance of transmission and distribution lines, which often cross 

hundreds of miles of land in remote areas. Because of the geographic extent of these 

lines, there are numerous opportunities to cross or run adjacent to waters that are 

jurisdictional under section 404. Under the proposed rule, entire floodplains, streams, 

 

208 Nation Wide Permits are limited in scope and geographic impact and are designed for commonly occurring, 

smaller projects with well-defined impacts. Individual Permits are necessary when the acreage of impacts is larger 

(e.g., transmission line construction).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

560

ephemeral feature, ditches (per se jurisdictional under the proposed rule), “similarly 

situated waters,” among numerous others, and waters adjacent to them would be 

considered WOTUS and may require an Individual Permit, rather than the more costeffective Nation Wide Permit. If the cost of obtaining the Individual Permit, including 

associated mitigation, is prohibitive important upgrades and new construction will not 

occur, or will be delayed, leading to reliability and national security risks.

For example, Nationwide Permit 12 for utility lines authorizes ground disturbances of 

only 1⁄2 acre per project. Under the proposed rule, as previously discussed, the Agencies 

may assert jurisdiction over such features where they determine the existence of a stream 

bed, bank, and OHWM, or other flow contributing features regardless of a bed, bank, and 

OHWM. Of course, this is inherently a highly subjective and inconsistent practice, even 

with the Agencies’ attempt to clarify some terms.209 Thus, although each crossing of a 

WOTUS is a separate project, if a line continuously crisscrosses a feature deemed 

jurisdictional, it may be considered a single impact of more than 1⁄2 acre. As a result, the 

existing Nationwide Permit for transmission fines may be rendered inoperative because 

the Agencies may determine a much greater impact to WOTUS based on an expanded 

conception of jurisdictional waters. The proposed rule is silent on how it would ensure a 

consistent application of the proposed rule, other than treating virtually all “waters” as 

WOTUS. 

As it stands, the proposed rule will broadly expand what is considered a WOTUS and 

will significantly affect the ability of electric utilities to address future electricity 

demands. All of the preceding impacts will delay energy development, increase the cost 

of electricity to consumers, and may force decisions that impact the reliability of 

electricity. (p. 14-15)

Agency Response: Implementation of the 404 nationwide permit program is 

outside the scope of this rule. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. 

Water Advocacy Coalition (Doc. #17921.1)

12.891 Throughout the preamble to the proposed rule, and in its supporting documentation, in 

discussing and evaluating the definitional change of waters of the United States, the 

agencies focus almost exclusively on the change’s impacts on the section 404 program. 

But the agencies propose to substitute their new definition of waters of the United States 

throughout the CWA regulations, which will result in broadened scope and additional 

obligations for all CWA programs. The term navigable waters is used throughout the 

CWA and its regulations 135 times. The term waters of the United States is used 98 

times. The scope of the definition of waters of the United States dictates the scope of the 

CWA’s programs. 

 

209 Rapanos, 547 U.S. at 734. Justice Kennedy discusses the ambiguity of terms that are not sufficiently detailed to 

provide appropriate jurisdictional limits.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

561

Despite that fact, the agencies have failed to consider the significant implications of this 

major change on all of the CWA’s programs. For example, nowhere does the preamble 

to the proposed rule discuss impacts to the section 303 WQS and TMDL programs, 

section 311 oil spill prevention program, section 401 certification, or section 402 permit 

program (covering, e.g., individual permits, industrial stormwater general permits, 

construction stormwater general permits, and pesticide general permits). Furthermore, as 

discussed in more detail in section V.C., the discussion of impacts of the proposed rule on 

the section 404 dredged or fill permit program is woefully inadequate. 

As all industries impacted by the CWA are aware, even with the current jurisdictional 

reach, the agencies cannot process permits in a timely fashion. The substantially 

expanded jurisdiction proposed by the rule will require considerable additional federal 

and State resources to timely process permit applications and otherwise implement the 

affected programs. In addition, considerably increased agency budgets will be required 

to meet these requirements. Without consideration of these practical impacts, the 

proposed rule essentially sets the agencies up for failure, and sets industry up for 

increased delays in project development and increased expenses for navigating any 

project through requisite CWA permitting. (p. 74)

Agency Response: The preamble to the final rule clearly recognizes and considers 

the impacts of clarifying the definition of “waters of the United States” on all 

applicable CWA programs. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. 

12.892 Section 404 requires a permit for the discharge of dredged or fill material into waters of 

the U.S. 33 U.S.C. § 1344. The proposed rule’s definition of waters of the United States 

will result in more activities triggering section 404 permitting requirements. Features 

such as ditches, waters in floodplains, and isolated waters, which were not previously 

considered jurisdictional, will now be covered by the proposed rule.210 Any discharge of 

dredged or fill material into these newly jurisdictional features will trigger CWA section 

404 requirements.

The proposed rule will increase the need for individual permitting because fewer 

activities will qualify for general permits. NWPs are available under CWA section 

404(e) for activities which are “similar in nature, will cause only minimal adverse 

environmental effects when performed separately, and will have only minimal 

cumulative adverse effects on the environment.” The NWPs have maximum acreage 

thresholds. For example, NWP 12 allows for discharges of dredged or fill material for 

the construction, maintenance, repair, and removal of utility lines that will not result in 

the loss of greater than one-half-acre of waters of the United States for each single and 

complete project.211 With more features and areas considered waters of the United States, 

many activities will exceed the NWP threshold, and applicants will be forced to rely on 

 

210 See 79 Fed. Reg. at 22,193.

211 77 Fed. Reg. 10,184, 10,271 (Feb. 21, 2012).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

562

individual permits. Individual permits are much more costly than general permits: the 

average cost to prepare an NWP application is $35,954, but the average cost to prepare an 

individual permit application is $337,577.212 Increased individual permitting also means 

increased delays for permit applicants. While a NWP may take only ten months to 

obtain, it can take over two years to obtain an individual permit.213 And a large increase 

in individual permit applications is likely to overwhelm EPA and Corps staff, increasing 

delays. These delays will result in lost opportunity costs for stakeholders. Overall, the 

increased costs and delays associated with individual permitting could thwart 

development and maintenance of critical infrastructure, such as highways, railroads, and 

utility lines that previously would have relied heavily on general permits.

Under the proposed rule, permittees will likely face increased mitigation requirements 

because unavoidable impacts to newly jurisdictional features and waters would require 

additional mitigation. Corps regulations require compensatory mitigation through 

mitigation banks, in-lieu fee mitigation, or permittee-responsible mitigation, to offset 

unavoidable impacts to waters of the United States authorized through section 404 

permits. 33 C.F.R. § 332. Such mitigation is not only costly, but it is also difficult in 

many instances to obtain the requisite number of available mitigation credits. The 

increase in jurisdiction and associated mitigation requirements could cause a run on 

mitigation bank credits. As explained in Professor David L. Sunding’s review of the 

agencies’ economic analysis for the proposed rule, EPA’s estimate of the increased 

mitigation costs are far too low and lack proper documentation and explanation.214 In 

reality, the proposed rule’s expanded definition of waters of the United States will result 

in a significant increase in mitigation costs, placing a heavy burden on project 

proponents. 

In addition, inherent uncertainty in the rule will increase costs and impose substantial 

burdens to compliance. The agencies acknowledge that jurisdictional uncertainty 

increases paperwork, costs, and time, while decreasing a business’ willingness to 

invest.215 As discussed throughout these comments, the proposed rule suffers from a lack 

of clarity in many critical respects and will not reduce uncertainty or unpredictability in 

CWA implementation. Among other ambiguities, the proposed rule fails to provide a 

quantifiable method for determining “significant nexus;” fails to define “upland,”

“perennial flow,” and other key terms; and leaves important determinations (e.g., 

floodplain interval, shallow subsurface flow) to the agencies’ “best professional 

judgment.” These and other inherent uncertainties are likely to produce confusion over 

 

212 See David Sunding & David Zilberman, The Economics of Environmental Regulations by Licensing: An 

Assessment of Recent Changes to the Wetland Permitting Process, 42 Nat. Resources J. 59, 74 (2002) (analyzing 

permit costs and demonstrating that the cost difference is even more significant with larger projects). 

213 Id. at 76.

214 David Sunding, Ph.D., The Brattle Group, Review of 2014 EPA Economic Analysis of Proposed Revised 

Definition of Waters of the United States (May 15, 2014) (“Sunding Review”) (attached hereto as Exhibit 19) at 18-

19.

215 EPA (primary author) and U.S. Army Corps of Engineers (contributing author), Economic Analysis of Proposed 

Revised Definition of Waters of the United States (Mar. 2014) at 10, available at 

http://www2.epa.gov/sites/production /files/2014-03/documents/wus_proposed_rule_economic_analysis.pdf

(“Economic Analysis”).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

563

whether a feature is a water of the United States and whether a facility must seek a 

section 404 permit for work that impacts the feature. Confusion over the definition will 

increase costs to comply with section 404, complicate project design and engineering 

efforts designed to avoid jurisdictional impacts, and increase the likelihood of discharges 

to unrecognized waters of the United States without a permit. In addition, as a result of 

the proposed rule’s uncertainties, section 404 permittees may be subject to additional 

enforcement actions and citizen suits.

Increased section 404 permitting requirements will subject project proponents to 

additional federal and State environmental compliance burdens. A Corps section 404 

permit decision triggers the National Environmental Policy Act, Coastal Zone 

Management Act, National Historic Preservation Act, and Endangered Species Act 

(“ESA”). 33 C.F.R. § 325.2. Additional requirements and determinations, including 

environmental assessments or impact statements, certifications of consistency with the 

State’s Coastal Zone Management Plan, ESA section 7 consultation, and consultation 

with State historic preservation offices, would lengthen delays, increase opportunity 

costs, increase the burdens on federal and State agencies, and increase the overall cost of 

permits.

The proposed rule may also reach green infrastructure. EPA has pushed permittees to 

develop and implement green infrastructure in recent years.216 Because green 

infrastructure is not exempt under the proposed rule, a section 404 permit, as well as 

other monitoring and regulatory requirements, could now be required for green 

infrastructure construction and maintenance where the green infrastructure is developed 

in areas considered to be “waters of the United States” under the proposed rule. The 

potential for additional regulation will discourage the development of green 

infrastructure. (p. 74-76)

Agency Response: Implementation of the 404 nationwide permit program is 

outside the scope of this rule. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. In addition, the rule provides greater clarity 

regarding which waters are subject to CWA jurisdiction, reducing the instances in 

which permitting authorities, including the states and tribes with authorized section 

402 and 404 CWA permitting programs, make jurisdictional determinations on a 

case-by-case basis. To the extent that this comment is also referring to the 

Interpretive Rule, that rule has been withdrawn. The greater clarity and narrower 

scope of the final rule should also ensure that it does not act to discourage 

development of green infrastructure. 

 

216 See, e.g., EPA, Greening CSO Plans: Planning and Modeling Green Infrastructure for Combined Sewer

Overflow Control, No. 832-R-14-001 (Mar. 2014), available at

http://water.epa.gov/infrastructure/greeninfrastructure/upload/Greening_CSO_Plans.PDF. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

564

John Deere & Company (Doc. #14136.1)

12.893 The Proposed Definitions Will Subject More Land To The Recapture Provisions Set 

Forth In CWA Section 404(1)(2), Resulting in Unintended Consequences

The “recapture” provision set forth in CWA section 404(1)(2) provides that discharges 

related to activities that change the use of the waters of the United States, including 

wetlands, and reduce the reach, or impair the flow or circulation of waters of the United 

States are not exempted under the normal agricultural activities set forth in section 

404(1)(1). The “normal” farming exemption provided by CWA section 404(1)(1) does 

not apply to activities constituting a “new use” of an area subject to the agencies’

jurisdiction and that do not adversely affect the area’s hydrology. 

An expanded waters of the United States definition means that more land will, by 

necessity, be subject to the recapture provisions set forth in CWA section 404(1)(2). A 

farmer or rancher removing land from the Conservation Reserve Program will now be 

required to assess in much greater detail and with far greater certainty those portions of 

his land falling within the jurisdictional waters of the United States. A farmer wanting to 

convert this land back into production will also be required to demonstrate that this action 

does not constitute a “new use” and will not adversely affect the area’s hydrology. 

An unintentional consequence of an expansive WOTUS definition extending Section 404 

permitting requirements to significant portions of farmland may be that farmers will not 

change the use of their land for fear that any such change would trigger the Section 

404(1)(2) recapture provisions. This uncertainty will discourage farmers and ranchers 

from implementing new types of conservation technologies for fear that they may be 

locked into a certain farming practice, or worse, subject to civil and criminal enforcement 

and citizen lawsuits. (p. 12)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The rule also leaves in place all existing agricultural exemptions and 

does not change the Section 404(f)(2) recapture provision.

12.894 The Proposed WOTUS Definition Increases the Number of Projects Required to Obtain 

Section 404 Permits, Thereby Impeding Much-Needed Improvements to the Nation’s 

Infrastructure

Under the proposed rule a substantial portion of the nation’s waters and land would be 

jurisdictional under the CWA, thereby resulting in more projects and activities being 

required to obtain section 404 dredge and fill permits. The section 404 permit process is 

lengthy and costly, often requiring the use of consultants and legal counsel. Failure to 

obtain permits can result in enforcement actions and potential civil or criminal penalties 

of up to $37,500 per day. Such an expansion of the CWA’s jurisdictional reach will add 

delays and costs to an already-overburdened Corps regulatory program. It will also erect 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

565

significant economic barriers to important projects at a time when our country is facing 

the need for massive infrastructure improvements.217 (p. 13)

Agency Response: Implementation of the Section 404 permit program is outside 

the scope of this rule. That said, the scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries. In addition, the rule provides greater clarity regarding which waters are 

subject to CWA jurisdiction, reducing the instances in which permitting authorities, 

including the states and tribes with authorized section 402 and 404 CWA permitting 

programs, make jurisdictional determinations on a case-by-case basis. 

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

12.895 Under this Proposed Rule (if finalized), agency field staff could evaluate and determine 

which waters are subject to jurisdiction which could cover multiple CWA permitting 

programs. The determination criteria described within this Proposed Rule (or lack 

thereof) appears to be relatively wide open to interpretation by the Agencies, making it 

prone to variability in evaluation by different Agency personnel. This overreaching 

regulatory burden would result in: I) extended review and approval times, 2) significantly 

more permits being required, including those for smaller projects where permitting is not 

currently required, 3) increased expenses both directly and indirectly, and 4) more 

difficult project planning and financing arrangements. Our review of this Proposed Rule 

indicates that the Agencies have significantly underestimated the increase in 

jurisdictional waters and features would it be finalized in its current form. Under this 

Proposed Rule, if virtually any proposed project is challenged, it would seem easy for the 

challenging party or Agencies to demonstrate a significant nexus due to the ambiguity in 

this Proposed Rule. (p. 2-3)

Agency Response: Implementation of the CWA permitting programs are outside 

the scope of this rule. That said, the scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries. In addition, the rule provides greater clarity regarding which waters are 

subject to CWA jurisdiction, reducing the instances in which permitting authorities, 

including the states and tribes with authorized section 402 and 404 CWA permitting 

programs, make jurisdictional determinations on a case-by-case basis.

12.896 In some cases, this Proposed Rule and the Agencies rely upon reports such as the 

Environmental Law Institute (ELI) report which clearly mischaracterizes regulatory 

compliance programs that multiple states have primacy for and have had for quite some 

time. One example is Minnesota’s section 404 permitting program which has been in 

place for quite some time. The ELI report states that federal control is needed in 

 

217 Deidre G. Duncan, Kerry L. McGrath, EPA and US. Army Corps Seek to Expand Jurisdiction Under the Clean 

Water Act, Engage Volume 13, Issue 1 (March 2012)
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566

Minnesota because they don’t have a regulatory program and authority to enforce it, 

which is clearly not the case. (p. 3)

Agency Response: The agencies are aware of the existence and extent of 

Minnesota’s regulatory program. 

Building Industry Association of Washington (Doc. #13622)

12.897 At a fragile economic time when many housing markets are just beginning to recover, 

increasing the current backlog for CWA permits is very concerning when there is no 

environmental benefit for Washingtonians. With the current backlog for CWA permits of 

15,000 to 20,000 many environmentally sound projects will simply never get started due 

to the mere potential of having to obtain a CWA permit. Moreover, those homeowners 

and builders brave enough to tackle the current two to three year wait time it takes to

receive a permit under the CWA will be rewarded with added complexity, increased 

costs, and even longer waiting times for projects. Compliance and transactional costs for 

the hiring of CWA consultants and engineers as well as unknown liabilities and post

construction costs incurred as a result of the rule change will not only adversely affect 

residential construction, increasing the cost of homes, but will also impact all 

Washingtonians as lot availability of developable land will suffer. The lack of 

developable land causes higher priced homes, sprawl, pollution, and traffic as people 

move farther from city centers to find the homes they desire. As an organization that 

champions housing affordability, we write in opposition to higher home prices and 

needless permits, paperwork, and penalties that are sure to come if the recently proposed 

rule comes into effect. BIAW supports housing choices and shorter commute times so 

families can spend more time together and less time polluting our highways going from 

home to work and this proposed rule works against those goals without helping the 

environment. (p. 2)

Agency Response: Implementation of the Section 404 permit program is outside 

the scope of this rule. That said, the scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries. The agencies believe that the rule will result in a reduction of casespecific determinations which was achieved by making tributaries and adjacent 

waters jurisdictional by rule coupled with limits on the two types of categories of 

waters that require a case-specific analysis. Therefore, the agencies do not foresee 

an increase in delays due to workload on jurisdictional determinations. The agencies 

believe the final rule will simplify the process of making jurisdictional 

determinations.

12.898 The expanded definition creates uncertainty. By expanding the definition of navigable 

waters to include (1) “any” flows including ditches and culverts, (2) vaguely defined 

“riparian areas” and “floodplains,” (4) shallow subsurface water connects, and (5) “other 

waters” subject to case-by case analysis at the EPA’s discretion – federal jurisdiction 

vastly expands – but in no certain terms. Consequently, homeowners and construction 

activities already regulated by state local entities are, also, potentially subject to federal

regulators, at their discretion, rather than under CWA passed by Congress. This means 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

567

homeowners and homebuilders cannot read the law and know whether it applies to them

– rather they have to roll the dice and potentially spend exorbitant amounts of time and 

money to simply to find out whether the property is subject to federal regulation or not. 

This was not Congress’s intent. (p. 2-3)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries.

Commercial Real Estate Development Association (Doc. #14621)

12.899 Of particular note is that the Proposed Rule does not mention which areas surrounding 

new WOTUS determinations will also be impacted with regards to mitigation 

requirements. Currently, the geographic scope of federal regulation of WOTUS often 

includes 25’ to 50’ (or more) upland riparian buffers by Corps permit regulations for 

streams and open waters (i.e., Nationwide Permit General Condition C.23.(f), Federal 

Register Vol. 77 No. 34, February 21, 2012, pg. 10285). This could result in a significant 

increase in the area of land regulated by the federal government by an order of magnitude 

much greater than the physical area of WOTUS – e.g., a 5-foot wide ephemeral stream 

would have at least a 25-foot buffer (or more) on each side, or 50-feet, 10 times the size 

of the stream. We anticipate streams as small as 1-3 feet wide will be determined 

jurisdictional by the Corps. If the current buffer requirement is needed for these types of 

waters, the economic impact would be significant. (p. 2-3)

Agency Response: Implementation of the 404 nationwide permit program is 

outside the scope of this rule. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries.

12.900 The primary reason why significant portions of the public are so concerned with the 

extent of the definition of WOTUS is due to the financial burdens and the requirements 

of dealing with the current CWA permitting program. The Corps and EPA should 

refocused their efforts on developing a successful and simplified permit process by 

determining:

 What is regulated (areas and activities).

 What is required (of applicants).

 Timeliness requirements (for agency responses).

NAIOP’s proposed changes will clarify and clearly communicate what is regulated in 

terms of area. The proposed rule is lacking in any attempt to define or articulate the 

activities in such areas that the federal government proposes to regulate. While this was 

attempted for agricultural activities, we suggest that a stakeholder group be formed to 

spell out what activities shall not be allowed in WOTUS without a CWA permit. An 

effective permit program needs to include a specific list and description of what is 

required for an application to be complete. States that have done so have dramatically 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

568

reduced the time that staff and applicants expend on “getting in the door” with a complete 

application suitable for a timely review. Timeliness requirements are critical for effective 

and efficient CWA permit review. A timeframe for completeness review must be 

established (e.g., 15 days). The regulators must either ask for more information 

consistent with the program requirements or accept the application. Then, depending on 

the type of permit, an outside timeframe for issuance must be mandated for all permits. 

(p. 7)

Agency Response: Implementation of the regulatory program is outside the scope 

of this rulemaking.

Leigh Hanson, Inc. (Doc. #15781)

12.901 Lehigh Hanson believes that as proposed this rule will have a significant negative effect 

on existing and new NPDES discharge requirements and CWA section 404 permitting 

requirements.

Sand and Gravel Pits that currently mine material from below the water table and which 

are located within a floodplain could become subject to new permitting based on the 

mining pit being determined jurisdictional under the proposed rule. This is particularly 

concerning since the proposed rule does not define the frequency or period of moderate 

or high water flows (is it a 5- year, 10-year, 100-year or 500-year flood event?) for an 

area to be classified as “floodplain.” An example can be drawn from a section of 

farmland that had the top soil removed to expose the sand below. The sand deposit 

extends to below the water table and a clam bucket or dredge is used to remove the sand 

where a lake has been created by the mining process. Water from a dredge conveyance 

would potentially need to be treated for sediments before it could be returned to the lake. 

The capital cost for sedimentation control of conveyance water would be approximately 

$1-$2M. If sand and gravel is dewatered on a clam shell dredge, it is likely that the 

screen underflow discharge returned to the lake will be classified as discharge to a 

WOTUS and thus may require sedimentation treatment. There is no economic 

engineering solution for treating underflow water from a clam shell dredge to WOTUS. 

This would preclude mining deeper than 30-40 feet, which is the current limit of suction 

dredge technology. Lehigh Hanson would lose the ability to mine in several existing 

locations under such a scenario.

Both EPA and Corps personnel have acknowledged that many permitting decisions 

would be made on a case by case basis. This is unacceptable and impractical. 

Interpretations can vary widely and as a direct result it negatively affects planning for 

expansions and limits plans for leasing or acquiring new reserves. For example, if the 

new lake in the previous scenario overflows from natural rain events to a small creek, 

would this flow require permitting? Is the newly created lake now a WOTUS? Is the 

ditch that the lake discharges into a WOTUS? Without clear, definitive answers to these 

questions, a case by case determination of whether permits would be required (under 

current regulation they would not be required) could add immeasurable delays and 

unknown costs to the operation. 

Current permitting of new reserves can take 12-18 months when there are clear 

guidelines for interpreting existing regulation. We have also experienced environmental 

permitting timelines ranging from 5 to 10 years, which historically have involved 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

569

competing agencies and varied interpretations of existing policy. The uncertainty 

regarding the interpretation of this proposed rule and the anticipated increased workload 

of field regulatory personnel will undoubtedly lead to further delays and gridlock.

Lehigh Hanson believes that permitting complexity would increase significantly in areas 

representing more than 35% of our 2013 production and market shipments. Added 

uncertainty could even lead to abandonment of permitting activities in some of these 

jurisdictions.

In several locations where new permitting would be required due to the expansion of 

wetlands delineation or the inclusion of intermittent and ephemeral streams, the 

associated economics and time delays could lead us to conclude that the operations would 

no longer be competitive. 

Significant concerns exist over the ability to permit future natural sand deposits. Most 

natural sands in the US were deposited as hydraulic sediments. Under the proposed rule, 

reserves of natural sand will become increasingly difficult to permit due to their 

proximity to natural wetlands, flood plains and intermittent and ephemeral streams. State 

Departments of Transportation (DOT’s) specify/require ASTM C33 sands for concrete 

paving and for other concrete infrastructure. For various technical reasons, there is a very 

strong preference for natural sands in place of manufactured sand for use in State DOT 

and commercial construction. Consequently, if these materials are not available for 

future construction projects, industry and DOT specifications most likely will need to be 

modified to accommodate loss of access to natural sand as existing deposits are 

exhausted. This loss also is likely to result in increased construction costs. 

Since the proposed rule presumes almost everything as jurisdictional (except other 

waters), we believe that this expansive approach coupled with desk based reviews (with 

no details prescribed) will likely create a scenario where fewer activities are subject to 

Jurisdictional Determination requests. However, the growth in the number of areas now 

considered ‘‘jurisdictional” will increase the Corps workload tremendously for 

assessment of mitigations, alternatives testing and permit approvals (including 106 

Federal Nexus reviews). We have existing projects which already have been delayed in 

regulatory review by the Corps for more than 6 months. With increased permitting and 

static staffing, it is likely that wait time for permits will increase significantly. (p. 2-3)

Agency Response: Implementation of the Section 404 permit program is outside 

the scope of this rule. That said, the scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries. In addition, the rule provides greater clarity regarding which waters are 

subject to CWA jurisdiction, reducing the instances in which permitting authorities, 

including the states and tribes with authorized section 402 and 404 CWA permitting 

programs, make jurisdictional determinations on a case-by-case basis.

Ames Construction, Inc. (Doc. #17045)

12.902 (...) under current conditions, securing individual permit coverage typically takes more 

than a year, costs hundreds of thousands of dollars, and requires the support of expert 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

570

technical consultants, and often lawyers. The current 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. In light of the scope of the 

proposed jurisdictional expansion, it will be nearly impossible for my company to 

develop public or private land containing drainage ditches, stormwater control basins, 

ponds or other water features that are arguably subject to the rule’s expansive 

jurisdictional reach without first obtaining a costly federal CWA permit. (p. 1)

Agency Response: Implementation of the Section 404 permit program is outside 

the scope of this rule. That said, the scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries.

National Association of Home Builders (Doc. #19540)

12.903 The Proposed Rule will Result in Increased Clean Water Act Section 404 Permitting 

Requirements.

Section 404 of the CWA requires a permit for the discharge of dredged or fill material 

into waters of the United States.218 The proposed rule’s expansive definition of waters of 

the United States will result in more activities triggering the Section 404 permitting 

requirements. Features such as ditches, all waters in floodplains and riparian areas, and 

isolated waters, which were not previously considered jurisdictional, will now be covered 

by the proposed rule.219 Any discharge of dredged or fill material into these newly 

jurisdictional features will first require the project proponent to obtain a CWA Section 

404 permit. The onslaught of new permits will burden the Corps permit writers and state 

water quality officers, and delays will plague property owners and businesses.

Further, under the proposed rule, permittees will likely face increased mitigation 

requirements because unavoidable impacts to newly jurisdictional features and waters 

would require additional mitigation. Corps regulations require compensatory mitigation 

through mitigation banks, in-lieu fee mitigation, or permittee-responsible mitigation, to 

offset unavoidable impacts to waters of the United States authorized through CWA 

Section 404 permits.220 Such mitigation is not only costly, but it is also difficult in many 

instances to obtain the requisite number of available mitigation credits or to create such 

credits onsite or nearby. The increase in jurisdiction and associated mitigation 

requirements could cause a run on mitigation bank credits, making them more expensive 

and difficult to obtain. As explained in Dr. David Sunding’s review of EPA’s Economic 

Analysis, EPA’s estimate of the increased mitigation costs are far too low and lack proper 

 

218 33 U.S.C. § 1344. 

219 See 79 Fed. Reg. at 22,193. 

220 33 C.F.R. § 332 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

571

documentation and explanation.221 In reality, the proposed rule’s expanded definition of 

“waters of the United States” will result in a significant increase in mitigation costs, 

placing a heavy burden on project proponents. 

In addition, the inherent uncertainty of the rule will increase costs and impose substantial 

burdens on compliance. The Agencies acknowledge that jurisdictional uncertainty 

increases paperwork, costs, and time while decreasing a business’ willingness to invest, 

yet have not done enough to address this impact.222 As discussed throughout these 

comments, the proposed rule suffers from a lack of clarity in many critical respects and 

will not reduce uncertainty or unpredictability in CWA implementation. Among other 

ambiguities, the proposed rule fails to provide a quantifiable method for determining 

“significant nexus;” fails to define “upland,” “perennial flow,” and other key terms; and 

leaves important determinations (e.g., floodplain interval, shallow subsurface flow) to the 

agencies’ “best professional judgment.” These and other uncertainties will produce 

confusion over whether a feature is a “water of the United States” and whether a facility 

must seek a Section 404 permit for work that impacts the feature. Confusion over the 

definition will increase costs to comply with Section 404, complicate project design and 

engineering efforts designed to avoid jurisdictional impacts, and increase the likelihood 

of unintended illegal discharges. In addition, as a result of the proposed rule’s 

uncertainties, Section 404 permittees may be subject to additional enforcement actions 

and citizen suits. (p. 118-119)

Agency Response: Implementation of the Section 404 permit program is outside 

the scope of this rule. That said, the scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries. In addition, the rule provides greater clarity regarding which waters are 

subject to CWA jurisdiction, reducing the instances in which permitting authorities, 

including the states and tribes with authorized section 402 and 404 CWA permitting 

programs, make jurisdictional determinations on a case-by-case basis.

12.904 The Proposed Rule will Adversely Impact Clean Water Act Permitting Processes.

The expansive definition of “waters of the United States” under the proposed rule will 

result in more CWA permit applications, an increased permit backlog, and further limit 

the applicability of the Nationwide Permit program. Additionally, the proposal does not 

address how existing permits will be treated if the rule becomes final. (p. 129)

Agency Response: Implementation of the permitting program is outside the scope 

of this rulemaking. That said, the scope of regulatory jurisdiction in this rule is 

 

221 Dr. David Sunding, “Review of 2014 EPA Economic Analysis of Proposed Revised Definition of Waters of the 

United States” (May 15, 2014) at 18,19 (hereinafter, Sunding Review of EPA’s Economic Analysis), available at 

http://www.nam.org/Issues/Environment/Water-Regulations/WOTUS-Economic-Report-FINAL.aspxWOTUSEconomic-Report-FINAL.pdf

222 EPA, Economic Analysis of Proposed Revised Definition of Waters of the United States, at 10 (March 2014) 

(hereinafter, EPA Economic Analysis), available at http://www.regulations.gov/#!documentDetail;D=EPA-HQOW-2011-0880-0003
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

572

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries. 

12.905 The Proposed Rule will make it more Challenging to Obtain Nationwide Permits, 

Resulting in a Surge of Individual Permits

As a result of the expansive “tributary,” “adjacent waters,” and “other waters”

definitions, the proposed rule will increase the number of CWA permits landowners will 

need to obtain. What’s more, the proposed rule will increase the need for individual 

permitting because fewer activities will qualify for general permits. Nationwide permits 

(NWPs) are available under CWA Section 404(e) for activities which are “similar in 

nature, will cause only minimal adverse environmental effects when performed 

separately, and will have only minimal cumulative adverse effects on the 

environment.”

223

 Each NWP has a maximum acreage threshold that can be disturbed 

pursuant to that permit. For example, NWP 12 allows for discharges of dredged or fill 

material for the construction, maintenance, repair and removal of utility lines that will not 

result in the loss of greater than 1/2-acre of waters of the United States for each single 

and complete project.224 With more features and areas considered waters of the United 

States it will be increasingly difficult to avoid and minimize impacts, many activities will 

exceed the NWP threshold, and applicants will be forced to rely on individual permits. 

Individual permits are much more costly than general permits. In 2002, the average cost 

to prepare an NWP application was $35,954, but the average cost to prepare an individual 

permit application was $337,577.225 In the ten-plus years since these costs were 

calculated, it is certain that they have increased considerably.

An increased number of individual permits also means increased delays for permit 

applicants and increased workloads for permit writers. While an NWP may take up to ten 

months to obtain, it can take over two years to obtain an individual permit.226 And a 

large increase in individual permit applications is likely to overwhelm Corps and state 

staff, further increasing delays. These delays will result in lost opportunity costs for 

stakeholders. For instance, home builders and land developers often obtain construction 

and development loans to finance their projects. The terms and conditions of these loans 

can require the builder or developer to begin repayment as early as six months after 

issuance. If a project requires an individual permit, the applicant may not even be able to 

get a project off the ground before he/she needs to begin repaying the loan needed to fund 

it. Without question, the costs and delays associated with more individual permits due to 

the expanded scope of federal jurisdiction will disrupt the ability of home builders and 

 

223 33 U.S.C. § 1344(e).

224 77 Fed. Reg. 10,184, 10,271 (Feb. 21, 2012).

225 See David Sunding & David Zilberman, The Economics of Environmental Regulations by Licensing: An 

Assessment of Recent Changes to the Wetland Permitting Process, 42 Nat. Resources J, 59 at 74 (2002) (analyzing 

permit costs and demonstrating that the cost difference is even more significant with larger projects) (hereinafter, 

Sunding and Zilberman Economics of Environmental Regulations) available at 

http://are.berkeley.edu/~sunding/Economcs%20of%20Environmental%20Regulation.pdf

226 Id. at 76
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

573

land developers to do business. More broadly, the increased costs and delays associated 

with individual permitting could thwart development and maintenance of critical 

infrastructure, such as highways, railroads, and utility lines that previously would have 

relied heavily on general permits.

NAHB’s concerns are bolstered in light of National Association of Home Builders v. 

Army Corps of Engineers, in which the D.C. Circuit Court of Appeals found that a 

revised CWA definition had the effect of restricting developers’ eligibility for general 

wetland permits, forcing them to apply for more burdensome and costly individual 

permits in many more situations.227 Indeed, today’s proposed changes to the “waters of 

the United States” definition could jeopardize the future of the entire NWP program. (p. 

129-130)

Agency Response: The rule only provides a definition for “waters of the U.S.” 

Implementation of the Section 404 permitting program is outside the scope of this 

rule. That said, the scope of regulatory jurisdiction in this rule is narrower than that 

under the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries.

Texas Mining and Reclamation Association (Doc. #10750)

12.906 Mining operations are required to obtain all appropriate environmental licenses and 

permits in advance of any land disturbance, including CWA Sections 404, 402, and 401 

permits and certifications. By way of one example, under Section 404 of the CWA, 

mining operations are typically required to mitigate the disturbance of onsite “waters of 

the United States” through the creation of off-site and on-site wetlands and streams. If 

the rule is not clarified to exclude these on-site operational water management features 

from the definition of “waters of the United States,” the mining industry will be forced to 

obtain permits and provide mitigation in a never ending regulatory loop to meet other 

performance standards and requirements, including those required under the CWA, 

SMCRA, Mine Safety and Health Act, etc.

As such, TMRA urges the Agencies to revise the proposal to clarify that on-site water 

management features, including all structures – natural and man-made - that contain, 

convey, and, as necessary, chemically or physically treat on-site water associated with 

mining operations, continue to not constitute “waters of the United States. Failure to do 

so will have serious implications on the mining industry in Texas, possibly rendering 

some mining operations unfeasible. (p. 4)

Agency Response: Implementation of the Section 404 permitting program is 

outside the scope of this rule. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. In the rule, the agencies identify a variety of waters 

and features that are not “waters of the United States.” Prior converted cropland 

 

227 National Association of Home Builders v. Army Corps of Engineers, 417 F.3d 1272 (D.C. Cir. 2005). 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

574

and waste treatment systems have been excluded from this definition since 1992 and 

1979, respectively, and they remain substantively and operationally unchanged. The 

agencies add exclusions for all waters and features identified as generally exempt in 

preamble language from Federal Register notices by the Corps on November 13, 

1986, and by EPA on June 6, 1988. This is the first time these exclusions have been 

established by rule. The agencies for the first time also establish by rule that certain 

ditches are excluded from jurisdiction. The agencies add exclusions for groundwater 

and erosional features, as well as exclusions for some waters that were identified in 

public comments as possibly being found jurisdictional under proposed rule 

language where this was never the agencies’ intent. These exclusions are reflective of 

current agencies’ practice, and their inclusion in the rule furthers the agencies’ goal 

of providing greater clarity over what waters are and are not protected under the 

CWA. Even where waters are covered by the CWA, the agencies have adopted 

many streamlined regulatory requirements to simplify and expedite compliance 

through the use of measures such as general permits developed at the national, 

regional or state level. However, current general permits or the future development 

of general permits consistent with CWA section 404(e) are beyond the scope of the 

final rule.

12.907 Many activities, e.g., construction of sediment ponds on mine sites, are already subject to 

comprehensive Section 404 permitting requirements if they involve discharging into an 

existing jurisdictional water. 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. If the proposed rule results in the 

assertion of CWA jurisdiction over various on-site water management features, Texas 

mining companies will face even more complicating permitting requirements for routine 

activities on mine sites, which will impose substantial costs and operational delays 

without appreciable environmental benefit, and could lead to mining operators being 

unable to perform timely and necessary maintenance and safety functions while awaiting 

a CWA permitting decision. 

To illustrate, Texas mining companies are constantly maintaining, modifying, moving,

and reclaiming ditches during the life of the mine because of the dynamic nature of 

mining operations. If mining companies must now obtain Section 404 permit coverage 

each time they have to conduct one of these ditch-related activities, operations would 

effectively come to a halt due to the delays and burdens of permitting. Or worse, mining 

companies might find themselves in a position where they are unable to comply with 

other regulatory requirements such as those relating to the removal and reclamation of 

temporary structures under SMCRA if they need a Section 404 permit to clean or reclaim 

a ditch.228 The Agencies provided no analysis of how many additional Section 404 

permits will be required if a 404 permit is required every time a water management ditch 

is moved or maintained. Furthermore, the Corps has not analyzed how it will meet the 

increased demand on its resources. Indeed, under the existing nationwide permits for 

mining, operators would be required to apply for a permit for every 300 linear feet of 

 

228 30 U.S.C.§ 1265(c).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

575

ditch that will require maintenance. Considering perimeter and drainage ditches can be 

several thousands of linear feet, how will the Corps manage this additional workload?

Furthermore, what kind of lead time will be needed where obtaining a simple permit for 

any mining operations typically takes anywhere from a several months to years? 

Clearly the EPA and COE did not anticipate that the proposed definition would entail 

such complex and burdensome requirements. However, clarification is necessary to 

assure that their expectations are codified in the definition. Otherwise, TMRA requests 

that a complete analysis of the impacts of defining operational waters internal to a mine 

site as “waters of the United States” be conducted. 

Such permitting would also bring with it mandatory mitigation requirements, which 

would place further strain on mitigation banks. In certain parts of the country, mitigation 

credits are becoming scarce and expensive – and this is the case in Texas as well. As a 

result of the proposed rule, mitigation costs are almost certain to rise to the point where at 

least some mining operations, operational improvements, and small or large scale 

expansions could become cost prohibitive or outright impossible. 

The proposed rule will also trigger increased Section 402 permitting obligations for 

mining-related activities should additional previously non-jurisdictional waters become 

jurisdictional. In particular, many ditches, which are already regulated as stormwater 

conveyances under Section 402(p), as well as ditches conveying waters to ponds and 

impoundments, could likely be considered jurisdictional waters subject to water quality 

standards, total maximum daily loads, and NPDES requirements. As a result, companies 

needlessly will have to treat not only discharges from such ditches to downstream waters, 

but also discharges to those very same ditches themselves. 

By way of another example, under the proposed rule mining companies could be put in 

the impossible situation of having features designed to either store or treat water runoff 

from disturbed lands to improve water quality be themselves required to meet water 

quality standards. Under such a scenario, how would any mining operation meet existing 

permit limits if the very systems the Agencies relied on in determining available 

compliance technologies - i.e. ponds, impoundments, ditches, and conveyances - are no 

longer available to assist with pre-discharge treatment? Were this to happen, every Texas 

mine would be immediately out of compliance with CWA requirements unless they 

treated their water before it even entered a mine conveyance system. 

In other words, without clarifying language the proposed rule would create the absurd 

result of requiring Texas miners to treat water to meet NPDES effluent limits before 

water is conveyed to water treatment systems or downstream sediment ponds, effectively 

unnecessarily treating the same water twice before leaving the mine site. The Agencies 

must address these ambiguities in the proposed rule by confirming that these mine site 

waters are not “waters of the United States” to avoid such substantial unintended 

consequences. 

Likewise, with respect to Section 402, by essentially moving the extent of federal CWA 

jurisdiction upstream, the proposal would lead to confusion concerning outfall and 

receiving waters determinations. During the last 40 years, innumerable NPDES permits 

have been issued, each of which identifies one or multiple outfalls, which in turn each 

have in the permit an identified “receiving water” and monitoring location. Some of 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

576

these determinations were made decades ago, and have been reflected in several 

successive NPDES permits. Will permittees and permit issuers now be required to 

reassess determinations that have been reasonably relied on by regulators and permittees 

alike for decades – and which the Agencies have not identified as causing any 

environmental problems – based on the new proposal? 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 (p. 10-12)

Agency Response: Implementation of the Section 404 permitting program is 

outside the scope of this rule. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. In addition, the rule provides additional clarification 

regarding the kinds of water management features that are excluded from the rule 

including artificial ponds created in dry land for the purpose of settling basins; 

stormwater control features constructed to convey, treat, or store stormwater that 

are created in dry land; and a variety of wastewater recycling structures created in 

dry land including detention and retention basins built for wastewater recycling, 

groundwater recharge basins, and percolation ponds built for wastewater recycling. 

The rule for the first time explicitly excludes certain ditches from the definition of 

waters of the United States. The rule excludes all ditches with ephemeral flow that 

are not excavated in or relocate a tributary. The rule also excludes ditches with 

intermittent flow that are not excavated in or relocate a tributary or drain wetlands, 

regardless of whether or not the wetland is a covered water. Finally, ditches that do 

not connect to a traditional navigable water, interstate water, or territorial sea 

either directly or through another water are excluded, regardless of whether the 

flow is ephemeral, intermittent, or perennial. The final rule has been crafted to 

reduce existing confusion and inconsistency regarding the regulation of ditches. 

While the final rule does not include an explicit exclusion for roadside ditches, the 

agencies expect the exclusions included in the final rule will address the vast 

majority of roadside and other transportation ditches. Also, the CWA exemption for 

ditch maintenance remains in effect and is not changed by this rule.

The Rule will be effective 60 days after publication in the Federal Register. Under 

existing Corps’ regulations and guidance, Corps’ approved jurisdictional 

determinations generally are valid for five years. The preamble addresses the status 

of final JDs and permits as well as pending JDs and permits. Already issued permits 

are not affected by this rule. 

The rule only provides a definition for “waters of the U.S.” The rule does not affect 

the CWA statute in which authorization may be required for discharges of dredged 

and/or fill material into waters of the U.S., or other activities in jurisdictional waters 

of the U.S. including for example, NPDES permits, water quality standards, or 

Section 311 requirements which also require authorization.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

577

Pennsylvania Coal Alliance (Doc. #13074)

12.908 [Regarding Diversion and Collection Ditches] The need for Section 404 permitting is a 

major impediment to fulfilling the obligations of a mining permit. For example, E&S 

plans may require ditches to be lined with riprap and constructed with check dams or 

other structures, both of which would require a Section 404 permit. Operations may 

necessitate frequent movement or modification of these ditches, with each movement 

requiring a Section 404 permit. In addition, under Pennsylvania law, these same ditches 

would be required to be maintained under the E&S plan and removed as part of 

reclamation activities, again requiring a Section 404 permit. Given the long length of 

ditches that can run the perimeter of a mining area, individual Section 404 permitting 

may be required for any or all of these activities, resulting in extended wait times before 

any modification, maintenance or reclamation could be completed. At every stage of 

development, delays in receiving, or the inability to receive, a Section 404 permit could 

cause a violation of the requirements of the mining permit and significant delays and 

downtime, both of which could compromise the ability of an operator to continue 

operations. Even if mining operations are able to continue, restoration/mitigation would 

be required for Section 404 impacts to these newly designated jurisdictional waters, 

increasing demand for mitigation projects and, likewise, increasing the cost of mitigation 

banking credits. 

In addition to the Section 404 ramifications, if diversion and/or treatment ditches are 

considered to be jurisdictional, point source discharges to these ditches would require an 

NPDES permit, and the ditches themselves could, arguably, be subject to monitoring and 

compliance with water quality standards and effluent limitations at each of, likely, many 

point source discharges to each ditch. Conflicts arise because these ditches (in 

conjunction with treatment ponds and sedimentation basins) are installed to control and 

treat the collected water prior to discharge to a jurisdictional water. If these ditches are 

considered to be jurisdictional waters, effluent limitations would need to be met when the 

water reached these features. The very nature of mining and the purpose of these ditches 

make compliance with effluent limitations and associated water quality standards in the 

ditches and treatment ponds an impossibility in nearly every situation. By making 

compliance with the NPDES permit so difficult, the Proposed Rule would make 

discharges to these ditches and ponds subject to actions by third party groups asserting 

claims against the mine operator for not meeting effluent limitations or water quality 

standards. (p. 10)

Agency Response: Implementation of the CWA permitting programs is outside 

the scope of this rule. That said, the scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries. In addition, the rule provides additional clarification regarding the 

kinds of water management features that are excluded from the rule including 

artificial ponds created in dry land for the purpose of settling basins; stormwater 

control features constructed to convey, treat, or store stormwater that are created in 

dry land; and a variety of wastewater recycling structures created in dry land

including detention and retention basins built for wastewater recycling, 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

578

groundwater recharge basins, and percolation ponds built for wastewater recycling. 

The rule also provides additional clarification regarding the types of ditches that are 

excluded from the rule including ditches that do not flow, either directly or through 

another water, into a traditional navigable water. The rule also clarifies that waste 

treatment systems, including treatment ponds or lagoons designed to meet the 

requirements of the CWA are excluded from the rule.

12.909 Settling and Treatment Ponds. Similarly, settling and treatment ponds are installed to 

collect and manage discharges from mine sites. Settling ponds typically detain the 

surface water and groundwater being diverted around the mine site to reduce the 

sediment load of the diverted water. Treatment ponds are installed to treat groundwater 

flowing through, or surface water flowing over, mined areas. If necessary, treatment may 

include the addition of chemicals, including flocculants, oxidizers or pH adjusters. Other 

treatment methods include aeration and passive treatment. Treatment ponds may be 

synthetically lined or constructed of compacted material to prevent infiltration. Very 

similar to the discussion above regarding ditches, settling and treatment ponds could be 

considered to be jurisdictional waters under the Proposed Rule as currently drafted.

Conflicts with state law would arise because many efforts to maintain a liner and 

containment capacity would require Section 404 permitting, if the ponds would be 

considered jurisdictional waters. In addition, NPDES (Section 402) issues would arise, 

as discussed above, again making it nearly impossible for effluent limitations and water 

quality standards to be met for the ponds. Additional NPDES issues would arise if 

chemicals were added to the pond. (p. 10)

Agency Response: The rule clarifies that waste treatment systems, including 

treatment ponds or lagoons designed to meet the requirements of the CWA are 

excluded from the rule. In addition, the rule provides additional clarification 

regarding the kinds of water management features that are excluded from the rule 

including artificial ponds created in dry land for the purpose of settling basins; 

stormwater control features constructed to convey, treat, or store stormwater that 

are created in dry land; and a variety of wastewater recycling structures created in 

dry land including detention and retention basins built for wastewater recycling, 

groundwater recharge basins, and percolation ponds built for wastewater recycling. 

The rule also provides additional clarification regarding the types of ditches that are 

excluded from the rule including ditches that do not flow, either directly or through 

another water, into a traditional navigable water. 

12.910 Site Reclamation. If on-site ditches and ponds are considered to be jurisdictional waters, 

the Section 404 program permitting requirements would conflict and interfere with the 

operators’ ability to comply with the state reclamation requirements and, subsequently, 

the operators’ ability to get their bonds released. It would also conflict with agreements 

with landowners as to how and when reclamation would be completed. (p. 11)

Agency Response: Implementation of the Section 404 permitting program is 

outside the scope of this rule. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The rule clarifies that waste treatment systems, 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

579

including treatment ponds or lagoons designed to meet the requirements of the 

CWA are excluded from the rule. In addition, the rule provides additional 

clarification regarding the kinds of water management features that are excluded 

from the rule including artificial ponds created in dry land for the purpose of 

settling basins; stormwater control features constructed to convey, treat, or store 

stormwater that are created in dry land; and a variety of wastewater recycling 

structures created in dry land including detention and retention basins built for 

wastewater recycling, groundwater recharge basins, and percolation ponds built for 

wastewater recycling. The rule also provides additional clarification regarding the 

types of ditches that are excluded from the rule including ditches that do not flow, 

either directly or through another water, into a traditional navigable water. 

American Exploration & Mining Association (Doc. #13616)

12.911 AEMA members are required to manage storm and runoff water in the course of 

conducting their operations. The proposed rule will impose federal CWA regulation to 

features that are constructed and used pursuant to other federal and state regulatory 

programs. AEMA members also conduct activities and operations that are likely to cross 

or impact ephemeral drainages and ditches. To illustrate, mining companies are 

constantly maintaining, modifying, moving, and reclaiming ditches during the life of the 

mine because of the dynamic nature of mining operations. If mining companies must 

now obtain Section 404 permit coverage each time they have to conduct one of these 

ditch-related activities, operations would effectively come to a halt due to the delays and 

burdens of permitting. Or worse, mining companies might find themselves in a position 

where they are unable to comply with other regulatory requirements such as the 

reclamation requirements of the 43 C.F.R. 3809 regulations. (p. 4)

Agency Response: Implementation of the Section 404 permitting program is 

outside the scope of this rule. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The rule clarifies that waste treatment systems, 

including treatment ponds or lagoons designed to meet the requirements of the 

CWA are excluded from the rule. In addition, the rule provides additional 

clarification regarding the kinds of water management features that are excluded 

from the rule including stormwater control features constructed to convey, treat, or 

store stormwater that are created in dry land. The rule also provides additional 

clarification regarding the types of ditches that are excluded from the rule including 

ephemeral ditches that are not a relocated tributary or excavated in a tributary and 

ditches that do not flow, either directly or through another water, into a traditional 

navigable water. 

12.912 In addition to the implications for Section 404 permitting, the proposed rule is also likely 

to trigger increased Section 402 permitting obligations for mining-related activities as 

additional waters within mine sites that were previously non-jurisdictional become 

jurisdictional. In particular, many ditches, which are already regulated as stormwater 

conveyances under Section 402(p), as well as ditches conveying waters to ponds and 

impoundments, could likely be considered jurisdictional waters subject to water quality 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

580

standards, total maximum daily loads, and NPDES requirements. As a result, companies 

needlessly will have to treat not only discharges from such ditches to downstream waters, 

but also discharges to those very same ditches. Additionally, by way of another example, 

under the proposed rule mining companies could be put in the impossible situation of 

having features designed to either store or treat mining-related materials to improve water 

quality be themselves required to meet water quality standards. (p. 5)

Agency Response: Implementation of the Section 404 permitting program is 

outside the scope of this rule. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The rule clarifies that waste treatment systems, 

including treatment ponds or lagoons designed to meet the requirements of the 

CWA are excluded from the rule. In addition, the rule provides additional 

clarification regarding the kinds of water management features that are excluded 

from the rule including stormwater control features constructed to convey, treat, or 

store stormwater that are created in dry land. The rule also provides additional 

clarification regarding the types of ditches that are excluded from the rule including 

ephemeral ditches that are not a relocated tributary or excavated in a tributary and 

ditches that do not flow, either directly or through another water, into a traditional 

navigable water. 

Alliance Coal, LLC (Doc. #14577)

12.913 Under Section404 of the Clean Water Act, mining operations are typically required to 

mitigate the disturbance of onsite waters of the United States through the creation of 

offsite and onsite wetlands and streams. If the rule is not clarified to exclude these postdisturbance areas from the definition of waters of the United States, the mining industry 

will be forced to obtain permits and provide mitigation in a never ending regulatory loop 

to meet other performance standards of Environmental rules and regulations (i.e., 

SMCRA, MSHA, etc.). (p. 1)

Agency Response: To the extent that the commenter is referring to section 404 

compensatory mitigation sites, these sites should already be provided protections 

from future disturbance pursuant to existing regulations (i.e., 40 CFR 230.97(a)). 

This final rule does not change those existing requirements.

County Commissioners Association of Pennsylvania (Doc. #14579)

12.914 ... [A] complex web of laws, regulations and policies has made it increasingly difficult, 

less efficient and more costly for counties to undertake needed waterway infrastructure 

projects such as dams and levees, and storm water management. These projects are 

critical elements of public health and safety, helping to manage flooding events, assuring 

water quality and promoting sustainable land use and community development. As a 

priority for this year, Pennsylvania’s counties are encouraging a review of current federal 

and state laws and regulations with a goal of promoting more effective policies and 

procedures. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

581

The confusing Waters of the U.S. definition proposed by EPA and Army Corps goes in 

the entirely opposite direction of this goal, tangling the web further rather than facilitating 

more efficient delivery of environmental programs. We are very concerned that, despite 

the assertions of the EPA and Army Corps to the contrary, the proposed rule would 

modify and expand existing regulations which have been in place for over 25 years. For 

Pennsylvania, because of the strong tradition of state and local oversight that has been in 

place for decades, subjecting more waters to federal jurisdiction represents only a paper 

fix, increasing the paperwork, time and cost for acquiring additional federal permits 

without any actual improvement to water quality. (p. 1-2)

Agency Response: The rule only provides a definition for “waters of the U.S.” 

The scope of regulatory jurisdiction in this rule is narrower than that under the 

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

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

important qualifiers on some existing categories such as tributaries. See the 

Economic Analysis for the final rule for further discussion on the predicted 

jurisdictional changes under the final rule.

12.915 Pennsylvania’s Clean Streams Law: Presentations made by the EPA have indicated that 

the proposed rule will help states protect their waters because two-thirds of the nation’s 

states rely on the federal definition. However, other states, including Pennsylvania, apply 

jurisdiction to “waters of the state,” which must be as inclusive as “waters of the U.S.”

but may be more inclusive. Pennsylvania’s Clean Streams Law, enacted prior to the 

federal Clean Water Act, includes a definition of “waters of the commonwealth” which 

protects all of the state’s “rivers, streams, creeks, rivulets, impoundments, ditches, 

watercourses, storm sewers, lakes, dammed water, wetlands, ponds, springs and other 

bodies or channels of conveyance of surface and underground water, or parts thereof, 

whether natural or artificial, within or on the boundaries” of the commonwealth. This 

statute also provides the foundation of delegation to the Pennsylvania Department of 

Environmental Protection (DEP) of the National Pollution Discharge Elimination System 

(NPDES) program under section 402 of the Clean Water Act. 

While the Clean Streams Law is the principal governing statute regarding Pennsylvania’s 

water quality, other state statutes addressing water quality and control include the Dam 

Safety and Encroachment Act (Act 325 of 1978), the Flood Plain Management Act (Act 

166 of 1978), the Sewage Facilities Act (Act 537 of 1965), the Storm Water Management 

Act (Act 167 of 1978), the Water Resources Planning Act (Act 220 of 2002) and the 

Nutrient Management Act (Act 38 of 2005, replacing Act 6 of 1993). Under these laws, 

Pennsylvania has developed comprehensive regulations and an extensive permitting 

system to assure our water quality remains at the highest levels. In addition, our 

definition of “waters of the commonwealth” already covers the types of waters it appears 

the EPA and Army Corps are seeking jurisdiction over in the proposed Waters of the U.S. 

rule. 

Despite these extensive protections already in place, EPA has continued to heavily rely 

on a 2013 Environmental Law Institute study, State Constraints – State-Imposed 

Limitations on the Authority of Agencies to Regulate Waters Beyond the Scope of the 

Federal Clean Water Act. This study, referenced in the background information 

supporting the rulemaking (though not in the rulemaking itself), fails to identify 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

582

Pennsylvania’s state statutes and regulations; in fact, there is no mention of the Clean 

Streams Law at all. Instead, the study proposes that the Waters of the U.S. rulemaking is 

needed to address states’ regulatory loopholes, including Pennsylvania. Given that the 

background to the proposed rule states, “This proposal does not affect Congressional 

policy to preserve the primary responsibilities and rights of states to prevent, reduce, and 

eliminate pollution, to plan the development and use of land and water resources....under 

the CWA,” we would hope that the EPA and Army Corps would withdraw this rule until 

such time as it has a better, and more accurate, understanding of existing state laws, 

regulations and programs developed pursuant to that primary responsibility. 

Since it seems likely that the proposed Waters of the U.S. definition would expand the 

scope of waters under federal jurisdiction (as discussed below), this means new permits 

would be required for activities and waters that are already regulated under state law. In 

addition to the cost and time associated with preparing and filing these applications, 

many entities report that it is at least a 30-day wait for approval of a nationwide permit, 

as many as 60 days for approval of an isolated permit and up to 180 days or longer for an 

individual permit. If these permits are required for activities that are traditionally just 

routine maintenance, the expansion of jurisdiction creates a bureaucratic mess for what 

should be a simple task.

Further, states are required to expand their current water quality designations to protect 

jurisdictional waters, increasing reporting and attainment standards at the state level. 

Section 305(b) of the Clean Water Act requires a report from states that includes (among 

other items) a description of the water quality of all navigable waters in the state and an 

analysis of the extent to which they meet the 101(a)(2) goals of the Act. Any increase to 

do these surveys and reports (and to what gain?) will also create a cost for local 

governments as resources are used for these purposes rather than for on-the-ground 

projects that actually benefit water quality.

Again, the expansion of federal jurisdiction over waters, as interpreted in this proposed 

rule, would do nothing to better protect Pennsylvania’s water resources, only create more 

paperwork, make permitting processes more costly and more time consuming – and 

ultimately, undermine the good work we have been doing in this state for decades. (p. 2-

3)

Agency Response: The rule only provides a definition for “waters of the U.S.” 

The scope of regulatory jurisdiction in this rule is narrower than that under the 

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

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

important qualifiers on some existing categories such as tributaries. Nothing in this 

rule limits the ability of states to regulate a broader scope of waters than the federal 

government. The agencies’ understanding of existing state laws is not defined by a 

study conducted by the Environmental Law Institute.

12.916 State and Local Oversight. In addition to the oversight provided by the state’s DEP, 

under the Pennsylvania Conservation District Law (Act 217 of 1945), all counties except 

Philadelphia were authorized to create a county conservation district “as a primary local 

government unit responsible for the conservation of natural resources in this 

Commonwealth and to be responsible for implementing programs, projects and activities 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

583

to quantify, prevent and control nonpoint sources of pollution” (Section 2). County 

conservation districts bring a local perspective to balancing environmental protection 

with growth, including local geologic and topographic knowledge. In addition, their 

knowledge and experience of the issues in their communities lead to better management 

of resources, targeted technical assistance, educational guidance to landowners on matters 

such as reducing soil erosion, storm water management, dirt and gravel road pollution 

prevention, protection of water quality and prevention of hazardous situations such as 

floods. 

The 66 districts also accept delegation agreements with DEP and the State Conservation 

Commission to implement nutrient management, permitting processes, wetland 

management, bridges, and erosion and sedimentation controls. The districts have three 

options – basic education, technical assistance (non-enforcement) and enforcement; 

twelve districts are enforcement districts. Conservation districts also cooperate with DEP 

regarding spraying for black fly populations along affected streams, and have been 

actively engaged in the development and implementation of Pennsylvania’s Chesapeake 

Bay Watershed Implementation Plan to help meet the Total Maximum Daily Load 

(TMDL) goals set by the EPA. 

Again, since the proposed Waters of the U.S. definition appears to expand the scope of 

waters under federal jurisdiction (as discussed below), it follows that EPA and Army 

Corps would have additional oversight responsibilities for those waters, undermining our 

successful model of local oversight. Not only is this duplicative, but this additional layer 

of permitting would be reviewed and approved by staff at EPA’s regional offices, which 

cover several states. With such an expansive territory, it is far more difficult for EPA 

regional staff to be active regularly in the communities for which they work and to have 

the “boots on the ground” that can help develop solutions.

We urge the EPA and Army Corp to include counties in all decision-making processes as 

they develop new regulations and programs that will affect waterway infrastructure, 

including withdrawal of the currently proposed Waters of the U.S. definition until such 

local input can be considered. This way, counties may remain fully engaged as the 

foundation for local conservation and environmental problem-solving efforts. (p. 2-3)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The agencies understand and appreciate the important role counties 

play in developing and implementing environmental regulations and have and will 

continue to coordinate with counties on the development and implementation of 

such regulations. The agencies are developing guidance to facilitate implementation 

of the final rule when it becomes effective, which will provide for consistent 

determinations. The agencies strive to achieve consistency across the country in all 

districts and regions in application of the rule for jurisdictional determinations.

12.917 Proposed Definition of “Waters of the U.S. The proposed Waters of the U.S. (hereafter 

referred to as WOTUS) definition would modify existing regulations regarding which 

waters fall under federal jurisdiction through the Clean Water Act. Its purpose is to 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

584

clarify issues raised in U.S. Supreme Court decisions over the past decade or so that have 

created uncertainty over the scope of CWA jurisdiction. The newly proposed rule 

attempts to resolve this confusion by broadening the geographic scope of Clean Water 

Act jurisdiction, defining WOTUS under federal jurisdiction to include navigable waters, 

interstate waters, territorial waters, tributaries (ditches), wetlands and “other waters.” It 

also redefines or contains new definitions for key terms, such as adjacency, riparian area 

and flood plain. 

While EPA and Army Corp claim that the intention is to provide more regulatory 

certainty for land developers, farmers and other businesses, the language used only 

results in additional confusion. A good regulation would be clear, so everyone – both 

regulator and regulated – knows what is allowed and when a permit is required. Instead, 

the key terms used by the proposed WOTUS definition are inadequately explained, even 

less clear than current law and raise important questions. Because the proposed 

definitions are vague, the only certainty is that this matter will be tied up in the courts and 

projects unnecessarily delayed for years to come, creating additional doubt within 

industries and communities across the state and assuring resources are devoted to 

administrative and legal burdens rather than actually protecting water quality. (p. 4)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. In addition to clarifying the definition of tributary, the rule also 

clarifies definitions for adjacent, neighboring, significant nexus, ordinary high water

mark, and high tide line. This narrowing of scope and clarifying of definitions are 

designed to address the kind of unintended confusion highlighted by the commenter. 

The agencies are developing guidance to facilitate implementation of the final rule 

when it becomes effective, which will provide for consistent determinations. The 

agencies strive to achieve consistency across the country in all districts and regions 

in application of the rule for jurisdictional determinations.

12.918 Practical Examples. In recent years, Section 404 permits have been required for ditch 

maintenance activities such as cleaning out vegetation and debris. Once a ditch is under 

federal jurisdiction, this permit process can be extremely cumbersome, time-consuming 

and expensive. While, in theory, a maintenance exemption for ditches exists, it is 

difficult for local governments to use the exemption. The federal jurisdictional process is 

not well understood and the determination process can be extremely cumbersome, timeconsuming and expensive, creating legal vulnerabilities for communities that are 

responsible for maintaining these ditches, even if the federal permit is not approved in a 

timely manner. (p. 6)

Agency Response: Implementation of the Section 404 permitting program is 

outside the scope of this rule. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The rule for the first time explicitly excludes certain 

ditches from the definition of waters of the United States. The rule excludes all 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

585

ditches with ephemeral flow that are not excavated in or relocate a tributary. The 

rule also excludes ditches with intermittent flow that are not excavated in or 

relocate a tributary or drain wetlands, regardless of whether or not the wetland is a 

covered water. Finally, ditches that do not connect to a traditional navigable water, 

interstate water, or territorial sea either directly or through another water are 

excluded, regardless of whether the flow is ephemeral, intermittent, or perennial. 

The final rule has been crafted to reduce existing confusion and inconsistency 

regarding the regulation of ditches. While the final rule does not include an explicit 

exclusion for roadside ditches, the agencies expect the exclusions included in the 

final rule will address the vast majority of roadside and other transportation

ditches. Also, the CWA exemption for ditch maintenance remains in effect and is 

not changed by this rule. 

Continental Resources, Inc. (Doc. #14655)

12.919 ... the changes in the Proposed Rule would wreak havoc on the Section 404 program, 

expanding the number and types of waters that are jurisdictional. The agencies 

acknowledge that any expansion in jurisdictional waters will, in turn, result in the 

following impacts: higher permitting application costs, additional compensatory 

mitigation costs, increased permitting time and associated value of financial or 

opportunity costs of carrying development capital for longer periods of time, and higher 

costs and time associated with avoiding impacts on newly defined jurisdictional waters or 

minimizing impacts on jurisdictional waters. Economic Analysis at 13. Continental 

agrees that it will experience all of these impacts-and more. Such impacts could delay 

Continental’s plans for exploration, development, and production.

Continental is troubled by the unauthorized expansion of jurisdiction over wet features 

not previously considered jurisdictional, such as ditches, marginal and ephemeral waters 

in a riparian area or floodplain, isolated waters, and prairie potholes. Any expansion in 

jurisdiction will result in more activities triggering Section 404 requirements. 

Continental is concerned that there may be a number of important unintended 

consequences for the Section 404 program associated with the expanded jurisdictional 

definition. (p. 15-16)

Agency Response: The rule only provides a definition for “waters of the U.S.” 

Implementation of the Section 404 permitting program is outside the scope of this 

rule. That said, the scope of regulatory jurisdiction in this rule is narrower than that 

under the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries.

12.920 Continental may need to apply for new NWPs where they are not currently required. 

There are likely to be many new instances under the Proposed Rule where Continental 

may need to seek a Nationwide Permit (“NWP”) when it would not have been required to 

obtain a NWP under the current rules. The most likely activities include pad 

development, construction of roads, pipelines, and other infrastructure, as well as routine 

maintenance activities. This expansion will occur when waters that have been wellaccepted to be non-jurisdictional are now likely to be jurisdictional-particularly the 

category of “other waters” where the agency analysis indicated none was currently 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

586

jurisdictional but 17 percent would be jurisdictional under the Proposed Rule. 

Continental believes the agencies have, at best, severely underestimated and, at worst, 

intentionally misrepresented, the true scope of impacts of the Proposed Rule. As 

described in Section IV, the independent report commissioned by Continental estimates 

that, in the SCOOP, there would be a 50 percent increase in jurisdiction over ephemeral 

streams and a 40 to 100 percent increase in jurisdiction over wetlands; in the Bakken 

there would be a 17 to 100 percent increase in jurisdiction over prairie potholes and an 85 

percent increase in jurisdiction over ditches. 

The new Section 404 obligations triggered by expanded CWA jurisdiction will require 

Continental to seek NWPs in areas where waters were previously non-jurisdictional. 

Given Continental’s estimate of the increased CWA jurisdiction associated with the 

Proposed Rule, the numbers of new NWPs could be significant. These new NWPs would 

result in increased costs and delays and greater mitigation requirements. In general, 

Continental expects that it will need to dedicate more in-house staff and outside 

consultants to handle the increased number of permit applications, permit tracking, and 

compliance conditions (such as sampling, monitoring, record keeping, and reporting). 

So, too, the federal government will need to ramp up its staffing to accommodate the 

increased workload associated with more permits-both individual and NWPs. Given that 

the agencies are already overwhelmed by current workloads, new jurisdictional 

determinations and permit review will require the agencies to find needed staffing and 

funds. (p. 16) 

Agency Response: Implementation of the Section 404 permitting program is 

outside the scope of this rule. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The agencies believe that the rule will result in a 

reduction of case-specific determinations which was achieved by making tributaries 

and adjacent waters jurisdictional by rule coupled with limits on the two types of 

categories of waters that require a case-specific analysis. Therefore, the agencies do 

not foresee an increase in delays due to workload on jurisdictional determinations. 

The agencies believe the final rule will simplify the process of making jurisdictional 

determinations.

12.921 Continental may need to apply for individual permits when NWPs are sufficient under 

the current rule. The Proposed Rule is likely to force Continental and other companies to 

rely more often on individual permits instead of NWPs. Continental currently relies on a 

number of NWPs to facilitate its operations. To qualify for many NWPs, the applicant 

must establish its impacts on “waters of the United States” or on “wetlands” do not 

exceed minimum thresholds expressed in terms of acres or stream feet of impacts. For 

example, NWP 3 covering maintenance activities limits removal of accumulated 

sediments and debris within 200 feet on either side of the structure; NWP 12 covering 

utility line activities limits the losses to 1⁄2-acre of waters of the United States; NWP 13 

covering bank stabilization limits activities less than 500 linear feet along the bank and 1 

cubic yard per running foot; NWP 14 covering linear transportation projects limits the 

losses to 1⁄2-acre of non-tidal waters of the United States and 1/3-acre of tidal waters of 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

587

the United States; NWP 18 covering minor discharges “limits the losses to 1/10-acre of 

waters of the United States; NWP 41 which requires preconstruction notification for 

reshaping existing drainage ditches when more than 500 linear feet of a drainage ditch is 

reshaped; and NWP 43 covering stormwater management facilities (e.g., retention basins, 

outfall structures) limits the losses to 1⁄2-acre of non-tidal waters of the United States and 

no more than 300 linear feet of a stream bed. Continental relies on these and other NWPs. 

Other NWPs do not have a quantifiable limit but require the Corps of Engineers to make 

a qualitative finding. For example, NWP 33 covering temporary construction, access, 

and dewatering requires a finding that there will be “minimal adverse effects on aquatic 

resources,” a harder standard to meet if there are more aquatic resources considered. The 

term “aquatic resources” presumably includes any “waters of the United States, including 

wetlands that serve as habitat for interrelated and interacting communities and 

populations of plants and animals.” 40 C.F.R. § 230.3(c). Under the Proposed Rule, 

Continental may be prohibited from using NWP 33 based on any minor impact to 

“aquatic resources” triggered solely by a newly-designated jurisdictional water. This 

would significantly increase Continental’s need to rely on expensive, time-consuming 

individual permits and would impose additional mitigation requirements. Finally, the 

NWP General Conditions are also affected and may hinder Continental’s ability to rely 

on the NWPs discussed above. For example, Condition 2’s prohibition on any substantial 

disruption of aquatic life cycle movements, Condition 8’ s limit on adverse effects to the 

aquatic system due to the impoundment of water, Condition 9’s management of water 

flows such as stream channelization and storm water management, Condition 23’ s use of 

compensatory mitigation may become less available given the 1⁄2-acre limit, and 

Condition 31’s preconstruction notification (“PCN”) requirements that require 

delineation of wetlands and other waters (e.g., lakes, ponds, intermittent and ephemeral 

streams) on the project site. (p. 16-17)

Agency Response: Implementation of the Section 404 permitting program is 

outside the scope of this rule. The rule only provides a definition for “waters of the 

U.S.” That said, the scope of regulatory jurisdiction in this rule is narrower than 

that under the existing regulation. The rule does not affect the CWA statute in 

which authorization may be required for discharges of dredged and/or fill material 

into waters of the U.S., or other activities in jurisdictional waters of the U.S which 

also require authorization. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries.

12.922 Continental may be required to comply with other federal environmental laws. By 

creating new federal actions, new individual permits are likely to trigger new obligations 

under federal environmental statutes, including the National Environmental Policy Act 

(“NEPA”), National Historic Preservation Act (“NHPA”), and the Endangered Species 

Act (“ESA”). In Continental’s experience, compliance with these environmental laws 

can be incredibly time consuming and result in one or more years of delay in 

Continental’s planned exploration, development, and production timeframes. Some 

projects and geographic areas might be cancelled because of the costs and delays 

associated with ancillary permitting requirements associated with obtaining individual 

Section 404 permits. This unintended outcome is .utterly inappropriate given that it is 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

588

based upon the Proposed Rule’s unsubstantiated inclusion of countless ditches and 

isolated waters previously and properly deemed non-jurisdictional. (p. 17-18)

Agency Response: The rule only provides a definition for “waters of the U.S.” 

Implementation of the Section 404 permitting program, including compliance with 

other environmental statutes, is outside the scope of this rule. That said, the scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries.

Montana Mining Association (Doc. #14763)

12.923 MMA members are required to manage storm and runoff water in the course of 

conducting their operations. The proposed rule will impose federal CWA regulation to 

features that are constructed and used pursuant to other federal and state regulatory 

programs. MMA members also conduct activities and operations that are likely to cross 

or impact ephemeral drainages and ditches. To illustrate, mining companies are 

constantly maintaining, modifying, moving, and reclaiming ditches during the life of the 

mine because of the dynamic nature of mining operations. If mining companies must 

now obtain Section 404 permit coverage each time they have to conduct one of these 

ditch-related activities, operations would effectively come to a halt due to the delays and 

burdens of permitting. Or worse, mining companies might find themselves in a position 

where they are unable to comply with other regulatory requirements such as the 

reclamation requirements of the 43 C.F.R. 3809 regulations (p. 4)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. In addition, the rule provides additional clarification regarding the 

types of stormwater management features and ditches that are excluded from 

regulation. The exemption for certain ditch maintenance activities remains 

unchanged.

Midway Gold US and MDW Pan (Doc. #15056)

12.924 The proposed rule appears to categorically conclude that tributaries have a significant 

nexus to traditional navigable waters, interstate waters and territorial seas. Waters and 

wetlands adjacent to tributaries also, apparently, will automatically be jurisdictional. 

Thus, in addition to current state requirements for managing storm and runoff water, the 

proposed rule would impose federal CWA regulation to features constructed and used. 

The rule could require mining companies to obtain Section 404 permits to conduct ditchrelated activities (maintenance, modifications, movements and reclamation) which would 

impose significant delays and burdens for such federal permitting. Routine operational 

activities such as clearing vegetation, removing silt and stabilizing banks for ditches 

could require a section 404 permit. Stormwater discharge into ditches also could require 

section 402 permitting. Even the simplest of operational functions such as weed control 

near ditches and impoundments could trigger section 404 or 402 permitting obligations.

(p. 3)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

589

Agency Response: Implementation of the Section 404 permitting program is 

outside the scope of this rule. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The agencies believe that the rule will result in a 

reduction of case-specific determinations which was achieved by making tributaries 

and adjacent waters jurisdictional by rule coupled with limits on the two types of 

categories of waters that require a case-specific analysis. Therefore, the agencies do 

not foresee an increase in delays due to workload on jurisdictional determinations. 

The agencies believe the final rule will simplify the process of making jurisdictional 

determinations. The exemption for certain ditch maintenance activities remains 

unchanged.

National Mining Association (Doc. #15059)

12.925 Many activities, e.g., construction of sediment ponds and tailings dams on mine sites, are 

already subject to comprehensive Section 404 permitting requirements if they involve 

discharging into an existing jurisdictional water or wetland. 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. If 

the proposed rule results in the assertion of CWA jurisdiction over various on-site water 

management features, mining companies will face even more complicated permitting 

requirements for routine activities on mine sites, which will impose substantial costs and 

operational delays without discernible or appreciable environmental benefit, and could 

prevent mining operators from performing timely and necessary maintenance and safety 

functions while awaiting a CWA permitting decision.

To illustrate, mining companies are constantly maintaining, modifying, moving, and 

reclaiming ditches during the life of the mine because of the dynamic nature of mining 

operations. If mining companies must now obtain Section 404 permit coverage each time 

they have to conduct one of these ditch-related activities, operations would effectively 

come to a halt due to the delays and burdens of permitting. Or worse, mining companies 

might find themselves in a position where they are unable to comply with other 

regulatory requirements such as those relating to the removal and reclamation of 

temporary structures under SMCRA if they need a Section 404 permit to clean or reclaim 

a ditch.229 Notably, the Agencies have provided no analysis of how many additional 

Section 404 permits will be required if a 404 permit is required every time a water 

management ditch is moved or maintained. (p. 15-16)

Agency Response: Implementation of the Section 404 permitting program is 

outside the scope of this rule. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

 

229 30 U.S.C.§ 1265(c).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

590

categories such as tributaries. In addition, the rule provides additional clarification 

regarding the types of stormwater and wastewater management features and 

ditches that are excluded from regulation. The exemption for certain ditch 

maintenance activities remains unchanged.

12.926 Furthermore, the Corps has not analyzed how it will meet the increased demand on its 

resources. For example, operators would be required to apply for permits for ditch 

maintenance. Considering perimeter and drainage ditches at mine sites can be several 

thousand linear feet, individual permits will likely be required given the 300 linear feet 

limit in nationwide permits. How will the Corps manage this additional workload? What 

kind of lead time will be needed to process such applications when obtaining a simple

permit for any mining operation typically takes anywhere from several months to years? 

If the Agencies ultimately take the position that on-site waters at mine sites are 

jurisdictional, such an analysis must be conducted prior to the publication of any final 

rule, particularly in light of the fact that Congress did not contemplate that mining 

operations would be subjected to such disruptive permitting requirements. (p. 16)

Agency Response: Implementation of the Section 404 permitting program is 

outside the scope of this rule. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The agencies believe that the rule will result in a 

reduction of case-specific determinations which was achieved by making tributaries 

and adjacent waters jurisdictional by rule coupled with limits on the two types of 

categories of waters that require a case-specific analysis. Therefore, the agencies do 

not foresee an increase in delays due to workload on jurisdictional determinations. 

The agencies believe the final rule will simplify the process of making jurisdictional 

determinations.

12.927 Additionally, this type of permitting necessitates mandatory mitigation requirements, 

placing a further strain on mitigation banks. In certain parts of the country, mitigation 

credits are already very limited – a problem that has been compounded by increasing 

demands by the Corps for higher mitigation ratios. As a result of the proposed rule, 

mitigation costs are almost certain to rise to the point where at least some mining 

operations, operational improvements, and small or large scale expansions become cost 

prohibitive or outright impossible.230 (p. 16)

Agency Response: Implementation of the Section 404 permitting program is 

outside the scope of this rule. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

 

230 For example, recent quotes from Colorado wetland banks, including the Riverdale Mitigation Bank and the 

Middle South Platte Mitigation Bank, indicate costs between $75,000 and $85,000 per credit-acre. This is 

substantially higher than the stated range of $32,000 and $66,000 used for Colorado in Appendix A of the economic 

analysis of the proposed rule. Elsewhere, the Great Salt Lake area currently averages around $50,000 per creditacre, and Ecosystems Marketplace – State of Biodiversity Markets (2010) estimates that a credit can cost anywhere 

from $3,000 to $653,000 per credit-acre depending on the type of wetland and the local market, but that the average 

price is $74,535 per credit-acre.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

591

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

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

categories such as tributaries. The cost of compensatory mitigation credits varies 

considerably over space and time and these credit prices are subject to market 

forces. As we have seen in many parts of the country, as the price of credits 

increases, more compensation providers enter the market providing compensation 

credits which helps to control costs.

Illinois Coal Association (Doc. #15517)

12.928 The Proposed Rule would significantly impede daily operations and routine expansions at 

many of our members’ mine sites. The potential expansion of jurisdiction over 

previously unregulated features such as ephemeral streams, sediment ponds, drainage 

ditches, vernal pools and other “fill and spill” features is particularly problematic. These

features pervade our coalfields and, thus, are frequently encountered during routine 

activities such as construction and maintenance of access and haul roads or roadside 

ditches. Having to account for impacts to these features within the section 404 context 

would increase both pem1itting costs and associated economic losses due to project 

delays for our members by several orders of magnitude. (p. 2)

Agency Response: The rule only provides a definition for “waters of the U.S.” 

Implementation of the Section 404 permitting program is outside the scope of this 

rule. That said, the scope of regulatory jurisdiction in this rule is narrower than that 

under the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

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

addition, the rule provides additional clarification regarding the types of 

stormwater and wastewater management features, erosional features and ditches 

that are excluded from regulation. The exemption for certain ditch maintenance 

activities remains unchanged.

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

12.929 HESI’s own experience with one mining operation in the western United States is that

this consistent application of federal jurisdiction as being limited by a break in the 

OHWM is regularly confirmed through the jurisdictional determination process. If the 

definition of tributary is expanded to ignore breaks in the OHWM, it could mean as many 

as eight Section 404 permitting actions needed per year for that single facility, resulting 

in delays and losses in operational flexibility and market responsiveness that would have 

significant impacts on these mining operations. For example, if there are specific clay 

sources demanded by the market, the mining operation could face a new level of process 

and delay that would impact its business operations if gaining access to the areas where 

these sources are found required disturbance of ephemeral streams now considered 

jurisdictional for which permits had not previously been obtained. Of course, there 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

592

would also be additional costs associated with the permitting action itself and potential 

new requirements for mitigation.231 (p. 4)

Agency Response: The rule only provides a definition for “waters of the U.S.” 

Implementation of the Section 404 permitting program is outside the scope of this 

rule. That said, the scope of regulatory jurisdiction in this rule is narrower than that 

under the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

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

addition, the rule provides additional clarification regarding the types of 

stormwater and wastewater management features, erosional features and ditches 

that are excluded from regulation.

American Gas Association (Doc. #16173)

12.930 Finally, under the agencies’ proposed concept of “adjacent waters”, natural gas project 

proponents may find themselves undertaking required CWA mitigation measures to 

mitigate their maintenance or repair of pre-existing infrastructure. For example, a water 

of the State, a riparian land habitat, or other land-locked isolated wetland that could be 

retroactively deemed U.S. water, would limit a project proponent’s ability to maintain or 

replace infrastructure in such areas (pipelines, storage yards, access roads). Additional 

mitigation for these newly designated federal areas will also increase the volume of 

surrounding area cordoned off for mitigation banks and severely limit siting area for new 

projects. As described above, if man-made conveyances are regulated as “adjacent’ to 

tributaries, that would extend CWA permitting to activities that utilities must undertake 

for environmental compliance with EPA rules, state rules, and best management 

practices. Their regulation as WOTUS will create unprecedented, wasteful permitting 

and mitigation challenges for hundreds of minimal water features on dozens of miles of 

pipeline project siting. For example, a CWA § 404 permit for such conveyances would 

require the complementary creation of “offsetting” U.S. water in the same hydrologic 

area—triggering additional mitigation for the environmental compliance structure itself. 

(p. 10)

Agency Response: Implementation of the Section 404 permitting program is 

outside the scope of this rule. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. In addition to clarifying the definition of tributary, 

the rule also clarifies definitions for adjacent, neighboring, significant nexus, 

ordinary high water mark, and high tide line. This narrowing of scope and 

clarifying of definitions are designed to address the kind of unintended confusion 

highlighted by the commenter. Further, compensatory mitigation projects do not 

currently require compensation and this will not change under the rule. 

 

231 The plurality in Rapanos noted the time-consuming and costly nature of the Section 404 permitting process. 547 

U.S. at 721. The study conducted by Arcadis and submitted by the American Petroleum Institute further documents 

the delays and costs that would be associated with the expansion of federal jurisdiction under the proposed rule.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

593

12.931 The sweeping determination of jurisdiction that could result from such aggregation would 

pose particularly detrimental impacts to natural gas utilities that regularly utilize 

Nationwide Permits for routine maintenance and construction activity on separate and 

distant pipeline projects. Gas utilities utilize nationwide permits under CWA section 

404(e) for activities which are “similar in nature, will cause only minimal adverse 

environmental effects when performed separately, and will have only minimal 

cumulative adverse effects on the environment”, subject to a maximum acreage 

threshold. For example, utilities use Nationwide Permit 12 to discharge dredged or fill 

material in the course of construction, maintenance, repair and removal of utility lines, so 

long as the projects permitted do not result in loss of greater than 1⁄2 acre of Waters of the 

U.S. for each “single and complete” project. AGA is very concerned that if field 

inspectors interpret the “other waters” standard to broadly cover minor stream crossings, 

ditches, and other “adjacent” water features and erected structures for conveyance across 

otherwise separate utility line projects, the Nationwide Permit acreage thresholds will be 

quickly exceeded and applicants will be compelled to rely on individual permits. 

Additionally, the proposed definitions for “adjacent” waters and “tributaries” can lead to 

serious arguments among field experts and regulators as to whether aggregate multiple 

components of a natural gas project into one Water of the U.S. would require an 

individual Section 404 permit instead of a nationwide permit. 

The consequences of aggregation are significant: while nationwide permit authorizations 

for minor work take on the order of days to months to receive, individual permits add 

months or years to project reviews – and several times the cost of obtaining a nationwide 

permit. Therefore, AGA urges the Agencies to reconsider the inclusion of an open-ended 

“other waters” category in its regulatory proposal. The proposal should also clearly state 

that gas utilities will not lose the important benefits of the nationwide permit program 

under existing permits for their separate and complete pipeline projects. The Agencies 

should also assure the regulated public that the rule will not put permittees at a 

disadvantage in seeking coverage for new projects. (p. 11-12)

Agency Response: The rule only provides a definition for “waters of the U.S.” 

Implementation of the Section 404 permitting program is outside the scope of this 

rule. That said, the scope of regulatory jurisdiction in this rule is narrower than that 

under the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. In addition 

to clarifying the definition of tributary, the rule also clarifies definitions for 

adjacent, neighboring, and significant nexus. This narrowing of scope and clarifying 

of definitions are designed to address the kinds of concerns regarding subjectivity in 

the proposed rule highlighted by the commenter.

12.932 The Agencies Should Ensure that a Revised Proposed Rule Clearly Demonstrates When 

Federal Action under the Clean Water Act is Not Required, thereby Protecting Permittees 

from Triggering Protracted Federal, State and Tribal Consultations. 

AGA is concerned that the Proposed Rule defines WOTUS too broadly for field officers 

at state and federal agencies to make accurate determinations on the need for CWA 

permits, thereby triggering additional consultation provisions irrespective of whether a 

formal federal action or permit is ultimately required. For example, consultations under 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

594

the §106 National Historic Preservation Act are triggered when Army Corps is reviewing 

permit applications in project areas designated as NHPA areas. The Corps has its own 

additional §106 review procedures, and the process has no clear rules, or deadlines, and 

creates significant delays for natural gas utility projects. Another potential source of 

extensive delays for natural gas utility projects is the Endangered Species Act Section 7 

or Section 10 consultation, which can take years to complete in conjunction with 

obtaining necessary federal permits. (p. 12)

Agency Response: Implementation of the Section 404 permitting program, 

including compliance with other environmental statutes, is outside the scope of this 

rule. That said, the scope of regulatory jurisdiction in this rule is narrower than that 

under the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

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

addition to clarifying the definition of tributary, the rule also clarifies definitions for 

adjacent, neighboring, and significant nexus. This narrowing of scope and clarifying 

of definitions are designed to address the kinds of concerns in the proposed rule 

highlighted by the commenter.

Dominion Resources Services (Doc. #16338)

12.933 The proposed definition of WOTUS includes more features than are currently regulated 

as WOTUS such as more ditches, floodplain waters, and isolated waters. If these 

additional features are considered jurisdictional, more activities will trigger the need for a 

CWA section 404 permit in all of the above mentioned aspects of our business. With 

respect to ditches alone (which would be regulated subject only to narrow and difficult to 

demonstrate exclusions), we rely on networks of ditches to manage stormwater at our 

facilities, and our electric and natural gas utility line corridors often follow infrastructure 

(such as roadways) or span areas (such as farmlands) that similarly rely on ditches to 

manage water. The proposed rule would expand jurisdiction to ditches that do not meet 

other exemptions in the proposed rule. 

Another example of features that could be newly jurisdictional under the proposed rule 

are certain ephemeral features. We currently own solar projects in the Eastern, Midwest 

and Western United States. Through project planning, we have been able to avoid 

jurisdictional features and in some cases avoided all jurisdictional features and section 

404 permitting requirements altogether. Given the new definitions of the terms 

“tributary”, “adjacent”, and “other waters”, some ditches and ephemeral features that 

were previously not considered jurisdictional would now be jurisdictional. These 

changes would make avoidance and minimization of WOTUS more difficult and would 

increase impacts requiring permits. To the extent our infrastructure cannot avoid and 

must cross or otherwise impact ditches or other newly regulated features such as certain 

ephemeral features, we will be subject to more section 404 permit requirements and 

lengthier section 404 permit processing. 

In addition, many of our projects currently qualify for CWA section 404 general permits, 

including nationwide permits (NWP). NWPs are designed to provide streamlined 

processing for projects that have minimal environmental impact and are faster and less 

costly than individual permits. As a result of the expansion of areas considered WOTUS, 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

595

the rule could cause more projects to exceed NWP permit thresholds, resulting in more 

projects undergoing lengthier and more costly individual permit processes. For example, 

our natural gas and electric linear projects often rely on NWP 12 for utility lines for a 

range of activities including new line construction and maintenance of existing lines. 

NWP 12 is available only for projects that meet specified limits, including impacts of no 

more than 1⁄2 acre of WOTUS for each “single and complete” project. We make efforts to 

configure utility lines to stay within the 1⁄2 acre limit by avoiding wetland and stream 

features. The proposed rule’s expansion of jurisdiction to include the types of ditches, 

ponds, and other wet features often found on land spanned by our utility lines will 

increase the likelihood that many of our projects will be unable to stay within NWP 12 

impact thresholds. The proposed rule poses similar concerns for NWP 51 for land-based 

renewable projects which has similar impact thresholds. This means that a project that 

would qualify for a NWP today may require an individual permit under the proposed 

rule, requiring more mitigation and associated costs and causing overall increases in 

permitting costs and delays. (p. 3-4)

Agency Response: The rule only provides a definition for “waters of the U.S.” 

Implementation of the Section 404 permitting program is outside the scope of this 

rule. The scope of regulatory jurisdiction in this rule is narrower than that under 

the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. The rule 

for the first time explicitly excludes certain ditches from the definition of waters of 

the United States. The rule excludes all ditches with ephemeral flow that are not 

excavated in or relocate a tributary. The rule also excludes ditches with intermittent 

flow that are not excavated in or relocate a tributary or drain wetlands, regardless 

of whether or not the wetland is a covered water. Finally, ditches that do not 

connect to a traditional navigable water, interstate water, or territorial sea either 

directly or through another water are excluded, regardless of whether the flow is 

ephemeral, intermittent, or perennial. The final rule has been crafted to reduce 

existing confusion and inconsistency regarding the regulation of ditches. While the 

final rule does not include an explicit exclusion for roadside ditches, the agencies 

expect the exclusions included in the final rule will address the vast majority of 

roadside and other transportation ditches. Also, the CWA exemption for ditch 

maintenance remains in effect and is not changed by this rule.

Gas Processors Association (Doc. #16340)

12.934 The Proposed Rule will Hinder Clean Water Act Permitting and Undermine the 

Efficiency of the Nationwide Permit Program

GPA is highly concerned that the permitting process for GPA member projects will be 

significantly affected if this rule is finalized as proposed. According to the Executive 

Summary of the proposed rule: “The purposes of the proposed rule are to ensure 

protection of our nation’s aquatic resources and make the process of identifying ‘water of 

the United States’ less complicated and more efficient.” 79 Fed. Reg. at 22190 (emphasis 

added). EPA and the Corps add that, “this rule will result in more effective and efficient

CWA permit evaluations and increased certainty and less litigation.” Id. (emphasis 

added). Even if the proposed rule makes the process of identifying jurisdictional waters 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

596

more effective and efficient, the rule will make the process of obtaining permits less so. 

The agencies’ categorical inclusion of all tributaries and adjacent wetlands as 

jurisdictional will dramatically increase the caseload of the regulatory agencies charged 

with administering permitting programs for point source discharges (§402) and 

dredging/filling (§404). This “simplified definition” will lock up the permitting process 

by slowing down the turnaround time for needed permits which will put a financial 

burden on the midstream sector. 

Additionally, GPA is concerned that the expanded definition of “waters of the United 

States” will jeopardize the agencies’ general and nationwide permit programs. Under 

Section 404(e) of the Clean Water Act, the Corps may issue general permits to authorize 

activities that have minimal individual and cumulative adverse environmental effects. See 

33 U.S.C. § 1344. Currently, many of the activities conducted in the oil and gas industry, 

particularly in the mid-stream sector, have many available permitting options when it 

comes to projects that may impact waters of the United States. For projects deemed to 

have “minimal impact(s),” there are many specific project-type Regional, General, and 

Nationwide permits that companies can obtain to seek approval for an activity. Many 

times, oil and gas companies will re-route, re-design, or change the “footprint” of a 

project in order to minimize impacts and allow the work to be performed under a much 

less onerous permitting process. The Nationwide permitting program was developed as a 

way to more efficiently process permits with minimal impacts to the aquatic 

environment. In fact, roughly 90% of the permits processed by the Corps are either 

General or Nationwide permits. Even with 90% of the permits being streamlined in this 

manner, the Corps and other agencies (such as wildlife agencies and historic preservation 

offices) are apparently still very stretched, resource-wise, to process these permits in a 

timely fashion as evidenced by GPA members’ experiences in recent permitting 

activities. 

We are concerned that the proposed rule expands the universe of waters that are 

considered waters of the United States, which will result in an increased number of 

projects that will no longer be deemed to be “minimal impact” and therefore would not 

qualify for approval under one of the General or Nationwide permits. This proposed rule 

appears to be necessitating more usage of an Individual permit type of review, which 

takes significantly longer and requires more resources, both financially and in personnel 

time (for both the agency and the project proponents). With the federal agencies already 

significantly burdened with project reviews, this scenario will further increase their 

burden and degrade an efficient and proven permit process. As with many other 

industries, the midstream sector of the oil and gas industry relies greatly on regulatory 

certainty and the predictability of permitting costs and timeframes to evaluate and justify 

the economics of projects and the hiring of employees. Implementation of the proposed 

rule changes will impact thousands of direct and indirect jobs throughout the United 

States in our sector of the industry alone and greatly impede natural gas infrastructure 

development. 

Furthermore, if many projects are no longer deemed “minimal impact,” the entire premise 

of the Nationwide and General permitting process is undermined. GPA questions how 

EPA can justify such a harsh and overreaching rule change, when a favorable National 

Environmental Policy Act (NEPA) analysis must be achieved each time the Nationwide 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

597

Permits are approved for use. If the most recent NEPA review of the Nationwide Permits 

determined that there was no impact, then there should be no reason to make such 

sweeping and significant changes. (p. 4-5)

Agency Response: Implementation of the Section 404 permitting program is 

outside the scope of this rule. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The rule for the first time explicitly excludes certain 

ditches from the definition of waters of the United States. The rule excludes all 

ditches with ephemeral flow that are not excavated in or relocate a tributary. The 

rule also excludes ditches with intermittent flow that are not excavated in or 

relocate a tributary or drain wetlands, regardless of whether or not the wetland is a 

covered water. Finally, ditches that do not connect to a traditional navigable water, 

interstate water, or territorial sea either directly or through another water are 

excluded, regardless of whether the flow is ephemeral, intermittent, or perennial.

The final rule has been crafted to reduce existing confusion and inconsistency 

regarding the regulation of ditches. While the final rule does not include an explicit 

exclusion for roadside ditches, the agencies expect the exclusions included in the 

final rule will address the vast majority of roadside and other transportation 

ditches. Also, the CWA exemption for ditch maintenance remains in effect and is 

not changed by this rule

Utah Mining Association (Doc. #16349)

12.935 Notably, mining operations are required to obtain all appropriate environmental licenses 

and permits in advance of any land disturbance, including CWA Sections 404, 402, and 

401 permits and certifications. By way of one example, under Section 404 of the CWA, 

mining operations are typically required to mitigate the disturbance of onsite “waters of 

the United States” through the creation of off-site and on-site wetlands and streams. If 

the rule is not clarified to exclude these post-disturbance areas from the definition of 

“waters of the United States,” the mining industry will be forced to obtain permits and 

provide mitigation in a never ending regulatory loop to meet other performance standards 

and requirements, including those required under the CWA, SMCRA, Mine Safety and 

Health Act, etc. 

UMA therefore urges the Agencies to revise the proposal to clarify that on-site water 

management features, including all structures – natural and man-made - that contain, 

convey, and, as necessary, chemically or physically treat on-site water associated with 

mining operations, continue to not constitute “waters of the United States.” Failure to do 

so will have serious implications on the mining industry, rendering most, if not all, 

mining operations unfeasible. (p. 3)

Agency Response: The rule only provides a definition for “waters of the U.S.” 

Implementation of the CWA permitting programs is outside the scope of this rule. 

