^ PRO"*^
Economic Analysis for the
Proposed Revised Definition
A/aters of the United States"
U.S. Environmental Protection Agency
and
Department of the Army
December 14, 2018
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Contents
Table of Contents
Table of Contents ii
List of Tables iv
List of Figures viii
Abbreviations ix
Executive Summary xi
I. Introduction and Overview 1
I.A Summary of the Potential Changes in CWA Jurisdiction Due to the Proposed Rule 2
I.A.I The 2015 Rule 2
I.A.2 Alternate Baseline of Pre-2015 Practice 3
I.A.3 The Proposed Rule 6
I.A.4 Comparison of Scope of Jurisdiction between the 2015 Rule, the Pre-2015 Practice, and the
Proposed Rule 8
I.A.5 Summary 23
I.B Overview of Economic Analysis 24
II. Discussion and Analyses of the Major Causes of Uncertainty 27
II.A Potential State and Tribal Regulator Response 30
II. A. 1 Implementation of the CWA at the State Level 30
II.A.2 Environmental Federalism 35
II.A.3 State Response Categories 39
II.B Response of Regulated Entities 46
II.C Data and Analytic Uncertainties 46
III. Stage 1 Analyses: CWA Jurisdictional Change from the 2015 Rule to the Pre-2015 Practice 52
III.A Summary of the Analyses Used in the 2015 Rule and its 2017 Proposed Repeal 52
III.B Potential Biases in the 2015 Rule and its 2017 Proposed Repeal 53
III.C Updated Analysis of the Repeal of the 2015 Rule 56
III.C. 1 Incorporation of State Responses 56
III.C.2 Wetland Mitigation Valuations Methods 59
III.C.3 Disaggregation of Costs and Benefits by State 79
III.C.4 Adjustment of Values from a Base Year of 2014 to 2017 81
III.C.5 Improved Estimate of the High End of the Cost Savings for CWA Section 404 Permit
Application 81
III.C.6 Results and Discussion 81
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IV. Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
84
IV. A Qualitative Assessment of Effects on CWA Programs 84
IV.A. 1 Section 402: National Pollutant Discharge Elimination System 84
IV.A.2 Section 404: Discharge of Dredged or Fill Material 94
IV.A.3 Section 311: Oil Spill Prevention, Preparedness, Reporting and Response 103
IV.A.4 Other CWA Parts 119
IV.B Case Studies 122
IV.B.l Methods 124
IV.B.2 Case Study 1: Ohio River Basin 135
IV.B.3 Case Study 2: Lower Missouri River Basin 164
IV.B.4 Case Study 3: Rio Grande River Basin 184
IV.B.5 Limitations and Uncertainty of Case Study Analyses 196
IV.B.6 Discussion of Case Study Analysis Findings 201
IV.C Stage 2 Quantitative Assessment of National Impacts 204
V. Regulatory Flexibility Act (RFA) Analysis 209
V.A Entities Regulated under Clean Water Act Programs 209
V.B Entities Impacted by Changes in Ecosystem Services 211
V.C Entities Impacted by Changes in Mitigation Demand 212
V. D Conclusion 213
VI. References 214
Appendix A: Mapped NHD Stream Mileage and NWI Wetland Acreage by State 219
Appendix B: Revised Step 1 Analysis - Additional Scenarios 222
Appendix C: Current CWA Section 404 Permit Impacts by State 223
Appendix D: SWAT Modeling Results 225
Appendix E: Sensitivity Analyses 232
Appendix F: Stage 2 Analysis State-level Results 276
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised ) iii
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Contents
List of Tables
Table II-1: Dredged/fill categorization criteria 40
Table II-2: Dredged/Fill regulation criteria and likely-response category 41
Table II-3: Surface water discharge permitting categorization criteria 43
Table II-4: Surface water regulation criteria and likely-response category 44
Table III-l: Treatment of the effect of state response on cost and benefits in the sensitivity analysis 59
Table III-2: Summary of wetland benefit studies used to generate WTP estimates in the 2015 Rule
analysis 66
Table III-3: Summary of wetland benefit studies used in the current analysis 69
Table III-4: Estimated total WTP by state using unit value transfers 70
Table III-5: Studies used in the freshwater only meta-regression model in Moeltner et al. (2018) 71
Table III-6: Meta-regression variable summary from Moeltner et al. (2018)1 72
Table III-7: Meta-regression results from Moeltner et al. (2018) 73
Table III-8: State-specific benefit transfer variables 74