That said, the scope of regulatory jurisdiction in this rule is narrower than that 

under the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

598

puts important qualifiers on some existing categories such as tributaries. The rule 

clarifies that waste treatment systems, including treatment ponds or lagoons 

designed to meet the requirements of the CWA are excluded from the rule. In 

addition, the rule provides additional clarification regarding the kinds of water 

management features that are excluded from the rule including stormwater control 

features constructed to convey, treat, or store stormwater that are created in dry 

land. The rule also provides additional clarification regarding the types of ditches 

that are excluded from the rule including ephemeral ditches that are not a relocated 

tributary or excavated in a tributary and ditches that do not flow, either directly or 

through another water, into a traditional navigable water. 

FMC Corporation (Doc. #16505)

12.936 Since the Wyoming definition of waters of the state already includes all tributaries, 

proposed discharges into these bodies are evaluated by WDEQ and permits are written 

that include the appropriate water quality limits. The analyses require a thorough 

understanding of background water quality, use attainability and other characteristics of 

the water body, whether or not the discharge is into an intermittent or ephemeral 

drainage. The proposed rule will drive EPA to add extra layers of analyses simply to 

satisfy a perceived need to clarify jurisdiction, when in the case of Wyoming, such 

clarification would be redundant. An unintended consequence might be that jurisdiction 

in Wyoming would be reduced under this new rule, an outcome that clearly would not 

serve to advance the goals of the Clean Water Act (CWA). (p. 1)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. Nothing in this rule limits the ability of states to regulate a broader 

scope of waters than the federal government. The agencies are developing guidance 

to facilitate implementation of the final rule when it becomes effective, which will 

provide for consistent determinations. The agencies strive to achieve consistency 

across the country in all districts and regions in application of the rule for 

jurisdictional determinations.

Kentucky Oil and Gas Association (Doc. #16527)

12.937 The need for Section 404 (dredge and fill) permitting could be vastly increased as waters 

of the United States expand. Typically, Kentucky’s oil and gas activities will qualify for 

authorization under a Nationwide Permit (NWP) (i.e., NWP 12 for utility lines or NWP 

39 for commercial/ industrial activities). However, NWPs often have limits on the length 

or acreage of impacts that may be authorized. As more and more features are determined 

to be waters of the United States, it will be very difficult to comply with these limits. As 

a result, industry will be required to seek Individual Permits, which are significantly more 

expensive and require much more time to obtain than a NWP authorization. Likewise, 

the length of time required for issuance of an Individual Permit is extreme. As a result, 

operations could grind to a halt awaiting on USACE’s authorizing the company’s 

proposed operations. (p. 6)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

599

Agency Response: The rule only provides a definition for “waters of the U.S.” 

Implementation of the Section 404 permitting program is outside the scope of this 

rule. That said, the scope of regulatory jurisdiction in this rule is narrower than that 

under the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries.

12.938 As part of Section 404 permitting, compliance with endangered species and 

cultural/historical resources regulations must be demonstrated. In order to comply with 

these regulations, it is often necessary to conduct surveys, restrict tree-cutting activities to 

certain periods of the year (Indiana bat requirement), and mitigate for the impacts. These 

requirements greatly increase the cost of operations as permits cannot be obtained 

without concurrence from the United States Fish and Wildlife Service and State Historic 

Preservation Offices. In addition to increasing costs, these requirements will also 

significantly delay permit issuance as timeframes for endangered species surveys are 

typically seasonal dependent on some aspect of the species’ activities. (p. 7)

Agency Response: The rule only provides a definition for “waters of the U.S.” 

Implementation of the Section 404 permitting program, including compliance with 

other environmental statutes, is outside the scope of this rule. That said, the scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries.

Petroleum Association of Wyoming (Doc. #18815)

12.939 Throughout Wyoming, facilities have been constructed in areas that the Corps has 

previously determined to be non-jurisdictional. For example, in many cases oil storage 

facilities, infrastructure, roads, produced water impoundments, etc. have been evaluated 

on a case-specific basis and the Corps or EPA has determined they are in locations that 

are not jurisdictional. To cite just one particular class of facilities in Wyoming to 

illustrate this problem, PAW points to coal bed methane (“CBM”) produced water 

impoundments in the Powder River Basin of Wyoming. In many cases, CBM operators 

sought Corps Jurisdictional Determinations prior to constructing impoundments in the 

upper reaches of ephemeral drainages. The Corps entered many, perhaps hundreds, of 

Jurisdictional Determinations for such impoundments. The vast majority of these 

requests resulted in determinations from the local Corps officer of non-jurisdictional, 

based on site-specific characteristics. 

Under the proposed rule, which removes any flow duration guideline and which provides 

that tributary characteristics can apparently be evaluated at any point within the tributary, 

many of these facilities (or the locations in which they were built) could become 

categorically jurisdictional under paragraph (a) (5) of the proposed rule. If for some 

reason they fell outside of the (a) (5) characteristics, they could still potentially be 

captured under the (a) (6) or (7) criteria as “adjacent” or “other” waters. The fact that a 

drainage feature that fails to meet jurisdictional elements under a site-specific inquiry 

could become jurisdictional by rule under a categorical inclusion by rule demonstrates 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

600

that the proposed rule is arbitrary and capricious. Certainly, a site-specific inquiry should 

control over a categorical determination. The proposed rule is therefore overbroad. 

The implications of converting non-jurisdictional locations and facilities into 

jurisdictional facilities present a number of challenges to the industry. For example, to 

reclaim facilities constructed under non-jurisdictional determinations could now require a 

§404 permit. In addition, as discussed below, facilities storing oil may become subject to 

SPCC planning, reporting and notification requirements where none currently exist, and 

where application of such requirements is unreasonable. (p. 9)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. Specifically, the agencies have limited the tributaries that are “waters of 

the United States” to those that have both a bed and banks and another indicator of 

ordinary high water mark. Even where waters are covered by the CWA, the 

agencies have adopted many streamlined regulatory requirements to simplify and 

expedite compliance through the use of measures such as general permits developed 

at the national, regional or state level. However, current general permits or the 

future development of general permits consistent with CWA section 404(e) are 

beyond the scope of the final rule.

12.940 The oil and gas industry frequently utilizes Nationwide Permits (“NWP”) for such 

activities as pipeline construction, road construction and facility construction. The broad 

and vague definitions of “tributary,” “adjacent” and the catch-all “other waters” leaves 

much uncertainty as to what constitutes WOTUS for purposes of necessitating §404 

permit coverage to undertake construction activities . While purporting to add “clarity” to 

the regulatory environment, such clarity merely serves to create uncertainty and delay 

projects. It is unclear how the proposed rule would affect the numerous small projects 

authorized under the NWP provisions that are commonly utilized by the industry, but it 

appears that the expansion of jurisdiction could significantly broaden §404 requirements 

in Wyoming. (p. 11)

Agency Response: The rule only provides a definition for “waters of the U.S.” 

Implementation of the Section 404 permitting program is outside the scope of this 

rule. That said, the scope of regulatory jurisdiction in this rule is narrower than that 

under the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries.

12.941 In addition to construction activities, PAW members also are required to undertake 

reclamation activities, such as disking, seeding, fertilizing, and pesticide application in 

areas that could qualify as WOTUS under the proposed rule. To avoid the potential for 

enforcement, an operator could be required to submit a request for a jurisdictional 

determination or a permit application in advance of undertaking such activities, or risk 

enforcement by the agencies. The effectiveness of the NWP program for such activities 

would also become uncertain, and would be particularly difficult to navigate in areas 

where the agencies relied upon aggregation of drainage features in a watershed to 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

601

potentially assert jurisdiction, or in floodplains. Projects will also likely incur significant 

delays while agencies complete individual jurisdictional determinations. This expanded 

workload will also place additional burdens on agency budgets and already diminished 

regulatory staff numbers. 

Perhaps ironically, under the physical environments in which these reclamation activities 

usually occur in Wyoming, the problem is not the presence of water, it is the absence of 

water needed to establish vegetation and meet reclamation goals. Thus, the overbroad 

definition of WOTUS in the proposed rule would regulate dry land property, not water, 

and infringe upon the state, federal government and private landowners’ efforts to ensure 

reclamation goals are met. It would also impede oil and gas operators’ ability to 

accomplish reclamation goals in a timely and efficient manner. PAW contends the overbreadth of the proposed rule would frustrate congressional intent in such situations, and 

add unnecessary costs and delays to industry, state, federal government and private 

landowners. (p. 12)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The agencies believe that the rule will result in a reduction of casespecific determinations which was achieved by making tributaries and adjacent 

waters jurisdictional by rule coupled with limits on the two types of categories of 

waters that require a case-specific analysis. Therefore, the agencies do not foresee 

an increase in delays due to workload on jurisdictional determinations. The agencies 

believe the final rule will simplify the process of making jurisdictional 

determinations. In addition, the agencies are developing guidance to facilitate 

implementation of the final rule when it becomes effective, which will provide for 

consistent determinations.

Independent Petroleum Association of America (Doc. #18864)

12.942 With the proposed definition’s emphasis upon the “significant nexus” of a water, 

including wetlands, either alone or in combination with other similarly situated waters in 

the region (i.e., the watershed that drains to the nearest jurisdictional water), it is 

anticipated the 404 permitting program will expand and will result in pressure on the 

capacity to identify available mitigation banks and other options. Such expansion has 

been confirmed by the USACE Economic Analysis, p. 29. Assessment of whether such 

“other waters” and any related discharges would significantly affect the chemical, 

physical, or biological integrity of a jurisdictional water is required under the new 

proposed definition. For example, the proposal would provide that the USACE would 

use the watershed of the single point of entry closest to the 1NW rather than at the single 

reach.232 The expansive nature of this proposal is evident. (p. 5-6)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

 

232 Executive Order, 12866, 58 Fed. Reg. 51735 (1993).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

602

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

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

tributaries. In addition to clarifying the definition of tributary, the rule also clarifies 

definitions for adjacent, neighboring, and significant nexus. The cost of 

compensatory mitigation credits varies considerably over space and time and these 

credit prices are subject to market forces. As we have seen in many parts of the 

country, as the price of credits increases, more compensation providers enter the 

market providing compensation credits which helps to control costs. See the 

Economic Analysis prepared by the agencies for the final rule for further discussion 

on the predicted jurisdictional changes under the final rule.

12.943 The need for Section 404 (dredge and fill) permitting could be vastly increased as waters 

of the United States expand. Typically, Kentucky’s oil and natural gas activities will 

qualify for authorization under a NWP (i.e., NWP 12 for utility lines or NWP 39 for 

commercial/industrial activities). However, NWPs often have limits on the length or 

acreage of impacts that may be authorized. As more and more features are determined to 

be waters of the United States, it will be very difficult to comply with these limits. As a 

result, industry will be required to seek Individual Permits, which are significantly more 

expensive and require much more time to obtain than a NWP authorization. Likewise,

the length of time required for issuance of an Individual Permit is extreme. As a result, 

operations could grind to a halt awaiting on USACE’s authorizing the company’s 

proposed operations. (p. 10)

Agency Response: The rule only provides a definition for “waters of the U.S.” 

Implementation of the Section 404 permitting program is outside the scope of this 

rule. That said, the scope of regulatory jurisdiction in this rule is narrower than that 

under the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. The 

agencies believe that the rule will result in a reduction of case-specific 

determinations which was achieved by making tributaries and adjacent waters 

jurisdictional by rule coupled with limits on the two types of categories of waters 

that require a case-specific analysis. Therefore, the agencies do not foresee an 

increase in delays due to workload on jurisdictional determinations. The agencies 

believe the final rule will simplify the process of making jurisdictional 

determinations.

12.944 The changes proposed by the USACE and EPA to Section 404 of the CWA could 

significantly impact oil and natural gas operations. Broadening the regulations to include 

“waters located within the riparian area” and “all adjacent waters in a watershed (with) 

significant nexus with their traditional navigable water” potentially expands waters of the 

United States jurisdiction beyond the “high water” mark to include the drainage area of a 

tributary - from ridge top to ridge top on either side of a stream.

233 Even if the definition 

of Riparian Area is physically limited, the definition of “Other Waters” is so vague, that 

 

233 Please see the attached topographic maps with the shaded pink area which depict the proposed jurisdictional area 

for Example #I and Example #2. The area in the Kentucky example is now expanded to approximately I500 acres 

and the area in Illinois is expanded to approximately 4,000 acres.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

603

“case specific” analysis of ephemeral streams could consider the entire watershed to be 

“nexus” to a navigable river, or the entire upland around a wetland to be “nexus”, and, 

therefore, require permits. The result of these changes likely mean every stream crossing 

and well pad will require a nationwide permit from the USACE, and, possibly, an 

individual permit. (p. 10)

Agency Response: Implementation of the Section 404 permitting program is 

outside the scope of this rule. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. In addition to clarifying the definition of tributary, 

the rule also clarifies definitions for adjacent, neighboring, significant nexus, 

ordinary high water mark, and high tide line. This narrowing of scope and 

clarifying of definitions are designed to avoid the kind of unbounded jurisdiction 

described by the commenter. The agencies are developing guidance to facilitate 

implementation of the final rule when it becomes effective, which will provide for 

consistent determinations.

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

12.945 The Corps, which oversees the 404 permit program, is already experiencing a logjam in 

evaluating and processing permits. The redefinition of “waters of the United States” will 

create more lengthy delays since the number of waterways on which appropriate 

permitted activity occurs will increase radically. The flood of permit requests resulting 

from the multitude of new “waters of the United States” permits will inundate Corps staff 

already swamped under the current permitting regime. This puts drainage districts, which 

are in the business of flood and stormwater management, in a precarious position. (p. 2)

Agency Response: The rule only provides a definition for “waters of the U.S.” 

The scope of regulatory jurisdiction in this rule is narrower than that under the 

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

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

important qualifiers on some existing categories such as tributaries. The agencies 

believe that the rule will result in a reduction of case-specific determinations which 

was achieved by making tributaries and adjacent waters jurisdictional by rule 

coupled with limits on the two types of categories of waters that require a casespecific analysis. Therefore, the agencies do not foresee an increase in delays due to 

workload on jurisdictional determinations. The agencies believe the final rule will 

simplify the process of making jurisdictional determinations.

12.946 We are also concerned that districts will be vulnerable to citizen suits under this proposed 

rule if the federal permit process is not streamlined and well defined. (p. 2)

Agency Response: No rule can prevent lawsuits, but the agencies believe the final 

rule is well supported by science and the CWA. 

12.947 We are also concerned that current statewide permits for routine projects in the district 

will be eliminated subjecting the district to seeking costly and time consuming individual 

404 permits. (p. 2) 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

604

Agency Response: Implementation of the Section 404 permitting program, 

including statewide general permit programs, is beyond the scope of this 

rulemaking. That said, the scope of regulatory jurisdiction in this rule is narrower 

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. Even where waters are covered by the CWA, the agencies have adopted 

many streamlined regulatory requirements to simplify and expedite compliance 

through the use of measures such as general permits developed at the national, 

regional or state level. However, current general permits or the future development 

of general permits consistent with CWA section 404(e) are beyond the scope of the 

final rule.

12.948 The proposed rule would apply not just to Section 404 permits, but also to other Clean 

Water Act programs. These programs would subject our district to increasingly complex 

and costly federal regulatory requirements under the proposed rule which impacts local 

stormwater and pesticide application programs, state water quality standards 

designations, green infrastructure, and water reuse. (p. 2)

Agency Response: As discussed in the preamble to the final rule, the agencies are 

aware that this definitional change affects more than just the Section 404 program. 

The rule only provides a definition for “waters of the U.S.” The rule does not affect 

the CWA statute in which authorization may be required for discharges of dredged 

and/or fill material into waters of the U.S., or other activities in jurisdictional waters 

of the U.S. including for example, NPDES permits, water quality standards, or 

Section 311 requirements which also require authorization. That said, the scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries.

North American Meat Association (Doc. #13071)

12.949 The revised definition also would require businesses to update and expand their Spill 

Prevention, Control, and Countermeasure (SPCC) Plans under section 311, and their 

stormwater discharge permits/plans under section 402. In addition, the rule as written 

will likely result in a greater number of “impaired” federal waters under section 303, 

imposing more burdens on States to evaluate and list these waters. If finalized as 

proposed the rule could trigger section 404 dredge and fill requirements for 

circumstances where such permits have historically not been necessary, imposing 

additional cost and delays involved with obtaining permits and the higher mitigation costs 

incurred to offset the impact of work done in newly-defined WOTUS areas. (p. 10)

Agency Response: As discussed in the preamble to the final rule, the agencies are 

aware that this definitional change affects more than just the Section 404 program. 

The rule only provides a definition for “waters of the U.S.” The rule does not affect 

the CWA statute in which authorization may be required for discharges of dredged 

and/or fill material into waters of the U.S., or other activities in jurisdictional waters 

of the U.S. including for example, NPDES permits, water quality standards, or 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

605

Section 311 requirements which also require authorization. That said, the scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries.

12.950 Section 404 requires a permit for the discharge of dredge or fill material into “waters of 

the U.S.”

234

. The proposed rule’s definition of “waters of the United States” will trigger 

section 404 permitting requirements for more activities. Features such as ditches, waters 

in floodplains, and isolated waters, which were not previously considered jurisdictional, 

will now be covered by the proposed rule.235 Any discharge of dredge or fill material 

into these newly jurisdictional features will trigger CWA section 404 requirements. 

The proposed rule will increase the need for individual permitting because less activities 

will qualify for general permits. Nationwide permits (NWPs) are available under CWA 

section 404(e) for activities which are “similar in nature, will cause only minimal adverse 

environmental effects when performed separately, and will have only minimal 

cumulative adverse effects on the environment.” The NWPs have maximum acreage 

thresholds. NWP 12 allows for discharges of dredged or fill material for the construction, 

maintenance, repair and removal of utility lines that will not result in losing greater than 

1⁄2-acre of waters of the U.S. for each single and complete project.236 With more features 

and areas considered “waters of the United States,” many activities will exceed the NWP 

threshold, and applicants will be forced to rely on individual permits. 

Individual permits are much more costly than general permits: the average cost to prepare 

an NWP application is $35,954, but the average cost to prepare an individual permit 

application is $337,577. Increased individual permitting also means increased delays for 

permit applicants. While a NWP may take only ten months to obtain, it can take over 

two years to obtain an individual permit. And a large increase in individual permit 

applications is likely to overwhelm EPA and Corps staff, increasing delays. These delays 

will cause significant lost opportunity costs for stakeholders. Overall, the increased costs 

and delays associated with individual permitting could thwart development and 

maintenance of critical infrastructure, such as highways, railroads, and utility lines that 

previously would have relied heavily on general permits. The proposed changes to the 

“waters of the U.S.” definition could jeopardize the future of the entire NWP program. (p. 

11)

Agency Response: The rule only provides a definition for “waters of the U.S.” 

Implementation of the Section 404 permitting program is outside the scope of this 

rule. That said, the scope of regulatory jurisdiction in this rule is narrower than that 

under the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. Also see 

 

234 33 U.S.C. § 1344 

235 See 79 Fed. Reg. at 22,193 

236 77 Fed. Reg. 10,184, 10,271 (Feb. 21, 2012). 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

606

the Economic Analysis for the final rule for further discussion on the predicted 

jurisdictional changes under the final rule.

Iowa Corn Growers Association (Doc. #13269)

12.951 SBA points out the significant economic impact this rule will have through increased 

permitting requirements. If CWA jurisdiction is expanded (...), more farmers will need to 

obtain CWA §404 permits from the Corps resulting in increased costs and longer 

turnaround times on project approvals, which already have many delays. All of this will 

result in a delay of projects – projects specifically designed to advance water quality. It 

is our experience that if the drainage features described above are found to be WOTUS, 

there will be increased permitting obligations, costs, and liabilities, even with the normal 

farming exemption outlined in 404(f)(1). First, this will add an additional step of 

producers having to ask the Corps for the normal farming exemption, and secondly, the 

Corps has a history of being very reluctant to grant this exemption. (p. 5-6)

Agency Response: See the Economic Analysis prepared by the agencies for the 

final rule for further discussion on the predicted jurisdictional changes under the 

final rule. The rule does not alter longstanding agricultural exemptions in 

determinations regarding “waters of the United States.” That said, the scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries.

North Dakota Soybean Growers Association (Doc. #14121)

12.952 Processes for jurisdictional determination decisions and potential disagreements are not 

identified. Will there be “preliminary determinations” or some other interim process so 

that farmers and ranchers are not relegated to a bureaucratic limbo subsequent to a 

permitting application? We believe that greatly expanded jurisdictional territories, 

certainly those beyond the traditional U.S. CWA, are very likely to incur more, not fewer, 

expenditures of time, talent, and treasure. We believe that an expanding requirement for 

significant collaboration will occur between the EPA and the Corps’ on all jurisdictional 

and enforcement issues. Are the current databases and communication processes 

compatible? (p. 11)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The agencies believe that the rule will result in a reduction of casespecific determinations which was achieved by making tributaries and adjacent 

waters jurisdictional by rule coupled with limits on the two types of categories of 

waters that require a case-specific analysis. Therefore, the agencies do not foresee 

an increase in delays due to workload on jurisdictional determinations. The agencies 

believe the final rule will simplify the process of making jurisdictional 

determinations. The agencies are developing guidance to facilitate implementation 

of the final rule when it becomes effective, which will provide for consistent 

determinations. The agencies also intend to retain the concept of preliminary JDs. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

607

There are two types of jurisdictional determinations; preliminary and approved 

jurisdictional determinations. Preliminary jurisdictional determinations indicate 

which waters on a property may be waters of the U.S., presume all waters on a 

property are jurisdictional, are not legally binding instruments, and enable a 

landowner to set aside the issue of jurisdiction and move directly into the permit 

evaluation phase of the process. Preliminary jurisdictional determinations cannot 

be used to decline jurisdiction and are generally more expedient than approved 

jurisdictional determinations. Approved jurisdictional determinations are the 

official Corps determination that jurisdictional “waters of the United States,” or 

“navigable waters of the United States,” or both, are either present or absent on a 

particular site. An approved JD precisely identifies the limits of those waters on the 

project site determined to be jurisdictional under the Clean Water Act/Rivers and 

Harbors Act. The majority of jurisdictional determinations completed by the Corps 

are preliminary.

Texas Farm Bureau (Doc. #14129)

12.953 Overly-broad definitions of tributaries, adjacent areas, and floodplains will result in 

“waters of the United States” being expanded into production areas of fields and pastures. 

Farmers and ranchers would have to seek NPDES permit authority to plow, plant, 

fertilize, and control pests in newly classified “waters”. Other changes made through the 

“Interpretive Rule” will result in additional burdens and compliance issues associated 

with §404 Permitting. (p. 2)

Agency Response: The rule does not change the Section 404 regulatory program. 

All exemptions, including those for ongoing farming, remain. The scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries. In addition to clarifying 

the definition of tributary, the rule also clarifies definitions for adjacent, 

neighboring, significant nexus, ordinary high water mark, and high tide line. This 

narrowing of scope and clarifying of definitions are designed to avoid the kind of 

unbounded jurisdiction described by the commenter. The “Interpretive Rule” has 

been withdrawn.

Wyoming Farm Bureau Federation (Doc. #14406)

12.954 These proposed rules will certainly increase permitting requirements for WyFB members. 

Activities which are currently “normal” activities under Section 404 of the Clean Water 

Act will be no longer be such should this rule go forward. Simple acts such as repairing 

fence, tilling soil, applying pesticides or fertilizers, etc. would not be “normal” in many 

instances. Permits from governmental agencies are not free, either in time or money. 

Because permits are not instantaneous, many of these activities would not be able to be 

performed until permits are in hand, should these rules go forward. (p. 4)

Agency Response: The rule does not alter longstanding agricultural exemptions in 

determinations regarding “waters of the United States” including the Section 

404(f)(1) exemptions for normal ongoing farming. That said, the scope of 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

608

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

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

existing categories such as tributaries.

National Corn Growers Association (Doc. #14968)

12.955 In the case of the Section 404 dredge and fill permitting program, it is NCGA’s 

understanding that if the drainage features like those depicted in Figures 1 and 2 are made 

WOTUS, or could be possibly WOTUS, that farmers in many parts of the country will 

invariably face stepped up Section 404 obligations, costs and liabilities. This will be 

despite the “normal farming exemption” in Section 404(f)(1). At a basic level this will be 

for the simple reason that there will be an exponential increase in the number of instances 

whereby farmers will have to approach the Corps and seek the normal farming 

exemption. Time and cost will be involved in those requests in nearly every instance. 

Furthermore, the Corps in many of its districts have a long history of being very reluctant 

to grant the normal farming exemption (claiming a recapture of the activities under 

Section 404(f)(2)), or of being able to impose certain constraints on activities in granting 

the normal farming exemption. (p. 12)

Agency Response: The rule does not alter longstanding agricultural exemptions in 

determinations regarding “waters of the United States.” That said, the scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries. The updated Economic 

Analysis prepared by the agencies indicates the benefits of the rule outweigh any 

associated costs placed on the regulated public and on the agencies themselves. See 

the Economic Analysis for the final rule for further discussion on the predicted 

jurisdictional changes under the final rule.

12.956 The issues under Section 404 do not stop there. The Section 404(f)(1) normal farming 

exemption does not include many activities like land shaping that may occur in these 

drainage systems to facilitate the creation or management of more effective farm drainage

ways. Making these ephemeral and intermittent drainage features WOTUS will 

invariable result in more Section 404 permitting in farm country. All of these Section 

404 concerns could result from either the Corps’ own implementation of their program in 

light of the rulemaking, or as a result of activists’ lawsuits under the CWA forcing them, 

or farmers, to do so. (p. 12)

Agency Response: The rule does not alter longstanding agricultural exemptions in 

determinations regarding “waters of the United States.” That said, the scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries. The rule also provides 

greater clarity. The rule for the first time explicitly excludes certain ditches from 

the definition of waters of the United States. The rule excludes all ditches with 

ephemeral flow that are not excavated in or relocate a tributary. The rule also 

excludes ditches with intermittent flow that are not excavated in or relocate a 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

609

tributary or drain wetlands, regardless of whether or not the wetland is a covered 

water. Finally, ditches that do not connect to a traditional navigable water, 

interstate water, or territorial sea either directly or through another water are 

excluded, regardless of whether the flow is ephemeral, intermittent, or perennial. 

The final rule has been crafted to reduce existing confusion and inconsistency 

regarding the regulation of ditches.

Arizona Farm Bureau Federation (Doc. #15064)

12.957 Not only would the proposed rule suffocate normal farming and ranching operations 

erroneously in the name of water quality, but it also unnecessarily opens up daily lives to 

EPA compliance with the Fish and Wildlife Coordination Act. The ambiguous wording 

of the rule is ripe for litigation as left to the interpretation of agency enforcement and 

environmental litigants. (p. 3)

Agency Response: The rule does not alter longstanding agricultural exemptions in 

determinations regarding “waters of the United States.” That said, the scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries. 

El Dorado Irrigation District (Doc. #15231)

12.958 The proposed rule is inconsistent with EPA ‘sown water transfer rule. The proposed rule 

indicates that ditches or other conveyances may constitute “tributaries” if they “connect 

two or more waters of the United States.” (79 Fed. Reg. No. 76, 22203 (April 21, 2014).) 

This part of the proposed rule is inconsistent with EPA’s own Water Transfers Rule, as 

set forth in 40 CFR 122.3(i). The Water Transfers Rule provides that water transfers are 

exempt from the requirements of obtaining a permit under section 402. (40 CFR § 

122.3(i); but see Catskill Mountains Chapter a/Trout Unlimited, Inc. v. U.S. EPA, 8 

F.Supp.3d 500 (S.D.N.Y. March 28, 2014) (vacating the water transfer rule) pending 

appeal in the 211d Circuit.) “Water transfer means an activity that conveys or connects 

waters of the United States without subjecting the transferred water to intervening 

industrial, municipal, or commercial use.” ( 40 CFR § l22.3(i).) Such water transfers are 

ubiquitous throughout the Western United States, particularly in mountainous regions.

For example, EID owns and operates Echo Lake, a high mountain reservoir that diverts 

and stores water from the Upper Truckee River watershed at an elevation of 

approximately 7,200 feet above sea level as part of its Project 184. From Echo Lake, 

EID transfers water into the South Fork American River watershed, via approximately 

3,250 feet of enclosed conduit and tunnel. The transfer simply moves water from one 

watershed (at its very headwaters) to another, without subjecting the water to any 

intervening use [image omitted].

The Water Transfers Rule exclusion to the permitting requirements of section 402, 

however, does not apply to the permit requirements of section 404. Therefore, by 

expanding the definition of “tributary” to include conveyances that merely “connect two 

or more waters of the United States,” the proposed rule would require permits under 

section 404, but not 402, for water transfers. Such an outcome is illogical. If conveying 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

610

water through man-made channels from one water of the United States to another, 

without any intervening use, does not require a permit under section 402, why should it 

require such a permit under section 404? (p. 8)

Agency Response: See summary response 12.3. This comment appears to say that 

it would be inconsistent because discharges from a water transfer would not require 

a 402 permit because of the water transfer rule, but discharges of dredged or fill 

material into a water transfer conduit could require a CWA 404 permit. A Section 

404 permit applies to the discharge of dredged or fill material into a waters of the 

U.S not for transfer or discharge of water. Please see summary response at 12.3 

which explains that the water transfer rule is not changed by the final rule. The 

water transfer rule is about which discharge needs a permit, under 402 not whether 

the water conveyance is a water of the U.S (and thus may need a 404 permit for 

discharges of dredged or fill into the water conveyance),.

Kitchen Cabinet Manufacturers Association et al. (Doc. #15418)

12.959 Most importantly, treating such water bodies [referring to “water bodies on mill property 

that are part of commercial activities”] as WOTUS would do little, if anything, to further 

the goals of the CWA, and it would impose excessive regulatory burdens on both facility 

operators and CWA permitting and enforcement authorities. A prohibition on discharge 

of fill material into, or dredging fill material out of, a water body without a permit makes 

no sense when that water body was created for the purpose of storing water containing 

suspended solids, or of settling solids out of that water, for example. Water quality 

standards designed to protect aquatic life in, or to assure the aesthetics of, a natural water 

body serve no purpose if applied to a water body that is part of an industrial operation. 

Maintaining healthy aquatic organisms in a water body may be the opposite of what is 

needed in ponds used to store water to be used for commercial purposes, such as for 

cooling water or for water used to process food or manufacture drugs. If EPA were to 

claim WOTUS jurisdiction over such ponds, EPA and state agencies would take on a 

tremendous burden of having to develop new water quality standards that would be 

appropriate for such uses, as well as issue CWA section 402 or section 404 permits for 

discharges into or activities related to maintenance of those waters – and for little or no 

regulatory benefit. (p. 3-4)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The rule clarifies that waste treatment systems, including treatment 

ponds or lagoons designed to meet the requirements of the CWA are excluded from 

the rule. In addition, the rule provides additional clarification regarding the kinds 

of water management features that are excluded from the rule including stormwater 

control features constructed to convey, treat, or store stormwater that are created in 

dry land. The rule also provides additional clarification regarding the types of 

ditches that are excluded from the rule including ephemeral ditches that are not a 

relocated tributary or excavated in a tributary and ditches that do not flow, either 

directly or through another water, into a traditional navigable water. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

611

National Barley Growers Association (Doc. #15627)

12.960 Because the language in the proposed new definition of WOTUS is so broad and general, 

businesses may need to retain expert wetlands and legal consultants before even 

beginning construction/expansion projects to evaluate whether the project will impact any 

areas that could be classified as WOTUS under the new definition. Based on the 

definitions it is also highly likely that more projects of minor water quality significance 

will require CWA Section 401/404 consultation, certification, and federal permitting. 

These additional requirements will significantly affect the cost of land acquisition and 

projects costs, and will likely create delays in the permitting and construction schedule. 

The broader WOTUS definition will likely impact storm water management programs 

and add complexity for insignificant activities. We are concerned that minor storm water 

related activities could become regulated activities triggering unnecessary and timeconsuming Federal reviews including NEPA requirements. Relatively minor activities 

such as clearing sediment from storm water basins or moving storm water drains would 

then require additional permitting and reviews, which would result in an unnecessary 

increase in time and money to complete the work. (p. 4)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. In addition to clarifying the definition of tributary, the rule also clarifies 

definitions for adjacent, neighboring, significant nexus, ordinary high water mark, 

and high tide line. This narrowing of scope and clarifying of definitions are designed 

to avoid the kind of unbounded jurisdiction described by the commenter. In 

addition, the rule provides additional clarification regarding the kinds of water 

management features that are excluded from the rule including stormwater control 

features constructed to convey, treat, or store stormwater that are created in dry 

land.

12.961 There is concern that EPA and/or the Corps will use the ambiguity of the Proposed Rule 

in terms of the WOTUS definition to over-ride state and local control of the 

aforementioned water management activities. This creates significant concern for barley 

producers that their regular farming activities will be subject to a National Pollutant 

Discharge Elimination System (NPDES) and/or Section 404 permitting process. This is 

an unacceptably heavy burden for barley producers, as a farm simply cannot remain 

viable if ongoing farming practices are subject to a wide array of regulatory permitting 

requirements that may take months and/or years to acquire. Based on experience, barley 

producers believe that if either EPA or the Corps gains such control over routine farming 

activities, much of the farmland in the Northern Plains will become un-farmable due to 

the lack of timely water management activities. (p. 4-5)

Agency Response: Section 402 and 404 permit implementation is outside the scope 

of this rule. However, the rule does not alter longstanding agricultural exemptions

for normal farming in Section 404(f)(1). In addition, the scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

waters will be defined as “waters of the United States” under the rule than under 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

612

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

existing categories such as tributaries.

Peltzer & Richardson LC (Doc. #16360)

12.962 (Irrigation ditches and canals that are constructed wholly in uplands and drain only 

uplands) are currently exempted from NPDES permit requirements [33 U.S.C. 

§1342(l)(1) and (p)(1)]. If (these ditches) escape the exclusion and are therefore 

considered “jurisdictional” for other purposes of the CWA, they will be subject to other 

permitting requirements. The most onerous of these is the requirement to obtain a “fill”

permit under section 404 of the Act. This section was clearly designed to prevent the fill 

of the nation’s navigable waterways; it has no application whatsoever to ditches and 

canals, yet it constitutes the single biggest regulatory burden on owners of these 

waterways, as well as the agencies implementing the CWA. For example, even the 

construction of a simple culvert for road purposes or installation of a measuring weir 

would require a “fill” permit be obtained, absent a specific showing that this exclusion 

applies. This must be recognized as an absurdity that desperately needs correction. (p. 5-

6)

Agency Response: The rule clarifies the types of ditches that are excluded from 

regulations including ephemeral ditches that are not a relocated tributary or 

excavated in a tributary; intermittent ditches that are not a relocated tributary, 

excavated in a tributary, or drain wetlands; and ditches that do not flow, either 

directly or through another water, into a traditional navigable water.

Loup Basin Reclamation District (Doc. #16474)

12.963 (...) Nebraska has long coordinated with the agencies in water-related matters, including 

Section 404 guidelines. They serve as a basis upon which farmers, wildlife-enthusiasts, 

and construction firms, alike, may rely and comply with necessary rules. The proposed 

guidelines unnecessarily complicate existing state water quality requirements and best 

practices, while broadening its statutory control over more area. This expansion of 

federal authority over bodies not traditionally considered waters would lead to confusion, 

project delays, and increased costs for farming activities, due to an increase in permits 

that would be required. (p. 2)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. See the Economic Analysis for the final rule for further discussion on 

the predicted jurisdictional changes under the final rule.

Florida Crystals Corporation (Doc. #16652)

12.964 By having jurisdiction over even a part of a project site, the agencies gain control over 

the entire project. Most large projects require the use of at least some wetlands or 

ditches, and the Army Corps will examine the environmental effects of the overall project 

– even those portions on uplands – when issuing permits. Army Corps permits under 

CWA § 404 commonly have conditions which address those upland impacts. Outside 

opposition groups use lawsuits against CWA § 404 permits as a tool to try to block 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

613

projects which they believe are undesirable from a land use perspective, often after they 

have failed to persuade local officials to refuse to approve the projects. There are many 

examples of such lawsuits. For instance, environmental groups stopped a biotechnology 

incubator planned for former farmlands in South Florida by challenging an Army Corps 

CWA § 404 permit to fill a small portion of the site and arguing that the agency did not 

adequately analyze how the project might induce suburban sprawl in the area. Fla. 

Wildlife Fed’n v. US. Army Corps of Eng’rs, 401 F.Supp.2d 1298 (S.D. Fla. 2005). In 

another example, environmental groups tried to block construction of a shopping mall in 

Central Florida by challenging a CWA § 404 permit after losing a political battle in local 

land use forums over the zoning of the site. Sierra Club v. Van Antwerp, 661 F.3d 1147 

(D.C. Cir. 2011). There are many more examples, but these illustrate how CWA 

regulatory jurisdiction has become a tool to control land use. (p. 9)

Agency Response: The rule only provides for a definition of “waters of the U.S.” 

Implementation of the Section 404 permitting program is outside the scope of this 

rule. That said, the scope of regulatory jurisdiction in this rule is narrower than that 

under the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries.

Calloway County Farm Bureau (Doc. #16158.1)

12.965 As I review the proposed rule, it troubles me with the confusing standards of determining 

regulatory oversight that would be established if implemented. Rather than providing a 

clear determination of how navigable waters, as established in the Clean Water Act, 

would be determined, the proposed rule uses an ambiguous “significant nexus” standard 

that uses near proximity, aggregation and best professional judgment. I fear this will only 

lead to an increase in litigation by groups determined to limit agricultural production 

rather than implementing practices that protect the environment through the use of 

agriculture. (p. 1)

Agency Response: The final rule reduces the number of instances where 

signification nexus determinations must be made and clarifies the definition of 

significant nexus to reduce subjectivity in its application. For example, the agencies 

provide more detail regarding the definition of significant nexus in the rule and list 

the specific functions that will be considered in the analysis. This approach provides 

individual regulators who conduct the analysis clear and consistent parameters that 

they will consider during their review in making jurisdictional determinations and 

provides transparency to the regulated public over which factors will be considered. 

The agencies are developing guidance to facilitate implementation of the final rule 

when it becomes effective, which will provide for consistent determinations. The 

agencies strive to achieve consistency across the country in all districts and regions 

in application of the rule for jurisdictional determinations.

Agribusiness Association of Kentucky (Doc. #18005)

12.966 If low spots in farm fields are defined as jurisdictional waters, a federal permit will be 

required for farmers to protect crops. Absent a permit, even accidental deposition of 

pesticides and herbicides into these “jurisdictional” features (even at times when the 

features are completely dry) would be unlawful discharges. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

614

The same goes for the application of fertilizer – including organic fertilizer (manure) –

another necessary and beneficial aspect of many farming operations. 40 CFR §122.2 

(definition of “pollutant”). It is simply not feasible for farmers to avoid adding fertilizer 

to low spots within farm fields that may become jurisdictional. As a result, the proposed 

rule will impose on farmers the burden of obtaining a section 402 discharge permit to

fertilize their fields – and put EPA into the business of regulating whether, when, and 

how a farmer’s crops may be fertilized. In fact, if low spots on pastures become 

jurisdictional wetlands or tributaries, EPA or citizens groups could sue the owner of cows 

that “discharge” manure into those “waters” without a section 402 permit. They could 

sue any time a farmer plows, plants, or builds a fence across small jurisdictional wetlands 

or ephemeral drains.237 Given the “very low” “threshold” the Agencies apply before 

“truly de minimis activities” turn into “adverse effects on any aquatic function,” farmers 

and ranchers would even have to think about whether “walking, bicycling, or driving a 

vehicle through” a jurisdictional feature is prohibited.238 Federal permits would be 

required (again, subject to the very narrow exemption of certain activities from section 

404 permits, discussed below at Section III) if such activities cause fertilizer, dirt, or 

other pollutants to fall into low spots on the field, even if they are dry at that time. (p. 3)

Agency Response: The rule does not alter longstanding agricultural exemptions in 

determinations regarding “waters of the United States.” That said, the scope of 

regulatory jurisdiction in this rule is narrower than that under the existing

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

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

qualifiers on some existing categories such as tributaries.

12.967 The Agencies have repeatedly overstated the protection afforded by the normal farming 

and ranching exemption by refusing to publicly acknowledge their interpretation of an 

“established” operation.239 Our research, as well as experiences within the forestry 

sector, indicates that only operations that commenced (at the same location) in 1977 or 

earlier would be deemed “established” – and any later commenced operation would 

require a section 404 permit. Despite multiple inquiries, the Agencies have refused to 

provide any public confirmation or denial on this point. In at least one private meeting, 

however, EPA officials have admitted that farming (in a jurisdictional feature) that has 

not been ongoing since 1977 would require a section 404 permit, but “only for the first 

year” – after that, it would be an “established” operation. See Letter from Craig Hill, 

 

237 A plow has been found to be a point source. See Borden Ranch P ‘ship v. United States Army Corps of Eng’rs, 

261 F.3d 810 (9th Cir. 2001).

238 Fed. Reg. 45,008, 45,020 (Aug. 25, 1993).

239 On March 25, 2014, the Agencies issued an immediately effective “interpretive rule” concerning the application 

of “normal” farming exemptions to 56 listed conservation practices. Although the Agencies claim to have 

“expanded” agriculture’s CWA exemptions through this interpretive rule, we strongly disagree with that conclusion 

and provided comments to and requested withdrawal of the interpretive rule. As described in comments submitted 

by AFBF to that docket, the interpretive rule provides no meaningful protection from the harmful implications of the 

expansion of “navigable waters” and, in fact, further narrows the already limited “normal” farming exemption. See 

American Farm Bureau Federation “Comments in Response to Notice of Availability Regarding the Exemption 

From Permitting Under Section 404(0(1)(A) of the Clean Water Act to Certain Agricultural Conservation Practices, 

EPA–HQ–OW-2013-0820; 9908-97–OW (July 7, 2014) (attached hereto as Appendix J). We hereby attach and 

incorporate those comments by reference in their entirety.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

615

President, Iowa Farm Bureau, to Ken Kopocis, Deputy Assistant Administrator, U.S. 

EPA Office of Water (Sept. 29, 2014) 

(http://www.regulations.gov/#!documentDetail;D=EPAHQ-OW-2011-0880-7633). We 

request clarification on this important point in any final Agency action on the proposed 

rule. We request clarification on this important point in any final Agency action on the 

proposed rule. (p. 14-15)

Agency Response: The rule does not alter longstanding agricultural exemptions in 

determinations regarding “waters of the United States.” That said, the scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries. In the final rule, the 

agencies identify a variety of waters and features that are not “waters of the United 

States.” Prior converted cropland has been excluded from this definition since 1992, 

and remains substantively and operationally unchanged.

12.968 The Agencies also downplay the impact of the “recapture” provision. Seeking to allay 

farmer concerns, the proposal claims that the term “tributary” does not include ephemeral 

features located on farmlands that do not possess a bed and bank are not tributaries. 79 

Fed. Reg. at 22,204. Yet, the Agencies tip their hand in this carefully worded section of 

the preamble. According to the Agencies, if farming has eliminated a bed and bank 

where one previously existed (e.g., cultivation has leveled out changes in gradient on the 

field), the Agencies would view that as “converting” a jurisdictional water into a “nonjurisdictional water.” Id. at n.8.Any such conversion, according to the Agencies, would 

require a Section 404 permit unless it occurred prior to enactment of the CWA. (p. 15)

Agency Response: The rule does not alter longstanding agricultural exemptions in 

determinations regarding “waters of the United States.” That said, the scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries. In the final rule, the 

agencies identify a variety of waters and features that are not “waters of the United 

States.” Prior converted cropland has been excluded from this definition since 1992, 

and remains substantively and operationally unchanged.

Kittson County, Minnesota (Doc. #1244)

12.969 Although I support the need for clean water for all residents of the US and for future 

generations I would like to have you know that if you are going to be requiring more 404 

permits you need to do a much better job of administering and delivering the permitting 

process. In the Red River Valley of Minnesota we have already experienced delays of 

which are unacceptable. When it takes two years or more to obtain an IP (individual 

permit) the costs of the original project go up due to inflation and the internal 

administrative time negotiating the permit become excessive and unacceptable. (p. 1)

Agency Response: The rule only provides for a definition of “waters of the U.S.” 

Implementation of the Section 404 permitting program is outside the scope of this 

rule. That said, the scope of regulatory jurisdiction in this rule is narrower than that 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

616

under the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries. The 

agencies believe that the rule will result in a reduction of case-specific 

determinations which was achieved by making tributaries and adjacent waters 

jurisdictional by rule coupled with limits on the two types of categories of waters 

that require a case-specific analysis. Therefore, the agencies do not foresee an 

increase in delays due to workload on jurisdictional determinations. The agencies 

believe the final rule will simplify the process of making jurisdictional 

determinations. The rule also does not affect permitting tools such as the use of 

general permits that the Corps implements for expeditious review and efficiency in 

processing permit applications for discharges of dredged and/or fills material into 

waters of the U.S. The rule will improve consistency and predictability for all CWA 

programs and provides clarity regarding jurisdiction, thus reducing uncertainties 

and delays.

12.970 Why are you putting all this effort into adopting more rules when we are not seeing any 

improvement in your metrics for meeting your delivery deadlines for 404 permits? The 

St. Paul, MN. COE office either needs more staff or different staff who can deliver 

permits in a timely manner. We are applying for permits with applications filled out by 

professional wetland engineering consultants as requested by the COE and compared to 

several years ago when the applications were done on the local level with help from the 

County SWCD’s and the State BWSR but were told that if we went with professional 

consultants we would be getting faster turnaround on our permit applications. Since then 

we are spending over $10,000 on each permit application by hiring a consultant and we 

have not seen any improvement. (p. 1)

Agency Response: Implementation of the section 404 permit program is outside 

the scope of this rulemaking. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The rule also does not affect permitting tools such as 

the use of general permits that the Corps implements for expeditious review and 

efficiency in processing permit applications for discharges of dredged and/or fills 

material into waters of the U.S. The rule will improve consistency and 

predictability for all CWA programs and provides clarity regarding jurisdiction, 

thus reducing uncertainties and delays.

12.971 In addition, the State of Minnesota already has a wetland protection program which in 

our district requires that wetlands be replaced at a 2:1 ratio. This is more restrictive than

the COE 404 guidelines which accept mitigation at a 1:1 ratio. The State already has a 

bank of credits for local road projects which can be used for mitigation if it cannot be 

done on site. (p. 1)

Agency Response: Nothing in this rule impacts the ability of states to develop 

more environmentally protective program.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

617

Lake Charles Harbor and Terminal District (Doc. #14448)

The cumulative effect of proposed changes is an increase in the amount of land where 

activities will come under the jurisdiction of the CWA. The District is concerned that 

this increased coverage will result in larger numbers of jurisdictional determinations and 

permits to be evaluated, further clogging the Corps understaffed regulatory function and 

further delaying the issuance of permits critical for the phenomenal industrial 

development expected in southwest Louisiana. In short, this proposal will increase

permitting and mitigation burdens, project costs will increase, and permits will be further 

delayed. (p. 2)

Agency Response: Implementation of the section 404 permit program is outside 

the scope of this rulemaking. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The agencies believe that the rule will result in a 

reduction of case-specific determinations which was achieved by making tributaries 

and adjacent waters jurisdictional by rule coupled with limits on the two types of 

categories of waters that require a case-specific analysis. Therefore, the agencies do 

not foresee an increase in delays due to workload on jurisdictional determinations. 

The agencies believe the final rule will simplify the process of making jurisdictional 

determinations. The rule also does not affect permitting tools such as the use of 

general permits that the Corps implements for expeditious review and efficiency in 

processing permit applications for discharges of dredged and/or fills material into 

waters of the U.S. The rule will improve consistency and predictability for all CWA 

programs and provides clarity regarding jurisdiction, thus reducing uncertainties 

and delays.

Union Pacific Railroad Company (Doc. #15254)

12.972 The Proposed Rule would also substantially increase the burden on regulated entities and 

federal and State agencies, resulting in diversion of limited resources, increased 

permitting delays, expenses and litigation without benefitting water quality or the 

environment. The Agencies are already struggling to process permits in a timely manner. 

They, as well as other federal and State agencies involved in CWA permitting, will not be 

able to handle the additional notifications, consultations, reviews, assessments and 

approvals that will be required as a result of the vastly expanded scope of CWA 

jurisdiction under the Proposed Rule. (p. 4)

Agency Response: Implementation of the section 404 permit program is outside 

the scope of this rulemaking. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The agencies believe that the rule will result in a 

reduction of case-specific determinations which was achieved by making tributaries 

and adjacent waters jurisdictional by rule coupled with limits on the two types of 

categories of waters that require a case-specific analysis. Therefore, the agencies do 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

618

not foresee an increase in delays due to workload on jurisdictional determinations. 

The agencies believe the final rule will simplify the process of making jurisdictional 

determinations

12.973 An expansion of CWA jurisdiction will also significantly and unnecessarily increase the 

burden for the Agencies, which are already often unable to process permits, conduct 

inspections and perform other statutory requirements in a timely fashion. It will increase 

this burden for State and local Agencies, as well, especially in States delegated with 

CWA implementation authority. And the expansion will create these burdens and 

adverse effects without benefiting water quality, which is already adequately protected 

under State and federal law. (p. 22)

Agency Response: Implementation of the section 404 permit program is outside 

the scope of this rulemaking. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The agencies believe that the rule will result in a 

reduction of case-specific determinations which was achieved by making tributaries 

and adjacent waters jurisdictional by rule coupled with limits on the two types of 

categories of waters that require a case-specific analysis. Therefore, the agencies do 

not foresee an increase in delays due to workload on jurisdictional determinations. 

The agencies believe the final rule will simplify the process of making jurisdictional 

determinations.

12.974 The Significant Increase in CWA Jurisdiction Under the Proposed Rule will Impair Safe 

and Efficient Rail Operations and Delay Necessary Infrastructure Construction, 

Maintenance and Repairs. (...) 

Other railroad construction, maintenance and related activities also occur near 

jurisdictional waters. For example, installation of new track, replacement of culverts, 

construction and repair of bridges and installation of fiber optic, signal and cable lines are 

all common activities along railroad rights of way. To the extent that these rail 

maintenance activities occur in areas already subject to CWA jurisdiction, as defined by 

the holding in Rapanos, the railroads’ resources already are severely stretched in order to 

schedule maintenance, repair, replacement and construction activities so that adequate 

time exists to satisfy CWA Section 404 and other regulatory requirements.240 Given the 

more than 140,000 miles of rail line in the United States, a substantial amount of which is 

near, crosses, or is adjacent to navigable and/or relatively permanent surface waters, this 

current level of regulation is extremely burdensome. Expanded CWA jurisdiction under 

the Proposed Rule will extend far beyond ditches and will hamper and delay construction, 

maintenance and repair of culverts, bridges, causeways, roadbeds, and virtually every 

structure and activity required for safe, efficient and reliable railroad operations.

 

240 We note that, if CWA jurisdiction exists, such permitting also often requires Section 401 certifications from 

USEPA or State agencies, and consultations with U.S. Fish & Wildlife, and review and approval by other agencies, 

a process that can require weeks, months or even years to complete.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

619

The inevitable increase in waters that will become subject to CWA jurisdiction under the 

Proposed Rule will make compliance even more difficult and will result in further delays 

in obtaining agency approvals. This in turn will adversely affect carefully coordinated

rail freight operations, maintenance and construction schedules, and will inevitably 

threaten the safety and efficiency of rail operations. Railroads also have to respond to 

emergency situations, such as floods, mudslides, avalanches, debris flows, hurricanes and 

storm events, quickly and efficiently providing goods and services. Interruptions and 

delays in rail service can be catastrophic for businesses, consumers and the economy, and 

may even threaten public health and safety. (p. 23)

Agency Response: Implementation of the section 404 permit program is outside 

the scope of this rulemaking. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The agencies believe that the rule will result in a 

reduction of case-specific determinations which was achieved by making tributaries 

and adjacent waters jurisdictional by rule coupled with limits on the two types of 

categories of waters that require a case-specific analysis. Therefore, the agencies do 

not foresee an increase in delays due to workload on jurisdictional determinations. 

The agencies believe the final rule will simplify the process of making jurisdictional 

determinations. The rule also does not affect permitting tools such as the use of 

general permits that the Corps implements for expeditious review and efficiency in 

processing permit applications for discharges of dredged and/or fills material into 

waters of the U.S. The rule will improve consistency and predictability for all CWA 

programs and provides clarity regarding jurisdiction, thus reducing uncertainties 

and delays.

12.975 The Proposed Rule will Increase Burdens on the Agencies, and on State and Local 

Permitting and Enforcement Authorities

The Agencies are already struggling to process permits in a timely manner and simply 

will not be able to handle the notifications, consultations, reviews, assessments and 

approvals that will result from the greatly expanded scope of CWA jurisdiction under the 

Proposed Rule. According to a recent report concerning utility project permitting, in 

2011 the Corps completed review of 71 percent of individual Section 404 applications 

within 120 days of deeming the application complete, and completed review of 75 

percent of general permit applications within 60 days of deeming the application 

complete.241 The periods of time required for the Corps’ review of the remaining 25-29 

percent of such permit applications are presumably longer. 

These time frames are far too long for approval of urgent projects and are intolerable for 

emergency repairs and response activities. The existing resources of the Agencies will be 

stretched much thinner under the Proposed Rule. Moreover, the impact of expanded 

 

241 U.S. Governmental Accountability Office, Report to Congressional Committees, Pipeline Permitting: Interstate 

and Intrastate Natural Gas Permitting Processes Include Multiple Steps and Time Frames Vary, GAO-13-221, pp. 

26-30 (Feb. 2013), http://www.gao.gov/products/GAO-13-221.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

620

CWA jurisdiction will not only fall upon the Agencies, but also on other federal, State 

and local Agencies that must be consulted in the permitting process (e.g., USFWS, 

SHPOs and 401certification authorities) or which have delegated authority for CWA 

implementation – State and local agencies that have their own responsibilities for 

protecting water quality, as well as their own fiscal constraints. Recent revisions to the 

Corps’ Nationwide Permits, which require further staff involvement in reviews of 

preconstruction notification and coordination with other Agencies, have further 

exacerbated the problem.

The Agencies’ analysis of the Proposed Rule ignores the current backlog of permit 

applications and grossly underestimates the resources that would be required for 

implementation of the Proposed Rule. A more thorough and realistic analysis of the 

regulatory costs and benefits of the standards and requirements set out in the Proposed 

Rule is needed, together with an increased budget authorization approved by Congress to 

cover the additional personnel and related costs required by the expanded CWA 

jurisdiction, if such increased budget authorization can be obtained. (p. 23-24)

Agency Response: Implementation of the section 404 permit program is outside 

the scope of this rulemaking. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The agencies believe that the rule will result in a 

reduction of case-specific determinations which was achieved by making tributaries 

and adjacent waters jurisdictional by rule coupled with limits on the two types of 

categories of waters that require a case-specific analysis. Therefore, the agencies do 

not foresee an increase in delays due to workload on jurisdictional determinations. 

The agencies believe the final rule will simplify the process of making jurisdictional 

determinations. The rule also does not affect permitting tools such as the use of 

general permits that the Corps implements for expeditious review and efficiency in 

processing permit applications for discharges of dredged and/or fills material into 

waters of the U.S. The rule will improve consistency and predictability for all CWA 

programs and provides clarity regarding jurisdiction, thus reducing uncertainties 

and delays.

Airports Council International – North America (Doc. #16370)

12.976 The Proposed Rule will likely cause additional problems of special concern to those 

airports built on permeable fill material. In such circumstances, areas of differential 

settling on and around the airfield can rapidly meet jurisdictional wetland criteria. It is 

our experience that under these conditions jurisdictional criteria [hydric soils, inundation 

period and hydrophytic vegetation] can develop in as few as three to five years of regular 

surface ponding. Over the years some airports have submitted jurisdictional 

determinations (JDs) on a regular basis to the Corps in order to identify and fill these 

“isolated wetlands” to address the waterfowl attractant issue under 14 CFR Part 139 

without incurring a regulatory burden under federal standards. To remove this regulatory 

exclusion by rule based on a “shallow subsurface hydrologic connection” potentially adds 

yet another regulatory burden to the airport to comply with FAA mandates to manage 

hazardous wildlife attractants on and around the airport. (p. 8)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

621

Agency Response: Implementation of the section 404 permit program is outside 

the scope of this rulemaking. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. Also, the final rule adds an exclusion for puddles. 

The proposed rule did not explicitly exclude puddles because the agencies have 

never considered puddles to meet the minimum standard for being a “water of the 

United States,” and it is an inexact term. A puddle is commonly considered a very 

small, shallow, and highly transitory pool of water that forms on pavement or 

uplands during or immediately after a rainstorm or similar precipitation event. 

However, numerous commenters asked that the agencies expressly exclude them in 

a rule. The final rule does so.

Airlines for America (Doc. #15439)

12.977 EPA and the Corps repeatedly have assured stakeholders that the proposal does not 

expand CWA jurisdiction but simply revises agency regulations to reflect the Agencies’

longstanding interpretations. A4A supports this aim. Unfortunately, however, the 

Proposed Rule appears sweepingly broad in its reach. Moreover, it invites broad 

interpretation by reason of the subjective standard of “significant nexus” that the 

Agencies have employed when seeking to describe the proper reach of the Act.242 Most 

important, it would operate unpredictably in the context of airports. An example is 

illustrative. (p. 5)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. In Addition, the final rule reduces the number of instances where 

signification nexus determinations must be made and clarifies the definition of 

significant nexus to reduce subjectivity in its application. For example, the agencies 

provide more detail regarding the definition of significant nexus in the rule and list 

the specific functions that will be considered in the analysis. This approach provides 

individual regulators who conduct the analysis clear and consistent parameters that 

they will consider during their review in making jurisdictional determinations and 

provides transparency to the regulated public over which factors will be considered. 

The agencies are developing guidance to facilitate implementation of the final rule 

when it becomes effective, which will provide for consistent determinations. The 

agencies strive to achieve consistency across the country in all districts and regions 

in application of the rule for jurisdictional determinations.

 

242 “‘Significant nexus’ is not itself a scientific term. The relationship that waters can have to each other and 

connections downstream that affect the chemical, physical, or biological integrity of traditional navigable waters, 

interstate waters, or the territorial seas is not an all or nothing situation. The existence of a connection, a nexus, does 

not by itself establish that it is a ‘significant nexus.’ There is a gradient in the relation of waters to each other, and 

this is documented in the Report.” 79 Fed. Reg. at 22193, col.2.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

622

Charlotte-Mecklenburg Storm Water Services (Doc. #3431)

12.978 This general comment refers to Section 328.3, Federal Register pages 22262-22263. If 

the proposed definitions result in changes to mitigation requirements/ratios, these impacts 

need to be given consideration, documented, and published for public notice. (p. 3)

Agency Response: Implementation of the section 404 permit program is outside 

the scope of this rulemaking. Further, the rule does not alter or change the 

mitigation rule. That said, the scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries.

SD1 (Doc. #15140)

12.979 The consequences of failing to develop a rigorous scientifically-based set of gradient and 

regionally based tests for “significant nexus” to establish whether adjoining and 

neighboring water bodies are truly WOTUS will likely be an exceptional increase in the 

number of case-specific determinations rather than a decrease, with concurrent increases 

in paperwork and litigation involving citizen lawsuits. The absence of clear guidance for 

what constitutes a “significant nexus” will likely result in many projects having to go 

through the same sets of arguments as to what is and is not WOTUS, with no guarantee 

that the same determination will be achieved. As such, the proposed rule, as currently 

constituted, fails to advance the stated goal of:

“Developing a final rule to provide the intended level of certainty and predictability, and 

minimizing the number of case-specific determinations...” (p. 4)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The agencies believe that the rule will result in a reduction of casespecific determinations which was achieved by making tributaries and adjacent 

waters jurisdictional by rule coupled with limits on the two types of categories of 

waters that require a case-specific analysis. Therefore, the agencies do not foresee 

an increase in delays due to workload on jurisdictional determinations. The agencies 

believe the final rule will simplify the process of making jurisdictional 

determinations. The agencies provide more detail regarding the definition of 

significant nexus in the rule and list the specific functions that will be considered in 

the analysis. This approach provides individual regulators who conduct the analysis 

clear and consistent parameters that they will consider during their review in 

making jurisdictional determinations and provides transparency to the regulated 

public over which factors will be considered. The agencies are developing 

guidance to facilitate implementation of the final rule when it becomes effective, 

which will provide for consistent determinations. The agencies strive to achieve 

consistency across the country in all districts and regions in application of the rule 

for jurisdictional determinations.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

623

Southern Illinois Power Cooperative (Doc. #15486)

12.980 Maintenance and construction is regularly performed on water management features 

located within the plant footprint including stormwater conveyances (i.e., canals, ditches, 

washes, swales, arroyos, containment basins and ponds); other water management 

features (e.g., cooling ponds, spill diversion ditches, raw water and service water ponds, 

intake and discharge canals, construction pond, roadside and other ditches); waste and 

wastewater treatment systems; building and equipment pads; and SPCC containment 

areas. Typically, these on-site structures and features have not been considered 

jurisdictional by EPA or state water regulatory agencies. 

Such features function to control and manage wastewater, stormwater, and other waters 

in order to prevent pollutants or even heat from reaching WOTUS. They may be part of 

the water management system at any power plant including those fueled by coal, natural 

gas, and nuclear. Just because a feature or conduit coveys a pollutant to a downstream 

waterbody should not justify asserting that a feature or conduit itself is jurisdictional. 

Were such water management features and conveyances to become WOTUS, facilities 

would be confronted with additional permitting issues. Water management structures 

determined to be WOTUS would require discharge permits. The discharge to the water 

management system would have to be treated and possibly meet state water quality 

standards before it is sent to the treatment system designed to treat the water in the first 

place. Not only that, but 404 permits could be required to maintain the water 

management systems. Would cleaning the systems to remove sediment or scale be 

considered “dredging;” would modifying equipment be considered “fill”? 

In comments on EPA’s proposed steam electric effluent limitation guidelines, NRECA 

encouraged EPA to establish “water bubbles” over power plants, similar to those 

promulgated for the iron and steel industry. Within the bubble, the plant would be able to 

manage its water by possibly trading between and among sources, so long as discharges 

from the plant met applicable limits. Allowing and encouraging plant-wide water 

management systems and centralized wastewater treatment can actually contribute to 

improved environmental performance by encouraging water recycling, re-use and 

conservation. (p. 6-7)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The rule clarifies that waste treatment systems, including treatment 

ponds or lagoons designed to meet the requirements of the CWA are excluded from 

the rule. In addition, the rule provides additional clarification regarding the kinds 

of water management features that are excluded from the rule including stormwater 

control features constructed to convey, treat, or store stormwater that are created in 

dry land. The rule also provides additional clarification regarding the types of 

ditches that are excluded from the rule including ephemeral ditches that are not a 

relocated tributary or excavated in a tributary and ditches that do not flow, either 

directly or through another water, into a traditional navigable water. The Section 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

624

404(f)(1) exemption for ditch maintenance remains in effect. The proposed steam 

electric effluent guidelines are outside the scope of this rulemaking.

12.981 (Regarding “Decommissioning Retiring Sites”] As the electric utility industry brings 

new generation resources online, older plants are being decommissioned and their sites 

are frequently remediated for other uses. Such “brownfields” development has been 

encouraged for years by EPA as well as state and local parties interested in economic 

development. The proposed rule would hamper efforts to make these sites available for 

continued, productive use. 

Decommissioning often requires cleaning and filling ditches, canals and treatment ponds 

on the site, as well as grading and other groundwork. These features often have not been 

treated as jurisdictional in the past, but might be deemed WOTUS under the proposed 

rule. Remediation work could require a section 404 permit and compensatory mitigation 

in essence requiring mitigation for mitigation! Added costs and delays could result in 

companies electing to mothball rather than restore sites, reducing the sites value and 

utility for all. (p. 8)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The rule clarifies that waste treatment systems, including treatment 

ponds or lagoons designed to meet the requirements of the CWA are excluded from 

the rule. In addition, the rule provides additional clarification regarding the kinds 

of water management features that are excluded from the rule including stormwater 

control features constructed to convey, treat, or store stormwater that are created in 

dry land. The rule also provides additional clarification regarding the types of 

ditches that are excluded from the rule including ephemeral ditches that are not a 

relocated tributary or excavated in a tributary and ditches that do not flow, either 

directly or through another water, into a traditional navigable water. Compensatory 

mitigation projects do not currently require compensation and this will not change 

under this rule.

NW Colorado Council of Governments Water Quality/ Quantity Committee (Doc. #10187)

12.982 As written, the rule creates confusion to the status of NWPs relying on the 300 linear foot 

assessment because the proposed definition of “tributary” would include all streams with 

a bed, bank and OHWM. The proposed rule should clarify that NWP evaluations under 

the 404 program are not affected by the rulemaking.

Agency Response: Implementation of the section 404 permit program is outside 

the scope of this rulemaking. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The rule also does not affect permitting tools such as 

the use of general permits that the Corps implements for expeditious review and 

efficiency in processing permit applications for discharges of dredged and/or fills 

material into waters of the U.S. The rule will improve consistency and 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

625

predictability for all CWA programs and provides clarity regarding jurisdiction, 

thus reducing uncertainties and delays.

Duke Energy (Doc. #13029)

12.983 The inclusion of ditches is a concern for Duke Energy for the potential effect that it could 

have on several routine activities. For example, including ditches as “waters of the 

Unites States” could significantly increase § 404 permitting for construction or 

maintenance of transmission or distribution lines, just based on the number of roadside 

ditch crossings. As another example, at every power generation site that Duke Energy 

owns there are various types of ditches or conveyances used to transport water for various 

water management purposes, such as transporting low volume wastewater to a collection 

pond or stormwater management conveyances that drain runoff following precipitation 

events. Duke Energy is concerned that additional § 404 permitting could be required for 

activities necessary for routine maintenance of these conveyances, such as clearing out 

vegetation or debris, even though they may already be regulated under other programs, 

such as the facility’s NPDES permit or Florida’s Environmental Resource Permit (ERP) 

program. (p. 27)

Agency Response: The rule provides additional clarification regarding the types 

of ditches that are excluded from the rule including ephemeral ditches that are not a 

relocated tributary or excavated in a tributary and ditches that do not flow, either 

directly or through another water, into a traditional navigable water. The rule also 

excludes ditches with intermittent flow that are not excavated in or relocate a 

tributary or drain wetlands, regardless of whether or not the wetland is a covered 

water. Finally, ditches that do not connect to a traditional navigable water, 

interstate water, or territorial sea either directly or through another water are 

excluded, regardless of whether the flow is ephemeral, intermittent, or perennial. 

The final rule has been crafted to reduce existing confusion and inconsistency 

regarding the regulation of ditches. Also, the CWA exemption for ditch 

maintenance remains in effect and is not changed by this rule

12.984 Under the proposed rule, virtually all waters could potentially become jurisdictional and, 

as a result, even more projects and activities will be required to obtain § 404 permits. (p. 

51)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. In addition to clarifying the definition of tributary, the rule also 

clarifies definitions for adjacent, neighboring, significant nexus, ordinary high water

mark, and high tide line. This narrowing of scope and clarifying of definitions are 

designed to avoid the kind of unbounded jurisdiction described by the commenter.

12.985 Applying for a § 404 permit can also trigger additional requirements that involve 

consultation with other state and federal agencies. For example, permit applicants must 

obtain a state water quality certification to proceed with the § 404 permit process. Permit 

applicants may also need to engage in consultations with various federal agencies to 

evaluate the impacts of the proposed activity under the National Environmental Policy 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

626

Act (NEPA), the Endangered Species Act (ESA), the National Historic Preservation Act, 

and other federal statutes. These consultations are often lengthy and burdensome 

resulting in additional costs, delays and project changes. In addition, the agencies’

increased jurisdiction will affect § 404 compensatory mitigation costs. With the 

significant expansion of jurisdiction to include every tributary, regardless of size or flow 

regime, along with the majority of ditches, it will become increasingly difficult to 

minimize or avoid impacts to “waters of the United States” for projects. This could also 

substantially increase the amount of time needed to obtain general and individual § 404 

permits. These delays and cost increases provide no additional environmental protection. 

(p. 52)

Agency Response: Implementation of the section 404 permit program including 

requirements of other related acts such as NEPA and the ESA are outside the scope 

of this rulemaking. That said, the scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries.

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

12.986 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. Our 

experience has been that the Agencies are already struggling under the current workload 

to process Section 404 permits in a timely fashion, and the substantial increase in federal 

jurisdiction promised by the Proposed Rule will only add to the Agencies’ and regulated 

community’s permitting burden. (p. 2)

Agency Response: Implementation of the section 404 permit program is outside 

the scope of this rulemaking. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The agencies believe that the rule will result in a 

reduction of case-specific determinations which was achieved by making tributaries 

and adjacent waters jurisdictional by rule coupled with limits on the two types of 

categories of waters that require a case-specific analysis. Therefore, the agencies do 

not foresee an increase in delays due to workload on jurisdictional determinations. 

The agencies believe the final rule will simplify the process of making jurisdictional 

determinations. The rule also does not affect permitting tools such as the use of 

general permits that the Corps implements for expeditious review and efficiency in 

processing permit applications for discharges of dredged and/or fills material into 

waters of the U.S. The rule will improve consistency and predictability for all CWA 

programs and provides clarity regarding jurisdiction, thus reducing uncertainties 

and delays.

Upper Niobrara White Natural Resources District (Doc. #13562)

12.987 Currently, the Section 402 and 303 programs are run by the NDEQ who relies on not 

only the federal rules but also state statutes. Through the implementation of the 
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627

programs, the Department works closely with local stakeholders and the NRDs to ensure 

water quality in protected through both regulatory and non-regulatory actions – local

solutions for local problems. By expanding jurisdiction, the control would shift and local 

control would be lost and the broad decisions could be made without any local input. It is 

recommended the rule be withdrawn and if necessary re-worked to specifically address 

the issues related to the Section 404 program rather than the entire CWA. (p. 2)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. Nothing in this rule limits local input or the ability of states to enact 

more environmentally protective programs. The agencies recognize that the state 

and local governments have well-defined and long-standing relationships in 

implementing affected CWA programs and these relationships will not be altered. 

This action will not have substantial direct effects on the states, on the relationship 

between the national government and the states, or on the distribution of power and 

responsibilities among the various levels of government. The agencies are not 

restricting the states’ efforts in developing or implementing statewide permits under 

CWA programs as a result of the rule.

Murray Energy Corporation (Doc. #13954)

12.988 Wastewater treatment systems on mines utilize a series of ponds (i.e., bench ponds and 

sediment ponds), natural drainages, and man-made drainage ditches, including both 

permanent and temporary ditches. These systems are required by federal regulations 

pursuant to the Surface Mining Control and Reclamation Act (“SMCRA”). See e.g., 30 

C.F.R. § 816.41. Construction of surface mine bench ponds and sediment ponds is 

already generally subject to 404 permitting, and outfalls from the ditches draining them 

are also already commonly subject to CWA Section 402 permit requirements. The 

Proposed Rule would add a burdensome and unworkable layer of complexity to this 

permitting scheme for surface mines by making the drainage ditches themselves subject 

to CWA jurisdiction. (p. 12)

Agency Response: The rule provides additional clarification regarding the types 

of ditches that are excluded from the rule including ephemeral ditches that are not a 

relocated tributary or excavated in a tributary. The rule also excludes ditches with 

intermittent flow that are not excavated in or relocate a tributary or drain wetlands, 

regardless of whether or not the wetland is a covered water. Finally, ditches that do 

not connect to a traditional navigable water, interstate water, or territorial sea 

either directly or through another water are excluded, regardless of whether the 

flow is ephemeral, intermittent, or perennial. The final rule has been crafted to 

reduce existing confusion and inconsistency regarding the regulation of ditches. 

Also, the CWA exemption for ditch maintenance remains in effect and is not 

changed by this rule

Southern Company (Doc. #14134)

12.989 With its expansion of jurisdiction, the proposal will undermine the efficiency afforded by 

the Corps’ NWP program by pushing many projects into the more costly and 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

628

administratively complex realm of individual permits. By way of one example of 

particular interest to Southern Company and the electric utility industry at large, the 

expansion of jurisdictional waters resulting under the agencies’ proposal would limit the 

use and availability of NWP 12. Given the importance of NWP 12 (and other NWPs) for 

utilities and utility line activities, the increased likelihood of exceeding the ≤ 1⁄2-acre 

eligibility threshold is particularly troubling for Southern Company. Eligibility under 

numerous other NWPs is likely to be similarly limited given the jurisdictional 

implications under various parts of the proposal – e.g., because impacts to previously 

non-jurisdictional ephemeral ditches would, under the new terms in the proposed rule, 

count towards the linear foot limitations establishing eligibility under various NWPs. 

Expanded jurisdiction will invariably result in more jurisdictional impacts from 

construction-related activities, giving rise to more compensatory mitigation to offset 

these impacts and increasing the complexity and costs of permitting. (p. 15-16)

Agency Response: Implementation of the section 404 permit program is outside 

the scope of this rulemaking. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The rule also does not affect permitting tools such as 

the use of general permits that the Corps implements for expeditious review and 

efficiency in processing permit applications for discharges of dredged and/or fills 

material into waters of the U.S. The rule will improve consistency and 

predictability for all CWA programs and provides clarity regarding jurisdiction, 

thus reducing uncertainties and delays.

Colorado Water Congress Federal Affairs Committee (Doc. #14569)

12.990 If a pipeline is constructed across a normally dry wash or dry arroyo, and the construction 

activity occurs only when water is not flowing, will the project nevertheless need a 

section 404 permit (if the answer is “yes” or “maybe,” are there any limits on the amount 

or frequency of flow that must pass through the wash or arroyo); (p. 7-8)

Agency Response: Where that wash or arroyo has sufficient flow to establish an 

OHWM and it meets the agencies’ regulatory definition of tributary then it is a 

water of the United States and a section 404 permit may needed. Where these 

washes or arroyos lack an OHWM or otherwise do not meet the definition of 

tributary they are erosional features and no section 404 permit would be required 

for discharges resulting from the pipeline construction.

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

12.991 Linear projects often have a number of crossings of WOTUS, which will increase if the 

extent or number of jurisdictional waters increases as a result of this rule. Further, 

expanding the extent of jurisdictional waters would also likely link previously isolated 

crossings into a single crossing, increasing the likelihood of triggering an individual 

permit. Even a three percent increase in jurisdictional waters could tip a number of 

proposed projects into the individual permit process increasing costs and timelines and, 

thus, decreasing the likelihood of completion. This would jeopardize large portions of 

the nation’s near- and long-term energy policy goals, including renewables and 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

629

transmission integral to achieving the goals and objectives of the Administration’s 

Climate Action Plan. (p. 8-9)

Agency Response: Implementation of the section 404 permit program is outside 

the scope of this rulemaking. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries.

12.992 We are also concerned that expanding WOTUS’ jurisdictional status could undermine the 

NWP program by preventing and/or significantly delaying project development and 

infrastructure modernization efforts. Undermining the NWP process would result in the 

following adverse consequences, as identified by the Corps in its existing NWP 12 

Decision Document: 

(1) reduce the Corps’ ability to pursue the current level of review for other activities 

that have greater adverse effects on the aquatic environment; 

(2) reduce the Corps’ ability to conduct compliance actions; 

(3) require substantial additional resources for the Corps to evaluate minor activities 

through the individual permit process, and for the public and federal, tribal, and 

state resource agencies to review and comment; and 

(4) eliminate the incentive to design projects that meet the existing terms and 

conditions of a NWP. (p. 9)

Agency Response: Implementation of the section 404 permit program is outside 

the scope of this rulemaking. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The rule also does not affect permitting tools such as 

the use of general permits that the Corps implements for expeditious review and 

efficiency in processing permit applications for discharges of dredged and/or fills 

material into waters of the U.S. The rule will improve consistency and 

predictability for all CWA programs and provides clarity regarding jurisdiction, 

thus reducing uncertainties and delays.

12.993 Additionally, the Corps’ general offices may be forced to develop regional permits if the 

NWP process is undermined by an expansion of the WOTUS’ jurisdiction. The Corps 

has acknowledged that such a result would be “an impractical and inefficient method” for 

permitting activities with minimal adverse effects on aquatic life, such as those described 

here. In particular, the Corps also notes that companies that operate in more than one 

Corps district, “would be adversely affected by the widespread use of regional permits 

because of the greater potential for lack of consistency and predictability in the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

630

authorization of similar activities...”

243

 In addition, this process could result in 

inconsistencies and arbitrary differences among regions, with a multitude of adverse 

impacts to the energy system. (p. 9)

Agency Response: Implementation of the section 404 permit program is outside 

the scope of this rulemaking. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The rule also does not affect permitting tools such as 

the use of general permits that the Corps implements for expeditious review and 

efficiency in processing permit applications for discharges of dredged and/or fills 

material into waters of the U.S. The rule will improve consistency and 

predictability for all CWA programs and provides clarity regarding jurisdiction, 

thus reducing uncertainties and delays.

12.994 We also suggest that the agencies consider implementing an expedited permitting process 

specifically for these important projects, in the spirit of the existing NWPs, in order to 

ensure that regulatory uncertainty regarding WOTUS is neither a barrier to the Climate 

Action Plan nor an impediment to environmentally sound energy infrastructure 

development. If the WOTUS rule is finalized in its current form, without an expedited 

permitting process, we are concerned that clean energy infrastructure project delays and 

cancellations will take place. (p. 12)

Agency Response: Implementation of the section 404 permit program is outside 

the scope of this rulemaking. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries.

12.995 The time to obtain permits will also increase significantly and permitting authorities may 

not have the resources to process the influx of applications, as noted in the Corps’

concerns above. Currently, based on the member companies’ experience, NWPs take 

between nine and 12 months for processing and could be as little as 45 days if there is no 

agency intervention. In contrast, based on our members’ experiences, individual permits 

can take between 34 and 36 months. (p. 14)

Agency Response: Implementation of the section 404 permit program is outside 

the scope of this rulemaking. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The agencies believe that the rule will result in a 

reduction of case-specific determinations which was achieved by making tributaries 

and adjacent waters jurisdictional by rule coupled with limits on the two types of 

 

243 U.S. Army Corp of Engineers, Decision Document: Nationwide Permit 12 (February 2012) (Available at: 

http://www.usace.army.mil/Portals/2/docs/civilworks/nwp/2012/NWP_12_2012.pdf).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

631

categories of waters that require a case-specific analysis. Therefore, the agencies do 

not foresee an increase in delays due to workload on jurisdictional determinations. 

The agencies believe the final rule will simplify the process of making jurisdictional 

determinations. The rule also does not affect permitting tools such as the use of 

general permits that the Corps implements for expeditious review and efficiency in 

processing permit applications for discharges of dredged and/or fills material into 

waters of the U.S. The rule will improve consistency and predictability for all CWA 

programs and provides clarity regarding jurisdiction, thus reducing uncertainties 

and delays.

Metropolitan Water District of Southern California (Doc. #14637)

12.996 An increase in the number of CWA permits required could also impede Metropolitan’s 

ability to support timely conservation and local supply development efforts of member 

agencies. Metropolitan’s member agencies have expressed concern that the proposed 

rule may delay, increase the cost of, or prevent obtaining funding of their water 

conservation efforts if CWA permits are required due to the additional time and cost 

associated with obtaining such permits. For example, a permit application submitted to 

the Corps in May, 2013 for one of Metropolitan’s critical infrastructure projects is still 

pending. Metropolitan now expects that it will take more than a year to obtain Section 

404 permits for its projects. (p. 5)

Agency Response: Implementation of the section 404 permit program is outside 

the scope of this rulemaking. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The agencies believe that the rule will result in a 

reduction of case-specific determinations which was achieved by making tributaries 

and adjacent waters jurisdictional by rule coupled with limits on the two types of 

categories of waters that require a case-specific analysis. Therefore, the agencies do 

not foresee an increase in delays due to workload on jurisdictional determinations. 

The agencies believe the final rule will simplify the process of making jurisdictional 

determinations.

Exelon Corporation (Doc. #14641)

12.997 ... Exelon operates approximately 7,400 miles of transmission lines. These lines require 

frequent servicing and maintenance, oftentimes necessitating contact with or work within 

wetlands and waterways. Expanding the definition of WOTUS, as proposed by the 

Agencies, would increase the number of transmission and distribution installation and 

maintenance projects subject to Section 404 permitting and reduce the number of projects 

for which nationwide or regional general permitting would be available. Generally, a 

project that requires an Individual Permit requires a year or more in permitting time as 

compared to weeks or months for a Nationwide Permit. Our comments through the 

Clean Energy Group provide additional detail on permitting costs. (p. 4)

Agency Response: Implementation of the section 404 permit program is outside 

the scope of this rulemaking. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

632

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

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

categories such as tributaries.

American Public Power Association (Doc. #15008)

12.998 The agencies’ proposed expansion of jurisdiction will result in additional permit 

obligations for all CWA programs. The agencies have failed to consider the significant 

implications on these programs, including Section 404 dredge and fill permitting, Section 

402 NPDES permitting, including storm water and non-storm water, Section 401 water 

quality certification, Sections 303, 304, and 305 State water quality standards, and 

Section 311 oil spill prevention. The draft rule will subject more projects and activities to 

CWA jurisdiction because more features will be deemed jurisdictional. 

These new and greatly expanded permitting requirements come at a time when many 

state environmental agencies are struggling to meet current levels of service with current 

resources. It is unreasonable given EPA’s previous efforts with states to believe that state 

fee structures fully cover the costs of permits. This rule adds a significant unfunded 

mandate to states at the wrong time. Additionally, the proposed expansion of the total 

miles of jurisdictional waters, also greatly expands the geographic areas of responsibility 

for many state environmental agencies that are often inadequately funded to carry out 

clean water activities in the current smaller universe of stream miles. (p. 11)

Agency Response: Implementation of the CWA permitting programs is outside 

the scope of this rulemaking. The rule only provides a definition for “waters of the 

U.S.” The rule does not affect the CWA statute in which authorization may be 

required for discharges of dredged and/or fill material into waters of the U.S., or 

other activities in jurisdictional waters of the U.S. including for example, NPDES 

permits, water quality standards, or Section 311 requirements which also require 

authorization. That said, the scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries. The agencies believe that the rule will result in a reduction of casespecific determinations which was achieved by making tributaries and adjacent 

waters jurisdictional by rule coupled with limits on the two types of categories of 

waters that require a case-specific analysis. Therefore, the agencies do not foresee 

an increase in delays due to workload on jurisdictional determinations. The agencies 

believe the final rule will simplify the process of making jurisdictional 

determinations.

Eagle River Water & Sanitation District (Doc. #15116)

12.999 It is recommended that the proposed rule clarify that the current limits in the NWP 

regulation will continue to apply to the previously-defined waters of the United States, 

prior to the new rule, until and only after the NWP rule has undergone a complete and 

thorough public rulemaking (currently scheduled for 2017) where these limits can be 

carefully reviewed and modified as appropriate to account for the changes in the waters 

of the United States definition resulting from the proposed rule. (p. 6)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

633

Agency Response: Implementation of the section 404 permit program is outside 

the scope of this rulemaking. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The rule also does not affect permitting tools such as 

the use of general permits that the Corps implements for expeditious review and 

efficiency in processing permit applications for discharges of dredged and/or fills 

material into waters of the U.S. The rule will improve consistency and 

predictability for all CWA programs and provides clarity regarding jurisdiction, 

thus reducing uncertainties and delays.

Cache La Poudre Water Users Association (Doc. #15499)

12.1000 To the extent waters not formerly subject to jurisdiction are made jurisdictional, 

such as small decades-old irrigation ditches and reservoirs, any expansion, reconstruction 

or enlargement (even perhaps routine maintenance and repair) or these structures could 

trigger Section 404 of the CWA and require federal permitting, with its attended cost and 

delay.· Section 401 discharge permitting requirements may also be implicated, as well .as 

other federal requirements and permitting under the Endangered Species Act or the 

National Environmental Policy Act. Those of us who have watched water storage

projects in this region languish after more than a decade awaiting Environmental Impact 

Statements shudder at the thought of having the repair, maintenance and improvement of 

our ditch and reservoir infrastructure (our very lifeblood in this arid land) subject to 

myriad federal permitting processes. (p. 3)

Agency Response: Implementation of the CWA permitting programs is outside 

the scope of this rulemaking. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries.

South Metro Water Supply Authority (Doc. #16481)

12.1001 (...) members of SMWSA would meet unrealistic hardships in developing, 

operating, and maintaining sustainable water supplies to meet the demands of our 

communities. There is serious concern among our members, as well as surrounding 

water providers, that the rule would impose extreme restrictions and hurdles for the 

development of future necessary water projects. This rule would confuse and expand the 

scope of the Federal Nexus, resulting in delays and additional regulatory obstacles, even 

for relatively simple water projects, that do not actually serve to protect the environment. 

Additionally, the proposed rule will significantly increase the costs for construction or 

modification of required infrastructure through increased permitting requirements and

additional mitigation costs. Despite agency protestations to the contrary, it is beyond 

argument that the proposed rule would expand the scope of federal jurisdiction in the 

following ways: 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

634

 The proposal would, for the first time, categorize all tributaries as jurisdictional 

by rule thus triggering the Section 404 permitting process and negating any 

opportunity to scientifically rebut the case for jurisdiction.

 The proposed rule would, for the first time, categorize “all” adjacent “waters” as 

jurisdictional by rule, as compared to the prior reference to adjacent “wetlands.”

 The proposed rule establishes a new category of “other waters” which may be 

found jurisdictional.

 The proposed rule classifies all ditches as jurisdictional unless specifically 

exempted. The exemptions in the proposed rule are ignorant of the realities of 

water supply in the arid west. (p. 2-3)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. In addition to clarifying and refining the definition for tributaries, the 

final rule also clarifies and refines the definition for adjacent, identifies types of 

ditches that are excluded from regulation, and replaced the section formerly know 

as “other waters”.

12.1002 What is the impact of the proposal on impoundments currently regulated under 

RCRA but for which no exemption exists[?] (p. 4)

Agency Response: The agencies are not changing their policies regarding the 

jurisdictional status of impoundments. RCRA jurisdiction is a separate matter from 

CWA jurisdiction and outside the scope of this rulemaking..

12.1003 If a pipeline is constructed across a normally dry wash or dry arroyo, and the 

construction activity occurs only when water is not flowing, will the project nevertheless 

need a section 404 permit [?] (if the answer is “yes” or “maybe,” are there any limits on 

the amount or frequency of flow that must pass through the wash or arroyo[?]); (p. 4)

Agency Response: Where that wash or arroyo has sufficient flow to establish an 

OHWM and it meets the agencies’ regulatory definition of tributary then it is a 

water of the United States and a section 404 permit may be needed. Where these 

washes or arroyos lack an OHWM or otherwise do not meet the definition of 

tributary they are erosional features and no section 404 permit would be required 

for discharges resulting from the pipeline construction.

Texas Water Development Board (Doc. #16563)

12.1004 More projects in areas considered under the proposed rule to be jurisdictional will 

require Section 404 permits. This could result in higher mitigation costs for certain types 

of projects constructed in jurisdictional areas or higher construction costs (e.g., for boring 

under streams and wetlands) to avoid impacts on jurisdictional waters. (p. 3) 

Agency Response: Implementation of the section 404 permit program is outside 

the scope of this rulemaking. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

635

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

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

categories such as tributaries.

12.1005 Drier areas of the State would see the greatest increase in jurisdictional tributaries 

due to the greater number of intermittent or ephemeral streams in those areas. The 

greatest effect would likely be on some off-channel reservoirs that are proposed in the 

upper reaches of intermittent streams and in areas between major streams. Tributaries 

and wetlands in many of these reservoir sites could now be considered jurisdictional 

waters. This could significantly increase the cost and time to develop one of these 

projects, and affect the design and location of proposed sites. (p. 3)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries.

Xcel Energy, Inc. (Doc. #18023)

12.1006 Xcel Energy is concerned that if field inspectors interpret the “other waters”

standard to broadly cover minor stream crossings, ditches, and other “adjacent” water 

features and erected structures for conveyances across otherwise separate utility line 

projects, the Nationwide Permit (NWP) acreage thresholds will be quickly exceeded and 

applicants will be compelled to rely on individual permits. The consequences of 

aggregation are significant: while NWP authorizations for minor work take a matter of 

days or weeks to receive, individual permits can add months or years to project reviewsand several times the cost of obtaining a NWP. (p. 4)

Agency Response: Implementation of the section 404 permit program is outside 

the scope of this rulemaking. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. In addition to clarifying and refining the definition 

for tributaries, the final rule also clarifies and refines the definition for adjacent, 

identifies types of ditches that are excluded from regulation, and replaced the 

section formerly known as “other waters”.

Association of Illinois Electric Cooperatives (Doc. #16168)

12.1007 Under the proposed rule, if a roadside ditch or other feature is a WOTUS, it 

would appear that the placement of absorbent constitutes a “fill”, and the removal of 

contaminated media would constitute “dredging” – thus triggering a 404 permit. The 

current SPCC program is not designed to address spills such as these. (p. 5)

Agency Response: The rule defines the scope of waters of the U.S. subject to the 

CWA. It will not affect the current implementation of the various CWA programs; 

implementation of those programs are outside the scope of this rule. Overall, the 

scope of regulatory jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

636

rule than under the existing regulations, in part because the rule includes provisions 

for a number of excluded waters, some of which are excluded by rule for the first 

time, including many ditches and certain stormwater conveyance features. For 

further discussion of exclusions, see summary responses for Topic 6.2: Excluded 

ditches and Topic 7: Features and waters not jurisdictional. 

Cascade County - Board of County Commissioners (Doc. #17084)

12.1008 It appears the current permitting process for larvicide treatment in waterways 

and/or pesticide (mosquito abatement) and herbicide (weed management) applications 

along waterways will remain unchanged under the new rule; however additional 

clarification is suggested. 

Cascade County has historically applied for and received a CWA-404 Permit for aerial 

and land-based larvicide applications in jurisdictional waters where mosquito larvae are 

present. The larvicide prevents mosquito larvae from maturing to the adult stage and is 

an effective mosquito control measure. The current permitting process has been routine 

and the permit easily acquired. How will the new rulemaking affect the current permit 

process or delay authorization for larvicide and pesticide applications. (p. 3)

Agency Response: We presume the commenter meant to refer to the 402 

Pesticides General Permit (PGP) (rather and 404). Obtaining coverage under the 

402 PGP is efficient and streamlined and should continue to be. See also comment 

response for Section 12.3.

12.1009 Likewise, the County utilizes chemical and biologic measures for weed 

management. What additional regulations might be required for herbicide applications 

adjacent to waterways or along stream banks when manufacturer instructions are 

followed? Similar to the situation whereby NRCS conservation practices will change in 

future years, so will larvicide, pesticide and herbicide treatments. How will the 

rulemaking accommodate future practices when new products for insect and weed 

management are approved in the market? (p. 3)

Agency Response: The commenter would continue to obtain coverage under the 

402 PGP. Speculation regarding future, undetermined changes in practice are 

beyond the scope of this rulemaking.

Battelle Energy Alliance, LLC (Doc. #16448)

12.1010 Because the definition of “significant nexus” and its accompanying terms are 

vague, the proposed rule provides little guidance for the public to determine whether a 

significant nexus exists between a potential “other water” and a categorical navigable 

water. As a result, the proposed rule effectively forces the public to obtain a “significant 

nexus” analysis from the agencies for all waters except those specifically listed as 

exempt. This is likely to increase transaction costs. (p. 5)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The agencies believe that the rule will result in a reduction of casespecific determinations which was achieved by making tributaries and adjacent 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

637

waters jurisdictional by rule coupled with limits on the two types of categories of 

waters that require a case-specific analysis. Therefore, the agencies do not foresee 

an increase in delays due to workload on jurisdictional determinations. The agencies 

believe the final rule will simplify the process of making jurisdictional 

determinations. The agencies provide more detail regarding the definition of 

significant nexus in the rule and list the specific functions that will be considered in 

the analysis. This approach provides individual regulators who conduct the analysis 

clear and consistent parameters that they will consider during their review in 

making jurisdictional determinations and provides transparency to the regulated 

public over which factors will be considered. 

Tucson Electric Power Company (Doc. #19561)

12.1011 Preamble in the proposed rule suggest a decrease the number of jurisdictional 

determinations and CWA permitting efforts would result from the revised definition of 

WUS, however UNS believes the implementation of the rule as currently written (i.e. 

ambiguity of certain definitions such as “tributary’’, “adjacent”, “neighboring”, and 

“other waters”) would increase the complexity of facilitating jurisdictional delineations 

and increase the number of CWA Section 404 permit applications to be processed by the 

Corp in Arizona. In the past, the Corps has been inconsistent in their interpretation of the 

definition of WUS, in the processing of Section 404 permits at the District level, and 

general administration of the Section 404 permit program. This lack of continuity within 

the Corps in implementing the CWA regulations has resulted in confusion over which 

surface water features are subject to regulation, numerous lawsuits, and several 

Government Accounting Office (GAO) reports.244 245 246 One GAO report states that “In 

certain circumstances, Corps districts differ in how they interpret and apply the federal 

regulations when determining what wetlands and other waters fall within the jurisdiction 

of the federal government.” UNS believes that the proposed rule will result in additional, 

and continued, confusion among the Districts, consultants and the regulated community. 

The map of seasonal and rain dependent streams presented on EPA’s website247 indicates 

nearly all lands in Arizona (82-100%) are covered with numerous ephemeral drainages 

and vast flood plain areas. The agencies’ jurisdiction over all of these areas would 

increase jurisdictional determination and Section 404 permit processing times. These 

extended processing times impact the economic feasibility of new development by 

adding uncertainty, increased costs for Section 404 permitting and associated mitigation. 

UNS project permitting costs and approval timelines would likely increase under the 

proposed rule. Utility companies typically use Section 404 Nationwide Permit 12 

available for utility line activities (NWP 12), because most ephemeral drainage crossings 

result in loss of less than 112- acre of WUS and under the current definition are a “single 

and complete project”. Currently, each crossing of a “water of the U.S.” is treated as a 

“single and complete project” with independent utility. The definition of “adjacent 

 

244 Waters and Wetlands. Corps of Engineers Needs to Evaluate its District Office Practices in Determining 

Jurisdiction. GA0-04-297. 2004.

245 Corps of Engineers Needs to Better Support Its Decisions for Not Asserting Jurisdiction. GAO-OS-870.

246 The Corps of Engineers’ Administration of the Section 404 Program. GAO/RCED-88-110.

247 http://water.epa.gov/lawsregs/guidance/wetlands/upload/IE Stream Percentage high.jpg
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

638

waters” in the proposed rule would create large areas of CWA jurisdiction exceeding the 

112-acre threshold (e.g. entire floodplains and watersheds would be considered WUS) of 

NWP 12 permit coverage. If all WUS in the flood plain or riparian area were treated as 

one interconnected WUS, it would be virtually impossible for utilities to use NWP 12 in 

Arizona. Instead, utilities would be required to apply for the more costly and timeconsuming individual Section 404 permit. Furthermore, it is likely that most of the 

current Nationwide Permits would be useless for the regulated community, as many more 

surface water features would be considered WUS by the agencies. (p. 3-4)

Agency Response: Implementation of the section 404 permit program is outside 

the scope of this rulemaking. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The agencies believe that the rule will result in a 

reduction of case-specific determinations which was achieved by making tributaries 

and adjacent waters jurisdictional by rule coupled with limits on the two types of 

categories of waters that require a case-specific analysis. Therefore, the agencies do 

not foresee an increase in delays due to workload on jurisdictional determinations. 

The agencies believe the final rule will simplify the process of making jurisdictional 

determinations. The rule also does not affect permitting tools such as the use of 

general permits that the Corps implements for expeditious review and efficiency in 

processing permit applications for discharges of dredged and/or fills material into 

waters of the U.S. The rule will improve consistency and predictability for all CWA 

programs and provides clarity regarding jurisdiction, thus reducing uncertainties 

and delays.

12.1012 In addition to expanding jurisdiction, the proposed rule would result, not only in a 

more complex jurisdictional delineation / determination process, but would also result in 

additional and costly project reviews by other federal agencies. Because the CWA is an 

“umbrella” regulation, the expansion of the WUS by the proposed rule would result in 

more conflict with resources and would therefore trigger federal agency review of more 

projects in accordance with the National Environmental Policy Act (NEPA), Endangered 

Species Act (ESA), Migratory Bird Treaty Act (MBTA), Bald and Golden Eagle 

Protection Act (BGEPA), and Section 106 of the National Historic Preservation Act 

(NHPA), as these reviews are required for all projects regulated under the CWA. Section 

404 of the CW A requires permittees to conduct a thorough review of project activities 

that affect WUS to ensure compliance with these acts. Typically, this requires additional 

and often costly and time-consuming studies and lengthy agency consultations that can 

add significant constraints and financial burden to a project. (p. 4)

Agency Response: Implementation of the CWA permitting programs, including 

compliance with other statutes, is outside the scope of this rulemaking. That said, 

the scope of regulatory jurisdiction in this rule is narrower than that under the 

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

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

important qualifiers on some existing categories such as tributaries. The agencies 

believe that the rule will result in a reduction of case-specific determinations which 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

639

was achieved by making tributaries and adjacent waters jurisdictional by rule 

coupled with limits on the two types of categories of waters that require a casespecific analysis. Therefore, the agencies do not foresee an increase in delays due to 

workload on jurisdictional determinations. The agencies believe the final rule will 

simplify the process of making jurisdictional determinations.

Partners in Amphibian and Reptile Conservation (Doc. #7499.1)

12.1013 In addition to the questions about terms and language used in the proposed rule, 

we also have the following questions about permitting and implementation of the rule:

 Given the increased number of permits expected upon implementation of the 

proposed rule, how will state agencies and the EPA meet their enforcement and 

permitting obligations, especially given staff reductions at numerous state 

environmental agencies? 

 Will the proposed permitting process include greater permitting burdens by 

organizations conducting restoration of degraded wetlands/streams, thus reducing 

the conservation potential of those activities? (p. 2-3)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The agencies believe that the rule will result in a reduction of casespecific determinations which was achieved by making tributaries and adjacent 

waters jurisdictional by rule coupled with limits on the two types of categories of 

waters that require a case-specific analysis. Therefore, the agencies do not foresee 

an increase in delays due to workload on jurisdictional determinations. The agencies 

believe the final rule will simplify the process of making jurisdictional 

determinations. In light of these factors the agencies’ do not anticipate the rule 

creating greater permit burdens for organizations conducting restoration of 

degraded wetlands/streams. The rule also does not affect permitting tools such as 

the use of general permits that the Corps implements for expeditious review and 

efficiency in processing permit applications for discharges of dredged and/or fills 

material into waters of the U.S. The rule will improve consistency and 

predictability for all CWA programs and provides clarity regarding jurisdiction, 

thus reducing uncertainties and delays.

Association of State Floodplain Managers (Doc. #19452)

12.1014 We also recommend continuation of this option to “opt out” of a full approved JD 

in this manner in headwater areas where the upstream limits of “tributaries” may be 

uncertain and a permitting decision is more expeditious for the landowner. 

While the definition of “significant nexus” in the proposed rule is consistent with the 

decisions of the U.S. Supreme Court and is also scientifically defensible, it may continue 

to be extremely time consuming and impractical to evaluate and document the presence

of a significant nexus in numerous individual regulatory decisions on a case-by-case basis 

particularly for aquatic resources that full under the “other waters” category. 

Documentation of a significant nexus in many ways parallels fact finding under the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

640

404(b)(1) guidelines; that is, the documentation of ecological services that have a 

significant impact on the chemical, physical and biological integrity of downstream 

waters may guide a permit decision. Therefore, it may be simpler to move directly to a 

permitting decision. In that decision, the scope of the project impact on the wetland (or 

water) in question will also be taken into account, and if that impact is minimal, then a 

permit (or authorization under a general permit) may be approved. In short, the permit 

process may be more expeditious than documentation of a significant nexus. 

Also, numerous dredge and fill activities in small tributaries – such as routine stream 

crossings, culvert placement, bank stabilization and maintenance – may be covered by 

existing or future general permits. In these instances, detailed jurisdictional 

documentation may be unnecessarily time consuming. In headwater areas, it may be 

more practical to focus the regulatory process more on acceptable activities, and BMP’s 

that should be associated with such activities, than on defining a line between regulated 

and unregulated channels where such a line is not easily identifiable on the landscape. (p. 

8)

Agency Response: The agencies also intend to retain the concept of preliminary 

JDs. There are two types of jurisdictional determinations; preliminary and

approved jurisdictional determinations. Preliminary jurisdictional determinations 

indicate which waters on a property may be waters of the U.S., presume all waters 

on a property are jurisdictional, are not legally binding instruments, and enable a 

landowner to set aside the issue of jurisdiction and move directly into the permit 

evaluation phase of the process. Preliminary jurisdictional determinations cannot 

be used to decline jurisdiction and are generally more expedient than approved 

jurisdictional determinations. Approved jurisdictional determinations are the 

official Corps determination that jurisdictional “waters of the United States,” or 

“navigable waters of the United States,” or both, are either present or absent on a 

particular site. An approved JD precisely identifies the limits of those waters on the 

project site determined to be jurisdictional under the Clean Water Act/Rivers and 

Harbors Act. The majority of jurisdictional determinations completed by the Corps 

are preliminary. The scope of regulatory jurisdiction in this rule is narrower than 

that under the existing regulation. Fewer waters will be defined as “waters of the 

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

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

addition to clarifying and refining the definition for tributaries, the final rule also 

clarifies and refines the definitions for adjacent, neighboring and significant nexus; 

identifies types of ditches that are excluded from regulation, and replaced the 

section formerly known as “other waters”. The agencies believe that the rule will 

result in a reduction of case-specific determinations which was achieved by making 

tributaries and adjacent waters jurisdictional by rule coupled with limits on the two 

types of categories of waters that require a case-specific analysis. Therefore, the 

agencies do not foresee an increase in delays due to workload on jurisdictional 

determinations. The agencies believe the final rule will simplify the process of 

making jurisdictional determinations.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

641

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

12.1015 ASWM recommends development of implementation procedures and any 

necessary supporting rule language to allow for designation of categories of “other 

waters” found to have a significant nexus with downstream navigable waters as 

jurisdictional by rule on a state or regional basis. 

As noted above, we support protection of “other waters” on a categorical basis where it 

is supported by science, but believe that designation of additional categories of 

protected “other waters” through a future national rulemaking will be cumbersome and 

is likely to overlook locally important types of wetlands. Therefore, we recommend 

that the proposed rule, along with implementing guidance, allow for a process that 

includes the following attributes: 

 The process should provide for designation of categories of “other waters” having 

a significant nexus with navigable waters within a defined geographic region, in 

accordance with the provisions of the proposed rule regarding Waters of the 

United States, following gathering of appropriate documentation, public notice, 

and review. Such a list could be updated every fifth year, or at some other 

suitable interval. This would allow for identification, study, and designation or 

removal of categories of waters over time. 

 The process for designating categories of other waters that are jurisdictional by 

rule should be a collaborative one, involving one or more states or tribes and 

Corps Districts, and the EPA, along with other stakeholders. 

 The process should provide for public review and comment of any proposed 

designations, and define a process for timely approval of the designated categories 

by the federal agencies. (p. 5)

Agency Response: In the final rule, the agencies provided additional clarity by 

expanding the discussion of “similarly situated” in the preamble and the rule 

identifies (paragraph (a)(7)) five subcategories of waters (praire potholes, Carolina 

and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal 

praire wetlands) that the agencies have determined are “similarly situated” for 

purposes of a significant nexus determination. The other waters section of the rule 

has been replaced with provisions that the agencies believe will streamline and 

facilitate identification of additional waters that have a significant nexus. The 

agencies are developing guidance to facilitate implementation of the final rule when 

it becomes effective, which will provide for consistent determinations. The agencies 

strive to achieve consistency across the country in all districts and regions in 

application of the rule for jurisdictional determinations.

12.1016 In order to minimize regulatory delays associated with a significant nexus 

determination, or with distinguishing between regulated tributaries and unregulated 

ditches where such a distinction is unclear, we recommended continued use of 

preliminary jurisdictional determinations (JD’s). This process allows a landowner to 

assume that jurisdictional waters “may be” present on a site, and to move directly to a 

permitting process and avoid the delays involved with obtaining a formal JD, especially 

where general permits are applicable. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

642

We also recommend continuation of this option to “opt out” of a full approved JD in this 

manner in headwater areas where the upstream limits of “tributaries” may be uncertain 

and a permitting decision is more expeditious for the landowner. 

While the definition of “significant nexus” in the proposed rule is consistent with the 

decisions of the U.S. Supreme Court and is also scientifically defensible, it may continue 

to be extremely time consuming and impractical to evaluate and document the presence 

of a significant nexus in numerous individual regulatory decisions on a case-by-case basis 

particularly for aquatic resources that fall under the “other waters” category. 

Documentation of a significant nexus in many ways parallels fact finding under the 

404(b)(1) guidelines; that is, the documentation of ecological services that have a 

significant impact on the chemical, physical and biological integrity of downstream 

waters may guide a permit decision. Therefore, it may be simpler to move directly to a 

permitting decision. In that decision, the scope of the project impact on the wetland (or 

water) in question will also be taken into account, and if that impact is minimal, then a 

permit (or authorization under a general permit) may be approved. In short, the permit 

process may be more expeditious than documentation of a significant nexus. 

Also, numerous dredge and fill activities in small tributaries – such as routine stream 

crossings, culvert placement, bank stabilization and maintenance – may be covered by 

existing or future general permits. In these instances, detailed jurisdictional 

documentation may be unnecessarily time consuming. In headwater areas, it may be 

more practical to focus the regulatory process more on acceptable activities, and best 

management practices that should be associated with such activities, than on defining a 

line between regulated and unregulated channels where such a line is not easily 

identifiable on the landscape. (p. 7-8)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. In addition to clarifying and refining the definition for tributaries, the 

final rule also clarifies and refines the definitions for adjacent, neighboring and 

significant nexus; identifies types of ditches that are excluded from regulation, and 

replaced the section formerly know as “other waters”. The agencies believe that the 

rule will result in a reduction of case-specific determinations which was achieved by 

making tributaries and adjacent waters jurisdictional by rule coupled with limits on 

the two types of categories of waters that require a case-specific analysis. Therefore, 

the agencies do not foresee an increase in delays due to workload on jurisdictional 

determinations. The agencies believe the final rule will simplify the process of 

making jurisdictional determinations. The agencies also intend to retain the concept 

of preliminary JDs. There are two types of jurisdictional determinations; 

preliminary and approved jurisdictional determinations. Preliminary jurisdictional 

determinations indicate which waters on a property may be waters of the U.S., 

presume all waters on a property are jurisdictional, are not legally binding 

instruments, and enable a landowner to set aside the issue of jurisdiction and move 

directly into the permit evaluation phase of the process. Preliminary jurisdictional 

determinations cannot be used to decline jurisdiction and are generally more 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

643

expedient than approved jurisdictional determinations. Approved jurisdictional 

determinations are the official Corps determination that jurisdictional “waters of 

the United States,” or “navigable waters of the United States,” or both, are either 

present or absent on a particular site. An approved JD precisely identifies the limits 

of those waters on the project site determined to be jurisdictional under the Clean 

Water Act/Rivers and Harbors Act. The majority of jurisdictional determinations 

completed by the Corps are preliminary.

Red River Waterway Commission (Doc. #15445)

12.1017 Additionally, with more WOTUS dotting the landscape, more section 404 permits 

will be needed. Section 404 permits are federal “actions” that trigger additional 

companion statutory reviews by agencies, other than 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 additional reviews, place 

small businesses in a no-win situation, as they lead to higher costs overall and greater 

risks that can ultimately jeopardize a project. The potential effect of the proposed rule 

directly conflicts with the Administration’s stated commitment to expedite infrastructure 

projects. (p. 2) 

Agency Response: Implementation of the CWA permitting programs, including 

compliance with other statutes, is outside the scope of this rulemaking. That said, 

the scope of regulatory jurisdiction in this rule is narrower than that under the 

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

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

important qualifiers on some existing categories such as tributaries. The rule also 

does not affect permitting tools such as the use of general permits that the Corps 

implements for expeditious review and efficiency in processing permit applications 

for discharges of dredged and/or fills material into waters of the U.S. The rule will 

improve consistency and predictability for all CWA programs and provides clarity 

regarding jurisdiction, thus reducing uncertainties and delays.

Water Environment Federation Member Association Governmental Affairs Committees 

Representing EPA Region 7 (Doc. #15185)

12.1018 It is very questionable whether or not State Agencies and EPA Regional Offices 

will have the necessary resources to manage the subsequent regulatory requirements 

resulting from the Proposed Rule. As an example, the Kansas Dept. of Health and 

Environment (KDHE) has recently estimated that the Proposed Rule would quadruple the 

number of stream miles required to be regulated. The regulatory work would likely 

include greatly increased field investigation and sampling efforts, updated UAAs and 

designated beneficial use declarations, possible reworking of State water quality 

regulations, public hearings, and other administrative requirements. One must keep in 

mind that these same State agencies are typically already suffering from budgeting 

shortfalls and staff attrition due to increased levels of retirements. 

Bottom line: It is suggested that economic analyses be re-examined for fundamental 

resource requirements and that Federal grant funding be considered to help offset the 

budgetary impacts to the State Agencies. (p. 3-4) 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

644

Agency Response: Implementation of the CWA permitting programs is outside 

the scope of this rulemaking. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. The agencies believe that the rule will result in a 

reduction of case-specific determinations which was achieved by making tributaries 

and adjacent waters jurisdictional by rule coupled with limits on the two types of 

categories of waters that require a case-specific analysis. Therefore, the agencies do 

not foresee an increase in delays due to workload on jurisdictional determinations. 

The agencies believe the final rule will simplify the process of making jurisdictional 

determinations

U.S. House of Representatives – Iowa, Second District (Doc. #1375)

12.1019 The Environmental Protection Agency has maintained since the release of the rule 

that “It [the rule] does not protect any new types of waters that have not historically been 

covered under the Clean Water Act programs.” This statement does not account for what 

appears to be an expanded definition of tributaries and adjacencies in the rule leading to 

more waters protected and also that an increase in permits required is likely. (p. 1)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. See the Economic Analysis for the final rule for further discussion on 

the predicted jurisdictional changes under the final rule. 

United States House of Representatives (Doc. #17458)

12.1020 The proposed rule will additionally require dredge and fill permitting for 

maintenance activities performed within manmade canals, ditches, stormwater treatment 

ponds and created stormwater treatment wetlands that already have environmental 

resource permits issued by the state permitting agencies. In many cases, the maintenance 

of a stormwater management system must be performed in a timely manner to minimize 

flooding and water quality impacts. The result of requiring additional permitting for 

maintenance projects will be to increase costs and the amount of time necessary to 

complete required maintenance projects for local governments. Additionally, the 

increased permit requirements will increase the number of permits that will require 

handling and processing by the US Army Corps of Engineers. A local government is 

liable for maintaining the integrity of its stormwater management system even if federal 

permits are not approved by federal agencies in a timely manner. Is it the intent of the 

federal agencies to increase the permitting burden on local governments and are the 

agencies prepared to handle and process the number of permit applications in a timely 

manner? (p. 2-3) 

Agency Response: Implementation of the CWA permitting programs is outside 

the scope of this rulemaking. That said, the scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

defined as “waters of the United States” under the rule than under the existing 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

645

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

categories such as tributaries. The agencies believe that the rule will result in a 

reduction of case-specific determinations which was achieved by making tributaries 

and adjacent waters jurisdictional by rule coupled with limits on the two types of 

categories of waters that require a case-specific analysis. Therefore, the agencies do 

not foresee an increase in delays due to workload on jurisdictional determinations. 

The agencies believe the final rule will simplify the process of making jurisdictional 

determination

Committee on Transportation and Infrastructure, U.S. House of Representatives (Doc. #18018)

12.1021 (...) can you clarify whether the draining of a waterbody requires a Clean Water 

Act permit? Does anything in the proposed rule, or the accompanying documents, 

change this distinction? (p. 2)

Agency Response: The Section 404 permitting program only regulates the 

discharge of dredged or fill material in a water of the United States; this will not 

change under the new rule.

12.4.2 Jurisdictional Determination Process

Summary Response

The final rule was developed to increase CWA program predictability and consistency by 

increasing clarity as to the scope of “waters of the United States” protected under the Act. Many 

definitions for the first time are clarified. The agencies note that the final rule provides for 

certain categories of waters that are jurisdictional by rule, which will result in a more efficient 

process. See the updated Economic Analysis for additional discussion. The agencies do not have 

authority to regulate a landowner’s property. The agencies only have authority to regulate 

jurisdictional activities in jurisdictional waters of the U.S. under the Clean Water Act.

As appropriate, necessary tools will be developed to assist with the jurisdictional determination 

process during the implementation phase of the final rule to make the process predictable,

efficient, and effective. The agencies note that they do not have the authority to map all waters 

of the U.S.; jurisdictional determinations are provided at the request of a landowner. 

There are two types of jurisdictional determinations; preliminary and approved jurisdictional 

determinations. Preliminary jurisdictional determinations indicate which waters on a property 

may be waters of the U.S., presume all waters on a property are jurisdictional, are not legally 

binding instruments, and enable a landowner to set aside the issue of jurisdiction and move 

directly into the permit evaluation phase of the process. Preliminary jurisdictional 

determinations cannot be used to decline jurisdiction and are generally more expedient than 

approved jurisdictional determinations. Approved jurisdictional determinations are the official 

Corps determination that jurisdictional “waters of the United States,” or “navigable waters of the 

United States,” or both, are either present or absent on a particular site. An approved JD 

precisely identifies the limits of those waters on the project site determined to be jurisdictional 

under the Clean Water Act/Rivers and Harbors Act. The majority of jurisdictional determinations 

completed by the Corps are preliminary. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

646

Not every permit application requires a jurisdictional determination. The Corps will continue to 

provide the option to the landowner for both approved and preliminary jurisdictional 

determinations. There is not expected to be a required timeframe for completion of a 

jurisdictional determination, which can be dependent on a variety of factors including climate 

and weather patterns. 

Approved jurisdictional determinations that identify the limits of waters of the United States may 

be based on site visits or desktop reviews. The agencies have been using remote sensing and 

desktop tools to delineate tributaries for many years where data from the field are unavailable or 

a field visit is not possible. Desktop reviews are sufficient in cases where the district has a high 

degree of confidence in the information used to identify the limits of jurisdictional waters. For 

example, desktop reviews may be based on detailed delineation reports prepared by professional 

wetland consultants. The level of mapping precision for an approved JD that identifies the limits 

of waters of the United States is at the discretion of the district. In some cases, districts may need 

to require professional surveys of jurisdictional boundaries, but in other cases, other mapping 

techniques may be adequate. See the preamble to the rule for further discussion on desktop tools 

in the “Tributary” section. In addition, such desktop tools are critical in circumstances where 

physical characteristics waters are absent in the field, often due to unpermitted alteration of 

waters. The majority of this information is available for the public’s use; these tools can allow 

for greater consistency with currently available and accessible data sources.

The Rule will be effective 60 days after publication in the Federal Register. Under existing 

Corps’ regulations and guidance, Corps’ approved jurisdictional determinations generally are 

valid for five years. The agencies will not reopen existing approved jurisdictional determinations 

unless requested to do so by the applicant or unless new information/new facts that are site 

specific necessitate the reopening of an approved JD. The preamble addresses the status of final 

JDs and permits as well as pending JDs and permits.

Specific Comments

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

12.1022 Can a jurisdictional determination impact property values? Why or why not? 

Please provide a detailed rationale and any supporting examples or precedent. (p. 12)

Agency Response: The local tax assessor’s office determines what factors are 

reviewed in the determination of property values for tax purposes. Local markets 

can also influence property values. For more information on the economic impacts 

of the rule, please see “Section V. Economic Impacts” of the preamble and the 

Economic Analysis that accompanies the final rule. The rule provides the 

definitions of “waters of the U.S.” under the Clean Water Act; however, only a 

landowner can request a jurisdictional determination on their property to ascertain 

the presence/absence of jurisdictional waters of the U.S.

12.1023 For the following situations, please tell me if your analysis of the scope of the rule 

grants the EPA regulatory authority:
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

647

a. A homeowner installs a pond on their property, and the pond is located on the 

100 year floodplain of a navigable water. Can EPA regulate the pond, and 

therefore their property? (p. 17-18)

Agency Response: Under paragraph (b) of the rule, “artificial lakes and ponds 

created in dry land and used primarily for uses such as stock watering, irrigation, 

settling basins, rice growing, or cooling ponds” are excluded from jurisdiction and 

are not considered “waters of the U.S.” Also excluded are, “small ornamental 

waters created in dry land.” The paragraph (b) exclusions are applied before the 

paragraph (a) categories. If the pond in this example does not meet one of the 

exclusions, then the pond may be considered an adjacent water under the final rule 

if the pond meets the definition of adjacent or is determined to have a significant 

nexus under paragraph (a)(8). The agencies do not have authority to regulate a 

landowner’s property. Under the Clean Water Act, the agencies only have 

authority to regulate jurisdictional activities in jurisdictional waters of the U.S.

12.1024 b. A homeowner installs a pond on their property, and the pond is located on the 

100 year floodplain of a ditch EPA determines is a tributary to a navigable water. Can 

EPA regulate the pond, and therefore their property? (p. 18)

Agency Response: Under paragraph (b) of the rule, “artificial lakes and ponds 

created in dry land and used primarily for uses such as stock watering, irrigation, 

settling basins, rice growing, or cooling ponds” are excluded from jurisdiction and 

are not considered “waters of the U.S.” Also excluded are “small ornamental 

waters created in dry land.” The paragraph (b) exclusions are applied before the 

paragraph (a) categories. If the pond did not meet one of the exclusions, then the 

pond may be considered an adjacent water under the final rule if the pond meets the 

definition of adjacent or is determined to have a significant nexus under paragraph 

(a)(8). 

Agency Response: In addition, the term “neighboring” includes all waters located 

in whole or in part within 100 feet of the ordinary high water mark of a traditional 

navigable water, interstate water, the territorial seas, an impoundment, or a covered 

tributary, excluding ditches that are not a relocated tributary or excavated in a 

tributary. If a water is within 100 feet of the ordinary high water mark of a ditch 

that meets the definition of tributary but is not a relocated tributary or excavated in 

a tributary, and the water is not bordering or contiguous to that ditch, that water 

would not be “neighboring” under this provision of the rule. The water would be 

evaluated on a case-specific basis under paragraph (a)(8). 

The agencies do not have authority to regulate a landowner’s property. Under the 

Clean Water Act, the agencies only have authority to regulate jurisdictional 

activities in jurisdictional waters of the U.S.

12.1025 c. A homeowner installs a pond on their property, and the pond is located on the 

100 year floodplain of a ditch which is adjacent to yet another floodplain of a navigable 

water. Can EPA regulate the pond, and therefore their property? (p. 18)

Agency Response: Under paragraph (b) of the rule, “artificial lakes and ponds 

created in dry land and used primarily for uses such as stock watering, irrigation, 
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648

settling basins, rice growing, or cooling ponds” are excluded from jurisdiction and 

are not considered “waters of the U.S.” Also excluded are “small ornamental 

waters created in dry land.” The paragraph (b) exclusions are applied before the 

paragraph (a) categories. If the pond did not meet one of the exclusions, then the 

pond may be considered an adjacent water under the final rule if the pond meets the 

definition of adjacent or is determined to have a significant nexus under paragraph 

(a)(8). 

In addition, the term “neighboring” includes all waters located in whole or in part 

within 100 feet of the ordinary high water mark of a traditional navigable water, 

interstate water, the territorial seas, an impoundment, or a covered tributary, 

excluding ditches that are not a relocated tributary or excavated in a tributary. If a 

water is within 100 feet of the ordinary high water mark of a ditch that meets the 

definition of tributary but is not a relocated tributary or excavated in a tributary, 

and the water is not bordering or contiguous to that ditch, that water would not be 

“neighboring” under this provision of the rule. The water would be evaluated on a 

case-specific basis under paragraph (a)(8). Specifically, the pond would need to 

meet the definition of adjacent (to the navigable water in this example) to be 

considered jurisdictional if the ditch is an excluded ditch, to be jurisdictional under 

the Clean Water Act.

The agencies do not have authority to regulate a landowner’s property. The 

agencies only have authority to regulate jurisdictional activities in jurisdictional 

waters of the U.S. under the Clean Water Act.

New Mexico Department of Agriculture (Doc. #13024)

12.1026 The Agencies have not been consistent in the predicted changes of jurisdiction as 

a result of this proposed rule. The Agencies have variously said that jurisdiction will 

increase, decrease and will not change. NMDA cites this inconsistency as proof of the 

ambiguity created by the creation of the other waters category among other problems 

with the wording of this proposed rule. 

The source of this confusion is that this category would require a prescribed action for 

every jurisdictional determination (i.e., the definition requires determinations to be made 

on “a case specific basis.”) Currently, there is no such category that requires as extensive 

attention for every determination. This change would clearly result in less consistency 

and less clarity for waters that would belong in the new other waters category. One way 

to reduce uncertainty and increase clarity would be to provide a decision tree tool that 

demonstrates to the regulated public how jurisdictional determinations are made so that 

landowners and businesses can proactively become involved in the process. 

Executive Order (E.O.) 13563, signed by President Obama in 2011, requires the 

regulatory system to “promote predictability and reduce uncertainty” and “identify and 

use the best, most innovative, and least burdensome tools for achieving regulatory ends.” 

Therefore, it is important to increase clarity in actions taken by the Agencies. Currently, 

EPA conducts jurisdictional determinations based on the CWA itself, alongside three key 

Supreme Court precedents, which is confusing to the regulated public. The intention of 

the new definition of Waters of the U.S. was to increase clarity by combining the 
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649

previous definition of Waters of the U.S. with these interpretations from the Supreme 

Court. 

However, the language in the proposed definition, for reasons listed in sections above, 

may, in fact, reduce clarity and cause confusion and frustration among regulated 

stakeholders. (p. 14-15)

Agency Response: The Economic Analysis includes a discussion on the predicted 

changes in jurisdiction. Jurisdictional determinations are made on a case-by-case 

basis and the final rule was developed to reduce the instances when case-specific 

significant nexus determinations are required. Under the 2003 and 2008 guidance 

documents, the agencies were required to do a case-specific review for “isolated” 

waters and certain waters requiring a significant nexus determination. The final 

rule will provide clarity and efficiency in making jurisdictional determinations for 

many categories of waters, but does require a case-specific significant nexus 

determination for the (a)(7) and (a)(8) waters. As appropriate, necessary tools will 

be developed to assist with the jurisdictional determination process in the 

implementation phase of the final rule to make the process predictable, efficient, 

and effective.

Kansas Senate Committee on Natural Resources (Doc. #15022.1)

12.1027 This correspondence supplements, details, highlights and requests studies EPA 

was to have completed prior to proposing WOTUS. I am also apprising EPA of my 

intent to introduce legislation that will create state data availability, map-boundary and 

map-certification requirements to be fulfilled prior to publication of federal rules that 

affect our state. (p. 1)

Agency Response: The Corps will utilize existing data and mapping tools as 

necessary to augment its capabilities and enable it to fulfill its responsibilities of 

implementation under the Rule. Staff will continue to use their best professional 

judgment and all available information provided to make consistent jurisdictional 

calls. See the section in the preamble entitled, “Related Acts of Congress, Executive 

Orders, and Agency Initiatives,” for additional information on the rulemaking 

process and compliance with applicable laws and regulations. The agencies note 

that they do not have the authority to map all waters of the U.S.; jurisdictional 

determinations are provided at the landowner’s request. Furthermore, the Corps 

does not have the authority to trespass on private lands to determine jurisdiction if 

not requested by the owner of the property. Most Corps Districts maintain a list of 

waters that are considered navigable waters under Section 10 of the Rivers and 

Harbors Act, which may be informative to the public with regard to which waters 

may be traditional navigable waters.

12.1028 With respect to legislation, it is my intent is to introduce legislation requiring a 

field survey, legal description, and certification by a Professional Land Surveyor (PLS) of 

any map proposed for Federal rulemaking, Federal permitting or which otherwise could 

impart a significant federal nexus in our state. As example, the envisioned mapping 

legislation will require the boundaries of riparian maps from your agency, floodplain 

maps by the Federal Emergency Management Agency, Critical Habitat maps by US Fish 

and Wildlife Service, soil maps by Natural Resource Conservation Service and National 
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650

Heritage Area maps by the Department of Interior to first be field located and described 

consistent with the USGS Geodetic and Kansas State Plane Coordinate Systems. 

Through this activity, the boundary coordinates of all maps for any proposed rule would 

first be required to be accurately described, clearly documented and certified by a PLS –

prior to federal register publication. (p. 3)

Agency Response: The agencies acknowledge the author’s comments concerning 

the potential introduction of legislation regarding maps proposed for Federal 

rulemaking. The agencies note that they do not have the authority to map all waters 

of the U.S.; jurisdictional determinations are provided at the landowner’s request. 

Furthermore, the Corps does not have the authority to trespass on private lands to 

determine jurisdiction if not requested by the owner of the property. Most Corps 

Districts maintain a list of waters that are considered navigable waters under 

Section 10 of the Rivers and Harbors Act, which may be informative to the public 

with regard to which waters may be traditional navigable waters.

State of Oregon (Doc. #15218)

12.1029 With regard to the administration of the proposed rule, we recommend that the 

rule contain a specific timeframe for the agencies to make their “waters of the United 

States” jurisdictional call. This timeframe should apply whenever a permit application is 

submitted to the Corps, and anytime a jurisdictional call is otherwise needed or requested. 

(p. 2)

Agency Response: There are two types of jurisdictional determinations; 

preliminary jurisdictional determinations and approved jurisdictional 

determinations. Preliminary jurisdictional determinations indicate which waters on 

a property may be waters of the U.S., presume all waters on a property are 

jurisdictional, are not legally binding instruments, and enable a landowner to set 

aside the issue of jurisdiction and move directly into the permit evaluation phase of 

the process. Preliminary jurisdictional determinations cannot be used to decline 

jurisdiction and are generally more expedient than approved jurisdictional 

determinations. Approved jurisdictional determinations are the official Corps 

determination that jurisdictional “waters of the United States,” or “navigable 

waters of the United States,” or both, are either present or absent on a particular 

site. An approved JD precisely identifies the limits of those waters on the project site 

determined to be jurisdictional under the Clean Water Act/Rivers and Harbors Act. 

The majority of jurisdictional determinations completed by the Corps are 

preliminary. 

Not every permit application requires a jurisdictional determination. The Corps 

will continue to provide the option to the landowner for both approved and 

preliminary jurisdictional determinations. There is not expected to be a required 

timeframe for completion of a jurisdictional determination, which can be dependent 

on a variety of factors including climate and weather patterns.

Southern Ute Indian Tribe Growth Fund (Doc. #15386)

12.1030 The Proposed Rule indicates that to improve efficiency the agencies may use a 

“desktop” analysis if it furnishes sufficient information without the need for information 
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651

derived from field observation to make the requisite finding for determining 

jurisdiction248. In addition it is stated in the Proposed Rule the EPA and the USACE are 

working in partnership with states to develop new tools and resources that have the 

potential to improve the precision of desk based jurisdictional determinations.249 It is 

unclear exactly what is meant by a desktop analysis. Will this analysis involve computer 

models or digital data? Since it is proposed that jurisdictional determinations may be 

made by desk top analysis, it is important for the public to understand what the method(s) 

of analysis will be. 

Recommendation: The definition or examples of such a desktop analysis should be 

provided for clarity. (p. 3)

Agency Response: Approved JDs that identify the limits of waters of the United 

States may be based on site visits or desktop reviews. The agencies have been using 

remote sensing and desktop tools to delineate tributaries for many years where data 

from the field are unavailable or a field visit is not possible. Desktop reviews are 

sufficient in cases where the district has a high degree of confidence in the 

information used to identify the limits of jurisdictional waters. For example, desktop 

reviews may be based on detailed delineation reports prepared by professional 

wetland consultants. The level of mapping precision for an approved JD that 

identifies the limits of waters of the United States is at the discretion of the district. 

In some cases, districts may need to require professional surveys of jurisdictional 

boundaries, but in other cases, other mapping techniques may be adequate. See the 

preamble for further discussion on desktop tools in the “Tributary” section. In 

addition, desktop tools are critical in circumstances where physical characteristics 

waters are absent in the field, often due to unpermitted alteration of waters. The 

majority of this information is available for the public’s use; these tools can allow 

for greater consistency with currently available and accessible data sources.

West Virginia Department of Environmental Protection (Doc. #15415)

12.1031 The proposed regulation does not address how it will affect existing jurisdictional 

determinations and CWA Section 404 permits. In the interest of regulatory certainty, the 

WVDEP urges the federal government to clarify that any new regulation will be applied 

prospectively, that existing jurisdictional determinations remain valid, and that existing 

CWA Section 404 permits will not need to be revised in light of the regulation. (p. 15)

Agency Response: The Rule will be effective 60 days after publication in the 

Federal Register. Under existing Corps’ regulations and guidance, Corps’ approved 

jurisdictional determinations generally are valid for five years. The preamble 

addresses the status of final JDs and permits as well as pending JDs and permits.. 

Wyoming Department of Environmental Quality (Doc. #16393)

12.1032 The expansion of CWA jurisdiction into remote, dry ephemeral stream reaches 

and the uncertainties regarding the application of jurisdiction to “other waters” creates 

 

248 3 Federal Register (FR). Vol. 79, No. 76. (Monday, April 21, 2014) Proposed Rules: Definition of ‘‘Waters of 

the United States’’ Under the Clean Water Act. pg. 22195.

249 Id. pg. 22195.
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652

serious implementation problems for Wyoming, and is certain to result in increased costs 

to the State and other private and public interests, along with decreased regulatory 

efficiency. For example, the federal approval process for water quality standards requires 

the designation of presumptive uses and associated criteria on all waters of the United 

States. The designation of ephemeral stream channels as waters of the United States 

under the proposed rule will result in a presumption that the State will have to designate 

primary contact recreation and aquatic life uses on those channels. But those 

presumptive uses do not exist and cannot be attained in most, if not all, ephemeral 

streams in Wyoming. Permits issued for discharges into those channels will then need to 

comply with the associated recreational and aquatic life criteria to protect those nonexistent and unattainable uses. 

While the CWA does not require the designation of water uses and criteria that are not 

attainable, removing a presumed use or applying less stringent criteria requires the 

development and approval of a “use attainability analysis” and often requires 

amendments to the state water quality standards regulation. Both of those processes are 

extremely time consuming and expensive. Moreover, if there is a dispute or question as 

to whether an ephemeral stream is jurisdictional, the states are not delegated the authority 

to make jurisdictional determinations. The Corps only performs jurisdictional 

determinations for 404 permitting, and EPA does not have the staff or resources to 

perform the evaluations created by the uncertainty and expansion of jurisdiction under the 

proposed rule. The end result will be greater uncertainty, delayed decision-making, and 

increased compliance costs, which will not be offset by improved water quality in 

downstream waters. (p. 5-6)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. In addition, the rule provides greater clarity regarding which waters 

are subject to CWA jurisdiction, reducing the instances in which permitting 

authorities need to make jurisdictional determinations on a case-specific basis.

Governor’s Office – State of Utah (Doc. #16534)

12.1033 The state believes the EPA and/or Army need to make its jurisdictional 

determinations within a “reasonable” time frame. Michigan, one of only two states 

delegated the Section 404 program, is obligated by state statute to process wetlands 

permits within 90 days (150 days if there is a public hearing). Michigan’s average time 

frame for processing wetland permits is 9 days following the receipt of a complete permit 

application and 46 days if the permit needs to be public-noticed. Yet only 58% of the 

Army’s wetland applications are completed within 120 days with the average 

jurisdictional determination taking 90 days. Some permits take over 700 days to 

complete. That level of performance and those time frames are unreasonable. 

The state believes that within 180 days of receiving a complete application, the agencies 

should be able to make a decision. If they cannot, the state proposes the waters or 

wetlands would, by default, be deemed to be non-jurisdictional due to inaction. A 180-
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653

day time frame would allow the agencies time to prioritize the workload for jurisdictional 

determinations and focus on the most crucial ones. 

In general, uncertainty and time delays produce much of the conflict and disagreement on 

EPA’s proposed rule in making jurisdictional determinations. The two recommendations 

noted above would go a long way in resolving these disagreements. (p. 16)

Agency Response: There are two types of jurisdictional determinations; 

preliminary jurisdictional determinations and approved jurisdictional 

determinations. Preliminary jurisdictional determinations indicate which waters on 

a property may be waters of the U.S., presume all waters on a property are 

jurisdictional, are not legally binding instruments, and enable a landowner to set 

aside the issue of jurisdiction and move directly into the permit evaluation phase of 

the process. Preliminary jurisdictional determinations cannot be used to decline 

jurisdiction and are generally more expedient than approved jurisdictional 

determinations. Approved jurisdictional determinations are the official Corps 

determination that jurisdictional “waters of the United States,” or “navigable 

waters of the United States,” or both, are either present or absent on a particular 

site. An approved JD precisely identifies the limits of those waters on the project site 

determined to be jurisdictional under the Clean Water Act/Rivers and Harbors Act. 

The majority of jurisdictional determinations completed by the Corps are 

preliminary. 

Not every permit application requires a jurisdictional determination. The Corps 

will continue to provide the option to the landowner for both approved and 

preliminary jurisdictional determinations. There is not expected to be a required 

timeframe for completion of a jurisdictional determination, which can be dependent 

on a variety of factors including climate and weather patterns.

State of Idaho (Doc. #16597)

12.1034 Idaho urges EPA and the Corps to work with a state-federal workgroup to 

determine a reasonable process for making jurisdictional determinations involving “other 

waters” and provide remedies in those situations where the permitting agency fails to 

make a determination. (p. 3)

Agency Response: The process of determining jurisdiction of “other waters” has 

been described in Section IV.H. Case-Specific Waters of the United States in the 

preamble. The agencies are developing guidance to facilitate effective and efficient 

implementation of the final rule once it becomes effective. The agencies will 

provide a jurisdictional determination at the landowner’s request. 

There are two types of jurisdictional determinations; preliminary jurisdictional 

determinations and approved jurisdictional determinations. Preliminary 

jurisdictional determinations indicate which waters on a property may be waters of 

the U.S., presume all waters on a property are jurisdictional, are not legally binding 

instruments, and enable a landowner to set aside the issue of jurisdiction and move 

directly into the permit evaluation phase of the process. Preliminary jurisdictional 

determinations cannot be used to decline jurisdiction and are generally more 

expedient than approved jurisdictional determinations. Approved jurisdictional 
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654

determinations are the official Corps determination that jurisdictional “waters of 

the United States,” or “navigable waters of the United States,” or both, are either 

present or absent on a particular site. An approved JD precisely identifies the limits 

of those waters on the project site determined to be jurisdictional under the Clean 

Water Act/Rivers and Harbors Act. The majority of jurisdictional determinations 

completed by the Corps are preliminary. 

Not every permit application requires a jurisdictional determination. The Corps 

will continue to provide the option to the landowner for both approved and 

preliminary jurisdictional determinations. There is not expected to be a required 

timeframe for completion of a jurisdictional determination, which can be dependent 

on a variety of factors including climate and weather patterns.

Arkansas Attorney General (Doc. #16899)

12.1035 The definition of “significant nexus” in the proposed rule now requires the 

agencies to make multiple factual determinations before deciding if a body of water –

either alone or in combination with similarly situated” waters – significantly affects a 

navigable waterway. This shift will vastly increase the amount of time necessary to make 

jurisdictional determinations, which will delay the permitting process and likely lead to 

increased litigation. (p. 1)

Agency Response: There are two types of jurisdictional determinations; 

preliminary jurisdictional determinations and approved jurisdictional 

determinations. Preliminary jurisdictional determinations indicate which waters on 

a property may be waters of the U.S., presume all waters on a property are 

jurisdictional, are not legally binding instruments, and enable a landowner to set 

aside the issue of jurisdiction and move directly into the permit evaluation phase of 

the process. Preliminary jurisdictional determinations cannot be used to decline 

jurisdiction and are generally more expedient than approved jurisdictional 

determinations. Approved jurisdictional determinations are the official Corps 

determination that jurisdictional “waters of the United States,” or “navigable 

waters of the United States,” or both, are either present or absent on a particular 

site. An approved JD precisely identifies the limits of those waters on the project site 

determined to be jurisdictional under the Clean Water Act/Rivers and Harbors Act. 

The majority of jurisdictional determinations completed by the Corps are 

preliminary. 

Not every permit application requires a jurisdictional determination. The Corps 

will continue to provide the option to the landowner for both approved and 

preliminary jurisdictional determinations. There is not expected to be a required 

timeframe for completion of a jurisdictional determination, which can be dependent 

on a variety of factors including climate and weather patterns.

The final rule provides for certain categories of waters that are jurisdictional by 

rule, which will result in a more efficient process. Several categories of waters 

under the 2003 and 2008 guidance documents required case-specific analysis to 

determine jurisdiction, including significant nexus determinations. The agencies do 

not agree that delays in jurisdictional determinations will lead to increased 

litigation.
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655

State of Alaska (Doc. #19465)

12.1036 Failure to Afford Due Process. The proposed rule provides no mechanism for 

judicially challenging affirmative jurisdictional determinations before other CWA 

requirements are imposed. Any rulemaking on the jurisdictional issue must allow 

regulated entities and states the opportunity to administratively and judicially challenge 

an affirmative jurisdictional determination before other CWA requirements are imposed. 

In light of the expensive, time-consuming and punitive consequences flowing from 

affirmative jurisdictional determinations, the rulemaking must – based on principles of 

due process and to avoid infringing upon states regulatory authorities – allow 

jurisdictional determinations to be challenged. (p. 5) 

Agency Response: The Corps current regulations allow an affected party to 

appeal an approved jurisdictional determination, permit applications denied with 

prejudice, and declined permits; see 33 CFR 331 – Administrative Appeal Process 

for further information. As of the date of publication of the final rule, approved 

jurisdictional determinations are not considered “final agency action” and therefore 

cannot legally be challenged under the Administrative Procedures Act.

12.1037 Many questions and concerns revolve around new terms and concepts introduced 

in the proposed rule. For example, the term “similarly situated” waters as defined by the 

agencies may be more expansive than what Justice Kennedy intended in his 2006 

Rapanos opinion. The term itself is likely to be subjectively and inconsistently applied 

by individual field staff personnel. (p. 15)

Agency Response: The agencies acknowledge and note the author’s comments 

concerning the term “similarly situated”. See the preamble section for the casespecific significant nexus determination discussions regarding “similarly situated” 

under (a)(7) and (a)(8) waters. The agencies will evaluate the case by case approach 

used to assess similarly situated and significant nexus over the past seven years to 

determine how this process should be improved to ensure it is implemented more 

effectively under the final rule provisions. The agencies strive to achieve consistency 

across the country in all districts and regions in application of the rule for 

jurisdictional determinations. The agencies also recognize that there are variations 

that occur in geography, hydrology, climate, etc., which affect jurisdictional 

determinations. The initial phase of implementing the rule will require education 

and training for agency staff as well as other stakeholders and the regulated public, 

which will include regionally-based training to ensure consistent and efficient 

implementation of the rule.

12.1038 Any new rule must provide the opportunity for an affected state, landowner, or 

developer – in advance of imposition of any CWA requirement – to obtain timely 

response to requests for jurisdictional determinations, as well as to administratively and 

judicially challenge an affirmative jurisdictional determination.

In Alaska, there is so much at stake in advancing a development proposal that a decision 

to seek a permit under the CWA is often based on the cost of keeping a project moving 

and does not reflect an assessment of whether jurisdiction exists or is even likely to exist 

as there is no process to timely challenge an affirmative jurisdictional determination. 

With a short construction season (three to five months) and the long lead time for staging 
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656

materials in areas with no roads at all (access is only after travel of hundreds of miles by 

boat or plane), there is a narrow window each year to conduct field work and obtain 

approvals for the next season. It is not possible to collect field data for a 404 permit 

application and receive approvals in the same season in time to stage and initiate work on 

a project. Since decisions to initiate work must often be made four to six months in 

advance of the construction season, there are only a couple of months after field data is 

collected to submit an application and received approval. It is a common occurrence that 

projects start no earlier than two years after field data collection. Project delay often 

comes at a significant cost to the project proponent. 

Numerous cases exist where applicants cede to the assertion of federal jurisdiction over 

questionable waters to avoid the need for the Corps to thoroughly document why it is (or 

is not) taking jurisdiction. Applicants conclude that, with the brief construction season in 

Alaska, the delay which could result from a drawn out significant nexus determination 

would be costlier than accepting jurisdiction and complying with permit stipulations and 

compensatory mitigation requirements. It is uncertain how many of these cases would 

have resulted in a finding of no jurisdiction had the applicant opted to request an 

approved jurisdictional determination. However, as the cost of compensatory mitigation 

continues to increase throughout Alaska, it is possible that the cost-benefit analysis of 

construction delays versus accepting federal jurisdiction and paying for compensatory 

mitigation may shift, motivating more applicants to go through the longer approved 

jurisdictional determination process in the hopes of reducing compensatory mitigation 

needs. Adoption of the proposed rule would likely narrow opportunities to demonstrate 

the lack of a significant nexus and could, in the long run, result in increased 

compensatory mitigation requirements. 

To address these long-standing issues, any proposed rule should provide landowners and 

project proponents with two important and efficient avenues to address CWA 

jurisdictional concerns. First, a provision should be included that if a landowner or 

project proponent requests a formal jurisdictional determination and the regulatory 

authority does not provide one within 30 days, the failure to respond will be deemed a 

negative jurisdictional determination not only under Section 404, but for all CWA 

purposes. 

Second, a rule must clearly provide a requestor with a process to not only 

administratively appeal, but also judicially challenge affirmative jurisdictional 

determinations in advance of imposing the permitting process. This is particularly 

important because federal agencies take the position that jurisdictional determinations are 

not considered appealable, final agency actions. That is, no person or entity can 

judicially challenge an affirmative jurisdictional determination until the actual permitting 

process – an expensive and time-consuming endeavor – has been completed. In the 

meantime, absent any meaningful remedy to address challenges to affirmative 

jurisdictional determinations, individuals and entities are forced to materially change 

their positions once the permitting process is imposed. In most instances, applicants must 

enter into legally binding commitments and contractual obligations, spending on average 

hundreds of thousands of dollars to complete the lengthy 404 (and under the proposed 

rule, 402) permitting process and advancing expensive compensatory mitigation 

proposals, in order to obtain a permit and avoid a federal enforcement action when there 
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657

may well be no legitimate jurisdiction for imposing the federal permitting process.250 (p. 

16-17

Agency Response: The Corps current regulations allow an affected party to 

appeal an approved jurisdictional determination, permit applications denied with 

prejudice, and declined permits; see 33 CFR 331 – Administrative Appeal Process 

for further information. As of the date of publication of the final rule, approved 

jurisdictional determinations are not considered “final agency action” and therefore 

cannot legally be challenged under the Administrative Procedures Act. The 

agencies are developing guidance to facilitate effective and efficient implementation 

of the final rule once it becomes effective. The agencies will continue to provide a 

jurisdictional determination at the landowner’s request. 

There are two types of jurisdictional determinations; preliminary jurisdictional 

determinations and approved jurisdictional determinations. Preliminary 

jurisdictional determinations indicate which waters on a property may be waters of 

the U.S., presume all waters on a property are jurisdictional, are not legally binding 

instruments, and enable a landowner to set aside the issue of jurisdiction and move 

directly into the permit evaluation phase of the process. Preliminary jurisdictional 

determinations cannot be used to decline jurisdiction and are generally more 

expedient than approved jurisdictional determinations. Approved jurisdictional 

determinations are the official Corps determination that jurisdictional “waters of 

the United States,” or “navigable waters of the United States,” or both, are either 

present or absent on a particular site. An approved JD precisely identifies the limits 

of those waters on the project site determined to be jurisdictional under the Clean 

Water Act/Rivers and Harbors Act. The majority of jurisdictional determinations 

completed by the Corps are preliminary. 

Not every permit application requires a jurisdictional determination. The Corps 

will continue to provide the option to the landowner for both approved and 

preliminary jurisdictional determinations. There is not expected to be a required 

timeframe for completion of a jurisdictional determination, which can be dependent 

on a variety of factors including climate and weather patterns.

Consolidated Drainage District No. 1, Mississippi County, Missouri (Doc. #6254) 

12.1039 The proposed rule would end what currently requires a case-by-case analysis to 

determine whether there is a significant nexus between a body of navigable water and a 

wetland. Such case-by-case analyses, while fact-intensive and difficult for a regulatory 

agency to undertake, enable justice for individual private property owners because their 

specific situation must be addressed. Owners whose drainage systems are challenged by 

a regulatory agency currently have an opportunity to show to a neutral judge that their 

drainage system does not have a connection to an actually navigable body of water. The 

new rule would make this much more difficult by shifting the burden of proof in the case 

away from the agency and onto the property owner. (p. 2)

 

250 Cf. subparagraphs 6 and 7, below, describing these costs and burdens in additional detail.
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658

Agency Response: The Corps current regulations allow an affected party to 

appeal an approved jurisdictional determination, permit applications denied with 

prejudice, and declined permits; see 33 CFR 331 – Administrative Appeal Process 

for further information. As of the date of publication of the final rule, approved 

jurisdictional determinations are not considered “final agency action” and therefore 

cannot legally be challenged under the Administrative Procedures Act. The 

agencies note that the final rule provides for certain categories of waters that are 

jurisdictional by rule, which will result in a more efficient process. Several 

categories of waters under the 2003 and 2008 guidance documents required casespecific analysis to determine jurisdiction, including significant nexus 

determinations. There is not expected to be a required timeframe for completion of 

a jurisdictional determination, which can be dependent on a variety of factors 

including climate and weather patterns.

Murray County (Minnesota) Board of Commissioners (Doc. #7528)

12.1040 A likely scenario under the proposed rule would go as follows: A wetland, not 

adjacent to a traditional navigable water, therefore labeled as “other water” under the 

proposed rule, is determined by the agencies to be isolated enough so as to not have a 

significant nexus to traditional navigable water by itself. However, when scrutinized in 

combination with other similarly situated waters within an ecological region or single 

point of entry watershed, those waters are determined to have a significant nexus and 

therefore each individual wetland would be deemed jurisdictional. A Section 404 permit 

would be required to fill the wetland. But no specific analysis would be conducted to 

determine whether the fill of that wetland within that ecological region has a more than 

speculative or insubstantial impact on the chemical, physical, and biological integrity of 

the first traditional navigable water downstream. (p. 8)

Agency Response: Please see Section IV.-H. Case-Specific Waters of the United 

States in the preamble for a discussion on how a significant nexus determination is 

performed for (a)(7) and (a)(8) waters. A wetland may be adjacent to a traditional 

navigable water, interstate water, territorial seas, or tributary. A jurisdictional 

determination is made on a case-by-case basis when requested by a landowner. 

Although waters outside the landowner’s review area may be considered in a 

significant nexus determination the jurisdictional determination is only specific to 

waters on the landowner’s review area. Previous jurisdictional determinations for 

(a)(7) and (a)(8) waters made in the single point of entry watershed may be used in 

future jurisdictional determinations in the same single point of entry watershed. 

City of Phoenix, Arizona, Office of Environmental Programs (Doc. #7986)

12.1041 While we conceptually support a unified definition of WOTUS across all sections 

of the Clean Water Act, as proposed, this could have complicating unintended 

consequences. For example, here in Arizona the U.S. Army Corps of Engineers provides 

determinations regarding the extent of WOTUS under §404, while the Arizona 

Department of Environmental Quality provides determinations under other sections of the 

Clean Water Act. Under the proposed Rule, it is unclear which agency would provide the 

definitive determinations, which could lead to time-consuming and inefficient confusion, 

again with no benefit to the environment. (p. 3)
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659

Agency Response: The Rule will not change under which sections of the Clean 

Water Act each agency derives their authority. The Corps will continue to make 

jurisdictional determinations pursuant to its section 404 authority. The agencies are 

developing guidance to facilitate effective and efficient implementation of the final 

rule once it becomes effective. The agencies note that the final rule provides for 

certain categories of waters that are jurisdictional by rule, which will result in a 

more efficient process with consistent application across agencies. 

City of Chesapeake Department of Public Works (Doc. #9615)

12.1042 The Rule states that a case-specific analysis will be required when establishing 

jurisdiction over “other waters.” The phrase case-specific analysis is ambiguous and has 

not been thoroughly explained or defined within the Rule, nor is it clear how these casespecific analysis will be able to differentiate between a significant nexus connection 

versus just a connection between “other waters” and a WOUS. Furthermore, relying on 

case-specific analysis provides less certainty and predictability for the regulated public. 

The phrase case-specific analysis requires more clarification and explanation on how it 

will be deployed in the field to make significant nexus determinations. (p. 6)

Agency Response: The Rule was revised and further clarification of case-specific 

analysis is in Section IV.-H. Case-Specific Waters of the United States in the 

preamble. This section will explain how a significant nexus determination will be 

performed for (a)(7) and (a)(8) waters. It is important to note that every 

jurisdictional determination that is requested by a landowner is case-specific; 

however, the final rule limits those circumstances under which case-specific 

significant nexus determinations are completed to those waters identified in 

paragraphs (a)(7) and (a)(8). In all other circumstances, water bodies are either 

jurisdictional by rule, or excluded from jurisdiction. 

Somerset County, Pennsylvania, Commissioners (Doc. #9734)

12.1043 The proposed rule is unclear whether a Section 404 Permit is required for 

maintenance activity in green infrastructure areas after an area is established; yet, 

municipalities and private sites require Section 404 permits for MS4 or other green 

infrastructure construction projects; which brings to question how the Agency 

distinguishes landscape features as not waters or wetlands from those that will become 

jurisdictional. Water Reuse, Reclamation and Supply facilities built to generate 

additional water supplies for irrigation and drinking water are unclear how this definition 

change will impact a pesticide permit program that is used to control weeds/vegetation 

around ditches. (p. 2)

Agency Response: Please see summary response 12.3. The final definitional rule 

does not change or establish new requirements for complying with the PGP. See also 

summary responses 12.3.1, 12.3.2, and 7.4.4 regarding stormwater, MS4s, and green 

infrastructure. The rule adds a new exclusion clarifying that features such as 

detention and retention basins, groundwater recharge basins, and percolation ponds 

created in dry land for purposes of wastewater recycling are not waters of the 

United States. The final rule also includes revised and expanded exclusions for many 

ditches. Also see summary responses for Topic 6: Ditches and Topic 7: Features and 
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660

waters not jurisdictional, for more information about excluded waters in the final 

rule. 

Lea Soil and Conservation District Board of Supervisors (Doc. #15144)

12.1044 If, as the government declares, the primary objective is to conserve resources and 

promote clarity, then section (a)(7) is inherently inapposite. This section is a section of 

last resort, as the agencies’ field officers will likely conduct all necessary analysis to 

determine if: (i) the water is jurisdictional by rule and/or (ii) if the water is exempted 

under subsection (b). If the answer is no to both counts, only then would the field officer 

make the investigation to determine if the water maintains the appropriate “nexus” with a 

water identified in (a)(1) through (a)(3). To do this analysis requires a “region” wide 

analysis of all other waters that may be “similarly situated” waters. (p. 5)

Agency Response: The Rule was revised and further clarification of case-specific 

analysis is in Section IV.-H. Case-Specific Waters of the United States in the

preamble. This section will explain how a significant nexus determination will be 

performed for (a)(7) and (a)(8) waters. 

The agencies are developing guidance to facilitate effective and efficient 

implementation of the rule when it becomes effective, which will provide for 

consistent determinations. The agencies note that the final rule provides for certain 

categories of waters that are jurisdictional by rule, which will result in a more 

efficient process. 

Association of Clean Water Administrators (Doc. #13069)

12.1045 In contrast to the exclusions mentioned above, which provide for greater clarity 

when identifying waters of the U.S., the concept of “other waters” that are potentially 

jurisdictional may slow down projects due to the need for significant nexus 

determinations. It is also unclear whether the 2008 guidance will still be relied upon to 

make such determinations. If not, there needs to be enough flexibility in the final rule so 

that the Agencies can work with partners in each state to develop a process for 

determining a significant nexus. ACWA also strongly encourages the Agencies to work 

with states on a regional basis to jointly identify policies that consistently implement the 

significant nexus analysis and allow for grouping of geomorphically similar waterbodies. 

For waters that do not easily fit into such groups, the burden should be on the Corps and 

EPA to determine jurisdiction in a timely manner after requests for jurisdictional 

determinations are made. Importantly, greater transparency from the Corps and better 

agreement and consistency between Corps districts and EPA are needed if implementing 

a final rule will be successful. (p. 4)

Agency Response: The Rule was revised and further clarification of case-specific 

analysis is in Section IV.-H. Case-Specific Waters of the United States in the 

preamble. This section will explain how a significant nexus determination will be 

performed for (a)(7) and (a)(8) waters. 

The agencies are developing guidance to facilitate effective and efficient 

implementation of the rule when it becomes effective, which will provide for 

consistent determinations. It is clear that implementation guidance may require 

region-specific considerations. 
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661

The final rule, its preamble, and any subsequent implementation guidance that is 

issued supersedes the 2008 Rapanos guidance. The final rule includes a definition of 

significant nexus upon which the agencies will rely when determining jurisdiction; 

they will not rely upon the concepts or language included in the 2008 Rapanos 

guidance. 

Association of Minnesota Counties (Doc. #3309)

12.1046 Another question that was frequently highlighted by counties focused on the 

relationship of the Army Corps of Engineers to these rules and how they would apply and 

implement them. Who will hold the Army Corps responsible to the timelines when 

waters require their jurisdictional review? AMC heard many counties indicate that the 

time taken by the Army Corps to review permits under the current rule has caused 

extensive delays for both public and private projects. By expanding the jurisdiction to 

make more waters fall under Corps review there is a significant concern that counties and 

others will experience a lengthier backlog in their permits. Again, where the rule lacks 

clarity and definition it will add to the interpretation that is necessary by the Corps, 

thereby adding to the backlog of projects that must be reviewed.

Agency Response: The agencies are developing guidance to facilitate effective and 

efficient implementation of the rule when it becomes effective, which will provide 

for consistent determinations. The agencies note that the final rule provides for 

certain categories of waters that are jurisdictional by rule, which will result in a 

more efficient process. Several categories of waters under the 2003 and 2008 

guidance documents required case-specific analysis to determine jurisdiction, 

including significant nexus determinations. There is not expected to be a required 

timeframe for completion of a jurisdictional determination, which can be dependent 

on a variety of factors including climate and weather patterns. The agencies will 

continue to provide a jurisdictional determination at the landowner’s request; 

preliminary jurisdictional determinations and approved jurisdictional 

determinations. Preliminary jurisdictional determinations are generally more 

expedient than approved jurisdictional determinations. The majority of 

jurisdictional determinations completed by the Corps are preliminary; it is 

important to note that not every permit application requires a jurisdictional 

determination.

Western Coalition of Arid States (Doc. #14407)

12.1047 Proposed Rule Does Not Address Regulatory Guidance Letters or Agency 

Jurisdictional Determinations. Nowhere in the proposed rule do the agencies discuss 

continuance of existing policy or guidance, regulatory guidance letters, or final or 

pending agency jurisdictional determinations. This is especially problematic as there are 

some private irrigation companies and federal reclamation projects that operate ditch 

systems that are already regulated as jurisdictional waters. Within Arizona, the state’s 

water quality standards regulation specifically names two individual irrigation canals and 

two geographic areas in their §303(c) list of surface waters protected under the CWA. 

This list includes: the Arlington Canal, Wellton Canal, Phoenix Area Canals, and Yuma 

Area Canals.8 Irrigation operators in these areas rely upon existing agency guidance to 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

662

routinely maintain, respond to and repair storm damage, and perform physical 

modifications of their ditch systems. 

One guidance document in particular, the U.S. Army Corps of Engineers, Regulatory 

Guidance Letter (RGL) No. 07-02: Exemptions for Construction or Maintenance of 

Irrigation Ditches and Maintenance of Drainage Ditches Under Section 404 of the Clean 

Water Act (July 4, 2007) , is frequently used to perform such work. We recommend the 

agencies acknowledge the existence of and include reference to these regulatory guidance 

letters. Equally troubling is agencies treatment of jurisdictional determinations. Nothing 

in the preamble or proposed rule discusses the status of existing §404 jurisdictional 

determinations or draft determinations under agency review. We recommend the 

agencies clarify that existing RGL’s and issued or pending jurisdictional determinations 

are still valid under the Final Rule. (p. 15-16)

Agency Response: Once the rule becomes effective, the agencies, as appropriate, 

will provide information as to which regulatory guidance letters, memorandums, 

and other sources of guidance regarding jurisdiction remain relevant. The statutory 

exemptions under 404(f) of the CWA are not affected by the final rule. 

The Rule will be effective 60 days after publication in the Federal Register. Under 

existing Corps’ regulations and guidance, Corps’ approved jurisdictional 

determinations generally are valid for five years. The preamble addresses the status 

of final JDs and permits as well as pending JDs and permits.

Great Lakes Indian Fish and Wildlife Commission (Doc. #15454)

12.1048 As the EPA and the Corps finalize and implement this rule, it bears remembering

that the federal government owes particular treaty and trust obligations to GLIFWC’s 

member tribes. This includes the obligation to consult when jurisdictional determinations 

are made in the ceded territories described above. Tribes may have specific traditional 

knowledge or other information about certain waterbodies that would aid in the 

determination of a significant nexus; whether the nexus is purely physical, chemical or 

biological, or whether the nexus can be based on a connection to interstate or foreign 

commerce. In addition, tribal interest in a particular waterbody or wetland may counsel 

the assertion of jurisdiction by the federal government. First, the consequences of a 

jurisdictional determination may impact a tribe’s treaty reserved hunting, fishing or 

gathering rights, rights that the US government has an obligation to protect. Second, as 

discussed above, the tribal use of a waterbody to provide resources that may enter into 

interstate comment should factor into jurisdictional determinations. (p. 4)

Agency Response: This rule does not change the Corps or EPA’s tribal trust 

responsibilities. Tribes can contact their local agency’s Tribal Liaison for any 

questions regarding government–to–government consultations. State, tribal and 

local governments have well-defined and longstanding working relationships with 

the Corps and EPA in implementing Clean Water Act programs..

Western Urban Water Coalition (Doc. #15178.1)

12.1049 The proposed rule should also retain the concept of isolation and retain the current 

policies and practices used by the Corps to consider isolation when performing a JD. (p. 

23)
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663

Agency Response: The purpose of the Rule is to clarify the definition of “waters of 

the United States” in a manner consistent with the Supreme Court decisions, 

including the SWANCC decision on “isolated” waters and the Rapanos decision. 

New procedures and implementation guidance will be disseminated following the 

effective date of the final rule.

12.1050 The agencies need to consider the unintended consequences of the proposed rule. 

If implemented as proposed, the determination of the jurisdictional status of an “other 

water” will potentially take on great regional significance as numerous concerned parties 

in a watershed will closely monitor the JDs of “other waters” that could result in an entire 

class of wetlands or waters being determined jurisdictional. The JD process, which in the 

past has typically been between a permit applicant and the Corps, will become a 

watershed-wide process with multiple parties entering into the jurisdictional debate in an 

effort to protect their interests. This will not simplify or streamline the JD process and is 

likely to increase delays, conflicts, confusion, and challenges. This is particularly likely 

to happen in the arid West due to the large size of the single-entry point watersheds, the 

variability of waters within the watersheds, and numerous dry drainages. (p. 33)

Agency Response: The preamble section describing case-specific significant nexus 

determinations under (a)(7) and (a)(8) waters provides information specific to these 

concerns. Implementation guidance to follow the effective date of the final rule may 

require region-specific considerations. An important note is that all jurisdictional 

determinations are made on a case-by-case basis when requested by a landowner. 

Although waters outside the landowner’s review area may be considered in a 

significant nexus determination, the jurisdictional determination is only specific to 

waters on the landowner’s review area. 

Washington State Water Resources Association (Doc. #16543)

12.1051 As jurisdiction will now be established for an entire category of “similarly 

situated waters,” it will be necessary for interested parties, e.g., water utilities and 

conservation and conservancy districts, to monitor and actively participate in, each 

jurisdictional determination in each and every basin wherein they do business or may do 

business in the future. This is the case because though they may have no intent to ever 

engage in dredge and fill activities or point source discharge activities that impact the 

particular “other water” that may have precipitated the regional examination, once that 

determination is made, the entire region/basin will become “federalized” and they will 

bear the consequences of that determination at such time as one of their projects is ready 

to proceed. (p. 8)

Agency Response: The preamble section describing case-specific significant nexus 

determinations under (a)(7) and (a)(8) waters provides information specific to these 

concerns including how “similarly situated” determinations are made for (a)(8) 

waters. A jurisdictional determination is made on a case-by-case basis when 

requested by a landowner. Previous jurisdictional determinations for (a)(7) and 

(a)(8) waters made in the single point of entry watershed may be used in future 

jurisdictional determinations in the same single point of entry watershed. However, 

although waters outside the landowner’s review area may be considered in a 
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664

significant nexus determination on a particular water body, the jurisdictional 

determination is only specific to waters on the landowner’s review area.

Iowa League of Cities (Doc. #18823)

12.1052 Other organizations will likely provide substantial comments related to new 

housing and commercial development on greenfields and specifically on the Section 404 

permitting program, but the League wants to make sure the Agency contemplates the 

impact from the city perspective in this area. Cities work in partnership with developers 

as they continue to expand and this rulemaking’s impact varies across cities but the 

potential for delay and additional costs will impact the land use development surrounding 

cities. This issue is related to the initial issue of identification of new waters impacted. 

Cities and developers need a clearer understanding of the additional waters to be 

impacted by the rule and how the Agency anticipates processing increased PJDs. (p. 6)

Agency Response: The agencies will continue to provide a jurisdictional 

determination at a landowner’s request. There are two types of jurisdictional

determinations; preliminary and approved jurisdictional determinations. 

Preliminary jurisdictional determinations indicate which waters on a property may 

be waters of the U.S., presume all waters on a property are jurisdictional, are not 

legally binding instruments, and enable a landowner to set aside the issue of 

jurisdiction and move directly into the permit evaluation phase of the process. 

Preliminary jurisdictional determinations cannot be used to decline jurisdiction and 

are generally more expedient than approved jurisdictional determinations. 

Approved jurisdictional determinations are the official Corps determination that 

jurisdictional “waters of the United States,” or “navigable waters of the United 

States,” or both, are either present or absent on a particular site. An approved JD 

precisely identifies the limits of those waters on the project site determined to be 

jurisdictional under the Clean Water Act/Rivers and Harbors Act. The majority of 

jurisdictional determinations completed by the Corps are preliminary. 

Not every permit application requires a jurisdictional determination. The Corps 

will continue to provide the option to the landowner for both approved and 

preliminary jurisdictional determinations. There is not expected to be a required

timeframe for completion of a jurisdictional determination, which can be dependent 

on a variety of factors including climate and weather patterns.

The agencies expect that the rule will provide for more efficient jurisdictional 

determinations for certain categories of waters jurisdictional by rule. See the 

Economic Analysis for additional information on changes in jurisdiction and 

anticipated costs and benefits of the rule. 

12.1053 Request for EPA Response: Will the EPA provide additional information as to 

the new waters impacted surrounding urban areas? (p. 6)

Agency Response: No additional information is expected regarding waters in 

urban areas. The agencies only make jurisdictional determinations at the request of 

a landowner. The rule is applicable in the same manner between urban and rural 

areas. 
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665

12.1054 Request for EPA Response: How will the EPA process increased PJDs related to 

greenfield development surrounding urban areas? (p. 6)

Agency Response: The agencies will continue to provide a jurisdictional 

determination at a landowner’s request. The agencies expect that the rule will 

provide for more efficient jurisdictional determinations for certain categories of 

waters determined to be jurisdictional by rule. Certain aspects of greenfield 

development regarding water features may be excluded under paragraph (b) of the 

final rule. See the preamble section on “Waters and Features That Are Not Waters 

of the U.S.” for further discussion.

ERO Resources Corporation (Doc. #14914)

12.1055 The proposed rule does not address the status of existing jurisdictional and no 

permit required determinations based on the non-jurisdictional status of the water or 

wetland if the proposed rule is adopted. Previously, the agencies addressed this issue in 

their 2011 Draft Guidance on Identifying Waters Protected by the Clean Water Act and 

stated “this guidance, once finalized, will supersede previously issued guidance on the 

scope of ‘waters of the United States’ (also ‘waters of the U.S.’) subject to CWA 

programs. However, it is not the agencies intention that previously issued jurisdictional 

determinations be re-opened as a result of this guidance” (76 Fed. Reg. 24479 (May 2, 

2011)). The agencies need to include a similar statement in the final rule to avoid 

confusion among the regulated public regarding the status of current JDs. (p. 30)

Agency Response: The Rule will be effective 60 days after publication in the 

Federal Register. Under existing Corps’ regulations and guidance, Corps’ approved 

jurisdictional determinations generally are valid for five years. The preamble 

addresses the status of final JDs and permits as well as pending JDs and permits.

12.1056 Adoption of the proposed rule should not affect the Corps guidance regarding the 

use of Preliminary JDs (RGL No. 08-02). Under the proposed rule, the agencies would 

assess the combined effects of similarly situated “other waters” in the region on the 

chemical, physical, or biological integrity of (a)(l) through (a)(3) waters in conducting a 

SNA. This approach could be undertaken to determine the jurisdictional status of a 

single water or wetland in the “other water” category. The similarly situated SNA could 

affect the jurisdictional status of every similarly situated other water within the 

watershed. In many permitting situations, the permit applicant may wish to assume that 

the other water in question is jurisdictional for expediency. If adopted, the final rule 

needs to be clear that a permit applicant may elect to use a preliminary JD to voluntarily 

waive or set aside questions regarding CWA jurisdiction over a particular site without 

that assumption being coupled with the similarly situated definition to then assume that 

all similarly situated waters or wetlands in the watershed are jurisdictional for future 

permitting actions. (p. 30)

Agency Response: The agencies will continue to provide a jurisdictional 

determination at a landowner’s request. The Corps will continue to provide the 

option to a landowner for both approved and preliminary jurisdictional 

determinations. Preliminary jurisdictional determinations indicate which waters on 

a property may be waters of the U.S., presume all waters on a property are 

jurisdictional, are not legally binding instruments, and enable a landowner to set 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

666

aside the issue of jurisdiction and move directly into the permit evaluation phase of 

the process. Preliminary jurisdictional determinations cannot be used to decline 

jurisdiction and are generally more expedient than approved jurisdictional 

determinations. Approved jurisdictional determinations are the official Corps 

determination that jurisdictional “waters of the United States,” or “navigable 

waters of the United States,” or both, are either present or absent on a particular 

site. An approved JD precisely identifies the limits of those waters on the project site 

determined to be jurisdictional under the Clean Water Act/Rivers and Harbors Act.

Although waters outside the landowner’s review area may be considered in a 

significant nexus determination, a jurisdictional determination is only specific to 

waters in the landowner’s review area. Previous approved jurisdictional 

determinations for (a)(7) and (a)(8) waters made in a single point of entry watershed 

may be used in future approved jurisdictional determinations in the same single 

point of entry watershed. 

Teichert Materials (Doc. #18866)

12.1057 The proposed rule allows the Corps field staff to make jurisdictional 

determinations based on “desktop” studies without gathering site-specific information, 

which will likely lead to arbitrary and inconsistent determinations by Corps field staff. (p. 

3)

Agency Response: Approved JDs that identify the limits of waters of the United 

States may be based on site visits or desktop reviews. The agencies have been using 

remote sensing and desktop tools to delineate tributaries for many years where data 

from the field are unavailable or a field visit is not possible. Desktop reviews are 

sufficient in cases where the district has a high degree of confidence in the 

information used to identify the limits of jurisdictional waters. For example, desktop 

reviews may be based on detailed delineation reports prepared by professional 

wetland consultants. The level of mapping precision for an approved JD that 

identifies the limits of waters of the United States is at the discretion of the district. 

In some cases, districts may need to require professional surveys of jurisdictional 

boundaries, but in other cases, other mapping techniques may be adequate. See the 

preamble for further discussion on desktop tools in the “Tributary” section. In 

addition, desktop tools are critical in circumstances where physical characteristics 

waters are absent in the field, often due to unpermitted alteration of waters. The 

majority of this information is available for the public’s use; these tools can allow 

for greater consistency with currently available and accessible data sources.

CEMEX (Doc. #19470)

12.1058 The proposed rule allows the Corps field staff to make jurisdictional 

determinations based on “desktop” studies without gathering site-specific information 

which will likely lead to arbitrary and inconsistent determinations by Corps field staff (p. 

2)

Agency Response: Approved JDs that identify the limits of waters of the United 

States may be based on site visits or desktop reviews. The agencies have been using 

remote sensing and desktop tools to delineate tributaries for many years where data 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

667

from the field are unavailable or a field visit is not possible. Desktop reviews are 

sufficient in cases where the district has a high degree of confidence in the 

information used to identify the limits of jurisdictional waters. For example, desktop 

reviews may be based on detailed delineation reports prepared by professional 

wetland consultants. The level of mapping precision for an approved JD that 

identifies the limits of waters of the United States is at the discretion of the district. 

In some cases, districts may need to require professional surveys of jurisdictional 

boundaries, but in other cases, other mapping techniques may be adequate. See the 

preamble for further discussion on desktop tools in the “Tributary” section. In 

addition, desktop tools are critical in circumstances where physical characteristics 

waters are absent in the field, often due to unpermitted alteration of waters. The 

majority of this information is available for the public’s use; these tools can allow 

for greater consistency as they are currently available and accessible data sources.

National Association of Home Builders (Doc. #19540)

12.1059 The Proposed Rule Changes the Process by which a Jurisdictional Determination 

is Made and Shifts the Burden of Proof onto the Regulated Community

The proposed rule’s categorical assertions of jurisdiction over all “tributaries” and all 

“adjacent waters” shift the burden of proof for permit decisions and jurisdictional 

determinations onto the regulated community. Under current practice, the Agencies must 

“document in the administrative record the available information regarding whether a 

tributary and its adjacent wetlands have a significant nexus,” including the physical 

indicators of flow and information regarding the functions of the tributary and any 

adjacent wetlands.251 The Agencies must also “explain their basis” for finding a 

significant nexus.252 Indeed, several courts have ruled that a positive jurisdictional 

determination of a water body requires some evidence of a nexus and its significance, 

“[o]therwise, it would be impossible to engage meaningfully in an examination of 

whether a wetland had ‘significant’ effects or merely ‘speculative or insubstantial’ effects 

on navigable waters.”

253

 Additionally, as described by Justice Kennedy in Rapanos, the 

significant nexus test only applies to adjacent wetlands and may only be applied on a 

case-by-case basis.254

But, under the proposed rule with its categories of per se jurisdictional waters, the 

Agencies no longer have to make a showing of evidence to prove a nexus is significant. 

What’s more, they incorrectly apply Justice Kennedy’s significant nexus test to all waters 

and show no regard for the test’s case-by-case application. As a result, the proposed rule 

 

251 2008 Rapanos Guidance at 11. 

252 Id. 

253 See Precon Development Corp., Inc. v. U.S. Army Corps of Engineers, 633 F.3d 278, 294 (4th Cir. 2011); 

Benjamin v. Douglass Ridge Rifle Club, 673 F.Supp.2d 1210, 1220 (D. Or. 2009); Northern California River Watch 

v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007); Environmental Protection Information Center v. Pacific 

Lumber Company, 469 F.Supp.2d 803, 823 (N.D. Cal. 2007). 

254 In Rapanos, Justice Kennedy opined that “the Corps’ jurisdiction over wetlands depends upon the existence of a 

significant nexus between the wetlands in question and navigable waters in the traditional sense.” Rapanos, 547 U.S. 

at 779 (emphasis added). A nd, Justice Kennedy continued, “the Corps must establish significant nexus on a caseby-case basis when seeking to regulate wetlands based on adjacency to non-navigable tributaries, in order to avoid 

unreasonable applications of the [Clean Water] Act.” Id. at 782 (emphasis added). 
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668

effectively shifts the burden of proof to the public to prove that the water or feature at 

issue does not meet the proposed rule’s overbroad “tributary” or “adjacent water”

definitions. As demonstrated by the numerous vagaries and uncertainties in the 

definitions and exclusions, this will not prove to be an easy task. 

For example, a home builder who believes a ditch on her property is not a jurisdictional 

tributary will have to try to prove to the Agencies that the ditch qualifies for one of the 

narrow ditch exemptions. She will have to show, through historical evidence, such as 

photographs, prior delineations, or topographic maps, that her ditch was excavated 

wholly in uplands for its entire length, drains only uplands, and has less than perennial 

flow, or that the ditch does not contribute flow to a jurisdictional water. Making such a 

showing will require significant cost and resources, and, in many cases, the necessary 

records or documents may not be available. And if a home builder believes an isolated 

wetland that happens to lie in the subjectively defined floodplain of a traditional 

navigable water does not have a significant nexus with that water, he would have to 

challenge the very Code of Federal Regulations itself. The Agencies do not acknowledge 

the massive burden this imposes on applicants. What’s more, the Agencies have not 

provided any explanation or legal basis for shifting the burden of proof onto the public. 

The Agencies must remain responsible for producing the evidence needed to make a 

positive “water of the United States” determination. Otherwise, many more cases will 

have to go through the administrative appeals process in order to have a wrongful 

jurisdictional determination removed. This will not increase efficiency or reduce delay as 

the Agencies claim. (p. 128-129)

Agency Response: The agencies have revised the definition of “neighboring”

under adjacent (a)(6) waters in an effort to provide more of a “bright line” to 

reduce the “burden of proof” on both the agencies and the regulated public. The 

agencies have made the determination that all tributaries and all adjacent waters 

have a significant nexus either alone or in combination with other similarly situated 

waters in the region such that they are jurisdictional by rule. Waters must meet the 

confines of the definitions in order to be jurisdictional by rule as the agencies have 

determined that such characteristics must be met in order to demonstrate that the 

waters have the required significant nexus.

American Exploration & Mining Association (Doc. #13616)

12.1060 The scope of CWA jurisdiction is of fundamental importance to AEMA. Our 

members engage in activities on land and water that often require a jurisdictional 

determination from the Corps before proceeding. Any change in CWA regulations that 

would change the scope of federal jurisdiction will have a substantial effect on our 

members’ ability to finance and develop new projects or perform maintenance to 

maintain existing infrastructure and facilities. Our members construction and operations 

often require various permits under the CWA and the agencies’ proposed expansion of 

jurisdiction will result in additional permit obligations for all CWA programs. The 

agencies have failed to consider the significant implications on these programs, including 

Section 404 dredge and fill permitting, Section 402 NPDES permitting, including 

stormwater and non-stormwater, Section 401 water quality certification, Sections 303, 

304, and 305 State water quality standards, and Section 311 oil spill prevention. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

669

Agency Response: The agencies recognize that the final rule will appropriately be 

applicable to all Clean Water Act programs. The agencies recognize that the final 

rule will impact all such programs. See the Economic Analysis for discussion on 

changes in jurisdiction and potential cost impacts to the various Clean Water Act 

programs. 

12.1061 In particular, our comments address the possibility that historically nonjurisdictional on-site stormwater and surface water management features will be deemed 

jurisdictional, and the complications surrounding distinguishing ephemeral tributaries 

from non-jurisdictional features, including increased delays, costs, and permitting 

requirements on mine operations. (p. 2)

Agency Response: The rule contains clarifying language regarding which water 

features are and are not Waters of the US. Please see Section I- Water and Features 

that Are Not “Waters of the United States” for further clarification. In particular, 

paragraph (b) of the final rule regarding the exclusion for stormwater control 

features and the exclusion for erosional features and ephemeral features that don’t 

meet the definition of “tributary.” To be considered a “tributary” under the final 

rule, a water feature must demonstrate both bed/banks and an ordinary high water 

mark which would distinguish them from non-jurisdictional features.

Sinclair Oil Corporation (Doc. #15142)

12.1062 The proposed rule does not provide clarity to the term “waters of the United 

States.” The ambiguity in the proposed rule also presents its practical short coming. The 

stated intent of the proposed rule is to “make the process of identifying ‘waters of the 

United States’ less complicated and more efficient ... by increasing CWA program 

transparency, predictability, and consistency.” 79 Fed. Reg. 22,190. Because of the 

ambiguity noted above, the proposed rule does not accomplish this goal. By declining to 

limit the definition of “waters of the United States” using clear and readily perceptible 

standards that fall within the established bounds of the CWA, the proposed rule ensures 

that jurisdictional determinations will continue to be made on a case-by-case basis for all 

but the most obviously jurisdictional waters.

For example, because the defining characteristic of a “tributary’’ in the proposed rule is 

that it contributes flow to a traditional navigable water, interstate water, or territorial sea, 

the Agencies will have to engage in a case-specific analysis of whether an individual 

water “contributes flow.” See 79 Fed. Reg. 22,201. However, since the proposed rule 

does not articulate a clear standard for what it means for a water to “contribute flow” and 

since Justice Kennedy has already determined that “a mere hydrologic connection should 

not suffice in all cases” the Agencies will be forced to determine whether the evidence of 

hydrologic connectivity between the specific water in question is sufficient to establish

the “required nexus with navigable waters as traditionally understood” before the water 

can be called a “tributary.” Rapanos, 547 U.S. at 784-85. This analysis is not 

substantively different than the case-specific analysis currently being performed to 

determine whether a particular water has a significant enough nexus to traditional 

navigable waters so as to qualify as a “water of the United States.” This does not 

decrease the complexity, nor increase the efficiency, of jurisdictional determinations. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

670

Accordingly, the Agencies, simply have not proposed a rule that actually accomplishes 

the goals the set out for themselves in undertaking this rulemaking. (p. 9)

Agency Response: See the preamble section on “Tributaries” for further 

discussion on the characteristics required to meet the definition of a tributary. All 

tributaries are jurisdictional by rule and have been determined to have a significant 

nexus to the (a)(1) to (a)(3) waters. Under the 2003 and 2008 guidance document the 

agencies had to determine whether a potential tributary connects to the downstream 

tributary network in order to determine to which water the tributary flows or 

whether the tributary is “isolated.” The tributary characteristics required by the 

rule indicate sufficient volume, flow, and frequency of water such that the tributary 

would not have a “mere hydrologic connection” but rather would have a significant 

nexus to the (a)(1) to (a)(3) waters. All jurisdictional determinations are made on a 

case-by-case basis at the request of a landowner. However, only those waters that 

fall into the (a)(7) or (a)(8) categories would require a case-specific significant nexus 

determination. 

Pennsylvania Grade Crude Oil Coalition (Doc. #15773)

12.1063 Given the extensive water resources in Pennsylvania, costs and delays would be 

associated with evaluating the expanded view of jurisdictional waters to determine 

whether a jurisdictional water would be impacted by an activity. For example, the 

Proposed Rule considers jurisdictional streams to continue even though they have gone 

underground for an unspecified period of time.255 Therefore, qualified professionals 

would need to evaluate a larger up gradient area to determine whether a connection to 

jurisdictional water exists. Similarly, water that is connected to a jurisdictional water by 

a non-jurisdictional water could still be considered to be jurisdictional. Therefore, 

professionals would need to evaluate not only water connected to the jurisdictional water, 

but also all waters up gradient and down gradient from it. In all, professionals would no 

longer be able to walk the limit of disturbance and reasonable buffer areas to identify 

jurisdictional resources and impacts. Instead, they will need to assess a much larger area 

to determine whether surface or subsurface hydrologic connections exist, whether a 

bed/bank exists upstream or downstream from a tributary or whether a significant nexus 

exists with an “other water” when considered in combination with similarly situated 

waters within the same region. (p. 5)

Agency Response: As revised the final rule provides additional clarity regarding 

waters that are considered jurisdictional by rule and waters that may require a 

case-specific significant nexus determination. Those waters requiring a case-specific 

significant nexus evaluation are limited to two categories: (a)(7) and (a)(8), and to 

limited circumstances within those categories. The best available information will 

be used when making a determination. This may include watershed data that 

enable staff to use their best professional judgment with information provided by 

the landowner to make jurisdictional calls. 

 

255 See 76 Fed Reg. 22199 for additional examples.
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671

See the preamble section on “Tributaries” for further discussion on the 

characteristics required to meet the definition of a tributary. All tributaries are 

jurisdictional by rule and have been determined to have a significant nexus to the 

(a)(1) to (a)(3) waters. Under the 2003 and 2008 guidance documents, the agencies 

had to determine whether a potential tributary connects to the downstream 

tributary network in order to determine to which water the tributary flows or 

whether the tributary is “isolated.” This aspect remains under this final rule with 

the requirement that the tributary contributes flow to the downstream (a)(1) to 

(a)(3) waters. In addition, tributaries could have sections that went underground 

and were connected via shallow subsurface flow under those guidance documents. 

The agencies are experienced in making such determinations and will continue the 

practice as described in the final rule. 

Although waters outside the landowner’s review area may be considered in a 

significant nexus determination the jurisdictional determination is specific to waters 

on the landowner’s review area. Previous jurisdictional determinations for (a)(7) 

and (a)(8) waters made in the single point of entry watershed may be used in future 

jurisdictional determinations in the same single point of entry watershed. 

Martin Marietta (Doc. #16356)

12.1064 At a December 12, 2013, meeting with representatives of the White House Office 

of Management and Budget, the EPA and Corps of Engineers, Steve Whitt presented 

information on a 2,700-acre green site being developed in Texas. The USGS maps for 

this area indicated that almost seven miles of blue line streams exist within the property 

boundary. A 2009 jurisdictional determination (confirmed by a full field review) 

indicated that there were no jurisdictional features within the project boundary. This 

specific type of situation is why Corps field staff should not be allowed to make 

jurisdictional determinations based on desk-top studies. This will lead to inaccurate and 

inconsistent determinations by Corps field staff. (p. 2) 

Agency Response: Approved JDs that identify the limits of waters of the United 

States may be based on site visits or desktop reviews. The agencies have been using 

remote sensing and desktop tools to delineate tributaries for many years where data 

from the field are unavailable or a field visit is not possible. Desktop reviews are 

sufficient in cases where the district has a high degree of confidence in the 

information used to identify the limits of jurisdictional waters. For example, desktop 

reviews may be based on detailed delineation reports prepared by professional 

wetland consultants. The level of mapping precision for an approved JD that 

identifies the limits of waters of the United States is at the discretion of the district. 

In some cases, districts may need to require professional surveys of jurisdictional 

boundaries, but in other cases, other mapping techniques may be adequate. See the 

preamble for further discussion on desktop tools in the “Tributary” section. In 

addition, desktop tools are critical in circumstances where physical characteristics 

waters are absent in the field, often due to unpermitted alteration of waters. The 

majority of this information is available for the public’s use; these tools can allow 

for greater consistency with currently available and accessible data sources.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

672

Oregon Cattlemen’s Association (Doc. #5273)

12.1065 In addition to declining to employ absolute standards to aid in their 

determinations of the status of “other waters,” the Agencies seek to decrease the number 

of field-based determinations, Id. at 22195. The Agencies instead plan to increase the use 

of technology and other means in order to make these “desktop” jurisdiction 

determinations. The Agencies do not explain how these methods will lead to better, more 

accurate jurisdictional determinations. Additionally, the Agencies do not indicate how 

they will communicate with landowners in the event that the Agencies determine through 

a “desktop” jurisdictional evaluation that their lands qualify as “waters of the U.S.” (p. 6-

7)

Agency Response: Approved JDs that identify the limits of waters of the United 

States may be based on site visits or desktop reviews. The agencies have been using 

remote sensing and desktop tools to delineate tributaries for many years where data 

from the field are unavailable or a field visit is not possible. Desktop reviews are 

sufficient in cases where the district has a high degree of confidence in the 

information used to identify the limits of jurisdictional waters. For example, desktop 

reviews may be based on detailed delineation reports prepared by professional 

wetland consultants. The level of mapping precision for an approved JD that

identifies the limits of waters of the United States is at the discretion of the district. 

In some cases, districts may need to require professional surveys of jurisdictional 

boundaries, but in other cases, other mapping techniques may be adequate. See the 

preamble for further discussion on desktop tools in the “Tributary” section. In 

addition, desktop tools are critical in circumstances where physical characteristics 

waters are absent in the field, often due to unpermitted alteration of waters. The 

majority of this information is available for the public’s use; these tools can allow 

for greater consistency with currently available and accessible data sources. The 

Corps will provide a landowner, permit applicant, or other “affected party” an 

approved jurisdictional determination when requested by name or otherwise has 

requested an official jurisdictional determination, whether or not it is referred to as 

an “approved JD.” Jurisdictional determinations are not completed absent a 

request from a landowner.

Santa Barbara County Farm Bureau (Doc. #14966)

12.1066 Of further concern is the inconsistency that would be created by regional offices 

having discretion to interpret and apply the vague definitions in the proposed rule –

“uplands,” “floodplain,” “subsurface connection,” “waters” and “waste treatment.” This 

would create confusion and additional burdens, require more federal permits, and 

increase possible litigation for both state permit programs and individual landowners. (p. 

1-2)

Agency Response: The definitions in paragraph (c) of the final rule provide 

further clarification and the preamble contains additional discussion about the 

terms used in the final rule. The final rule has been revised to reflect concerns 

received about the proposed rule, including the use of terms such as “upland,” and 

has provided additional clarity regarding the term “floodplain.” 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

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New York Farm Bureau (Doc. #15616)

12.1067 In response to (the) anticipated increase in determination needs, EPA and the 

Corps have provided no additional resources for NRCS or anyone else to handle this 

workload. In fact, NRCS in our state is already facing serious backlogs in many areas 

and unable to keep up with the current demand. One county reportedly has more than 

1,000 determination requests in the queue. 

Waiting for determinations in a system that is not prepared or equipped for this workload 

will undoubtedly cause great delays for farmers in conducting the normal and necessary 

farming activities needed to conduct their business. The agencies have provided no 

indication that they acknowledge this problem, let alone a plan or the financial 

commitment to address the problem? 

Additionally, this increase in individual determinations will be done by the best 

professional judgment of staff. While NRCS officials are generally well respected in the 

farm community, it is inevitable that individuals will come to different conclusions on 

some of the confusing features on farms, especially those that seldom carry water. This 

will directly undermine the rule’s stated goal of consistency by increasing subjectivity. 

We have already seen a range in determination decisions within our state and certainly 

within the country.

The agencies should only be developing rules that are clear, concise, and can be 

implemented consistently across the country, not rules that muddy the waters more and 

lead to more subjective enforcement. (p. 5-6) 

Agency Response: There are two types of jurisdictional determinations; 

preliminary jurisdictional determinations and approved jurisdictional 

determinations. Preliminary jurisdictional determinations indicate which waters on 

a property may be waters of the U.S., presume all waters on a property are 

jurisdictional, are not legally binding instruments, and enable a landowner to set 

aside the issue of jurisdiction and move directly into the permit evaluation phase of 

the process. Preliminary jurisdictional determinations cannot be used to decline 

jurisdiction and are generally more expedient than approved jurisdictional 

determinations. Approved jurisdictional determinations are the official Corps 

determination that jurisdictional “waters of the United States,” or “navigable 

waters of the United States,” or both, are either present or absent on a particular 

site. An approved JD precisely identifies the limits of those waters on the project site 

determined to be jurisdictional under the Clean Water Act/Rivers and Harbors Act.

The Corps will continue to provide the option to the landowner for both approved 

and preliminary jurisdictional determinations. Only the Corps and EPA determine 

if a water body is jurisdictional under sections 303, 311, 402, and 404 of the Clean 

Water Act. See the Economic Analysis for discussion on changes in jurisdiction and 

potential cost impacts to the various Clean Water Act programs. The agencies will 

continue to use desktop tools in making jurisdictional determinations which can 

improve efficiency in making such determinations. The majority of this information 

is available for the public’s use; these tools can allow for greater consistency as they 

are currently available and accessible data sources. Guidance to facilitate 

implementation of the rule once it becomes effective is being developed, which will 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

674

provide for consistent determinations in an effective and efficient manner to the 

maximum extent practicable. 

North Carolina Aggregates Association (Doc. #6938)

12.1068 The proposed rule allows the Corps field staff to make jurisdictional 

determinations based on “desktop” studies without gathering site-specific information 

which will likely lead to subjective and inconsistent determinations by Corps field staff. 

(p. 2)

Agency Response: Approved JDs that identify the limits of waters of the United 

States may be based on site visits or desktop reviews. The agencies have been using 

remote sensing and desktop tools to delineate tributaries for many years where data 

from the field are unavailable or a field visit is not possible. Desktop reviews are 

sufficient in cases where the district has a high degree of confidence in the 

information used to identify the limits of jurisdictional waters. For example, desktop 

reviews may be based on detailed delineation reports prepared by professional 

wetland consultants. The level of mapping precision for an approved JD that 

identifies the limits of waters of the United States is at the discretion of the district. 

In some cases, districts may need to require professional surveys of jurisdictional 

boundaries, but in other cases, other mapping techniques may be adequate. See the 

preamble for further discussion on desktop tools in the “Tributary” section. In 

addition, desktop tools are critical in circumstances where physical characteristics 

waters are absent in the field, often due to unpermitted alteration of waters. The 

majority of this information is available for the public’s use; these tools can allow 

for greater consistency with currently available and accessible data sources. The 

Corps will provide a landowner, permit applicant, or other “affected party” an 

approved jurisdictional determination when requested by name or otherwise has 

requested an official jurisdictional determination, whether or not it is referred to as 

an “approved JD.”

American Road and Transportation Builders Association (Doc. #15424)

12.1069 One method of establishing clarity would be to develop a classification system for 

wetlands based on their ecological value. This would allow increased protection for the 

most valuable wetlands while also creating flexibility for projects impacting wetlands 

that are considered to have little or no value. Also, there should be a “de minimis” level 

of impacts defined which would not require any permitting process to encompass 

instances where impacts to wetlands are so minor that they do not have any ecological 

effect. A “de-minimis” standard for impacts would be particularly helpful for 

transportation projects and allow projects to avoid being delayed by minimal impacts to 

areas which are non-environmentally sensitive areas. 

Furthermore the proposed rule does not recognize one of the biggest factors creating the 

confusion in defining federal jurisdiction – multiple agencies being involved in the 

jurisdictional determination process. ARTBA has repeatedly stated the involvement of 

multiple agencies in wetlands regulation hinders the overall efforts of the federal 

permitting program. One of the principal problems plaguing the 404 program is 

indecision and inaction, with no benefit for the environment. Justice Breyer reiterated 

this in his aforementioned Rapanos dissent, stating “If one thing is clear, it is that 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

675

Congress intended the Army Corps of Engineers to make the complex technical 

judgments that lie at the heart of [federal wetlands jurisdiction].”

256

Congress reiterated this point in the National Defense Authorization Act for Fiscal Year 

2004 by authorizing only one agency, the Corps, to issue 404 permitting program 

regulations. This direction should be continued. Thus, it should be the sole 

responsibility of the Corps, not the EPA, to take the lead and build a stronger, more 

predictable permitting program to both enhance environmental protection and provide a 

measure of certainty to regulatory staff and permit applicants. ARTBA continues to 

believe the Corps should be the principal agency administering the 404 wetlands 

regulatory program as its staff has the technical expertise and practical knowledge to 

ensure fair implementation of federal wetlands policy. The proposed rule should be 

amended to acknowledge the Corps’ status as the sole intended decision-making agency 

in jurisdictional determinations and the EPA should be removed from the permitting 

process entirely. (p. 5-6)

Agency Response: The final rule contains a definition of wetland that is consistent 

with the previous definition of wetland contained in agency regulation. It is 

important to note, however, that not all water bodies meeting the definition of 

wetland or those delineated by the agencies per the Corps 1987 Wetland Delineation 

Manual, will be jurisdictional under this final rule. Only those wetlands meeting the 

criteria outlined in paragraph (a)(1)-(8) are subject to Federal jurisdiction under 

the Clean Water Act. 

The agencies recognize that there are varying levels of degradation or impacts that 

are proposed by applicants to jurisdictional waters of the U.S. within the permit 

process however, this is a different inquiry than the inquiry related to whether a 

particular water is subject to Federal jurisdiction. 

The 1979 Civiletti opinion made clear that EPA is the agency with the ultimate 

administrative authority to determine geographic jurisdiction under section 404 of 

the Clean Water Act.

Airports Council International – North America (Doc. #16370)

12.1070 On page 22241 of the Proposed Rule the text discussing significant nexus states:

“The agencies will determine whether the water they are evaluating, in combination with 

other similarly situated waters in the region, has a significant nexus to the nearest 

traditional navigable water, interstate water or the territorial seas.”

The two agencies are not always in agreement on whether a water is jurisdictional, and 

the current proposal has not met its goal of providing clarity. Assuming the agencies can 

achieve that goal in a final rule, there is still the possibility of disagreement among parties 

as to “significant nexus.” Many administrative and legal records show differences of 

opinions on the interpretation of scientific data among agencies or a stakeholder, who 

may disagree with an agency’s decision. To address these situations we request that the 

Proposed Rule clarify:

 

256 Rapanos v. United States, 547 U.S. 715 (2006). 
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 If both agencies must decide that a significant nexus exists, what happens if they 

disagree?

 If either the EPA or the Corps is responsible for making a significant nexus 

determination, and if only one agency makes the determination, how will it be 

decided which agency makes the determination?

 If a stakeholder may appeal a decision regarding a significant nexus.

 If a stakeholder must show no significant nexus exists. (p. 4-5)

Agency Response: Corps District staff is responsible for completing jurisdictional 

determinations when requested by a landowner. If EPA does not agree with the 

Corps determination they can choose to elevate the determination as a special case 

under the 1989 Memorandum procedures, “Memorandum between the Department 

of the Army and the USEPA Concerning the Determination of the Section 404 

Program and the Application of the Exemptions under Section 404(f) of the Clean 

Water Act.” 

The Corps Administrative Appeals Process can be found at 33 CFR Part 331 and is 

applicable to approved jurisdictional determinations. At this time, approved 

jurisdictional determinations are not considered to be final agency actions; thus are 

not subject to judicial review. The preamble provides additional discussion on the 

factors that will be considered for (a)(7) and (a)(8) waters, which are the only waters 

for which a case-specific significant nexus determination can be made by the Corps 

under this final rule.

Clearwater Watershed District, et al. (Doc. #9560.1)

12.1071 Minnesota is located in the prairie pothole region of the United States. We are 

already hearing comments from the Army Corps regulatory branch office out of St. Paul, 

Minnesota that, under the new rule, all wetlands within the prairie pothole region are 

jurisdictional. The St. Paul District Office has a backlog of permit applications and 

jurisdictional determinations that presently requires a minimum of eight months to a year 

to complete each request. (p. 9-10)

Agency Response: Under the rule, prairie potholes are a category of waters that 

are considered an (a)(7) water, and which require a significant nexus determination 

to evaluate jurisdictional status. In other words, though such waters have been 

determined by rule to be similarly situated, they still require a case-specific 

significant nexus analysis to determine whether they are jurisdictional. Other types 

of waters, including wetlands that may be in the prairie pothole region of the U.S. 

would need to be independently reviewed to determine whether they meet any of the 

exclusions or whether they meet one of the other categories of jurisdictional waters. 

The agencies do not make jurisdictional determinations without the landowner’s 

request to do so. 

The initial phase of implementing the rule will require education and training for 

agency staff as well as other stakeholders and the regulated public which may result 

in an initial delay in certain jurisdictional determinations but after the initial 

implementation period jurisdictional determinations are expected to be more 
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efficient. Also, in the prairie pothole region, which includes Minnesota, the climate 

can create delays in completing jurisdictional determinations as field work cannot 

be completed during the winter. The agencies will continue to work with 

stakeholders in the section 404 program to provide for an effective jurisdictional 

determination process. Please refer to the language under paragraph (a)(7) of the 

rule and the preamble that discusses the case-specific analysis required for the 

waters identified in this paragraph, such as prairie potholes.

Minnesota Cities Stormwater Coalition (Doc. #14647)

12.1072 There is a great deal of concern about the timely review of permitting requests 

and jurisdictional status requests to the Corps. The current delays in responses from the 

Corps are already unacceptable. It seems unlikely that funding requests from the Corps 

for additional staff resources to expedite reviews and responses to requests will receive 

favorable response from Congress. Expanding the breadth of coverage under WOTUS 

and adding complex review standards such as “significant nexus” and “subsurface 

hydrologic connection” will only add to the Corps’ workload and exacerbate the delays in 

responses. Please consider the proposed rule language in light of this problem. (p. 6-7)

Agency Response: The agencies will continue to use desktop tools in making 

jurisdictional determinations which can improve efficiency in making such 

determinations. The majority of this information is available for the public’s use; 

these tools can allow for greater consistency as they are currently available and 

accessible data sources. The agencies are developing guidance to facilitate effective 

and efficient implementation of the final rule once it becomes effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public which may result in an initial 

delay in certain jurisdictional determinations but after the initial implementation 

period the jurisdictional determinations are expected to be more efficient.

Lake County Stormwater Management Commission (Doc. #16893)

12.1073 SMC works in close partnership with the USACE-Chicago District under an 

established interagency coordination agreement to assist with jurisdictional 

determinations (“JDs”) in Lake County. Using the USACE’s Jurisdictional 

Determination Form Instructional Guidebook (May 30, 2007), hundreds of JDs have 

been processed in a prompt and consistent manner, with very few instances of complaints 

or appeals by applicants. This is clear evidence that the current system for JDs in Lake 

County is working efficiently and no change is warranted to the current JD guidance. (p. 

2)

Agency Response: The agencies are developing guidance to facilitate effective and 

efficient implementation of the final rule once it becomes effective. This guidance 

will leverage to the maximum extent possible all applicable existing guidance. The 

initial phase of implementing the rule will require education and training for agency 

staff as well as other stakeholders and the regulated public which may result in an

initial delay in certain jurisdictional determinations but after the initial 

implementation period the jurisdictional determinations are expected to be more 

efficient. The Corps will continue to work with stakeholders to identify efficient and 

effective tools to aid in making jurisdictional determinations.
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Western States Water Council (Doc. #9842)

12.1074 While the rule and the related preamble are clear that other waters may be 

jurisdictional, the documents are less clear about how, when, or in which circumstances 

your agencies will perform case-by-case analyses to determine the jurisdictional status of 

these waters. This lack of clarity could be interpreted as implying that all other waters 

are potentially jurisdictional until EPA and the Corps determine otherwise at an 

indeterminate point in time. Such an implication has the potential to put landowners in 

limbo regarding the status of other waters located on their property and runs counter to 

the proposed rule’s stated purposed of increased clarity. It also requires landowners to 

prove a negative should they desire to develop their land, or risk the possibility of 

incurring fines and other penalties if your agencies subsequently determine that the water 

is jurisdictional. 

Instead, the rule should ensure that the applicable permitting agency, such as the Corps 

for Section 404 jurisdictional determinations in most states, bears the burden of 

determining the jurisdictional status of other waters in a timely manner. To help achieve 

this goal, the rule should provide a specific deadline by which the applicable agency must 

make a jurisdictional determination for other waters after it receives a jurisdictional 

determination request from a landowner. 

The WSWC urges your agencies to work with the WSWC and through the aboverequested state-federal workgroup to determine a reasonable timeframe for jurisdictional 

determinations regarding other waters and to address any other issues associated with this 

proposal, including possible consequences and remedies in those situations where the 

permitting agency does not meet the specified deadline. The WSWC also proposes 180 

days as an initial, possible starting point for discussions regarding the time period for 

your agencies’ other waters determinations. (p. 4)

Agency Response: The final rule has been modified from the proposed rule in an 

effort to improve clarity and provide additional “bright lines” for the agencies and 

the regulated public to understand which waters are and are not jurisdictional and 

which waters require a case-specific significant nexus determination. All waters 

meeting the definition of (a) (1)-(6) waters do not require a case-specific significant 

nexus determination and are jurisdictional by rule. Only waters that fall into the 

(a)(7) or (a)(8) categories require a case-specific significant nexus determination. 

The agencies are developing guidance to facilitate effective and efficient 

implementation of the final rule once it becomes effective. 

The agencies will continue to provide a jurisdictional determination at the request of 

a landowner. There are two types of jurisdictional determinations; preliminary 

jurisdictional determinations and approved jurisdictional determinations. 

Preliminary jurisdictional determinations indicate which waters on a property may 

be waters of the U.S., presume all waters on a property are jurisdictional, are not 

legally binding instruments, and enable a landowner to set aside the issue of 

jurisdiction and move directly into the permit evaluation phase of the process. 

Preliminary jurisdictional determinations cannot be used to decline jurisdiction and 

are generally more expedient than approved jurisdictional determinations. 

Approved jurisdictional determinations are the official Corps determination that 
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679

jurisdictional “waters of the United States,” or “navigable waters of the United 

States,” or both, are either present or absent on a particular site. An approved JD 

precisely identifies the limits of those waters on the project site determined to be 

jurisdictional under the Clean Water Act/Rivers and Harbors Act.

The Corps will continue to provide the option to the landowner for both approved 

and preliminary jurisdictional determinations. The agencies note that the final rule 

provides for certain categories of waters that are jurisdictional by rule, which will 

result in a more efficient process. There is not expected to be a required metric for 

completion of a jurisdictional determination, which can be dependent on a variety of 

factors including climate and weather patterns.

Colorado Water Congress Federal Affairs Committee (Doc. #14569)

12.1075 As jurisdiction will now be established for an entire category of “similarly 

situated waters,” it will be necessary for interested parties, e.g., water utilities and 

conservation and conservancy districts, to monitor and actively participate in, each 

jurisdictional determination in each and every basin wherein they do business or may do 

business in the future. This is the case because though they may have no intent to ever 

engage in dredge and fill activities or point source discharge activities that impact the 

particular “other water” that may have precipitated the regional examination, once that 

determination is made, the entire region/basin will become “federalized” and they will 

bear the consequences of that determination at such time as one of their projects is ready 

to proceed. (p. 5)

Agency Response: The agencies are developing guidance to facilitate effective and 

efficient implementation of the final rule once it becomes effective. The preamble 

contains pertinent information on case-specific significant nexus determination 

discussions under (a)(7) and (a)(8) waters that is pertinent to the concerns 

mentioned here. A jurisdictional determination is made on a case-by-case basis 

when requested by a landowner; the agencies do not complete determinations 

absent a request. Although waters outside the landowner’s review area may be 

considered in a significant nexus determination the jurisdictional determination is 

specific only to waters in the landowner’s review area. Previous jurisdictional 

determinations for (a)(7) and (a)(8) waters made in the single point of entry 

watershed may be used in future jurisdictional determinations in the same single 

point of entry watershed.

Utility Water Act Group (Doc. #15016)

12.1076 The Proposed Rule leaves key terms of art like “floodplain,” “riparian area” and 

“hydrologic connection” to the Agencies’ best professional judgment. Id. at 22,208 col. 3. 

This continuation of the use of agency discretion to designate WOTUS and lack of clarity 

increase the chance that, if a project proponent makes a good faith determination on its 

own, it could be opening itself up to later re-evaluation of the determination by the 

Agencies, or even citizen suits.257 The Agencies have not even identified what the due 

 

257 The risk of Agency flip-flopping on the jurisdictional status of given features is not a hypothetical threat, but an 

established reality. See supra pp. 25-26. [p. 35-36]
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diligence standard would be for an applicant, short of going to the Agencies for the “best 

professional judgment” to avoid enforcement. (p. 89)

Agency Response: The agencies have revised the definition of “neighboring” 

under adjacent (a)(6) waters in an effort to provide more of a “bright line” to 

reduce the “burden of proof” on both the agencies and the regulated public. Waters 

must meet the confines of the definitions in order to be jurisdictional by rule as the 

agencies have determined that such characteristics must be met in order to 

demonstrate that the waters have the required significant nexus. See the definitions 

in paragraph (c) of the final rule for further clarification and the preamble for 

additional discussion about the terms used in the final rule. The final rule has been 

revised to reflect concerns received about the proposed rule, including the use of 

terms such as “floodplain.” 

American Electric Power, Inc. (Doc. #15079)

12.1077 Application of the significant nexus test under the proposal serves only to expand 

the universe of case-by-case determinations that the agencies would be required to make. 

AEP’s experience, as is that of most of the regulated community, is that the Corps of 

Engineers is severely understaffed and unable to make timely determinations of 

jurisdiction, much less process resulting individual permit applications, under the current 

regulatory guidance. The proposed rule only serves to add scenarios which will require 

case-by-case, on-site surveys and reviews in order to determine whether the water feature 

is jurisdictional. Any potential “clarification” will not offset this increase in workload 

associated with significant nexus determinations for adjacent waters and other waters that 

would now be subject to this test. (p. 5)

Agency Response: The final rule has been modified from the proposed rule to 

improve clarity and provide additional “bright lines” for the agencies and the 

regulated public to understand which waters are and are not jurisdictional by rule. 

Additionally, the rule has been changed to reduce the waters upon which a casespecific significant nexus determination can be required; thus, reducing the 

circumstances under which such evaluations will occur. 

The agencies are developing guidance to facilitate effective and efficient 

implementation of the final rule once it becomes effective. Additionally, the Corps 

will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 in the implementation of the final rule 

to make the process predictable, efficient, and effective. 

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

12.1078 The Proposed Rule would increase the efforts needed to delineate potential waters 

of the United States, resulting in increased costs and delays for nearly every project 

involving earth disturbance. Given the extensive water resources in Pennsylvania, costs 

and delays would be associated with evaluating the expanded view of jurisdictional 

waters to determine whether a jurisdictional water would be impacted by an activity. For 

example, the Proposed Rule considers jurisdictional streams to continue even though they 
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681

have gone underground for an unspecified period of time.258 Therefore, qualified 

professionals would need to evaluate a larger up gradient area to determine whether a 

connection to jurisdictional water exists. Similarly, water that is connected to a 

jurisdictional water by a non-jurisdictional water could still be considered to be 

jurisdictional because of EPA’s new notion of “significant nexus” under the Proposed 

Rule. Therefore, professionals would need to evaluate not only water connected to the 

jurisdictional water but also all waters up gradient and down gradient from it. In 

addition, wetlands that are physically isolated (i.e., currently non-jurisdictional) could be 

considered to be jurisdictional under the Proposed Rule because they are within the 

riparian area of a PADEP-designated stream. In all, professionals would no longer be 

able to walk the limit of disturbance and reasonable buffer areas to identify jurisdictional 

resources and impacts. Instead, they will need to assess a much larger area to determine 

whether surface or subsurface hydrologic connections exist, whether a bed/bank exists 

upstream or downstream from a tributary, or whether a significant nexus exists with an 

“other water” when considered in combination with similarly situated waters within the 

same region. (p. 8)

Agency Response: As revised the final rule provides additional clarity regarding 

waters that are considered jurisdictional by rule and waters that may require a 

case-specific significant nexus determination. Those waters requiring a case-specific 

significant nexus evaluation are limited to two categories: (a)(7) and (a)(8), and to 

limited circumstances within those categories. The best available information will 

be used when making a determination. This may include watershed data that 

enable staff to use their best professional judgment with information provided by 

the landowner to make jurisdictional calls. 

See the preamble section on “Tributaries” for further discussion on the 

characteristics required to meet the definition of a tributary. All tributaries are 

jurisdictional by rule and have been determined to have a significant nexus to the 

(a)(1) to (a)(3) waters. Under the 2003 and 2008 guidance documents, the agencies 

had to determine whether a potential tributary connects to the downstream 

tributary network in order to determine to which water the tributary flows or 

whether the tributary is “isolated.” This aspect remains under this final rule with 

the requirement that the tributary contributes flow to the downstream (a)(1) to 

(a)(3) waters. In addition, tributaries could have sections that went underground 

and were connected via shallow subsurface flow under those guidance documents. 

The agencies are experienced in making such determinations and will continue the 

practice as described in the final rule. 

Although waters outside the landowner’s review area may be considered in a 

significant nexus determination the jurisdictional determination is specific to waters 

on the landowner’s review area. Previous jurisdictional determinations for (a)(7) 

and (a)(8) waters made in the single point of entry watershed may be used in future 

jurisdictional determinations in the same single point of entry watershed.

 

258 See 79 Fed. Reg. 22199 for additional examples.
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12.1079 PIOGA requests clarification and limitation of the water bodies that would be 

considered to be “other waters.” (p. 17)

All waters meeting the definition of (a)(1)-(6) waters do not require a case-specific 

significant nexus determination. These waters are jurisdictional by rule. Only 

waters that fall into the (a)(7) or (a)(8) categories will require a case-specific 

significant nexus determination. Any water body not identified in (a)(1)-(8) is NOT a 

water of the U.S., even if there is not a specific exclusion in paragraph (b) that 

describes that particular water body. Please refer to rule text and preamble for the 

discussion of waters that require a case-specific significant nexus determination.

Humboldt River Basin Water Authority (Doc. #15229)

12.1080 The proposed rule allows the Corps of Engineers field staff to make jurisdictional 

determinations based on “desk-top” studies without gathering site-specific information, 

which will likely lead to arbitrary and inconsistent determinations by field staff. (p. 3)

Agency Response: Approved JDs that identify the limits of waters of the United 

States may be based on site visits or desktop reviews. The agencies have been using 

remote sensing and desktop tools to delineate tributaries for many years where data 

from the field are unavailable or a field visit is not possible. Desktop reviews are 

sufficient in cases where the district has a high degree of confidence in the 

information used to identify the limits of jurisdictional waters. For example, desktop 

reviews may be based on detailed delineation reports prepared by professional 

wetland consultants. The level of mapping precision for an approved JD that 

identifies the limits of waters of the United States is at the discretion of the district. 

In some cases, districts may need to require professional surveys of jurisdictional 

boundaries, but in other cases, other mapping techniques may be adequate. See the

preamble for further discussion on desktop tools in the “Tributary” section. In 

addition, desktop tools are critical in circumstances where physical characteristics 

waters are absent in the field, often due to unpermitted alteration of waters. The 

majority of this information is available for the public’s use; these tools can allow 

for greater consistency with currently available and accessible data sources.

The agencies only complete jurisdictional determinations in response to a request 

from a landowner.

Washington County Water Conservancy District (Doc. #15536)

12.1081 Emergency Response Activities. The expanded scope of the Proposed Rule will 

result in delayed responses to emergency situations such as fire, floods, and drought. To 

minimize such delays, the Agencies should authorize an expedited review process for 

Jurisdictional Determinations associated with post-fire repair and replacement and with 

emergency activities undertaken in response to drought or floods. (p. 32)

Agency Response: The Corps regulations at 33 CFR part 325.2(3)(4) define an 

“emergency” as “a situation which would result in an unacceptable hazard to life, a 

significant loss of property, or an immediate, unforeseen, and significant economic 

hardship if corrective action requiring a permit is not undertaken within a time 

period less than the normal time needed to process the application under standard 

procedures.” In emergency situations, Corps Division Engineers, in coordination 
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with the Corps District Engineers, are authorized to approve special processing 

procedures to expedite permit decisions. The Corps also uses alternative permitting 

procedures, such as general permits and letters of permission, when appropriate, to 

expedite processing of permit applications for emergencies. Certain nationwide 

permits do not require pre-construction notification and such activities can be 

completed without notification as long as they comply with the terms and conditions 

of such permits. In addition, certain discharges of dredged and/or fill material are 

exempt from regulation under section 404(f)(1)(b) under the Clean Water Act that 

are “for the purpose of maintenance, including emergency reconstruction.” An 

important note is that all permit applications do not require jurisdictional 

determinations, and Regulatory Guidance Letter 08-02 provides for Preliminary 

Jurisdictional Determinations, which are generally more expeditious than Approved 

Jurisdictional Determinations.

East Kentucky Power Cooperative (Doc. #15402)

12.1082 EKPC is concerned that case-by-case basis floodplain determinations based upon 

the agencies best professional judgment for significant nexus evaluations only brings 

greater confusion to application of jurisdiction. EKPC recommends continued use of the 

FEMA 100-year floodplain designations in performing significant nexus determinations. 

(p. 1)

Agency Response: The preamble section on “Adjacent Waters” includes a 

discussion on the term “floodplain” and the use of the FEMA 100-year floodplain in 

implementing the definition of “neighboring.” See the rule text under paragraph (c) 

for the definition of “significant nexus” and the preamble section on the “CaseSpecific” waters requiring a case-specific significant nexus determinations and the 

factors to be used in making such determination. 

Tucson Electric Power Company, UNS Energy Corporation (Doc. #19561)

12.1083 Include a process flow chart, agency processing time-line, and standard operating 

procedures for completing a jurisdictional determination of WUS in the final rule. (p. 4)

Agency Response: The final rule has been modified from the proposed rule in an 

effort to improve clarity and provide additional “bright lines” for the agencies and 

the regulated public to understand which waters are and are not jurisdictional and 

which waters require a case-specific significant nexus determination. The agencies 

are developing guidance to facilitate effective and efficient implementation of the 

final rule once it becomes effective. The final rule provides for certain categories of 

waters that are jurisdictional by rule, which will result in a more efficient process. 

The Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process predictable, efficient, and effective; this may include flowcharts of the process. There is not expected to be a required metric for completion 

of a jurisdictional determination, which can be dependent on a variety of factors 

including climate and weather patterns.
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12.1084 Include a process flow chart and agency processing time-line, list of information 

requirements and/or standard operation procedures for completing a “significant nexus”

evaluation in the final rule. (p. 4)

Agency Response: The final rule has been modified from the proposed rule in an 

effort to improve clarity and provide additional “bright lines” for the agencies and 

the regulated public to understand which waters are and are not jurisdictional and 

which waters require a case-specific significant nexus determination. The agencies 

are developing guidance to facilitate effective and efficient implementation of the 

final rule once it becomes effective. The agencies note that the final rule provides 

for certain categories of waters that are jurisdictional by rule, which will result in a 

more efficient process. The Corps will develop the tools necessary to assist its staff 

with the jurisdictional determination process specific to section 404 during in the 

implementation of the final rule to make the process predictable, efficient, and 

effective. There is not expected to be a required metric for completion of a 

jurisdictional determination, which can be dependent on a variety of factors 

including climate and weather patterns.

12.1085 Include in the final rule a directive that directs the agencies to implement a 

comprehensive, practical (hands-on), training program for agency regulatory personnel, 

consultants, and stakeholders, so they all know exactly how to identify and delineate 

WUS and apply the rule consistently. (p. 4)

Agency Response: The final rule has been modified from the proposed rule in an 

effort to improve clarity and provide additional “bright lines” for the agencies and 

the regulated public to understand which waters are and are not jurisdictional and 

which waters require a case-specific significant nexus determination. The agencies 

are developing guidance to facilitate effective and efficient implementation of the 

final rule once it becomes effective. The Corps intends to provide field-based 

training for their districts and is investigating joint agency training opportunities 

with EPA and NRCS. The final rule provides for certain categories of waters that 

are jurisdictional by rule, which will result in a more efficient process. The Corps 

will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process predictable, efficient, and effective.

12.1086 Define a ‘bright line” or regionally-specific metrics that identify the limit of CWA 

jurisdiction over surface water resources. (p. 4)

Agency Response: The final rule has been modified from the proposed rule in an 

effort to improve clarity and provide additional “bright lines” for the agencies and 

the regulated public to understand which waters are and are not jurisdictional and 

which waters require a case-specific significant nexus determination. Similar to 

other regulations, the rule is derived from science and judicial positions and 

ultimately reflective of Administration policy decisions. 

The agencies recognize that there are variations that occur in geography, hydrology, 

climate, etc., which affect jurisdictional determinations. The initial phase of 

implementing the rule will require education and training for agency staff as well as 

other stakeholders and the regulated public. This training will necessarily include 
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685

regionally-based components to ensure consistent and efficient implementation of 

the rule appropriately tailored to reflect the natural environment of a specific 

ecoregion. 

12.1087 Provide a list of waters that are jurisdictional and a list of waters that are not 

jurisdictional. (p. 4)

Agency Response: All jurisdictional determinations are made on a case-by-case 

basis when requested by a landowner. The Corps does not complete a jurisdictional 

determination absent such a request, nor does it have the resources to determine 

which waters are jurisdictional and not jurisdictional in the entire United States. 

Moreover, the Corps does not have the authority to trespass on private lands to 

determine jurisdiction if not requested by that landowner. Most Corps Districts 

maintain a list of waters that are considered navigable waters under Section 10 of 

the Rivers and Harbors Act, which may be informative with respect to identifying 

traditionally navigable waters.

Ducks Unlimited (Doc. #11014)

12.1088 At the intersection of our comments above with respect to “clarity, certainty, and 

predictability” and the encouragement to broadly apply a “weight of evidence” approach, 

is the issue of predictability. In the end, a rule will only be effective if it is not only clear, 

founded in science, and consistent with the existing judicial record, but it must also be 

realistic from the standpoint of what can be pragmatically accomplished, both 

administratively and scientifically. 

Many of the strongest pieces of research that provide the strongest and most compelling 

evidence regarding significant connectivity took years to conduct. That is the nature of 

science. Most studies involved a relatively few wetlands, or were otherwise limited in 

their geographic scope while nevertheless providing some important, broadly applicable 

information, useful and applicable within the “weight of evidence” approach.

Against those scientific realities as a backdrop, the net result of the proposed rule is that it 

seems to place a heavy reliance on the “case-specific analyses” of “other waters.” In the 

proposed rule’s current form, it appears the vast majority of the surface area of the U.S. 

would fall within watersheds that would require case-specific analyses to determine 

jurisdiction for the multitude of wetlands occurring within these areas. Therefore, being 

aware of the staffing, budget, and other administrative constraints and realities that the 

agencies face today and anticipate for the foreseeable future, we must seriously question 

the pragmatism of some aspects of the proposed rule, particularly those related to “other 

waters.” And in a related way, although science-based case-specific analyses may sound 

appealing in terms of their ability to be focused on specific wetlands, watersheds, and/or 

ecoregions, such science is both expensive and time-consuming, sometimes requiring 

years to conduct a scientifically sound and accurate analysis of a situation. We must 

again, therefore, question the practicality of a rule that would place an increasing 

emphasis on requiring these kinds of costly, time-consuming analyses for a high 

proportion of the Nation’s waters within a regulatory framework that desires certainty, 

predictability, and administrative efficiency and timeliness. Thus, as the agencies 

evaluate comments and develop the final rule, we strongly encourage them to place 

greater weight on this criterion of administrative and scientific “pragmatism.” Later in 
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686

our comments we will offer suggestions, such as a priori analysis based on existing 

science and using a “weight of the evidence” approach of major categories of “other 

waters” and ecoregions, that we believe will be not only more pragmatic to apply and 

administer, but will also go a long way toward providing significantly increased clarity 

and certainty for all stakeholders. (p. 9-10)

Agency Response: The agencies acknowledge the author’s comments concerning 

scientific and administrative approach. The final rule has been modified from the 

proposed rule in an effort to improve clarity and provide additional “bright lines” 

for the agencies and the regulated public to understand which waters are and are 

not jurisdictional and which waters require a case-specific significant nexus 

determination. Similar to other regulations, the rule is derived from science and 

judicial positions and ultimately reflective of Administration policy decisions. 

The agencies recognize that there are variations that occur in geography, hydrology, 

climate, etc., which affect jurisdictional determinations. The initial phase of 

implementing the rule will require education and training for agency staff as well as 

other stakeholders and the regulated public. This training will necessarily include 

regionally-based components to ensure consistent and efficient implementation of 

the rule appropriately tailored to reflect the natural environment of a specific 

ecoregion.

The agencies are developing guidance to facilitate effective and efficient 

implementation of the final rule once it becomes effective. The Corps intends to 

provide field-based training for their districts and is investigating joint agency 

training opportunities with EPA and NRCS. The final rule provides for certain 

categories of waters that are jurisdictional by rule, which will result in a more 

efficient process. The Corps will develop the tools necessary to assist its staff with 

the jurisdictional determination process specific to section 404 in the 

implementation of the final rule to make the process predictable, efficient, and 

effective. 

See the preamble for additional discussion on the case-specific significant nexus 

determinations and the factors to consider in making such determinations.

12.1089 Is it scientifically and administratively efficient and pragmatic? While providing 

certainty and clarity and seeking to provide a science-based limit to jurisdiction, the final 

rule must also be pragmatic from both administrative and scientific perspectives. We 

suggest that this will be greatly aided by using a “weight of the evidence” approach to the 

science and processes incorporated within the final rule. (p. 74)

Agency Response: See response above. The agencies acknowledge the author’s 

comments concerning scientific and administrative approach. The final rule has 

been modified from the proposed rule in an effort to improve clarity and provide 

additional “bright lines” for the agencies and the regulated public to understand 

which waters are and are not jurisdictional and which waters require a case-specific 

significant nexus determination. Similar to other regulations, the rule is derived 

from science and judicial positions and ultimately reflective of Administration 

policy decisions.
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Western Resource Advocates (Doc. #16460)

12.1090 With the rule making clear jurisdictional determinations for (a)(5) and (6) waters, 

WRA believes that both the agencies and regulated entities will have to devote fewer 

resources to jurisdictional determinations over-all and therefore have a relatively greater 

capacity to address this more limited group of jurisdictional questions with the warranted

thoroughness. (p. 21)

Agency Response: The agencies note that the final rule provides for certain 

categories of waters that are jurisdictional by rule, which will result in a more 

efficient process. The Corps will develop the tools necessary to assist its staff with 

the jurisdictional determination process specific to section 404 in the 

implementation of the final rule to make the process predictable, efficient, and 

effective. See the preamble for additional discussion on the case-specific significant 

nexus determinations and the factors to consider in making such determinations.

Association of State Floodplain Managers (Doc. #19452)

12.1091 In order to minimize regulatory delays associated with a significant nexus 

determination, or with distinguishing between regulated tributaries and unregulated 

ditches where such a distinction is unclear, we recommended continued use of 

preliminary jurisdictional determinations (JD’s). This process allows a landowner to 

assume that jurisdictional waters “may be” present on a site, and to move directly to a 

permitting process and avoid the delays involved with obtaining a formal JD, especially 

where general permits are applicable. (p. 8)

Agency Response: There are two types of jurisdictional determinations; 

preliminary and approved jurisdictional determinations. Preliminary jurisdictional 

determinations indicate which waters on a property may be waters of the U.S., 

presume all waters on a property are jurisdictional, are not legally binding 

instruments, and enable a landowner to set aside the issue of jurisdiction and move 

directly into the permit evaluation phase of the process. Preliminary jurisdictional 

determinations cannot be used to decline jurisdiction and are generally more 

expedient than approved jurisdictional determinations. Approved jurisdictional 

determinations are the official Corps determination that jurisdictional “waters of 

the United States,” or “navigable waters of the United States,” or both, are either 

present or absent on a particular site. An approved JD precisely identifies the limits 

of those waters on the project site determined to be jurisdictional under the Clean 

Water Act/Rivers and Harbors Act. The majority of jurisdictional determinations 

completed by the Corps are preliminary. 

Not every permit application requires a jurisdictional determination. The Corps 

will continue to provide the option to the landowner for both approved and 

preliminary jurisdictional determinations. 

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

12.1092 Many constituents claim that the proposed rule adds vague terms and undefined 

concepts to the Clean Water Act regulations. You claim the rule improves clarity and 

certainty.
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688

a. Do you believe that it is less likely that businesses will seek jurisdictional 

determinations for all potential activities as your economic analysis appears to 

assume?

b. If it is less likely, is that because fewer areas or covered? Or is it because under this 

rule more places are automatically covered? (p. 11)

Agency Response: The final rule was developed to increase CWA program 

predictability and consistency by increasing clarity as to the scope of “waters of the 

United States” covered by the Act. Many definitions for the first time are clarified. 

The final rule provides for certain categories of waters that are jurisdictional by 

rule, which will result in a more efficient process. See the updated Economic 

Analysis for additional discussion regarding changes in jurisdiction.

12.4.3 Field Indicators

Specific Comments

ERO Resources Corporation (Doc. #14914)

12.1093 The arid West (as defined by the Corps and adopted for these comments) consists 

of all or portions of 12 states: Arizona, California, Colorado, Idaho, Montana, Nevada, 

New Mexico, Oregon, Texas, Utah, Washington, and Wyoming (Corps 2008). The 

Corps uses the same description for the arid West in their manual on delineating the 

OHWM in the arid West (Lichvar and McColley 2008). The Corps has obviously spent 

considerable time, research, and funds to provide guidance on determining the 

jurisdictional features of waters and wetlands in the arid West, recognizing how different 

these resources are in the arid West relative to other parts of the U.S. The proposed rule 

also needs to recognize these differences. (p. 12)

Agency Response: The proposed rule does not change the use or interpretation of 

the important technical resources cited in the comment. The agencies will continue 

to use the identified manuals for delineating wetlands and OHWM in the arid west.

12.1094 It is also important to note that drainages in the arid West can have a mix of 

ephemeral and intermittent characteristics, which further add to their variability and the 

need for a case-by-case assessment to determine their jurisdictional status. Many 

intermittent drainages have reaches with shallow ground water levels that seasonally 

contribute flow to only a reach of the drainage, which can then be separated by a dry 

ephemeral reach. In the arid West, it is not uncommon to have intermittent drainages 

with scattered reaches of seasonal or sometimes perennial pools of water and/or wetlands 

fed by ground water seeps separated by dry ephemeral reaches. As the lengths of dry 

ephemeral reaches increase between the intermittent reaches, the potential decreases for 

seasonal flows to connect with a WUS and/or for affecting the chemical, physical, or 

biological integrity of a WUS, as discussed above for discontinuous features. (p. 13)

Agency Response: As further discussed in the Agency summary response of the 

Tributaries -- Relevance of Flow Regime section 8.1.1 of this Response To 

Comments document, the proposed rule defined “tributary” as a water physically 
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characterized by the presence of a bed and banks and an ordinary high water mark, 

which contributes flow either directly or through another water to a traditional 

navigable water, interstate water, or territorial sea. The proposed definition relied 

on these physical characteristics rather than a particular flow regime to identify 

tributaries with a significant nexus. The final rule is similar to the proposal, and its 

preamble indicates that the scientific literature supports a conclusion that waters 

meeting the definition of “tributary,” either individually or in combination have a 

significant nexus or thus are jurisdictional per se. Furthermore the agencies have 

determined that the presence of sufficient flow to form bed and banks and another 

indicator of OHWM is also sufficient to support status as a similarly situated class 

of waters with a significant nexus.

12.1095 Physical Characteristics. Several physical characteristics distinguish ephemeral 

and intermittent drainages in the arid West in addition to the Corps’ definitions above. 

The most obvious visible difference that frequently distinguishes ephemeral drainages in 

the arid West is the lack of difference in vegetation associated with the drainage 

compared with the surrounding landscape (Photos 1, 3, 4, and 6, Appendix A). 

Vegetation in the arid West responds dramatically to moisture. However, because there 

is rarely reliable moisture associated with ephemeral drainages in the arid West, there are 

typically no or few differences in species composition or plant density associated with 

ephemeral drainages. Differences in plant species composition and density in the arid 

uplands and along ephemeral drainages are typically more a function of differences in 

geology, soil type, aspect, and elevation rather than the location of vegetation in relation 

to the ephemeral drainage.

Beds and banks and OHWMs can be difficult to discern, are often discontinuous, and can 

be almost meaningless (e.g., an OHWM a few inches deep and a bed and banks along a 

drainage a few feet wide). The Corps manual on delineating the OHWM in the arid West 

(Lichvar and McColley 2008) notes that in the arid West region of the U.S., waters are 

variable and include ephemeral/intermittent and perennial channel forms. The most 

problematic OHWM delineations are associated with the commonly occurring 

ephemeral/intermittent channel forms that dominate the arid West landscape. Other than 

the topographic feature of the drainage, there is frequently little to distinguish an 

ephemeral drainage from the surrounding landscape in the arid West, particularly 

erosional features. Intermittent drainages in the arid West have ground water levels that 

are shallow enough to support vegetation (e.g., phreatophytes) that differs from and/or 

occurs more densely than the surrounding landscape (Photos 9 and 10, Appendix A). 

However, other physical features can be similar to ephemeral drainages because ground 

water rarely contributes sufficient flow to form an OHWM and/or a bed and banks; 

therefore, as with ephemeral drainages, these features are still formed by infrequent 

precipitation events. (p. 13-14)

Agency Response: The final rule does not change the use or interpretation of the 

important technical resources cited in the comment. The agencies will continue to 

use the identified manuals for delineating wetlands and OHWM in the arid west. 

Furthermore the agencies have determined that the presence of sufficient flow to 

form bed and banks and another indicator of OHWM is also sufficient to support 

status as a similarly situated class of waters with a significant nexus. 
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12.1096 Hydrological Characteristics. The hydrology associated with ephemeral and 

intermittent drainages was previously described as part of the Corps’ definition of 

ephemeral and intermittent streams. Hydrology differentiates ephemeral and intermittent 

drainages from rivers and perennial streams and determines the resources associated with 

these drainage types. In the arid West, infrequent and inconsistent precipitation events 

and lack of shallow ground water associated with ephemeral drainages typically do not 

support wetlands within or adjacent to the drainage. (p. 14)

Agency Response: Please see summary response 8.1.1.

Iowa Farm Bureau Federation and American Farm Bureau Federation (Doc. #7633)

12.1097 The proposed rule would define a “tributary” as “a water physically characterized 

by the presence of a bed and banks and ordinary high water mark, as defined at 33 CFR 

328.3(e), which contributes flow, either directly or through another water, to a[traditional 

navigable water or impoundment]....” Although the rule would describe a tributary as “a 

water,” the actual water flow may be only “ephemeral” – i.e., only when it rains. EPA 

explains that: “A bed and banks and ordinary high water mark (OHWM) generally are 

physical indicators of water flow. These physical indicators can be created by ephemeral, 

intermittent, and perennial flows.”

EPA also says: “A tributary is a longitudinal surface feature that results from directional 

surface water movement and sediment dynamics demonstrated by the presence of bed

and banks, bottom and lateral boundaries, or other indicators of OHWM.” An “ordinary 

high water mark,” according to EPA, is a line “established by the fluctuations of water 

and indicated by physical characteristics such as a clear, natural line impressed on the 

banks, shelving, changes in the character of soil, destruction of terrestrial vegetation, the 

presence of litter and debris, or other appropriate means that consider the characteristics 

of the surrounding areas.”

Turning to the feature on my land, shown on the photograph, a subtle channel is clearly 

visible, where water flows in response to rainfall, leaving marks on the land created by 

flowing water. My concern is that while to me, this is just a low area in my farm field –

this feature appears to fit the description of a “tributary” in the proposed rule. You 

looked at the photo, however, and indicated that the feature looks like an “erosional 

feature” that would not be regulated under the rule. 

While I am pleased to hear that you do not see the low area in my field as a “tributary,” I 

am concerned that staff and enforcement officials implementing the rule may see it 

differently. I am also concerned that features such as these exist on thousands of farm 

fields across the countryside. The farmers who own and work these lands would be hard 

pressed to determine whether features like these are “tributaries,” as described by EPA, 

or “erosional features.” The preamble to the proposed rule itself points out the difficulty 

of distinguishing between non jurisdictional “erosional features” and jurisdictional 

“ephemeral tributaries.” See 79 Fed. Reg. at 22,218-19 (describing gullies, rills, 

ephemeral streams, and swales). The difference seems to be in the eye of the beholder –

leaving farmers and other landowners vulnerable to enormous penalties if an agency 

inspector, citizen enforcer, or judge later sees it differently. This is not “certainty” or 

“clarity” from the farmer’s perspective – it is doubt, ambiguity, and risk. (p. 1-2)
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Agency Response: Jurisdictional determinations must be done on a case by case 

basis and can be requested from your local Corps District Office. The final rule has 

been developed to provide clarity to the public and help increase the consistency of 

the regulatory community when identifying “Waters of the United States.” The 

final rule continues the practice of using the OHWM to identify the lateral extent of 

jurisdiction for tributaries but also provides additional clarity by defining 

tributaries. To qualify as a tributary a feature must have both a bed and banks and 

another indicator of OHWM. Given the long history of identifying OHWM in the 

field and continued efforts to provide more technical tools for identifying OHWM, 

including bed and banks, the consistency of identifying tributaries will continue to 

improve. 

Michigan Farm Bureau (Doc. #10196)

12.1098 EPA and USACE’s assurance that they will exclude gullies and rills from 

regulation means little in the field. Staff has wide latitude to view features on the 

landscape as having a “bed, bank and ordinary high water mark” and therefore qualifying 

as tributaries under the Act, regardless of those features’ appearance due only to flood 

events that create the excluded gullies and rills. The extension of jurisdiction to so many 

additional “tributaries” by virtue of their tenuous connectivity to jurisdictional waters 

creates this dilemma by putting field staff much further up the landscape than previously 

allowed under actual regulatory authority. (p. 9)

Agency Response: Jurisdictional determinations must be done on a case by case 

basis and can be requested from your local Corps District Office. The final rule has 

been developed to provide clarity to the public and help increase the consistency of 

the regulatory community when identifying “Waters of the United States.” The 

final rule continues the practice of using the OHWM to identify the lateral extent of 

jurisdiction for tributaries but also provides additional clarity by defining 

tributaries. To qualify as a tributary a feature must have both a bed and banks and 

another indicator of OHWM. Given the long history of identifying OHWM in the 

field and continued efforts to provide more technical tools for identifying OHWM, 

including bed and banks, the consistency of identifying tributaries will continue to 

improve. 

Coalition of Renewable Energy Landowner Associations (Doc. #14626)

12.1099 These rules will be enforced and monitored by field agents who in most cases are 

not hydrologists or registered professional engineers. Without protocols and standards of 

practice to determine if a “significant nexus” exists that places the water under federal 

jurisdiction, and thus subject to permitting, there exists the potential for abuse of power 

and outright civil rights violations. (p. 8)

Agency Response: The final rule provides additional clarity to the public and 

regulators by specifically identifying the functions to be considered when evaluating 

significant nexus. They can be found in 33 CFR 328.3(c)(5). 

National Council for Air and Stream Improvement, Inc. (Doc. #13627)

12.1100 Approaches to quantifying physical, chemical and biological connectivity are 

complex due to the diversity of hydrologic systems and therefore “careful attention must 
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692

be given to identifying the most appropriate techniques” when determining connectivity 

(EPA-SAB-15-001, page 15). While the SAB has identified several potential approaches 

to demonstrate connectivity, we caution the Agencies about relying on complex and data 

intensive “graph-theory based” models and indices (e.g., Integral Index of Connectivity, 

Directional Connectivity Index, etc.) to assess the degree of connectivity. Outside of 

academic circles, the practicality, usability, applicability and cost-effectiveness (e.g., for 

data acquisition) of these models are unclear. Furthermore, such complex models and 

indices do not provide much certainty or clarity to regulators in the field or the regulated 

community. Undoubtedly, more basic and applied methodological approaches to 

assessing connectivity are available or could be developed. 

Development of delineation methods and criteria could begin with a focus on practical 

indicators of connectivity such as: (1) distance from a wetland or waterbody to the 

nearest traditional navigable water; and (2) magnitude and duration of water flow from a 

tributary or wetland to the nearest traditional navigable water. Such a practical approach 

would require some effort to define, identify, and delineate the nation’s waters, 

traditional navigable waters, and adjacent wetlands but would be consistent with the 

decades old approach used by the Corps for jurisdictional wetland determinations. (p. 4)

Agency Response: As further discussed in Section 5 of the Response to Comments 

document, the final rule does not establish or adopt specific models or indices for 

evaluating waters subject to a case-specific significant nexus analysis. The agencies 

believe that a determination of the relationship of these waters to traditional 

navigable water, interstate waters, and the territorial seas, and consequently their 

significance to these waters, requires sufficient flexibility to account for the 

variability of conditions across the country and the varied functions that different 

waters provide. The case-specific analysis called for by paragraphs (a)(7) and (a)(8) 

recognizes geographic and hydrologic variability in determining whether one of 

these waters, or a group of these waters, possess a significant nexus with traditional 

navigable waters, interstate waters, or the territorial seas. While the final rule does 

not establish quantitative metrics, it does now identify the specific functions that 

waters can provide that can significantly affect the chemical, physical, or biological 

integrity of traditional navigable waters, interstate waters, and the territorial seas. 

The agencies believe that creating a definitive list of functions to be evaluated 

provides individual regulators who conduct the analysis clear and consistent 

parameters that they will consider during their review in making jurisdictional 

determinations and provides transparency to the regulated public over which 

factors will be considered. The final rule also clarifies that a water may have a 

significant nexus based on a single function alone so long as that function 

contributes significantly to the chemical, physical, or biological integrity of the 

nearest traditional navigable water, interstate water, or the territorial seas. 

Waterkeeper Alliance et al. (Doc. #16413)

12.1101 In addition to the fact that there is no sound legal or scientific basis for adding the 

requirement for an OHWM to the jurisdictional requirements, it is important to note there 

have been extensive problems with interpretation and implementation of the OHWM 

requirement in the CWA Section 404 Program. This issue also demonstrates why the 

OHWM requirement should not be included in the definition of tributary. For example, 
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693

the U.S. General Accounting Office (“GAO”) has noted that the Corps’ definition of 

OHWM is ambiguous, and may be reasonably interpreted differently by competent 

staff.259 For example: 

 The Portland District reported that it was difficult to identify the OHWM, even in 

portions of the Columbia River and that three different staff would likely make 

three different jurisdictional determinations.

 The Philadelphia District reported that identifying OHWMs in the upper reaches 

of watersheds was one of its most difficult challenges, as one progresses 

upstream, the depth of the bed and bank diminishes, and the key indicators of an 

ordinary high water mark gradually disappear.

The GAO also noted that “officials from the Chicago District said that because their 

district was heavily urbanized many channels had been manipulated and contained, often 

in ways that obscured the ordinary high water mark” and that identifying the OHWM in 

the arid West was particularly difficult due to intermittent flow and flooding. There is no 

valid scientific or legal basis for excluding channelized streams, the upper reaches of 

tributaries, or streams in arid regions that lack an OHWM from the definition of “waters 

of the United States.” To the contrary, the need to include and protect these waters is 

well documented through the Connectivity Report and is supported by the SAB Report. 

(p. 33-34)

Agency Response: The final rule continues the longstanding use of OHWM to 

define the lateral extent of jurisdiction, however provides the additional clarity of 

explicitly stating the requirements for identifying the upstream extent of jurisdiction 

as well, see 33 CFR 328.3(c)(3). The Corps and EPA recognize the concerns raised in 

the 2004 GAO report and also the recognize the more than a decade of effort spent 

improving the consistency and rigor of OHWM identifications since that report, see 

http://www.erdc.usace.army.mil/Media/FactSheets/FactSheetArticleView/tabid/9254

/Article/486085/ordinary-high-water-mark-ohwm-research-development-andtraining.aspx. 

The final rule covers, as tributaries, only those features that science tells us function 

as a tributary and that meet the significant nexus test articulated by Justice 

Kennedy. The agencies have determined that the presence of sufficient flow to form 

bed and banks and another indicator of OHWM is also sufficient to support status 

as a similarly situated class of waters with a significant nexus. Features not meeting 

the legal and scientific tests are not jurisdictional under this rule.

Society of American Foresters (Doc. #15075)

12.1102 The Proposal should also include an expanded discussion of the methods that 

could be used to define, identify, and delineate waters, traditional navigable waters, and 

adjacent wetlands. This explanation should be supported by a substantive review of: (1) 

methods that could be developed to quantify connectivity among wetlands, waters, and 

 

259 U.S. General Accounting Office. (Feb. 2004). WATERS AND WETLANDS Corps of Engineers Needs to 

Evaluate Its District Office Practices in Determining Jurisdiction. (GAO Publication No. 04-‐297) (hereinafter 

“GAO Report”) available at http://www.gao.gov/new.items/d04297.pdf
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

694

traditional navigable waters; and (2) criteria that policymakers might select for 

distinguishing significant connections from other de minimis connections. These 

methods and criteria are critical because they are prerequisites for measuring the 

connections among wetlands, waters, and traditional navigable waters that are relevant to 

determining the extent of WOTUS. (p. 4)

Agency Response: The final rule provides additional clarity to the public and 

regulators by specifically identifying the functions to be considered when evaluating 

significant nexus which is supported by the Connectivity report including the 

supporting SAB review. 

As further discussed in Section 5 of the Response to Comments document, the final 

rule does not establish or adopt specific models or indices for evaluating waters 

subject to a case-specific significant nexus analysis. The agencies believe that a 

determination of the relationship of these waters to traditional navigable water, 

interstate waters, and the territorial seas, and consequently their significance to 

these waters, requires sufficient flexibility to account for the variability of conditions 

across the country and the varied functions that different waters provide. The casespecific analysis called for by paragraphs (a)(7) and (a)(8) recognizes geographic 

and hydrologic variability in determining whether one of these waters, or a group of 

these waters, possess a significant nexus with traditional navigable waters, interstate 

waters, or the territorial seas. While the final rule does not establish quantitative 

metrics, it does now identify the specific functions that waters can provide that can 

significantly affect the chemical, physical, or biological integrity of traditional 

navigable waters, interstate waters, and the territorial seas. The agencies believe 

that creating a definitive list of functions to be evaluated provides individual 

regulators who conduct the analysis clear and consistent parameters that they will 

consider during their review in making jurisdictional determinations and provides 

transparency to the regulated public over which factors will be considered. The final 

rule also clarifies that a water may have a significant nexus based on a single 

function alone so long as that function contributes significantly to the chemical, 

physical, or biological integrity of the nearest traditional navigable water, interstate 

water, or the territorial seas. 

12.1103 Water quality standards have been largely established based on expectations and 

needs for larger streams. But smaller headwater streams and other waterbodies, which 

can comprise the majority length of a stream networks, often have very different 

processes and water quality conditions (Ice and Binkley 2003). Therefore, expansion of 

per se WOTUS to include ephemeral headwater streams could confuse existing water 

pollution control measures like state BMP programs. 

For example, dissolved oxygen (DO) concentrations in stream water tends to be high for 

cold streams and rivers (solubility of DO inversely related to water temperature), 

especially if not exposed to high biochemical oxygen demand (BOD) or bottom 

sediment oxygen demand (SOD). But recent research in forest streams finds that, during 

low flow periods, some headwater reaches can exhibit low DO concentrations even with 

cold water temperatures. This is probably due to a preponderance of recently emerged 

hyporheic or groundwater comprising the flow. Natural conditions, such as low gradient 

and high SOD, can also lead to low DO concentrations (Ice and Sugden 2006). These 
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695

conditions are not currently fully recognized in water quality standards, and the 

extension of categorical WOTUS to include ephemeral streams and wetlands has the 

potential to not only expand jurisdictional waters but also lead to inappropriate 

classification of watersheds as impaired. (p. 4-5)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. See summary response 12.2 above. 

12.5. 311 – OIL SPILL PREVENTION PLANS

Summary Response

This action does not change an owner/operator's ability to determine whether there is a 

reasonable expectation that an oil discharge from a facility could reach waters of the U.S. or 

adjoining shorelines, as part an applicability evaluation if the facility's aggregate oil storage 

capacity exceeds the applicable thresholds in Spill Prevention, Control and Countermeasure 

(SPCC) rule at 40 CFR part 112. This determination is a site-specific evaluation by the 

owner/operator and is important consideration in determining whether a facility is subject to the 

SPCC rule. However this determination must exclude man-made features such as existing 

secondary containment structures (dikes or remote impoundments) that may serve to restrain, 

hinder, contain or otherwise prevent an oil discharge to waters of the U.S. See 40 CFR part 

112.1(d)(1)(i). The owner/operator should consider the potential oil pathways once discharged

oil has left the facility, including an evaluation of oil traveling along non-jurisdictional pathways 

(e.g., ditches or other features) and reaching jurisdictional waters. A rain event facilitating this 

transport pathway may be an appropriate consideration. A facility subject to the SPCC rule must 

prepare a plan that addresses: 1) the type of oils and containers at the site; 2) discharge 

prevention measures; 3) discharge and drainage controls, including secondary containment 

features; 4) countermeasures for discharge discovery, response and cleanup; 5) methods for 

disposal or recovered materials; and 6) an appropriate contact/notification list. See 40 CFR part 

112.7(a)(3).

Specific Comments

Allen Boone Humphries Robinson LLP (Doc. #19614)

12.1104 The revised WOTUS definition would require businesses to update and expand 

their Spill Prevention, Control, and Countermeasure (SPCC) Plans under Section 311, 

and their stormwater discharge permits/plans under section402. (p. 6)

Agency Response: This action would not necessarily require facilities that have 

prepared SPCC plans to update these plans outside of the normal 5-year review 

cycle or complete a technical amendment to the plan unless there is a change in 

facility configuration, etc. that affects its potential for an oil discharge to waters to

the U.S. or adjoining shorelines. See 40 CFR part 112.5 in the SPCC rule. The 

owner/operator of a facility that has an SPCC plan in place has already determined 
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696

that there is a "reasonable expectation" of an oil discharge as per 40 CFR part 

112.1(b).

Missouri Association of Municipal Utilities (Doc. #7931)

12.1105 Expansion of requirements for Spill Prevention, Control and Counter Measures: 

Municipal governments often have fleet management services, and in some cases fueling 

facilities which may require the adoption of Spill Prevention, Control and Counter 

Measures (SPCCM). The jurisdictional trigger for these plans is whether oil “could 

reasonably be expected” to discharge into navigable waters. The proposed language 

would leave no doubt that virtually every facility in the state, no matter how far from 

current jurisdictional waters, would be required to implement their own local SPCCM 

plan. (p. 5)

Agency Response: This action does not change an owner/operator's ability to 

determine if there is a reasonable expectation that an oil discharge from a non-farm 

facility could reach waters of the U.S. or adjoining shorelines, if the non-farm 

facility's aggregate oil storage capacity exceeds 1,320 gallons of oil. The 

applicability determination is a site-specific evaluation by the owner/operator and 

may include the evaluation of oil traveling along non-jurisdictional pathways (e.g., 

ditches or other features) and reaching jurisdictional waters. 

County Commissioners Association of Pennsylvania (Doc. #14579)

12.1106 There are at least 13 different places in federal regulations that reference Waters 

of the U.S., either directly or through the definition of “navigable waters”. For instance, 

Part 120 of the CFR, oil spill prevention regulations, requires a permit anytime an 

individual uses equipment or tanks around navigable waters; that permit includes 

requirements for spill prevention kits, training and emergency plans. The term is also 

referenced regarding oil pollution prevention under Part 112, which applies to 

homeowners that have oil tanks near navigable waters, and Part 116 related to hazardous 

substance and planning. CWA Section 311 covers oil spill prevention and preparedness, 

reporting obligations, and response planning requirements that apply to facilities engaged 

in production or storage of oil products based on total volume. In particular, inland nontransportation oil facilities of a certain size that have potential to discharge to navigable 

waters must prepare and implement Spill Prevention, Control, and Countermeasure 

(SPCC) plans.

While these are all important elements of protecting water quality, it does not appear the 

agencies have fully reviewed the far-reaching implications of the proposed definition and 

what the uncertainty it provides will mean in the broader picture. And with the potential 

for civil suits and civil penalties of $7,000 per day for violations of the Clean Water Act 

for individual homeowners, businesses, farmers, governments and others, it is critical that 

the agencies get this definition right and that it is clear and explicit. (p. 8-9)

Agency Response: This action does not change an owner/operator's ability to 

determine if there is a reasonable expectation that an oil discharge from a non-farm 

facility could reach waters of the U.S. or adjoining shorelines, if the non-farm 

facility's aggregate oil storage capacity exceeds 1,320 gallons of oil. Residential 

heating oil tanks are exempted from the SPCC rule, so homeowners would not be 
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697

subject to the SPCC rule, unless they exceed the 1,320-gallon capacity threshold for 

other oils, such as gasoline or diesel fuel. For farms, including farms with a 

residence, the oil capacity threshold has changed; farms should consult the EPA 

factsheet at http://www.epa.gov/emergencies/docs/oil/spcc/spcc_wrrda.pdf. No 

permit is required under the SPCC rule. An owner/operator of a facility subject to 

the SPCC rule is required to prepare and implement an SPCC plan, but the rule 

does not require the plan to be submitted to EPA. Further, the scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

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

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

existing categories such as tributaries.

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

12.1107 Oil storage tanks are currently subject to section 311 spill prevention 

requirements. More stringent requirements will be required under the revised WOTUS 

definition, because a spill can affect a far larger universe of jurisdictional “waters” near 

the facility (ponds, ditches, low lands). (p. 10)

Agency Response: The SPCC regulation at 40 CFR part 112 is facility-based, so 

the determination of applicability is based on the aggregate storage capacity of oil 

storage containers located at the facility and whether there is a reasonable 

expectation that an oil discharge from the facility would reach waters of the U.S. or 

adjoining shorelines. The existence of waters of the U.S. near the facility is an 

important part of applicability consideration under the SPCC rule, but it is a sitespecific determination. The owner/operator of a facility potentially subject to the 

SPCC rule should evaluate the potential pathways for an oil discharge to reach 

waters of the U.S. or adjoining shorelines. Some of these pathways could include 

ditches that may be excluded from the definition (i.e., non-jurisdictional) but 

otherwise serve as a conduit to waters of the U.S. In addition, the scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

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

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

qualifiers on some existing categories such as tributaries.

12.1108 The proposal’s new emphasis upon adjacent waters and natural/manmade ditches 

means that more operations will likely be required to maintain a SPCC plan for the first 

time. Un-diked 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. Under the 

proposed rule, if such catchment basins are within areas subject to periodic flooding, they 

may be adjacent to an “other water,” and SPCC plans could be required to be 

implemented or renewed. (p. 16)

Agency Response: This action does not change an owner/operator's ability to 

determine if there is a reasonable expectation that an oil discharge from a non-farm 

facility could reach waters of the U.S. or adjoining shorelines, if the non-farm 

facility's aggregate oil storage capacity exceeds 1,320 gallons of oil. The 

applicability determination is a site-specific evaluation by the owner/operator and 

may include the evaluation of oil traveling along non-jurisdictional pathways (e.g., 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

698

ditches or other features) and reaching jurisdictional waters. The owner/operator 

may also want to consider the potential for flooding of the facility in the 

applicability determination. The scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations, in 

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

tributaries.

Cooperative Network (Doc. #15184)

12.1109 A vast expansion of the Clean Water Act that will surely result in greater 

compliance obligations. For example, nearly all of our agricultural cooperatives, many 

farmers served by cooperatives, and most of our utility cooperative members store 

quantities of oil that many be subject to 40 CFR 112. As a result of the proposed 

definition of a WOTUS, many more facilities that store oil will become subject to the oil 

pollution prevention regulation. Yet very little will be achieved through greater 

expenditures required to protect intermittent ditches that are not much different than the 

containment and diversionary structures that can be used to contain spilled oil. (p. 2)

Agency Response: This action does not change an owner/operator's ability to 

determine if there is a reasonable expectation of oil to waters of the U.S. or 

adjoining shorelines. For farmers, Section 1049 of the Water Resources Reform and 

Development Act (WRRDA) changed the SPCC threshold in June 2014. This 

change may reduce the number of farmers subject to the SPCC rule. Utility 

cooperatives would still use the 1,320-gallonthreshold, since they may not meet the 

definition of a “farm”. Farm owner/operators should consult the farm factsheet at 

http://www.epa.gov/emergencies/docs/oil/spcc/spcc_wrrda.pdf for more 

information. The scope of regulatory jurisdiction in this rule is narrower than that 

under the existing regulation. Fewer waters will be defined as “waters of the United 

States” under the rule than under the existing regulations, in part because the rule 

puts important qualifiers on some existing categories such as tributaries.

Water Advocacy Coalition (Doc. #17921.1)

12.1110 Under section 311, facilities with oil storage capacity that, due to their location, 

have a potential to discharge to waters of the United States must prepare and implement a 

Spill Prevention, Control, and Countermeasures (“SPCC”) Plan.260 The proposed rule’s 

increased scope to cover ditches and manmade impoundments, as well as all features in 

floodplain and riparian areas, many facilities, particularly in the arid West, would require 

SPCC Plans that were not required before. Facilities that already have SPCC Plans also 

would be affected because many have plans that rely on the use of on-site ditches or 

impoundments to collect spilled oil and prevent it from reaching waters of the United 

States. The proposed rule’s classification of those ditches and impoundments as waters 

of the United States would undermine current spill control plans and vastly expand 

planning, compliance, and cleanup costs. For example, in the western United States, one 

 

260 40 C.F.R. § 112.
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699

major petroleum company predicts that the proposed rule would require a 1,000-fold 

increase in SPCC plans. 

The agencies concede that under the proposed rule there will be an increase in facilities

subject to section 311.261 Yet, to calculate the potential impacts of the proposed rule, 

they simply suppose that perhaps 1,000 facilities that previously questioned CWA 

jurisdiction would now require SPCC plans, and conclude that the cost of that compliance 

would be $11.7 million. They further state that, despite costs, most facilities simply 

chose to comply without regard to whether they otherwise would be required to do so. 

The benefits of this compliance, the agencies state, outweigh any costs.262 The agencies’

suggestion that the cost of the proposed rule on the section 311 program can be estimated 

based on a supposed number of facilities that previously may have questioned CWA 

jurisdiction is wrong. It is unreasonable to assume that there is any reliable correlation 

between the scope of CWA jurisdiction under the expanded definition of waters of the 

United States and operators that may have, in the past, determined, based on any number 

of business factors, to assert that they were not subject to the section 311 program. As 

with the other CWA programs, the agencies have not given adequate consideration to the 

proposed rule’s impacts on the section 311 spill protection program. (p. 81-82)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. Certain ditches and man-made impoundments may not be considered 

waters of the U.S. in this final action. An owner/operator of a non-farm facility that 

stores more than 1,320 gallons of oil in aggregate would need to determine if there is 

a reasonable expectation of a discharge oil to waters of the U.S. or adjoining 

shorelines, and this determination should must exclude man-made features such as 

existing secondary containment structures (dikes or remote impoundments) that 

may serve to restrain, hinder, contain or otherwise prevent an oil discharge to 

waters of the U.S. See 40 CFR part 112.1(d)(1)(i). The Agency included a 

reasonable estimation of the increase in the affected universe and associated costs in 

the RIA for this action. A detailed survey to determine a range of the affected 

universe is beyond the scope of this action.

National Association of Home Builders (Doc. #19540)

12.1111 The Proposed Rule will Result in Increased Clean Water Act Section 311 Spill 

Protection Requirements.

Under CWA Section 311, facilities with oil storage capacity that, due to their location, 

have a potential to discharge to “waters of the United States” must prepare and 

implement a Spill Prevention, Control, and Countermeasures (SPCC) Plan.263 Due to the 

proposed rule’s increased jurisdictional scope covering most ditches and manmade 

impoundments, as well as all features in floodplains and riparian areas, many facilities, 

 

261 Economic Analysis at 29.

262 Id. at 30.

263 40 C.F.R. § 112.
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particularly in the arid West, will need SPCC Plans that did not need them before. 

Facilities that already have SPCC Plans also would be affected because many have plans 

that rely on the use of on-site ditches or impoundments to collect spilled oil and prevent it 

from reaching “waters of the United States.” The proposed rule’s classification of those 

ditches and impoundments as “waters of the United States” would undermine current 

spill control plans and vastly expand planning, compliance, and cleanup costs. 

The Agencies concede that the proposed rule will increase the number of facilities subject 

to CWA Section 311.264 Yet, to calculate the potential impacts, they simply suppose that 

perhaps 1,000 facilities that previously questioned CWA jurisdiction would now require

SPCC plans, and conclude that the cost of that compliance would be $11.7 million. They 

further state that despite costs, most facilities simply chose to comply without regard to 

whether they otherwise would be required to do so. The benefits of this compliance, the 

Agencies state, outweigh any costs.265 The Agencies’ suggestion that the cost of the 

proposed rule on the Section 311 program can be estimated based on a supposed number 

of facilities that previously may have questioned CWA jurisdiction is wrong. It is 

unreasonable to assume that there is any reliable correlation between the scope of CWA 

jurisdiction under the expanded definition of “waters of the United States” and operators 

that may have, in the past, determined, based on any number of business factors, to assert 

that they were not subject to the Section 311 program. As with the other CWA programs, 

the Agencies have not given adequate consideration to the proposed rule’s impacts on the 

Section 311 spill protection program. (p. 127-128)

Agency Response: Please see Response to Comment 12.1106.

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

12.1112 Keeping in mind that EPA’s proposal represents a change to the regulatory 

definition beyond traditional navigable waters (“TNW”), [waters used in interstate for 

foreign commerce, interstate waters and wetlands, and territorial seas] to include: 

tributaries, waters adjacent to TNWs, and “other waters” [wetlands, similarly situated 

waters located in the same region that have a significant nexus to a TNW, ditches, 

ephemeral streams, ponds], wet weather streams, certain ditches, certain basins, 

depressions in the soil, series of ponds or wetlands within a regions, etc., KIOGA has 

researched the particulars of the definitional change relative to common regulatory 

programs to the oil and gas exploration and production industry. The following is a 

description of the conclusions from that research which highlight the agencies’ failure to 

represent the important impacts from this proposal. 

(...) SPCC – Taking into consideration new proposed emphasis upon adjacent waters, 

and natural or manmade ditches KIOGA assessed whether, there are operations, pursuant 

to the proposal, that will now be required to maintain a SPCC plan which previously 

mandated no such duty. 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 

 

264 EPA Economic Analysis at 29. 

265 Id. at 30. 
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701

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. (p. 3)

Agency Response: Oil production facilities that process and store more than 1,320 

gallons of oil and have a reasonable expectation of oil discharge per 40 CFR part 

112.1(b) are required to prepare and implement an SPCC plan. If subject to the 

SPCC rule, these facilities need to comply with secondary containment and drainage 

requirements in 40 CFR part 112.9. The owner/operator of facility may need to 

consider whether oil could be discharged as result of rain events, including flooding 

as part of this determination.

Continental Resources, Inc. (Doc. #14655)

12.1113 Section 311 addresses oil spill prevention and preparedness, spill reporting 

obligations and response planning. The discharge of oil to any water or feature that 

would be jurisdictional under the Proposed Rule is ‘prohibited, Section 311’s 

requirements are applied to facilities engaged in the production or storage of oil. If the 

facility meets the threshold volume requirement and has the potential to discharge into a 

jurisdictional water, it must prepare a Spill Prevention, Control, and Countermeasure 

(SPCC) Plan. In addition to the preparation and maintenance of an SPCC Plan, a number 

of additional requirements are triggered, including secondary containment, integrity 

testing, drainage, routine inspections, security, and training. Some facilities that meet the 

threshold volume requirement may not currently fall under Section 311 because they do 

not have the potential to discharge into a jurisdictional water. The broad expansion of 

what is considered to be jurisdictional under the Proposed Rule will demand that 

facilities-particularly those in arid (western) areas-revise existing SPCC plans. For 

Continental, most, if not all, of its existing SPCC plans will require revisions based on the 

Proposed Rule. And, if a spill does occur in the future, there will be more reporting 

requirements both at the federal and the state level. More important, some Continental 

facilities may require the preparation of FRPs for the first time. FRPs are required if a 

facility could be reasonably expected to cause substantial harm to the environment by 

discharging oil into or on navigable waters. Were the Proposed Rule finalized, EPA 

Regional Administrators might start requiring facilities to prepare FRPs given their 

proximity to newly jurisdictional waters. An FRP is a complex document that would 

require Continental to expend significant effort to prepare the plan and to comply with it. 

See generally 40 C.F.R. §§ 112.20, .21, Appendix F (describing FRP components, 

including: discussion of small, medium, and worst-case discharge scenarios and response 

actions; a description of discharge detection procedures and equipment; and detailed 

implementation plan for response, containment, and disposal). (p. 19-20)

Agency Response: This action does not change an owner/operator's ability to 

determine if there is a reasonable expectation that an oil discharge from a facility 

could reach waters of the U.S., if the facility's aggregate oil storage capacity exceeds 

1,320 gallons of oil. A facility owner/operator may need consider the potential for 

oil to travel overland via sheet flow or via an earthen or concrete channel or enter a 

storm drain and reach waters of the U.S. To be subject to the Facility Response 

Plan (FRP) rule in Subpart D of 40 CFR part 112, an owner/operator would need 

consider higher oil capacity thresholds than the SPCC rule (either 42,000 gallons 
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702

and transfer to/from a vessel or one million gallons or more and meet one or more of 

the substantial harm factors at 40 CFR part 112.20(f)(1)). Once subject to the FRP 

rule, a facility is considered a "substantial harm" facility, and an owner/operator 

would need to prepare and submit an FRP to EPA that details the response actions 

to be implemented in the event of a small, medium or worst case discharge to waters 

of the U.S. or adjoining shorelines from the facility.

Permian Basin Petroleum Association (Doc. #15378)

12.1114 Spill Prevention, Control and Countermeasure Plans (SPCC) have long been part 

of the federal framework. They are part of the federal regulatory framework that cannot 

be delegated to a State. However, it must be noted that in Texas, the dramatic increase in 

production over the past two decades has been matched by a focused effort of key state 

regulators to fund, prevent, and respond to oil spills. This makes the federal proposal 

superfluous. (p. 3)

Agency Response: As noted, SPCC rule implementation cannot be delegated to 

the States, so any changes to definition of waters of the U.S. would need to be 

reflected in the SPCC rule by EPA. 

12.1115 EPA’s proposal would unnecessarily focus oil and gas operators and other 

industries attention on a federal plan when compliance with state regulations would better 

serve the environment, the public, and the State of Texas as a whole. Consider the 

following arguments. 

First, most observers recognize that when a federal agency delegates primacy to the State, 

the State must meet or exceed the federal requirements. However, in Texas, the State 

regulatory framework already exceeds the requirements for spill response and cleanup, 

even without delegation being a possibility. 

Second, the Railroad Commission of Texas has authority and statutory responsibility for 

preventing, responding, and ensuring the cleanup of oil spills on land. Along the 

extensive and sensitive coastline of Texas, the General Land Office (GLO) has 

jurisdiction over oil spill prevention and response. For refined products the Texas 

Commission on Environmental Quality (TCEQ) has the responsibility. All three agencies 

have significant resources, rules, and personnel already doing the work of protecting the 

Texas waterways. Memorandums and rules link and coordinate the three state agencies 

with each other, as well as local and other state government entities. 

Third, oil spill reporting in Texas goes to a statewide hotline, with additional 24/7 district 

office phone calls. Crude oil spills of five barrels or more on land, and an oil spill of any 

amount in water, is required to be immediately reported by the operator. All oils spills on 

land or water of any size must be cleaned up to standards prescribe by State regulations. 

This contrasts sharply and exceeds the federal regulations that are only designed and 

require reporting of spills into water. 

Fourth, the State of Texas has a multi-million dollar, renewable oil field cleanup 

Regulatory Fund, supported completely by regulatory fees on the operators of oil and gas 

facilities in the State. This has allowed the state regulator to plug tens of thousands of 

orphaned wells and cleaned up over 4,000 abandoned oil field sites in the State. These 

same funds have been used to clean up hundreds of oil spills whenever a responsible 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

703

party is unidentified, unable, or unwilling to conduct the cleanup as required by the State 

of Texas.

Lastly, the Railroad Commission of Texas, especially when combined with the GLO and 

the TCEQ staff, provide a broad and comprehensive state prevention and response 

regulatory framework that fields hundreds of inspectors daily to ensure spills are 

prevented, and any spills that occur are reported, responded to and cleaned up to 

regulatory standards. No federal agency or federal plan can supplant or improve on this 

presence. (p. 3)

Agency Response: As noted, implementation of the SPCC rule cannot be 

delegated to the States. States may have a similar oil spill prevention regulation, but 

facility owner/operators would still need to comply with EPA’s SPCC rule, if 

subject.

Dominion Resources Services (Doc. #16338)

12.1116 Spill Prevention, Control and Countermeasures (SPCC) plans are required for oil 

storage facilities that have the potential to discharge to WOTUS. We maintain SPCC 

plans and associated response plans for oil storage facilities across our operations. If 

ditches or ephemeral features on or adjacent to an existing site that does have an SPCC 

Plan became WOTUS as a result of the proposed rule and were not otherwise exempt, the 

SPCC actions and associated plans could need to account not only for the potential spill 

to reach currently regulated features, but also for the spill to reach internal ditches. 

Updating existing plans and response resources would result in potential changes to 

existing equipment and procedures and associated expenses. The proposed rule could 

also mean that more facilities that would not currently need an SPCC plan because they 

do not have the potential to discharge to WOTUS, now would need an SPCC plan. 

Beyond existing federal programs, many of the states we operate in have their own oil 

spill prevention and response requirements that cover features beyond those required 

federally. Oil storage facilities are currently adequately regulated and any associated risk 

is adequately managed through existing regulations and associated requirements. (p. 5)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. Certain ditches and man-made impoundments may not considered 

waters of the U.S. in this final action. An owner/operator that is subject to the 

SPCC rule is required to provide a prediction of the direction, rate of flow, and total 

quantity of oil which could be discharged from the facility as a result of major 

equipment failure per 40 CFR part 112.7(b). Ditches or man-made impoundments 

may serve as pathways for an oil discharge to reach waters of the U.S. The 

owner/operator subject to the SPCC rule should consider these pathways when 

addressing the requirements in 40 CFR part 112.7(b), even though these ditches or 

man-made impoundments may considered non-jurisdictional.
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Gas Processors Association (Doc. #16340)

12.1117 The Proposed Rule Would Significantly Expand the Scope of the Spill 

Prevention, Control, and Countermeasure Rule

The Spill Prevention, Control, and Countermeasure (SPCC) Rule, 40 C.F.R. § 112, 

provides requirements for oil spill prevention, preparedness, and response to prevent oil 

discharges to navigable waters and adjoining shorelines. The SPCC Rule is part the 

EPA’s oil spill prevention program and was published under the authority of Section 

311(j)(1)(C) of the Clean Water Act. The SPCC Rule requires specific facilities to 

prepare, amend, and implement SPCC Plans. The mid-stream sector of the oil and gas 

industry is heavily regulated under the SPCC Rule since the rule applies to most types 

of facilities with an aboveground oil storage capacity greater than 1,320 U.S. gallons or 

an underground storage capacity greater than 42,000 U.S. gallons that “could 

reasonably be expected to discharge oil in quantities that may be harmful ... into or 

upon the navigable waters of the United States or adjoining shorelines....” 40 C.F.R § 

112.1(b) (emphasis added). 

The proposed rule adds to the list of “waters of the United States” a broad definition of 

tributaries of these waters. EPA and the Corps define “tributary” as any water that is 

“physically characterized by the presence of a bed and banks and ordinary high water 

mark” or any wetland, lake, or pond regardless of its physical characteristics – that

“contributes flow, either directly or through another water” to a traditionally navigable 

water, interstate water, or the territorial sea. 79 Fed. Reg. at 22199. Many features, like 

dry arroyos and mountain channels, have bed and bank even though they only flow 

when it rains or the snow melts. The rule then continues, adding to the list of 

jurisdictional waters all waters that are adjacent to the initial waters and their 

tributaries. Id. Further, as stated above, EPA and the Corps have significantly 

expanded the concept of “adjacent” by giving new definitions to the meaning of the 

term.

Because the jurisdictional trigger for the SPCC Rule is whether oil “could reasonably 

be expected” to discharge to navigable water, any rule that changes the meaning of 

“waters of the United States” will expand the scope of the SPCC jurisdiction 

significantly. Since GPA members operate facilities without SPCC plans based on 

previous conclusions that a release could not reasonably impact “waters of the United 

States” at those locations, the proposed rule expanding the scope of these waters would 

warrant a review of those prior conclusions. The proposed changes could require 

numerous facilities that have never been subject to SPCC requirements to prepare 

SPCC Plans or Facility Response Plans (FRPs) and comply with new regulatory 

requirements even though no physical changes have occurred to the facility or the 

environment. This will create an unnecessary financial and compliance burden on 

industry as well as substantially increasing the workload of EPA SPCC and FRP 

inspectors nationwide. GPA strongly suggests that EPA conduct a review of the 

impacts the proposed rule changes will have on EPA’s SPCC and FRP programs and 

the personnel and financial resources allocated to oversee compliance and enforcement 

activities in those programs. (p. 5-6)
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705

Agency Response: This action does not change an owner/operator's ability to 

determine if there is a reasonable expectation that an oil discharge from a facility 

could reach waters of the U.S., if the non-farm facility's aggregate oil storage 

capacity exceeds 1,320 gallons of oil. This applicability determination is a sitespecific evaluation by the owner/operator and may include the evaluation of oil 

traveling along non-jurisdictional pathways (e.g., ditches or other features) and 

reaching jurisdictional waters. A facility owner/operator may need to consider the 

potential for oil to travel overland via sheet flow or via an earthen or concrete 

channel or enter a storm drain and reach waters of the U.S. once discharged oil has 

traveled outside the confines of a facility. To be subject to the Facility Response 

Plan (FRP) rule in Subpart D of 40 CFR part 112, an owner/operator would need to 

be subject to the SPCC rule and meet higher oil capacity thresholds and other 

factors (either 42,000 gallons and transfer to/from a vessel or one million gallons or 

more and meet one or more of the substantial harm factors at 40 CFR part 

112.20(f)(1) and Appendix C to this part for more information on FRP applicability, 

including overland transport of oil considerations). 

Petroleum Association of Wyoming (Doc. #18815)

12.1118 PAW has significant concerns with the potential effect of the proposed rule in the 

context of the Section 311 Spill Prevention Control and Countermeasure (“SPCC”) 

program. To apply the requirements of the SPCC program to many facilities sited in 

areas that are not presently jurisdictional, but which could become so under the proposed 

rule is excessive and unwarranted. It would also create an unjustified burden on both the 

regulated community and the USEPA, where current state laws provide comprehensive 

protection of waters of the state, including those waters that have historically been 

deemed non-jurisdictional. 

As with many of PAW’s concerns, SPCC concerns relate to what the proposed rule 

would deem to be WOTUS under the “tributary,” “adjacent” or “other” definitions. As 

proposed, many facilities currently exist in locations that are not currently deemed 

jurisdictional but could become jurisdictional. These facilities are not currently regulated 

under the SPCC program. However, they could unwittingly become enforcement targets 

by virtue of their not having an SPCC plan in place when and if the proposed rule is 

promulgated. If the rule is promulgated as proposed, there are facilities that would be in 

immediate non-compliance with the SPCC program. As with other facilities described 

above, in some cases, facilities that operators have concluded are not jurisdictional, and 

which EPA has agreed are non-jurisdictional, could become jurisdictional under the new 

definition. With respect to such facilities, to allow a categorical inclusion by rule to 

trump a site-specific finding of non-jurisdiction is arbitrary and capricious. 

Agency Response: This action does not change an owner/operator's ability to 

determine whether there is a reasonable expectation that an oil discharge from a 

non-farm facility could reach waters of the U.S., if the non-farm facility's aggregate 

oil storage capacity exceeds 1,320 gallons of oil. This applicability determination is 

a site-specific evaluation by the owner/operator and may include the evaluation of 

oil traveling along non-jurisdictional pathways (e.g., ditches or other features) and 

reaching jurisdictional waters. 
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12.1119 Second, preparing SPCC plans and complying with SPCC requirements for 

facilities in locations that are not (or should not be) jurisdictional, unnecessarily increases 

the regulatory and compliance burden on industry and the inspection and enforcement 

burden on the agencies. The proposal also greatly expands the number of facilities that 

could then be subject to the SPCC regulation as virtually any facility could be deemed to 

have a reasonable likelihood to reach a WOTUS, simply by its existence with a 

watershed, a continuum of which drape the Wyoming landscape. It also results in 

unnecessary duplication of state exercise of jurisdiction. 

For example, in Wyoming, a spill of a reportable quantity from an oil storage facility to 

land in or adjacent to an ephemeral tributary, or to an area “adjacent” to such a tributary, 

must be reported to the state and remediated under state law. Such a spill should not also

fall within the purview of 40 CFR § 112.1 (b), which regulates a facility “which due to its 

location, could reasonably be expected to discharge oil in quantities that may be harmful, 

as described in part 110 of this chapter, into or upon the navigable waters of the United 

States or adjoining shorelines .... “Instead, as a practical matter, such a discharge would 

occur on dry land or to a dry drainage and while being appropriately remediated it would 

not reasonably be expected to affect any TNW. Nonetheless, the categorical inclusion of 

certain drainages by rule could bring facilities that should not be subject to SPCC 

regulation into the ambit of the program. The aggregation of minor drainage features 

(classified as “tributaries” or “adjacent” waters under the proposed rule) could result in 

an expansion of the SPCC program’s reach beyond any reasonable limits. A spill to one 

isolated drainage feature cannot be deemed to be “reasonably expected” to discharge oil 

in harmful quantities to traditional navigable waters, but by including dry drainage 

features (and aggregating them) in the definition of WOTUS, the agencies appear to have 

brought such “waters” within the scope of the SPCC program and the meaning of 

“navigable waters” under CWA Section 311. Indeed, this seems to be the agencies’

intent as expressed in the proposed rule. 79 FR 22191. These provisions thus could result 

in unwarranted conversion of a traditionally state-lead enforcement issue into a federal 

case.266

Agency Response: Please see Response to Comment 12.1114.

12.1120 Third, the requirement to report spills to the National Response Center under the 

SPCC program would become illogical and confusing. With the overbroad definitions in 

the proposed rule potentially rendering many dry drainage features jurisdictional, PAW 

questions whether EPA would intend that a spill in a dry drainage feature would require 

National Response Center reporting and whether Corps dredge and fill permitting would 

be required to aggressively remediate and reclaim the impacted area or repair a flowline 

leak. Such a spill could, by definition, be to WOTUS and could potentially also 

constitute a violation of the spill prohibition in 40 CFR § 110. PAW contends that such a 

result is not only unwarranted from an environmental enforcement perspective, but is also 

in excess of the agencies’ authority. If such a spill becomes a matter for reporting to EPA 

through the National Response Center, PAW suggests that the agencies are effectively 

 

266 As with the potential increased scope of SPCC coverage, the proposed rule could also increase the number of 

facilities subject to Facility Response Plan (“FRP”) requirements that apply to large storage facilities for the same 

reasons.
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707

giving nothing more than lip service in reciting the clear Congressional intent under the 

CWA to recognize, preserve and protect the primarily responsibilities and rights of states 

to prevent, reduce and eliminate pollution within their borders. 79 FR 22191. (p. 10-11)

Agency Response: Certain drainage features may not be considered waters of the 

U.S. in this final action. An owner/operator that is subject to the SPCC rule is 

required to provide a prediction of the direction, rate of flow, and total quantity of 

oil which could be discharged from the facility as a result of major equipment 

failure per 40 CFR part 112.7(b). Ditches or man-made impoundments may serve 

as pathways for an oil discharge to reach waters of the U.S. or adjoining shorelines. 

The owner/operator should consider these pathways when addressing the 

requirements in 40 CFR part 112.7(b). Also, this action does not change the 

requirement under 40 CFR part 110 for a facility owner/operator to notify the 

National Response Center when an oil discharge to waters of the U.S. or adjoining 

shorelines has occurred, even if the facility is not subject to the SPCC regulation.

Independent Petroleum Association of America (Doc. #18864)

12.1121 (...) as the proposed rule has the potential to greatly expand the presence of 

waters of the United States, the regulatory impact on industry will be expanded multifold. 

The presence of waters of the United States indicates the connection to navigable waters. 

As a result, several regulatory requirements are invoked under the CWA. These include 

SPCC plans, permitting for the discharge of dredge or fill material, and NPDES 

permitting. In response to these requirements and the expansion of waters of the United 

States, industry must conduct investigations to determine the extent of waters of the 

United States, plan accordingly in an effort to avoid or minimize impacts to the extent 

practicable, and meet various additional regulatory requirements. SPCC planning is 

designed to avoid or prevent oil pollution. SPCC plans are required when oil could 

possibly be discharged to or pollute navigable waters or their tributaries. As waters of the 

United States expand due to the proposed rule, existing facilities for which this regulation 

was not applicable may be required to meet this standard as waters of the United States 

are identified in proximity to the site. Further, facilities often use ponds, catchment 

basins, diked areas, etc. to reduce the potential for discharge of oil to navigable waters or 

their tributaries. Under this proposed rule, these features may become waters of the 

United States. (p. 9)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. Certain ditches and man-made impoundments may not be considered 

waters of the U.S. in this final action. However, for SPCC applicability 

determinations, the owner/operator must determine if there is a reasonable 

expectation of an oil discharge to reach waters of the U.S. or adjoining shorelines,

and this determination must be based solely upon consideration of the geographical 

and location aspects of the facility (such as proximity to waters of the U.S. or 

adjoining shorelines, land contour, drainage, etc.) and must exclude consideration of 

man-made features such as dikes, equipment or other structures, which may serve 

to restrain, hinder, contain or otherwise prevent a discharge to waters of the U.S. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

708

Once subject to the SPCC rule, an owner/operator to the SPCC rule is required to 

provide a prediction of the direction, rate of flow, and total quantity of oil which 

could be discharged from the facility as a result of major equipment failure per 40 

CFR part 112.7(b). Man-made features such as dikes or man-made impoundments 

may serve to prevent an oil discharge from reaching waters of the U.S. and could be 

described in the SPCC plan, where appropriate.

Kentucky Oil and Gas Association (Doc. #16527)

12.1122 (...) as the proposed rule has the potential to greatly expand the presence of 

waters of the United States, the regulatory impact on industry will be expanded multifold. 

The presence of waters of the United States indicates the connection to navigable waters. 

As a result, several regulatory requirements are invoked under the Clean Water Act. 

These include Spill Prevention, Control, and Countermeasures (SPCC) plans, permitting 

for the discharge of dredge or fill material, and NPDES permitting. In response to these 

requirements and the expansion of waters of the United States, industry must conduct 

investigations to determine the extent of waters of the United States, plan accordingly in 

an effort to avoid or minimize impacts to the extent practicable, and meet various 

additional regulatory requirements.

SPCC planning is designed to avoid or prevent oil pollution. SPCC plans are required 

when oil could possibly be discharged to or pollute navigable waters or their tributaries. 

As waters of the United States expand due to the proposed rule, existing facilities for 

which this regulation was not applicable may be required to meet this standard as waters 

of the United States are identified in proximity to the site. Further, facilities often use 

ponds, catchment basins, diked areas, etc. to reduce the potential for discharge of oil to 

navigable waters or their tributaries. Under this proposed rule, these features may 

become waters of the United States. (p. 6)

Agency Response: Please see Response to Comment 12.1117.

Nebraska Cattlemen (Doc. #13018)

12.1123 Another significant concern of Nebraska Cattlemen is the effect of the proposed 

rule on the §311 oil spill program. Due to the expanded jurisdiction to include tributaries 

and water adjacent to tributaries and other waters, there will be more instances of the 

need to prepare a Spill Prevention, Control, and Countermeasures Plan (SPCC) plan. 

Currently, the EPA Fact Sheet advises producers to determine if a spill would 

“reasonably” reach water to decide if the operation needs a plan. With the blanket 

categories of jurisdictional waters that would be subject to CWA jurisdiction, that rule of 

thumb would surely change. Many producers would have to assume that they would need 

a SPCC plan since the jurisdictional question would be so far reaching and unpredictable. 

Nebraska Cattlemen comment that this change will place an additional burden on 

producers and create additional liability exposure without additional benefits to water 

quality. (p. 16)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

because the rule puts important qualifiers on some existing categories such as 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

709

tributaries. However, this action does not change an owner/operator's ability to 

determine if there is a reasonable expectation that an oil discharge from a farm 

facility could reach waters of the U.S. or adjoining shorelines, if the farm facility's 

aggregate oil storage capacity exceeds certain thresholds or the farm has recently 

experienced an oil discharge. The applicability determination is a site-specific 

evaluation by the owner/operator and may include the evaluation of oil traveling 

along non-jurisdictional pathways (e.g., ditches or other features) and reaching 

jurisdictional waters. See response to Comment 12.1105 for more information 

related to farm facilities.

Airports Council International – North America (Doc. #16370)

12.1124 In an effort to further understand the jurisdictional reach and related impacts of 

the Proposed Rule the following question need(s) to be answered:

How would this rule affect spill reporting and response? (p. 6)

Agency Response: This action does not change the oil spill reporting requirements 

under 40 CFR part 110 if oil is discharged in “harmful quantities” to waters of the 

U.S. or adjoining shorelines. The owner/operator of a facility may need to consider 

that oil may travel along non-jurisdictional pathways (e.g., ditches or other features) 

and reach jurisdictional waters. Once oil reaches jurisdictional waters in quantities 

that may be harmful, notification requirements under 40 CFR part 110 are 

triggered.

Wabash Valley Power Association (Doc. #16336)

12.1125 If (...) a roadside ditch or other feature is a considered a water of the US, would 

the placement of absorbent [as a measure to contain a release of hazardous material from 

a vehicle] constitute a ‘fill’ and would removal of contaminated media constitute 

‘dredging,’ thus absurdly result in triggering a 404 permit? The current Spill Prevention 

Countermeasure and Control (SPCC) program is not designed to address spills such as 

these. (p. 2)

Agency Response: The final rule has been crafted to reduce existing confusion 

and inconsistency regarding the regulation of ditches. Certain ditches and manmade impoundments may not be considered waters of the U.S. in this final action. 

While the final rule does not include an explicit exclusion for roadside ditches, the 

agencies expect the exclusions included in the final rule will address the vast 

majority of roadside and other transportation ditches. If a facility is subject to the 

SPCC rule, an owner/operator is required to provide a prediction of the direction, 

rate of flow, and total quantity of oil which could be discharged from the facility as 

a result of major equipment failure per 40 CFR part 112.7(b) and provide active or 

passive secondary containment per 40 CFR part 112.7(c). Sorbent materials are an 

example of an active measure that could be placed in a ditch to prevent an oil 

discharge from reaching waters of the U.S. and is not expected to trigger a 

permitting requirement under Section 404.

Duke Energy (Doc. #13029)

12.1126 Duke Energy requests that the agencies clarify that the review of existing SPCC 

plans will continue on their five-year cycle, as currently scheduled, and that the proposed 
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710

rule will not trigger an expedited review of any of these plans due to the potential 

reclassification of waters that were previously not considered “waters of the United 

States”. (p. 56-57)

Agency Response: This action would not require a separate review of a facility’s 

SPCC plan outside of the 5-year cycle or an amendment to the plan unless there is a 

change in facility design, construction, operation or maintenance that materially 

affects its potential for a discharge to waters of the U.S. or adjoining shorelines per

40 CFR part 112.5.

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

12.1127 The revised WOTUS definition would require businesses to update and expand 

their Spill Prevention, Control, and Countermeasure (SPCC) Plans under section 311, and 

their stormwater discharge permits/plans under section 402. (p. 8)

Agency Response: Please see Response to Comment 12.1122.

Oglethorpe Power Corporation (Doc. #14618)

12.1128 The unclear scope of the Proposed Rule will cause severe ambiguity regarding the 

jurisdictional reach of the Agencies, leading to inconsistent enforcement of the Proposed 

Rule. Under the Proposed Rule, it is unclear which types of water bodies will constitute 

jurisdictional tributaries, adjacent waters, or other waters. Thus, facilities will struggle to 

discern and comply with their regulatory obligations. Oglethorpe Power requests EPA’s 

clarification about reporting obligations under the following circumstances, as interpreted 

under EPA’s current and proposed interpretations of “waters of the United States:”

A facility has a retention or detention pond located entirely on the facility’s property. 

The pond discharges to a dry ditch off-site, and the dry ditch leads to an unnamed 

tributary. If oil is spilled at the facility and travels to the pond and cleaned up there, 

would such an oil spill be reportable to the National Response Center (“NRC”)? (p. 2)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. Further, certain ditches and man-made impoundments associated with 

facility drainage may not be considered waters of the U.S. in this final action. An 

owner/operator that is subject to the SPCC rule is required to provide a prediction 

of the direction, rate of flow, and total quantity of oil which could be discharged 

from the facility as a result of major equipment failure per 40 CFR part 112.7(b). 

Ditches or man-made impoundments may serve as pathways for an oil discharge to 

reach waters of the U.S. or adjoining shorelines. The owner/operator should 

consider these pathways when addressing the requirements in 40 CFR part 112.7(b). 

Also, this action does not change the requirement under 40 CFR part 110 for a 

facility owner/operator to notify the National Response Center when an oil 

discharge to waters of the U.S. or adjoining shorelines in harmful quantities has 

occurred, even if the facility is not subject to the SPCC regulation.

12.1129 A facility has a retention pond located entirely on the facility’s property, and the 

pond has an under-flow outlet. The pond discharges to a dry ditch off-site, and the dry 
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711

ditch leads to an unnamed tributary. If oil is spilled at the facility and travels to the pond, 

is the spill reportable to the NRC? Does the answer remain the same if the spilled oil is 

cleaned up from the surface of the pond? (p. 2)

Agency Response: Please see Response to Comment 12.1124.

12.1130 A facility has a retention pond located entirely on the facility’s property, and the 

pond has an outlet valve that can be closed to prevent a discharge. Whenever the pond’s 

outlet valve is open, the pond discharges to a dry ditch off-site, and the dry ditch leads to 

an unnamed tributary. If oil is spilled at the facility and travels to the pond while the 

pond’s outlet valve is closed, is the spill reportable to the NRC? If the facility cleans up 

the oil spill while the pond’s outlet valve is closed, is the spill reportable to the NRC once 

the pond’s outlet valve is opened? (p. 3)

Agency Response: Please see Response to Comment 12.1124.

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

Association (Doc. #14928)

12.1131 Changing the regulatory status of roadside ditches and MS4’s from point sources 

to jurisdictional waters would create significant challenges for SRP and other utilities. 

The electric distribution system of SRP alone has over 400,000 individual pole top or pad 

mount oil-filled transformers-many of which are in service within municipality rights-ofway and are adjacent to dry ditches or MS4 systems. When these transformers 

experience an electrical fault, or are damaged by severe weather or an accident, oil may 

be discharged to the dry ditch or MS4. Most MS4s within SRP’s electric service area are 

man-made conveyances that divert stormwater flows from city streets, parking lots, and 

urbanized areas directly to public or private retention basins. 

The agencies’ proposed definition of a tributary would broadly include all dry roadside 

ditches and MS4s, whether they can discharge to navigable waters or not. As such, any 

discharge of oil in any quantity to a dry roadside ditch or MS4 would meet the definition 

of a discharge under §311 of the CWA and would have to be reported the National 

Response Center (NRC). This change would not only affect SRP, but would likely 

generate hundreds-of-thousands of additional spill reports nationwide. 

SRP strongly encourages the agencies to investigate the scope and magnitude of this 

potential impact of the proposed rule and the unnecessary burden it will place not only on 

utilities but also on the NRC and the EPA Regional Offices that must review and 

investigate every spill reported. (p. 10-11)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. The final rule has been crafted to reduce existing confusion and 

inconsistency regarding the regulation of ditches. Certain ditches and man-made 

impoundments may not be considered waters of the U.S. in this final action. While 

the final rule does not include an explicit exclusion for roadside ditches, the agencies 

expect the exclusions included in the final rule will address the vast majority of 

roadside and other transportation ditches. While an individual pole-mounted or 
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712

pad-mounted oil-filled transformer may not exceed the SPCC oil capacity threshold, 

this action does not change the requirement under 40 CFR part 110 for a facility 

owner/operator to notify the National Response Center when an oil discharge 

reaches waters of the U.S. or adjoining shorelines in harmful quantities has 

occurred, even if the facility is not subject to the SPCC regulation.

Utility Water Act Group (Doc. #15016)

12.1132 An SPCC plan is needed for facilities that have the potential to discharge into 

WOTUS.267 The Proposed Rule would mean that more plans would be needed because 

more facilities would have the potential to discharge to WOTUS. For example, if ditches 

crossing a site or treatment ponds on the site become WOTUS as a result of the Proposed 

Rule, the SPCC would need to account not only for the potential for a spill to reach 

currently regulated features, but also for the spill to reach only those internal features as 

well, even though such features are currently often used as part of the spill management 

process itself. As a practical matter, if a ditch became jurisdictional as a result of the 

Proposed Rule, a response to a spill that reached the ditch would convert from (1) a 

containment action under the current regulations (e.g., taking action such as the 

placement of a dam and the use of removal equipment to contain and remove the spill in 

order to prevent it from reaching WOTUS) to (2) a response action in which the facility 

would be required to comply with all notification, response, and other applicable 

requirements of its SPCC plan governing spills into WOTUS, and would face greater 

costs, delays, and restrictions in responding to the spill – e.g., awaiting permission to 

place containment structures and equipment in the ditch. Accordingly, existing plans and 

spill response resources would need to be expanded, if even feasible, at substantial 

expense and with no clear environmental benefit. (p. 27-28)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

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

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

tributaries. Certain ditches and man-made impoundments may not considered 

waters of the U.S. in this final action. However, for applicability determinations, the 

owner/operator must determine if there is a reasonable expectation of an oil 

discharge to waters of the U.S. or adjoining shorelines, and this determination must 

be based solely upon consideration of the geographical and location aspects of the 

facility (such as proximity to waters of the U.S. or adjoining shorelines, land 

contour, drainage, etc.) and must exclude consideration of man-made features such 

as dikes, equipment or other structures, which may serve to restrain, hinder, 

 

267 The SPCC rule applies to owners or operators of non-transportation-related facilities that drill, produce, store, 

process, refine, transfer, distribute, use, or consume oil or oil products that could reasonably be expected to 

discharge oil to navigable waters or adjoining shorelines in quantities that could be harmful. See CWA § 

311(j)(1)(C) and 40 C.F.R. § 112.1. Facilities are subject to the rule if they meet at least one of two capacity 

thresholds: (1) aboveground oil storage capacity greater than 1,320 U.S. gallons, or (2) completely buried oil storage 

capacity greater than 42,000 U.S. gallons (not including completely buried tanks that are subject to existing 

underground storage regulations). 40 C.F.R. § 112.1(d)(2). Regulated facilities must develop and implement SPCC 

plans that establish procedures and equipment requirements to help prevent oil discharges from reaching navigable 

waters. See 40 C.F.R. § 112.7.
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713

contain or otherwise prevent a discharge to waters of the U.S. See 40 CFR part 

112.1(d)(1)(i). Once subject to the SPCC rule, an owner/operator to the SPCC rule 

is required to provide a prediction of the direction, rate of flow, and total quantity 

of oil which could be discharged from the facility as a result of major equipment 

failure per 40 CFR part 112.7(b) and provide active or passive secondary 

containment per 40 CFR part 112.7(c). An underflow dam is an example of a 

containment measure that could be placed in a ditch to prevent an oil discharge 

from reaching waters of the U.S. Other man-made features such as dikes or manmade impoundments may serve to prevent an oil discharge from reaching waters of 

the U.S. or adjoining shorelines and should be described in the SPCC plan, where 

appropriate. The SPCC plan must also address countermeasures for oil spill 

response and cleanup (both the facility’s capability and those that might be required 

of a contractor) per 40 CFR part 112.7(a)(3)(iv). Appropriate containment and 

countermeasures provisions for an SPCC facility are site-specific based on the 

facility type and configuration as well as the type of water body that could be 

impacted by an oil discharge (e.g. creek, river, or lake). The type of and quantity oil 

that could be discharged (e.g., persistent oil vs. non-persistent oil; 1000 gallons vs. 

10,000 gallons) would also affect the type and quantity of response resources 

identified in the SPCC plan.

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

12.1133 The Proposed Rule would cause unnecessary increases 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. 15) 

Agency Response: Oil production facilities that have an oil storage capacity 

greater than 1,320 gallons and have a reasonable expectation of an oil discharge to 

waters of the U.S. and adjoining shorelines are required to prepare and implement 

an SPCC plan. The scope of regulatory jurisdiction in this rule is narrower than 

that under the existing regulation. Fewer waters will be defined as “waters of the 

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

the rule puts important qualifiers on some existing categories such as tributaries. 

Certain ditches and man-made impoundments may not considered waters of the 

U.S. in this final action. This action does not change an owner/operator's ability to 

determine if there is a reasonable expectation that an oil discharge could reach 

waters of the U.S. or adjoining shorelines. The applicability determination is a sitespecific evaluation by the owner/operator and may include the evaluation of oil 

traveling along non-jurisdictional pathways (e.g., ditches or other features) and 

reaching jurisdictional waters. Also, this action does not change the requirement 

under 40 CFR part 110 for a facility owner/operator to notify the National Response 
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714

Center when an oil discharge to waters of the U.S. or adjoining shorelines in 

harmful quantities has occurred, even if the facility is not subject to the SPCC 

regulation (i.e., the oil production facility’s aggregate oil storage capacity is 1,320 

gallons or less).

12.6. TRAINING NEEDS

Specific Comments

State of Washington Department of Ecology (Doc. #13957)

12.1134 Washington strongly recommends that EPA, and the Corps work with their state 

partners to develop regional manuals, definitions, and guidance to implement the rule. 

We recognize the difficulty in providing clear definitions and standards nationwide due to 

the diversity of climate, landforms and ecosystems across the country. Because of this 

diversity, the rule is understandably vague which makes it imperative that the agencies 

develop regional definitions and guidance. With the states as eco-regulators, the agencies 

should work directly with the states as they develop implementation guidance in their 

region. (p. 6)

Agency Response: State, tribal and local governments have well-defined and 

longstanding working relationships with the Corps and EPA in implementing Clean 

Water Act programs. The final rule reflects the current state of the best available 

science and is guided by the need for clearer, more consistent and easily 

implementable standards to govern administration of the Act. The agencies will 

continue a transparent review of the science and learn from ongoing experience and 

expertise as the rule is implemented. The agencies plan to work with our regulatory 

partners on timely development of necessary training and guidance, as appropriate, 

to build upon existing working relationships, to inform stakeholders, and to ensure 

successful implementation of this rule. 

State of Oklahoma (Doc. #14773)

12.1135 Oklahomans understand the current WOTUS system, and because of our strong 

relationship with the Tulsa District of USACE, there have been very few administrative 

challenges to the current rule and no judicial challenges to a jurisdictional determination. 

Any new definitions of WOTUS should clearly delineate what is and what is not subject 

to federal permitting requirements. If the Agencies are unable to provide clarity for 

landowners and developers, the current rule and guidance should remain in place. While 

we understand recent U.S. Supreme Court decisions have raised concerns about the 

definition of WOTUS, under this proposal the Agencies have simply moved the already 

unclear line, rather than providing true clarity or consistency. Instead of issuing a new 

unclear rule, the Agencies should consider issuing updated guidance to the USACE 

Districts to ensure fair and consistent implementation of the current rule between 

districts. At a minimum, the Agencies should work collaboratively with the states to 

develop regional solutions. With the proposed WOTUS rule, I believe state water 

management primacy is being eroded with no gain in the management of our water 

resources. (p. 2)
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715

Agency Response: In response to Supreme Court opinions, the agencies issued 

guidance in 2003 (post-SWANCC) and 2008 (post-Rapanos). However, these 

guidance documents are not effective in providing the public or agency staff with 

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

jurisdictional determinations. Many waters are currently subject to case-specific 

jurisdictional analysis to determine whether a “significant nexus” exists, and this 

time and resource intensive process can result in inconsistent interpretation of CWA 

jurisdiction and perpetuate ambiguity over where the CWA applies. Members of 

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

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

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

concurrence in Rapanos underscores the value of this rulemaking effort. 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.

State of Idaho (Doc. #16597)

12.1136 Idaho recognizes further discussion between the states and federal agencies is 

needed to develop the specifics of such [quantifiable] measures and the process for 

applying them, particularly with the variation in hydrologic and geologic conditions 

existing across the nation. As such, Idaho urges EPA and the Corps to utilize a statefederal workgroup to identify and develop specific, quantifiable measure(s) for 

determining “significance” consistent with the rebuttable presumption concept. (p. 3)

Agency Response: State, tribal and local governments have well-defined and 

longstanding working relationships with the Corps and EPA in implementing Clean 

Water Act programs. The final rule reflects the current state of the best available 

science and is guided by the need for clearer, more consistent and easily 

implementable standards to govern administration of the Act. The agencies will 

continue a transparent review of the science and learn from ongoing experience and 

expertise as the rule is implemented. The agencies plan to work with our regulatory 

partners on timely development of necessary training and guidance, as appropriate, 

to build upon existing working relationships, to inform stakeholders, and to ensure 

successful implementation of this rule. 

Colorado Clean Water Coalition (Doc. #1231)

12.1137 We appreciate the outline list of exclusions identified in the proposed rule such as

artificial lakes, ponds created by excavating, water filled depressions created incidental to

construction activity, and ditches; however, we are concerned with the inconsistency of

language when referring to “All Tributaries” and “Nexus” as these examples listed in the 

proposal could unclearly be considered tributary waters. Industry education is a very

important aspect of successful regulation and such language not considered industry

standard or scientific will pose confusion to the implementation of new regulation. (p. 1)

Agency Response: All existing exclusions from the definition of “waters of the 

United States” are retained, and several exclusions reflecting longstanding agency 

practice are added to the regulation for the first time. Existing exclusions for prior 
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716

converted cropland and waste treatment systems remain substantively and 

operationally unchanged. The agencies added exclusions for waters and features 

previously identified as generally exempt in preamble language from Federal 

Register notices by the Corps on November 13, 1986, and by EPA on June 6, 1988. 

This is the first time these exclusions have been established by rule. The agencies 

for the first time also establish by rule that certain ditches are excluded from 

jurisdiction. The agencies add exclusions for groundwater and erosional features, 

as well as exclusions for some waters that were identified in public comments as 

possibly being found jurisdictional under proposed rule language where this was 

never the agencies’ intent, such as stormwater control features constructed to 

convey, treat, or store stormwater, and cooling ponds that are created in dry land. 

These exclusions reflect current agencies’ practice, and their inclusion in the rule as 

specifically excluded furthers the agencies’ goal of providing greater clarity over 

what waters are and are not protected under the CWA.

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

12.1138 The ambiguity in the rule as drafted does not provide explicit guidance to Federal 

and local regulators which results in inconsistent interpretation and oversight of the rules. 

(p. 1)

Agency Response: In the final rule, EPA and the Corps clarify the scope of 

“waters of the United States” that are protected under the Clean Water Act, using 

the text of the statute, Supreme Court decisions, the best available peer-reviewed 

science, public input, and the agencies’ technical expertise and experience in 

implementing the statute. This rule makes the process of identifying waters 

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

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

that form the foundation of our nation’s water resources.

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

12.1139 Changing the rule without specific definitions and boundaries give latitude in 

enforcement that often results in an uneven playing field. “Best professional judgment 

and experience of agency staff” varies throughout any organization and should not be the 

foundation for enforcement when the definitions of a rule are not based on strict and 

proven science. (p. 1)

Agency Response: The final rule is intended to provide greater clarity and 

consistency regarding which waters are subject to CWA jurisdiction, reducing the 

instances in which permitting authorities need to make jurisdictional 

determinations on a case-specific basis. In order to accomplish this aim, the final 

rule includes a number of key improvements including, but not limited to, the 

following. In response to comments and to provide greater clarity and consistency, 

in the rule the agencies establish a definition of neighboring which provides 

additional specificity requested by some commenters, including establishing a 

floodplain interval and providing specific distance limits from traditional navigable 

waters, interstate waters, the territorial seas, impoundments, and tributaries. In 

order to add clarity to the definition of significant nexus, the agencies have listed in 

the definition the functions that will be considered in a significant nexus analysis. 
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717

The preamble also includes a definition of bed and banks adapted largely from 

longstanding agencies’ practice as well as input from commenters. To provide 

additional clarity and for ease of use for the public, the agencies are including the 

Corps’ existing definitions of ordinary high water mark and high tide line in EPA’s 

regulations as well.

Tennessee Association of Conservation Districts (Doc. #10162)

12.1140 Taking additional time to help us understand the many difficult terms used and 

how they will be implemented will benefit water quality improvement. Additionally, 

making sure we see you and your field staff in agreement on the interpretation and how it 

will be implemented in the real world will help with making this a success. (p. 3)

Agency Response: State, tribal and local governments have well-defined and 

longstanding working relationships with the Corps and EPA in implementing Clean 

Water Act programs. The final rule reflects the current state of the best available 

science and is guided by the need for clearer, more consistent and easily 

implementable standards to govern administration of the Act. The agencies will 

continue a transparent review of the science and learn from ongoing experience and 

expertise as the rule is implemented. The agencies plan to work with our regulatory 

partners on timely development of necessary training and guidance, as appropriate, 

to build upon existing working relationships, to inform stakeholders, and to ensure 

successful implementation of this rule. 

County of Henry, Collinsville, Virginia (Doc. #10949)

12.1141 In general, the Rule may place too much reliance on the Corps’ best professional 

judgment when making jurisdictional determination. Henry County has experienced a 

lack of consistency among different regulators within the Norfolk District. The County is 

concerned that the Rule will provide too much opportunity for interpretation by local 

Corps staff in the field which may lead to less clarity, certainty and predictability for the 

regulated public, possibly leading to resource demanding case-specific analyses. (p. 3)

Agency Response: As you point out, many waters are currently subject to casespecific jurisdictional analysis to determine whether a “significant nexus” exists, 

and this time and resource intensive process can result in inconsistent interpretation 

of CWA jurisdiction and perpetuate ambiguity over where the CWA applies. 

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

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

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

Justice Roberts’ concurrence in Rapanos underscores the value of this rulemaking 

effort. 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 peerreviewed science.

Association of California Water Agencies (Doc. #12978)

12.1142 Regulatory guidance and field manuals related to delineating the “ordinary 

highwater mark” should be released for public review prior to use.
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718

Agency Response: Please see the Technical Support Document for additional 

information related to delineating the ordinary high water mark.

Missouri Association of Municipal Utilities (Doc. #7931)

12.1143 Additional Resources for EPA/USACOE/State Environmental Agencies: Finally, 

as a former senior administrator at MDNR, it is my experience that it does little good to 

make rules when there are no resources to implement the rules. It appears that this rule 

may well double the number of miles of ‘navigable waters’ under the jurisdiction of both 

EPA and DNR. Do both agencies have the financial and human resources to manage 

their expanded environmental responsibilities? Does the USACOE have the necessary

resources to manage the significant influx of applications for permits for tasks within 

newly regulated but dry jurisdictional Waters of the United States? Which agencies will 

be responsible for the massive outreach to the stakeholder community to educate them 

about the application of this rule when it is formalized? (p. 6)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations. The final rule 

is guided by the need for clearer, more consistent and easily implementable 

standards to govern administration of the Clean Water Act. The agencies plan to 

work with our regulatory partners on timely development of necessary training and 

guidance, as appropriate, to build upon existing working relationships, to inform 

stakeholders, and to ensure successful implementation of this rule.

California State Association of Counties (Doc. #9692)

12.1144 The proposed rule does not discuss the interrelationship of WOUS and municipal 

separate storm sewer systems (MS4). The interconnected nature of storm drain systems 

regulated under MS4 permits and the broad nature of the definitions in the proposed rule 

could lead to legal uncertainty, regulatory confusion and conflicts in regulations. It is 

especially important for the agencies to provide clear guidance on where an MS4 ends 

and WOUS begins for counties in the Southwest, where engineered drainage systems 

have mostly rep laced the natural drainage patterns in urbanized watersheds. The current 

definition of “tributary” (79 Fed. Reg. at 22263) states “a water that otherwise qualifies 

as a tributary does not lose its status if, for any length , there are one or more manmade 

breaks (such as bridges, culverts, pipes, or dams) so long as a bed and bank with an 

ordinary high water mark can be identified upstream of the break.” Los Angeles County, 

for example, contains many storm drains with upstream man-made open channels with a 

bed, bank, and high water mark. The proposed rule would render a number of open 

channels per se jurisdictional under this broad definition of tributary and subject local 

agencies to further regulation. In addition, due to the proximity of WOUS channels, it is 

possible that MS4 channels could be considered “adjacent” waters and therefore 

jurisdictional. (p. 9)

Agency Response: Please see summary response 7.4.4.

Association of Clean Water Administrators (Doc. #13069)

12.1145 A national rule is a difficult vehicle for addressing regional variations in 

geohydrology, therefore additional regional guidance on how to apply the rule’s 
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719

definitions is another way that clarity can be provided. For example, states need greater 

detail on how to identify beds, banks and ordinary high water marks for the purpose of 

identifying tributaries. Guidance on this is currently in place in some regions, but not 

others. States also need greater detail on how to determine if a wetland “contributes 

flow, either directly or through another water” to one of the (a)(1)-(a)(3) waters. Without 

clear terms and guidance, states will be left to interpret this rule on their own, which 

undermines its intent to create national consistency. (p. 3-4)

Agency Response: State, tribal and local governments have well-defined and 

longstanding working relationships with the Corps and EPA in implementing Clean 

Water Act programs. The final rule reflects the current state of the best available 

science and is guided by the need for clearer, more consistent and easily 

implementable standards to govern administration of the Act. The agencies will 

continue a transparent review of the science and learn from ongoing experience and 

expertise as the rule is implemented. The agencies plan to work with our regulatory 

partners on timely development of necessary training and guidance, as appropriate, 

to build upon existing working relationships, to inform stakeholders, and to ensure 

successful implementation of this rule. 

Montana Association of Conservation Districts (Doc. #18628)

12.1146 When the rule is adopted, we expect to see the number of inquiries to local offices 

increase. While providing farmers and ranchers information is part of our role, we are 

concerned that we will not be prepared to answer the wide variety of questions that we 

may have to field. Will EPA provide some sort of support in an outreach program? (p. 2)

Agency Response: State, tribal and local governments have well-defined and 

longstanding working relationships with the Corps and EPA in implementing Clean 

Water Act programs. The final rule reflects the current state of the best available 

science and is guided by the need for clearer, more consistent and easily 

implementable standards to govern administration of the Act. The agencies will 

continue a transparent review of the science and learn from ongoing experience and 

expertise as the rule is implemented. The agencies plan to work with our regulatory 

partners on timely development of necessary training and guidance, as appropriate, 

to build upon existing working relationships, to inform stakeholders, and to ensure 

successful implementation of this rule. 

CalPortland Company (Doc. #14590)

12.1147 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 the many vague and 

undefined terms in this proposed rule? (p. 3)

Agency Response: The final rule is intended to provide greater clarity and 

consistency regarding which waters are subject to CWA jurisdiction, reducing the 

instances in which permitting authorities need to make jurisdictional 

determinations on a case-specific basis. In order to accomplish this aim, the final 

rule includes a number of key improvements including, but not limited to, the 

following. In response to comments and to provide greater clarity and consistency, 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

720

in the rule the agencies establish a definition of neighboring which provides 

additional specificity requested by some commenters, including establishing a 

floodplain interval and providing specific distance limits from traditional navigable 

waters, interstate waters, the territorial seas, impoundments, and tributaries. In 

order to add clarity to the definition of significant nexus, the agencies have listed in 

the definition the functions that will be considered in a significant nexus analysis. 

The preamble also includes a definition of bed and banks adapted largely from 

longstanding agencies’ practice as well as input from commenters. To provide 

additional clarity and for ease of use for the public, the agencies are including the 

Corps’ existing definitions of ordinary high water mark and high tide line in EPA’s 

regulations as well.

Corporate Communications and Sustainability, Domtar Corporation (Doc. #15228)

12.1148 The use of the “significant nexus” test needs to be better defined and follow the 

limits articulated in the Rapanos case. (p. 2)

Agency Response: The agencies’ determination of what constitutes a “significant 

nexus” is grounded in Justice Kennedy’s opinion in Rapanos. At the core of the

“significant nexus” analysis, the protection of upstream waters must be critical to 

maintaining the integrity of the downstream waters. These upstream waters 

function as integral parts of the aquatic environment, and if these waters are 

polluted or destroyed there is a significant effect downstream. The agencies assess 

the significance of the nexus in terms of the CWA’s objective to “restore and 

maintain the chemical, physical, and biological integrity of the Nation’s waters.” 

When the effects are speculative or insubstantial, the “significant nexus” would not 

be present. In the final rule, the agencies determine that tributaries, as defined 

(“covered tributaries”), and adjacent waters, as defined (“covered adjacent 

waters”), have a significant nexus to downstream traditional navigable waters, 

interstate waters, and the territorial seas and therefore are “waters of the United 

States.” In the rule, the agencies also establish that defined sets of additional waters 

may be determined to have a significant nexus on a case-specific basis: (1) five types 

of waters that the agencies conclude are “similarly situated” and therefore must be 

analyzed “in combination” in the watershed that drains to the nearest traditional 

navigable water, interstate water, or the territorial seas when making a case-specific 

significant nexus analysis; and (2) waters within 4,000 feet of the high tide line or 

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

territorial seas, impoundments or covered tributaries. The final rule establishes a 

definition of significant nexus, based on Supreme Court opinions and the science, to 

use when making these case-specific determinations. 

Kentucky Oil and Gas Association (Doc. #16527)

12.1149 The proposed rule relies heavily on Justice Kennedy’s “significant nexus” term. 

In the Rapanos decision, Justice Kennedy indicated that the relationship of a water 

feature with a navigable water must be more than “speculative or insubstantial.” Rather, 

the relationship must be significant. As part of the justification of this rule, EPA and 

USACE have gone to great lengths to explain why headwater streams (i.e., intermittent 

and ephemeral streams), such as those located extensively throughout Central 
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721

Appalachia, have a significant impact on traditional navigable waters that may be located 

hundreds of miles downstream. Following the Rapanos decision, USACE attempted to 

apply the decision to jurisdictional determinations. USACE staff relied on the significant 

nexus term to include features of the landscape that clearly had no significance on 

downstream navigable waters. For instance, jurisdiction began to extend to depressions 

that may be filled with leaves or tree branches. It was clear that water had not passed 

through these depressions. However, because there was the potential for water to move 

through the area and detritus could be transported downstream, there was a significant 

nexus. In short, USACE exploited the term and expanded jurisdiction to features that 

clearly have no significance to downstream physical, chemical, or biological processes. 

If EPA and USACE are planning to rely on this term to assert jurisdiction, the proposed 

rule should provide a series of examples or standards that must be met in order to rise to 

significance. A term used loosely without clarity is ripe for misuse as was observed in 

the months and years following the Rapanos decision. (p. 5-6)

Agency Response: The agencies’ interpretation of the CWA’s scope in this final 

rule is informed by the best available peer-reviewed science – particularly as that 

science informs the policy judgments and legal interpretations as to which waters 

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

the territorial seas. The agencies’ interpretive task in this rule – determining which 

waters have a “significant nexus” – requires the integration of this science with 

policy judgment and legal interpretation. The science demonstrates that waters fall 

along a gradient of chemical, physical, and biological connection to traditional 

navigable waters, and it is the agencies’ task to determine where along that gradient 

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

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

practical experience in implementing the CWA during a period of over 40 years. In 

addition, the agencies are guided, in part, by the compelling need for clearer, and 

more consistent, and easily implementable standards to govern administration of 

the Act, including brighter lines where feasible and appropriate. In the final rule, 

the agencies determine that tributaries, as defined (“covered tributaries”), and 

adjacent waters, as defined (“covered adjacent waters”), have a significant nexus to 

downstream traditional navigable waters, interstate waters, and the territorial seas 

and therefore are “waters of the United States.” In the rule, the agencies also 

establish that defined sets of additional waters may be determined to have a 

significant nexus on a case-specific basis: (1) five types of waters that the agencies 

conclude are “similarly situated” and therefore must be analyzed “in combination” 

in the watershed that drains to the nearest traditional navigable water, interstate 

water, or the territorial seas when making a case-specific significant nexus analysis; 

and (2) waters within 4,000 feet of the high tide line or ordinary high water mark of 

traditional navigable waters, interstate waters, the territorial seas, impoundments 

or covered tributaries. The final rule establishes a definition of significant nexus, 

based on Supreme Court opinions and the science, to use when making these casespecific determinations. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

722

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

12.1150 We are concerned with how enforcement inspectors will know the difference 

between a water filled area on a crop field and a seasonal pond or wetland or ephemeral 

stream; any of which can be regulated? The rule says that even small and temporary 

waters can be regulated. In the rule, isolated waters are categorically regulated if they are 

in floodplains or nearby ditches. (p. 2)

Agency Response: State, tribal and local governments have well-defined and 

longstanding working relationships with the Corps and EPA in implementing Clean 

Water Act programs. The final rule reflects the current state of the best available 

science and is guided by the need for clearer, more consistent and easily 

implementable standards to govern administration of the Act. The agencies will 

continue a transparent review of the science and learn from ongoing experience and 

expertise as the rule is implemented. The agencies plan to work with our regulatory 

partners on timely development of necessary training and guidance, as appropriate, 

to build upon existing working relationships, to inform stakeholders, and to ensure 

successful implementation of this rule. The scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

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

categories such as tributaries. In addition, the rule provides greater clarity 

regarding which waters are subject to CWA jurisdiction, reducing the instances in 

which permitting authorities, including the states and tribes with authorized section 

402 and 404 CWA permitting programs, to make jurisdictional determinations on a 

case-specific basis. 

Wyoming Farm Bureau Federation (Doc. #14406)

12.1151 Using “best professional judgment” is setting up decisions to be made by 

regulators which may be widely varied. Opinions can vary widely from person to person. 

Not having valid scientific bases to make decisions will likely be to the detriment of the 

landowner. As stated previously, decision makers will likely err on the side of caution. 

Since these decisions to declare will not be black and white decisions, any decision in the 

grey area will likely be added into the “yes it is adjacent”, resulting in more lands under 

the jurisdiction of the EPA, more costs to land owners, and fewer options to manage land. 

(p. 3)

Agency Response: In response to Supreme Court opinions, the agencies issued 

guidance in 2003 (post-SWANCC) and 2008 (post-Rapanos). However, these 

guidance documents are not effective in providing the public or agency staff with 

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

jurisdictional determinations. Many waters are currently subject to case-specific 

jurisdictional analysis to determine whether a “significant nexus” exists, and this 

time and resource intensive process can result in inconsistent interpretation of CWA 

jurisdiction and perpetuate ambiguity over where the CWA applies. Members of 

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

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

protected under the CWA clearer, simpler, and faster. Chief Justice Roberts’ 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

723

concurrence in Rapanos underscores the value of this rulemaking effort. 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.

North Dakota Soybean Growers Association (Doc. #14594)

12.1152 Consistency: Consistency is largely a measure of predictability. Consistency in 

an agency, or across agencies, is rooted in the idea that one can query and explore options 

at different times and locations, with similar circumstances, while getting similar 

responses. We believe that there is strong evidence that these proposals are lacking 

effective preparation, implementation planning, accurate economic benefit analysis, and 

the strategic leadership within and across agencies to effectively implement the proposed 

rules. We simply have no confidence that similar situations to be treated effectively or 

that local differences and nuances will be get appropriate action or attention. (p. 13)

Agency Response: In response to Supreme Court opinions, the agencies issued 

guidance in 2003 (post-SWANCC) and 2008 (post-Rapanos). However, these 

guidance documents are not effective in providing the public or agency staff with 

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

jurisdictional determinations. Many waters are currently subject to case-specific 

jurisdictional analysis to determine whether a “significant nexus” exists, and this 

time and resource intensive process can result in inconsistent interpretation of CWA 

jurisdiction and perpetuate ambiguity over where the CWA applies. Members of 

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

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

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

concurrence in Rapanos underscores the value of this rulemaking effort. 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.

12.1153 Clarity: There is opportunity for clarity. When citizens are required to seek 

permission from the Agencies to take any action regarding water or land use activities, 

there is clearly increased opportunity for clarity. However, we believe that the potential 

for consistency is remote beyond a single implementing entity (small office) that gains in 

clarity will be rendered moot. (p. 13)

Agency Response: In response to Supreme Court opinions, the agencies issued 

guidance in 2003 (post-SWANCC) and 2008 (post-Rapanos). However, these 

guidance documents are not effective in providing the public or agency staff with 

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

jurisdictional determinations. Many waters are currently subject to case-specific 

jurisdictional analysis to determine whether a “significant nexus” exists, and this 

time and resource intensive process can result in inconsistent interpretation of CWA 

jurisdiction and perpetuate ambiguity over where the CWA applies. Members of 

Congress, developers, farmers, state and local governments, energy companies, and 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

724

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

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

concurrence in Rapanos underscores the value of this rulemaking effort. 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.

Iowa Farmers Union (Doc. #15007)

12.1154 A significant share of the concerns circulating within the farming community 

around the proposed rule derive from a lack of clarity and understanding of the 

on‐the‐ground logistics of enforcing the rule. Many farmers are picturing an EPA agent 

coming onto each farm in the state of Iowa, performing an inspection, and then telling the 

farmer how to run the farming operation. As part of alleviating these concerns, it is vital 

that EPA and the Corps provide clear guidance for farmers to help them understand: 

 who would be responsible for enforcing the rule on the local level; 

 what the process would be for enforcing the rule and making a jurisdictional 

determination on the local level, including illustrative examples of what types of 

circumstances or activities would trigger a closer look at on‐farm waters; 

 what the process would be for a farmer seeking an agency opinion as to whether 

an on‐farm water is jurisdictional; 

 what assistance would be available for a farmer dealing with a jurisdictional water 

as part of an active farming operation.

Most farmers have lengthy experience interacting with federal government agencies and 

complex federal regulations. Local field offices operated by the U.S. Department of 

Agriculture routinely work with farmers to ensure compliance with federal farm 

programs, including rules for program enrollment, conservation compliance requirements 

for commodity subsidy programs, and technical requirements for participation in federal 

conservation programs. Farmers know the staff in their local Farm Service Agency and 

NRCS offices; they know where to go when they have questions about the rules; they 

know what to expect from those offices in terms of enforcement. Much of the fear and 

distrust in the farming community related to this proposed rule derives from a general 

lack of familiarity with the enforcing agencies and a lack of clarity on the basics of the 

regulatory process. 

EPA has indicated that the Corps is the principal federal agency responsible for 

conducting jurisdictional determinations under the Clean Water Act, generally performed 

via Corps District offices. Any additional specifics related to logistics and process that 

could be provided in the form of guidance accompanying the final rule could help to 

increase basic comfort levels and avoid future episodes of the sort of dysfunctional 

showdown that has occurred within the farming community in the context of the current 

proposed rule. (p. 7-8)

Agency Response: State, tribal and local governments have well-defined and 

longstanding working relationships with the Corps and EPA in implementing Clean 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

725

Water Act programs. The final rule reflects the current state of the best available 

science and is guided by the need for clearer, more consistent and easily 

implementable standards to govern administration of the Act. The agencies will 

continue a transparent review of the science and learn from ongoing experience and 

expertise as the rule is implemented. The agencies plan to work with our regulatory 

partners on timely development of necessary training and guidance, as appropriate, 

to build upon existing working relationships, to inform stakeholders, and to ensure 

successful implementation of this rule. 

Ducks Unlimited (Doc. #11014)

12.1155 Is it consistent with the agencies’ public statements that the new rule would not be 

an expansion of jurisdiction relative to existing regulations, and that the agricultural and 

ranching sectors, in particular, would not be subject to increased permitting 

requirements? It seems clear from the content of the proposed rule, the issuance of the 

special “interpretive rule” addressing conservation practices, the fact sheets released by 

the agencies, and the public comments made by the EPA Administrator and other top 

officials of the EPA and Corps of Engineers, that the desire of both agencies and the 

intent of the proposed rule is to preserve and even strengthen the statutory exemptions for 

normal farming, ranching, and silvicultural practices. Public statements have been made 

to the effect of, “if you didn’t need a permit for your farming activities before, you won’t 

need one under the proposed rule.” Nevertheless, despite the agencies’ efforts, it is clear 

that much of the agricultural community remains concerned that the new rule does not 

increase their level of clarity and certainty, would expand jurisdiction compared to the 

existing regulations, and could burden them with new or additional permitting 

requirements.

Relative to agriculture and ranching, this situation indicates the need for at least two 

things in the final rule. First, there is apparently a need for increased clarity to alleviate 

the concerns of the agricultural and ranching communities that the rule represents an 

expansion of jurisdiction and associated regulatory burdens. Similarly, the clear meaning 

of the rule must also be apparent to the thousands of individuals who work within the 

regulating agencies. Many farmers and ranchers are concerned that if not stated with 

sufficient precision, they may be subjected to a wide variety of interpretations of the new 

rule across the many Corp of Engineers districts and EPA regions. 

For example, the production of rice is critical to the future of migratory populations of 

North American waterfowl, and plays an important role in contributing habitat needed by 

many other species. Approximately 3 million acres of rice is planted annually, primarily 

in the Lower Mississippi Valley, Central Valley of California, and Gulf coastal prairie 

regions. In the latter two regions, waste rice provides over 40% of the nutritional 

requirements of wintering waterfowl populations (Petrie et al. 2014). Without these food 

resources, important waterfowl and other wildlife conservation objectives would be 

unattainable. 

Statements have been made by representatives of the agencies that the activities and 

jurisdictional issues related to rice producers would be completely unaffected by the rule. 

Nevertheless, some specific language of the proposed rule causes some concern among 

rice producers that, regardless of intent, potential interpretation of the wording could 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

726

potentially bring what are currently non-jurisdictional rice fields and related 

infrastructure under the new definition of “waters of the U.S.” These language issues 

must be resolved so that it is clear that those producers would not be subject to new or 

additional permitting or other restrictions associated with jurisdiction as “waters of the 

U.S.” Therefore, in light of statements and commitments made by the agencies that the 

new rule would impose no new jurisdiction or permitting requirements that would affect 

the longstanding statutory exemptions related to normal farming, ranching, and 

silvicultural practices, a criterion for finalizing the rule must be that they uphold and are 

fully consistent with the agencies’ related public statements. (p. 10-11)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations. Recognizing 

the vital role of farmers in providing the nation with food and fiber, the Clean 

Water Act in Section 404(f)(1) (33 U.S.C. § 1344(f)(1)) exempts many normal 

farming activities such as seeding, harvesting, cultivating, planting, soil and water 

conservation practices, and other activities from the Section 404 permitting 

requirement. “Normal” farming, silviculture, and ranching is clarified in the 

agencies’ implementing regulations (40 C.F.R § 232.3(c)(1)) to mean established and 

ongoing activities to distinguish from activities needed to convert an area to 

farming, silviculture, or ranching and activities that convert a water to a non-water. 

The rule reflects this framework by clarifying the waters subject to the activities 

Congress exempted under Section 404(f)(1) are not jurisdictional by rule as 

“adjacent.” This provision interprets the intent of Congress and reflects the intent 

of the agencies to minimize potential regulatory burdens on the nation’s agriculture 

community, and recognizes the work of farmers to protect and conserve natural 

resources and water quality on agricultural lands. In addition, paragraph (b)(4) of 

the final rule identifies features and waters that the agencies have identified as 

generally not “waters of the United States” in previous preambles or guidance 

documents. Codifying these longstanding practices supports the agencies’ goals of 

providing greater clarity, certainty, and predictability for the regulated public and 

the regulators. The Agencies’ 1986 and 1988 preambles indicated that these waters 

could be determined on a case-specific basis to be “waters of the United States.” The 

rule does not allow for this case-specific analysis to be used to establish jurisdiction -

these waters are categorically excluded from jurisdiction. Specifically, the following 

features are not “waters of the United States”: artificial lakes and ponds created in 

dry land and used primarily for uses such as stock watering, irrigation, settling 

basins, rice growing, or cooling ponds. To the extent the comment is referring to the 

interpretive rule, that rule has been withdrawn.

12.1156 Related Agricultural Issues: The above comments notwithstanding, it should be 

made more clear that, as a result of the longstanding exclusions of rice fields from 

jurisdiction, the interpretation of adjacency will not result in the extension of jurisdiction 

to rice fields. While we sometimes refer to rice fields as “surrogate wetlands” in 

recognition of their wetland-related ecological functions, ranging from habitat for 

waterfowl and other migratory birds to improvements of water quality, that they often 

provide, rice fields are nevertheless not “wetlands” and therefore should not be regulated 

as such. Although a science-based case for adjacency could be argued in some cases, the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

727

longstanding exemption of rice fields must be clearly preserved by the final language of 

the rule. (p. 20-21)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations. Recognizing 

the vital role of farmers in providing the nation with food and fiber, the Clean 

Water Act in Section 404(f)(1) (33 U.S.C. § 1344(f)(1)) exempts many normal 

farming activities such as seeding, harvesting, cultivating, planting, soil and water 

conservation practices, and other activities from the Section 404 permitting 

requirement. “Normal” farming, silviculture, and ranching is clarified in the 

agencies’ implementing regulations (40 C.F.R § 232.3(c)(1)) to mean established and 

ongoing activities to distinguish from activities needed to convert an area to 

farming, silviculture, or ranching and activities that convert a water to a non-water. 

The rule reflects this framework by clarifying the waters subject to the activities 

Congress exempted under Section 404(f)(1) are not jurisdictional by rule as 

“adjacent.” This provision interprets the intent of Congress and reflects the intent 

of the agencies to minimize potential regulatory burdens on the nation’s agriculture 

community, and recognizes the work of farmers to protect and conserve natural 

resources and water quality on agricultural lands. In addition, paragraph (b)(4) of 

the final rule identifies features and waters that the agencies have identified as 

generally not “waters of the United States” in previous preambles or guidance 

documents. Codifying these longstanding practices supports the agencies’ goals of 

providing greater clarity, certainty, and predictability for the regulated public and 

the regulators. The Agencies’ 1986 and 1988 preambles indicated that these waters 

could be determined on a case-specific basis to be “waters of the United States.” The 

rule does not allow for this case-specific analysis to be used to establish jurisdiction -

these waters are categorically excluded from jurisdiction. Specifically, the following 

features are not “waters of the United States”: artificial lakes and ponds created in 

dry land and used primarily for uses such as stock watering, irrigation, settling 

basins, rice growing, or cooling ponds.

12.1157 Is it consistent with the agencies’ public statements that the new rule would not be 

an expansion of jurisdiction relative to the existing regulations, and that the agricultural 

and ranching sectors, in particular, would not be subject to increased permitting 

requirements? The language of the proposed rule has caused some concern, particularly 

among the farming and ranching communities, about how the final rule could affect their 

normal activities. The final rule must support the statements of agency representatives 

that the longstanding exemptions for normal agricultural and ranching activities will be 

preserved, and that no new permitting requirements will be imposed upon farmers and 

ranchers in relation to such activities. (p. 74-75)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations. Recognizing 

the vital role of farmers in providing the nation with food and fiber, the Clean 

Water Act in Section 404(f)(1) (33 U.S.C. § 1344(f)(1)) exempts many normal 

farming activities such as seeding, harvesting, cultivating, planting, soil and water 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

728

conservation practices, and other activities from the Section 404 permitting 

requirement. “Normal” farming, silviculture, and ranching is clarified in the 

agencies’ implementing regulations (40 C.F.R § 232.3(c)(1)) to mean established and 

ongoing activities to distinguish from activities needed to convert an area to 

farming, silviculture, or ranching and activities that convert a water to a non-water. 

The rule reflects this framework by clarifying the waters subject to the activities 

Congress exempted under Section 404(f)(1) are not jurisdictional by rule as 

“adjacent.” This provision interprets the intent of Congress and reflects the intent 

of the agencies to minimize potential regulatory burdens on the nation’s agriculture 

community, and recognizes the work of farmers to protect and conserve natural 

resources and water quality on agricultural lands. In addition, paragraph (b)(4) of 

the final rule identifies features and waters that the agencies have identified as 

generally not “waters of the United States” in previous preambles or guidance 

documents. Codifying these longstanding practices supports the agencies’ goals of 

providing greater clarity, certainty, and predictability for the regulated public and 

the regulators. The Agencies’ 1986 and 1988 preambles indicated that these waters 

could be determined on a case-specific basis to be “waters of the United States.” The 

rule does not allow for this case-specific analysis to be used to establish jurisdiction -

these waters are categorically excluded from jurisdiction. Specifically, the following 

features are not “waters of the United States”: artificial lakes and ponds created in 

dry land and used primarily for uses such as stock watering, irrigation, settling 

basins, rice growing, or cooling ponds.

12.1158 It must be clear in the final rule that agricultural areas such as rice fields will not 

be captured within the terms of these definitions as jurisdictional waters. In addition, 

some of the exclusions for waters such as irrigation reservoirs can also benefit from 

additional clarity of language. (p. 76)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations. Recognizing 

the vital role of farmers in providing the nation with food and fiber, the Clean 

Water Act in Section 404(f)(1) (33 U.S.C. § 1344(f)(1)) exempts many normal 

farming activities such as seeding, harvesting, cultivating, planting, soil and water 

conservation practices, and other activities from the Section 404 permitting 

requirement. “Normal” farming, silviculture, and ranching is clarified in the 

agencies’ implementing regulations (40 C.F.R § 232.3(c)(1)) to mean established and 

ongoing activities to distinguish from activities needed to convert an area to 

farming, silviculture, or ranching and activities that convert a water to a non-water. 

The rule reflects this framework by clarifying the waters subject to the activities 

Congress exempted under Section 404(f)(1) are not jurisdictional by rule as 

“adjacent.” This provision interprets the intent of Congress and reflects the intent 

of the agencies to minimize potential regulatory burdens on the nation’s agriculture 

community, and recognizes the work of farmers to protect and conserve natural 

resources and water quality on agricultural lands. In addition, paragraph (b)(4) of 

the final rule identifies features and waters that the agencies have identified as 

generally not “waters of the United States” in previous preambles or guidance 

documents. Codifying these longstanding practices supports the agencies’ goals of 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

729

providing greater clarity, certainty, and predictability for the regulated public and 

the regulators. The Agencies’ 1986 and 1988 preambles indicated that these waters 

could be determined on a case-specific basis to be “waters of the United States.” The 

rule does not allow for this case-specific analysis to be used to establish jurisdiction -

these waters are categorically excluded from jurisdiction. Specifically, the following 

features are not “waters of the United States”: artificial lakes and ponds created in 

dry land and used primarily for uses such as stock watering, irrigation, settling 

basins, rice growing, or cooling ponds.

Association of State Floodplain Managers (Doc. #19452)

12.1159 We also recommend that the federal agencies consult with the states to develop or 

revise field procedures for identifying streams on a regional basis. (p. 3)

Agency Response: State, tribal and local governments have well-defined and 

longstanding working relationships with the Corps and EPA in implementing Clean 

Water Act programs. The final rule reflects the current state of the best available 

science and is guided by the need for clearer, more consistent and easily 

implementable standards to govern administration of the Act. The agencies will 

continue a transparent review of the science and learn from ongoing experience and 

expertise as the rule is implemented. The agencies plan to work with our regulatory 

partners on timely development of necessary training and guidance, as appropriate, 

to build upon existing working relationships, to inform stakeholders, and to ensure 

successful implementation of this rule. 

12.1160 ASFPM recommends development of implementation procedures and any 

necessary supporting rule language to allow for designation of categories of “other 

waters” found to have a significant nexus with downstream navigable waters as 

jurisdictional by rule on a state or regional basis. 

(...) we support protection of “other waters” on a categorical basis where it is supported 

by science, but believe that designation of additional categories of protected “other 

waters” through a future national rulemaking will be cumbersome and is likely to 

overlook locally important types of wetlands. Therefore, we recommend that the 

proposed rule, along with implementing guidance, allow for a process that includes the 

following attributes: 

 The process should provide for designation of categories of “other waters” having 

a significant nexus with navigable waters within a defined geographic region, in 

accordance with the provisions of the proposed rule regarding Waters of the 

United States, following gathering of appropriate documentation, public notice, 

and review. Such a list could be updated every fifth year, or at some other 

suitable interval. This would allow for identification, study, and designation or 

removal of categories of waters over time. 

 The process for designating categories of other waters that are jurisdictional by 

rule should be a collaborative one, involving one or more states or tribes and 

Corps Districts, and the EPA, along with other stakeholders. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

730

 The process should provide for public review and comment of any proposed 

designations, and define a process for timely approval of the designated categories 

by the federal agencies. (p. 5-6)

Agency Response: In the proposal, the agencies solicited comment regarding a 

variety of approaches to the “other waters” category. In addition, the agencies 

solicited comment on additional scientific research and data that might further 

inform decisions about “other waters.” In particular the agencies solicited 

information about whether current scientific research and data regarding 

particular types of waters are sufficient to support the inclusion of subcategories of 

types of “other waters,” either alone or in combination with similarly situated 

waters that can appropriately be identified as always lacking or always having a 

significant nexus. One of these alternate approaches in the preamble to the proposed 

rule was to determine by rule that certain additional subcategories of waters would 

be jurisdictional rather than addressed with a case-specific basis for determining 

significant nexus. Many commenters expressed support for the agencies’ proposed 

approach to “other waters,” included additional references to support “other 

waters” being protected by rule, and supported the treatment of certain categories 

of waters as similarly situated (that is, evaluating them in combination with 

similarly situated waters for the purposes of the significant nexus analysis). Some 

suggested the agencies establish jurisdiction over “other waters” by rule and 

provided detailed information in support of their position. Other commenters 

suggested additional subcategories of “other waters” be considered as jurisdictional 

or as similarly situated by rule, such as playa lakes, kettle lakes, and woodland 

vernal pools. However, there was a concern raised by other commenters about what 

was termed regulatory overreach and uncertainty created by the “other waters” 

category. Some commenters stated that the “other waters” category would allow 

the agencies to regulate virtually any water. To address this concern, the rule places 

limits on which waters could be subject to a case-specific significant nexus 

determination, in recognition that case-specific analysis of significant nexus is 

resource-intensive and to reflect the consideration for the body of science that exists. 

The agencies also establish by rule subcategories of waters that are “similarly 

situated” for the purposes of a significant nexus analysis because science supports 

that the subcategory waters fall within a higher gradient of connectivity. By not 

determining that any one of the waters available for case-specific analysis is 

jurisdictional by rule, the agencies are recognizing the gradient of connectivity that 

exists and will assert jurisdiction only when that connection and the downstream 

effects are significant and more than speculative and insubstantial.

12.1161 ASFPM suggests that the federal agencies coordinate with the states and tribes in 

development of guidance regarding implementation of the final rule. We recognize that 

details of on-the-ground implementation cannot be fully addressed in a rule, but these 

issues will be ripe for collaborative efforts upon publication of the final rule.

Development of guidance materials on the following topics by the federal agencies and 

state co-regulators would benefit the states, permit applicants, and the general public.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

731

 Criteria and field/remote procedures2268 for identifying streams – particularly 

ephemeral streams. This should be a joint effort by EPA/COE/States. Criteria 

should include not only bed and bank and OHWM, but also methods to determine 

that flow and biological or chemical processes are occurring that are important to 

downstream navigable waters. 

 Criteria and field/remote procedures for the identification of ditches -

jurisdictional and non-jurisdictional. 

Guidance on how to develop a proposal as well as the review and decision-making 

process for a category of “other waters” that could be identified as jurisdictional (not 

requiring the significant nexus tests) on a regional basis. This will be needed if the 

recommendation discussed previously to develop a process for identifying categories of 

“other waters” is adopted. (p. 10)

Agency Response: State, tribal and local governments have well-defined and 

longstanding working relationships with the Corps and EPA in implementing Clean 

Water Act programs. The final rule reflects the current state of the best available 

science and is guided by the need for clearer, more consistent and easily 

implementable standards to govern administration of the Act. The agencies will 

continue a transparent review of the science and learn from ongoing experience and 

expertise as the rule is implemented. The agencies plan to work with our regulatory 

partners on timely development of necessary training and guidance, as appropriate, 

to build upon existing working relationships, to inform stakeholders, and to ensure 

successful implementation of this rule. 

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

12.1162 Development of guidance materials on the following topics by the federal 

agencies and state co-regulators would benefit the states, permit applicants, and the 

general public. 

 Criteria and field/remote procedures269 for identifying streams – particularly

ephemeral streams. This should be a joint effort by EPA/Corps/States. Criteria 

should include not only bed and bank and OHWM, but also methods to determine 

that flow and biological or chemical processes are occurring that are important to 

downstream navigable waters. 

 Criteria and field/remote procedures for the identification of ditches –

jurisdictional and non-jurisdictional. 

 Criteria and field/remote procedures for identifying wastewater treatment systems 

exempt from the CWA and those waters regulated under the CWA particularly 

within MS4 boundaries and for the variety of stormwater treatment practices 

including structures that have are being installed in urban and urbanizing areas. 

 

268 [Footnote not provided in comment letter]

269 The appropriate use of GIS and other remote information where possible is recommended and then a field visit 

only if needed.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

732

 Clarification of the expectations of EPA with respect to the development of any 

new water quality standards for ephemeral streams that are not, because they are 

dry the great majority of the time, easily addressed by conventional standards for 

stream and rivers that run for sustained periods (intermittent) or continuously 

(perennial) throughout the year. 

 Guidance on how to develop a proposal as well as the review and decisionmaking process for a category of “other waters” that could be identified as 

jurisdictional (not requiring the significant nexus tests) on a regional basis. This 

will be needed if the recommendation discussed previously to develop a process 

for identifying categories of “other waters” is adopted. (p. 9-10)

Agency Response: State, tribal and local governments have well-defined and 

longstanding working relationships with the Corps and EPA in implementing Clean 

Water Act programs. The final rule reflects the current state of the best available 

science and is guided by the need for clearer, more consistent and easily 

implementable standards to govern administration of the Act. The agencies will 

continue a transparent review of the science and learn from ongoing experience and 

expertise as the rule is implemented. The agencies plan to work with our regulatory 

partners on timely development of necessary training and guidance, as appropriate, 

to build upon existing working relationships, to inform stakeholders, and to ensure 

successful implementation of this rule. 

Center for Rural Affairs (Doc. #15029)

12.1163 It is important for the two agencies proposing this rule to interact with NRCS and 

ensure all three organizations are confident and consistent in their communication with 

farmers. The rule’s attempt to provide clarity will be futile if NRCS, the EPA, and Corps 

are communicating mixed messages to the regulated community due to inadequate 

coordination. Just increasing the profile of and communications surrounding the 

regulations, even without much additional regulatory action, will push farmers toward 

NRCS for technical assistance. EPA and the Corps must recognize this reality, and take 

appropriate steps to help NRCS maintain and build the necessary capacity to respond to 

increased requests for technical assistance. In March 2014, the agencies issued a 

Memorandum of Understanding (MOU) regarding implementation of the WOTUS 

Interpretive Rule. Moving forward, appropriate coordination might include an additional 

Memorandum of Understanding between the involved agencies outlining a framework for 

providing farmers and ranchers with appropriate technical assistance relating to the 

WOTUS proposed rule. Additionally, those in the agricultural community may be less 

hostile to the proposed rule knowing that there is a clear plan for implementation and that 

they have a voice through NRCS. 

Recommendation: Facilitate ongoing interagency coordination between the EPA, the 

Corps, and the Natural Resources Conservation Service to deliver consistent information 

and technical assistance to those in the agricultural community. (p. 8)

Agency Response: State, tribal and local governments have well-defined and 

longstanding working relationships with the Corps and EPA in implementing Clean 

Water Act programs. The final rule reflects the current state of the best available 

science and is guided by the need for clearer, more consistent and easily 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

733

implementable standards to govern administration of the Act. The agencies will 

continue a transparent review of the science and learn from ongoing experience and 

expertise as the rule is implemented. The agencies plan to work with our regulatory 

partners on timely development of necessary training and guidance, as appropriate, 

to build upon existing working relationships, to inform stakeholders, and to ensure 

successful implementation of this rule. It is also important to note that the 

interpretive rule titled, “U.S. Environmental Protection Agency and U.S. 

Department of the Army Interpretive Rule Regarding the Applicability of Clean 

Water Act Section 404(f)(l)(A)," was withdrawn by the agencies as required by the 

Consolidated and Further Continuing Appropriation Act on January 29th, 2015. 

12.1164 As previously stated, those in the agricultural community are likely to turn to 

NRCS for information and assistance on the WOTUS rule. Therefore, the EPA and 

Corps must not only coordinate with NRCS, but must also recognize the strain on NRCS 

resources associated with the rule. The Center for Rural Affairs is supportive of moving 

forward with the rulemaking process, but adequate resources must be available for NRCS 

to provide consistent and helpful service to farmers and ranchers. 

For this reason, we have written a letter to the White House Office of Management and 

Budget to encourage additional funding for NRCS dedicated to providing technical 

assistance regarding the WOTUS rule. While NRCS will not have a regulatory 

responsibility, offering the agency adequate resources to provide technical assistance and 

educate farmers on the rule can result in smoother, more consistent implementation for 

the EPA and Corps and, ultimately, improved water quality. We urge the agencies to 

support this effort and come together in support for increased NRCS funding for WOTUS 

implementation. 

Recommendation: Support efforts to provide additional funding for the Natural 

Resources Conservation Service to meet the predicted increase in requests for technical 

assistance regarding the WOTUS rule. (p. 9)

Agency Response: The agencies agree that NRCS has been and will continue to be 

a valued and helpful partner on issues relating to agricultural activities. 

Western Landowners Alliance (Doc. #15380)

12.1165 Relationships with States – The Agencies should assure that individual states are 

prepared and not over-burdened as a result of the Proposed Rule, and that this proposal 

truly improves resource protection. The Agencies should provide assistance and 

resources for each state to assess their own statutory authorities over waters and wetlands, 

and whether this Rule or a related one affects or could improve protections of these 

resources in these states. For example, Wisconsin feels they are completely capable of 

protecting their resources irrespective of where CWA jurisdiction extends, while some 

feel Idaho needs more encouragement to protect water quality. Each state must assess 

their jurisdiction and its relation to the WOTUS definition and related protections. (p. 2)

Agency Response: There are a number of CWA programs that utilize the 

definition of “waters of the United States.” States and tribes may be authorized by 

the EPA to administer the permitting programs of CWA sections 402 and 404. 

Additional CWA programs that are of importance to states and tribes include the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

734

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

and total maximum daily load (TMDL) programs under section 303, and the section 

401 state water quality certification process. States and tribes, consistent with the 

CWA, retain full authority to implement their own programs to more broadly and 

more fully protect the waters in their jurisdiction. Nothing in this rule limits or 

impedes any existing or future state or tribal efforts to further protect their waters. 

In fact, providing greater clarity regarding what waters are subject to CWA 

jurisdiction will reduce the need for permitting authorities, including the states and 

tribes with authorized section 402 and 404 CWA permitting programs, to make 

jurisdictional determinations on a case-specific basis.

12.1166 Functional Equivalent and Deferral Period – Regulatory implementation should 

ensure a “functional equivalent” for states and/or localities that are implementing 

resource protections at or above CWA standards, and a deferral period where they are 

not, to encourage local jurisdiction. (p. 2-3)

Agency Response: States and tribes, consistent with the CWA, retain full 

authority to implement their own programs to more broadly and more fully protect 

the waters in their jurisdiction. Nothing in this rule limits or impedes any existing or 

future state or tribal efforts to further protect their waters. In fact, providing 

greater clarity regarding what waters are subject to CWA jurisdiction will reduce 

the need for permitting authorities, including the states and tribes with authorized 

section 402 and 404 CWA permitting programs, to make jurisdictional 

determinations on a case-specific basis.

12.1167 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 beneficial to the dialogue on this 

proposal. (p. 3)

Agency Response: Thank you for this comment. As you point out, the 

environmental effects, both beneficial and adverse, of proposed activities can vary 

widely depending, in part, on the location, nature and scope of the activity. This 

additional context is indeed helpful.

12.1168 Get This Discussion Out of The Beltway – The Jurisdictional Rule had problems 

from the roll-out. The Corps and the EPA regional offices have not been sufficiently 

involved to make these proposals real and relevant to the varied geographies and 

resources across the nation. (p. 3)

Agency Response: The final rule reflects the judgment of the Corps and EPA 

when balancing the science, the statute, the Supreme Court opinions, the agencies’ 

expertise, and the regulatory goals of providing clarity to the public while protecting 

the environment and public health. Since the Rapanos decision, the agencies have 

extensive experience making significant nexus determinations, and that experience 

and expertise has informed the judgment of the agencies as reflected in the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

735

provisions of the final rule. The agencies, most often the Corps, have made more 

than 500,000 CWA jurisdictional determinations since 2008. Of those, 

approximately 250,000 have been case-specific significant nexus determinations. 

The agencies have made determinations in every state in the country, from the arid 

West to the tropics of Hawaii, from the Appalachian Mountains in the East to the 

lush forests of the Northwest. With field staff located across 38 Corps District offices 

and 10 EPA regional offices, the agencies have almost a decade of nationwide 

experience in making significant nexus determinations. Through this experience, 

the agencies developed wide-ranging technical expertise in assessing the hydrologic 

flowpaths along which water and materials are transported and transformed that 

determine the degree of chemical, physical, or biological connectivity, as well as the 

variations in climate, geology, and terrain within and among watersheds and over 

time that affect the functions performed by streams and wetlands for downstream 

traditional navigable waters, interstate waters or the territorial seas. In addition, the 

agencies have experience and expertise for decades prior to and since the SWANCC 

and Rapanos decisions with making jurisdictional determinations, and consider 

hydrology, ordinary high water mark, biota, and other technical factors in 

implementing Clean Water Act programs. This immersion in the science along 

with the practical expertise developed through case-specific determinations across 

the country and in diverse settings is reflected in the agencies’ conclusions with 

respect to waters that have a significant nexus, as well as where the agencies have 

drawn lines demarking where “waters of the United States” end.

Kansas Natural Resource Council (Doc. #14599)

12.1169 Whereas the EPA intends to streamline the regulatory process associated with the 

proposed rule by depending more upon desktop rather than field observation, the KNRC 

laments the absence of field personnel. Kansans will only see a mass of government red 

tape and overreach when a letter from the Corps of Engineers or the EPA lands on the 

desk. Of course no one wants to pay for case-by-case assessments, but the lack of boots 

in the field is a lost opportunity for educating the public and building cooperative 

relationships. (p. 2)

Agency Response: In response to Supreme Court opinions, the agencies issued 

guidance in 2003 (post-SWANCC) and 2008 (post-Rapanos). However, these 

guidance documents are not effective in providing the public or agency staff with 

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

jurisdictional determinations. Many waters are currently subject to case-specific 

jurisdictional analysis to determine whether a “significant nexus” exists, and this 

time and resource intensive process can result in inconsistent interpretation of CWA 

jurisdiction and perpetuate ambiguity over where the CWA applies. As a result of 

the ambiguity that exists under current regulations and practice following these 

recent decisions, virtually all waters and wetlands across the country theoretically 

could be subject to a case-specific jurisdictional determination. Members of 

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

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

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

concurrence in Rapanos underscores the value of this rulemaking effort. In this 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

736

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.

12.7. EMERGING TECHNOLOGIES OR APPROACHES THAT WOULD IMPROVE JD

EFFICIENCY/ACCURACY

Specific Comments

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

12.1170 The preamble to the rule recommends that EPA and the Corps trace a tributary 

connection through direct observation or U.S. Geological Survey maps, aerial 

photography or other reliable remote sensing information, or other appropriate 

information. Does this mean that if EPA, the Corps, or a third party can discern a flow 

path from an aerial photograph or remote sensing technology, then it could be covered by 

the CWA? (p. 16)

Agency Response: While the preamble addresses the use of remote sensing and 

mapping to assist in establishing the presence of water, such tools include the USGS 

topographic data, the USGS National Hydrography Dataset (NHD), Natural 

Resources Conservation Service (NRCS) Soil Surveys, and State or local stream 

maps, as well as the analysis of aerial photographs, and light detection and ranging 

(also known as LIDAR) data, and desktop tools that provide for the hydrologic 

estimation of a discharge sufficient to create an ordinary high water mark, such as a 

regional regression analysis or hydrologic modeling. These sources of information 

can sometimes be used independently to infer the presence of a bed and banks and 

another indicator of ordinary high water mark, or where they correlate, can be used 

to reasonably conclude the presence of a bed and banks and ordinary high water 

mark. The agencies have been using such remote sensing and desktop tools to 

delineate tributaries for many years where data from the field are unavailable or a 

field visit is not possible. 

12.1171 The June 5th Draft Report of the SAB on the Connectivity Study notes that light 

detection and ranging (LiDAR) digital elevation models are increasing the ability to see 

more features on the land. Some may identify these features as stream networks. 

“Hence, the degree of connectivity will be determined in some part by in the database 

and/or data collection technology used for the analysis.” Does EPA believe that CWA 

jurisdiction can expand as technology expands? (p. 16)

Agency Response: The agencies have been using remote sensing and desktop tools 

such as LiDAR to delineate tributaries for many years where data from the field are 

unavailable or a field visit is not possible. As agency budgets contract forcing field 

visits become less common greater use of remote sensing and desktop tools will have 

to fill in the gaps. However the use of remote sensing and desktop tools is based on 

studies and or experience showing that use of the remote sensing and desktop tools 

results in the same extent of jurisdiction as a field investigation. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

737

Governor’s Office – State of Utah (Doc. #16534)

12.1172 It is critical that the EPA and/or Army maintain a database that allows a 

graphical/visual representation of jurisdictional determinations. This would allow the 

public and other governmental agencies the ability to see what previous jurisdictional 

determinations have been made – perhaps on the same stream location. This 

recommendation is made knowing that the jurisdictional determinations are good for only 

five years. It is unreasonable for proponents of projects to be obligated to assume 

jurisdiction in every instance in order to move ahead with their projects. (p. 15)

Agency Response: The Corps and EPA are committed to an efficient and 

transparent regulatory program. The agencies intend to pursue implementation 

practices that allow for the tracking and evaluation of jurisdictional determinations 

to inform future decisions and the public of CWA jurisdiction.

State of Nevada Department of Conservation et al (Doc. #16932)

12.1173 To classify tributaries and other waters as jurisdictional on a per se basis, we 

suggest that EPA consider a different approach. Instead of trying to determine 

jurisdiction using categorical definitions of waters, EPA should utilize a more functional 

methodology. 

The core waters, major interstate waterways, are easily determined and accepted as 

jurisdictional. Other waters considered per se jurisdictional should have a continuous 

surface connection to a core water, with perennial flow or at least consistent seasonal 

flow. The Corps has interpreted consistent seasonal flow as flowing at least three months

each year.270 This functional definition would ensure that only waters with significant 

impacts on core waters would be per se jurisdictional. Other waters could be evaluated 

on a case-by-case basis. 

Waters that are not per se jurisdictional should have a rebuttable presumption that they 

are non-jurisdictional until proven otherwise. The burden should be on EPA and the 

Corps to determine jurisdiction in a timely manner after requests for jurisdictional 

determinations are made, and the agencies should work with states to develop appropriate 

time frames. (p. 4)

Agency Response: The agencies have provided additional clarity and certainty in 

the final rule, however have not changed the long standing practice of not assuming 

the jurisdictional status of a water by creating a reputable presumption. The 

agencies have determined that to meet the rule’s definition of a “tributary” a water 

must flow directly or to another water or waters which eventually flow into a 

traditional navigable water, interstate water, or the territorial sea. Waters that are 

not part of the tributary system of a traditional navigable water, interstate water, or 

the territorial seas, do not meet the definition of “tributary” and are not 

jurisdictional under this provision of the rule. For example, an ephemeral stream 

that exists entirely within one state, is not itself a traditional navigable water, and 

whose surface or shallow subsurface flows eventually end without connecting to a 

 

270 Deerfield Plantation Phase II-B Property Owners Ass’n, Inc. v. U.S. Army Corps of Engineers, 501 Fed. Appx. 

268, 271 n.1 (4th Cir. 2012).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

738

traditional navigable water, interstate water, or the territorial seas is not a “water of 

the United States” as a “tributary” for purposes of this rule. The agencies have also 

determined that a water that does not otherwise meet the definition of adjacency is 

evaluated on a case-specific basis for significant nexus where it is located within 

4,000 feet of the high tide line or ordinary high water mark of an (a)(1) through 

(a)(5) water. Therefore, on a case-specific basis a water not otherwise meeting the 

definition of “tributary” may be subject to case specific nexus determination. 

12.1174 Another current source of confusion is that jurisdictional determinations made by 

the Corps under section 404 include a disclaimer that the decision applies only to section 

404, and not to the many other sections of the CWA. To provide certainty and clarity, 

waters should either be jurisdictional or not. EPA and the Corps should unify the process 

so there are no incomplete or conflicting determinations. 

A very beneficial tool to add clarity would be a map of Waters of the United States in 

each state. This would go a long ways toward reducing uncertainty, which is a common 

goal of all parties, and would ease resistance against the Proposed Rule. 

It would improve cooperation and acceptability if states were provided a role in the 

process as well. State regulators maintain a critical balance between broad federal 

requirements and specific regional conditions. Without some flexibility in the CWA, 

one-size-fits-all national requirements can complicate existing regulatory programs by 

not accounting for local climatic, hydrologic and legal factors. Unnecessary federal 

jurisdiction brings a host of problems for farmers, land developers and homeowners, 

since CWA permitting is time consuming, very expensive and legally complicated. Input 

from states during the jurisdictional determination process would provide valuable 

information and help avoid misinterpretations, delays and unintended consequences. (p. 

5)

Agency Response: The agencies anticipate that the clarity and certainty of the 

final rule will ensure that jurisdictional determinations will be consistent across 

CWA programs. Determinations of jurisdiction are done on a case by case basis 

based on the best information available and they are only valid for five years 

because environmental conditions which can shape the outcome can change over 

time. For example changes in ground and surface water levels due to changes in 

water usage and losses through evapotranspiration. The agencies welcome 

information from states and other parties that would help identify the extent of 

“Waters of the United States.” Because the agencies generally only conduct 

jurisdictional determinations at the request of individual landowners, we do not 

have maps depicting the geographic scope of the CWA. Such maps do not exist and 

the costs associated with a national effort to develop them are cost prohibitive and 

would require access to private property across the country. 

North Dakota Farmers Union (Doc. #16390.1)

12.1175 [Regarding inconsistencies among Agencies] One of the greatest sources of 

farmers’ and ranchers’ distrust of the Agencies is rooted in inaccurate mapping and the 

discrepancy among the U.S. Department of Agriculture Natural Resources Conservation 

Service (NRCS), the U.S. Fish and Wildlife Service (USFWS), and the Corps in wetlands 

delineation determinations and mitigation requirements. The impact is that farmers and 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

739

ranchers need to receive separate and time-consuming determinations and mitigation 

plans on the very same wetland. 

First, the National Wetlands Inventory Maps, providing the starting point for wetlands 

determinations and assumed to be appropriate as the foundation for this rule, has 

inaccuracies. Not only do the inaccuracies breed distrust, but farmers and ranchers also 

bear costs of refuting the map. Second, the Agencies and NRCS base wetland 

determination decisions on the 1987 Corps Delineation Manual (the Manual), and its 

applicable regional supplements state-by-state. Generally, the Corps will recognize 

NRCS determinations of wetlands and farmed wetlands, and will recognize NRCS 

determinations of prior converted wetlands as exempt. However, in very common

circumstances, the Corps will often find wetlands where NRCS has specifically found 

something to be “non-wetland.” Third, we are aware of situations in which the Corps 

makes a determination without finding all three wetlands characteristics identified in the 

Manual: (1) hydric soils, (2) ability to support hydrophytic vegetation, and (3) sufficient 

hydrology to create conditions for making hydric soils and establishing hydrophytic 

vegetation.

Recommendation: We recommend a review of the National Wetlands Inventory Maps, 

the Manual and regional supplements. We recommend the Agencies specifically include 

this rule the acceptance of determinations by NRCS. We also recommend the Agencies 

enter into a Memorandum of Understanding with the NRCS and the USFWS to provide a 

one-stop-shop approach for farmers and ranchers. (p. 1-2)

Agency Response: The agencies are recognize the importance of agriculture and 

this rule does not affect the long standing exemptions provided in the Clean Water 

Act for normal farming and those for agricultural stormwater and irrigation return 

flow. The agencies believe this rule will make identifying jurisdictional and nonjurisdictional waters simpler and more efficient, which will be of benefit to the 

public and agencies alike.

There is no change in the treatment of NRCS determinations. The Joint Guidance 

from the Natural Resources Conservation Service (NRCS) and the Army Corps of 

Engineers (COE) Concerning Wetland Determinations for the Clean Water Act and 

the Food Security Act of 1985, (dated February 25, 2005) remains valid. The final 

rule does not change the definition of wetlands nor in any way change the tools used 

for delineating wetlands. 

Agribusiness Association of Kentucky (Doc. #18005)

12.1176 Although the text in the proposal provides more confusion than clarity, EPA 

rejects the one tool that could provide certainty to farmers and ranchers – maps. To 

identify how deep into the countryside the “tributary networks” would go, our 

consultants, Geosyntec Consultants, used the same U.S. Geological Survey (USGS) data 

employed by the Agencies to create maps of the nation’s perennial, intermittent and some 

ephemeral streams.271 Today’s sophisticated technology allowed the map programs to 

zoom in closely on the ground to show exactly what streams and 100-year floodplains 

 

271 See www.tinyurl.com/epawaters and a selection of screen shots at Appendix B.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

740

have been identified by USGS and what the surrounding landscape looks like. The 

Agencies apparently had the same datasets and maps in their records (supposedly without 

the zoom-in capability), but did not make them part of the public record for this 

rulemaking.272 These maps should have been part of the public record.

Once the maps were made public, the Agencies disclaimed their usefulness and promised 

that the maps would not be used to determine jurisdiction.273 The fine print in the 

proposed rule, however, indicates that the Agencies do intend to use USGS maps, among 

other tools, to identify jurisdictional tributaries. The proposal states that the Agencies 

have various tools at their disposal to trace whether a water eventually flows into a 

traditional navigable water, interstate water, territorial sea or jurisdictional impoundment, 

including “U.S. Geological Survey maps, aerial photographs or other reliable remote 

sensing information or other appropriate information.”

274

 The maps may not be legal 

determinations of jurisdiction, but the Agencies cannot disavow the influence of these 

USGS maps and their datasets on jurisdiction. In fact, EPA Administrator McCarthy 

testified that the EPA’s maps would be used for jurisdictional determinations.275 For 

farmers and ranchers who can see their farm with a highlighted line indicating an 

ephemeral stream running through it, the maps are a strong indication of just how far the 

reach of jurisdiction will extend into the countryside. (p. 4-5)

Agency Response: While the preamble addresses the use of remote sensing and 

mapping to assist in establishing the presence of water, such tools include the USGS 

topographic data, the USGS National Hydrography Dataset (NHD), Natural 

Resources Conservation Service (NRCS) Soil Surveys, and State or local stream 

maps, as well as the analysis of aerial photographs, and light detection and ranging 

(also known as LIDAR) data, and desktop tools that provide for the hydrologic 

estimation of a discharge sufficient to create an ordinary high water mark, such as a 

regional regression analysis or hydrologic modeling. These sources of information 

can sometimes be used independently to infer the presence of a bed and banks and 

another indicator of ordinary high water mark, or where they correlate, can be used 

to reasonably conclude the presence of a bed and banks and ordinary high water 

mark. The agencies have been using such remote sensing and desktop tools to 

delineate tributaries for many years where data from the field are unavailable or a 

field visit is not possible. However determinations of jurisdiction are done on a case 

by case basis based on the best information available, which often includes a mix of 

 

272 The maps were first requested, obtained and publicly released by the House Science Committee, U.S. House of 

Representatives and can be found at http://science.house.gov/epamaps-state-2013#overlay-context.

273 In EPA’s official blog, Tom Reynolds claims “EPA has never and is not now relying on maps to determine 

jurisdiction under the Clean Water Act.” EPA Connect, the Official Blog of EPA’s Leadership, August 28, 2014 at 

3:43 EDT “Mapping the Truth.” http://blog.epa.gov/epaconnect/2014/08/mapping-the-truth.

274 79 Fed. Reg. at 22,202.

275 In a March 27, 2014 hearing before the House Appropriations Committee Subcommittee on Interior, 

Environment, and Related Agencies, Administrator Gina McCarthy told Chairman Rogers that EPA has “some

mapping in the docket associated with this rule that people can access at this point.” Administrator McCarty went 

on to say: “There has been no mapping before, there has been no certainty so we are identifying the rivers and 

streams and tributaries and other water bodies that science tells us is really necessary to protect the chemical, 

physical, and biological integrity of navigable waters. We have taken the opportunity to map those; we are certain 

we will get comment on them.”
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

741

different remote sensing and desktop tools and a field visit. It is beyond the scope of 

this rulemaking to make any specific jurisdictional determinations and beyond the 

resources of the agencies to make jurisdictional determinations for all waters within 

a state at any one time. 

SD1 (Doc. #15140)

12.1177 It is our assessment that the publication of the proposed rule is premature at this 

time, and ... a more extensive review of the consequences of expanding the definition of 

WOTUS on all aspects of the CWA program must be conducted before the full impact of 

this rule can be assessed. As such, we propose that the agencies: ...

 Establish a definitive approach to establishing significant nexus that takes into 

account regional variability in hydrologic regimes of the United States;

 Develop a companion guidance document to determine significant nexus to 

accompany the proposed definition when reissued; ...

 Develop specific exclusion language into the rule for storm water control 

measures and BMPs; (p. 8)

Agency Response: The final rule includes several changes to provide the 

additional clarity requested. The changes include identifying the specific functions 

to be accessed in a significant nexus evaluation, 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, reducing state and federal workload associated 

with jurisdictional determinations. In addition, the existing state programs 

implementing the CWA were developed under the prior regulatory definition of 

“Waters of the United States,” the existing programs have in the past and can 

continue to address the scope of “Waters of the United States” under the final rule.

Clearwater Watershed District, et al (Doc. #9560.1)

12.1178 [The following was included under section II of comment letter –

Recommendations to Improve Efficiency] The proposed rule’s preface invites comment 

on identifying emerging technologies or approaches that would save time and money and 

improve efficiency for regulators and the regulated community.

We support a unified approach by all of federal agencies in recognition of each agency’s 

wetland delineations, determinations, and mitigation requirements.

One of the greatest generators of distrust within the regulated community is failure of 

each agency of the federal government to recognize and support each other’s wetland 

determinations and mitigation requirements. In Minnesota, local government units and 

landowners often deal with the Natural Resources Conservation Service under the 

provisions of the Food Security Act of 1985, the U.S. Fish and Wildlife Service under the 

National Wildlife Refuge System Administration and Duck Stamp Acts, and the U.S. 

EPA and Army Corps under the Clean Water Act. While the laws administered by each 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

742

agency are different and have different objectives, each agency uses the Corps of 

Engineers Wetlands Delineation Manual of 1987.276

The lack of communication, understanding, and agreement between the federal agencies 

on wetland delineation determinations adds time, cost, and undue burdens to the 

permitting process of each project. In Minnesota, it is common practice for the Army 

Corps to be the last agency to issue its wetland determination. It is evident that the 

internal policy of the office in our state is to “wait and see” what the other agencies do 

before issuing its own determination and delineation. 

In addition, projects that require wetland mitigation and replacement are often delayed by 

years due to lack of communication and agreement between the agencies on mitigation 

ratios and requirements. Each agency issues a different mitigation requirement which 

makes it difficult for proponents of public drainage and water quality enhancement 

projects to plan and keep projects on schedule. Projects are often delayed years by this 

process and many projects which would improve the quality of water flowing through 

Minnesota’s lakes, streams, and wetlands are abandoned.

A unified approach by all agencies of the federal government to wetland identification, 

delineation, and mitigation would decrease the burden on the regulatory agencies, save 

administrative costs to the agencies and the regulated community, and help bring clarity 

and trust back to the process.

Recommendation: We recommend that the agencies amend the definition of” wetlands”

to include acceptance of wetland delineations conducted by the Department of 

Agriculture. We further encourage the U.S. EPA and the Department of the Army to 

enter into a Memorandum of Agreement with the Department of Agriculture and the 

Department of the Interior concerning delineation of wetlands for purposes of the Clean 

Water Act and the Food Security Act. (p. 5-6)

Agency Response: The agencies believe this rule will make identifying 

jurisdictional and non-jurisdictional waters simpler and more efficient, which will 

be of benefit to the public and agencies alike. There is no change in the treatment of 

NRCS determinations. The Joint Guidance from the Natural Resources 

Conservation Service (NRCS) and the Army Corps of Engineers (COE) Concerning 

Wetland Determinations for the Clean Water Act and the Food Security Act of 

1985, (dated February 25, 2005) remains valid. The final rule does not change the 

definition of wetlands nor in any way change the tools used for delineating wetlands. 

 

276 Prior to 1986, no manual existed for government agency reference to delineate wetlands. In 1987, the U.S. Army 

Corps of Engineers and in 1988, the U.S. Environmental Protection Agency, released their own versions of 

delineation manuals, each relying on the presently used parameters of (1) vegetation, (2) soils, and (3) hydrology to 

establish wetland boundaries. After several years of field-testing, a 1989 revised manual was released and agreed to 

by all four federal agencies: the NRCS, the Corps, the EPA, and the U.S. Fish and Wildlife Service. In 1991, public 

concerns that that 1989 manual resulted in over-delineation of wetlands led to review of the 1989 manual, with 

revisions proposed in August of 1991. In response to comments received during the public comment period, the 

EPA responded by withdrawing the proposed manual. In 1992, Congress appropriated funds to commission the 

National Academy of Science to study wetland delineation. Congress prohibited the Corps from using the 1989 

manual during the interim study period. The Corps returned to use of the 1987 manual.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

743

Western Landowners Alliance (Doc. #15380)

12.1179 Documentation – It would be helpful if, whatever jurisdictional extent is 

determined, if that could be mapped and made available online. Granted, there may be 

some ongoing determinations for certain waters, but the certainty for some would 

outweigh the uncertainty for others. And the online information could clearly instruct 

viewers to contact the Corps on jurisdiction for higher order or “other” waters, or include 

information such that landowners can do as much of a self-determination as possible. (p. 

1)

Agency Response: The Corps and EPA are committed to an efficient and

transparent regulatory program. Because the agencies generally only conduct 

jurisdictional determinations at the request of individual landowners, we do not 

have maps depicting the geographic scope of the CWA. Such maps do not exist and 

the costs associated with a national effort to develop them are cost prohibitive and 

would require access to private property across the country. The U.S. Geological 

Survey and the U.S. Fish and Wildlife Service collect information on the extent and 

location of water resources across the country and use this information for many 

non-regulatory purposes, including characterizing the national status and trends of 

wetlands losses. This data is publicly available and EPA has relied on USGS and 

USFWS information to characterize qualitatively the location and types of national 

water resources. This information is depicted on maps but not for purposes of 

quantifying the extent of waters covered under CWA regulatory programs.

12.1180 Relationship to Other Programs and Factors – The agencies should investigate the 

effects and potential of other programs and factors to be more protective or destructive of 

wetland resources than can be effected by a regulatory program. For example, ethanol 

mandates have driven up prices of commodities such that producers are being driven out 

of programs that protect wetlands and other habitat, as well as being incentivized to break 

into ground that previously produced other habitat, soil, and water benefits. (p. 2)

Agency Response: The investigation of the effects of other programs on wetland 

resources is outside the scope of this rulemaking. 

12.1181 Regulatory Burden and Agency Resources – There is an important prohibition in 

the CWA against discharging pollutants into our waters and destroying valuable 

wetlands. It is appropriate for that to be illegal. Where it can’t be avoided however, the 

permitting process should not be onerous, and staff should be sufficiently available and 

knowledgeable so as to not create an undue burden on permittees. (p. 2)

Agency Response: The Corps and EPA are committed to an efficient and 

transparent regulatory program. 

12.1182 Opportunities for Incentives – The Agencies should evaluate where incentive 

programs, rather than regulatory programs can be effective in conserving habitats sought 

to be conserved through this proposal, including whether Sodbuster and Swampbuster 

programs are effective and could be enlisted (if not already) to protect “other” waters, 

including isolated wetlands. These are valuable resources, but may be more effectively 

managed through USDA programs. (p. 2)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

744

Agency Response: The investigation of the effects of other programs on wetland 

resources is outside the scope of this rulemaking. 

12.1183 Accommodate Multiple Uses for Operating Ranches – Management of many 

ranches in the West is moving toward diversification of income sources, meaning that 

some water features may no longer be “solely” used for agriculture. WLA suggests 

evaluating whether activities associated with a property taxed in agricultural status would 

provide needed water resource protection, while accommodating this increasing 

diversification of agricultural activities. (p. 3)

Agency Response: The investigation of the effects of other programs on wetland 

resources is outside the scope of this rulemaking. 

12.1184 Encourage Innovation – Where possible, the rule should encourage innovation in 

water resource protection and conservation, including not tying funding or permitting to 

over-engineered practices that can harm resources rather than protect them. (p. 3)

Agency Response: Funding and the review of specific practices in the permitting 

program are outside the scope of this rulemaking. 

Galveston Bay Foundation (Doc. #13835)

12.1185 Regarding implementation of the rule, we believe that when making “desktop”

determinations of jurisdiction, the EPA and Corps should consult with those in our area 

who are familiar with the science of our unique watershed. (p. 3)

Agency Response: The Corps and EPA are committed to an efficient and 

transparent regulatory program and welcome information from all sources to 

inform the jurisdictional determination process. 

Tulane Environmental Law Clinic; and Tennessee Clean Water Network; et al. (Doc. #15123)

12.1186 Finally, we ask that the Corps make public both its jurisdictional and nonjurisdictional determinations for as long as the determinations are current and in force (up 

to five years). Although we have not undertaken a comprehensive study of all Corps 

districts, our experience in the Mississippi River Basin districts has shown us that the 

availability of this information is spotty at best. Being able to access jurisdictional 

determinations will make it easier to aggregate similarly situated waters for purposes of 

future determinations and will save time for landowners and Corps personnel alike by 

allowing them to refer to the previous determination instead of starting from scratch each 

time. (p. 2)

Agency Response: The Corps and EPA are committed to an efficient and 

transparent regulatory program. The agencies intend to pursue implementation 

practices that allow for the tracking and evaluation of jurisdictional determinations 

to inform future decisions and the public of CWA jurisdiction.

12.1187 It is critically important that the federal agencies, interested groups, and the public 

have ready access to as much information as possible and practicable about jurisdictional 

determinations. The agencies should learn from and correct numerous problems that 

developed in the last decade. Key to public participation is the regular posting by the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

745

Corps districts of the jurisdictional determination forms. RGL 07-01 specifies that 

completed jurisdictional forms “shall be posted within 30-days of completion,”

277 but it is 

difficult to discern whether this is followed in practice without monitoring district 

websites regularly. The Corps and EPA headquarters should ensure that jurisdictional 

decisions are publicly available in a timely way. All districts should be required to post 

all completed determinations at least once a week.278 Additionally, jurisdictional 

determinations should remain available on Corps websites for five years, that is, while 

they are in effect.279 (p. 13)

Agency Response: The Corps and EPA are committed to an efficient and 

transparent regulatory program. The agencies intend to pursue implementation 

practices that allow for the tracking and evaluation of jurisdictional determinations 

to inform future decisions and the public of CWA jurisdiction.

12.1188 Moreover, the proposed rule should include a process by which case-by-case 

determinations of significant nexus are recorded and used in future decisions. The rule 

should include a requirement that districts compile and publicize such determinations in 

order to assist in identifying other similarly situated waters with the region. 

The Corps’ district personnel (and EPA field staff) should be required to use a 

common, publicly accessible, database for JDs. Such a tool will enable concerned 

citizens, resource managers, and others to assess whether similar waters are being 

treated similarly across the country, track the amount of resources found nonjurisdictional and consider whether to make policy or regulatory changes to adequately 

protect important resources. (p. 14)

Agency Response: The Corps and EPA are committed to an efficient and 

transparent regulatory program. The agencies intend to pursue implementation 

practices that allow for the tracking and evaluation of jurisdictional determinations 

to inform future decisions and the public of CWA jurisdiction.

Center for Water Advocacy et al. (Doc. #15225)

12.1189 Interpreting the definition of WOTUS broadly as originally intended could further 

protect water and fishery resources in the United States by encouraging federal agencies 

to: 1) develop a transboundary treaty that will primarily regulate mining and other 

development activity affecting and maintaining and protecting healthy wild salmon 

 

277 U.S. Army Corps of Eng’rs, Regulatory Guidance Letter No. 07-01, Practices for Documenting Jurisdiction 

under Sections 9 & 10 of the Rivers & Harbors Act (RHA) of 1899 and Section 404 of the Clean Water Act (CWA), 

at 7 (June 5, 2007), available at http://www.usace.army.mil/Portals/2/docs/civilworks/RGLS/rgl07- 01.pdf. 

Although some aspects of this RGL were updated by RGL 08-02, this website posting provision was not. See U.S. 

Army Corps of Eng’rs, Regulatory Guidance Letter No. 08-02, Jurisdictional Determinations (June 26, 2008), 

available at http://www.usace.army.mil/Portals/2/docs/civilworks/RGLS/rgl08-02.pdf.

278 Some districts seem to have no problem posting JD forms promptly. See, e.g. U.S. Army Corps of Eng’rs, Seattle 

District, Jurisdictional Determinations, available at 

http://www.nws.usace.army.mil/Missions/CivilWorks/Regulatory/JurisdictionalDeterminations.aspx (as of 

November 7, most recent determination dated October 23).

279 This should not be difficult, and some districts do so already. See, e.g., U.S. Army Corps of Eng’rs, Vicksburg 

District, Approved Jurisdictional Determinations, available at http://www.mvk.usace.army.mil/ 

Missions/Regulatory/JurisdictionalDeterminations/ApprovedJDs.aspx.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

746

populations in Alaska/Canada transboundary waters. Specifically, the signatories to the 

treaty would: 1) agree to share information and seek opportunities for collaboration to 

address these issues, promote methods to protect these vital rivers form harm, and seek to 

facilitate and promote methods to protect these vital rivers from harm, and seek to 

facilitate and promote meaningful dialog and engagement at the federal, state, provincial 

and local levels to assure protection of this resource on both sides of the border; 2) 

address and make integral to any transboundary watershed development decision making, 

the concerns of Alaska Native Tribes, BC First Nations, local communities, individuals 

and user groups downstream from the mining projects in question; or 3) develop report 

and other documentation meant to inform the U.S. and Canadian, respective federal 

governments and other sovereigns of the elements of the tribes’ and First Nations’

proposal for integrating fish habitat protection as an essential element of the Treaty 

including a bilateral effort that will require international actions. (p. 5-6)

Agency Response: The final rule clarifies the scope of “waters of the United 

States,” the other recommendations in the above comment are outside the scope of 

this rulemaking. 

Lake County, Illinois Stormwater Management Commission (Doc. #15381)

12.1190 SMC works in close partnership with the USACE-Chicago District under an 

established interagency coordination agreement to assist with jurisdictional 

determinations (“JDs”) in Lake County. Using the USACE’s Jurisdictional 

Determination Form Instructional Guidebook (May 30, 2007), hundreds of JDs have 

been processed in a prompt and consistent manner, with very few instances of complaints 

or appeals by applicants. This is clear evidence that the current system for JDs in Lake 

County is working efficiently and no change is warranted to the current JD guidance. (p. 

2)

Agency Response: The final rule provides additional clarity to the regulated 

public and should help make the past practices discussed even more clear to the 

public. 

Red River Waterway Commission (Doc. #15445)

12.1191 ...we are deeply concerned that this rule undermines the historically successful 

federal-state cooperation in the administration of the Clean Water Act. The waters this 

proposed rule seeks to cover through federal jurisdiction are not unprotected. They are 

currently protected as state waters. Surely, a better approach to ensuring these isolated 

and intrastate waters are adequately protected would be for EPA and the Corps to work 

with states to improve their water quality programs. Assertion of federal jurisdiction over 

these waters should be a last resort and not the first course of action. (p. 2)

Agency Response: The final rule represents a narrowing of jurisdiction from the 

prior regulations. Along with a narrowing of jurisdiction, the rule also significantly 

reduces the uncertainty and number of case-specific determinations that will 

required, reducing state and federal workload associated with jurisdictional 

determinations. As has been the case, nothing in this rule restricts the ability of 

states to start or continue to more broadly protect state waters. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

747

12.8. COMMENTS ON PERMITTING EXEMPTIONS

Specific Comments

National Association of State Departments of Agriculture (Doc. #15389)

12.1192 (...) [W]e have significant concerns that, despite public agency statements to the 

contrary, well-established exemptions for prior converted cropland, agricultural return 

flows, nonpoint source stormwater flows, silviculture, and natural resource extraction 

may be threatened by the proposal. For example, the proposal states “Notwithstanding 

the determination of an area’s status as prior converted cropland by any other Federal 

agency, for the purposes of the Clean Water Act the final authority regarding Clean 

Water Act jurisdiction remains with EPA.”

280 (p. 5)

Agency Response: Recognizing the vital role of farmers in providing the nation 

with food and fiber, CWA section 404(f)(1) exempts many normal farming activities 

such as seeding, harvesting, cultivating, planting, soil and water conservation 

practices, and other activities from the Section 404 permitting requirement. 

“Normal” farming, silviculture, and ranching is clarified in the agencies’ 

implementing regulations (40 C.F.R § 232.3(c)(1)) to mean established and ongoing 

activities to distinguish from activities needed to convert an area to farming, 

silviculture, or ranching and activities that convert a water to a non-water. The rule 

reflects this framework by clarifying that the waters subject to the activities 

Congress exempted under Section 404(f)(1) are not jurisdictional by rule as 

“adjacent.” Also, prior converted cropland and waste treatment systems have been 

excluded from the definition of “waters of the United States” since 1992 and 1979, 

respectively, and they remain substantively and operationally unchanged in the final 

rule. 

12.1193 Waste management systems designed and built to meet CWA standards would be 

exempted in the proposed rule, but with the broad expansion of “waters” definition 

proposed, many CAFO operations could find themselves in violation of the CWA. 

Processing of animal waste and land application for its nutrients is an important part of 

agriculture, both farming by conventional and organic methods. Restrictions in the 

proposed rule could alter well-managed state CAFO programs and expose livestock 

producers to third-party litigation. (p. 7)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations.

Skamania County Board of Commissioners (Doc. #2469)

12.1194 Ditches are pervasive in counties across the nation and, until recently, were never 

considered to be jurisdictional by the Corps. We are concerned that regional Corps 

offices sometimes require Section 404 permits for maintenance activities on public safety 

 

280 79 Fed. Reg. 76, 273. §401.11(2)(ii). General Definitions, “Prior converted cropland.”
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

748

infrastructure conveyances. While a maintenance exemption for ditches exists on paper, 

in practice it is narrowly crafted. Whether or not a ditch is regulated under Section 404 

has significant financial implications for our county. (p. 4)

Agency Response: The final rule continues the current policy of regulating ditches 

that are constructed in tributaries or are relocated tributaries, or that science 

clearly demonstrates are functioning as a tributary. However, the rule for the first 

time explicitly excludes certain ditches from the definition of waters of the United 

States. The rule excludes all ditches with ephemeral flow that are not excavated in 

or relocate a tributary. The rule also excludes ditches with intermittent flow that are 

not excavated in or relocate a tributary or drain wetlands, regardless of whether or 

not the wetland is a covered water. Finally, ditches that do not connect to a 

traditional navigable water, interstate water, or territorial sea either directly or 

through another water are excluded, regardless of whether the flow is ephemeral, 

intermittent, or perennial. The final rule has been crafted to reduce existing 

confusion and inconsistency regarding the regulation of ditches. While the final rule 

does not include an explicit exclusion for roadside ditches, the agencies expect the 

exclusions included in the final rule will address the vast majority of roadside and 

other transportation ditches. Permitting exemptions are beyond the scope of this 

rule.

Hamilton County Engineer’s Office (Doc. #8669)

12.1195 The CWA itself contains broad exemptions from regulation for the nation’s 

agricultural sector. Farmers and ranchers currently do not need permits for normal 

practices like plowing or constructing farm roads. And stormwater runoff from farm 

fields is not subject to federal pollution limits. The agencies have said these exemptions 

would be carried forward under the proposed rule and issued an “interpretive rule” to 

explain dredge-and-fill exemptions for normal farming, silviculture, and ranching 

practices, listing 56 conservation practices approved by the U.S. Department of 

Agriculture – Natural Resources Conservation Service (USDA-NRCS) that would be 

exempt from permitting requirements under Section 404 of the CWA. Most agricultural 

groups claim that these exemptions do not protect farmers from requirements related to 

pollutant discharges and future permitting requirements under the CWA, and would 

actually narrow the exemptions for production agriculture under the CWA. The 

interpretive rule could also place the USDA-NRCS in a position of policing these 

practices under the CWA rather than their usual role of partnering with agriculture to 

ensure the adoption of best management practices important to the balance of productive 

farms and ranches and clean water. 

It is believed the EPA should withdraw the interpretive rule and collaborate with the 

agricultural sector to ensure that all normal farming, silviculture, and ranching practices, 

including USDA-NRCS practices, continue to be exempt from CWA regulation. (p. 4-5)

Agency Response: The interpretive rule titled, “U.S. Environmental Protection 

Agency and U.S. Department of the Army Interpretive Rule Regarding the 

Applicability of Clean Water Act Section 404(f)(l)(A)," was withdrawn by the 

agencies as required by the Consolidated and Further Continuing Appropriation 

Act on January 29th, 2015. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

749

Board of Supervisors, Imperial County (Doc. #10259)

12.1196 All told, the proposed rule could subject local agencies to the 404/401 permit 

process; result in high costs for repairing or upgrading infrastructure when it is already 

covered by the MS4 permit process; and, potentially expose local agencies to citizen 

suits. Accordingly, we believe that the Agencies should include language that exempts 

MS4 from CWA regulation even if it otherwise qualifies as a “tributary” under the 

proposed rule. The exemption language should explicitly address: stormwater 

conveyances, bioswales, green projects, and infiltration basins used to comply with an 

MS4 permit as these facilities are necessary to comply with the CWA. (p. 6)

Agency Response: Please see summary response 7.4.4.

Nebraska Association of Resources Districts (Doc. #11855)

12.1197 Formal regulatory exemptions from the CWA provide the greatest certainty for 

the regulated community. Agency representatives have repeatedly stated to Congress, the 

media, and the regulated community, that all existing exemptions will be maintained,281

and a specific list of waters that will not be deemed WOTUS is included in the Proposed 

Rule.282 However, the Agencies have failed to include the current language of all 

existing exemptions in the Proposed Rule.283 Instead, new qualifying language replaces 

the exemption for ditches, and the interpretive exemption for pits excavated in dry land 

for the purpose of obtaining fill, sand and gravel has been omitted from the list delineated 

within the Proposed Rule. (p. 9)

Agency Response: The final rule retains all existing exclusions from the definition 

of “waters of the United States” and adds several exclusions reflecting longstanding 

agency practice to the regulation for the first time. Specifically, the agencies for the 

first time establish by rule that certain ditches are excluded from jurisdiction. The 

rule also includes several refinements to the exclusion for water-filled depressions 

created as a result of certain activities. In addition to construction activity, the 

agencies have also excluded water-filled depressions created in dry land incidental 

to mining activity. This change is consistent with the agencies’ 1986 and 1988 

preambles, which generally excluded pits excavated for obtaining fill, sand or 

gravel, and there is no need to distinguish between features based on whether they 

are created by construction or mining activity. 

12.1198 Failure to explicitly affirm all existing exemptions within the Proposed Rule will 

create confusion within the regulated community as to whether the existing exemptions 

remain in effect, which is further complicated by the increase in federal jurisdiction 

discussed above. Clarifying the exemptions will allow members of the regulated 

community to avoid a burdensome permit application process, the cost and timeframe for 

 

281 See http://www2.epa.gov/uswaters: (“All agricultural exemptions and exclusions from Clean Water Act 

requirements that have existed for nearly 40 years have been retained with clarification.”)

282 79 Fed. Reg. 22218.

283 The Agencies have also recently adopted an interpretive rule imposing mandatory compliance with Natural 

Resources Conservation Service (NRCS) standards as the basis for qualifying for a number of agricultural 

exemptions. NARD opposes the Agencies’ efforts to limit the exemptions for agricultural activities through the 

interpretive rule.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

750

which will directly translate into higher costs for development activities, or avoidance of 

development altogether. (p. 9)

Agency Response: The final rule retains all existing exclusions from the definition 

of “waters of the United States” and adds several exclusions reflecting longstanding 

agency practice to the regulation for the first time. 

National Association of Conservation Districts (Doc. #12349)

12.1199 In conclusion, while EPA’s efforts to preserve the agricultural exemptions are 

critical and well-intentioned, the combined effect of the expansion of jurisdiction and the 

framework to implement the agricultural exemptions creates the following legal 

uncertainties and risks: (1) the potential that current non-jurisdictional features, such as 

on-farm wetlands, ditches and ponds will be deemed jurisdictional (e.g., those located in 

natural streams or connected to downstream jurisdictional waters); (2) discharges or filland-dredge activities affecting such previously non-jurisdictional features may require a 

402 or 404 CWA permit; and (3) failure to obtain a CWA permit may subject a farmer to 

CWA enforcement, including citizen suits. (p. 7-8)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations. Further, the 

final rule clarifies that waters subject to established, normal farming, silviculture, 

and ranching activities under CWA section 404(f)(1) are not jurisdictional by rule as 

“adjacent.” In addition, all existing exclusions from the definition of “waters of the 

United States” are retained, and several exclusions reflecting longstanding agency 

practice are added to the regulation for the first time. 

Corporate Communications and Sustainability, Domtar Corporation (Doc. #15228)

12.1200 Under the proposal simple projects at our mill sites that disturb soils may require 

a CWA permit before the work can begin. The permitting process can be lengthy thereby 

resulting in significant project delays. A permit exemption for conducting maintenance 

work is needed. (p. 3)

Agency Response: The issue of permitting exemptions for discharges to 

jurisdictional waters is beyond the scope of the final rule. The scope of regulatory 

jurisdiction in this rule is narrower than that under the existing regulation. Fewer 

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

the existing regulations. Furthermore, those activities, including maintenance, 

currently identified as exempt from regulation under CWA section 404(f)(1)

continue to be exempt.

Snell & Wilmer L.L.P. (Doc. #15206)

12.1201 The EPA claims that the actions of farmers and ranchers are protected by the 

NRCS Conservation Practice Standards Section 404 Exemptions. However, the 

uncertainty that the EPA sought to eliminate by categorically regulating virtually all 

canals in the Proposed Rule and forcing farmers and ranchers to rely on exemptions has 

simply shifted the uncertainty to the NRCS exemptions. Moreover, the regulatory burden 

is significantly higher for a farmer or rancher to determine if his activities fall within one 

of the exemptions than if the farmer or rancher is not subject to regulation in the first 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

751

instance. For example, it is far less burdensome for a farmer to know that his lateral ditch 

is not subject to regulation because it is not considered a “tributary,” than it is for him to 

apply NRCS Conservation Practice Standard Code 320, where “a value of Manning’s 

roughness coefficient ‘n’ no greater than 0.0 25 shall be used to check that velocities do 

not exceed permissible values.” (p. 5)

Agency Response: Recognizing the vital role of farmers in providing the nation 

with food and fiber, CWA section 404(f)(1) exempts many normal farming activities 

such as seeding, harvesting, cultivating, planting, soil and water conservation 

practices, and other activities from the Section 404 permitting requirement. 

“Normal” farming, silviculture, and ranching is clarified in the agencies’ 

implementing regulations (40 C.F.R § 232.3(c)(1)) to mean established and ongoing 

activities to distinguish from activities needed to convert an area to farming, 

silviculture, or ranching and activities that convert a water to a non-water. The rule 

reduces existing confusion and inconsistency regarding the regulation of ditches by 

explicitly excluding certain categories of ditches, while continuing the current policy 

of regulating ditches that are constructed in tributaries or are relocated tributaries, 

or that science clearly demonstrates are functioning as a tributary. These waters 

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

addition, the final rule clarifies that waters subject to the activities Congress 

exempted under Section 404(f)(1) are not jurisdictional by rule as “adjacent.” The 

interpretive rule titled, “U.S. Environmental Protection Agency and U.S. 

Department of the Army Interpretive Rule Regarding the Applicability of Clean 

Water Act Section 404(f)(l)(A)," was withdrawn by the agencies as required by the 

Consolidated and Further Continuing Appropriation Act on January 29th, 2015.

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

12.1202 The Agencies should provide specific exemptions:

Green infrastructure and other structural Best Management Practices (BMP) required by 

the CWA for water quality protection should be explicitly exempt for the purposes of 

maintenance. (p. 3)

Agency Response: The final rule includes a new exclusion for stormwater control 

features constructed to convey, treat, or store stormwater that are created in dry 

land. The agencies received many comments, particularly from municipalities and 

other public entities that operate storm sewer systems and stormwater management 

programs, expressing concern that various stormwater control measures—such as 

stormwater treatment systems, rain gardens, low impact development/green 

infrastructure, and flood control systems—could be considered “waters of the 

United States” under the proposed rule, either as part of a tributary system, an 

adjacent water, or as a result of a case-specific significant nexus analysis. This 

exclusion should clarify the appropriate limits of jurisdiction relating to these 

systems.

12.1203 Roadside ditches, draining only roadway runoff, should be explicitly exempt. (p. 

3)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

752

Agency Response: The final rule does not include an explicit exclusion for 

roadside ditches, but the agencies expect the exclusions included in the final rule will 

address the vast majority of roadside and other transportation ditches. Moreover, 

since the agencies have focused in the final rule on the physical characteristics of 

excluded ditches, the exclusions will address all ditches that the agencies have 

concluded should not be subject to jurisdiction, including certain ditches on 

agricultural lands and ditches associated with all modes of transportation, such 

roadways, airports, and rail lines. 

12.1204 Constructed flood control channels, excavated in upland, should be considered 

part of the MS4 and explicitly exempted. Many such channels have been constructed in 

portions of Orange County (Stanley W. Trimble, Journal of Historical Geography, 29, 3 

(2003) 422-444 Historical hydrographic and hydrologic changes in the San Diego creek 

watershed, Newport Bay, California) and have been inappropriately regulated as waters 

of the U.S. rather than part of the MS4, requiring Section 401/404 certifications/permits 

and being subject to Section 303 requirements (See 1.e above regarding Peters Canyon 

Channel). (p. 3)

Agency Response: Please see summary response 7.4.4.

12.1205 Routine maintenance of ditches should be explicitly exempt pursuant to CWA 3 

404(f)(l)(b) and (c). To this end, the County supports the recommendation made by 

others to define the term “Fully Constructed Stormwater Control Measures” (“SCMs”) as 

follows: “SCMs are human-made structures, devices, measures or Best Management 

Practices (BMPs) that are constructed for the purpose of water quality treatment, 

stormwater volume reduction, stormwater rate control, flood control, stormwater 

conveyance, or any combination of these purposes.” The County further supports 

modifications to the Rule’s Preamble that defines an exclusion for stormwater that is as 

clear as that for agriculture. (p. 3) 

Agency Response: Exemptions from permitting for particular activities in 

jurisdictional waters is beyond the scope of this rule. The final rule includes a new 

exclusion from jurisdiction in paragraph (b)(6) for stormwater control features 

constructed to convey, treat, or store stormwater that are created in dry land. This 

exclusion responds to numerous commenters who raised concerns that the proposed 

rule would adversely affect municipalities’ ability to operate and maintain their 

stormwater systems, and also to address confusion about the state of practice 

regarding jurisdiction of these features at the time the rule was proposed. The 

agencies’ longstanding practice is to view stormwater water control measures that 

are not built in “waters of the United States” as non-jurisdictional. Conversely, the 

agencies view some waters, such as channelized or piped streams, as jurisdictional 

currently even where used as part of a stormwater management system. Nothing in 

the proposed rule was intended to change that practice. Nonetheless, the agencies 

recognize that the proposed rule brought to light confusion about which stormwater 

control features are jurisdictional waters and which are not, and agree that it is 

appropriate to address this confusion by creating a specific exclusion in the final 

rule for stormwater controls features that are created in dry land. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

753

SD1 (Doc. #15140)

12.1206 An increase in WOTUS could affect the construction of storm water runoff 

control features for SD1, co-permittees, and developers. SD1 is also concerned that 

routine storm water maintenance, such as sediment removal from detention ponds and 

routine channel maintenance and debris removal, as well as green infrastructure practices, 

could also be inadvertently affected. These practices therefore need to be exempted from 

the rule and also need to be clearly stated in the rule so there isn’t confusion as to which 

storm water practices are exempted. (p. 7)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations. The final rule 

includes a new exclusion for stormwater control features constructed to convey, 

treat, or store stormwater that are created in dry land. The agencies received many 

comments, particularly from municipalities and other public entities that operate 

storm sewer systems and stormwater management programs, expressing concern 

that various stormwater control measures—such as stormwater treatment systems, 

rain gardens, low impact development/green infrastructure, and flood control 

systems—could be considered “waters of the United States” under the proposed 

rule, either as part of a tributary system, an adjacent water, or as a result of a casespecific significant nexus analysis. This exclusion should clarify the appropriate 

limits of jurisdiction relating to these systems.

Clearwater Watershed District, et al. (Doc. #9560.1)

12.1207 The rule sets out only to define “waters of the United States.” It does not, as the 

prefatory comments suggest, discuss types of “discharges” that are exempt or not exempt. 

We encourage the agencies, through further rulemaking and analysis, to evaluate the 

significance of the impact different types of discharges have on the chemical, physical, 

and biological integrity of waters of the United States. (p. 3-4)

Agency Response: Congress identified in section 404(f)(1) of the Clean Water Act 

those activities for which the discharge or dredged or fill material is exempt from 

regulation. As noted by the commenter, exemption from permitting for discharges 

to jurisdictional waters is beyond the scope of this rule.

Colorado Water Congress Federal Affairs Committee (Doc. #14569)

12.1208 What is the impact of the proposal on impoundments currently regulated under 

RCRA but for which no exemption exists[?] (should be exempt); (p. 7)

Agency Response: Consistent with existing regulations and the April 2014 

proposed rule, the final rule includes traditional navigable waters, interstate waters, 

territorial seas, and impoundments of jurisdictional waters in the definition of 

“waters of the United States.” These waters are jurisdictional by rule.

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

12.1209 Additionally, for existing linear infrastructure such as electrical and natural gas 

transmission and distribution, regular right-of-way maintenance is critical to safety and 

reliability. Maintenance activities include vegetation trimming, pole and line repair, and 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

754

erosion maintenance, and these activities should be expressly exempted similar to the 

exemption for agriculture maintenance.284 (p. 9)

Agency Response: Exemptions from permitting for discharges to jurisdictional 

waters and permitting requirements are beyond the scope of the final rule. 

Metropolitan Water District of Southern California (Doc. #14637)

12.1210 Under the water transfers rule, water transfers are exempt from the requirements 

of obtaining a permit under section 402 unless pollutants are introduced by the water 

transfer activity itself to the water being transferred. (40 C.F.R. § 122.3(i).) “Water 

transfer means an activity that conveys or connects waters of the United States without 

subjecting the transferred water to intervening industrial, municipal, or commercial use.”

(40 C.F.R. § 122.3(i).) Typical water transfers “route water through tunnels, channels, 

and/or natural stream water features, and either pump or passively direct it for uses such 

as providing public water supply, irrigation, power generation, flood control, and 

environmental restoration.” (73 Fed. Reg. 33697, 33698 (June 13, 2008)). As EPA has 

noted, “Water transfers are an essential component of the nation’s infrastructure for 

delivering water that users are entitled to receive under State law.” (73 Fed. Reg. at 

33702). In fact, “[m]any large cities in the west and the east would not have adequate 

sources of water for their citizens were it not for the continuous redirection of water from 

outside basins.” (Id., at 33698). Two examples are the cities of New York and Los 

Angeles which depend on water transfers from distant watersheds to meet their municipal 

demand. (Id.) Water transfers are administered by various federal, State, and local 

agencies and other entities. (Id.) 

EPA concluded that water transfers do not require NPDES permits “because they do not 

result in the ‘addition’ of a pollutant.” (73 Fed. Reg. at 33698). Furthermore, Congress 

did not intend to subject water transfers to the NPDES program. (73 Fed. Reg. at 33701). 

Instead, “Congress intended to leave primary oversight of water transfers to state 

authorities in cooperation with Federal authorities.” (Id.) Although the water transfers 

rule has been challenged in federal court (see Catskill Mountains Chapter of Trout 

Unlimited, Inc. v. US. EPA, 8 F. Supp. 3d 500 (S.D.N.Y March 28, 2014) (vacating the 

water transfers rule)), and its status remains pending on appeal in the 2nd and 9th Circuits, 

Metropolitan fully supports the water transfers rule. Metropolitan urges the Agencies to 

continue to defend the rule, which is essential for the social and economic health of the 

arid West where water sources are often located far away from where the water is 

ultimately used. (p. 5)

Agency Response: Thank you for this input in regard to the water transfers rule. 

Exxon Mobil Corporation (Doc. #15044)

12.1211 Finally, the Proposed Rule does provide continued exemptions for wastewater 

systems, which is an essential element for regulatory stability. However, other 

exemptions have been modified or eliminated ditches are a prime example-in ways that 

fail to contribute either to certainty or clarity. (p. 2)

 

284 Vegetation trimming may involve deposition of chipped material, which should not be considered fill in any

definition of WOTUS.
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755

Agency Response: The final rule continues the current policy of regulating ditches 

that are constructed in tributaries or are relocated tributaries, or that science 

clearly demonstrates are functioning as a tributary. These waters affect the 

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

excludes all ditches with ephemeral flow that are not excavated in or relocate a 

tributary. The rule also excludes ditches with intermittent flow that are not 

excavated in or relocate a tributary or drain wetlands, regardless of whether or not 

the wetland is a covered water. Finally, ditches that do not connect to a traditional 

navigable water, interstate water, or territorial sea either directly or through 

another water are excluded, regardless of whether the flow is ephemeral, 

intermittent, or perennial. Many comments addressed ditches, and many of these 

comments are reflected in the approach to ditches articulated in the rule. The 

revised exclusions reflect the agencies’ careful consideration of these comments. 

First, the agencies have deleted the term “uplands” in response to the confusion the 

term created. Second, the agencies have instead provided a clearer statement of the 

types of ditches that are subject to exclusion- ditches that are not excavated in or 

relocate a tributary and ditches that do not drain a wetland. Replacing “uplands” 

with this more straightforward description should improve clarity. Finally, the 

agencies have more clearly stated the flow regimes in ditches that are subject to the 

exclusions; these flow regimes are described earlier have been used by the agencies 

consistently and are readily understood by field staff and the public.

Environmental Defense Fund (Doc. #15352)

12.1212 The draft rule does not overturn or diminish any of the existing agricultural Clean 

Water Act exemptions. To the contrary, part (b) of the draft rule actually broadens 

existing agricultural exemptions. (...)

EDF urges the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps 

of Engineers (the Corps) (collectively referred to as the agencies) to: (...) Ensure the final 

rule, like the proposed rule, continues to maintain existing agricultural exemptions; (...). 

(p. 1-2)

Agency Response: Recognizing the vital role of farmers in providing the nation 

with food and fiber, CWA section 404(f)(1) exempts many normal farming activities 

such as seeding, harvesting, cultivating, planting, soil and water conservation 

practices, and other activities from the Section 404 permitting requirement. 

“Normal” farming, silviculture, and ranching is clarified in the agencies’ 

implementing regulations to mean established and ongoing activities to distinguish 

from activities needed to convert an area to farming, silviculture, or ranching and 

activities that convert a water to a non-water. The final rule reflects this framework 

by clarifying the waters subject to the activities Congress exempted under section 

404(f)(1) are not jurisdictional by rule as “adjacent.” It is important to recognize 

that “tributaries,” including those ditches that meet the tributary definition, are not 

“adjacent waters” and are jurisdictional by rule. This provision interprets the intent 

of Congress and reflects the intent of the agencies to minimize potential regulatory 

burdens on the nation’s agriculture community, and recognizes the work of farmers 

to protect and conserve natural resources and water quality on agricultural lands. 

While waters subject to normal farming, silviculture, or ranching practices may be 
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756

determined to significantly affect the chemical, physical, or biological integrity of 

downstream navigable waters, the agencies believe that such determination should 

be made based on a case-specific basis instead of by rule. The agencies also 

recognize that waters subject to normal farming, silviculture, or ranching practices 

are often associated with modifications and alterations including drainage, changes 

to vegetation, and other disturbances the agencies believe should be specifically 

considered in making a significant nexus determination. 

12.1213 Like the draft rule, the final rule should continue to maintain the existing CWA 

statutory exemptions for agriculture. The draft rule does not cut back the existing Clean 

Water Act exemptions for agriculture. Statutory exemptions for agricultural activities –

such as the exemption in CWA Section 404(f)(1) – and statutory exemptions for 

agricultural discharges – such as the exemptions for agricultural stormwater discharges 

and agricultural return flows in CWA Sections 502 and 402 – continue to apply under the

draft rule whether the underlying waters are determined to be jurisdictional or not.285 

Similarly, “The rule .... does not change regulatory exclusions for ... prior converted 

cropland.”

286

 Like the current regulations, the draft rule (328.3(b)(2)) expressly excludes 

prior converted cropland from the definition of waters of the U.S. (p. 5-6)

Agency Response: Recognizing the vital role of farmers in providing the nation 

with food and fiber, CWA section 404(f)(1) exempts many normal farming activities 

such as seeding, harvesting, cultivating, planting, soil and water conservation 

practices, and other activities from the Section 404 permitting requirement. 

“Normal” farming, silviculture, and ranching is clarified in the agencies’ 

implementing regulations to mean established and ongoing activities to distinguish 

from activities needed to convert an area to farming, silviculture, or ranching and 

activities that convert a water to a non-water. The final rule reflects this framework 

by clarifying the waters subject to the activities Congress exempted under section 

404(f)(1) are not jurisdictional by rule as “adjacent.” It is important to recognize 

that “tributaries,” including those ditches that meet the tributary definition, are not 

“adjacent waters” and are jurisdictional by rule. This provision interprets the intent 

of Congress and reflects the intent of the agencies to minimize potential regulatory 

burdens on the nation’s agriculture community, and recognizes the work of farmers 

to protect and conserve natural resources and water quality on agricultural lands. 

While waters subject to normal farming, silviculture, or ranching practices may be 

determined to significantly affect the chemical, physical, or biological integrity of 

downstream navigable waters, the agencies believe that such determination should 

be made based on a case-specific basis instead of by rule. The agencies also 

recognize that waters subject to normal farming, silviculture, or ranching practices 

are often associated with modifications and alterations including drainage, changes 

to vegetation, and other disturbances the agencies believe should be specifically 

considered in making a significant nexus determination. Also, as pointed out in your 

comments, the existing exclusion for prior converted cropland remains substantively 

and operationally unchanged in the final rule.

 

285 79 Fed. Reg. 22189, 22193-4.

286 Id. at 22193.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

757

Western Landowners Alliance (Doc. #15380)

12.1214 Interpretive Assurances – EPA staff have informed us that they refer to preambles 

for guidance in other rule-making, and would likely do so here. The proposed definition

itself is fairly short, but its implications are difficult to assess throughout all CWA 

programs. The assurances that EPA has provided should be documented in the preamble. 

If there is any potential for the preamble to not encapsulate regulatory intent in these 

regards, and usable as such in the future, it should be expanded to do so. That said, 

“normal practices” should not allow pollutant dumping associated with exempt activities. 

(p. 2)

Agency Response: Recognizing the vital role of farmers in providing the nation 

with food and fiber, the Clean Water Act in Section 404(f)(1) (33 U.S.C. § 1344(f)(1)) 

exempts many normal farming activities such as seeding, harvesting, cultivating, 

planting, soil and water conservation practices, and other activities from the Section 

404 permitting requirement. “Normal” farming, silviculture, and ranching is 

clarified in the agencies’ implementing regulations (40 C.F.R § 232.3(c)(1)) to mean 

established and ongoing activities to distinguish from activities needed to convert an

area to farming, silviculture, or ranching and activities that convert a water to a 

non-water. The rule reflects this framework by clarifying the waters subject to the 

activities Congress exempted under Section 404(f)(1) are not jurisdictional by rule 

as “adjacent.” It is important to recognize that “tributaries,” including those 

ditches that meet the tributary definition, are not “adjacent waters” and are 

jurisdictional by rule. This provision interprets the intent of Congress and reflects 

the intent of the agencies to minimize potential regulatory burdens on the nation’s 

agriculture community, and recognizes the work of farmers to protect and conserve 

natural resources and water quality on agricultural lands. While waters subject to 

normal farming, silviculture, or ranching practices may be determined to 

significantly affect the chemical, physical, or biological integrity of downstream 

navigable waters, the agencies believe that such determination should be made 

based on a case-specific basis instead of by rule. The agencies also recognize that 

waters subject to normal farming, silviculture, or ranching practices are often 

associated with modifications and alterations including drainage, changes to 

vegetation, and other disturbances the agencies believe should be specifically 

considered in making a significant nexus determination. 

Lake County, Illinois Stormwater Management Commission (Doc. #15381)

12.1215 We believe the proposed rule should include an exemption for local jurisdictions 

like Lake County that already have established isolated wetland protection programs that 

meet or exceed the federal regulations. Since 2001, SMC has processed over 300 permits 

for developments that impacted “other waters” under our countywide Watershed 

Development Ordinance (“WDO”), and we have achieved a net gain of over 40 acres of 

wetlands through mitigation required for these impacts under the WDO. SMC’s normal 

turnaround time for wetland permits is less than 30 days, compared to several months or 

more[,] normal turnaround time for USACE permit issuance in this district. Based on our 

experience over the last 13 years, the current county regulatory system is working 

efficiently to regulate the “other waters” and does not need to be changed by revising the 

definition to place “other waters” into WOUS status. If the rule is adopted as currently 
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758

proposed, we advocate issuance of a General Permit (GP) by the USACE-Chicago 

District to SMC authorizing our agency to efficiently process many of the routine permit 

actions normally performed by the USACE. (p. 2)

Agency Response: The agencies received comments on the proposed rule 

expressing concern about uncertainty created by the “other waters” category. Some 

commenters stated that the “other waters” category would allow the agencies to 

regulate virtually any water. To address this concern, the rule places limits on 

which waters could be subject to a case-specific significant nexus determination, in 

recognition that case-specific analysis of significant nexus is resource-intensive and 

to reflect the consideration for the body of science that exists. The agencies also 

establish by rule subcategories of waters that are “similarly situated” for the 

purposes of a significant nexus analysis because science supports that the 

subcategory waters fall within a higher gradient of connectivity. By not 

determining that any one of the waters available for case-specific analysis is 

jurisdictional by rule, the agencies are recognizing the gradient of connectivity that 

exists and will assert jurisdiction only when that connection and the downstream 

effects are significant and more than speculative and insubstantial.

K. Mantay (Doc. #15192.1)

12.1216 EPA has repeatedly claimed that current agricultural exemptions will remain in 

place as a result of the science-based Proposed Rule. However, the previous sentence 

cannot be true, as a whole. Federal reports in the public domain contain numerous 

references to the fact that much, even “the majority” of surface water pollution originates 

on active farmland and rangeland. EPA itself has stated that the final frontier of 

unregulated surface water pollution is American agriculture. Therefore, to exempt 

current farming activities from future regulation eviscerates any claim that the New Rule 

is science based. Good reasons exist to exempt many current farming activities from 

CWA provisions, however, stream biology and aquatic chemistry are not among those 

reasons. This is in no way “science based.” (p. 1-2)

Agency Response: Recognizing the vital role of farmers in providing the nation 

with food and fiber, the Clean Water Act in Section 404(f)(1) exempts many normal 

farming activities such as seeding, harvesting, cultivating, planting, soil and water 

conservation practices, and other activities from the Section 404 permitting 

requirement. “Normal” farming, silviculture, and ranching is clarified in the 

agencies’ implementing regulations to mean established and ongoing activities to 

distinguish from activities needed to convert an area to farming, silviculture, or 

ranching and activities that convert a water to a non-water. The final rule reflects 

this framework by clarifying the waters subject to the activities Congress exempted 

under Section 404(f)(1) are not jurisdictional by rule as “adjacent.” It is important 

to recognize that “tributaries,” including those ditches that meet the tributary 

definition, are not “adjacent waters” and are jurisdictional by rule. This provision 

interprets the intent of Congress and reflects the intent of the agencies to minimize 

potential regulatory burdens on the nation’s agriculture community, and recognizes 

the work of farmers to protect and conserve natural resources and water quality on 

agricultural lands. While waters subject to normal farming, silviculture, or 

ranching practices may be determined to significantly affect the chemical, physical, 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

759

or biological integrity of downstream navigable waters, the agencies believe that 

such determination should be made based on a case-specific basis instead of by rule. 

The agencies also recognize that waters subject to normal farming, silviculture, or 

ranching practices are often associated with modifications and alterations including 

drainage, changes to vegetation, and other disturbances the agencies believe should 

be specifically considered in making a significant nexus determination. 

12.1217 1) Habitat creation, restoration, and enhancement projects must be exempted from 

“change of use” regulation or policy implemented at the national, regional, or district 

level by federal employees. Exemptions via documentation should exist under to 

maintain permit exemption, such as a provision that a net increase in habitat function and 

habitat acreage/footage occur as a result of the habitat project.

2) Provide a 1.0 acre exemption for “single and complete” projects requiring permanent 

(not temporary) conversion of cropped wetlands or farm ditches proposing a change of 

use, where no other federal resources (NHPA, ESA, etc.) would be impacted. Formally 

apply CWA Section 404 to permanent (not temporary) disturbances over 1.0 acres of 

WOTUS impacted as these disturbances apply to habitat projects that are not tied to a 

direct loss, like compensatory mitigation. (p. 2-3)

Agency Response: Congress identified in section 404(f)(1) of the Clean Water Act 

those activities for which the discharge or dredged or fill material is exempt from 

regulation. Congress also identified in section 404(f)(2) conditions under which 

exempted activities could be “recaptured” and subject to 404 permitting 

requirements. These conditions include circumstances in which the proposed 

discharge would result in a change in use of waters and impair flow or circulation or 

reduce the reach of waters. Exemption from permitting requirements for discharges 

to jurisdictional waters is beyond the scope of this rule.

12.1218 Remove federal permitting requirements for urban (>20% impervious in drainage 

area) stream enhancement activities that can demonstrate a net gain in natural resource 

function and permanent protection of the site from fills related to real property 

development. Require land and infrastructure development projects to improve urban 

stream beds to historic structural conditions and improved biological conditions. This 

will ensure that the New Rule’s proposed stream connectivity is not only transporting 

urban waste and sediment down to lower reaches from degraded areas. (p. 4)

Agency Response: Exemption from permitting requirements for discharges to 

jurisdictional waters is beyond the scope of this rule. Congress identified in section 

404(f)(1) of the Clean Water Act those activities for which the discharge or dredged 

or fill material is exempt from regulation. 

12.1219 Add language to the New Rule exempting from Section 404 all pond basins and 

slopes in pond and stormwater facilities that are adhering to the state’s and municipality’s 

guidelines for pond management and maintenance. Abandoned stormwater ponds can be 

regulated as federal wetlands, as they have been for 20 years. (p. 5)

Agency Response: Exemption from permitting requirements for discharges to 

jurisdictional waters is beyond the scope of this rule. Congress identified in section 
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760

404(f)(1) of the Clean Water Act activities for which the discharge or dredged or fill 

material is exempt from regulation. 

12.8.1 Current

Specific Comments

National Association of State Foresters (Doc. #14636)

12.1220 NASF members work to ensure the continued flow of benefits from the nation’s 

forests; which include clean air, forest products and jobs, wildlife habitat, aesthetic 

values, and clean water. NASF appreciates the acknowledgement in the proposed rule 

that the longstanding permitting exemption in Section 404 of the CWA for silviculture is 

not affected by the proposed rule. The silviculture exemption is an important tool that 

supports sustainable forest management, which is critical to ensuring that private 

landowners have an incentive to retain forests. Conversion of forests to alternative land 

uses is the greatest threat our private forest lands face. (p. 1)

Agency Response: Comment noted.

Western States Water Council (Doc. #9842)

12.1221 The WSWC believes the CWA’s current agricultural exemptions are operating 

properly and that the rule should not alter or create unnecessary uncertainty about these 

exemptions. The WSWC understands that the rule is intended to preserve these 

exemptions, but the Rule and the related interpretive rule regarding exempt activities 

under Section 404(f)(1)(a) have nevertheless created confusion and uncertainty about the 

scope and applicability of the CWA’s agricultural exemptions, as well as their interaction 

with state water quality programs. 

Given this confusion, the rule should include language stating that: 

“Nothing in this section shall be interpreted to limit or otherwise conflict with the 

exemptions set forth in 33U.S.C. 1344(f) and in 33 C.F.R. 323.4 and 40 C.F.R. 

232.3.”

In addition, the interpretive rule has created a significant amount of uncertainty 

concerning its possible implications for “normal farming, ranching, and silvicultural”

activities. To resolve this uncertainty and to ensure that the current exemptions remain 

unchanged, your agencies should withdraw the interpretive rule, as the WSWC requested 

in its attached letter dated August 11, 2014. Notwithstanding the WSWC’s request that 

the rule be withdrawn, any effort to revise the rule should be done in joint partnership 

with the states, particularly to determine what constitutes exempt “normal farming, 

ranching or silvicultural activities.” (p. 5)

Agency Response: Exemption from permitting requirements for discharges to 

jurisdictional waters is beyond the scope of this rule. Congress identified in section 

404(f)(1) of the Clean Water Act those activities for which the discharge or dredged 

or fill material is exempt from regulation. The interpretive rule titled, “U.S. 

Environmental Protection Agency and U.S. Department of the Army Interpretive 
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761

Rule Regarding the Applicability of Clean Water Act Section 404(f)(l)(A)," was 

withdrawn by the agencies as required by the Consolidated and Further Continuing 

Appropriation Act on January 29th, 2015.

Franconia Township (Doc. #8661)

12.1222 The CWA itself contains broad exemptions from regulation for the nation’s 

agricultural sector. Farmers and ranchers currently do not need permits for normal 

practices like plowing or constructing farm roads. And stormwater runoff from farm 

fields is not subject to federal pollution limits. The agencies have said these exemptions 

would be carried forward under the proposed rule and issued an “interpretive rule” to 

explain dredge-and-fill exemptions for normal farming, silviculture, and ranching 

practices, listing 56 conservation practices approved by the U.S. Department of 

Agriculture - Natural Resources Conservation Service (USDA-NRCS) that would be 

exempt from permitting requirements under Section 404 of the CWA. Most agricultural 

groups claim that these exemptions do not protect farmers from requirements related to 

pollutant discharges and future permitting requirements under the CWA, and would 

actually narrow the exemptions for production agriculture under the CWA. The 

interpretive rule could also place the USDA-NRCS in a position of policing these 

practices under the CWA rather than their usual role of partnering with agriculture to 

ensure the adoption of best management practices important to the balance of productive 

farms and ranches and clean water. (p. 4)

Agency Response: Exemption from permitting requirements for discharges to 

jurisdictional waters is beyond the scope of this final rule. The interpretive rule 

titled, “U.S. Environmental Protection Agency and U.S. Department of the Army 

Interpretive Rule Regarding the Applicability of Clean Water Act Section 

404(f)(l)(A)," was withdrawn by the agencies as required by the Consolidated and 

Further Continuing Appropriation Act on January 29th, 2015.

Vulcan Materials Company (Doc. #14642)

12.1223 The proposed rule indicates that all exemptions under the existing CWA program 

are being included in the proposed rule. However, the language in the proposed rule is 

unclear regarding retention of the exemption for waters incidentally created from mining 

in uplands for aggregate mining operations. (p. 3)

Agency Response: The final rule includes several refinements to the exclusion for 

water-filled depressions created as a result of certain activities. In addition to 

construction activity, the agencies have also excluded water-filled depressions 

created in dry land incidental to mining activity. This change is consistent with the 

agencies’ 1986 and 1988 preambles, which generally excluded pits excavated for 

obtaining fill, sand or gravel, and there is no need to distinguish between features 

based on whether they are created by construction or mining activity. It should be 

noted that these water-filled depressions created in dry land are often left on a site 

after construction or mining activity is complete in order to provide beneficial 

purposes, such as water retention, recreation, and animal habitat. The rule does not 

alter the agencies’ existing practice that these features could be found to be 

jurisdictional once the construction or mining activity is completed or abandoned 

and the water feature remains. 
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762

Michigan Farm Bureau (Doc. #10196)

12.1224 The proposed rule will hurt farming in Michigan by making man-made ditches, 

tiny broken streams, and wet areas in fields subject to regulation as “waters of the United 

States” even if they hardly ever have water in them. This was not Congress’ intention 

when it wrote the Clean Water Act. Agricultural exemptions under Section 404(f) do not 

cover all normal farming practices and do not apply to new lands. Farmers in Michigan 

could need permits for nutrient application, pest control, and earth moving in any location 

the new rule says could impact a newly expanded “water of the United States,” meaning 

farming would not be able to operate or expand without much delay and cost. (p. 11)

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

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations. The rule 

reduces existing confusion and inconsistency regarding the regulation of ditches by 

explicitly excluding certain categories of ditches, thereby appropriately reducing 

regulatory burdens. The final rule continues the current policy of regulating ditches 

that are constructed in tributaries or are relocated tributaries, or that science 

clearly demonstrates are functioning as a tributary. These waters affect the 

chemical, physical, and biological integrity of downstream waters. In addition, the 

Clean Water Act in Section 404(f)(1) exempts many normal farming activities such 

as seeding, harvesting, cultivating, planting, soil and water conservation practices, 

and other activities from the Section 404 permitting requirement. “Normal” 

farming, silviculture, and ranching is clarified in the agencies’ implementing 

regulations to mean established and ongoing activities to distinguish from activities 

needed to convert an area to farming, silviculture, or ranching and activities that 

convert a water to a non-water. 

Fresno County Farm Bureau (Doc. #15085)

12.1225 While the Agencies have exempted 56 farming and ranching practices, as long as 

they meet the specific NRCS standards, any deviation from these standards can result in 

hefty fines. Further, the exemptions only apply to CWA Section 404 and do not provide 

any insulation from CWA Section 402 NPDES permitting requirements for waters that 

may become jurisdictional under the Proposed Waters of the U.S. Rule. For example, 

while the Interpretive Rule may allow a farmer to plant cover crops in jurisdictional 

waters without first seeking a CWA Section 404 permit, the Interpretive Rule will not 

prevent the need for a CWA Section 402 NPDES permit for other activities that may 

result in a discharge of pollutants. (p. 2)

Agency Response: The interpretive rule titled, “U.S. Environmental Protection 

Agency and U.S. Department of the Army Interpretive Rule Regarding the 

Applicability of Clean Water Act Section 404(f)(l)(A)," was withdrawn by the 

agencies as required by the Consolidated and Further Continuing Appropriation 

Act on January 29th, 2015.

Kitchen Cabinet Manufacturers Association et al. (Doc. #15418)

12.1226 ...a number of existing exemptions (e.g., the exemption for artificial lakes and 

ponds) should be clarified to ensure that certain waters on manufacturing sites are not 
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763

subject to CWA jurisdiction. As described above, there is no environmental benefit in 

regulating such waters, and their regulation would subject owners and operators of 

manufacturing facilities to needless costs and resource expenditures. (p. 4)

Agency Response: Paragraph (b)(4) of the final rule identifies features and waters 

that the agencies have identified as generally not “waters of the United States” in 

previous preambles or guidance documents. This specifically includes “Artificial 

lakes or ponds created by excavating and/or diking dry land and used primarily for 

such purposes as stock watering, irrigation, settling basins, or rice growing.” 

Codifying these longstanding practices supports the agencies’ goals of providing 

greater clarity, certainty, and predictability for the regulated public and the 

regulators. The Agencies’ 1986 and 1988 preambles indicated that these waters 

could be determined on a case-specific basis to be “waters of the United States.” The 

rule does not allow for this case-specific analysis to be used to establish jurisdiction -

these waters are categorically excluded from jurisdiction. Some of the exclusions 

have been modified slightly to address public comments and improve clarity. For 

example, in the exclusion for artificial lakes or ponds, the agencies have changed 

“exclusively” to “primarily” in describing the uses. Artificial lakes and ponds are 

often not used exclusively for one purpose and can have other beneficial purposes, 

such as animal habitat, water retention or recreation. The change to the exclusion 

reflects Agency practice and ensures that waters the agencies have historically not 

treated as jurisdictional do not become so because of another incidental beneficial 

use. 

Richland Communities (Doc. #18793)

12.1227 Section 404 of the Clean Water Act provides important context for understanding 

why Richland seeks this clarification about prospective applicability. Under Section 404, 

“normal farming” activities have long been excluded from regulation of discharges of 

dredge or fill material into “waters of the United States.” (33 U.S.C. § 1344, subd. (f) 

[exemption for “normal farming, silviculture, and ranching activities such as plowing, 

seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and 

forest products, or upland soil and water conservation practices”].) By definition, rice 

growing is included in this exemption. In other words, rice growing activities already are 

exempt from Clean Water Act regulation for discharges of dredge or fill material.

In light of the already existing Section 404(f) exemption, the proposed rule should make 

clear that the jurisdictional exclusion for rice growing areas applies prospectively and 

cannot be revoked if land is taken out of rice production. Otherwise, the proposed rule 

provides little more than what is already provided by statute, and fails to provide the 

certainty and reliability that land owners need and deserve. Without the clarification 

sought by Richland, the exclusion under the proposed rule for rice growing would be 

tenuous because if a rice growing area changed usage, it could be vulnerable to the type 

of case-by-case jurisdictional determinations that the proposed rule clearly intends to 

eliminate. (p. 6)

Agency Response: Recognizing the vital role of farmers in providing the nation 

with food and fiber, as you point out, the Clean Water Act in Section 404(f)(1) 

exempts many normal farming activities such as seeding, harvesting, cultivating, 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

764

planting, soil and water conservation practices, and other activities from the Section 

404 permitting requirement. “Normal” farming, silviculture, and ranching is 

clarified in the agencies’ implementing regulations to mean established and ongoing 

activities to distinguish from activities needed to convert an area to farming, 

silviculture, or ranching and activities that convert a water to a non-water. The 

final rule reflects this framework by clarifying the waters subject to the activities 

Congress exempted under Section 404(f)(1) are not jurisdictional by rule as 

“adjacent.” Congress also identified in section 404(f)(2) conditions under which 

exempted activities could be “recaptured” and subject to 404 permitting 

requirements. These conditions include circumstances in which the proposed 

discharge would result in a change in use of waters and impair flow or circulation or 

reduce the reach of waters. Exemptions from permitting for discharges to 

jurisdictional waters are beyond the scope of this rule.

Agribusiness Association of Kentucky (Doc. #18005)

12.1228 In the mid-1970s, when the Corps, for purposes of section 404 permitting, began 

to define “navigable waters” to include certain wetlands – so as to make farming, 

ranching and forestry practices within those wetlands potentially subject to CWA 

regulation – Congress amended the Act to specifically exempt “normal” farming, 

ranching and forestry from section 404 “dredge and fill” permit requirements.287 Under 

this exemption, “normal farming, silviculture, and ranching activities such as plowing, 

seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and 

forest products, or upland soil and water conservation practices” are generally exempt 

from section 404 permitting requirements.288 The Agencies have interpreted this 

exemption very narrowly to apply only where farming has been ongoing at the same 

location since 1977 (the year that the exemption and its implementing rules were 

adopted).289 In addition, by statute, the exemption is inapplicable to any activity “having 

as its purpose bringing an area of navigable water into a use to which it was not 

previously subject, where the reach of navigable waters may be impaired or the reach of 

such waters be reduced” (i.e. converting wetland to non-wetland so as to make it 

amendable to a new use).290 This limitation is often referred to as the “recapture”

provision. (p. 14)

Agency Response: Thank you for this input. As you point out, Congress identified 

in section 404(f)(1) of the Clean Water Act those activities for which the discharge 

or dredged or fill material is exempt from regulation, including normal farming, 

silviculture and ranching activities. Congress also identified in section 404(f)(2) 

conditions under which exempted activities could be “recaptured” and subject to 

404 permitting requirements. These conditions include circumstances in which the 

proposed discharge would result in a change in use of waters and impair flow or 

 

287 33 U.S.C. § 13440)(1).

288 33 U.S.C. § 1344(f)(1)(A).

289 See, e.g., United States v. Cumberland Farms of Conn., Inc., 647 F. Supp. 1166 (D. Mass. 1986), aff’d 826 F.2d 

1151 (1st Cir. 1987).

290 33 U.S.C. § 1344(f)(2).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

765

circulation or reduce the reach of waters. Exemptions from permitting for 

discharges to jurisdictional waters are beyond the scope of this rule.

Pike County Highway Department (Doc. #6857)

12.1229 In recent years, Section 404 permits have been required for ditch maintenance 

activities such as cleaning out vegetation and debris. While, in theory, a maintenance 

exemption for ditches exists, it is difficult for local governments to use the exemption. 

The federal jurisdictional process is not well understood and the determination process 

can be extremely cumbersome, time-consuming and expensive, leaving counties 

vulnerable to lawsuits if the federal permit process is not streamlined.

Additionally, ditches are pervasive in counties across the nation and, until recently, were 

never considered to be jurisdictional by the Corps. We are concerned that regional Corps 

offices sometimes require Section 404 permits for maintenance activities on public safety 

infrastructure conveyances. While a maintenance exemption for ditches exists on paper, 

in practice it is narrowly crafted. Whether or not a ditch is regulated under Section 404 

has significant financial implications for my counties. (p. 3)

Agency Response: The final rule has been crafted to reduce existing confusion 

and inconsistency regarding the regulation of ditches. This rule appropriately 

reduces regulatory burdens while minimizing costs for states, tribes, counties and 

municipalities charged with maintaining the nation’s roads. Exemptions from 

permitting for discharges to jurisdictional waters are beyond the scope of this rule.

North Carolina Aggregates Association (Doc. #6938)

12.1230 The proposed rule lacks any “grandfathering” provision. Our mine plans often 

call for long-term, phased mining, which depend on regulatory certainty to make sound 

business decisions. Without clear grandfathering language, our mine plans are now at 

risk of being subject to new and expansive jurisdictional determinations. (p. 2)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits.

Wisconsin Wildlife Federation (Doc. #5468)

12.1231 The Wisconsin Wildlife Federation is sensitive to the needs of Wisconsin farmers. 

Many of our members are farmers and agriculture is a major industry in this state. We 

have reviewed the rule carefully, its supporting documents and the extensive outreach 

efforts of the USEPA to the agricultural community and we are fully convinced that the 

rules do not adversely affect agriculture in Wisconsin and elsewhere in the US. The EPA 

has been very careful to assure the broad exemptions for agriculture from wetland 

regulations are maintained in the law. (p. 1-2)

Agency Response: Thank you for this input. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

766

Western Resource Advocates (Doc. #16460)

12.1232 (...) it is worth remembering that whether or not (irrigation system ditches) are 

waters of the US, the majority of routine farming and ranching activities remain exempt 

from Clean Water Act regulation, even if they take place in waters of the US. (p. 15)

Agency Response: Congress identified in section 404(f)(1) of the Clean Water Act 

those activities for which the discharge or dredged or fill material is exempt from 

regulation, including normal farming, silviculture and ranching activities and the 

construction or maintenance of irrigation ditches. Exemptions from permitting for 

discharges to jurisdictional waters are beyond the scope of this rule.

12.1233 By its own terms,291 as well as existing rules,292 guidance and interpretative 

documents, the Clean Water Act exempts from regulation certain activities that may 

result in a discharge to waters of the US.293 The definition of which WOTUS get Clean 

Water Act protection is a separate regulatory statement that neither amends nor otherwise 

changes the list of exempt activities. Therefore, while WRA supports maintaining the 

existing lists of exempt activities, along with guidance documents and other agency 

interpretations that further clarify these exemptions, WRA urges the agencies not to 

clutter the proposed rule, which defines WOTUS, with language about these exemptions. 

At most, the agencies could include a reference to the other provisions. If the agencies 

decide to include such a reference, they must then also make clear that the Clean Water 

Act requires a permit for non-exempt activities that result in either a section 402 pointsource discharge of pollutants or a section 404 discharge of dredged and fill material to 

WOTUS, including when such actions occur initially in excluded waters. (p. 26)

Agency Response: Congress identified in section 404(f)(1) of the Clean Water Act 

those activities which are exempt from regulation. Exemptions from permitting for 

discharges to jurisdictional waters are beyond the scope of this rule. 

12.8.2 New

Specific Comments

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

12.1234 Small businesses have also provided specific examples of how this rule will 

directly impact them. For example, during a May hearing of the U.S. House of 

Representatives Committee on Small Business, Jack Field of the Lazy JF Cattle Co. 

testified that the rule would essentially eliminate an exemption for normal farming 

practices that he relies upon to do things such as building a fence to control his grazing 

 

291 33 U.S.C. §§ 1344, 1342(a)(1), 1362(14) (2012). 

292 40 C.F.R. §§ 122.2, 122.3, 232.3; see also 33 C.F.R. § 323.4. 

293 See, e.g., U.S. Army Corps of Engineers, REGULATORY GUIDANCE LETTER 07-02, available at 

http://www.usace.army.mil/Portals/2/docs/civilworks/RGLS/rgl07-02.pdf. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

767

cattle.294 The proposed rule would eliminate the exemption for farmers whose actions do 

not comply with Natural Resources Conservation Services standards.295

Agency Response: Exemptions from permitting for discharges to jurisdictional 

waters are beyond the scope of this rule. The interpretive rule titled, “U.S. 

Environmental Protection Agency and U.S. Department of the Army Interpretive 

Rule Regarding the Applicability of Clean Water Act Section 404(f)(l)(A)," was 

withdrawn by the agencies as required by the Consolidated and Further Continuing 

Appropriation Act on January 29th, 2015.

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

12.1235 Has EPA provided any non-farming based exemptions for activities like 

maintaining private roads? (p. 12)

Agency Response: Exemptions from permitting for discharges to jurisdictional 

waters are beyond the scope of this rule.

International Erosion Control Association (Doc. #13174)

12.1236 Better define the exemptions so that the contrary for each exemption is 

considered. (p. 2)

Agency Response: Exemptions from permitting for discharges to jurisdictional 

waters are beyond the scope of this rule.

Department of Public Health and Environment – State of Colorado (Doc. #16342)

12.1237 Colorado is interested in promoting small hydropower projects. It is our 

interpretation that the proposed rule would not change which projects will or will not 

need a section 402 or 404 permit, and anticipate that the agencies agree. (p. 1)

Agency Response: This rule clarifies the scope of “waters of the United States” 

protected under the Clean Water Act. The scope of regulatory jurisdiction in this 

rule is narrower than that under the existing regulation. Fewer waters will be 

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

regulations. In addition, the rule provides greater clarity regarding which waters 

are subject to CWA jurisdiction, reducing the instances in which permitting 

authorities, including the states and tribes with authorized section 402 and 404 

CWA permitting programs, to make jurisdictional determinations on a case-specific 

basis.

12.1238 The agencies have proposed that some waters will be determined jurisdictional 

based on whether or not they have a “significant nexus” to traditionally navigable waters. 

It is critical that the agencies work with Colorado and all states to develop a consistent 

interpretation of “significant nexus” so that it is not applied inconsistently within 

Colorado or between different states. (p. 3)

 

294 Testimony of Jack Field, Owner Lazy JF Cattle Co. at U.S. House of Representatives Committee on Small 

Business Hearing entitled “Will EPA’s Waters of the United States Rule Drown Small Businesses?”, May 29, 2014 

at http://smallbusiness.house.gov/calendar/eventsingle.aspx?EventID=373099. 

295 79 Fed. Reg. at 22,194; Notice of Availability Regarding the Exemption From Permitting Under Section 

404(f)(1)(A) of the Clean Water Act to Certain Agricultural Conservation Practices,79 Fed. Reg. 22,276. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

768

Agency Response: The “significant nexus” standard articulated and refined in 

Supreme Court opinions is the touchstone for the agencies’ interpretation of the 

CWA’s jurisdictional scope. In response to these opinions, the agencies issued 

guidance in 2003 (post-SWANCC) and 2008 (post-Rapanos). However, these two 

guidance documents are not effective in providing the public or agency staff with 

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

jurisdictional determinations. Many waters are currently subject to case-specific 

jurisdictional analysis to determine whether a “significant nexus” exists, and this 

time and resource intensive process can result in inconsistent interpretation of CWA 

jurisdiction and perpetuate ambiguity over where the CWA applies. As a result of 

the ambiguity that exists under current regulations and practice following these 

recent decisions, virtually all waters and wetlands across the country theoretically 

could be subject to a case-specific jurisdictional determination. Members of 

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

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

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

concurrence in Rapanos underscores the value of this rulemaking effort. 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. 

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

12.1239 In order to address confusion between the rule and Section 404, the rule should 

include language stating that: “Nothing in this section shall be interpreted to limit or 

otherwise conflict with the exemptions set forth in 33 U.S.C. 1344(f) and in 33 C.F.R. 

323.4 and 40 C.F.R.232.3.” (p. 4)

Agency Response: Exemptions from permitting for discharges to jurisdictional 

waters under section 404(f)(1) of the Clean Water Act and EPA and Corps 

implementing regulations in regard to those activities which are exempted from 

regulation are beyond the scope of this rule. 

City of Aurora Water Department Administration Office (Doc. #8409)

12.1240 The proposed rule misses an opportunity to create exemptions that would 

incentivize improvements to watersheds and habitats. There are mining sites and placer 

tailings piles throughout the West that could be rehabilitated with adoption of incentives 

encouraging the restoration of streams and habitat through the project development 

process. For example, one of the future reservoir sites under consideration by Aurora is 

located in a drainage heavily damaged by previous placer mining. An exemption 

allowing local ACOE and EPA offices to approve projects under a national restoration 

program could expedite the clean-up of these areas and result in the creation additional 

high quality habitat and other environmental improvements or amenities. 

Recommendation: Incentives for restoring mined or disturbed lands should be created 

within the rule. (p. 4)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

769

Agency Response: The agencies have adopted many streamlined regulatory 

requirements to simplify and expedite compliance through the use of measures such 

as general permits developed at the national, regional or state level. Existing NWP 

49 for Coal Remining Activities can be used to authorize remining of unreclaimed 

sites and abandoned mine land areas, provided that the overall mining plan results 

in a net increase in aquatic resource functions. However, current general permits 

such as NWP 49 or the future development of similar general permits consistent 

with CWA section 404(e) are beyond the scope of the final rule. 

San Bernadino County, California (Doc. #16489)

12.1241 The proposed Rule applies to CWA §402, but does not clearly exempt stormwater 

facilities from jurisdiction. A specific exemption is needed because of the concern that 

MS4 stormwater control measures and other man-made facilities (such as green 

infrastructure) that provide detention, infiltration and treatment of stormwater, and with 

connectivity to navigable waters, could now be classified as WoUS and subject to CWA 

§404 permitting requirements. (p. 4)

Agency Response: The final rule includes a new exclusion for stormwater control 

features constructed to convey, treat, or store stormwater that are created in dry 

land. The agencies received many comments, particularly from municipalities and 

other public entities that operate storm sewer systems and stormwater management 

programs, expressing concern that various stormwater control measures—such as 

stormwater treatment systems, rain gardens, low impact development/green 

infrastructure, and flood control systems—could be considered “waters of the 

United States” under the proposed rule, either as part of a tributary system, an 

adjacent water, or as a result of a case-specific significant nexus analysis. This 

exclusion should clarify the appropriate limits of jurisdiction relating to these 

systems.

South Big Horn County Conservation District (Doc. #17264)

12.1242 Another concern is how multi-purpose activities will be treated. If a practice

serves both exempt and regulated activities, will the exempt activity also be regulated? 

For example, if a drainage ditch within an irrigation system is exempt from a 404 permit 

as an agricultural practice, it will also commonly serve as a drainage ditch for roadways 

and for storm water control that appear to be subject to a 404 permit. Would 

maintenance on the drainage ditch be subject to a 404 permit or exempt? (p. 3)

Agency Response: Congress identified in section 404(f)(1) of the Clean Water Act 

those activities for which the discharge or dredged or fill material is exempt from 

regulation, including the maintenance of drainage ditches. Exemptions from 

permitting for discharges to jurisdictional waters are beyond the scope of this rule.

City of Slidell, Louisiana, Planning Department (Doc. #19451)

12.1243 The City recommends retention and added emphasis on the exclusion for 

“maintenance of drainage ditches” provided for in Section 404, paragraph (f)(l)(c) of the 

Federal Water Pollution Control Act. (p. 1-2)

Agency Response: Congress identified in section 404(f)(1) of the Clean Water Act 

those activities for which the discharge or dredged or fill material is exempt from 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

770

regulation, including the maintenance of drainage ditches. Exemptions from 

permitting for discharges to jurisdictional waters are beyond the scope of this rule.

Wyoming County Commissioners Association (Doc. #15434)

12.1244 Because ditches will be automatically considered jurisdictional if the ditch meets 

the definition of tributary, the exclusions must be taken in the context of the broad 

definition of tributary discussed above. In contrast to agricultural ditches and canals, 

which may exist in uplands and drain in uplands to meet specific agricultural purposes, 

county owned and maintained ditches exist primarily to divert water away from roads and 

other structures, but may also serve a dual use. The specific purpose of a county-owned 

or maintained ditch is to convey water – particularly during heavy rain or snowmelt 

events - away to somewhere else. If these ditches carry water through a series of 

connected “tributaries,” perhaps “considered in combination,” and eventually drain in a 

water of the U.S., then the exclusion appears to no longer apply to the ditch. Quite 

plainly, for a county evaluating a road, bridge, or other infrastructure project, the 

exclusions provided in the proposed rule simply are not explicit enough to provide the 

assurance necessary to move ahead with these projects absent an on-the-ground 

“significant nexus” determination. (p. 7)

Agency Response: In the final rule, the agencies for the first time establish by rule 

in paragraph (b)(3) an exclusion for all ditches with ephemeral flow that are not 

excavated in or relocate a tributary. The rule also excludes ditches with intermittent 

flow that are not excavated in or relocate a tributary or drain wetlands, regardless 

of whether or not the wetland is a covered water. Finally, ditches that do not 

connect to a traditional navigable water, interstate water, or territorial sea either 

directly or through another water are excluded, regardless of whether the flow is 

ephemeral, intermittent, or perennial. The jurisdictional status of upstream and 

downstream portions of the same ditch would have to be assessed based on the 

specific facts and under the terms of the rule to determine flow characteristics and 

whether or not the ditch is excavated in or relocates a tributary. This approach 

reasonably balances the exclusion with the need to ensure that covered tributaries, 

and the significant functions they provide, are preserved. That portion of a ditch 

that relocates a stream is not an excluded ditch under paragraph (b)(3), and a 

stream is relocated either when at least a portion of its original channel has been 

physically moved, or when the majority of its flow has been redirected. A ditch that 

is a relocated stream is distinguishable from a ditch that withdraws water from a 

stream without changing the stream’s aquatic character. The latter type of ditch 

may be excluded from jurisdiction where it meets the listed characteristics of 

excluded ditches under paragraph (b)(3). Like the proposed rule, the final rule does 

not include an explicit exclusion for roadside ditches, but the agencies believe the 

exclusions included in the final rule will address the vast majority of roadside and 

other transportation ditches. Moreover, since the agencies have focused in the final 

rule on the physical characteristics of excluded ditches, the exclusions will address 

all ditches that the agencies have concluded should not be subject to jurisdiction, 

including certain ditches on agricultural lands and ditches associated with all modes 

of transportation, such roadways, airports, and rail lines. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

771

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

12.1245 Under the current regulatory program, ditches are regulated under CWA Section 

404, both for construction and maintenance activities. There are a number of challenges 

under the current program that would be worsened by the proposed rule. For example, 

across the country, public safety ditches, both wet and dry, are being regulated under 

Section 404. While an exemption exists for ditch maintenance, Corps districts 

inconsistently apply it nationally. In some areas, local governments have a clear 

exemption, but in other areas, local governments must apply for a ditch maintenance 

exemption permit and provide surveys and data as part of the maintenance exemption 

request.

Beyond the inconsistency, many local governments have expressed concerns that the 

Section 404 permit process is time-consuming, cumbersome and expensive. Local 

governments are responsible for public safety; they own and manage a wide variety of 

public safety ditches – road, drainage, stormwater conveyance and others – that are used 

to funnel water away from low-lying areas to prevent accidents and flooding of homes 

and businesses. Ultimately, a local government is liable for maintaining the integrity of 

their ditches, even if federal permits are not approved by the federal agencies in a timely 

manner. In Arreola v Monterey (99 Cal. App. 4th 722), the Fourth District Court of 

Appeals held the County of Monterey, California liable for not maintaining a levee that 

failed due to overgrowth of vegetation. 

The proposed rule does little to resolve the issues of uncertainty and inconsistency with 

the current exemption language or the amount of time, energy, and money that is 

involved in obtaining a Sec. 404 permit or an exemption for a public safety ditch. (p. 5)

Agency Response: The rule excludes all ditches with ephemeral flow that are not 

excavated in or relocate a tributary. The rule also excludes ditches with intermittent 

flow that are not excavated in or relocate a tributary or drain wetlands, regardless 

of whether or not the wetland is a covered water. Finally, ditches that do not 

connect to a traditional navigable water, interstate water, or territorial sea either 

directly or through another water are excluded, regardless of whether the flow is 

ephemeral, intermittent, or perennial. These ditch exclusions are clearer for the 

regulated public to identify and more straightforward for agency staff to implement 

than the proposed rule or current policies. Since the agencies have focused in the 

final rule on the physical characteristics of excluded ditches, the exclusions will 

address all ditches that the agencies have concluded should not be subject to 

jurisdiction, including certain ditches on agricultural lands and ditches associated 

with all modes of transportation, such roadways, airports, and rail lines. 

Washington State Water Resources Association (Doc. #16543)

12.1246 Despite the proposals stated objective to add clarity to the regulatory process, the 

proposal in fact creates great confusion and uncertainty. Some of the unanswered 

questions have been alluded to above, e.g., what will be the effect of the proposal on the 

construction and operation of stormwater control facilities, or the repair and replacement 

of ditches. Other issues that must be addressed, through clarification and in the context 

of an ongoing dialogue amongst stakeholders, include:
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

772

 What is the impact of the proposal on impoundments currently regulated under 

RCRA but for which no exemption exists?

 Who (the agencies or the project proponent) will determine if a subsurface 

connection exists (and) how will that determination be accomplished in practice? 

(p. 17)

Agency Response: Consistent with existing regulations and the April 2014 

proposed rule, the final rule includes traditional navigable waters, interstate waters, 

territorial seas, and impoundments of jurisdictional waters in the definition of 

“waters of the United States.” These waters are jurisdictional by rule. In order to 

provide more certainty to the public, the final rule does not include a provision 

defining neighboring based on shallow subsurface flow, though such flow may be an 

important factor in evaluating a water on a case-specific basis under paragraph 

(a)(8), as appropriate. Tools to assess shallow subsurface flow include reviewing the 

soils information from the NRCS Soil Survey, which is available for nearly every 

county in the United States.

Northwest Mississippi Delta Council (Doc. #5611)

12.1247 USDA data suggests that there are more than 106 million acres of wetlands across 

rural lands in the U.S. which are typically cropland, pasture land, conservation reserve 

lands, range land, forest and other agricultural land. We do not see anything in the 

proposed rule which would suggest that there is an exemption extended to these 

properties which are not currently under the jurisdiction of the Clean Water Act. 

The existing Clean Water Act exempts “the discharge of dredge or fill material from 

normal farming, silviculture, and ranching activities such as plowing, seeding, 

cultivating, minor drainage, harvesting for the production of food, fiber and forest 

products or upland soil and water conservation practices’’ from Section 404 permitting. 

There are also exemptions for the construction or maintenance of farm or stock ponds or 

irrigation ditches, for the maintenance of drainage ditches as well as for the construction 

or maintenance of farm roads. Our interpretation is that these exemptions are certain to 

be impacted by your proposed rule. (p. 2-3)

Agency Response: Congress identified in section 404(f)(1) of the Clean Water Act 

those activities for which the discharge or dredged or fill material is exempt from 

regulation, including those identified in your comment. Exemptions from permitting 

for discharges to jurisdictional waters are beyond the scope of this rule.

North Carolina Water Quality Association (Doc. #12361)

12.1248 Ditches form the backbone of many MS4 systems. NCWQA is pleased that the 

proposed rule would clarify, for the first time, two common-sense exclusions for ditches. 

These proposed exclusions should be retained in their proposed form. 

The first of the two ditch exclusions applies to ditches that are constructed in uplands, 

drain only uplands, and have less than perennial flow. 79 Fed. Reg. at 22263 (to be 

codified at 33 C.F.R. § 328.3(b)(3)). The proposal specifically requests comments on 

whether perennial flow is the appropriate flow regime to reference for this exclusion. We 

believe that it is, and precisely for the reason cited in the proposal: “Identifying upland 
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773

ditches with perennial flow is straightforward and will provide for consistent, predictable, 

and technically accurate determinations at any time of year.” 79 Fed. Reg. at 22203. 

Upland ditches conveying stormwater may have extended periods of flow following rain 

events, especially in cases where they are situated at the outfall of a BMP designed to 

detain peak stormwater flows. Also, some excavated ditches may have stretches where 

water typically pools and may remain standing for extended periods of time after rain 

events. The less than perennial flow standard provides an easily applied reference to 

determine whether ditches with these characteristics would be jurisdictional. This 

standard appropriately would exclude nearly all stormwater conveyance ditches 

excavated in and draining uplands. NCWQA recommends that this exclusion be retained 

in its present form. 

The second ditch exclusion applies to ditches that do not contribute flow directly or 

through another water to certain waters of the United States. 79 Fed. Reg. at 22263 (to be 

codified at 33 C.F.R. § 328.3(b)(3)). NCWQA agrees with this exclusion, but we believe 

its scope should be clarified in the final rule to cover ditches that connect nonjurisdictional waters. 

On its face, this exclusion could be interpreted as only applying to ditches that do not 

contribute any flow directly or indirectly to a jurisdictional water. In other words, ditches 

with no hydrological connection to a jurisdictional water (and, therefore, not a 

jurisdictional water in any case). NCWQA does not believe that is the intent of the 

proposal. It appears that this exclusion is intended to apply to ditches that connect nonjurisdictional waters-an important exclusion for MS4s that use a series of ditches to 

convey water within the system. Such systems are appropriately regulated at their outfall 

with an NPDES permit-the ditches conveying water to the outfall should not be subject to 

regulation as a water of the United States, irrespective of the flow regime. It is 

imperative that EPA and the Corps confirm this understanding of this exclusion and 

include appropriate clarifying language in the final rule. (p. 2-3)

Agency Response: The agencies have deleted the term “uplands” in response to 

comments indicating that the term created confusion. The agencies have instead 

provided a clearer statement of the types of ditches that are subject to exclusion –

ephemeral and intermittent ditches that are not excavated in or relocate a tributary 

and intermittent ditches that do not drain a wetland. Replacing “uplands” with this 

more straightforward description should improve clarity. Finally, the agencies have 

more clearly stated the flow regimes in ditches that are subject to the exclusions. 

There is also a new exclusion for stormwater control features constructed to convey, 

treat, or store stormwater that are created in dry land. The agencies’ longstanding 

practice is to view stormwater water control measures that are not built in “waters 

of the United States” as non-jurisdictional. Conversely, the agencies view some 

waters, such as channelized or piped streams, as jurisdictional currently even where 

used as part of a stormwater management system. Nothing in the proposed rule was 

intended to change that practice.

John Deere & Company (Doc. #14136.1)

12.1249 The Proposed Definitions Expand the Agencies Geographic Reach Linder CWA 

section 404(1)(1) Thereby Creating Greater Uncertainty and Burdens for Agriculture
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

774

The agencies have asserted in the proposed rule that the definitional changes do not affect 

any of the exemptions from CWA section 404 permitting requirements, including those 

for normal farming, silviculture and ranching activities.296 This assertion misses the 

mark. The normal farming, silviculture and ranching activities exemption set forth in 

Section 404(f) was enacted by Congress in response to concerns that the 1972 Federal 

Water Pollution Control Act Amendments would require farmers to obtain Section 404 

permits very broadly on agricultural land. While intended by Congress to be interpreted 

broadly and reasonably, the application of the exemption has been narrowed and often 

only exempts a specific activity, rather than the land or the water in which the activity is 

conducted. Thus, under, the proposed WOTUS definition, additional land and water will 

become jurisdictional regardless of the normal farming, ranching and silviculture 

exemption. In addition, this exemption is not available to section 402 NPDES permits.

Section 404 establishes the permit program for discharges of “dredged or fill material”

into waters of the United States. Without a section 404 permit, such discharges are 

prohibited by section 301(a) of the CWA into the waters of the United States.297 This 

permit program is the central enforcement tool of the CWA. An unpermitted discharge is 

a CWA violation and subjects the discharger to strict liability.298

To qualify for the conditional exemption, a farmer, not the EPA or the Corps, has the 

burden to demonstrate that proposed activities satisfy the “normal farming, silviculture 

and ranching activities requirements of Section 404(1)(1).”

299

 In many instances this 

burden may be difficult to meet since the term “normal” in section 404(1) applies to 

activities associated with the farm or land itself, not agriculture generally. The 

regulations do not specify the precise area to look at in determining whether there is an 

established farming operation. Nor are there minimum limits placed on the “area” being 

brought into farming use. Courts have held that the normal farming activity exemption is 

available only to activities that are part of an “established farming operation” at the 

site.300

The proposed definitions will expand the geographic reach of the agencies’ jurisdiction 

under CWA section 404, thereby requiring farmers to prove, under a statute imposing 

strict liability, that current or proposed activities associated with a great deal of their 

farmland are “normal”. This potential outcome will impose a great deal of uncertainty 

into agriculture, and will negatively impact productivity.

Finally, the interpretive rule issued by the EPA in connection with this rulemaking 

seeking to clarify section 404(f) normal farming and ranching activities exemption does 

not address the concerns associated with the proposed definitions. As outlined above, the 

proposed jurisdictional water definitions will now bring under the agencies’ direct CWA 

jurisdiction farmland not previously subject to such jurisdiction. Moreover, by making 

the previously voluntary National Resources Conservation Service standards mandatory, 

 

296 79 Fed. Reg. 22, 199 (April 21, 2014).

297 33 USC Secs. 1311(a), 1362(12)(2014).

298 United States v. Pozsgai, 999 F.2d 724 (3’’ Cir. 1993); United States v. Brace, 41 F. 3d 117 (3°’ Cir. 1994).

299 United States v. Brace, 41 F.3d 117. 124 (3d Cir. 1994), cert. denied, 515 U.S. 1158 (1995), citing United States 

v. Akers, 785 F.2d 814, 819 (9th Cir.), cert. denied, 479 U.S. 828, 107 S.CL 107, 93 L.Ed.2d 56 (1986).

300 Brace, 41 F.3d at 125.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

775

the interpretative rule may narrow, rather than expand, the current exemption for normal 

agricultural activities on established operations. (p. 11-12)

Agency Response: Under section 404(f)(1) of the Clean Water Act, the discharge 

of dredged or fill material from those activities identified in that section are exempt 

from regulation under sections 301, 402 and 404 (except for effluent standards or 

prohibitions under section 307). The final rule clarifies that waters subject to 

established, normal farming, silviculture, and ranching activities under CWA 

section 404(f)(1) are not jurisdictional by rule as “adjacent.” This provision 

interprets the intent of Congress and reflects the intent of the agencies to minimize 

potential regulatory burdens on the nation’s agriculture community, and recognizes 

the work of farmers to protect and conserve natural resources and water quality on 

agricultural lands. Overall, the scope of regulatory jurisdiction in this rule is 

narrower than that under the existing regulation. Fewer waters will be defined as 

“waters of the United States” under the rule than under the existing regulations. 

Also, the interpretive rule titled, “U.S. Environmental Protection Agency and U.S. 

Department of the Army Interpretive Rule Regarding the Applicability of Clean 

Water Act Section 404(f)(l)(A)," was withdrawn by the agencies as required by the 

Consolidated and Further Continuing Appropriation Act on January 29th, 2015.

Vulcan Materials Company (Doc. #16566)

12.1250 The rule includes exemptions for rills and gullies from being considered waters; 

however, the inclusion of ditches combined with the bed and bank criteria creates 

uncertainty and confusion regarding the upper reach of jurisdiction that the agencies may 

pursue. In the case of aggregate mining operations, this extension is unnecessary as the 

mine sites are subject to National Pollutant Discharge Elimination System (NPDES) 

permitting for process and storm water discharges either under the federal program or 

federally delegated state permitting programs. These NPDES permits require aggregate 

mining sites to employ best management practices to control erosion and sediment 

discharges and to use water treatment systems with settling ponds and/or other treatment 

methods to ensure that discharges to surface waters are in compliance with applicable 

water quality criteria. (p. 2)

Agency Response: Ditches protected by the final Clean Water Rule must meet the 

definition of tributary, having a bed and banks and ordinary high water mark, and 

contributing flow directly or indirectly through another water to a traditional 

navigable water, interstate water, or the territorial seas. The upper limit of the 

tributary is the point where a bed and banks and another indicator of ordinary high 

water mark cease to be identifiable. The ordinary high water mark establishes the 

lateral limits of a water, and its absence generally determines when a tributary’s 

channel or bed and banks has ended, representing the upper limit of the tributary. 

Numerous commenters asked that the final rule define “bed and banks,” which are 

physical characteristics called for under the definition of tributary. Such 

commenters emphasized the importance of a definition of “bed and banks,” and 

some suggested definitional language. To increase clarity, the preamble explains 

that for purposes of this rule, “bed and banks” means the substrate and sides of a 

channel between which flow is confined. This largely reflects longstanding agencies’ 

practice and views expressed in comments.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

776

12.1251 Add language to the rule that clearly exempts from jurisdictional status water 

management systems, including associated collection, conveyance, and treatment systems 

that are permitted under NPDES or delegated state storm water and/or process water 

discharge permitting authority. Similarly, water management systems associated with 

zero discharge facilities should be clearly exempted from jurisdictional status. (p. 4)

Agency Response: The rule makes no substantive change to the existing exclusion 

for waste treatment systems designed consistent with the requirements of the CWA. 

Paragraph (b)(7) of the final rule clarifies that wastewater recycling structures 

created in dry land are excluded. This new exclusion clarifies the agencies’ current 

practice that such waters and water features used for water reuse and recycling are 

not jurisdictional when constructed in dry land. This exclusion responds to 

numerous commenters and encourages water reuse and conservation while still 

appropriately protecting the chemical, physical, and biological integrity of the 

nation’s water under CWA. Also, the agencies specifically exclude constructed 

detention and retention basins created in dry land used for wastewater recycling as 

well as groundwater recharge basins and percolation ponds built for wastewater 

recycling. The exclusion also covers water distributary structures that are built in 

dry land for water recycling. These features often connect or carry flow to other 

water recycling structures, for example a channel or canal that carries water to a 

percolation pond. The exclusion in paragraph (b)(7) codifies long-standing agency 

practice and encourages water management practices that the Agencies agree are 

important and beneficial.

Mississippi Farm Bureau Federation (Doc. #14464)

12.1252 The proposed role speaks often to the fact that the change to the definition of 

“waters of the United States” is necessary to address the perceived limitations placed 

upon it by SWANCC and Rapanos. Both of those cases arose from Section 404 of the 

CWA. EPA’s attempt to clarify the scope of the CWA under Section 404 has “muddied 

the water” and confused the interpretation and implementation of Section 401 and 402 of 

the CWA. EPA should clearly state in its proposed rule that the agricultural exemptions 

within the CWA apply to all Sections and programs of the CWA. If EPA’s interpretation 

is that the agricultural exemptions only apply to 404, agricultural operations will face a 

new and undue burden of applying for Section 402 NPDES for normal and routine 

agricultural practices such as applying fertilizer and pesticide applications. (p. 2)

Agency Response: Members of Congress, developers, farmers, state and local 

governments, energy companies, and many others requested new regulations to 

make the process of identifying waters protected under the CWA clearer, simpler, 

and faster. Chief Justice Roberts’ concurrence in Rapanos underscores the value of 

this rulemaking effort. 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. Congress identified in section 404(f)(1) of the 

Clean Water Act those activities for which the discharge or dredged or fill material 

is exempt from regulation, including normal farming, silviculture and ranching 

activities. The final rule reflects this framework by clarifying that waters subject to 

established, normal farming, silviculture, and ranching activities under CWA 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

777

section 404(f)(1) are not jurisdictional by rule as “adjacent.” Exemptions from 

permitting for discharges to jurisdictional waters are beyond the scope of this rule.

Florida Crystals Corporation (Doc. #16652)

12.1253 (...) from a CWA § 404 perspective, including most farm ditches within the 

definition of “navigable waters” will not increase the scope of environmental regulation. 

CWA § 404(f) already exempts most agricultural activities. Moreover, “prior converted 

croplands” are exempt from CWA jurisdiction, and most farm lands do not meet the 

definition of regulated “wetlands.” Expanding CWA jurisdiction over farm ditches and 

ponds will not increase the actual regulatory criteria over those lands. (p. 9)

Agency Response: The scope of regulatory jurisdiction in this rule is narrower 

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations. Prior 

converted cropland has been excluded from the definition of “waters of the United 

States” definition since 1992. This exclusion remains substantively and 

operationally unchanged in the final rule.

American Farm Bureau Federation (Doc. #16850)

12.1254 The “normal farming and ranching” exemption is extremely narrow. It only 

applies to one part of the CWA, the section 404 “dredge and fill” permit program. The 

rule provides no protection from permit requirements and enforcement actions under 

section 402. Any essential farm activities that use a conveyance (such as a nozzle) to 

apply any amount of other “pollutant,” such as weed control or fertilizer, to ephemeral 

drains, ditches and wetlands will require a permit. (p. 2)

Agency Response: Exemptions from permitting for discharges to jurisdictional 

waters are beyond the scope of this rule.

Montana Stockgrowers Association et al (Doc. #16937)

12.1255 We are concerned about the exemptions from Section 404 permitting under 33 

U.S.C.A. 1344(f)(l) for “normal farming, silviculture, and ranching practices” as well as 

for “construction or maintenance of farm or stock ponds or irrigation ditches, or the 

maintenance of drainage ditches,” and “construction or maintenance of farm roads or 

forest roads.” Following the release of the interpretive rule/guidance document regarding 

the 56 NRCS conservation practices, it remains unclear whether the exemptions have 

been narrowed to just the 56 practices. (p. 5)

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. Chief Justice Roberts’ concurrence in Rapanos underscores the value of 

this rulemaking effort. 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. Congress identified in section 404(f)(1) of the 

Clean Water Act those activities for which the discharge of dredged or fill material 

into jurisdictional waters is exempt from regulation, including normal farming, 

silviculture and ranching activities. The final rule reflects this framework by 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

778

clarifying that waters subject to established, normal farming, silviculture, and 

ranching activities under CWA section 404(f)(1) are not jurisdictional by rule as 

“adjacent.” Exemptions from permitting for discharges to jurisdictional waters are 

beyond the scope of this rule.

12.1256 The Clean Water Act defines “discharge of a pollutant as “any addition of any 

pollutant to navigable waters from any point source” (33 U.S.C. § 1362(12)). Pollutant is 

defined as “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage 

sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, 

wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and 

agricultural waste discharged into water” (33 U.S.C. § 1362(6)). Especially relevant to 

ranching in Montana would be “biological materials,” “rock,” “sand,” and “agricultural 

waste.” “Point source” is defined as “any discernible, confined and discrete conveyance, 

including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete 

fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other 

floating craft, from which pollutants are or may be discharged. This term does not 

include agricultural storm water discharges and return flows from irrigated agriculture”

(33 U.S.C. § 1362(14)). Of special interest to our members are “ditch” and “channel” as 

well as “concentrated animal feeding operation.” The exemption within the definition for 

“agricultural storm water discharges and return flows from irrigated agriculture” is also 

obviously applicable. (p. 5-6)

Agency Response: This comment concerns issues beyond the scope of this rule. 

The rule does not address the definitions of “discharge of a pollutant,” “pollutant,” 

or “point source.”

Jensen Livestock and Land LLC (Doc. #15540)

12.1257 Our members will be directly hurt by the agencies lack of clarity with regards to 

their definition of “significant nexus.” Isolated waters that may or may not satisfy this 

ill-defined [significant nexus] test crisscross livestock producers’ pastures and fields. 

There are numerous activities that take place on these lands that do not qualify for any 

exemptions under the CWA, and because of the proposed rule’s failure to adequately 

define these important terms, puts them at increased risk of violating the CWA. The 

agencies’ replacement of the word “or” for “and” in the significant nexus test 

(emphasized in the definition provided above) makes the test even more confusing than 

Kennedy’s own words. The agencies’ have again only provided administrative 

convenience at the expense of the regulated community’s liability. Justice Kennedy 

required a significant impact on the “chemical, physical, and biological integrity” of a 

TNW, but the agencies have provided themselves with a test that allows only one of the 

three connections to be satisfied. Justice Kennedy’s test is much narrower than the 

agencies have defined, and as such, Jensen Livestock and Land LLC, believe the test 

goes beyond the agencies’ authority under the CWA. Our members would suggest the 

agencies look to the plurality opinion in Rapanos for more clarity. (p. 21-22)

Agency Response: The agencies’ determination of what constitutes a “significant 

nexus” is grounded in Justice Kennedy’s opinion in Rapanos v. United States, 547 

U.S. 715 (2006). At the core of the “significant nexus” analysis, the protection of 

upstream waters must be critical to maintaining the integrity of the downstream 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

779

waters. These upstream waters function as integral parts of the aquatic 

environment, and if these waters are polluted or destroyed there is a significant 

effect downstream. The agencies assess the significance of the nexus in terms of the 

CWA’s objective to “restore and maintain the chemical, physical, and biological 

integrity of the Nation’s waters.” When the effects are speculative or insubstantial, 

the “significant nexus” would not be present. In the final rule, the agencies 

determine that tributaries, as defined (“covered tributaries”), and adjacent waters, 

as defined (“covered adjacent waters”), have a significant nexus to downstream 

traditional navigable waters, interstate waters, and the territorial seas and therefore 

are “waters of the United States.” In the rule, the agencies also establish that 

defined sets of additional waters may be determined to have a significant nexus on a 

case-specific basis: (1) five types of waters that the agencies conclude are “similarly 

situated” and therefore must be analyzed “in combination” in the watershed that 

drains to the nearest traditional navigable water, interstate water, or the territorial 

seas when making a case-specific significant nexus analysis; and (2) waters within 

4,000 feet of the high tide line or ordinary high water mark of traditional navigable 

waters, interstate waters, the territorial seas, impoundments or covered tributaries. 

The final rule establishes a definition of significant nexus, based on Supreme Court 

opinions and the science, to use when making these case-specific determinations. 

Agribusiness Association of Kentucky (Doc. #18005)

12.1258 Congress plainly expected that most activities on farmlands and pastures would 

be covered by state programs aimed at controlling nonpoint source pollution and would 

not be subject to federal permit requirements. Congress specifically included in the 

CWA several critical statutory exemptions for agriculture, each of which would be 

unlawfully undermined by the proposed rule:

 Section 404 exemption for “normal” farming and ranching activities;

 Section 404 exemption for construction of farm or stock ponds;

 Exclusion of agricultural stormwater discharges and return flows from irrigated 

agriculture from the definition of “point source” and hence, from Section 402 

permitting. (p. 13)

Agency Response: As you point out, Congress identified in section 404(f)(1) of the 

Clean Water Act those activities for which the discharge or dredged or fill material 

is exempt from regulation, including normal farming, silviculture and ranching 

activities. Exemptions from permitting requirements for discharges to jurisdictional 

waters are beyond the scope of this rule. Also, this rule does not address the 

definition of “point source;” this issue is also beyond the scope of this rule.

NW Colorado Council of Governments Water Quality/ Quantity Committee (Doc. #10187)

12.1259 Because the proposed definition of tributary extends jurisdiction to man-made 

canals, the proposed rule should emphasize that it does not alter the Section 404(d) 

exemptions otherwise included in the Clean Water Act. (p. 5)

Agency Response: The scope of regulatory jurisdiction in this rule is narrower 

than that under the existing regulation. Fewer waters will be defined as “waters of 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

780

the United States” under the rule than under the existing regulations. Congress 

identified in section 404(f)(1) of the Clean Water Act those activities for which the 

discharge or dredged or fill material is exempt from regulation Exemptions from 

permitting for discharges to jurisdictional waters are beyond the scope of this rule.

Southeast Florida Utility Council (Doc. #11879)

12.1260 Taking into consideration the complexities of Florida’s landscape and utility 

operations, the DEP adopted by rule a number of exemptions from the definition of 

waters of the state and NPDES permitting requirements. However, the definitions 

contained in the Proposed Rule raise questions as to whether waters currently excluded or 

exempt from the NPDES permitting process will now be considered “waters of the 

United States,” and thus overruling and subsequently eliminating the DEP exemptions.

(p. 1-2)

Agency Response: The issue of whether Florida’s approved NPDES permit 

program under section 402(b) of the Clean Water Act meets applicable statutory 

and regulatory requirements is beyond the scope of this rule. However, the scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations.

Upper Trinity Regional Water District (Doc. #15728)

12.1261 EPA and the USACE must clarify the regulatory exemption of such recycled 

water projects. (p. 3)

Agency Response: Exemptions from permitting for discharges to jurisdictional 

waters are beyond the scope of this rule.

Waterkeeper Alliance et al. (Doc. #16413)

12.1262 It is (...) essential that the agencies avoid creating definitional limitations and 

categorical exclusions designed to protect particular sources of pollution from regulation 

under the CWA. For example, while everyone agrees that agriculture is essential to our 

way of life, everyone also agrees that clean water is essential to our way of life. 

Agriculture remains one of the largest unaddressed sources of water pollution in the 

United States.301 As described in the National Enforcement Priorities document for FY 

2008-2010: 

States have consistently reported to EPA that agricultural activities, including CAFOs, 

are leading sources of pollutants such as nutrients (nitrogen and phosphorus), pathogens 

(bacteria), and organic enrichment (low dissolved oxygen) that are contributing to water 

quality impairment in U.S. surface waters. Adverse impacts on ecosystems and human 

health associated with discharges of animal wastes include fish kills, algal blooms, and 

fish advisories, contamination of drinking water sources, and transmission of disease-

 

301 EPA, Watershed Assessment, Tracking & Results, National Summary of State Information, available at 

http://ofmpub.epa.gov/waters10/attains_nation_cy.control. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

781

causing bacteria and parasites associated with food and waterborne diseases.302 

Agricultural pollution is a major contributor to well‐documented, severe problems in key 

water resources like Lake Erie, the Chesapeake Bay, the Gulf of Mexico, North 

Carolina’s coastal estuaries, and many other significant water resources across the 

country.303 We believe that it is possible to protect and support both agricultural 

production and clean water, but we cannot protect water quality by grafting new 

exemptions for agriculture into the definition of “waters of the United States” under the 

CWA. (p. 6-7)

Agency Response: Prior converted cropland has been excluded from this 

definition since 1992, and the exclusion remains substantively unchanged. 

Exemptions from permitting for discharges to jurisdictional waters under section 

404(f)(1) of the Clean Water Act are beyond the scope of this rule. 

Agency Response: Texas Agricultural Land Trust (Doc. #15188)

12.1263 The agricultural exemptions provided by the proposed rule are wholly inadequate 

for Texas landowners. Management of land for the benefit of native wildlife is a 

significant, favored, and common use of private lands in Texas. This usage is 

encouraged in our state, and has been incentivized through the ad valorem property tax 

system in Texas. The hunting industry in Texas is a major component of our economy, 

employing many Texans, providing income to landowners, and providing recreational 

activity and enjoyment to our citizens. Landowners in Texas frequently construct ponds 

and lakes for wildlife, recreation and livestock; manage brush encroachment; and 

implement measures to prevent soil erosion and manage storm water runoff. Such 

projects benefit wildlife habitat and the environment generally. In order to protect these 

activities and encourage good land stewardship, wildlife management should be an 

 

302 http://www.epa.gov/compliance/data/planning/priorities/cwacafo.html [Webarchive]; See also, e.g., 

http://www.epa.gov/compliance/resources/publications/data/planning/priorities /fy2008priori tycwacafo.pdf.

303 See, e.g., (Utah) http://www.deq.utah.gov/FactSheets/docs/handouts/nutrients.pdf; (Ohio) 

http://epa.ohio.gov/Portals/35/visioning_workshop/Ohio%20Nutrient%20Fact%20Sheet.pdf; (Univ. of California) 

http://anrcatalog.ucdavis.edu/pdf/8055.pdf; (Illinois) http://www.epa.state.il.us/water/nutrient/; (Massachusetts) 

http://www.mass.gov/eea/docs/dep/water/drinking/alpha/i-thru-z/manure.pdf; (North Carolina) 

http://www.cals.ncsu.edu/wq/wqp/wqpollutants/nutrients/factsheets/FactsheetNM1.pdf; (Coastal Waters) 

http://moritz.botany.ut.ee/~olli/eutrsem/Howarth02.pdf; (EPA) 

http://water.epa.gov/polwaste/nps/agriculture_facts.cfm; (USGS) http://pubs.usgs.gov/fs/fs218-96/; (EPA) 

http://water.epa.gov/type/rsl/monitoring/upload/EPA-MARB-Fact-Sheet-112911_508.pdf; (Gulf) 

http://midwestadvocates.org/assets/resources/nutrient_pollution_factsheet.pdf; (EPA) 

http://www2.epa.gov/nutrientpollution/where-occurs--akes-and-rivers; (Iowa) 

http://www.iowapolicyproject.org/2010docs/100927-nutrients.pdf; (Neuse River) 

http://portal.ncdenr.org/c/document_library/get_file?uuid=e438d6bc--‐d147-4d7b-8224-

08e5a7c74b86&groupId=38364 and 

http://portal.ncdenr.org/c/document_library/get_file?uuid=48bc46d8‐c344‐4f07-a656-

7a211157c985&groupId=38364; (Tar--‐Pamlico River) 

http://portal.ncdenr.org/c/document_library/get_file?uuid=b4f40c70-fc0f-4bd7-b4a1-

b34dd7794f99&groupId=38364 and http://portal.ncdenr.org/c/document_library/get_file?uuid=12436e58-83ba41bf-bcac-d2fe4aa2b60c&groupId=38364; (Cape Fear River) 

http://portal.ncdenr.org/c/document_library/get_file?uuid=2eddbd59-b382-4b58-97edc4049bf4e8e4&groupId=38364; (California) http://ucanr.edu/sites/UCCE_LR/files/180590.pdf; (New York) 

http://www.nnyagdev.org/PDF/NNYPFacts1w.pdf
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

782

exempt practice. Without adequate exemptions, landowners will be discouraged from 

improving wildlife habitat, and from stewarding their land in a manner beneficial to the 

environment. (p. 2-3)

Agency Response: Congress identified in section 404(f)(1) of the Clean Water Act 

those activities for which the discharge or dredged or fill material is exempt from 

regulation. Exemptions from permitting for discharges to jurisdictional waters are 

beyond the scope of this rule. 

Iowa State University of Science and Technology (Doc. #7975)

12.1264 Exemption for normal farming, silviculture, and ranching activities in section 402: 

Under the proposed rule, Prior Converted Cropland (PCC) and Farmed Wetlands (FW) 

that are within agricultural fields and that have been actively farmed for generations 

could suddenly be deemed jurisdictional. (“Notwithstanding the determination of an 

area’s status as prior converted cropland by any other federal agency, for the purposes 

of the Clean Water Act the final authority regarding Clean Water Act jurisdiction 

remains with EPA.’) Section 404 provides an exemption for normal farming, silviculture 

and ranching activities in these areas. However, section 402 does not provide a similar 

exemption, and normal farming practices could now be prohibited. How can farmers be 

sure actions they take as part of a normal practice, such as pesticide application, will not 

later be deemed a federal violation? It is inconsistent for a typical farming operation with 

Prior Converted Cropland (PCC) and Farmed Wetlands (FW) to receive an exemption 

under Section 404, but not under Section 402.

Action: We ask that an agricultural exemption for Prior Converted Cropland (PCCJ and 

Farmed Wetlands (FWJ be developed under Section 402 that parallels the exemption that 

currently exists in Section 404. This will provide consistency and reduce uncertainty for 

farmers. (p.1-2)

Agency Response: Exemptions from permitting for discharges to jurisdictional 

waters under section 404(f)(1) of the Clean Water Act are beyond the scope of this 

rule. Prior converted cropland been excluded from this definition since 1992 and 

the exemption remains substantively and operationally unchanged.

12.1265 Normal farming practices: The definition of normal farming practices in the 

proposed rule and the accompanying interpretive rule refers to the exemptions in Section 

404(f). 404(f)(a) states the following activities are exempt, “normal farming, silviculture, 

and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting 

for the production of food, fiber, and forest products, or upland soil and water 

conservation practices.”

Action: Two key practices missing from this list of normal farming practices are nutrient 

management and pest management. Rather than assume these important practices are 

included or implied, we request these two items be explicitly included in the list of 

approved activities, thus: “...such as plowing, seeding, cultivating, nutrient management, 

pest management, minor drainage ....” (p. 2)

Agency Response: Congress identified in section 404(f)(1) of the Clean Water Act 

those activities for which the discharge or dredged or fill material is exempt from 

regulation, including normal farming, silviculture and ranching activities. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

783

Exemptions from permitting for discharges to jurisdictional waters under section 

404(f)(1) are beyond the scope of this rule. The interpretive rule titled, “U.S. 

Environmental Protection Agency and U.S. Department of the Army Interpretive 

Rule Regarding the Applicability of Clean Water Act Section 404(f)(l)(A)," was 

withdrawn by the agencies as required by the Consolidated and Further Continuing 

Appropriation Act on January 29th, 2015.

U. S. House of Representatives (Doc. #17474)

12.1266 Will the proposed rule limit or in any way impact existing CWA statutory 

exemptions for normal farming or ranching activities? Would the proposed rule have any 

impact on existing grazing operations on Federal land? Would the propose rule require 

ranchers to enclose, fence, or restrict grazing at areas that are not already required under 

the 2008 guidance? (p. 1)

Agency Response: Exemptions from permitting for discharges to jurisdictional 

waters are beyond the scope of this rule.

Committee on Transportation and Infrastructure, U.S. House of Representatives (Doc. #18018)

12.1267 Subcommittee members and stakeholders questioned whether the proposed rule 

and the accompanying interpretive rule between the Department of the Army and EPA 

(dated March 25, 2014) and memorandum of understanding among the Department of the 

Army, EPA, and the U.S. Department of Agriculture might negatively impact existing 

agricultural practices currently used by farmers throughout the nation. For example, two 

separate witnesses have suggested that the proposed rule somehow narrows the scope of 

404(f)(1) exemptions for normal farming and ranching activities to include only those 

that have occurred “continuously at the same location since 1977.”

304

 More specifically, 

the written testimony of Mr. Stallman references two Federal court cases (U.S. vs. 

Cumberland Farms of Connecticut, Inc., 647 F. Supp. 1166 (D. Mass. 1986) and Borden 

Ranch Partnership v. U.S. Army Corps of Engineers, 261 F. 3d 810 (91h Cir. 2001)) as 

evidence that the proposed rule narrows the scope of 404(l) exemptions. (p. 1)

Agency Response: Congress identified in section 404(f)(1) of the Clean Water Act 

those activities for which the discharge of dredged or fill material is exempt from 

regulation, including normal farming, silviculture and ranching activities. 

Exemptions from permitting for discharges to jurisdictional waters are beyond the 

scope of this rule. The interpretive rule titled, “U.S. Environmental Protection 

Agency and U.S. Department of the Army Interpretive Rule Regarding the 

Applicability of Clean Water Act Section 404(f)(l)(A)," was withdrawn by the 

agencies as required by the Consolidated and Further Continuing Appropriation 

Act on January 29th, 2015.

12.1268 (...) does anything in the proposed rule, or the accompanying documents, limit 

the existing statutory or regulatory exemptions that apply today for agricultural or 

ranching related activities, such as those related to normal farming activities or those 

related to agricultural return flows? (p. 2)

 

304 Written testimony of Thomas Nagle (PFB), dated April 28, 2014, and Mr. Stallman (AFBF), dated June 9, 

2014). 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

784

Agency Response: Congress identified in section 404(f)(1) of the Clean Water Act 

those activities for which the discharge or dredged or fill material is exempt from 

regulation, including normal farming, silviculture and ranching activities. 

Exemptions from permitting for discharges to jurisdictional waters are beyond the 

scope of this rule. The interpretive rule titled, “U.S. Environmental Protection 

Agency and U.S. Department of the Army Interpretive Rule Regarding the 

Applicability of Clean Water Act Section 404(f)(l)(A)," was withdrawn by the 

agencies as required by the Consolidated and Further Continuing Appropriation 

Act on January 29th, 2015.

12.1269 (...) there was some debate in the Subcommittee hearing about whether the 

normal farming activities exemption only applied to specific individuals who have been 

engaged in these activities since 1977. Therefore, with respect to the continuity of 

normal farming activities for the purposes of section 404(f)(1), does the same person 

need to be carrying out these activities for the exemption to apply, or does the exemption 

apply if the same type of activities occur at the site (i.e., not converting the land to a use 

to which it was not previously subject)? Does anything in the proposed rule, or the 

accompanying documents, change the application of this exemption? (p. 2)

Agency Response: Exemptions from permitting for discharges to jurisdictional 

waters are beyond the scope of this rule.

O’Neill LLP (Doc. #16559)

12.1270 Should the Agencies decide to adopt a new rule to define the scope of waters 

regulated under the CWA, it is imperative that the Agencies clearly provide for a 

grandfathering system whereby: (1) all development associated with an application for a 

Section 404 permit filed prior to the effective date of the final Rule is exempt from the 

new definition of “waters” and the new Rule, and (2) all development associated with a 

Preliminary JD or an approved JD issued prior to the effective date of the final Rule is 

exempt from the new definition of “waters” and the new Rule. 

Project applicants expend substantial time and financial resources on environmental 

consultant work, biological studies, project planning and design, project land-use 

entitlement, and the like prior to submitting an application to the ACOE for a Section 404 

permit. It is common for applicants to spend years and many tens of thousands (and even 

hundreds of thousands or millions) of dollars conducting such work leading up to the 

permit application. Furthermore, once filed, additional substantial time and financial 

resources are expended by a project applicant in conducting further environmental review 

connected with the Section 404 application, such as NEPA analysis and compliance, the 

analysis of project alternatives under Section 404(b)(l), responding to public comments 

and agency comments on the ACOE’s public notice of the application, Section 401 water 

quality certification, compliance with the National Historic Preservation Act, the federal 

Endangered Species Act, etc. 

It would be extremely unfair and would produce an unjustifiable economic hardship to 

Applicants for a Section 404 permit to have to revise (or re-do or even start over on) 

studies, plans, analyses, designs, prior approvals, prior entitlements, and the like, because 

the new Rule was being applied to such a project after the Section 404 permit application 

had already been filed. Moreover, similar considerations of fairness and avoidance of 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

785

undue economic hardship should compel the Agencies to make clear to the public in the 

final Rule, that the final Rule will not be applied retroactively to any project which has 

already obtained a Preliminary JD or an approved JD prior to the effective date of the 

final Rule. (p. 2)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits. 

12.9. SUPPLEMENTAL COMMENTS ON IMPLEMENTATION

Summary Response

The agencies (the U.S Environmental Protection Agency and U.S. Army Corps of Engineers) 

believe the proposed rule will result in increased clarity and certainty regarding the identification 

of “waters of the U.S.” The agencies received many helpful comments on the proposed rule 

which resulted in refinement of the final rule to provide further clarity and certainty to the 

regulated public. The rule is not designed to subject any entities of any size to any specific 

regulatory burden. Rather, it is designed to clarify the statutory scope of the “waters of the 

U.S.”, consistent with existing regulations and Supreme Court precedent. 

None of the existing procedures, permitting mechanisms, efficient permitting tools such as 

general permits, or activity exemptions are modified as a result of this rulemaking. 

The agencies are developing guidance to facilitate effective and efficient implementation of the 

final rule once it becomes effective. The agencies strive to achieve consistency across the 

country in all districts and regions in application of the rule for jurisdictional determinations. 

The agencies also recognize that there are variations that occur in geography, hydrology, climate, 

etc., which affect jurisdictional determinations. The initial phase of implementing the rule will 

require education and training for agency staff as well as other stakeholders and the regulated 

public. This training and outreach will be regionally-based to ensure appropriate consideration is 

given to ecoregional variation and to ensure consistent and efficient implementation of the rule. 

The final rule clarifies the additional excluded waters and features under the Clean Water Act. 

See the preamble section on “Waters and Features That Are Not Waters of the U.S.” for further 

discussion. The final rule does not affect the existing statutory activity-based exemptions under 

Section 404(f)(1) of the Clean Water Act, including those for the construction of irrigation 

ditches and the maintenance of irrigation and drainage ditches. In addition, the Corps nationwide 

general permit program includes several general permits for discharges associated with ditch 

activities, some of which may not require pre-construction notification for expeditious review 

and efficiency in processing verifications under Section 404 of the Clean Water Act. 

The agencies recognize that the state and local governments have well-defined and long-standing 

relationships in implementing affected CWA programs and these relationships will not be 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

786

altered. This action will not have substantial direct effects on the states, on the relationship 

between the national government and the states, or on the distribution of power and 

responsibilities among the various levels of government. The agencies are not restricting the 

states’ efforts in developing or implementing statewide permits under CWA programs as a result 

of the rule.

Specific Comments

Jackson County Board of Supervisors (Doc. #1449)

12.1271 Potentially increases the number of county-owned ditches under federal 

jurisdiction: The proposed rule would define some ditches as "waters of the U.S." if they 

meet certain conditions. This means that more county-owned ditches would likely fall 

under federal oversight. In recent years, Section 404 permits have been required for ditch 

maintenance activities such as cleaning out vegetation and debris. Once a ditch is under 

federal jurisdiction, the Section 404 permit process can be extremely cumbersome, timeconsuming and expensive, leaving counties vulnerable to citizen suits if the federal 

permit process is not streamlined. (p. 2)

Agency Response: See Summary Response. The final rule clarifies the additional 

excluded waters and features, including certain ditches that are not jurisdictional 

under the Clean Water Act. See the preamble section on “Waters and Features 

That Are Not Waters of the U.S.” for further discussion. The final rule does not 

affect the existing statutory activity-based exemptions under Section 404(f)(1) of the 

Clean Water Act, including those for the construction of irrigation ditches and the 

maintenance of irrigation and drainage ditches. In addition, the Corps nationwide 

general permit program includes several general permits for discharges associated 

with ditch activities, some of which may not require pre-construction notification 

for expeditious review and efficiency in processing verifications under Section 404 of 

the Clean Water Act. This rule does not impact the citizen suit provisions under the 

Clean Water Act.

Anonymous (Doc. #3300.1)

12.1272 Section 303 WQS

Case 1 – Theoretical Wastewater Overflow

Under the proposed rule if a ditch is considered a Water of the United States then a 

sanitary sewer overflow to a dry ditch could create an enormous burden on the local 

utility. CWA regulates TMDL’s and discharges to the Waters of the United States. 

Currently, if a system has an overflow reaching a stream it is required to follow protocol 

procedures in clean up and notification, and if significant a consent decree will be issued 

by state regulators. The protocol requires sampling and monitoring for an extended 

period of time, which is costly but usually easy to perform. If the overflow goes to a dry 

ditch but does not reach the stream, what new or additional requirements would the local 

provider be subject to if the proposed rule is adopted? If the proposed rule is adopted, 

what COE permit would be required in this case, how long would it take to address the 

spill in a dry ditch, and what parameters would be required for sampling and for and how 

long? Remember that to excavate the ditch would involve off-fall of dredging. (p. 3)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

787

Agency Response: Regulation of sewer overflows under the NPDES program are 

beyond the scope of this rulemaking. See Compendium 6 – Ditches.

12.1273 Section 402

Case 1 – NPDES MS4 Permits

(...) If this proposed rule is adopted and moves forward, construction site issues could 

become cumbersome if the ditch is considered a Water of the United States. Staffs of 

local governments have a hard enough time currently achieving compliance with erosion 

and sediment control requirements from contractors and developers. It is very difficult 

educating and convincing local governing boards to accept the fact that environmental 

compliance of the CWA and the costs associated with them must be passed on to the 

development community. They are perceived as unnecessary and prohibiting growth and 

economic development. (p. 3 – 4)

Agency Response: Please see summary responses 12.3 and 7.4.4.

12.1274 CASE 2 – Local Dirt Roads

How does a local jurisdiction maintain a dirt road and ditch under the proposed rule 

without getting a permit? Roads are bladed, creating off-fall many times into the ditch, 

and the ditch usually has to have sediment removed for the runoff to move in a positive 

direction, which is usually a stream or at minimum a channel that is dry and when wet 

leads to the stream. As proposed it would appear to me that 402 permits would be 

required for maintenance of dirt roads. Permitting would become a nightmare for the 

local jurisdiction. (p. 4 )

Agency Response: See Compendium 6 (Ditches). The final rule excludes many 

ditches from jurisdiction, including ephemeral ditches that are not a relocated 

tributary or excavated in a tributary; intermittent ditches that are not a relocated 

tributary, excavated in a tributary, or drain wetlands; and ditches that do not 

connect to a traditional navigable water, interstate water, or territorial sea either 

directly or through another water are excluded, regardless of whether the flow is 

ephemeral, intermittent, or perennial.

12.1275 There is a definite need to clarify and define how local governments due business 

under the proposed rule. USEPA and COE have a monumental task at hand. I feel it 

would be better served if additional local government case studies and interviews were 

taken into the functionality of the proposed rule. It is a difficult process in developing 

regulatory rule but local governments for the most part will be the implementers. There 

needs to be some common ground between the proposed regulation and reality of 

successful implementation. The ultimate goal is to achieve the requirements of the Clean 

Water Act. (p. 5)

Agency Response: State, tribal and local governments have well-defined and 

longstanding working relationships with the Corps and EPA in implementing Clean 

Water Act programs. The final rule reflects the current state of the best available 

science and is guided by the need for clearer, more consistent and easily 

implementable standards to govern administration of the Act. The agencies will 

continue a transparent review of the science and learn from ongoing experience and 

expertise as the rule is implemented. The agencies plan to work with our regulatory 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

788

partners on timely development of necessary training and guidance, as appropriate, 

to build upon existing working relationships, to inform stakeholders, and to ensure 

successful implementation of this rule. 

W. V. Giniecki (Doc. #4262)

12.1276 EPA has also stated that agriculture is exempt from this proposal, but this is not 

really true. Only 56 agricultural conservation activities that nave standards set by the 

Natural Resources Conservation Service (NRCS) are exempt - and that's only for dredge 

and fill permits (Section 404). Farmers conducting these activities are only exempt from 

404 permitting if they follow NRCS standards, which until now were voluntary are many 

more appropriate and necessary agricultural activities on a farm that do not qualify as 

dredge and fill," like weed control and fertilizer application, and those are not exempted 

from the proposed regulation and EPA could easily require farmers to receive a permit 

under this new regulation. (p. 1)

Agency Response: The interpretive rule titled, “U.S. Environmental Protection 

Agency and U.S. Department of the Army Interpretive Rule Regarding the 

Applicability of Clean Water Act Section 404(f)(l)(A)," was withdrawn by the 

agencies as required by the Consolidated and Further Continuing Appropriation 

Act on January 29th, 2015. Congress identified in section 404(f)(1) of the Clean 

Water Act those activities for which the discharge of dredged or fill material is 

exempt from regulation, including normal farming, silviculture, and ranching 

activities. Exemptions from permitting for discharges to jurisdictional waters are 

beyond the scope of this rule.

Mohave County Water Authority (Doc. #4346)

12.1277 NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF 

DIRECTORS OF THE MCWA that we oppose the recent Clean Water Act regulation 

wording change and request EPA provide a clearly written grandfathering provision for 

projects and lands already delineated under existing standards. (p. 2)

Agency Response: Consistent with existing Corps regulations and guidance, all 

approved jurisdictional determinations completed and/or verified by the Corps 

must be in writing and generally will remain valid for a period of five years. The 

preamble addresses the status of final JDs and permits as well as pending JDs and 

permits.

Kimble County Commissioners' Court, Kimble County, Texas (Doc. #4534)

12.1278 (...) WHEREAS, the EPA claims it is granting farmers and ranchers exemptions 

– yet those exemptions are extremely narrow and were granted by Congress decades ago. 

Furthermore, the EPA is, in fact, is narrowing those exemptions by making them – for the 

first time – conditioned on compliance with specific federal standards and the exemptions 

only apply to long-standing operations (not newer or expanded farms); (...) (p. 1)

Agency Response: Congress identified in section 404(f)(1) of the Clean Water Act 

those activities for which the discharge of dredged or fill material is exempt from 

regulation, including normal farming, silviculture, and ranching activities. The 

Corps and EPA’s existing regulations implementing CWA section 404(f) indicate 

exempt activities must be part of an “established (i.e., ongoing)” farming, 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

789

silviculture, or ranching operation. Exemptions from permitting for discharges to 

jurisdictional waters are beyond the scope of this rule.

Council of the Borough of Ferndale, Cambria County (Doc. #4825)

12.1279 (...) WHEREAS, the definitions in the rule could bring MS4 storm water 

systems under greater regulation and expense through Total Maximum Daily Load 

(TMDL); and (...) (p. 1)

Agency Response: Please see summary response 7.4.4.

12.1280 (...) WHEREAS, this proposed regulation creates uncertainty rather than clarity 

and would now capture a significant number of public works activities and transportation 

infrastructure that will now be subject to the Clean Water Act (CWA) and its costly and 

time-consuming permitting and regulatory protocols; and (...) (p. 1)

Agency Response: The scope of regulatory jurisdiction in this rule is narrower 

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations, in part 

because the rule puts important qualifiers on some existing categories such as 

tributaries. In addition, the rule provides greater clarity regarding which waters 

are subject to CWA jurisdiction, reducing the instances in which permitting 

authorities, including the states and tribes with authorized section 402 and 404 

CWA permitting programs, need to make jurisdictional determinations on a casespecific basis.

L. Banks (Doc. #5554.2)

12.1281 7. Will the potential addition limits of EPA jurisdiction on the farms also submit 

farmers and/or aerial applicators to NPDES permitting requirements. I noticed that aerial 

application was not listed as one of the 56 approved NRCS practices even though it is 

currently an approved practice which is used regularly on most all farms. Does this mean 

that an aerial applicator could be subjected to excessive fines or permitting/mitigation if 

flying over a newly extended jurisdictional ditch on the farm? (p. 1)

Agency Response: Please see summary response 12.3. Additionally, the agencies 

withdrew the Interpretive Rule that referred to the 56 approved NRCS practices 

that would be exempt from permitting requirements. Comments on the Interpretive 

Rule are outside the scope of this proposed and final rule. See also Compendium 14 

– Miscellaneous for responses to comments on the Interpretive Rule.

12.1282 8. As to the 56 exempt practices, most of them are exempt under present rules. 

Therefore, I don't see why such an emphasis was placed on this by EPA. I still don't 

understand why the wording is in the rule about farmers only being exempt if they have 

farmed the same tract of land continuously since 1977. Having farmed my land for 'only 

26 years since 1988', I still interpret this to mean I will have to get a permit for approved 

NRCS work on my farms. (p. 1)

Agency Response: Please see summary response 12.3. The requirements for the 

NPDES permitting program or the pesticides general permit (PGP) are beyond the 

scope of the rule. Additionally, the agencies withdrew the Interpretive Rule that 

referred to the 56 approved NRCS practices that would be exempt from permitting 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

790

requirements. Comments on the Interpretive Rule are outside the scope of this 

proposed and final rule. See also Compendium 14 – Miscellaneous for responses to 

comments on the Interpretive Rule.

St. Johns County Board of County Commissioners (Doc. #5598)

12.1283 Stormwater management activities are not explicitly exempt under the proposed 

rule, so it appears that man-made conveyances and facilities for stormwater management 

could now be classified as a "water of the U.S." Some counties and cities own Municipal 

Separate Storm Sewer System (MS4) infrastructure including ditches, channels, pipes and 

gutters that flow into a "water of the U.S." and are therefore regulated under the CWA 

Section 402 stormwater permit program. There is a significant potential threat for 

counties that own MS4 infrastructure because they would be subject to additional water 

quality standards (including total maximum daily loads) if their stormwater ditches are 

considered a "water of the U.S." Not only would the discharge leaving the system be 

regulated, but all flows entering the MS4 would be regulated as well. Even if the agencies 

do not initially plan to regulate an MS4 as a "water of the U.S.," they may be forced to do 

so through CWA citizen suits, unless MS4s are explicitly exempted from the 

requirements. (p. 2)

Agency Response: Please see summary response 7.4.4. 

Black Hills Corporation (Doc. #6248)

12.1284 The concept of "best professional judgment” is referenced throughout the 

preamble of the .proposed draft rule. Even well-trained environmental practitioners may 

not be able to make adequate, consistent determinations of the presence or absence of 

U.S. waters without clear guidance. Across the country, watersheds and associated water 

features display significant variation in geographic and physical composition. Science 

professionals, the regulated community and regulators will require clear guidelines to 

make timely determinations. Jurisdictional determinations will become a repetitive, 

imprecise exercise in which regulators, science professionals, and the regulated 

community are likely to reach inconsistent and subjective decisions. (p. 4)

Agency Response: See Summary Response. The agencies are developing guidance 

to facilitate effective and efficient implementation of the final rule once it becomes 

effective. The agencies strive to achieve consistency across the country in all 

districts and regions in application of the rule for jurisdictional determinations. 

The agencies also recognize that there are variations that occur in geography, 

hydrology, climate, etc., which affect jurisdictional determinations. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public. This training and outreach 

will be regionally-based to ensure appropriate consideration is given to ecoregional 

variation and to ensure consistent and efficient implementation of the rule. 

American Water Company (Doc. #6935)

12.1285 To eliminate this uncertainty, American Water Company proposes that the 

Agencies exempt portions of tributaries from permitting where the area to be crossed by a 

water main does not exhibit the features of a bed, a bank and an OHWM.
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791

2. The Agencies should add to the rulemaking an expedited permitting process for water 

distribution systems that impact tributaries. 

American Water Company, like most water companies, serves the public. Our 

distribution systems are part of the infrastructure of small towns and medium/large 

metropolitan areas. Every day, our company is asked to build new water lines to serve 

new customers. We are also asked - and required as a matter of law, in many instances -to 

relocate our water mains. Our obligation to serve families and businesses mandates that 

we undertake these projects. In many instances, we find it necessary to cross dry creeks, 

man-made depressions and ditches on an expedited basis in order to satisfy civic planning 

in the communities we serve.

The Agencies should supplement the rule (or add a new rule) to simplify the permitting 

process for water companies crossing tributaries. This action is warranted even if the 

Agencies elect not to finalize the proposed rule, for the crossing of tributaries currently 

considered to be WOTUS. Indeed, this could be accomplished by using a "permit by 

rule" process. Another alternative is to expedite the process through use of a nationwide 

permit process for water companies. Regardless of the mechanism, the new rule should 

expedite the process for obtaining permits that involve water main tributary crossings. 

Doing so will eliminate unwarranted delays in many development projects, such as new 

home construction, roadway construction and relocation, and commercial development. 

The proposed rule, if adopted without the exception proposed in #1 above and the 

exclusion proposed in #3 below, would cause many more unwarranted delays in 

commercial and residential development unless the permitting process is simplified. Such 

an outcome would delay efforts by entities like American Water Company to invest 

much-needed capital in modernizing critical infrastructure throughout the country, an 

imperative that has been highlighted time and again by policymakers at every level of 

government and by customers frustrated with outdated services. (p. 2)

Agency Response: See Summary Response. The agencies believe the proposed 

rule will result in increased clarity and certainty regarding the identification of 

“waters of the U.S.” The agencies received many helpful comments on the proposed 

rule which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public. In order to be considered a tributary and 

jurisdictional by rule, the water feature must have a bed and banks and ordinary 

high water mark, and must contribute flow to the downstream (a)(1) to (a)(3) 

waters. None of the existing procedures, permitting mechanisms, efficient 

permitting tools such as general permits, or activity exemptions will be modified as a 

result of this rulemaking. This comment is outside the scope of this rulemaking; 

however, the agencies note that the Nationwide General Permits will be 

reauthorized in 2017 and public comments will be solicited. 

12.1286 3. Water distribution lines should be excluded from permitting requirements with 

respect to ephemeral tributaries when pipe is installed below or above the tributary. 

American Water Company appreciates that the Agencies wish to protect navigable, 

interstate waters and territorial seas from pollutants. Our Company draws its supply of 

water in many instances from such sources. However, the distribution network of water 

companies, which carry clean water for human consumption, is a closed system. Fully 
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792

enclosed/encapsulated water mains do not present a threat of pollution to tributaries, 

especially to ephemeral tributaries which are essentially dry ditches during most of the 

year. This is especially true when water mains are built under or above an ephemeral 

tributary. (Rarely are water mains constructed in the bed of a tributary, although 

permitting may be appropriate for such placement under certain circumstances.) (p. 2 – 3)

Agency Response: See Summary Response. The agencies believe the proposed 

rule will result in increased clarity and certainty regarding the identification of 

“waters of the U.S.” The agencies received many helpful comments on the proposed 

rule which resulted in refinement of the final rule to provide further clarity and 

certainty to the regulated public. In order to be considered a tributary and 

jurisdictional by rule, the water feature must have a bed and banks and ordinary 

high water mark, and must contribute flow to the downstream (a)(1) to (a)(3) 

waters. None of the existing procedures, permitting mechanisms, efficient 

permitting tools such as general permits, or activity exemptions will be modified as a 

result of this rulemaking. This comment is outside the scope of this rulemaking; 

however, the agencies note that the Nationwide General Permits will be 

reauthorized in 2017 and public comments will be solicited.

Sarasota County Commission (Doc. #7529)

12.1287 It is our understanding, that under the proposed rules, our routine maintenance 

practices would become subject to Section 404 dredge and fill permits, CWA water 

quality standards, the National Pollutant Discharge Elimination System (NPDES), and 

general permits for pesticide and herbicide use. The Section 404 permits are a major 

concern. We strongly recommend that routine stormwater maintenance be exempt from 

any new permitting requirements. Routine maintenance includes mowing, excavation to 

original design, bank stabilization and the application of herbicides to clear the flow path.

(p. 1)

Agency Response: This comment is outside the scope of this rulemaking. None of 

the existing procedures, permitting mechanisms, efficient permitting tools such as 

general permits, or activity exemptions will be modified as a result of this 

rulemaking. The final rule clarifies the additional excluded waters and features, 

including certain stormwater control features that are not jurisdictional under the 

Clean Water Act. See the preamble section on “Waters and Features That Are Not 

Waters of the U.S.” for further discussion. The final rule does not affect the existing 

statutory activity-based exemptions under Section 404(f)(1) of the Clean Water Act, 

including those for the construction of irrigation ditches and the maintenance of 

irrigation and drainage ditches. In addition, the Corps nationwide general permit 

program includes several general permits for discharges associated with ditch 

activities, some of which may not require pre-construction notification for 

expeditious review and efficiency in processing verifications under Section 404 of 

the Clean Water Act.

12.1288 Please accept the following additional comments:

 Specify in the rule that streets, gutters, and human-made dry ditches and swales 

are exempt.

 Specify in the rule that routine stormwater canal maintenance is exempt.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

793

 The current Section 404 permitting process can be slow and flood control 

maintenance cannot wait. The process must be timely and cannot be complicated 

or costly.

 The rule must explicitly exempt water quality treatment systems from Clean 

Water Act standards because these systems were created to capture pollutants and 

protect downstream waters. Systems include stormwater ponds and associated 

conveyances, roadside ditches, vaults, gutters, bioswales, rain gardens, and other 

green infrastructure. (p. 2)

Agency Response: The final rule continues the current policy of regulating ditches 

that are constructed in tributaries or are relocated tributaries, or that science 

clearly demonstrates are functioning as a tributary. These waters affect the 

chemical, physical, and biological integrity of downstream waters. Exclusions from 

permitting for discharges to jurisdictional waters are beyond the scope of this rule. 

However, the final rule includes a new exclusion for stormwater control features 

constructed to convey, treat, or store stormwater that are created in dry land. The 

agencies received many comments, particularly from municipalities and other 

public entities that operate storm sewer systems and stormwater management 

programs, expressing concern that various stormwater control measures—such as 

stormwater treatment systems, rain gardens, low impact development/green 

infrastructure, and flood control systems—could be considered “waters of the 

United States” under the proposed rule, either as part of a tributary system, an 

adjacent water, or as a result of a case-specific significant nexus analysis. This 

exclusion should clarify the appropriate limits of jurisdiction relating to these 

systems. See summary response 7.4.4.

City of Brea, California (Doc. #7636.1)

12.1289 We have reviewed the thoughtful and carefully considered comments of the 

California Stormwater Quality Association ("CASQA") and fully concur in its concerns 

that the proposed rule creates a great deal of uncertainty for operators of municipal 

separate storm sewer systems JLG rMS4"). We further concur that unless the proposed 

rule is modified to specifically exclude MS4s and related stormwater facilities, there is a 

real risk that portions of the City's MS4 could be considered a water of the United States 

even before it discharges into a jurisdictional water such as a river, stream, or ocean. This 

could lead to significant new and duplicative regulations and burdensome costs, in 

addition to the stringent requirements of the NPDES permit that currently governs the 

City's MS4. P. 1)

Agency Response: Please see summary response 7.4.4.

Michael D. Schiffer (Doc. #7645)

12.1290 We are already subject to state and federal regulations for pesticide use and

aircraft operation, including performance requirements under the Federal Insecticide, 

Fungicide and Rodenticide Act (FIFRA) and the Federal Aviation Administration (FAA) 

for recordkeeping. For any pesticide applications that may occur into, over or near state 

or federal jurisdictional waters, compliance is required also with National Pollutant 

Discharge Elimination System (NPDES) pesticide general permits (PGPs) issued by EPA 

or delegated states. The proposed rule would vastly expand not only federal jurisdictional 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

794

waters but ultimately waters of the state – adding responsibilities, challenges and 

potential liabilities of aerial applicators as they work to consistently comply with the 

requirements of their various contracts, PGPs and FIFRA label requirements. It appears 

to us that the agencies have not considered these impacts in its economic analysis, 

determination that small businesses like ours would experience adverse effects, or the 

potential legal jeopardy under both CWA and FIFRA. (p. 1)

Agency Response: Please see summary response 12.3.

12.1291 Were this rule to be promulgated as proposed, we anticipate subsequent additional 

federal and state regulations for activities affecting newly-jurisdictional waters, including 

perhaps further restrictions on pesticide use and revisions to federal or state PGPs. We 

oppose promulgation of the rule as proposed, and urge the agencies to withdraw the 

current proposal and start over with adequate representation and input from all 

stakeholders before a replacement rule is proposed. (p. 2)

Agency Response: See Summary Response. The final rule clarifies the additional 

excluded waters and features, including certain stormwater control features that are 

not jurisdictional under the Clean Water Act. See the preamble section on “Waters 

and Features That Are Not Waters of the U.S.” for further discussion. None of the 

existing procedures, permitting mechanisms, efficient permitting tools such as 

general permits, or activity exemptions will be modified as a result of this 

rulemaking. Also, please see summary response 12.3. Permitting requirements for 

discharges to jurisdictional waters are beyond the scope of this rule.

Chenier Plain Coastal Restoration & Protection Authority (Doc. #7976)

12.1292 (...) WHEREAS, the proposed new rule calls for regulatory requirements which 

will create a major burden to the residents, businesses and governmental agencies in the 

Parishes of Southwest Louisiana by expanding the list of projects requiring 

administrative review and permitting thereby creating additional regulatory delays for 

projects which will in turn result in more delays and costs for each parish, add additional 

paperwork and time to the time required for parishes and municipalities to complete 

public infrastructure projects due to the new regulatory process, slow down business 

expansion and add additional restrictions to development through wetland mitigation and 

significantly alter the benefit cost ratio on some much needed restoration and protection 

projects in the Chenier Plain of Southwest Louisiana; and (p. 2)

Agency Response: See Summary Response. The additional costs that may be 

incurred as a result of the rule were considered in the updated Economic Analysis 

and that analysis concludes that the benefits of the rule outweigh any associated 

costs placed on the regulated public and on the agencies themselves. The scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. With the clarity and 

certainty provided in the rule there are expected to be efficiencies gained in making 

jurisdictional determinations. The Corps will develop the tools necessary to assist 

its staff with the jurisdictional determination process specific to section 404 during 

the implementation of the final rule to make the process predictable, efficient, and 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

795

effective. The initial phase of implementing the rule will require education and 

training for agency staff as well as other stakeholders and the regulated public. 

This training and outreach will be regionally-based to ensure appropriate 

consideration is given to ecoregional variation and to ensure consistent and efficient 

implementation of the rule. See the Economic Analysis for additional information 

regarding costs/benefits of the final rule.

City of St. Marys, Georgia (Doc. #8144)

12.1293 The City of St. Marys was established in 1787 with little consideration for the 

slow drainage of surface or flood waters in its historic areas. (There is only an approx. 19 

foot rise in elevation in our 25 square mile City.) The only method used in our historic 

areas until recently was the ‘ditch’ method. The City is concerned that there appears to 

be no definitive rule for the maintenance of these ditches, the definition of a ‘ditch’, and 

the maintenance of pre-existing manmade structures (ditches, culverts, lined ditches, 

ponds, retention areas, etc.). If the proposed buffer requirement is applied to these 

ditches, then this will compromise the structures that are already located there, as well as 

deprive the City of the ability to properly plan for re-development of these parcels if 

vacant or dilapidated.

 The proposed rule states that if existing – or newly created – waters are clearly 

not under the jurisdiction of the existing rule defining Waters of the US, these 

waters would be decided on a case by case basis. This will delay the project 

work of state and local governments and increase the cost and work.

 The proposed rule does not take into consideration the constantly changing 

coastal conditions of rising seas, rising ground water, artesian wells, surge, 

flooding from upstream causes, FEMA and FIRM mapping, and the like,

 The proposed rule expands jurisdiction to the flood way to the 1% base flood 

elevation of any stream. This will make any proposed development that is 

permitted under FEMA guidelines very costly to implement due to the time and 

data required to comply with this proposed Waters of the US rule, effectively 

making these areas ‘unbuildable’.

 Existing manmade retention ponds designed to existing State and Local 

standards all have ‘outflows’ for when a storm event creates an overflow 

condition. Under the new rule, this condition will be considered ‘Waters of the 

US’ and create maintenance problems for either the City, the Home Owners 

Associations, or the Citizens that may own all or part of a retention area. Even 

ponds or wetlands that have no outlet to a Water of the US, has to have an 

overflow outlet and a related watercourse for when it does overflow. This 

creates a classic Catch 22, because at that moment – under this rule – the 

pond/wetlands will become Waters of the US subject to regulation. In other 

words, every present and future retention or drainage methods that have potential 

of draining will become Waters of the US, creating a nightmare of higher costs 

and longer permit time.

 The proposed buffer requirement for ‘Waters of the US’ – will create massive 

problems with existing and proposed – but unbuilt – lots/structures. Some of the 

lots/structures adjacent to existing wetlands have features within this proposed 

buffer, and this will render these lots/structures unbuildable, thereby destroying 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

796

the economic value of the lots/structures, which will negatively affect the health 

and welfare of our citizens. (p. 1 – 2)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. Definitions of 

certain terms are provided for the first time (e.g. tributary), or are further clarified 

(e.g. adjacent). The final rule provides for certain categories of waters that are 

jurisdictional by rule, which will result in a more efficient process. See the updated 

Economic Analysis for additional discussion. The final rule clarifies the additional 

excluded waters and features, including certain stormwater control features, which 

are not jurisdictional under the Clean Water Act. See the preamble section on 

“Waters and Features That Are Not Waters of the U.S.” for further discussion. 

None of the existing procedures, permitting mechanisms, efficient permitting tools 

such as general permits, or activity exemptions will be modified as a result of this 

rulemaking. Under the final rule, if a water or feature is not specifically excluded 

under paragraph (b) and does not meet any of the categories of paragraph (a) then 

the water or feature would not be jurisdictional under the Clean Water Act. The 

Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 during the implementation of the final 

rule to make the process predictable, efficient, and effective. The initial phase of 

implementing the rule will require education and training for agency staff as well as 

other stakeholders and the regulated public. This training and outreach will be 

regionally-based to ensure appropriate consideration is given to ecoregional 

variation, such as in the coastal zones, and to ensure consistent and efficient 

implementation of the rule. See the preamble section on “Adjacent Waters” for a 

discussion on the appropriate floodplain to use in determining whether a water may 

be adjacent. The final rule does not affect the existing statutory activity-based 

exemptions under Section 404(f)(1) of the Clean Water Act, including those for the 

construction of irrigation ditches and the maintenance of irrigation and drainage 

ditches. In addition, the Corps nationwide general permit program includes several 

general permits for discharges associated with maintenance activities, some of which 

may not require pre-construction notification for expeditious review and efficiency 

in processing verifications under Section 404 of the Clean Water Act.

Board of Douglas County Commissioners, Castle Rock, CO (Doc. #8145)

12.1294 Following this expanded process will allow stakeholders to submit informed 

comments based on the best and most current available information. See Executive Order 

12866, Regulatory Planning and Review, September 30, 1993 and Executive Order 

13563, Improving Regulation and Regulatory Review, January 19, 2011 (agency should 

seek the involvement of State, local, and tribal officials and should afford the public a 

meaningful opportunity to comment). (p. 5)

Agency Response: See Summary Response. The public notice was extended twice 

in order to ensure adequate time for public comments to be provided.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

797

Olivenhain Municipal Water District (Doc. #8596)

12.1295 [U]nder the proposed rule, all Clean Water Act programs would now be required 

to go through the same process as the Section 404 program. For example, the Section 303 

Water Quality Standards program, which is overseen by the states, would be subjected to 

the increasingly complex and costly regulatory requirements. (p. 2)

Agency Response: Please see summary response 12.3. The final rule does not 

establish any regulatory requirements, and questions about implementation of the 

NPDES program are beyond the scope of the rulemaking. Instead, the final rule is a 

definitional rule that clarifies the scope of “waters of the United States” consistent 

with the Clean Water Act (CWA), Supreme Court precedent, and science. 

Programs established by the CWA, such as the section 402 National Pollution 

Discharge Elimination System (NPDES) permit program, the section 404 permit 

program for discharge of dredged or fill material, and the section 311 oil spill 

prevention and clean-up programs, all rely on the definition of “waters of the United 

States.” Entities that currently are regulated under these programs that protect 

“waters of the United States” will continue to be. In addition, the final rule does not 

change the authority of states and tribes to set water quality standards and 

designate regulated waters within their boundaries. States and tribes will also 

continue to have discretion to design and implement ambient surface water 

monitoring strategies and propose waters for the 303(d) and TMDL programs.

12.1296 VI11. The 1R Provides No Real Assurances for Farmers and Ranchers

The IR does not provide clear and complete protection to farmers and ranchers from 

CWA enforcement. First, if the IR is truly mere guidance with an attached MOU, it can 

provide little legal protection to farmers and ranchers if challenged. As stated in the 

MOU, the list can be 1 changed at any time without any notice and comment provided to 

the ranching community. 

Second, the IR does not provide the needed assurance that farmers and ranchers will not 

be required to get § 402 NPDES permits for chemical applications on fields and pastures 

or from protection from requirements under Total Maximum Daily Loads (TMDLs) or 

Water Quality Standards (WQS). The expansion of the definition of "waters of the U.S." 

proposed by the agencies would make many ephemeral streams in pastures and fields or 

roadside ditches "waters of the U.S.," making chemical applications a point source 

discharge and subject to liability under the CWA. (EPA-HQ-OW- 201 1-0880,79 Fed. 

Reg. 22187, April 21,2014). The agencies' IR and subsequent presentations and outreach 

is an attempt to mislead the agricultural community to believe that they are insulated 

from the expansion of the definition of "waters of the U.S.," but the truth is that they are 

not.

Third, the IR cannot protect farmers and ranchers from the "recapture provision" under 

Sec. 404(f)(2). (IR at 2, n. 2).This provision states even if the activity listed is exempt, if 

EPA or the Corps believe that the activity would change the use, impair or reduce the 

reach of a water of the U.S. the exemption for that activity no longer applies and a 5 404 

permit is required. The IR fails to provide any needed clarity and protection for farmers 

and ranchers. (p. 35)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

798

Agency Response: The interpretive rule titled, “U.S. Environmental Protection 

Agency and U.S. Department of the Army Interpretive Rule Regarding the 

Applicability of Clean Water Act Section 404(f)(l)(A)," was withdrawn by the 

agencies as required by the Consolidated and Further Continuing Appropriation 

Act on January 29th, 2015.

Andy Tilton (Doc. #9604)

12.1297 Currently there are storm water attenuation and water quality treatment systems 

located in these areas and are outside the jurisdictional limits. Storm water ponds are a 

treatment system component. As such, the quality in the pond is not required to meet the 

numeric nutrient criteria (NNC). It must meet the NNC when it discharges. Under the 

clarification, the water in the treatment ponds would have to meet the NNC. How is it 

possible to have the water in the treatment pond meet the criteria? This is analogous to 

saying the water in a waste water treatment plant must meet the discharge quality criteria 

anywhere in the plant. (p. 1)

Agency Response: Please see summary responses 7.4.4 and 7.1.

Mecklenburg County Government, North Carolina Doc. #10946)

12.1298 Mecklenburg County currently has a Post Construction Ordinance to meet the 

Phase 2 requirements of its NPDES permit. The Post Construction Ordinance requires 

sites to meet water quality as well as water quantity standards. The "significant nexus" 

that is used to help justify the inclusion of ephemeral channels would still be present on 

sites through the newly constructed Best Management Practices (BMPs). The BMPs may 

now be providing a greater positive influence to the "waters of the United States" located 

further downstream than what would have been provided through just the ephemeral 

channel with development draining directly into it. The location of ephemeral channel is 

often in the same location that BMPs would need to be installed, making it more difficult 

to install BMPs designed to help improve water quality in urban settings. (p. 2)

Agency Response: Please see summary response at 7.4.4. 

Minnesota Association of County Agricultural Inspectors (Doc. #10970)

12.1299 The definition changes would affect every CWA program, because there is only 

one definition of WOUS in the CWA. It is uncertain how these definitions will be used to 

effectively implement various CWA programs. (p. 2)

Agency Response: Please see summary response 12.3. 

Anonymous (Doc. #11350)

12.1300 Additionally, there are many uncertainties regarding the implementation of this 

proposed rule from Environmental Protection Agency’s (EPA) jurisdiction. How will this 

proposed rule impact the National Pollutant Discharge Elimination System Program and 

permit requirements? Will there be additional limitations on fertilizer applications? A 

major concern is the potential for project delays. What mechanisms have been put in 

place to prevent the proposed regulations from creating a resource burden on the 

implementing agencies? Does the USACE and EPA have the resources required to apply 

the regulations without increasing processing time on permits? (p. 2)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

799

Agency Response: Please see summary response 12.3. See also Compendium 11-

Economics and Economics Analysis Section 8 for analysis of the rule’s impacts on 

the Section 402 permitting program. 

Board of County Commissioners, El Paso County, Colorado (Doc. #11487)

12.1301 (...) WHEREAS, if a water feature is determined, either per se or on a case-bycase basis, to be a "Water of the United States", the proposed rule would subject county 

and local governments to increasingly complex and costly federal regulatory 

requirements under the proposed rule which applies to all Clean Water Act programs 

including Sections 404-Waters of the United States program, 402-National Pollution 

Discharge Elimination System (NPDES) program, 303-Water Quality Standards (WQS) 

program, and other programs including stormwater, green infrastructure, pesticide 

permits and total maximum daily load (TMDL) standards; and

WHEREAS, many of the local geologic and man-made water related features common to 

the arid west, including dry arroyos, washes, natural or man-made ponds, conveyance and 

roadside ditches, ephemeral or intermittent streams that flow only in response to 

infrequent storm events could become the subject of federal oversight which is 

impracticable for the federal government to regulate; and

WHEREAS, it is important that the implications of this proposed agency interpretation of 

Congressional language be considered in the context of the environmental and water 

challenges being faced by local communities in the west including those challenges 

associated with drought, forest fires, post fire floods, and the overall health of 

watersheds; and

WHEREAS, the western arid region will be the most directly and significantly affected 

by the outcome of this rulemaking process as it is within this geographic region that one 

frequently finds dry arroyos and washes that flow only in response to infrequent storm 

events, isolated ponds, intermittent and ephemeral streams with a tenuous connection to 

downstream navigable waters, and effluent dominated and dependent water bodies; and 

WHEREAS, western communities will encounter daunting challenges in the years ahead 

as they strive to meet water supply, wastewater and stormwater treatment obligations in 

the face of challenges associated with growing demand, drought, fires, extreme storm 

events, and unhealthy watersheds; and (...) (p. 1 – 2)

Agency Response: Please see summary response 12.3. Questions about 

implementation of the NPDES program are beyond the scope of the rulemaking. 

Instead, the final rule is a definitional rule that clarifies the scope of “waters of the 

United States” consistent with the Clean Water Act (CWA), Supreme Court 

precedent, and science. Programs established by the CWA, such as the section 402 

National Pollution Discharge Elimination System (NPDES) permit program, the 

section 404 permit program for discharge of dredged or fill material, and the section 

311 oil spill prevention and clean-up programs, all rely on the definition of “waters 

of the United States.” Entities that currently are regulated under these programs 

that protect “waters of the United States” will continue to be. The scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

800

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. In addition, the rule 

provides greater clarity regarding which waters are subject to CWA jurisdiction, 

reducing the instances in which permitting authorities, including the states and 

tribes with authorized section 402 and 404 CWA permitting programs, to make 

jurisdictional determinations on a case-specific basis. In addition, the final rule does 

not change the authority of states and tribes to set water quality standards and 

designate regulated waters within their boundaries. States and tribes will also 

continue to have discretion to design and implement ambient surface water 

monitoring strategies and propose waters for the 303(d) and TMDL programs.

Board of County Commissioners, County of El Paso, State of Colorado (Doc. #11587)

12.1302 (...) WHEREAS, if a water feature is determined, either per se or on a case-bycase basis, to be a "Water of the United States", the proposed rule would subject county 

and local governments to increasingly complex and costly federal regulatory 

requirements under the proposed rule which applies to all Clean Water Act programs 

including Sections 404-Waters of the United States program, 402-National Pollution 

Discharge Elimination System (NPDES) program, 303-Water Quality Standards (WQS) 

program, and other programs including stormwater, green infrastructure, pesticide 

permits and total maximum daily load (TMDL) standards; and

WHEREAS, many of the local geologic and man-made water related features common to 

the arid west, including dry arroyos, washes, natural or man-made ponds, conveyance and 

roadside ditches, ephemeral or intermittent streams that flow only in response to 

infrequent storm events could become the subject of federal oversight which is 

impracticable for the federal government to regulate; and

WHEREAS, it is important that the implications of this proposed agency interpretation of 

Congressional language be considered in the context of the environmental and water 

challenges being faced by local communities in the west including those challenges 

associated with drought, forest fires, post fire floods, and the overall health of 

watersheds; and

WHEREAS, the western arid region will be the most directly and significantly affected 

by the outcome of this rulemaking process as it is within this geographic region that one 

frequently finds dry arroyos and washes that flow only in response to infrequent storm 

events, isolated ponds, intermittent and ephemeral streams with a tenuous connection to 

downstream navigable waters, and effluent dominated and dependent water bodies; and

WHEREAS, western communities will encounter daunting challenges in the years ahead 

as they strive to meet water supply, wastewater and stormwater treatment obligations in 

the face of challenges associated with growing demand, drought, fires, extreme storm 

events, and unhealthy watersheds; and (...) (p. 1 – 2)

Agency Response: Please see summary response 12.3. Questions about 

implementation of the NPDES program are beyond the scope of the rulemaking. 

Instead, the final rule is a definitional rule that clarifies the scope of “waters of the 

United States” consistent with the Clean Water Act (CWA), Supreme Court 

precedent, and science. Programs established by the CWA, such as the section 402 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

801

National Pollution Discharge Elimination System (NPDES) permit program, the 

section 404 permit program for discharge of dredged or fill material, and the section 

311 oil spill prevention and clean-up programs, all rely on the definition of “waters 

of the United States.” Entities that currently are regulated under these programs 

that protect “waters of the United States” will continue to be. The scope of 

regulatory jurisdiction in this rule is narrower than that under the existing 

regulation. Fewer waters will be defined as “waters of the United States” under the 

rule than under the existing regulations, in part because the rule puts important 

qualifiers on some existing categories such as tributaries. In addition, the rule 

provides greater clarity regarding which waters are subject to CWA jurisdiction, 

reducing the instances in which permitting authorities, including the states and 

tribes with authorized section 402 and 404 CWA permitting programs, to make 

jurisdictional determinations on a case-specific basis. In addition, the final rule does 

not change the authority of states and tribes to set water quality standards and 

designate regulated waters within their boundaries. States and tribes will also 

continue to have discretion to design and implement ambient surface water 

monitoring strategies and propose waters for the 303(d) and TMDL programs. 

Norton County Road & Bridge (Doc. #11746)

12.1303 The proposed definition of waters of the US is any drainage course that has a 

defined bank, no matter how minor. A one foot deep normally dry gulley in a back yard 

or pasture could be regulated and a 404 permit required for any work no matter how 

minor. These additional permits will clog the permitting system where there is already a 

regulatory backlog of some 20,000 permits currently in the Army Corp of Engineers 

system with an average time lapse of up to several years from submission to 

approval/denial of any individual permit. With limited federal resources federal focus 

should be on projects in larger drainage areas rather than e diluting the clean water 

program by being involved with small projects in dry gullies. (p. 1 – 2)

Agency Response: See Summary Response. The definition of tributary under the 

final rule requires both bed and banks and an ordinary high water mark. Under 

paragraph (c) for the waters not considered to be waters of the U.S., erosional 

features that do not meet the definition of tributary are excluded from jurisdiction 

under the Clean Water Act. This may include some gully features which do not 

demonstrate the required characteristics. The final rule indicates that the required 

characteristics provide an indication of sufficient volume, flow, and duration to 

demonstrate a significant nexus to the downstream (a)(1) to (a)(3) waters. 

Anonymous (Doc. #11761)

12.1304 On-the-ground wetland delineation standards (Euliss et al 2002), cannot be 

accomplished with only GIS analysis as proposed under revisions. High water features of 

desert playas, as found in the southern Great Plains, have not been fully identified and 

require on the ground delineation (Lichvar et al 2006), so that playas can be effectively 

regulated, protected and conserved. Moreover, these larger playas are crucial 

conservation areas under regional global warming and drought cycles already 

experienced in the region. (p. 2 – 3)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

802

Agency Response: See Summary Response. Approved JDs that identify the limits 

of waters of the United States may be based on site visits or desktop reviews. The 

agencies have been using remote sensing and desktop tools to delineate tributaries 

for many years where data from the field are unavailable or a field visit is not 

possible. Desktop reviews are sufficient in cases where the district has a high degree 

of confidence in the information used to identify the limits of jurisdictional waters. 

For example, desktop reviews may be based on detailed delineation reports 

prepared by professional wetland consultants. The level of mapping precision for an 

approved JD that identifies the limits of waters of the United States is at the 

discretion of the district. In some cases, districts may need to require professional 

surveys of jurisdictional boundaries, but in other cases, other mapping techniques 

may be adequate. See the preamble for further discussion on desktop tools in the 

“Tributary” section. In addition, desktop tools are critical in circumstances where 

physical characteristics waters are absent in the field, often due to unpermitted 

alteration of waters. The majority of this information is available for the public’s 

use; these tools can allow for greater consistency with currently available and 

accessible data sources. Desert playas may be jurisdictional if they meet the terms 

of an adjacent water or the terms under (a)(8) with a case-specific significant nexus 

determination.

Society for Freshwater Science (Doc. #11783)

12.1305 These waters deserve protection as jurisdictional waters and it should be added, 

distinguished, or confirmed that such tributary waters are still jurisdictional; this critical 

issue is unclear to us in the current proposed rule. Third, SFS disagrees with exemptions 

for agriculture, silviculture, ranching, and/or mining. Cumulatively, these land uses 

represent the greatest area of human disturbed lands affecting tributaries and water 

quality and their effects on water quality and ecological condition have been extensively 

detailed in the scientific literature. Failure to protect waters in such settings undermines 

and limits the progress that can be made on restoring and protecting our national waters 

because of the extent and rate of growth of these practices. Prior converted croplands are 

having significant impacts on water quality, especially in tile-drained regions that are 

increasing in extent. Without adequate oversight and application of Clean Water Act 

jurisdiction to such waters, water quality will continue to degrade and lead to more 

frequent adverse ecological responses like hypoxia in the Gulf of Mexico and the 

cyanobacterial blooms that affected Lake Erie and the Toledo drinking water supply this 

summer. (p. 3) 

Agency Response: Previous definitions of “waters of the United States” regulated 

all tributaries without qualification. This final rule more precisely defines 

“tributaries” as waters that are characterized by the presence of physical indicators 

of flow – bed and banks and ordinary high water mark – and concludes that such 

tributaries are “waters of the United States.” The great majority of tributaries as 

defined by the rule are headwater streams that play an important role in the 

transport of water, sediments, organic matter, nutrients, and organisms to 

downstream waters. The physical indicators of bed and banks and ordinary high 

water mark demonstrate that there is sufficient volume, frequency and flow in such 

tributaries to a traditional navigable water, interstate water, or the territorial seas 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

803

to establish a significant nexus. “Tributaries” as defined are jurisdictional by rule. 

Congress identified in section 404(f)(1) of the Clean Water Act those activities which 

are exempt from regulation. Congress also identified in section 404(f)(2) conditions 

under which exempted activities could be “recaptured” and subject to 404 

permitting requirements. These conditions include circumstances in which the 

proposed discharge would result in a change in use of waters and impair flow or 

circulation or reduce the reach of waters. Exemptions from permitting for 

discharges to jurisdictional waters are beyond the scope of this rule. Prior converted

cropland has been excluded from this definition since 1992 and remains 

substantively and operationally unchanged.

Commissioner’s Court, Collin County, Texas (Doc. #11989)

12.1306 The Collin County Road and Bridge department maintains approximately 765 

miles of roads, over 1,500 miles of roadside drainage ditches and 44 flood prevention 

dams. Although the Environmental Protection Agency (EPA) and U.S. Army Corps 

of Engineers (Corps) have indicated the rule proposal is intended only to clarify 

existing CWA jurisdiction, Collin County is concerned that the proposed rule could 

have a major impact on county infrastructure and activities which would result in 

an expensive and time consuming permit or clearance process that has not 

historically been required. In addition, the delay that this extra regulation would 

have on repair, removal of vegetation and debris from drainage ditches or other 

flood control facilities, could bring about citizen suits should damage occur due to 

heavy rains while the county is waiting for federal action.

In Addition, since stormwater management activities are not explicitly exempt under the 

proposed rule, we are concerned that man-made conveyances and facilities for 

stormwater management could now be classified as a "water of the U.S." Collin County

owns Municipal Separate Storm Sewer System (MS4) infrastructure to include ditches,

channels, pipes and gutters that flow into a "water of the U.S." and are therefore

regulated under the CWA Section 402 stormwater permit program. Under this proposed

rule change, there is a significant potential threat for counties that own MS4

infrastructure, because they would be subject to additional water quality standards

(including total maximum daily loads) if their stormwater ditches are considered a

"water of the U.S." Not only would the discharge leaving the system be regulated,

but all flows entering the MS4 would be regulated as well. Even if the agencies do not

initially plan to regulate an MS4 as a "water of the U.S.," they may be forced to do so

through CWA citizen suits, unless MS4s are explicitly exempted from the requirements.

(p. 1 – 2)

Agency Response: Please see summary responses 12.3 and 7.4.4.

City of Palo Alto, California (Doc. #12714)

12.1307 Palo Alto is committed to green infrastructure, yet green infrastructure itself can 

be defined as water of the U.S. Constructed wetlands, swales, and detention basins invite 

the additional regulation required for waters of the U.S., and cities will be dissuaded from 

building such features if they are subject to additional, costly regulation. (p. 2)

Agency Response: Please see summary responses 12.3.2 and 7.4.4.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

804

Sitka Economic Development Association (Doc. #13023)

12.1308 (...) WHEREAS, the proposed rule will directly and indirectly affect numerous 

public infrastructure conveyances currently under the jurisdiction and management of 

SEAK communities, including CBS, (e.g. roadside ditches, flood and storm water 

drainage systems, drinking water and raw bulk water infrastructure) and place jurisdiction 

and management under federal authority; and

WHEREAS, federal jurisdiction over waters currently under the jurisdiction of and 

managed by the State of Alaska and the communities of Southeast Alaska, including the 

CBS, would create new regulations and layers of permitting; and (...) (p. 1)

Agency Response: See Summary Response. The rule is not designed to subject 

any entities of any size to any specific regulatory burden. Rather, it is designed to 

clarify the statutory scope of the “waters of the U.S.”, consistent with existing 

regulations and Supreme Court precedent. The final rule clarifies the additional 

excluded waters and features, including certain ditches, stormwater control 

features, and wastewater recycling features that are not jurisdictional under the 

Clean Water Act. See the preamble section on “Waters and Features That Are Not 

Waters of the U.S.” for further discussion. None of the existing procedures, 

permitting mechanisms, efficient permitting tools such as general permits, or 

activity exemptions will be modified as a result of this rulemaking. 

Charlotte County Government (Doc. #13061)

12.1309 We strongly suggest, at a minimum, that routine maintenance, including mowing, 

excavation to original design, bank stabilization, and the application of herbicides to clear 

the flow path, be exempt from any new permitting requirements. The rule should specify 

that streets, gutters and human-made ditches and swales should be exempt. It should 

specify that routine stormwater canal maintenance is exempt. The Galveston rule must 

explicitly exempt water quality treatment systems permitted via Florida Department of 

Environmental Protection/Southwest Florida Water Management District South Florida 

Water Management District from the Clean Water Act Standards because these systems 

were created to capture pollutants and protect downstream waterways. These systems 

typically include stormwater treatment attenuation facilities and associated conveyances 

including roadside ditches, vaults, bioswales, rain gardens, and other green infrastructure. 

We suggest you significantly modify the proposed rule to address these obvious issues; or 

simply exclude similar features from any future definition of WOTUS. (p. 2 – 3)

Agency Response: Congress identified in section 404(f)(1) of the Clean Water Act 

those activities for which the discharge of dredged or fill material is exempt from 

regulation. Exemption from permitting requirements for discharges to 

jurisdictional waters is beyond the scope of this rule. The rule includes a new 

exclusion for stormwater control features constructed to convey, treat, or store 

stormwater that are created in dry land. Please see summary response 7.4.4.

Newmont Mining Corporation (Doc. #13596)

12.1310 4. Consequences of Deeming Mining Artificial Ponds, or Associated Channels, to 

be Jurisdictional Waters
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805

The adverse consequences to mining companies of deeming their artificial ponds and 

associated ditches and other constructed channels to be jurisdictional waters would be 

enormous. Newmont would be required to obtain CWA 402 permits from the State to 

discharge tailings to its tailings impoundments, to discharge pregnant solutions and 

barren solutions to its pregnant and barren heap leach solution ponds, to discharge water 

into its quench ponds, and to discharge waters into ditches that are associated with these 

ponds. Indeed, Newmont might have to shut down operations, and lay off hundreds of 

employees, while seeking CWA 402 permits. In addition, in order to modify any of its 

artificial ponds or constructed channels, or to close them or to reclaim them as operations 

cease or change, Newmont would need to obtain CWA 404 permits from the Corps. That 

is because changing the configuration or volume of the ponds or channels, or closing or 

reclaiming them, would invariably require that all or portions of these ponds or channels 

be filled in.305 Such modifications to channels and expansions of artificial ponds are not 

infrequent. Thus, on top of the reclamation permits, closure permits, and construction 

permits that Newmont now obtains from the State of Nevada and from the BLM to build, 

close, and reclaim ponds or channels, Newmont would need extra permission from EPA 

and the Corps to design and construct its ponds or channels, and to close them at the end 

of operations. In addition, of course, a 404 permit would carry with it mitigation 

obligations.

But there is more. Arguably, the State (or EPA) would have to establish, and Newmont 

would have to meet, water quality standards and Total Maximum Daily Loads 

(“TMDLs”) 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 § 303(d). Indeed, Newmont 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.

Newmont and other 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 has such a 

nexus – something that would be extremely expensive, if not impossible, to show. (p. 23 

– 25)

Agency Response: The site specifics of what may or may not be required at 

Newmont’s facility are beyond the scope of this rulemaking. It should be noted that 

the scope of regulatory jurisdiction in this rule is narrower than that under the 

existing regulation. Fewer waters will be defined as “waters of the United States” 

under the rule than under the existing regulations, in part because the rule puts 

 

305 Under Newmont’s reclamation and closure plans, which are approved by the Bureau of Land Management

(“BLM”) and the State of Nevada, its artificial ponds and associated channels are typically drained at closure, and

the ponds and channels filled, graded, and vegetated to support post-mining land use(s).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

806

important qualifiers on some existing categories such as tributaries. Also, the final 

rule includes several refinements to the exclusion for water-filled depressions 

created as a result of certain activities. In addition to construction activity, the 

agencies have also excluded water-filled depressions created in dry land incidental 

to mining activity. This change is consistent with the agencies’ 1986 and 1988 

preambles, which generally excluded pits excavated for obtaining fill, sand or 

gravel, and there is no need to distinguish between features based on whether they 

are created by construction or mining activity. A number of commenters have 

indicated that these water-filled depressions created in dry land are often left on a 

site after construction or mining activity is complete in order to provide beneficial 

purposes, such as water retention, recreation, and animal habitat. The agencies are 

not retaining language from the preambles that stated a water could be found 

jurisdictional once the construction or mining activity is completed. The agencies 

believe that it is more likely that waters constructed in association with mining or 

construction activities are more likely to be allowed to remain after such activities if 

they are not subject to potential CWA coverage. We believe that this is a positive

environmental result consistent with the goals of the Act. Also, please see summary 

response 7.1. Also please see essay 12.3. See also Compendium 11 and Economic 

Analysis section 8 for an explanation of how the agencies considered the effects of 

the final rule on all CWA programs, including section 402.

12.1311 Were the Agencies’ Proposal to become law in its current form, any development 

of mining properties would require extensive and expensive CWA 404 permitting and 

associated mitigation, as well as extensive mapping of ephemeral drainages and 

intermittent streams, at great cost to mining companies and, most important, with little to 

no environmental benefit. Moreover and as noted above, to the extent that a given 

drainage was deemed jurisdictional, any artificial ponds that are constructed or that exist 

adjacent to the ephemeral drainage could be deemed per se jurisdictional waters, even if 

they have no impact on ephemeral drainages or any downstream waters. And all this 

would be required even though anyone looking at the situation would have to conclude 

that diverting or filling any such ephemeral drainages would not in any way affect the 

physical, chemical, or biological integrity of a TNW located many miles away. (p. 38)

Agency Response: See Summary Response. The rule is not designed to subject 

any entities of any size to any specific regulatory burden. Rather, it is designed to 

clarify the statutory scope of the “waters of the U.S.”, consistent with existing 

regulations and Supreme Court precedent. The final rule clarifies the additional 

excluded waters and features, including erosional features that do not meet the 

definition of tributary, certain artificial ponds, and certain ponds created 

incidentally to mining activities that are not jurisdictional under the Clean Water 

Act. See the preamble section on “Waters and Features That Are Not Waters of the 

U.S.” for further discussion. The paragraph (b) exclusions are applied before the 

paragraph (a) categories. None of the existing procedures, permitting mechanisms, 

efficient permitting tools such as general permits, or activity exemptions will be 

modified as a result of this rulemaking. The agencies have concluded that all 

tributaries have a significant nexus either alone or in combination with other 

tributaries to the downstream (a)(1) to (a)(3) waters. If an artificial pond, as 

described in this comment, did not meet one of the exclusions, then the pond may be 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

807

considered an adjacent water under the final rule if the pond meets the definition of 

adjacent or is determined to have a significant nexus under paragraph (a)(8). 

Colorado Wastewater Utility Council (Doc. #13614)

12.1312 2) Beneficial reuse needs to be included as an agricultural exemption Our utilities 

work hard to ensure biosolids are being put to beneficial use and not filling up our 

landfills. In fact , eighty five percent of Colorado's biosolids are put to beneficial use 

compared to the national average of fifty percent. Much of the lands where biosolids are 

applied have ephemeral streams with natural breaks in flow . It is unclear whether these 

waters would fall under the agricultural exemption since the exemption only addresses 

the harvesting of crops , not the application of biosolids. Additionally, crops are rotated 

on the land where biosolids are applied resulting in some land not being used to harvest 

crops at all times. Assuming the agricultural exemption does apply, how long can this 

land be uncultivated before it is not subject to the agricultural exemption?

Additionally , because rotating crops to conserve soil moisture results in uncultivated 

land, we need assurances that this land is still subject to the agricultural exemption. We 

request that the Environmental Protection Agency specify the scope of agricultural 

exemption to include the application of biosolids for beneficial use. (p. 2)

Agency Response: Exemptions from permitting for discharges to jurisdictional 

waters from specified activities under section 404(f)(1) of the Clean Water Act and 

EPA and Corps implementing regulations in are beyond the scope of this rule.

D. Fleming (Doc. #13654)

12.1313 The proposed definition of waters of the US is any drainage course that has a 

defined bank, no matter how minor. A one foot deep normally dry gulley in a back yard 

or pasture could be regulated and a 404 permit required for any work no matter how 

minor. These additional permits will clog the permitting system where there is already a 

regulatory backlog of some 20,000 permits currently in the Army Corp of Engineers 

system with an average time lapse of up to several years from submission to 

approval/denial of any individual permit. With limited federal resources federal focus 

should be on projects in larger drainage areas rather than e diluting the clean water 

program by being involved with small projects in dry gullies. (p. 1)

Agency Response: See Summary Response. The definition of tributary under the 

final rule requires both bed and banks and an ordinary high water mark. Under 

paragraph (c) for the waters not considered to be waters of the U.S., erosional 

features that do not meet the definition of tributary are excluded from jurisdiction 

under the Clean Water Act. This may include some gully features which do not 

demonstrate the required characteristics. The final rule indicates the required 

characteristics provide an indication of sufficient volume, flow, and duration to 

demonstrate a significant nexus to the downstream (a)(1) to (a)(3) waters. The 

agencies are developing guidance to facilitate effective and efficient implementation 

of the final rule once it becomes effective. The final rule provides for certain 

categories of waters that are jurisdictional by rule, which will result in a more 

efficient process with consistent application across agencies. The initial phase of 

implementing the rule will require education and training for agency staff as well as 
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808

other stakeholders and the regulated public. This training and outreach will be 

regionally-based to ensure appropriate consideration is given to ecoregional 

variation and to ensure consistent and efficient implementation of the rule. There 

are two types of jurisdictional determinations; preliminary and approved 

jurisdictional determinations. Preliminary jurisdictional determinations indicate 

which waters on a property may be waters of the U.S., presume all waters on a 

property are jurisdictional, are not legally binding instruments, and enable a 

landowner to set aside the issue of jurisdiction and move directly into the permit 

evaluation phase of the process. Preliminary jurisdictional determinations cannot 

be used to decline jurisdiction and are generally more expedient than approved 

jurisdictional determinations. Approved jurisdictional determinations are the 

official Corps determination that jurisdictional “waters of the United States” or 

“navigable waters of the United States,” or both, are either present or absent on a 

particular site. An approved jurisdictional determination precisely identifies the 

limits of those waters on the project site determined to be jurisdictional under the 

Clean Water Act/Rivers and Harbors Act. The majority of jurisdictional 

determinations completed by the Corps are preliminary. Not every permit 

application requires a jurisdictional determination. 

Interlocking Concrete Pavement Institute (Doc. #13952)

12.1314 ICPI would like to place on the record, to benefit EPA, USACE and the regulated 

community, that there are in existence today technologically and economically feasible 

means to meet these stormwater mitigation, water quality, flood reduction and native 

hydrology requirements. One such technology is permeable interlocking concrete 

pavements (PICP). Their current, growing use by public and private sector customers 

offer a substantive and effective rebuttal to any assertion that the expanded goals and 

regulatory reach of WOTUS is technologically or economically infeasible for the 

construction industry to meet.

PICP technology can provide highly effective stormwater runoff mitigation, allowing 

existing developments to restore to native hydrology and new construction to retain 

existing hydrology.

PICP products and technologies to make this happen exist today and represent off-theshelf, commercially available means to meet such requirements. Given the state of this 

technology, it is technically and economically feasible to comply with expected 

stormwater mitigation requirements by using PICP. (p. 1 – 2)

Agency Response: Please see summary response 7.4.4.

M. Smith (Doc. #14022)

12.1315 The Corps, which oversees the 404 permit program, is already severely 

backlogged in evaluating and processing permits. This could put our township in a 

precarious position as we often balance a small budget against public health and safety 

needs. Delays of a year at a cost of hundreds of thousands of dollars would make our 

position untenable. (p. 2)

Agency Response: See Summary Response. The agencies are developing guidance 

to facilitate effective and efficient implementation of the final rule once it becomes 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

809

effective. The agencies strive to achieve consistency across the country in all 

districts and regions in application of the rule for jurisdictional determinations. 

The agencies also recognize that there are variations that occur in geography, 

hydrology, climate, etc., which affect jurisdictional determinations. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public. This training and outreach 

will be regionally-based to ensure appropriate consideration is given to ecoregional 

variation and to ensure consistent and efficient implementation of the rule. There 

are two types of jurisdictional determinations; preliminary and approved 

jurisdictional determinations. Preliminary jurisdictional determinations indicate 

which waters on a property may be waters of the U.S., presume all waters on a 

property are jurisdictional, are not legally binding instruments, and enable a 

landowner to set aside the issue of jurisdiction and move directly into the permit 

evaluation phase of the process. Preliminary jurisdictional determinations cannot 

be used to decline jurisdiction and are generally more expedient than approved 

jurisdictional determinations. Approved jurisdictional determinations are the 

official Corps determination that jurisdictional “waters of the United States” or 

“navigable waters of the United States,” or both, are either present or absent on a 

particular site. An approved jurisdictional determination precisely identifies the 

limits of those waters on the project site determined to be jurisdictional under the 

Clean Water Act/Rivers and Harbors Act. The majority of jurisdictional 

determinations completed by the Corps are preliminary. Not every permit 

application requires a jurisdictional determination.

Plumas County Board of Supervisors (Doc. #14071)

12.1316 The proposed rule will hinder the ability of counties to manage public 

infrastructure ditch systems and impact public safety.

The expansion of the definition of Waters of the U.S., as drafted, will also force counties 

to seek Section 404 permits for the now-routine maintenance of "waterways," such as 

roadside ditches and storm water drains. (p. 2)

Agency Response: See Summary Response. Under paragraph (b) of the rule, 

certain waters and features are not considered “waters of the U.S.,” including 

certain ditches and stormwater control features. The paragraph (b) exclusions are 

applied before determining whether a water is jurisdictional per the paragraph (a) 

categories. The final rule does not affect the existing statutory activity-based 

exemptions under Section 404(f)(1) of the Clean Water Act, including those for the 

construction of irrigation ditches and the maintenance of irrigation and drainage 

ditches. In addition, the Corps nationwide general permit program includes several 

general permits for discharges associated with maintenance activities, some of which 

may not require pre-construction notification for expeditious review and efficiency 

in processing verifications under Section 404 of the Clean Water Act. Also, please 

see summary response at 7.4.4.

Indiana Pork Advocacy Coalition (Doc. #14410)

12.1317 EPA and the Corps are soliciting comments on a proposed rule that redefines 

what they consider to be "waters of the United States" under all CWA programs. In 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

810

addition to this proposal, the agencies also released an "interpretive" decision t attempted 

to clarify how the rule would impact farmers and other agricultural stakeholders. As the 

near-unanimous voices within agriculture have already commented, we urge in the 

strongest possible terms that EPA and the Corps rescind the "interpretive" rulemaking on 

agricultural exemptions immediately. (p. 1)

Agency Response: The interpretive rule titled, “U.S. Environmental Protection 

Agency and U.S. Department of the Army Interpretive Rule Regarding the 

Applicability of Clean Water Act Section 404(f)(l)(A)," was withdrawn by the 

agencies as required by the Consolidated and Further Continuing Appropriation 

Act on January 29th, 2015.

Golden Spread Electric Cooperative, Inc., (Doc. #14422)

12.1318 C. There are no Scientific Guidelines for Determining "Significant Nexus" If this 

proposed rule is finalized, the status of many waters will undoubtedly be called into 

question because the rule provides no true metrics for quantifying "significant nexus". To 

determine the jurisdiction of "other waters", the rule calls for case-by-case analysis to 

determine if a "significant nexus" exists between "other waters" and a water jurisdictional 

by rule. However, Golden Spread agrees with the comments of the Coalition stating that 

although the Agency identifies factors to consider when determining a significant nexus 

(i.e., chemical, physical and biological), the WOTUS Rule does little to quantify what 

"significant" means. Furthermore, the WOTUS Rule does little to describe "significant 

nexus" in any meaningful scientific terms. The Science Advisory Board panel reviewing 

the Connectivity Report acknowledges that the "significant nexus" analysis should be 

based on scientific criteria and calls for the agency to provide metrics, and seek comment 

with regard to the same. Golden Spread agrees that metrics should be established; 

however, it should be proposed and published to allow for the public, including the 

regulated community, to comment. As it stands, the case-by-case jurisdictional 

determination would depend solely on the opinion of a regulator, who would not be 

compelled to defend his or, her decision based on any chemical or biological standard. 

This approach provides little guidance or predictability for a regulated community that 

must plan significant actions based on these regulations. Golden Spread believes that 

until those quantified values are themselves proposed and included, thus allowing the 

public an opportunity to review and analyze how the standards are to be integrated, the 

proposed rule as written remains gravely inadequate and a possible vehicle for 

jurisdictional overreach. (p. 5 – 6)

Agency Response: See Summary Response. The final rule provides for certain 

categories of waters that are jurisdictional by rule, which will result in a more 

efficient process. The agencies are developing guidance to facilitate effective and 

efficient implementation of the final rule once it becomes effective. Please see 

Section IV.-H. Case-Specific Waters of the United States in the preamble for a 

discussion on how a significant nexus determination is performed for (a)(7) and 

(a)(8) waters. The final rule includes a definition of “significant nexus” and a list of 

factors that will be considered when making such a determination.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

811

Hoosier Energy REC, Inc (D0c. #14561)

12.1319 EPA and the Corp must provide an exemption from the rule for actions taken in 

response to a spill response action. (p. 3)

Agency Response: Congress identified in section 404(f)(1) of the Clean Water Act 

those activities for which the discharge of dredged or fill material is exempt from 

regulation. Exemptions from permitting for discharges to jurisdictional waters are 

beyond the scope of this rule. 

Synagro Technologies, Inc. (Doc. #14565)

12.1320 Synagro also recommends that Agricultural Exemption be expressly applied to the 

land application of biosolids. Many of our farmers rotate the land that they use biosolids 

on resulting in some of the land not being used to “harvest crops” at all times. Assuming 

the Agricultural Exemption does apply, EPA should supply proposed language that 

would state how long agricultural land could be fallow before the land would not be able 

to benefit from the Agricultural Benefit. Synagro also request that EPA specifically 

include biosolids land application as a farming practice that is covered by the 

Agricultural Exemption. (p. 2)

Agency Response: Land application of biosolids is beyond the scope of this rule. 

Exemptions from permitting for discharges to jurisdictional waters under section 

404(f)(1) of the Clean Water Act and EPA and Corps implementing regulations in 

regard to those exemptions are beyond the scope of this rule.

DMB White Tank, L.L.C. (Doc. #14578)

12.1321 On behalf of DMB White Tank, L.L.C., we are submitting the following 

comments on the proposed rule referenced above. We are joining in the more detailed 

comments of Valley Partnership and other organizations filed concurrently. We also want 

to specifically emphasize the potential disruption of the proposed rule on entities such as 

DMB White Tank that have been operating under permits issued under Section 404 of the 

Clean Water Act.

DMB White Tank is the developer of the Verrado master-planned community, located in 

the White Tank Mountains of Buckeye, Arizona, twenty five miles west of Downtown 

Phoenix and in the heart of the Sonoran Desert. The project consists of approximately 

8,800 acres and is ultimately planned for 11,000 homes and associated schools, parks, 

work and retail centers, plus extensive natural open space. A portion of the project site 

includes the former Caterpillar Proving Grounds. As a consequence, project development 

has included restoration of drainage and floodplain areas disturbed by decades of large 

construction equipment testing.

Planning for the project began in the late 1990's, which included an evaluation of whether 

the site contained "waters of the United States" and whether such waters would be 

disturbed in a manner triggering the obligation to obtain a Section 404 permit. A formal 

jurisdictional delineation was approved by the Corps of Engineers and a number of 

drainage features, including ephemeral washes and man-made drainage ditches were 

deemed jurisdictional. (There are no perennial or intermittent streams or wetlands on the 

property.)
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812

Largely due to the need to restore drainage across the site, DMB White Tank determined 

that a Section 404 permit would be needed and applied to the Corps. While the permit 

application was pending, the U.S. Supreme Court issued its decision in Solid Waste 

Agency of Northern Cook County v. United States, 531 U.S. 159 (2001). Given the lack 

of agency guidance on the effect of the decision on its jurisdiction, DMB White Tank 

proceeded with the application unchanged and secured a permit in 2002. Over the course 

of development, the Supreme Court decided Rapanos v. United States, 547 U.S. 715 

(2006), but again given uncertainties with agency positions on jurisdiction, has continued 

to implement the project consistent with its existing Section 404 permit. The permit 

remains in effect and guides project development, and is planned to do so for the life of 

the project, which will take us well into the next decade.

DMB White Tank shares the concerns about the extent of federal regulation of dry 

washes and man-made features and the uncertainties with the proposed rule that are 

discussed at length in the attached comments. We would like to highlight a special 

concern that we have regarding the proposal's impact on projects such as Verrado that are 

operating under existing permits. The proposed rule is silent on how existing permits and 

delineations will be handled.

To avoid economic disruption and planning uncertainty, it is essential that, if the agencies 

proceed with rulemaking, they include a clear grandfathering provision that leaves 

existing permits and determinations undisturbed. Because of the long term reliance on 

Corps determinations for projects like master-planned communities (Verrado is now in its 

11 th year of operation under the permit, which is set to expire in 2017 and will need to 

be extended further), any grandfathering provision should apply to existing permits and 

delineations and also extensions of those approvals. Jurisdictional determinations and 

permits are typically issued for five years (or in the case of permits, sometimes longer) 

and often require extension after a project such as ours is underway, well after major 

planning and infrastructure investment is complete.

We appreciate your attention these concerns. The residential construction industry has 

been in an extended economic downturn since 2008 and is currently going through a 

fragile recovery. Regulatory uncertainty plays an important role in disrupting investment 

in our industry and impeding economic growth. While we believe the proposed rule 

requires substantial reworking to alleviate the concerns expressed in our detailed 

comments, it is particularly essential that if the proposed rule proceed, that it include a 

clear grandfathering provision for permits and delineations, as well as extensions of these 

determinations. (p. 1 – 2)

Agency Response: See Summary Response. The Rule will be effective 60 days 

after publication in the Federal Register. Under existing Corps’ regulations and 

guidance, Corps’ approved jurisdictional determinations generally are valid for five 

years. The preamble addresses the status of final JDs and permits as well as 

pending JDs and permits.

Irvine Ranch Water District (Doc. #14774)

12.1322 Water Conveyance Systems and Man-Made Structures Should Not be Defined As 

"Tributaries". 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 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

813

flow, either directly or through mother water." The proposed rule then goes further to 

incorporate all streams, underground flows, wetlands, lakes, ponds, and impoundments 

into the definition of tributary, if they contribute any amount of flow to a WOTUS, even 

if they lack a bed and bank or an ordinary high water mark. The proposed rule 

specifically expands the definition of tributary to include man-altered or man-made water 

conveyances. Through its use of a broad and sweeping definition of tributary, the 

proposed rule defines man-made, non-stream conveyances as WOTUS and makes them 

subject to the full spectrum of CWA permitting. Additionally, the rule presumes that all 

water conveyances have a significant nexus to a WOTUS, which is not true, and uses 

sweeping language to define these facilities as WOTUS themselves.

The proposed definition of tributary would have broad implications for California's water 

conveyance systems, and will bring the majority of California's water conveyance 

systems under CWA jurisdiction. IRWD would not be exempt from this impact. For 

example, the water conveyance facilities IRWD uses for its water banking I/' operations 

would likely be impacted. lRWD has partnered with the Rosedale Rio Bravo and Buena 

Vista Water Storage Districts in California's Central Valley to bank stormwater flows, 

which would otherwise be lost for water supply purposes, during wet years in the 

District's groundwater bank. When needed in dry years or ,# emergencies, the water is 

extract and conveyed back to IRWD and its local partners for use. Under the proposed 

rule, the conveyance facilities used to deliver water to and from the water bank would 

likely be deemed a "tributary" and be classified as a WOTUS when it has not been 

deemed as such previously. (p. 4)

Agency Response: See Summary Response. The final rule has been modified 

from the proposed rule in an effort to improve clarity and provide additional 

“bright lines” for the agencies and the regulated public to understand which waters 

are and are not jurisdictional and which waters require a case-specific significant 

nexus determination. Similar to other regulations, the rule is derived from science 

and judicial positions and is ultimately reflective of Administration policy decisions. 

Under paragraph (b) of the rule, certain waters and features are not considered 

“waters of the U.S.,” including certain ditches and stormwater control features. The 

paragraph (b) exclusions are applied before determining whether a water is 

jurisdictional per the paragraph (a) categories. The definition of tributary under 

the final rule requires both bed and banks and an ordinary high water mark. 

Erosional features that do not meet the definition of tributary in paragraph (c) are 

excluded from jurisdiction under the Clean Water Act. This may include some 

gully features which do not demonstrate the required characteristics. The final rule 

demonstrates that the required characteristics provide an indication of sufficient 

volume, flow, and duration to demonstrate a significant nexus to the downstream 

(a)(1) to (a)(3) waters. The agencies recognize that there are variations that occur in 

geography, hydrology, climate, etc., which affect jurisdictional determinations. The 

initial phase of implementing the rule will require education and training for agency 

staff as well as other stakeholders and the regulated public. This training and 

outreach will be regionally-based to ensure appropriate consideration is given to 

ecoregional variation and to ensure consistent and efficient implementation of the 

rule. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

814

Legislative Council on River Governance (Doc. #14791)

12.1323 (...) WHEREAS, the proposed expansion of waterways under federal control 

could lead to an increase in permitting and mitigation costs and project delays for local 

governments; and (p. 1)

Agency Response: See Summary Response. The final rule was developed to 

increase CWA program predictability and consistency by increasing clarity as to the 

scope of “waters of the United States” protected under the Act. Definitions of 

certain terms are provided for the first time (e.g. tributary), or are further clarified 

(e.g. adjacent). The final rule provides for certain categories of waters that are 

jurisdictional by rule, which will result in a more efficient process. See the updated 

Economic Analysis for additional discussion on costs/benefits of the final rule.

Royalty Owners & Educational Coalition (Doc. #14795)

12.1324 The proposed definition will:

 Dramatically expand waters subject to citizen suits under 33 U.S.C. 5 1365(a)(1);

 Expand EPA jurisdiction under the "Oil Discharge Rule" (40 CFR Part 110.1);

 Force the re-write of most producer SPCC plans under 40 CFR Part 112.2;

 Expand EPA authority with regard to hazardous substances under 40 CFR Part 

116.3 and Part 117.1;

 Force a reconsideration of National Pollution Discharge Elimination System 

Permits under 40 CFR Parts 122-124;

 lmpact 404 Permits under40 CFR Part 230.2 and 404 Dredge and Fill Permits 

under 40 CFR Part 232.2;

 lmpact National Contingency Plan (40 CFR Part 300.5) and National Contingency 

Plan Appendix E (40 CFR Part 300, App. E);

 Increase CERCLA requirements under 40 CFR Part 302.3;

 lmpact Effluent Limitations under 40 CFR Part 401.11; and,

 Have broad Endangered Species Act implications. (p. 3 – 4)

Agency Response: Please see summary responses 12.3 and 12.5.

The Wildlife Society (Doc. #14899)

12.1325 We understand that requiring individual determinations of a *significant nexus" 

for all other haters during the permitting process is impractical and likely infeasible. 

Scientific evidence of (individual wetlands having a significant nexus to a jurisdictional 

water in most cases will not be available and accumulating that evidence for individual 

wetlands is not pragmatic. As an alternative, we support the ecoregion aggregation 

approach whereby wetlands of a similar context and of similar f m and function (e.g., 

playas in the southern and central Great Plains, prairie potholes in the northern Great 

Plains, pocosins of the eastern Atlantic Plain) be regulated in the aggregate, Evidence' 

that wetlands of a similar form and function maintain a significant nexus to navigable 

waters m y be available and this method of determining regulatory authority should be 

used. Additionally, in uncommon instances where *significant nexus" determinations 

must be made, we recommend the formation of a clear and standardized process in which 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

815

these determinations will be made and that this document be made available for public 

review. (p. 3 – 4)

Agency Response: See Summary Response. See the preamble discussion under 

“Case-Specific Waters of the United States” for further discussion on the (a)(7) and 

(a)(8) waters which require a case-specific significant nexus determination under the 

final rule. To provide additional clarification, the final rule includes a definition of 

“significant nexus” which includes a list of specific factors to be considered when 

making such a determination. The agencies also are developing implementation 

guidance to accompany the final rule when it becomes effective, which will provide 

for consistent determinations in an effective and efficient manner to the maximum 

extent practicable.

Association of American Pesticide Control Officials (Doc. #14940)

12.1326 A) EPA and the Corps made extensive effort to collaborate with USDA to publish 

the Interpretive Guidance Rule for the Exemption From Permitting Under Section 404 of 

the Clean Water Act to Certain Agricultural Conservation Practices. AAPCO has

reviewed and evaluated the list of "Normal Farming Practices" described by the NRCS 

Conservation Practices exempted from Section 404 Dredge and Fill permit requirements. 

AAPCO is greatly concerned that EPA and the Corps have exempted NRCS 

Conservation Practices that include pesticide applications for crop protection and pest 

control activities from the CWA Section 404 Wetland permitting requirements and have 

not provided for an equivalent consideration for pesticide application practices currently, 

or potentially, subject to CWA Section 402 NPDES permitting requirements. This 

circumstance highlights a significant internal discrepancy in the principles and practices 

of the proposed WOTUS Rule. (p. 3)

Agency Response: Exemption from permitting requirements for discharges to 

jurisdictional waters is beyond the scope of this rule. Congress identified in section 

404(f)(1) of the Clean Water Act those activities for which the discharge of dredged 

or fill material is exempt from regulation. Please see summary response 12.3. 

National Association of County Engineers (Doc. #14981)

12.1327 Significant Nexus -The proposed rule is vague and provides no guidance to 

determine what constitutes a "significant nexus." This would lead to inconsistent 

interpretation and determination depending on who is the regulator/reviewer. There is 

currently no engineering procedure, guidance, calculation or method to determine what 

constitutes a "significant nexus." Until a consistent methodology or clear definition is 

developed, the proposed rule cannot be implemented as stated. (p. 2)

Agency Response: See Summary Response. See the preamble discussion under 

“Case-Specific Waters of the United States” for further discussion on the (a)(7) and 

(a)(8) waters which require a case-specific significant nexus determination under the 

final rule. To provide additional clarification, the final rule includes a definition of 

“significant nexus” which includes a list of specific factors to be considered when 

making such a determination. The agencies are developing guidance to facilitate 

effective and efficient implementation of the final rule once it becomes effective. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

816

Erika Brotzman (Doc. #15010)

12.1328 The proposed rule maximizes public benefits because efficient implementation 

results in effective regulation. Clarified definitions and consistent jurisdiction will 

alleviate the administrative and judicial burden on the government and provide a more 

efficient manner in which to regulate the safety of our waters. The agricultural 

exemptions included in the proposed rule continue to aggravate the effects of pollution in 

our local water, but sometimes compromises are made. Optimistically, the proposed rule 

would establish jurisdiction over “tributaries” near my family’s home that are not exempt 

and thus reduce the concentration of pollution at the local beach. Grounded on science 

and relevant factors, the clarified definitions and the “significant nexus” test are 

constitutional under the powers granted to Congress. As shown in Rapanos, the proposed 

rule, if codified, would likely receive acceptance by a majority of the Court and reduce 

the burden of confusion administratively and judicially nationwide. For these reasons, I 

support the proposed rule that clarifies the definitions and scope of “the waters of the 

United States” under the Clean Water Act. (p. 2)

Agency Response: See Summary Response. The agencies acknowledge the 

comments and support for the rule. The rule does not affect any statutory activitybased exemptions under section 404(f)(1) of the Clean Water Act. It is also 

important to note that the interpretive rule titled, “U.S. Environmental Protection 

Agency and U.S. Department of the Army Interpretive Rule Regarding the 

Applicability of Clean Water Act Section 404(f)(l)(A)," was withdrawn by the 

agencies as required by the Consolidated and Further Continuing Appropriation 

Act on January 29th, 2015.

12.1329 I. The Right to Clean Water

A. The proposed rule maximizes public benefits because efficient implementation results 

in effective regulation.

The Clean Water Act’s mission is “to restore and maintain the chemical, physical, and 

biological integrity of the Nation's waters.”306 Arguably, according to § 101(c) of the 

National Environmental Protection Act (NEPA), a healthful environment is a 

fundamental and inalienable right.307 Sixty percent of streams and millions of wetlands 

are currently not guaranteed protection.308 Since the founding of the country, the U.S. has 

lost over half of the wetlands. For example, California has lost over 90% of wetlands and 

Colorado has lost over 50%. Wetlands are supportive of biological life, effective in 

protecting communities from flooding, and improve water quality by purifying 

groundwater and filtering out pollutants in dense vegetation and sediments.309 The 

proposed rule clarifies the scope of the U.S. Army Corps of Engineers’ (Corps) 

 

306 33 U.S.C. § 1251(a).

307 Rodgers, ENVIRONMENTAL LAW, 804, FN 25 (referencing the creation of subsection 101(b) of S. 1075: the 

Senate passed the language, “Congress recognizes that each person has a fundamental and inalienable right to a 

healthful environment; the House reworded that language for the final bill. Comm. Of Conference, National 

Environmental Policy Act of 1969, H.R.Rep. No. 765, 91st Cong., 1st Sess. 8 (1969)).

308 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, WATERS OF THE UNITED STATES, 

www.2.epa.gov/uswaters (last visited Nov. 14, 2014).

309 Bruce Selcraig, What is aWetland?, Sierra, pp.44-49 (May/June 1996).
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

817

jurisdiction under the CWA by identifying waters that have a “significant nexus” to 

“navigable” waters. Arguably, all water has a significant nexus to “navigable” waters 

simply by the nature of the waters and the hydrologic cycle. If the Corps are unable to 

regulate certain waters under the § 404 program those waters remain unregulated; this 

affects communities nationwide. By clarifying the scope of the Corps’ jurisdiction, the 

proposed rule creates protection for most, if not all, of unregulated and better protection 

for the public and the environment.

The lack of a clear and consistent jurisdiction needlessly burdens the judiciary, the 

agencies and the regulated community. The administrative and judicial resources 

expended on the increased litigation and jurisdictional decisions results in less efficiency 

and more confusion implementing the Clean Water Act. Frequent case-by-case analysis 

requires additional staff time and resources to issue jurisdictional decisions, this works 

contrary to an efficient permitting process. The resources expended to “interpret and 

apply the ambiguous jurisdictional test and guidelines” is unnecessary and detracts from 

effective regulation under the CWA.310 The proposed rule will remove the case-by-case 

analysis by establishing clarified definitions and consistent jurisdiction. This would 

reduce the time and use of resources performing activities that do not further the purposes 

of the CWA such as carrying out jurisdictional decisions or engaging in litigation to 

establish jurisdiction. Clarifying the jurisdictional scope of “the waters of the United 

States” would provide a more efficient permitting process; less strain on administrative, 

judicial, and financial resources; and better protection for the public and the environment.

(p. 2 – 3)

Agency Response: See Summary Response. The agencies acknowledge the 

comments supporting the rule. The purpose of the rule is to clarify the definition of 

“waters of the United States” in a manner consistent with the Supreme Court 

decisions, including the SWANCC decision on “isolated” waters and the Rapanos 

decision. The agencies are developing guidance to facilitate effective, consistent, and 

efficient implementation of the final rule once it becomes effective. The final rule has 

been modified from the proposed rule in an effort to improve clarity and provide 

additional “bright lines” for the agencies and the regulated public to understand 

which waters are and are not jurisdictional and which waters require a case-specific 

significant nexus determination. 

National Pork Producers Council (Doc. #15023)

12.1330 NPPC encourages the Agencies, before finalizing this rulemaking, to conduct a 

thorough and accurate field review of this class of features across the country and to 

provide NPPC and the rest of agriculture with their assessment of the likely jurisdictional 

consequences for these features.

Lacking such an assessment, the Agencies have undertaken this rulemaking in the 

absence of critical and important information to help them and the public assess the 

practical effects of the policies being advanced in the proposed rule. (p. 16)

 

310 Jennifer L. Baader, Permits for Puddles?: The Constitutionality and Necessity of Proposed Agency Guidance 

Clarifying Clean Water Act Jurisdiction, 88 Chi.-Kent L. Rev. 621, 622 (2013)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

818

Agency Response: See Summary Response. The final rule has been modified 

from the proposed rule in an effort to improve clarity and provide additional 

“bright lines” for the agencies and the regulated public to understand which waters 

are and are not jurisdictional and which waters require a case-specific significant 

nexus determination. The agencies are developing guidance to facilitate effective, 

consistent, and efficient implementation of the final rule once it becomes effective. 

The agencies strive to achieve consistency across the country in all districts and 

regions in application of the rule for jurisdictional determinations. See the 

Economic Analysis for further discussion on jurisdictional changes.

North Carolina Farm Bureau Federation (Doc. #15078)

12.1331 If anything, this proposed regulation has added to the number of site visits that 

will be needed, and the time needed in the field, by the Agencies' personnel. The many 

ambiguous definitions, even more reliance on the judgment of the regulatory staff, and 

the expansion of the area covered by the rules absolutely will entail more site visits and 

in-the-field determinations.

Because there will be more site visits needed and more information gathered, farmers and 

landowners will have to wait a tremendous amount of time for the Agencies to come and 

make a determination -- many months to over a year or more. This will have a 

tremendous effect on time-sensitive activities, which may not be able to be conducted 

because the Agencies cannot get to the farm to do a determination.

Further, the Agencies do not have adequate personnel to do all of these additional waters 

determinations that will be required under the proposed rule. Will property owners with 

more private financial resources jump to the front of the line because they can hire 

expensive consultants to do delineations that require less staff time by the Agencies? This 

would be unfair to property owners who could not afford such consultants, but have the 

same needs for determinations as those who can.

It is a serious mistake for the Agencies to assume that this proposed rule will result in a 

need for fewer on-site determinations. The Agencies ' resources and landowner needs for 

timely determinations must be considered. This proposed rule should be withdrawn. (p. 

4)

Agency Response: See Summary Response. Approved JDs that identify the limits 

of waters of the United States may be based on site visits or desktop reviews. The 

agencies have been using remote sensing and desktop tools to delineate tributaries 

for many years where data from the field are unavailable or a field visit is not 

possible. Desktop reviews are sufficient in cases where the district has a high degree 

of confidence in the information used to identify the limits of jurisdictional waters. 

For example, desktop reviews may be based on detailed delineation reports 

prepared by professional wetland consultants. The level of mapping precision for an 

approved JD that identifies the limits of waters of the United States is at the 

discretion of the district. In some cases, districts may need to require professional 

surveys of jurisdictional boundaries, but in other cases, other mapping techniques 

may be adequate. See the preamble for further discussion on desktop tools in the 

“Tributary” section. In addition, desktop tools are critical in circumstances where 

physical characteristics waters are absent in the field, often due to unpermitted 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

819

alteration of waters. The majority of this information is available for the public’s 

use; these tools can allow for greater consistency with currently available and 

accessible data sources. The agencies are developing guidance to facilitate effective, 

consistent, and efficient implementation of the final rule once it becomes effective.

National Association of Counties (Doc. #15081)

12.1332 Based on our counties’ experiences, while the jurisdictional determination process 

may create delays, lengthy and resource intensive delays also occur AFTER federal 

jurisdiction is claimed. Once jurisdictional, the project triggers application of other 

federal laws like environmental impact statements, National Environment Policy Act 

(NEPA) and the Endangered Species Act (ESA). These impacts involve studies and 

public comment periods, all of which can cost both time and money. And often, as part of 

the approval process, the permit requires the applicant to "mitigate" the environmental 

impacts of the proposed project, sometimes at considerable expense. There also may be 

special conditions attached to the permit for maintenance activities. These specific 

required conditions result in a lengthy negotiation process with counties. A number of 

California counties have communicated this process can easily take easily three or more 

years, with costs in the millions for one project. (p. 11)

Agency Response: See Summary Response. The comments are beyond the scope 

of this rulemaking effort. While it is the responsibility of the Corps as the lead 

agency to determine if Endangered Species Act and the National Historic 

Preservation Act concerns are being met for a permit, there are cases where these 

laws or other federal, state or local laws would still require review outside a CWA 

related permit. A section 404 permit does not remove the requirement to get other 

permits if needed. Obtaining a jurisdictional determination from the agencies does 

not trigger Section 7 of the Endangered Species Act, a federal action does, and a 

CWA section 404 permit is a Federal action. However, private landowners are also 

required to comply with Section 10 of the Endangered Species Act in the absence of 

a federal action. The agencies are required to comply with other federal laws if 

within the scope of their federal action, including the Endangered Species Act and 

the National Historic Preservation Act. The agencies work to ensure this 

compliance with other federal laws is completed in the most efficient and effective 

manner, and may include programmatic agreements or local operating procedures 

to streamline the process. In addition, the rule does not affect activities that are 

currently exempt from CWA regulation nor will it affect the tools such as the use of 

general permits that the Corps implements for expeditious review and efficiency in 

processing permit applications for discharges of dredged and/or fill material into 

waters of the U.S.

Association of Metropolitan Water Agencies (Doc. #15157)

12.1333 For situations that fall outside of any exclusions, we also recommend that, when 

this rulemaking is finalized, the Corps and EPA re-visit the eligibility criteria for 

nationwide permits. The final definition of WOTUS will have a direct impact on whether 

the current triggers are sufficient to ensure that (1) Corps and EPA staff resources remain 

focused on site-specific projects that have significant potential impacts and (2) water 

utilities and other entities engaged in construction, maintenance, repair, expansion, and 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

820

diversification projects incorporate generally accepted practices to assure protection of 

WOTUS, while minimizing regulatory burden and avoiding associated project delays. 

For water utilities, the ability to engage in timely construction and other maintenance and 

improvement projects has significant implications for infrastructure function, system 

integrity, public health, fire protection, local economies, and the local community’s 

quality of life. It is critical that the Corps and EPA structure nationwide permits so as to 

not delay water system maintenance, repair, and construction activities. (p. 3 – 4)

Agency Response: See Summary Response. The comments are outside the scope 

of this rulemaking effort. See the Nationwide Permit program for further 

discussion of impact thresholds which may/may not require pre-construction 

notification. Nationwide Permit Program regulations can be found in 33 CFR Part 

330. The nationwide permits will be reauthorized in 2017 after a public comment 

period soliciting comments.

Watershed Watch in Kentucky, Inc. (Doc. #15159)

12.1334 WWKY has worked for several years to promote the planning and development 

of green infrastructure in Kentucky communities. Because some governmental and other 

stormwater-regulatory entities have raised concerns about how the proposed rule would 

be applied to MS4s, WWKY recommends that the Corps and EPA work directly with 

affected communities and stormwater associations to help refine how the proposed rule 

would be applied to MS4s. (p. 3)

Agency Response: EPA engaged in outreach to local governments and stormwater 

professionals while developing the final rule and looks forward to working with 

them again in the implementation of the rule. As discussed in summary response 

7.4.4., the final rule includes an exclusion for stormwater control features, including 

green infrastructure, built in dry land.

J. Canfield, Jr. (Doc. #15237)

12.1335 Some of those opposed to the agencies’ proposed rulemaking seem to have been 

misinformed about how this proposed rule applies to farmers in particular. The agencies 

have exempted traditional farming practices, and the propose d rule would preserve all 

agricultural exemptions and exclusions from CWA requirements, retaining the same 

provisions that have existed for the past forty years.311 In addition, according to a 

Memorandum of Understanding, farmers would be able to carry out conservation 

practices without permitting by ensuring that these practices enhance water quality and 

are done in accordance with Natural Resources Conservation Service standards.312 (p. 2 –

3)

Agency Response: Exemptions from permitting for discharges to jurisdictional 

waters are beyond the scope of this rule. The interpretive rule titled, “U.S. 

 

311 United States Environmental Protection Agency. “Waters of the U.S."

312 United States Department of Agriculture, United States Environmental Protection Agency, and the United States 

Department of the Army. “Memorandum of Understanding Concerning Implementation of the 404(f)(1)(A) 

Exemption for Certain Agricultural Conservation Practice Standards. March 25, 2014. Accessed November 6, 2014.

http://www2.epa.gov/sites/production/files/201403/documents/interagency_mou_404f_ir_signed.pdf.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

821

Environmental Protection Agency and U.S. Department of the Army Interpretive 

Rule Regarding the Applicability of Clean Water Act Section 404(f)(l)(A)," was 

withdrawn by the agencies as required by the Consolidated and Further Continuing 

Appropriation Act on January 29th, 2015.

City of Greeley, Colorado, Water and Sewer Department (Doc. #15258)

12.1336 Please clarify how the final rule will apply to prior permitting and jurisdictional 

determinations (p. 7)

Agency Response: See Summary Response. The Rule will be effective 60 days 

after publication in the Federal Register. Under existing Corps’ regulations and 

guidance, Corps’ approved jurisdictional determinations generally are valid for five 

years. The preamble addresses the status of final JDs and permits as well as 

pending JDs and permits.

Sealaska Corporation (Sealaska) (Doc. #15356)

12.1337 Energy Transmission and Distribution Facilities. Activities related to the 

transmission and distribution of energy may now require federal permits under the 

proposed rule, causing uncertainty, delay, and cost. Such facilities are planned for the 

villages of Angoon, Hoonah and Hydaburg and offer relief for struggling Southeast 

Alaska villages from high electricity costs from diesel fuelled generators. For example, 

the development of transmission and distribution facilities could be negatively impacted 

if traditional transmission/distribution rights of way are now to be considered waters of 

the U.S under the proposed rule. These rights of way often include ditches alongside 

roadways that may not fall within the two narrow exclusions proposed by the Agencies. 

The lack of guidance about what types of areas would constitute “uplands” adds 

additional uncertainty, delay, and costs to the process for siting and constructing these 

facilities. In addition, utilities that operate substations along transmission routes are 

required by EPA regulations to have Spill Prevention Control and Countermeasure 

(SPCC) Plans in place. The increased scope of CWA jurisdiction under the proposed rule 

would require utilities to incur additional costs to expand these SPCC plans to take into 

account the areas not currently considered waters of the U.S. The challenges facing 

transmission facilities also apply to the construction of new generation. This is especially 

true for natural gas plants that require pipelines to transport gas to any new natural gas 

electric generating facility. The siting and permitting of new natural gas pipelines may be 

delayed further by the proposed rule. The Agencies should avoid needless adverse 

impacts to energy projects by revising and clarifying the rule as discussed in this letter. 

(p. 21-22)

Agency Response: Under the final rule, the scope of regulatory jurisdiction is 

narrower than that under the existing regulations. The rule excludes all ditches with 

ephemeral flow that are not excavated in or relocate a tributary. The rule also 

excludes ditches with intermittent flow that are not excavated in or relocate a 

tributary or drain wetlands, regardless of whether or not the wetland is a covered 

water. Finally, ditches that do not connect to a traditional navigable water, 

interstate water, or territorial sea either directly or through another water are 

excluded, regardless of whether the flow is ephemeral, intermittent, or perennial. 

These ditch exclusions are clearer for the regulated public to identify and more 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

822

straightforward for agency staff to implement than the proposed rule or current 

policies. The ditch exclusions do not affect the possible status of that ditch as a point 

source. The rule excludes all ditches with ephemeral flow that are not excavated in 

or relocate a tributary. The rule also excludes ditches with intermittent flow that 

are not excavated in or relocate a tributary or drain wetlands, regardless of whether 

or not the wetland is a covered water. Finally, ditches that do not connect to a 

traditional navigable water, interstate water, or territorial sea either directly or 

through another water are excluded, regardless of whether the flow is ephemeral, 

intermittent, or perennial. These ditch exclusions are clearer for the regulated 

public to identify and more straightforward for agency staff to implement than the 

proposed rule or current policies. The ditch exclusions do not affect the possible 

status of that ditch as a point source. The agencies have deleted the term “uplands” 

in response to the confusion the term created. Please also see summary response 

12.5.

North Dakota Office of the Governor, et al. (Doc. #15365)

12.1338 Using floodplains to create per se federal jurisdiction is ill-defined and will result 

in expansive federal jurisdictional claims. Floodplains vary across the country based on 

climate and geography. In parts of the west, floodplains may be limited to the bed and 

bank of the flooding body where this regulation could possibly make more sense. 

However, in the Red River Valley of North Dakota and Minnesota, the flatness of the 

land allows the floodplain to be miles wide. Using a vague definition of floodplain would 

allow the EPA and Corps to have federal jurisdiction over miles of land after the flood 

recedes; not to mention the potholes, wetlands, and streams filled by the flood.

Defining floodplains by a set number of years event is also ineffective because 

floodplains can change dramatically with climactic and meteorological changes. Rather, 

water in floodplains should only be jurisdictional within the riparian area of the flooded 

zone. This pragmatic approach acknowledges that flood spillovers can cause pollution 

problems, but also realizes that large realms of federal jurisdiction are not the solution. 

(p. 9)

Agency Response: See Summary Response. See the definitions in paragraph (c) 

of the final rule for further clarifications under the definition of “neighboring” and 

the corresponding preamble sections for additional discussion about the terms used 

in the final rule such as “floodplain”. The final rule has been revised to reflect 

concerns received about the proposed rule, including additional clarity as to the use 

of “floodplains” in the final rule. 

12.1339 The expanded tributary definition does not provide clarity and could act as a 

roadblock to normal agricultural practices.

The definitions of tributaries and their riparian lands are so expansive, that vast areas of 

agricultural land will be contained within areas defined as jurisdictional. The statement 

that EPA is not managing land is nonsensical. The most fundamental management 

practice of agriculture is water management – its retention, conservation, or removal. 

This rule claims jurisdiction over anything from fields to tributary drains at field outlets, 

and leverages authority over agricultural practices smaller than field scale. Conditions 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

823

and climatic events that impact farmers are highly variable and even erratic, making state 

jurisdiction appropriate over federal.

For example, North Dakota has experienced a wet cycle during the last two decades in 

which water lying in fields drastically changes throughout the year. In the eastern part of 

the state, where the landscape is flat, water may sit in a field from April through June, 

and then dry up for the end of the planting season. Under the proposed rule, this 

depressed area – if it develops a bed, bank, and ordinary high water mark or reaches an 

actual navigable water – could be considered a WOTUS. This could be anything from a 

tire track that sits with water too long to a low area where rainwater channels. 

Additionally, the federal jurisdictional inclusion of intermittent streams and tributaries 

and ephemeral streams means agriculture management will be further impeded, as 

farmers will not know which water on their lands is jurisdictional. The broad scope of 

these regulations creates a scenario where the farmer is going to have to prove that they 

did not discharge rather than federal agencies proving that there is a problem. This is a 

backwards scenario. If there is a discharge into upstream waters, it is regulated by the 

state and is appropriately handled at the state level. It is the state’s responsibility to 

address pollution events until they impact waters within EPA’s jurisdiction as defined by 

the Supreme Court. Current state oversight makes it unnecessary and unjustified for EPA 

to regulate all waters as a just-in-case scenario. (p. 11-12)

Agency Response: See Summary Response. See the preamble section on 

“Tributaries” for further discussion on the characteristics required to meet the 

definition of a tributary. To be considered a “tributary” under the final rule, a 

water feature must demonstrate both bed/banks and an ordinary high water mark 

which would distinguish them from non-jurisdictional features. The tributary 

characteristics required by the rule indicate sufficient volume, flow, and frequency 

of water such that the tributary would have a significant nexus to the (a)(1) to (a)(3) 

waters. The rule also contains clarifying language regarding which water features 

are and are not Waters of the US. Please see the preamble section Water and 

Features that Are Not Waters of the United States” for further clarification. The 

agencies do not agree that the rule will have an effect on farmers’ ability to make 

decisions about activities on their private lands. The statutory authority of the 

CWA does not convey to the Federal Government any ownership of or property 

rights in any private lands. The agencies recognize that the state and local 

governments have well-defined and long-standing relationships in implementing 

affected CWA programs and these relationships will not be altered. This action will 

not have substantial direct effects on the states, on the relationship between the 

national government and the states, or on the distribution of power and 

responsibilities among the various levels of government. The final rule does not 

restrict the states’ efforts in developing or implementing statewide permits under 

CWA programs.

William Schock (Doc. #15394)

12.1340 The Supreme Court determined that the EPA and USCOE had overreached their 

authority in its implementation of the Clean Water Act before this rule was written. It is 

of little reassurance that the agency’s claim that this draft rule will not expand the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

824

jurisdiction of the EPA when the court has already upheld that it is currently 

overreaching. The current EPA estimates that its jurisdiction will only expand by 3% are 

even less reassuring since this would result in further overreaching, it is clearly dishonest. 

The only course of action at this juncture by the EPA would be to reduce its jurisdiction 

to levels that would be commensurate with the desires of the affected states and the 

Supreme Court. This could easily be reductions in the neighborhood of 90% in arid states 

such as Arizona. (. 2 – 3)

Agency Response: See Summary Response. The Economic Analysis provides a 

discussion on predicted changes in jurisdiction. The Technical Support Document 

provides additional information on the legal basis for the final rule.

Wisconsin Electric Power Company and Wisconsin Gas LLC (Doc. #15407)

12.1341 Many "tributaries" that arguably meet the above definitions carry storm water 

runoff. We Energies is required to manage this runoff in the course of conducting its 

business. The proposed rule will impose federal CWA regulation to features that are 

constructed and used pursuant to other federal and state regulatory programs. For 

example, electric and gas distribution facilities cross or otherwise affect ephemeral 

drainages and ditches. The agencies should meet with stakeholders to fully understand 

the implications on other federal and state regulatory programs and revise the rule to 

avoid duplication and conflicting requirements. (p. 5)

Agency Response: See Summary Response. The rule contains clarifying language 

regarding which water features are and are not Waters of the US. Please see the 

section in the preamble on “Water and Features that Are Not Waters of the United 

States” for further clarification. In particular, paragraph (b) of the final rule 

clarifies the exclusion for stormwater control features and the exclusion for 

erosional features and ephemeral features that do not meet the definition of 

“tributary.” The agencies recognize that the state and local governments have welldefined and long-standing relationships in implementing affected CWA programs 

and these relationships will not be altered. This action will not have substantial 

direct effects on the states, on the relationship between the national government and 

the states, or on the distribution of power and responsibilities among the various 

levels of government. The final rule does not restrict the states’ efforts in 

developing or implementing statewide permits under CWA programs. 

Implementation of regulatory programs that rely on the definition of waters of the 

US is beyond the scope of this rulemaking. 

National Association of Manufacturers (Doc. #15410)

12.1342 Environmentally beneficial projects, such as the maintenance (including sediment 

removal and other maintenance activities) of stormwater conveyance systems that keep 

stormwater away from potential contaminants and industrial processes, may require 

permits, as these stormwater conveyances could be “waters of the United States” under 

the proposed rule. (p. 29)

Agency Response: See Summary Response. The comments are outside the scope 

of this rulemaking. The rule contains clarifying language regarding which water 

features are and are not Waters of the U.S. Please see the section in the preamble 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

825

on “Water and Features that Are Not Waters of the United States” for further 

clarification. In particular, paragraph (b) of the final rule provides clarification 

regarding the exclusion for stormwater control features and the exclusion for 

erosional features and ephemeral features that do not meet the definition of 

“tributary.” The rule does not affect the statutory activity-based exemptions under 

section 404(f)(1) of the Clean Water Act, including those related to the maintenance 

of drainage ditches. In addition the Corps nationwide general permit program 

includes several permits for discharges associated with maintenance activities that 

may not require pre-construction notification for expeditious review and efficiency 

in processing verifications under Section 404 of the Clean Water Act. Also, please 

see summary response 7.4.4.

12.1343 Minor spills that occur completely within the boundaries of a facility and are 

immediately addressed such that no potential contaminants leave the spill area or impact 

any current water of the United States may become illegal discharges to a new “water of 

the United States” if the spill occurs on a roadway, in or near a stormwater system, or in 

other areas where water may occasionally be present. (p. 29)

Agency Response: Please see response summary 12.5.

12.1344 Projects will undoubtedly be delayed, and some even abandoned, if Clean Water 

Act permits are required as a result of the proposed rule due to the extremely long leadtime required for obtaining permits and going through the required federal consulting 

processes. The lead-times are excessive now, and the agencies have not addressed how 

the proposed rule, and its likely increased permit requirements, will not result in even 

longer lead-times for receiving permits. (p. 29)

Agency Response: See Summary Response. There are two types of jurisdictional 

determinations; preliminary and approved jurisdictional determinations. 

Preliminary jurisdictional determinations indicate which waters on a property may 

be waters of the U.S., presume all waters on a property are jurisdictional, are not 

legally binding instruments, and enable a landowner to set aside the issue of 

jurisdiction and move directly into the permit evaluation phase of the process. 

Preliminary jurisdictional determinations cannot be used to decline jurisdiction and 

are generally more expedient than approved jurisdictional determinations. 

Approved jurisdictional determinations are the official Corps determination that 

jurisdictional “waters of the United States” or “navigable waters of the United 

States,” or both, are either present or absent on a particular site. An approved 

jurisdictional determination precisely identifies the limits of those waters on the 

project site determined to be jurisdictional under the Clean Water Act/Rivers and 

Harbors Act. The majority of jurisdictional determinations completed by the Corps 

are preliminary. Not every permit application requires a jurisdictional 

determination.

12.1345 Not only might projects be delayed due to the need for permits, in some instances 

these delays may well render projects economically or operationally infeasible. The 

proposal raises uncertainty regarding whether small and routine projects that currently 

take advantage of established general or nationwide permit programs might be required to 

obtain individual permits, causing additional delay and great increased cost. Over time, 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

826

changes in agency permits have changed the requirements that allow projects to take 

advantage of these permits, but these permit programs were not established with the 

proposed rule’s sweeping changes to which “waters” may be jurisdictional in mind. 

Likewise, the end result of the proposed rule on general and nationwide permit programs 

may be that these programs are no longer viable, meaning that individual permits will be 

required for every project. It is not clear that the agencies considered the impact of this 

change on their resources, nor have they considered the impacts to permittees (p. 29).

Agency Response: See Summary Response. The Rule will be effective 60 days 

after publication in the Federal Register. Under existing Corps’ regulations and 

guidance, Corps’ approved jurisdictional determinations generally are valid for five 

years. The preamble addresses the status of final JDs and permits as well as 

pending JDs and permits. Furthermore, the agencies are developing guidance to 

facilitate effective, consistent, and efficient implementation of the final rule once it 

becomes effective. 

12.1346 Several of our members have received jurisdictional determinations, or 

preliminary jurisdictional determinations, from the Corps finding that certain waters are 

non-jurisdictional because they do not meet the “significant nexus” test contained in the 

Rapanos Guidance. In several cases, the waters found to be non-jurisdictional in these 

determinations under the Rapanos Guidance would likely be found to be jurisdictional 

under the proposed rule due to the characteristics and locations of the waters making 

them newly minted “tributaries” or “adjacent” waters. Furthermore, nowhere do the 

agencies address what will become of these jurisdictional determinations, which are valid 

for five years, if the proposed rule were to be adopted. This will create regulatory 

uncertainty and may require duplication of efforts by the regulated community and the 

agencies to address questions that resources have already been expended to answer. (p. 

30)

Agency Response: See Summary Response. The Rule will be effective 60 days 

after publication in the Federal Register. Under existing Corps’ regulations and 

guidance, Corps’ approved jurisdictional determinations generally are valid for five 

years. The preamble addresses the status of final JDs and permits as well as 

pending JDs and permits. The agencies have revised the definition of “neighboring” 

under adjacent (a)(6) waters in an effort to provide more of a “bright line” to 

reduce the “burden of proof” on both the agencies and the regulated public. The 

rule states that all tributaries and all adjacent waters have a significant nexus either 

alone or in combination with other similarly situated waters in the region such that 

they are jurisdictional by rule. Waters must meet the confines of the definitions in 

order to be jurisdictional by rule. 

Calcasieu Parish Police Jury, Louisiana (Doc. #15412)

12.1347 WHEREAS, if more waters fall under federal jurisdiction, parishes/counties will 

be forced to submit more Section 404 permits and will face longer delays in the 

jurisdictional determination and permitting process. Under this new proposed rule, 

Calcasieu Parish will be burdened by an abundance of Section 404 permits due to the fact 

that forty-six percent (46%) of the Parish is located in a Special Flood Hazard Area 

whereby those properties would be greatly affected; and (p. 2)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

827

Agency Response: See Summary Response. Please see the Economic Analysis 

completed for the final rule for a discussion on predicted changes in jurisdiction. 

There are two types of jurisdictional determinations; preliminary and approved 

jurisdictional determinations. Preliminary jurisdictional determinations indicate 

which waters on a property may be waters of the U.S., presume all waters on a 

property are jurisdictional, are not legally binding instruments, and enable a 

landowner to set aside the issue of jurisdiction and move directly into the permit 

evaluation phase of the process. Preliminary jurisdictional determinations cannot 

be used to decline jurisdiction and are generally more expedient than approved 

jurisdictional determinations. Approved jurisdictional determinations are the 

official Corps determination that jurisdictional “waters of the United States” or 

“navigable waters of the United States,” or both, are either present or absent on a 

particular site. An approved jurisdictional determination precisely identifies the 

limits of those waters on the project site determined to be jurisdictional under the 

Clean Water Act/Rivers and Harbors Act. The majority of jurisdictional 

determinations completed by the Corps are preliminary. Not every permit 

application requires a jurisdictional determination.

12.1348 WHEREAS, the permit itself is not a problem, but the process used can be 

challenging for local governments, as 404 permits can be time-consuming and expensive 

to obtain, causing delays of up to three to five years, with significant overhead costs 

associated with consultants, lawyers, engineers and special conditions attached to the 

permit. These additional delays and costs could significantly alter the benefit cost ratio on

some vital restoration and protection projects in Southwest Louisiana. The State of 

Louisiana loses the size of Delaware each year, and we simply cannot afford to add 

delays to coastal restoration projects at this critical stage; and (p. 3)

Agency Response: See Summary Response. The agencies are developing guidance 

to facilitate effective, consistent, and efficient implementation of the final rule once it 

becomes effective. The final rule provides for certain categories of waters that are 

jurisdictional by rule, which will result in a more efficient process. Several 

categories of waters under the 2003 and 2008 guidance documents required casespecific analysis to determine jurisdiction, including significant nexus 

determinations. There is not expected to be a required timeframes for completion of 

a jurisdictional determination, which can be dependent on a variety of factors 

including climate and weather patterns. See the preamble section for the casespecific significant nexus determination discussions regarding “similarly situated” 

under (a)(7) and (a)(8) waters. The agencies will continue to only provide a 

jurisdictional determination at the landowner’s request; the agencies do not 

determine jurisdiction absent such a request. See previous response for types of 

jurisdictional determinations and ways in which the permit process may be accessed 

more rapidly.

United States Steel Corporation (Doc. #15450)

12.1349 The proposed rule applies the new definition of "waters of the U.S." throughout 

all CWA programs, and will result in fundamental changes to those programs. The 

agencies have not considered the implications 0 f this application. (p. 2)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

828

Agency Response: See Summary Response. The final rule is a definitional rule 

that clarifies the scope of “waters of the United States” consistent with the Clean 

Water Act (CWA) and Supreme Court precedent. The final rule does not establish 

any regulatory requirements or change implementation of CWA programs or 

processes, which are outside the scope of this rule.

Keweenaw Bay Indian Community (Doc. #15497)

12.1350 The Keweenaw Bay Indian Community{KBIC) is a federally-recognized tribal 

nation located along the shores of Lake Superior, with a strong cultural and spiritual 

connection to the land and water, and whose members rely heavily on the natural 

environment to meet subsistence, economic, spiritual and medicinal needs. KBIC ceded 

traditional homelands ("Ceded Territory") to the U.S. under the Treaty of 1842; however 

reserve rights to hunt, fish, trap, and gather within this territory. All federal agencies, 

including the Environmental Protection Agency (EPA), share in the federal government's 

responsibility to protect treaty rights and maintain and enhance trust resources.

Water is our lifeblood, to KBIC, the protection and restoration of waters is vital in 

ensuring the availability of resources for the next seven generations. KBIC supports the 

proposed definition's inclusion of: 1) all tributaries of waters described in subsections 1-4 

of Section(s) of the rule; and 2) wetlands and waters adjacent to those waters and their 

tributaries. However, KBIC would appreciate further consultation regarding the impacts 

the proposed definition may have on reserved treaty rights. (p. 1)

Agency Response: The agencies appreciate KBIC’s comments supporting the 

proposed definition. The agencies considered these comments and other tribal 

comments in the development of today’s rule. The agencies have prepared a report 

summarizing their consultation with tribal nations, and how these results have 

informed the development of this rule. This report, Final Summary of Tribal 

Consultation for the Clean Water Rule: Definition of “Waters of the United States” 

Under the Clean Water Act Final Rule is available in the docket for this rule.

Packaging Corporation of America (Doc. #15515)

12.1351 The Proposed Rule will invariably have a number of significant consequences for 

forest owners, including uncertainty whether water features on forest lands are 

jurisdictional new or additional permitting obligations; new requirements to meet water 

quality standards or total maximum daily loads (TMDLs); and increased exposure to 

citizen suit litigation. These new complexities will have the effect of bringing regulatory 

uncertainty to forest landowners and increased costs to our procurement of fiber 

resources, with no commensurate improvement to the environment. The Proposal does 

not serve the agencies' goal of providing clarity as to whether a given parcel of land 

contains WOTUS. Forest owners cannot reliably predict whether a seemingly isolated 

waterbody on their land will be deemed as lying within a "riparian area" or "floodplain" 

of jurisdictional water. Nor can they confidently distinguish between an excluded 

erosional feature and a jurisdictional ephemeral tributary. Given the ambiguity and lack 

of clarity in the proposal, forest owners will be put in a position of trying to account for 

extensive tributary systems, riparian areas, floodplains, and the extent of subsurface 

hydrologic connections that extent far beyond the boundaries of their lands. This may 

not be possible for landowners who are carrying out normal silvicultural activities that do 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

829

not produce sufficient financial returns to justify the analysis. As a result, forest owners 

could lose the ability to manage lands and may see other less benign uses for their land.

The Proposal also poses a significant problem for forestry operations subject to best 

management practices. Categorical designation of ditches and ephemeral streams, in 

particular, will cause considerable confusion as to how forest owners are to implement 

best management practices like buffers along roadside ditches. Moreover, despite 

existing exemptions in CWA Sections 404(f) and 402(I) for certain activities in the forest, 

the Proposal's expansion of WOTUS could mean that non-stormwater discharges of 

pollutants into newly jurisdictional ditches and ephemeral drainages could be considered 

unlawful discharges without an NPDES permit, thereby potentially triggering daily 

penalties. The expansion of jurisdiction under the Proposal could also trigger new 

obligations under CWA Section 303 relating to water quality standards and TMDLs. For 

example, an impaired waters listing and the regulatory restrictions resulting from the 

TMDL process could negatively impact private forest owners, who must comply with 

any resulting lad use restrictions and may see a reduction in their property values.

Finally, forest owners have long had to defend against citizen suits such as the "forest 

roads" case that tool almost a decade to resolve. The Proposal would invite similar 

citizen lawsuits against forest landowners seeking to halt operations. Given the vague 

terms in the proposal, citizen plaintiffs could find any number of ways to allege that a 

given silvicultural activity results in a direct discharge to some water feature that is 

purportedly a WOTUS. Regardless of whether such allegations have any merit, resolving 

them costs time and money and they disrupt forestry operations. Given the potential 

implication of the rule to forest management concerns, the Agencies need to include 

broad new language that would reaffirm clear exemptions of silvicultural activities. (p. 5-

6)

Agency Response: The scope of regulatory jurisdiction in this rule is narrower 

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations. Exemption 

from permitting requirements for discharges to jurisdictional waters is beyond the 

scope of this rule. Congress identified in section 404(f)(1) of the Clean Water Act 

those activities for which the discharge of dredged or fill material is exempt from 

regulation.

Business Council of Alabama (Doc. #15538)

12.1352 The proposed rule goes into much detail as to what factors or parameters should 

be used to determine a "significant nexus". In order for an applicant or the agencies to 

evaluate the evidence as to whether a proposed project area meets the various tests for 

"connectivity" it is likely to take a significant amount of time and costs. Because of time 

and/or costs to the applicant associated with the agencies evaluation of all these 

parameters it will encourage applicants to concede that a connection exists and that their 

project will impact WOTUS thereby triggering a Corps permit application. These 

concessions are likely to result in over regulation and mitigation for many projects where 

the science would not support EPA/Corps jurisdiction. (p. 4-5)

Agency Response: See Summary Response. The rule clarifies which waters are 

and are not jurisdictional under the Clean Water Act. The agencies are developing 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

830

guidance to facilitate effective, consistent, and efficient implementation of the final 

rule once it becomes effective. 

Brown County Farm Bureau (Doc. #15576)

12.1353 Under the rule, Section 402 permits would be necessary for common farming 

activities like applying fertilizer or pesticide or moving cattle if materials (fertilizer, 

pesticide or manure) would fall into low spots or ditches. Section 404 permits would be 

required for earthmoving activity, such as plowing, planting or fencing, except as part of 

established farming ongoing at the same site since 1977.

Technically, EPA could absolutely require a permit for cows or hogs crossing a stream or 

wet pasture. Under federal regulations, manure is a Clean Water Act pollutant. If a low 

spot on a pasture is a jurisdictional wetland or ephemeral stream under the new rule, EPA 

or a citizens group could sue the owner of the livestock that discharge manure into those 

jurisdictional waters without a Section 402 permit. (p. 1)

Agency Response: Please see summary response 12.3. 

K. Ransford (Doc. #15675)

12.1354 (...) 5. I am concerned about the 56 exemptions that that farmers have from the 

Clean Water Act. Agricultural irrigation practices do a lot of damage to rivers in the 

West. At a public meeting to discuss the proposed rule in nearby El Jebel in July, 2014, a 

farmer in the audience complained that the new rule would prevent him from using the 

pesticide 2-4-D to clear weeds from his irrigation ditches. In fact, it is illegal to use this 

pesticide in ditches, but I suspect it happens regularly. The USDA updated its agricultural 

census in 2012, and I looked at 14 counties that make up the Upper Colorado River 

headwaters. Combined, their average income from products sold is $51,612, and their 

average expenses are $57,212. They lose money every year, but divert as much water out 

of streams as possible in order to prove up their water rights - irrigated land sells for 

nearly 3 times more than dry land in Colorado. Because they lose money, many farmers 

cut corners wherever they can, including putting pesticides in irrigation ditches. But, this 

is harmful to streams. I think failing to adopt this new rule because of objections from the 

agricultural community is a big mistake. (...) (p. 1)

Agency Response: The interpretive rule titled, “U.S. Environmental Protection 

Agency and U.S. Department of the Army Interpretive Rule Regarding the 

Applicability of Clean Water Act Section 404(f)(l)(A)," was withdrawn by the 

agencies as required by the Consolidated and Further Continuing Appropriation 

Act on January 29th, 2015. Exemption from permitting requirements under section 

404(f)(1) of the Clean Water Act for discharges to jurisdictional waters is beyond 

the scope of this rule. Congress identified in section 404(f)(1) those activities for 

which the discharge of dredged or fill material is exempt from regulation.

City of Jackson, Mississippi (Doc. #15766)

12.1355 II. Regulation of ditches and stormwater structures would be unnecessary, unduly 

complex, time-consuming, and counter-productive

Classifying ditches and storwwater management infrastructure as "waters of the united 

States" could subject the City to a broad range of cumbersome and impractical CWA 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

831

regulatory schemes. Cities and counties use ditches and their related infrastructure to 

capture and convey water away from low-lying roads, properties, and businesses to 

prevent accidents (such as traffic accidents on low-lying roadways), protect public safety, 

and to limit flooding and the damage flooding causes. These ditches require maintenance, 

such as cleaning out vegetation and debris, as well as repairs and modifications. The 

proposed rule could require Section 404 permits for these basic ditch maintenance 

activities. See 33 U.S.C. 5 1344 (requiring permits for "discharge of dredged or fill 

material"). The jurisdictional determination process for Section 404 permits entails 

lengthy and resource-intensive delays. And often, as part of the approval process, the 

permit requires applicants to "mitigate" the environmental impacts of proposed projects 

and attach special conditions on maintenance activities, which can be at great expense. 

Further, the proposed rule could conflict with stormwater measures and programs and 

lead to further regulation under numerical water quality standards (including total 

maximum daily loads). And the new requirements would potentially extend EPA's reach 

into local land use activities traditionally reserved to state and local regulation. In 

addition, other types of infrastructure projects, including construction and maintenance 

activities associated with stormwater management, could become federally regulated. For 

example, local governments use green infrastructure-stormwater detention ponds, 

bioswales, vegetative buffers, and constructed wetlands - to address stomwater runoff 

problems and protect water quality. Stormwater projects and green infrastructure should n

be subject to the cumbersome and impractical Section 404 process. (p. 2 – 3)

Agency Response: See Summary Response. Under paragraph (b) of the rule, 

certain waters and features are not considered “waters of the U.S.,” including 

certain ditches, stormwater control features, and certain green infrastructure. The 

paragraph (b) exclusions are applied before determining if jurisdiction applies per 

the paragraph (a) categories. See the preamble section on “Water and Features that 

Are Not Waters of the United States” for further clarification. The final rule does 

not affect the existing statutory activity-based exemptions under Section 404(f)(1) of 

the Clean Water Act, including those for the maintenance of drainage ditches. In 

addition, the Corps nationwide general permit program includes several general 

permits for discharges associated with maintenance activities, some of which may 

not require pre-construction notification for expeditious review and efficiency in 

processing verifications under Section 404 of the Clean Water Act. Also, please see 

summary response 7.4.4 regarding stormwater control features. 

National Association of State Conservation Agencies (Doc. #15778)

12.1356 Additionally, our experience is both EPA and USACE regulatory programs 

implementation vary greatly from region to region. The proposed rule is fraught with 

ambiguity, and its implementation would rely heavily on subjective interpretation and 

analysis on the part of regulators. This approach fails to provide certainty to the regulated 

community and is thus inequitable and unreasonable for the owners and operators of 

America's working lands. (p. 2)

Agency Response: See Summary Response. The agencies are developing guidance 

to facilitate effective, consistent, and efficient implementation of the final rule once it 

becomes effective. The initial phase of implementing the rule will require education 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

832

and training for agency staff as well as other stakeholders and the regulated public 

which may result in an initial delay in certain jurisdictional determinations but after 

the initial implementation period the jurisdictional determinations are expected to 

be more efficient. The agencies recognize that there are appropriate levels of 

regional variation in implementation of the regulations; however, the agencies strive 

for national consistency. The agencies believe the clarity and certainty provided in 

the rule will result in further consistency, while still allowing for regional variation 

in implementation that may be necessary based on regional differences in aquatic 

resources; for example, the ordinary high water mark regional manuals or the 

regional supplements to the wetland delineation manual, both of which are outside 

the scope of this rulemaking but are related resources. The agencies understand 

that there is regional variation which can make it appear that there are 

inconsistencies in the program. However, the rule aims to reduce any 

inconsistencies and provide a bright line of clarity for the agencies, state partners, 

and the regulated public.

Martin Marietta (Doc. #16356)

12.1357 At a December 12, 2013, meeting with representatives of the White House Office 

of Management and Budget, the EPA and Corps of Engineers, Steve Whitt presented 

information on a 2,700-acre green site being developed in Texas. The USGS maps for 

this area indicated that almost seven miles of blue line streams exist within the property 

boundary. A 2009 jurisdictional determination (confirmed by a full field review) 

indicated that there were no jurisdictional features within the project boundary. This 

specific type of situation is why Corps field staff should not be allowed to make 

jurisdictional determinations based on desk-top studies. This will lead to inaccurate and 

inconsistent determinations by Corps field staff. 

This Texas site is also a prime example of how the proposed rule will expand jurisdiction. 

Our consultant estimates that more than a mile of drainage way within this project 

boundary would be jurisdictional under the new definition. At $250 per foot, the 

mitigation costs would be $1,250,000 if this is managed at a 1:1 ratio. The proposed site 

will sweep in marginal aquatic areas and lead to increased regulation of remote and 

ephemeral areas.313 (p. 2) 

Agency Response: See Summary Response. See the Economic Analysis regarding 

predicted changes in jurisdiction. Approved JDs that identify the limits of waters of 

the United States may be based on site visits or desktop reviews. The agencies have 

been using remote sensing and desktop tools to delineate tributaries for many years 

where data from the field are unavailable or a field visit is not possible. Desktop 

reviews are sufficient in cases where the district has a high degree of confidence in 

the information used to identify the limits of jurisdictional waters. For example, 

desktop reviews may be based on detailed delineation reports prepared by 

professional wetland consultants. The level of mapping precision for an approved 

JD that identifies the limits of waters of the United States is at the discretion of the 

 

313 This paragraph was included to provide context to the first paragraph, already included in the final #12 

Compendium.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

833

district. In some cases, districts may need to require professional surveys of 

jurisdictional boundaries, but in other cases, other mapping techniques may be 

adequate. See the preamble for further discussion on desktop tools in the 

“Tributary” section. In addition, desktop tools are critical in circumstances where 

physical characteristics waters are absent in the field, often due to unpermitted 

alteration of waters. The majority of this information is available for the public’s 

use; these tools can allow for greater consistency with currently available and 

accessible data sources.

Wyoming Department of Environmental Quality (Doc. #16393)

12.1358 The process used to develop the proposed rule lacked any meaningful 

consultation with the states. The result is a rule that contains a considerable amount of 

uncertainty regarding the extent of the CWA's authority and the additional costs that will 

be associated with the implementation of federal regulations over an expanded universe 

of waters. Additionally, the U.S. Environmental Protection Agency (EPA) and the U.S. 

Army Corps of Engineers (Corps) did not comply with the state consultation criteria in 

Executive Order 13132 (Aug. 10, 1999) regarding the formulation of policies that have 

federalism implications. The proposed rule infringes on states' rights to regulate water 

quality in surface waters with no rational connection to traditionally navigable waters -

the touchstone of CWA jurisdiction. (p. 2)

Agency Response: The agencies consulted with state and local officials throughout 

the process and solicited their comments on the proposed action and on the 

development of the rule. For this rule State and local governments were consulted at 

the onset of rule development in 2011, and following the publication of the proposed 

rule in 2014. In addition to engaging key organizations, the agencies sought 

feedback on this rule from a broad audience of stakeholders through extensive 

outreach to numerous State and local government organizations. Please see 

Preamble discussion of Executive Order 13132. The agencies have prepared a report 

summarizing their voluntary consultation and extensive outreach to State, local, and 

county governments, the results of this outreach, and how these results have 

informed the development of today’s rule. This report, Final Summary of the 

Discretionary Consultation and Outreach to State, Local, and County Governments 

for the Revised Definition of Waters of the United States is available in the docket 

for this rule. Please also see summary response 12.3.

Kentucky Waterways Alliance (Doc. #16581)

12.1359 Jurisdictional and Non-Jurisdictional Determinations

It is critically important that the federal agencies, interested groups, and the public have 

ready access to as much information as possible and practicable about jurisdictional 

determinations. The agencies should learn from and correct numerous problems that 

developed in the last decade.

Key to public participation is the regular posting by the Corps districts of the 

jurisdictional determination forms. RGL 07-01 specifies that completed jurisdictional 

forms “shall be posted within 30-days of completion,” but it is difficult to discern 

whether this is followed in practice without monitoring district websites regularly. The 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

834

Corps and EPA headquarters should ensure that jurisdictional decisions are publicly 

available in a timely way. All districts should be required to post all completed 

determinations at least once a week. Additionally, jurisdictional determinations should 

remain available on Corps websites for five years, that is, while they are in effect. 

Moreover, the proposed rule should include a process by which case-by-case 

determinations of significant nexus are recorded and used in future decisions. The rule 

should include a requirement that districts compile and publicize such determinations in 

order to assist in identifying other similarly situated waters with the region.

The Corps’ district personnel (and EPA field staff) should be required to use a common, 

publicly accessible, database for JDs. Such a tool will enable concerned citizens, resource 

managers, and others to assess whether similar waters are being treated similarly across 

the country, track the amount of resources found nonjurisdictional and consider whether 

to make policy or regulatory changes to adequately protect important resources. (p. 13 –

14)

Agency Response: See Summary Response. The final rule has been modified 

from the proposed rule in an effort to improve clarity and provide additional 

“bright lines” for the agencies and the regulated public to understand which waters 

are and are not jurisdictional and which waters require a case-specific significant 

nexus determination. The agencies are developing guidance to facilitate effective, 

consistent, and efficient implementation of the final rule once it becomes effective. 

The agencies will continue to provide a jurisdictional determination at the request of 

a landowner. The Corps anticipates continuing the practice of posting approved 

jurisdictional determinations on district websites.

12.1360 D. Gillham (Doc. #16906)

C. More ambiguity and potential for government regulation will deter farmers and 

ranchers from participating in conservation programs, when these already require lots of 

time and paperwork. (p. 2)

Agency Response: See Summary Response. All jurisdictional determinations are 

made on a case-by-case basis at the request of a landowner. The agencies do not 

agree that the rule will have an effect on farmers’ ability to make decisions about 

activities on private land. The statutory authority of the CWA does not convey to 

the Federal Government any ownership of or property rights in any private lands. 

Therefore, we do not believe that the implementation of conservation practices will 

be negatively impacted by the Federal Government as a result of the rule. In 

addition, the rule does not affect the statutory activity-based exemptions under 

section 404(f)(1) of the Clean Water Act, including those for normal farming 

activities.

Delaware County Department of Watershed Affairs (Doc. #16936)

12.1361 Specifically, we are requesting that the NRCS Conservation Practice Standard 

#574 (Spring development) and #614 (Pipeline and Trough) to be included in the list of 

NRCS Conservation Practices exempt from permitting under the Clean Water Act. (p. 3)

Agency Response: The interpretive rule titled, “U.S. Environmental Protection 

Agency and U.S. Department of the Army Interpretive Rule Regarding the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

835

Applicability of Clean Water Act Section 404(f)(l)(A)," was withdrawn by the 

agencies as required by the Consolidated and Further Continuing Appropriation 

Act on January 29th, 2015. Exemption from permitting requirements section 

404(f)(1) of the Clean Water Act for discharges to jurisdictional waters is beyond 

the scope of this rule.

Cook County, Minnesota, Board of Commissioners (Doc. #17004)

12.1362 (...) WHEREAS, the EPA and the Corps affirm that these new regulations will 

result in an increase in jurisdictional determinations that will initiate an increased need 

for permits (more Corps §404 permits, State permitting authorities will be faced with 

more National Pollutant Discharge Elimination System [NPDES] permits and more 

entities will be subject to Clean Water Act [CWA] requirements); and

WHEREAS, in addition to the Corps §404 dredge and fill permits, the guidance applies 

to all CWA programs including §303 water quality standards, §401 state water quality 

certifications, §311 Oil Pollution Act (including Spill Prevention, Control, and 

Countermeasure [SPCC]), and §402 program (including NPDES permits, pesticide 

general permit, and storm water); and (...) (p. 4)

Agency Response: The scope of regulatory jurisdiction in this rule is narrower 

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations, in part 

because the rule puts important qualifiers on some existing categories such as 

tributaries. In addition, the rule provides greater clarity regarding which waters 

are subject to CWA jurisdiction. Please see summary response 12.2 regarding 401 

certifications. See also summary response 12.3. The rule does not change or impose 

new requirements for complying with the pesticides general permit. See also 

summary response 7.4.4 regarding stormwater control structures.

Arizona Rock Products Association (Doc. #17055)

12.1363 ARPA companies are very concerned on the time commitments and financial 

resources that would be required to technically and accurately determine the potential for 

subsurface connections for wetlands, or waters, adjacent to tributaries and are 

jurisdictional. Depending on the operation location, there are often times multiple factors 

to consider when designing a final reclamation plan that ensures public safety, ensures 

compliance with all environmental factors, and meets the requirements of the state or 

federal agencies. Some sites are located at, or adjacent to, areas that have undergone 

significant engineering change over time (e.g. new highways, bridges, impoundments, 

utility channel crossings, soccer fields, parks, commercial development, etc.)

The post mining land use is engineered to not only ensure the most practicable and best 

land use (e.g. commercial development) for the property owner, but mine planning and 

reclamation plans are developed that improve the market value, bolster the local economy 

with high paying jobs, but also may actually improve the regional management of waters 

via tributary flow. ARPA companies work with the state and local governments to plan 

the best post-mining land use and improve the functionality of the existing property, all 

while maintaining the highest regards for public safety. In the arid southwest, historical 

natural and man-made features exist throughout most ephemeral tributaries. The 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

836

dynamics of unpredictable and variable rainfall have changed the effectiveness of many 

of these features, and in some cases have changed the natural flow patterns of the 

tributaries over time. Some features remain intact and are considered to be sound in 

design. While others are breached, dilapidated, may no longer serve their original 

engineered intent.

The arid southwest contains both historical, and relatively new engineered improvements 

that may or may not affect the determination of inclusion as jurisdictional and depending 

on the location and mine plan design of individual operations, may significantly change 

the dynamics of the tributary.

Additionally, the changes to the CWA jurisdictional language will be particularly 

impactful in the arid/semi-arid west, where ephemeral streams and isolated "other waters" 

are prominent features of the landscape. Given the specific hydrologic and geologic 

desert conditions that prevail in this area, the proposed rule's expansion of CWA 

requirements goes far beyond anything that could be justified as a reasonable 

interpretation of the CWA's jurisdiction over "navigable waters." The proposed rule 

inappropriately proposes to expand CWA jurisdiction to features that are effectively dry 

land so long as they ever—or might ever—contribute the slightest increment of water 

flow to downstream traditional navigable waters, no matter how small that flow or how 

far away a navigable water might be. Such an expansion would impose substantial costs 

and administrative burdens upon land development activities in the arid southwest, 

negatively affecting the local economy with no discernible environmental benefit.

Please see the attached Example A – Impacts on Calportland's Proposed Arizona Mine 

Site. The information provided is specific to a proposed mining site in Arizona and 

highlights the Association's concerns given the unique conditions of the arid southwest.

(p. 4 – 5, 9 – 12)
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Agency Response: See Summary Response. A water body must meet the 

definition of “tributary” to be considered jurisdictional under (a)(4). 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. Some ephemeral 

features may include on an ordinary high water mark without the characteristics of 

bed and banks; such ephemeral features would not be considered a tributary under 

the rule. It is also important to note that the tributaries must also contribute flow 

directly or through another water to an (a)(1) to (a)(3) water in order to be 

jurisdictional. 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.” 

The Science Report and the SAB support that tributary streams, including

perennial, intermittent, and ephemeral streams, are chemically, physically, and 

biologically connected to downstream waters, and influence the integrity of 

downstream waters. The agencies have found that ephemeral streams that meet the 

definition of “tributary” provide important functions for downstream waters, and 

in combination with other covered tributaries in a watershed significantly affect the 

chemical, physical, and biological integrity of traditional navigable waters, 

interstate waters, and the territorial seas. The agencies recognize that there are 

appropriate levels of regional variation in implementation of the regulations; 

however, the agencies strive for national consistency. The agencies believe the 

clarity and certainty provided in the rule will increase consistency, while still 

allowing for regional variation in implementation that may be necessary based on 

regional differences in aquatic resources; for example, the OHWM regional 

manuals or the regional supplements to the wetland delineation manual, both of 

which are outside the scope of this rulemaking but are related resources. The 

agencies are developing guidance to facilitate effective, consistent, and efficient 

implementation of the final rule once it becomes effective. The initial phase of 

implementing the rule will require education and training for agency staff as well as 

other stakeholders and the regulated public which may result in an initial delay in 

certain jurisdictional determinations but after the initial implementation period the 

jurisdictional determinations are expected to be more efficient. The training will 

include regionally-based sessions to ensure consistent and efficient implementation 

of the rule. The agencies recognize that there are appropriate levels of regional 

variation in implementation of the regulations; however, the agencies strive for 

national consistency. The agencies believe the clarity and certainty provided in the 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

839

rule will result in further consistency, while still allowing for regional variation in 

implementation that may be necessary based on regional differences in aquatic 

resources; for example, the ordinary high water mark regional manuals or the 

regional supplements to the wetland delineation manual, both of which are outside 

the scope of this rulemaking but are related resources. 

K. G. Oertel (Doc. #17317)

12.1364 In addition, the proposed rule language provides no assurance that it will be 

implemented consistently and with reasonable predictability by even the lowest 

measurement. By applying the agencies' jurisdiction to "other waters" on a case-specific 

basis, there is no safety net or guarantee that the rule will be applied fairly, evenly, or 

with any predictable or measurable standards. How will an applicant know which permits 

he or she is required to obtain for work which was not typically under the jurisdiction of 

the EPA or Army Corps of Engineers prior to the enactment of this rule? How will the 

agencies limit their power so as not to expand their jurisdiction into areas not 

preconceived by Congress? In fact, there is no limit to the agencies' jurisdiction under the 

proposed rules. (p. 1)

Agency Response: See Summary Response. See Technical Support Document for 

the legal basis of the final rule. The agencies note that the final rule provides for 

certain categories of waters that are jurisdictional by rule, which will result in a 

more efficient process. The Corps will develop the tools necessary to assist its staff 

with the jurisdictional determination process specific to section 404 in the 

implementation of the final rule to make the process predictable, efficient, and 

effective. The agencies are developing guidance to facilitate effective, consistent, 

and efficient implementation of the final rule once it becomes effective. The initial 

phase of implementing the rule will require education and training for agency staff 

as well as other stakeholders and the regulated public which may result in an initial 

delay in certain jurisdictional determinations but after the initial implementation 

period the jurisdictional determinations are expected to be more efficient. The 

training will include regionally-based sessions to ensure consistent and efficient 

implementation of the rule while appropriately considering ecoregional variations.

Middle Snake Regional Water Resource Commission (Doc. #17380)

12.1365 It also appears the new definition will cover every body of water in the U.S. 

including canals, ditches, farm ponds and even wet lands that are only wet a small part of 

the year. This is too much. Farmers move soil and water each and every year, but to do 

so in the future may require a CWA permit. You don't have the manpower to make the 

new regulation work and it's not necessary. Where is the common sense? (p. 2)

Agency Response: See Summary Response. The agencies are developing guidance 

to facilitate effective, consistent, and efficient implementation of the final rule once it 

becomes effective. The final rule provides for certain categories of waters that are 

jurisdictional by rule, which will result in a more efficient process. See the 

preamble section “Waters and Features That Are Not Waters of the United States” 

for information on waters excluded under the Clean Water Act. The initial phase of 

implementing the rule will require education and training for agency staff as well as 

other stakeholders and the regulated public which may result in an initial delay in 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

840

certain jurisdictional determinations but after the initial implementation period the 

jurisdictional determinations are expected to be more efficient. The training will 

include regionally-based sessions to ensure consistent and efficient implementation 

of the rule while appropriately recognizing ecoregional variability. In addition, the 

rule does not affect activities that are currently exempt from CWA regulation nor 

will it affect the tools such as the use of general permits that the Corps implements 

for expeditious review and efficiency in processing permit applications for 

discharges of dredged and/or fill material into waters of the U.S. The rule will 

improve consistency and predictability for all CWA programs. The rule will 

improve efficiency and provide needed clarity regarding jurisdictional 

determinations, reducing uncertainties and delays. The agencies do not agree that 

the rule will have an effect on farmers’ ability to make decisions about activities on 

their private lands. The statutory authority of the CWA does not convey to the 

Federal Government any ownership of or property rights in any private lands. 

Jason Smith, House of Representative, Congress of the United States (Doc. #17454)

12.1366 WHEREAS, the draft rule will increase the cost to the city and its citizens to 

maintain these ground structures without any additional compensation to the city; (p. 3)

Agency Response: See Summary Response. Please see the Economic Analysis 

completed for the final rule for a discussion on costs/benefits of the final rule. 

Natural Resources Defense Council and Southern Environmental Law Center (Doc. #17477.14)

12.1367 As a result of the SWANCC decision, many states are experiencing varying 

interpretations by District offices of the Army Corps regarding the jurisdictional scope of 

the 404 program. There does not appear to be any national consistency in the process, 

type of information, and criteria that are being utilized for making jurisdictional decisions

for isolated waters. Of concern to the states is some Districts' omission of information on 

other wetlands that may be impacted by a proposed project. This action does not provide 

state agencies or the public with the information required to evaluate the jurisdictional 

determination, consistency with state's approved coastal management program, or other 

environmental factors. To be in compliance with state coastal management programs and 

§401 of the CWA, the Corps must provide information on all wetland impacts associated 

with a§404 permit, not just impacts to jurisdictional wetlands. (p. 2)

Agency Response: See Summary Response. The Corps will develop the tools 

necessary to assist its staff with the jurisdictional determination process specific to 

section 404 in the implementation of the final rule to make the process predictable, 

efficient, and effective. The agencies recognize that there are appropriate levels of 

regional variation in implementation of the regulations; however, the agencies strive 

for national consistency. The clarity and certainty provided in the rule will result in 

further consistency, while still allowing for regional variation in implementation 

that may be necessary based on regional differences in aquatic resources; for 

example, the ordinary high water mark regional manuals or the regional 

supplements to the wetland delineation manual, both of which are outside the scope 

of this rulemaking but are related resources. All jurisdictional determinations are 

made on a case-by-case basis in response to a landowner’s request. The review area 

for a jurisdictional determination is generally limited to the area in which impacts 
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841

to waters of the U.S. may occur. Although waters outside the landowner’s review 

area may be considered in a significant nexus determination the jurisdictional 

determination is only specific to waters on the landowner’s review area. Previous 

jurisdictional determinations for (a)(7) and (a)(8) waters made in the single point of 

entry watershed may be used in future jurisdictional determinations in the same 

single point of entry watershed. 

12.1368 With regard to clarifying any changes in CWA jurisdiction, CSO recommends 

that any guidance or regulations address the following points.

1) Clarify that the SWANCC decision did not invalidate the regulatory provisions 

defining "waters of the United States." All that it invalidated was the "Migratory Bird 

Rule," which was in fact not a rule but a policy and guidance document.

2) Clarify that the SWANCC decision does not invalidate previously issued permits, and 

their terms and conditions should continue to be enforced, including mitigation 

requirements.

3) Adopt the Riverside Bayview "significant nexus" test for determining jurisdiction over 

wetlands, and establish a presumption that all wetlands within or abutting the 100 year 

floodplain are to be considered "adjacent." Wetlands within a floodplain are 

hydrologically connected during normal flood events and stormwater flows that occur 

during natural climatic cycles within riverine and stream systems and are, therefore, not 

isolated. The guidance should require an assessment of the hydrological and ecological 

functions that particular wetlands perform within a watershed context. These include: 

flood control, erosion control, water quality maintenance, groundwater recharge, and 

conservation of biological diversity. Wetland scientists have never recognized the 

artificial regulatory distinction between "adjacent" and "isolated" wetlands, and there is 

now an opportunity to clarify that it is the function, not the label, that matters. 

4) Clarify that the definition of "tributaries" includes groundwater tributaries and manmade structures, as well as all surface tributaries whether mapped or unmapped. The 

courts have adopted a common sense approach to this issue which holds that, for 

purposes of determining CWA jurisdiction, what matters is whether the discharge has the 

potential to adversely affect the "chemical, physical or biological integrity" of water. 

Courts have not required physical proximity to "open water" as a necessary predicate for 

federal regulation.

5) Clarify and expand the "significant impact on interstate commerce" test for 

jurisdictional determinations. Specifically, the guidance should emphasize that, under 

applicable Supreme Court decisions, it is the "aggregate effect" of the regulated activities 

on interstate commerce that must be evaluated, not simply the effect of regulating a 

particular wetland fill. In the SWANCC decision, the Court acknowledged that most 

discharges of dredge or fill material involve the kind of economic activity that falls 

squarely within the commerce clause. 

6) Clarify the extent of jurisdictional waters in order for states to recommend any needed 

changes to state wetland and water programs and to their administration and legislature. 

7) Establish a nationally consistent process for the Corps in making jurisdictional 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

842

decisions over isolated waters and ensure that Corps Districts provide state agencies and 

the public with the information necessary to evaluate all wetland impacts. (p. 2-3)

Agency Response: See Summary Response. The Technical Support Document 

provides additional information on the legal basis of the final rule, including 

discussion on the Riverside Bayview, SWANCC, and Rapanos Supreme Court 

decisions. The preamble contains a discussion about “significant nexus” in the 

section “Water and Features That Are Not Waters of the U.S.” and about the use of 

the floodplain under the definition of “neighboring” in the section on “Adjacent 

Waters.” The preamble section on “Tributaries” provides a discussion about the 

definition of “tributary.” Tributaries can include man-made features if they meet 

the definition of “tributary” and are not excluded under paragraph (b) of the rule. 

Groundwater is listed as an excluded water under paragraph (b). The agencies 

recognize that the state and local governments have well-defined and long-standing 

relationships in implementing affected CWA programs and these relationships will 

not be altered. This action will not have substantial direct effects on the states, on 

the relationship between the national government and the states, or on the 

distribution of power and responsibilities among the various levels of government. 

The final rule does not restrict the states’ efforts in developing or implementing 

statewide permits under CWA programs. The Corps will develop the tools necessary 

to assist its staff with the jurisdictional determination process specific to section 404 

in the implementation of the final rule to make the process predictable, efficient, 

and effective. The agencies recognize that there are appropriate levels of regional 

variation in implementation of the regulations; however, the agencies strive for 

national consistency. The agencies believe the clarity and certainty provided in the 

rule will result in further consistency, while still allowing for regional variation in 

implementation that may be necessary based on regional differences in aquatic 

resources; for example, the ordinary high water mark regional manuals or the 

regional supplements to the wetland delineation manual, both of which are outside 

the scope of this rulemaking but are related resources.

W. Stevens (Doc. #17663)

12.1369 The impacts of this proposal to oil and gas development could be substantial and 

costly: [...]It will increase the number of Dredge and Fill permits requiring notification, 

agency action and perhaps individual permits. Permitting delays may disrupt timelines 

taking from 6 months to two years, thereby excluding drilling some wells. Of course, this 

leads to increased permit and mitigation costs, as well. (p. 1-2)

Agency Response: See Summary Response. See the Economic Analysis prepared 

for a discussion on predicted changes in jurisdiction and costs/benefits of the final 

rule. The Corps will develop the tools necessary to assist its staff with the 

jurisdictional determination process specific to section 404 in the implementation of 

the final rule to make the process predictable, efficient, and effective. The clarity 

and certainty provided in the rule will provide some efficiencies in making 

jurisdictional determinations for certain categories jurisdictional by rule. The 

initial phase of implementing the rule will require education and training for agency 

staff as well as other stakeholders and the regulated public, which will include 
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843

regionally-based training to ensure consistent and efficient implementation of the 

rule. 

12.1370 The proposed rule raises many questions about implementation. The EPA and 

Army Corps should provide guarantees that previous jurisdictional determinations 

resulting in a finding of "no jurisdiction" should be grandfathered. Otherwise, many 

conscientious operators that in good faith obtained permits to begin operations may find 

those permits worthless and subject to possibly expensive and time-consuming renewals

if this rule is finalized. The proposed rule has no implementation plan or effective date, 

and says nothing about what will happen to in-progress jurisdictional applications or 

permit applications. (p. 3)

Agency Response: See Summary Response. Under existing Corps’ regulations 

and guidance, Corps’ approved jurisdictional determinations generally are valid for 

five years. Approved JDs associated with existing permits/verifications that were 

authorized prior to the publication of the final rule language will remain effective 

for the lifetime of the permit/verification. The preamble addresses the status of final 

JDs and permits as well as pending JDs and permits.

L. Schlothauer (Doc. #17946)

12.1371 Due to the fact that the proposed definition of navigable waters may be expanded 

this leads me to consider how this may impact producers in the Southwestern U.S. as it 

has begun to include ephemeral waters. This is very concerning to me. This year we have 

been fortunate in southern NM to have above normal precipitation which has resulted in 

flash flooding and run-off from crop and livestock operations such as cotton, corn and 

dairies. These run-off waters could be potentially composed of manure nutrients 

classified as pollutants by the EPA. A common question this summer in our area as 

livestock producers and framers work through the proposed revisions to the CWA was 

how will a piece of land dry for the majority of time in the desert surrounding local 

agriculture operations be classified? Many producers around the country are concerned 

about how the proposed rule will affect their operations and this is no different in New 

Mexico. The dairy and cattle industry are the two largest generators of agricultural 

income as “39% of the state's total agricultural receipts are generated by dairy products” 

and “37% by beef cattle and calves” (New Mexico Economy, Agriculture). Controversy 

over disposing manure nutrients has compounded as we have begun to see above average 

precipitation. (p. 1 – 2)

Agency Response: See Summary Response. See the Economic Analysis for 

discussion on predicted changes in jurisdiction. The final rule clarifies which waters 

are and are not jurisdictional under the Clean Water Act. The Clean Water Act 

does not regulate land or land use, but rather only provides jurisdiction over waters 

of the U.S. The Clean Water Act only regulates point source discharges of 

pollutants from a person into waters of the U.S. and not non-point source overland 

runoff. 

Warm Springs Watershed Association (Doc. #18019)

12.1372 In its report to EPA, the SAB found that "the literature review provides strong 

scientific support for the conclusion that ephemeral, intermittent, and perennial streams 
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844

exert a strong influence on the character and functioning of downstream waters and that 

tributary streams are connected to downstream waters" This review of scientific literature 

presents hard evidence that providing drinking water to West Virginians as well as 

millions of Americans along the Potomac and Ohio rivers downstream depends in part on 

healthy headwaters in West Virginia. (p. 1)

Agency Response: Peer-reviewed science and practical experience demonstrate 

that upstream waters, including headwaters and wetlands, can significantly impact 

the chemical, physical, and biological integrity of downstream waters – playing a 

crucial role in controlling sediment, filtering pollutants, reducing flooding, 

providing habitat for fish and other aquatic wildlife, and many other vital chemical, 

physical, and biological processes. 

Donald Shawcroft (Doc. #18569)

12.1373 This jurisdictional expansion will be disastrous for farmers and ranchers. Farmers 

need to apply weed, insect, and disease control products to protect their crops. On much 

of our most productive farmlands (areas with plenty of rain), it would be extremely 

difficult to avoid entirely the small wetlands, ephemeral drainages, and ditches in and 

around farm fields when applying such products. If low spots in farm fields are defined as 

jurisdictional waters, a federal permit will be required for farmers to protect crops. 

Absent a permit, even accidental deposition of pesticides and herbicides into these 

“jurisdictional” features (even at times when the features are completely dry) would be 

unlawful discharges. (p. 2)

Agency Response: The definition of “adjacent” in the rule does not include those 

waters that are subject to established, normal farming, silviculture, and ranching 

activities. Wetlands and farm ponds being used for normal farming activities, as 

those terms are used in the Clean Water Act and its implementing regulations, are 

not jurisdictional under the Act as an “adjacent” water. Waters subject to normal 

farming, silviculture, and ranching activities instead will continue to be subject to 

case-specific review, as they are today. The rule clarifies that waters subject to the 

activities Congress exempted under Section 404(f)(1) are not jurisdictional by rule 

as “adjacent.” It is important to recognize that “tributaries,” including those 

ditches that meet the tributary definition, are not “adjacent waters” and are 

jurisdictional by rule. This provision interprets the intent of Congress and reflects 

the intent of the agencies to minimize potential regulatory burdens on the nation’s 

agriculture community, and recognizes the work of farmers to protect and conserve 

natural resources and water quality on agricultural lands. While waters subject to 

normal farming, silviculture, or ranching practices may be determined to 

significantly affect the chemical, physical, or biological integrity of downstream 

navigable waters, the agencies believe that such determination should be made 

based on a case-specific basis instead of by rule. 

12.1374 The same goes for the application of fertilizer—including organic fertilizer 

(manure)—another necessary and beneficial aspect of many farming operations. It is 

simply not feasible for farmers to avoid adding fertilizer to low spots within farm fields 

that may become jurisdictional. As a result, the proposed rule will impose on farmers the 

burden of obtaining a section 402 discharge permit to fertilize their fields—and put EPA 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

845

into the business of regulating whether, when, and how a farmer’s crops may be 

fertilized. In fact, if low spots on pastures become jurisdictional wetlands or tributaries, 

EPA or citizens groups could sue the owner of cows that “discharge” manure into those 

“waters” without a section 402 permit. They could sue any time a farmer plows, plants, or 

builds a fence across small jurisdictional wetlands or ephemeral drains. 2 Federal permits 

would be required (again, subject to the very narrow exemption of certain activities from 

section 404 permits) if such activities cause fertilizer, dirt, or other pollutants to fall into 

low spots on the field, even if they are dry at that time. (p. 2)

Agency Response: Please see summary response 12.3. 

Anonymous (Doc. #18770)

12.1375 #5 - In a coastal environment we have very high ground water tables and tidal 

influences. Most manmade canals are wet all year round, regardless of rainfall. These 

systems serve as flood control channels and are not manmade. This is like flows in 

highland and riverine environments. It is OK to protect natural areas such as creeks and 

headwaters. But the proposed definition changes extend jurisdiction up into the system 

and will change the ability to manage the systems that protect property and the 

environment. It will lead to less protection and work and not more. The fiscal impact to 

jurisdictions will cripple most programs into conducting more extensive paperwork 

instead of managing real problems in the field. With the potential impacts of Climate 

change, it will make any resilience projects more difficult to plan and implement. (p. 2)

Agency Response: See Summary Response. See the Economic Analysis for a 

discussion on predicted changes in jurisdiction and costs/benefits of the final rule. 

The rule only provides a definition for “waters of the U.S.” The rule does not affect 

the regulatory programs of the CWA for which authorization may be required for 

discharges of dredged and/or fill material into or other activities within waters of 

the U.S. In addition, the rule does not affect activities that are currently exempt 

from CWA regulation nor will it affect the tools such as the use of general permits 

that the Corps implements for expeditious review and efficiency in processing 

permit applications for discharges of dredged and/or fill material into waters of the 

U.S. The rule will improve consistency and predictability for all CWA programs. 

Anonymous (Doc. #18801)

12.1376 (...) 6) For agricultural (e.g., farmers, cattle ranchers) specific exemptions are 

needed as well as very specific clarity. (...) (p. 2)

Agency Response: The rule provides greater clarity regarding which waters are 

subject to CWA jurisdiction. Exemption from permitting requirements under 

section 404(f)(1) of the Clean Water Act for discharges to jurisdictional waters is 

beyond the scope of this rule. Section 404(f)(1) identifies in those activities for which 

the discharge of dredged or fill material is exempt from regulation.

Hickory Underground Water District 1, Texas (Doc. #18928)

12.1377 Just a few examples where groundwater, which in Texas is not owned by the State 

but rather is the property of the landowner overlying the aquifer, would be negatively 

impacted by the proposed rule: 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

846

a. Where "bed and banks" permits are granted to transport groundwater from one 

location to another 

b. Aquifer Storage and Recovery Projects, which are becoming an important 

conservation and allocation strategy in the state. Surface water is injected into 

aquifers, with resultant commingling of groundwater and surface water, and then 

pumped back to the surface when needed.

c. Groundwater district production permit rules for zones of aquifers where there 

is significant discharge to springs. (p. 1)

Agency Response: See Summary Response. See paragraph (b) for waters which 

are excluded under the final rule, including groundwater. See the preamble section 

on “Waters and Features That Are Not Waters of the U.S.” for additional discussion 

on groundwater. The Clean Water Act is a surface water act and only has authority 

to regulate surface waters. Also, see the exclusions for groundwater recharge basins 

and other similar features that are also not considered waters of the U.S. The rule 

does not diminish or in any way detract from the intent and purpose of CWA 

sections 101(b) and 101(g) regarding the states’ primary and exclusive authority 

over water allocation and water rights administration, as well as state-federal coregulation of water quality. 

Anonymous (Doc. #18955)

12.1378 1. There are many Municipal Separate Storm Sewer Systems (MS4s) in the 

United States. These MS4s own, operate, and maintain millions of Stormwater Control 

Measures (SCMs) and Best Management Practices (BMPs). These SCMs and BMPs 

include both structural and non-structural practices, programs, and features. In order for 

these MS4s to operate and maintain their systems in an efficient and cost-effective 

manner, the WOTUS jurisdictional status of the vast majority of these constructed SCMs 

and BMPs must be clear. Determining the WOTUS jurisdictional status of these 

constructed SCMs and BMPs on a case-by-case basis is not manageable or practicable. It 

is essential that clarity be provided by having specific and explicit exclusion language in 

the new rule for most of these constructed SCMs and BMPs. Broad inclusion language 

and reliance on agency best professional judgment and discretion regarding the WOTUS 

status of most urban SCMs and BMPs is not acceptable or practicable. (p. 1)

Agency Response: Please see summary response 7.4.4.

City of Olathe Kansas (Doc. #18982)

12.1379 National Pollutant Discharge Elimination System (NPDES) outfall locations for 

wastewater facilities may be affected by the shifting of the limits of the WOTUS causing 

an increased level of permitting and possible relocation of outfall pipe, taking dollars 

away from other possible infrastructure improvements. (p. 2)

Agency Response: Please see summary response 12.3. The final rule does not 

change or impose new NPDES permitting requirements. NPDES permitting 

requirements are beyond the scope of this rule. See also Compendium 11-

Economics and the Economics Analysis Section 8 for an explanation of the rule’s 

impacts on the Section 402 program.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

847

Associated Industries of Florida (Doc. #19325)

12.1380 The State of Florida is unique in many ways. Its geology, topography, and 

watercourses are like no other state in the nation, dominated by vast floodplains along the 

coast and countless wetlands, rivers, streams and lakes inland. Virtually, all of these 

features are connected underground by our precious aquifer system through sandy soils 

and porous limestone. Because Florida's elevation is only slightly above sea level and 

relatively flat, its history is replete with, and its lifestyle is dependent upon the effective 

management of stormwater. Florida also leads the nation in water quality efforts, recently 

approving numeric nutrient standards designed to keep its waters healthy and clean. As a 

result, Florida is crisscrossed by man-made ditches, canals and ponds for flood control, 

irrigation, stormwater management, and water quality improvement. All of these factors, 

both natural and man-made, make Florida particularly susceptible to the proposed 

changes to the WOTUS definition. (p. 1)

Agency Response: See Summary Response. See paragraph (b) of the final rule 

and the preamble section for “Waters and Features That Are Not Waters of the 

U.S.” These excluded waters include certain ditches, groundwater, and stormwater 

control features. The rule does not affect the statutory activity-based exemptions 

under section 404(f)(1) of the Clean Water Act, including the construction of 

irrigation ditches, and the construction and maintenance of drainage ditches, and 

certain other maintenance activities. In addition, the Corps nationwide general 

permit program includes several applicable general permits for the activities 

described above in an efficient permit mechanism. 

Wright Soil and Water Conservation District (Doc. #19350)

12.1381 In reviewing the proposal, it is evident that the proposed rule identifies most 

waters: lakes, rivers, streams, wetlands and ditches no matter how small; therefore, 

almost all actions involving waters would need a Corp of Engineers' (COE) permit of 

some sort. Many routine permits include culvert and tile replacement and ditch cleaning 

and could perhaps be handled with general permits. However, the District is very 

concerned about the ability of the Corp with its limited staff to respond in timely fashion 

and the cost to the public for them to be able to respond to the numerous permit requests. 

Currently, no timeline deadline requirement for the Corp conflicts greatly with the 

timeline requirements set for WCA reaction. If the current proposed language is adopted, 

the "District" would expect a backlog to quickly appear and overwhelm the available staff 

to the point they are virtually stalemated. The public would be extremely irate and/or 

avoid the application process altogether which could/would lead to violations.

The State of Minnesota developed and passed the Wetland Conservation Act (WCA) in 

1991 and puts controls on wetland drainage. Also, Minnesota's Department of Natural 

Resources' Public Waters rules are already established that deal with larger water bodies, 

lakes and streams. To this point, the Corp of Engineers and the Minnesota Board of 

Water and Soil Resources (BWSR) have not been able to come to agreement on some 

sort of joint permit program that would streamline permitting and serve the public more 

efficiently with a better environmental outcome. The District feels that states with their 

own permit programs should become a high priority for a joint program with COA/EPA -
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

848

the Corp of Engineers could review a certain percentage of the Joint Permits to ensure 

compliance with their rules. 

The current situation, as it is, has fostered government distrust by the public and 

confusion by landowners and state and local officials and makes government look very 

indecisive in the eyes of the public. This situation has led many people to take action 

without obtaining permits and local official ignoring potential consequences of federal 

regulation. The Wright Soil and Water Conservation District feels it is imperative that 

this situation be clarified in a way that makes sense and provides for timely permitting 

especially for, but not limited to, small inconsequential projects. Therefore, the Wright 

SWCD feels that the proposed version of the rules should be withdrawn. (p. 1 – 2)

Agency Response: See Summary Response. The rule does not affect the 

provisions of the CWA for which authorization may be required for discharges of 

dredged and/or fill material into or other activities within waters of the U.S. In 

addition, the rule does not affect activities that are currently exempt from CWA 

regulation nor will it affect the tools such as the use of general permits that the 

Corps implements for expeditious review and efficiency in processing permit 

applications for discharges of dredged and/or fill material into waters of the U.S. 

The rule will improve consistency and predictability for all CWA programs. The 

agencies believe with the clarity and certainty provided in the rule that there will be 

some efficiencies gained in making jurisdictional determinations for certain 

categories jurisdictional by rule. The Corps will develop the tools necessary to assist 

its staff with the jurisdictional determination process specific to section 404 in the 

implementation of the final rule to make the process predictable, efficient, and 

effective. The initial phase of implementing the rule will require education and 

training for agency staff as well as other stakeholders and the regulated public, 

which will include regionally-based training to ensure consistent and efficient 

implementation of the rule. 

Jil Tracy, State Representative 94th District (Doc. #19518)

12.1382 Most egregious is the fact that the rule throws into confusion extensive state 

regulation under various CWA programs. Implementation of this rule will have 

significant implications on most if not all of the 14 Statewide Permits authorized and 

under the administration of the Division of Water Resource Management, Illinois 

Department of Natural Resources. (p. 2)

Agency Response: States play a vital role in the implementation and enforcement 

of the Clean Water Act. Consistent with the CWA, states retain full authority to 

implement their own programs to more broadly and more fully protect the waters 

in their jurisdiction. Nothing in this rule limits or impedes any existing or future 

state efforts to further protect their waters. In fact, providing greater clarity 

regarding what waters are subject to CWA jurisdiction will reduce the need for 

permitting authorities, including the states with authorized section 402 and 404 

CWA permitting programs, to make jurisdictional determinations on a case-specific

basis. Please see summary response 12.3. Also, please see Compendium 11 and 

Economics Analysis Section 8 for an assessment of the costs and benefits for the 

CWA section 402 program. 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

849

Des Moines Water Works (Doc. #19663)

12.1383 Impaired Waters in Iowa

Congress and EPA’s continued failure to see non-point source pollution as within their 

regulatory authority is disconcerting. The real question should not be where regulators 

can regulate, but where is regulation needed to improve and protect water quality. 

Adoption of the Iowa Nutrient Reduction Strategy (INRS) is an exceptional example of 

regulatory procrastination. The INRS does not contain any timelines or goals to reach a 

45% nutrient reduction. While point sources (municipal, business and industry 

wastewater treatment facilities) are required to meet nutrient reduction through their 

regulation of permits, agricultural reduction of nitrate and phosphorous rely on voluntary 

implementation of conservation practices. In spite of a lack of commitment, funding, 

technical assistance and the threat of non-compliance with the INRS due to state and 

federal rulemakings – including the WOTUS rulemaking, EPA should not tout the INRS 

as an exemplary or progressive plan, when there are not measures or timelines and it can 

hold other rulemaking efforts hostage. Some of the largest agricultural organizations, in 

this case, the Iowa Farm Bureau Federation, are using scare tactics and half-truths to 

spread the perception that EPA and the Corps actions are comparable to a radical 

takeover of all things sacred to agriculture (Appendix F). These covert actions should be 

adamantly condemned. The failure of the INRS is already being blamed on WOTUS if 

adopted. What this boils down to is the usual and annoying battle between regulators and 

agriculture interests who continuously denounce any type of regulation. It is time for 

regulators to set numeric nutrient standards by watershed, Congress and state legislators 

to uphold their decision and enforce all entities that contribute pollution to a body of 

water in violation of the nutrient standard, and penalize those who obstruct their ability to 

regulate. (p. 3)

Agency Response: The final rule is a definitional rule that clarifies the scope of 

“waters of the United States” consistent with the Clean Water Act (CWA), Supreme 

Court precedent, and science. Programs established by the CWA, such as the 

section 402 National Pollution Discharge Elimination System (NPDES) permit 

program, the section 404 permit program for discharge of dredged or fill material,

and the section 311 oil spill prevention and clean-up programs, all rely on the 

definition of “waters of the United States.” Entities currently are, and will continue 

to be, regulated under these programs that protect “waters of the United States” 

from pollution and destruction. However, this rule does not alter the definitions of 

“discharge of a pollutant,” “pollutant,” or “point source.” Please see summary 

response 12.3. 

12.1384 Public Drinking Water Utility Concerns

As a public drinking water utility we are charged with protecting public health, 

supporting an economy that is vibrant, fire protection, and sustaining a good quality of 

life for consumers. Iowa citizens are counting on the new rule to protect the quality of 

water at their tap, flowing through their communities, and supporting their livelihoods. 

However, DMWW is concerned that additional permitting requirements will increase 

consumer cost and delay critical infrastructure projects. Any regulatory or geographic 

expansion of WOTUS has implications for additional permitting and review by the US 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

850

Fish and Wildlife Service through the Endangered Species Act or historic preservation 

agencies through the National Historic Preservation Act. Aside from the permit process 

itself, and additional scrutiny of projects will do little to protect water quality and has the 

potential to affect project schedules and increase consumer costs associated with permits, 

studies, and compensatory mitigation. Examples of projects are:

 Construction of road crossings over streams and wetlands

 Installation of maintenance of water lines in rivers and wetlands

 Installation of outfalls

 Installation of intakes

 Discharge of fill material into streams or wetlands for building pads

 Inundation of streams or wetlands with standing water by construction that 

obstructs surface channel flow

(p. 3 – 4)

Agency Response: See Summary Response. See the Economic Analysis for 

additional information on costs/benefits. The rule does not affect the regulatory 

requirements of the CWA for which authorization may be required for discharges 

of dredged and/or fill material into or other activities within waters of the U.S. In 

addition, the rule does not affect activities that are currently exempt from CWA 

regulation nor will it affect the tools such as the use of general permits that the 

Corps implements for expeditious review and efficiency in processing permit 

applications for discharges of dredged and/or fill material into waters of the U.S. 

The rule will improve consistency and predictability for all CWA programs. The 

agencies believe with the clarity and certainty provided in the rule that there will be 

some efficiencies gained in making jurisdictional determinations for certain 

categories jurisdictional by rule. The Corps will develop the tools necessary to assist 

its staff with the jurisdictional determination process specific to section 404 in the 

implementation of the final rule to make the process predictable, efficient, and 

effective. The initial phase of implementing the rule will require education and 

training for agency staff as well as other stakeholders and the regulated public, 

which will include regionally-based training to ensure consistent and efficient 

implementation of the rule.

Flood Control Water Agency, Santa Barbara County Public Works Department, Santa Barbara 

County, California (Doc. #20491)

12.1385 Increasing the regulatory burden will have many negative impacts and no tangible 

beneficial impacts. Increased regulation will increase the workload of the Corps of 

Engineers which will slow permit issuance for all projects. In addition, due to regulatory 

requirements, the cost of maintenance of these existing facilities will greatly increase and 

.impact ag6flcies already struggling to complete the needed work. Finally, many of these 

facilities are privately owned, (in Santa Barbara County and many others), and individual 

people or Homeowners Associations will not know these permits are needed, nor are 

these groups adept at procuring such permits. Agencies who receive 404 permits usually 

have an entire staffing unit of professionals who seek such permits and the burden of 

expecting homeowners to navigate this process is unjustified. (p. 1 – 2)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

851

Agency Response: See Summary Response. See the Economic Analysis for 

additional information on costs/benefits. The rule does not affect the provisions of 

the CWA for which authorization may be required for discharges of dredged and/or 

fill material into or other activities within waters of the U.S. In addition, the rule 

does not affect activities that are currently exempt from CWA regulation nor will it 

affect the tools such as the use of general permits that the Corps implements for 

expeditious review and efficiency in processing permit applications for discharges of 

dredged and/or fill material into waters of the U.S. The rule will improve 

predictability for all CWA programs. The agencies believe with the clarity and 

certainty provided in the rule that there will be some efficiencies gained in making 

jurisdictional determinations for certain categories jurisdictional by rule. The

Corps will develop the tools necessary to assist its staff with the jurisdictional 

determination process specific to section 404 in the implementation of the final rule 

to make the process predictable, efficient, and effective. The initial phase of 

implementing the rule will require education and training for agency staff as well as 

other stakeholders and the regulated public, which will include regionally-based 

training to ensure consistent and efficient implementation of the rule. 

Alpine County Board of Supervisors, County of Alpine, California (Doc. #20492)

12.1386 The changes to the definition of "Waters of the U.S." triggers new unfunded 

mandates on local governments by expanding federal jurisdiction

The term "navigable water" has a distinct meaning in the CWA and requires state and 

local government administrative and regulatory actions that can increase the scope and 

cost of permitting. Changes to the definition of tributary, as well as the inclusion of the 

vague and relatively undefined "adjacent waters," will likely alter the way many water 

bodies are regulated.

For example, a tributary defined as a Water of the U.S. under this rule would have to be 

added to the list of impaired waters in the state. Such a listing will trigger a number of 

cost-prohibitive requirements on local governments, including but not limited to: the 

development of a use attainability study; the identification of designated beneficial uses; 

the adoption of site specific water quality objectives; the application of and compliance 

with numeric effluent limits, and the potential for a Total Maximum Daily Load 

allocation. These additional requirements will make counties subject to additional 

enforcement actions - including civil and criminal penalties - and place local 

governments at great risk of third-party litigation. (p. 1)

Agency Response: The scope of regulatory jurisdiction in this rule is narrower 

than that under the existing regulation. Fewer waters will be defined as “waters of 

the United States” under the rule than under the existing regulations, in part 

because the rule puts important qualifiers on some existing categories such as 

tributaries. Please see summary response 12.3.

12.1387 (...) California has imposed stricter standards on all storm water permittees, 

including MS4 permit holders, and the proposed rule as it stands would only serve to 

exacerbate the already difficult task of compliance for rural counties in our State by 

causing jurisdictional confusion and dramatically increased compliance costs. Many rural 

California counties have either recently been required to comply with the MS4 permit, or 
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

852

will be required to comply within the next permit cycle. The implementation costs for 

new permittees would increase exponentially if the proposed rule is not modified to 

include clarification and exemptions for MS4 permit holders. (p. 2)

Agency Response: Please see summary response 7.4.4. 

ATTACHMENTS AND REFERENCES

Comments included above in this document discuss the Proposed Rule, and some include 

citations to various attachments and references, which are listed below. The agencies do not 

respond to the attachments or references themselves, rather the agencies have responded to the 

substantive comments themselves above, as well as in other locations in the administrative 

record for this rule (e.g., the preamble to the final rule, the Technical Support Document, 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:

Appendix A: Comments on notice of availability regarding the exemption from permitting under 

section 404f1a of the clean water act to certain agricultural conservation practices (Doc. 

#15403, p.12)

Copy of since removed version of Q&A document indicating that existing jurisdictional 

determinations will not be disturbed (Doc. #14285, p. 55)

Exhibit 9 (Doc. #17921.2, p. 248)

Exhibit 16 (Doc. #17921.15, p. 41)

Exhibit 17 (Doc. #17921.15, p. 44)

Exhibit 21 (Doc. #17921.15, p. 95)

Parkhurst, B.R. Comments on U.S. Environmental Protection Agency’s (2013) Draft Report 

“Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of 

the Scientific Evidence,” prepared for Arizona Mining Association, Phoenix, AZ, November 

5, 2013. (Doc. #13951, p. 13)

Stoner, N. Letter, May 5, 2014 (Doc. #3536, p. 5)

Topographic Maps (Doc. 18864, p. 35-38)

Vitter, D. Letter, May 20, 2014 (Doc. #3536, p. 6)

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.
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

853

33 U.S.C. § 1251(a). Doc. #15010, p. 2)

Alaska Department of Fish and Game, Catalog of Waters Important for the Spawning, Rearing 

or Migration of Anadromous Fishes, available at: 

http://www.adfg.alaska.gov/sf/SARR/AWC/index.cfm?ADFG=main.overview (Doc. 

#19465, p. 20).

Baader, Jennifer L. Permits for Puddles?: The Constitutionality and Necessity of Proposed 

Agency Guidance Clarifying Clean Water Act Jurisdiction, 88 Chi.-Kent L. Rev. 621, 

622 (2013) (Doc. #15010, p. 3)

BOR 2008 Guidance Comments, at pp. 3 and 4. (Doc. #19461, p. 10)

The Brattle Group. “Review of 2014 EPA Economic Analysis of Proposed Revised Definition of 

Waters of the U.S.” May 15, 2014. Available at: http://www.brattle.com/news/-andknowledge/publications/archive/2014. (Doc. #13024, p. 14)

Central Arizona Project, Action Brief: Discussion and Consideration of Action to Adopt Position 

on the Proposed Rule, ‘Definition of Waters of the United States Under the Clean Water Act’

(the ‘Proposed Rule’) (June 5, 2014), http://www.cap-az.com/documents/meetings/06-05-

2014/6.%20%20Clean%20Water%20Act%20060514.pdf. (Doc. #17921.1, p. 78)

Congressional Research Service, January 30, 2012; The Army Corps of Engineers’ Nationwide 

Permits Program: Issues and Regulatory Developments; Copeland, Claudia, p.2, available at 

http://www.fas.org/sgp/crs/natsec/97-223.pdf (Doc. #15401, p. 5)

Department of Water Resources Report on 1956 Cooperative Study program - Water Use and 

Water Rights Along Sacramento River and in Sacramento-San Joaquin Delta, Vol. 1 (March 

1957) (Doc. #12858, p. 4)

Digital Data Base of Lakes on the North Slope, Alaska. 1986. U.S. Geological Survey WaterResources Investigations Report 86-4143. (Doc. #10538, p. 9)

Dougherty, S.T., S. Russo, and D. Freeman. 2010. A Successful Strategy for Environmental 

Permitting of an Aggressively Scheduled Major Water Project. Proceedings of the American 

Society of Civil Engineers, Pipeline 2010 Conference, Keystone, CO. (Doc. #14914, p. 5; 

Doc. #15178.1, p. 7)

Duncan, D. G. and K.L. McGrath, EPA and U.S. Army Corps Seek to Expand Jurisdiction Under 

the Clean Water Act, Engage Volume 13, Issue 1 (March 2012), 

http://www.fedsoc.org/publications/detail/epa-and-us-army-corps-seek-to-expandjurisdiction-under-the-clean-wateract. (Doc. #14136.1, p. 13-14)

E&E’s Greenwire publication and entitled “Bed, bank and beyond: EPA rule proposal stumps 

arid Ariz.” Available at http://www.eenews.net/stories/1060007241 (Doc. #14285, p. 46)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

854

Fact Sheet on the National Costs of the Total Maximum Daily Load Program (Draft Report) 

(Aug. 1, 2001), EPA 841-F-01-004. Available at: 

http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/costfact.cfm.

Lichvar and McColley, A Field Guide to the Identification of the Ordinary High Water Mark 

(OHWM) in the Arid West Region of the Western United States: A Delineation Manual 

(August 2008) (Doc. #14258, p. 16; Doc. #14914, p. 15)

EPA, Economic Analysis of Proposed Revised Definition of Waters of the United States, at 10 

(March 2014) (hereinafter, EPA Economic Analysis), available at 

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OW-2011-0880-0003 (Doc. 

#19540, p. 119)

EPA, Greening CSO Plans: Planning and Modeling Green Infrastructure for Combined Sewer 

Overflow Control, No. 832-R-14-001 (Mar. 2014), available at 

http://water.epa.gov/infrastructure/greeninfrastructure/upload/Greening_CSO_Plans.PDF. 

(Doc. #17921.1, p. 76)

EPA SAB letter to Administrator McCarthy, SAB Review of the Draft EPA Report Connectivity 

of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific 

Evidence (October 17, 2014) (SAB Connectivity Peer Review Letter) at: 

http://yosemite.epa.gov/sab/sabproduct.nsf/fedrgstr_activites/AF1A28537854F8AB85257D7

4005003D2/$File/EPA-SAB-15-001+unsigned.pdf

EPA Science Advisory Board Panel for the Review of the EPA Water Body Connectivity Report 

(EPA SAB Panel). 2014. Memorandum from Dr. Amanda D. Rodewald to Dr. David Allen, 

Re: Comments to the chartered SAB on the Adequacy of the Scientific and Technical Basis 

of the Proposed Rule Titled “Definition of ‘Waters of the United States’ Under the Clean 

Water Act.” September 2. (Doc. #15178.1, p. 32)

EPA, Watershed Assessment, Tracking & Results, National Summary of State Information, 

available at http://ofmpub.epa.gov/waters10/attains_nation_cy.control. (Doc. #16413, p. 6)

Executive Order 13563: Improving Regulation and Regulatory Review. Signed January 18, 

2011. http://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf (Doc. #13024, p. 

15)

Exhibit 2. Letter from Army Corps of Engineers to TCA finding that the proposed Tesoro 

Extension would not occur within waters of the United States. (Doc. #16897, p. 2)

Frohn, R.C., M. Reif, C. Lane, and B. Autrey. 2009. Satellite remote sensing of isolated wetlands 

using object-oriented classification of Landsat-7 data. Wetlands 29:931-941. (Doc. #11014, 

p. 72)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

855

General Accounting Office, Report to the Chairman, Subcommittee on Energy Policy, Natural 

Resources and Regulating Affairs, Committee on Reform, House of Representatives, Waters 

and Wetlands: Corps of Engineers Needs to Evaluate Its District Office Practices in 

Determining Jurisdiction (GAO-04-297), at pp. 3-4 (Feb. 2004). (Doc. #14258, p. 17)

Hall, J.V., W.E. Frayer and B.O. Willen, Status of Alaska Wetlands at 3 (U.S. Fish and Wildlife 

Service 1994) available at

http://www.fws.gov/wetlands/_documents/gSandT/StateRegionalReports/StatusAlaskaWetla

nds.pdf (Doc. #15038, p. 4; Doc. #19465, p. 21)

http://anrcatalog.ucdavis.edu/pdf/8055.pdf (Univ. of California) (Doc. #16413, p.7)

http://www.cals.ncsu.edu/wq/wqp/wqpollutants/nutrients/factsheets/FactsheetNM1.pdf (North 

Carolina) (Doc. #16413, p.7)

http://ucanr.edu/sites/UCCE_LR/files/180590.pdf (California) (Doc. #16413, p.7)

http://www.cap-az.com/. (Doc. #17921.1, p. 78; Doc. #19540, p. 121)

http://www.deq.utah.gov/FactSheets/docs/handouts/nutrients.pdf (Utah) (Doc. #16413, p.7)

http://www.epa.gov/compliance/data/planning/priorities/cwacafo.html [Webarchive]; See also, 

e.g., http://www.epa.gov/compliance/resources/publications/data/planning/priorities 

/fy2008priori tycwacafo.pdf. (Doc. #16413, p. 7)

http://www2.epa.gov/nutrientpollution/where-occurs--akes-and-rivers (EPA) (Doc. #16413, p.7)

http://www2.epa.gov/sites/production/files/2014-09/documents/facts_about_wotus.pdf (page 4) 

(last visited on October 2, 2014) (Doc. #14132, p. 7)

http://water.epa.gov/type/rsl/monitoring/upload/EPA-MARB-Fact-Sheet-112911_508.pdf (EPA) 

(Doc. #16413, p.7)

http://epa.ohio.gov/Portals/35/visioning_workshop/Ohio%20Nutrient%20Fact%20Sheet.pdf

(Ohio) (Doc. #16413, p.7)

http://www.epa.state.il.us/water/nutrient/ (Illinois) (Doc. #16413, p.7)

http://geo.usace.army.mil/egis/f?p=340:6:0::N0 (Doc. #16897, p. 2)

http://www.iowapolicyproject.org/2010docs/100927-nutrients.pdf (Iowa) (Doc. #16413, p.7)

http://www.mass.gov/eea/docs/dep/water/drinking/alpha/i-thru-z/manure.pdf(Massachusetts)

(Doc. #16413, p.7)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

856

(http://midwestadvocates.org/assets/resources/nutrient_pollution_factsheet.pdf Gulf) (Doc. 

#16413, p.7)

http://moritz.botany.ut.ee/~olli/eutrsem/Howarth02.pdf (Coastal Waters) (Doc. #16413, p.7)

http://www.nnyagdev.org/PDF/NNYPFacts1w.pdf (New York) (Doc. #16413, p.7)

http://portal.ncdenr.org/c/document_library/get_file?uuid=2eddbd59-b382-4b58-97edc4049bf4e8e4&groupId=38364 (Cape Fear River) (Doc. #16413, p.7)

http://portal.ncdenr.org/c/document_library/get_file?uuid=e438d6bc--‐d147-4d7b-8224-

08e5a7c74b86&groupId=38364 and 

http://portal.ncdenr.org/c/document_library/get_file?uuid=48bc46d8‐c344‐4f07-a656-

7a211157c985&groupId=38364 (Neuse River) (Doc. #16413, p.7)

http://portal.ncdenr.org/c/document_library/get_file?uuid=b4f40c70-fc0f-4bd7-b4a1-

b34dd7794f99&groupId=38364 and 

http://portal.ncdenr.org/c/document_library/get_file?uuid=12436e58-83ba-41bf-bcacd2fe4aa2b60c&groupId=38364 (Tar‐Pamlico River) (Doc. #16413, p.7)

http://pubs.usgs.gov/fs/fs218-96/ (USGS) (Doc. #16413, p.7)

http://water.epa.gov/polwaste/nps/agriculture_facts.cfm (EPA) (Doc. #16413, p.7)

Ice, G.G. and D. Binkley. 2003. Forest stream water concentrations of nitrogen and phosphorus: 

A comparison with EPA’s proposed water quality criteria. J. For. 101(1):21-28. (Doc. 

#15075, p. 4)

Ice, G. and B. Sugden. 2003. Summer dissolved oxygen concentrations in forested streams of 

northern Louisiana. South. J. Appl. For. 27(2):92-99. (Doc. #15075, p. 4)

Lane, C.R. and E. D’Amico. 2010. Calculating the ecosystem service of water storage in isolated 

wetlands using LiDAR in north central Florida. Wetlands 30:967-977. (Doc. #11014, p. 73)

Lang, M., O. McDonough, G. McCarty, R. Oesterling, and B. Wilen. 2012. Enhanced detection 

of wetland-stream connectivity using LiDAR. Wetlands 32:461-473. (Doc. #11014, p. 73)

Lang, M., G. McCarty, R. Oesterling, and I.Y. Yeo. 2013. Topographic metrics for improved 

mapping of forested plains. Wetlands 33:141-155. (Doc. #11014, p. 73)

Letter from Craig Hill, President, Iowa Farm Bureau, to Ken Kopocis, Deputy Assistant 

Administrator, U.S. EPA Office of Water (Sept. 29, 2014) 

(http://www.regulations.gov/#!documentDetail;D=EPAHQ-OW-2011-0880-7633). (Doc. 

#18005, p. 15)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

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Letter from Justin Cutler, Project Manager, Delta Office, Corps Sacramento Dist., to James 

Gibson, Gibson & Skordal at 1 (Aug. 24, 2000); Letter from James Gibson, Gibson & 

Skordal, to Justin Cutler, Project Manager, Delta Office, Corps Sacramento Dist. at 3 (Aug. 

17, 2000). (Doc. #15016, p. 89)

Letter from Michael S. Jewell, Chief, California/Nevada Section, Corps Sacramento Dist., to 

James Gibson, Gibson & Skordal at 1 (Aug. 13, 2001). (Doc. #15016, p. 89)

Letter to Nancy Stoner, Acting Assistant Administrator of Water, USEPA from Sam Brownback, 

Governor of Kansas (July 14, 2011). (Doc. #18864, p. 11)

Lichvar, R.W. and S.M. McColley. 2008. A Field Guide to the Identification of the Ordinary 

High Water Mark (OHWM) in the Arid West Region of the Western United States. A 

Delineation Manual. ERDC/CRREL TR-08-12. (Doc. #14914, p. 12; Doc. #15178.1, p. 31)

Martin, G.I., L.K. Kirkman, and J. Hepinstall-Cymerman. 2012. Mapping geographically 

isolated wetlands in the Dougherty Plain, Georgia, U.S.A. Wetlands 32:149-160. (Doc. 

#11014, p. 73)

Meltz, R. and C. Copeland, “The Wetlands Coverage of the Clean Water Act (CWA): Rapanos 

and Beyond” at 11 (Congressional Research Service, September 2014) 

http://nationalaglawcenter.org/wp-content/uploads/assets/crs/RL33263.pdf (Doc. #14946, p. 

2)

Memorandum from Gary S. Guzy, Gen. Counsel, EPA, and Robert M. Andersen, Chief Counsel, 

Corps, to EPA Assistant Adm’r for Water, et al., “Supreme Court Ruling Concerning CWA 

Jurisdiction Over Isolated Waters” (Jan. 19, 2011) (providing the Agencies’ interpretation of 

SWANCC). (Doc. #15016, p. 89)

Nancy Stoner blog entry, Setting the Record Straight on Waters of the U.S. (June 30, 2014) 

http://blog.epa.gov/epaconnect/2014/06/setting-the-record-straight-on-wous/ (June 30, 2014) 

(Doc. #17921.1, p. 91, Doc. #19540, p. 131; Doc. #16897. p. 2)

North California River Watch v. City of Healdsburg, No. 04-15442, (2006); Idaho Rural Council 

v. Bosma, 143 F.Supp. 1169, 1180 (D. Idaho 2001); United States v. Banks, 115 F.3d 916 

(11th Cir. 1997); Friends of Santa Fe County v. LAC Minerals, 892 F. Supp. 1333, 1357 

(D.N.M. 1995); Washington Wilderness Coalition v. Hecla Mining Co., 870 F. Supp. 

983,989 (E.D. Wash. 1994); Sierra Club v. Colorado Refining Co., 838 F. Supp. 1428, 

1434 (D.Colo. 1993). United States Steel Corp. v. Train, 556 F.2d 822(7th Cir. 1977). 

Southern Environmental Law Center just gave notice to Duke Energy that it plans to 

enforce CWA to clean up coal ash pits on the Cape Fear River. (Doc. #8323, p. 4)

Petrie, M., M. Brasher, AND D. James. 2014. Estimating the biological and economic 

contributions that rice habitats make in support of North American Waterfowl. The Rice 

Foundation, Stuttgart, Arkansas, USA. (Doc. #11014, p. 10)
Clean Water Rule Response to Comments – Topic 12: Implementation Issues

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Rapanos v. United States, 547 U.S. 715, 739, 126 S. Ct. 2208, 2225, 165 L. Ed. 2d 159 (2006). 

(Doc. #15010, p. 5)

Rodgers, ENVIRONMENTAL LAW, 804, FN 25 (referencing the creation of subsection 101(b) 

of S. 1075: the Senate passed the language, “Congress recognizes that each person has a 

fundamental and inalienable right to a healthful environment; the House reworded that 

language for the final bill. Comm. Of Conference, National Environmental Policy Act of 

1969, H.R.Rep. No. 765, 91st Cong., 1st Sess. 8 (1969)). (Doc. #15010, p. 2)

Selcraig, Bruce. What is a Wetland?, Sierra, pp.44-49 (May/June 1996). (Doc. #15010, p. 2)

State Constraints – State-Imposed Limitations on the Authority of Agencies to Regulate Waters 

Beyond the Scope of the Federal Clean Water Act. 2013. Environmental Law Institute (Doc. 

#14579, p. 2)

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Clean Water Rule Response to Comments – Topic 12: Implementation Issues

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