Table III-9: Unit and meta-analysis based transfer results by state 77
Table 111-10: Scenario 1 - Estimates of avoided costs and forgone benefits excluding the impact from
states that are likely to continue their baseline dredged/fill and other surface water permitting
practices 81
Table III-l 1: Scenario 2 - Estimates of avoided costs and forgone benefits excluding the impact from
states that may continue their baseline dredged/fill and surface water permitting practices 82
Table 111-12: Scenario 3 - Estimates of avoided costs and forgone benefits only including the impact from
states that are likely to reduce their baseline dredged/fill and surface water permitting practices 83
Table IV-1: Estimated number of NPDES permits by EPA region 85
Table IV-2: Authorized impact area of CWA section 404 permits issued in 2011-2015, by project type . 96
Table IV-3: Authorized impact area of CWA section 404 permits issued in 2011-2015, excluding
mitigation type permits and permits affecting resources categorized as "ocean" or "tidal." 98
Table IV-4: Estimated number of facilities subject to SPCC in 2016 104
Table IV-5: Number of active FRP facilities by EPA region 105
Table IV-6: Estimated annualized per-facility SPCC compliance costs, by facility type and size (2017$)
110
Table IV-7: Estimated per-facility FRP compliance costs (2017$) 114
Table IV-8: Criteria used to identify waters affected by CWA program activities that may change
jurisdictional status under the proposed rule 131
Table IV-9: Hydrographic profile of case study watersheds in the Ohio River Basin 137
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Table IV-10: Section 402 individual permits (SIC codes in parentheses) issued in case study watersheds
in the Ohio River Basin 138
Table IV-11: Section 404 permits issued in case study watersheds in the Ohio River Basin (2011-2015)
140
Table IV-12: Estimated changes in average mitigation required per year in the Ohio River Basin, by
policy scenario 142
Table IV-13: Average annual reduction in 404 permit application costs in the Ohio River Basin 144
Table IV-14: Annual cost savings (2017$) of reduced mitigation requirements in the Ohio River Basin
resulting from the proposed definitional change, by policy scenario 145
Table IV-15: Total estimated annual cost savings in the Ohio River Basin (Millions 2017$) 146
Table IV-16: Annualized forgone benefits (Millions 2017$) of lost mitigation requirements in the Ohio
River Basin resulting from the proposed definitional change, by policy scenario (3% Discount Rate)
150
Table IV-17: Annualized forgone benefits (Millions 2017$) of lost mitigation requirements in the Ohio
River Basin resulting from the proposed definitional change, by policy scenario (7% Discount Rate)
150
Table IV-18: Summary of SWAT models used to estimate water quality impacts of the proposed rule in
the Ohio River basin 153
Table IV-19: Summary of 404 program activities in Ohio River Basin SWAT models for permits with
permanent or temporary impacts to waters potentially affected by the proposed rule and with
mitigation requirements over 20-year analysis period. Modeled scenario considers permanent
impacts only 154
Table IV-20: Summary of land use changes in Ohio River Basin SWAT watersheds resulting from 404
permits with permanent impacts to waters potentially affected by the proposed rule and with
mitigation requirements, under baseline scenario 156
Table IV-21: Summary of land use changes in Ohio River Basin SWAT watersheds resulting from 404
permits with permanent impacts to waters potentially affected by the proposed rule and with
mitigation requirements, under Policy scenario 157
Table IV-22: Summary of basin-level annual average water balance and constituent transport in Ohio
River Basin SWAT watersheds 157
Table IV-23: Estimated change in annual average subbasin water balance and constituent transport in
SWAT watershed HUC 0509 158
Table IV-24: Estimated change in annual average subbasin water balance and constituent transport in
SWAT watershed HUC 0510 158
Table IV-25: Summary of predicted changes in loads transported by HUC 12 reaches and in-stream
concentrations within the SWAT watersheds for the Ohio River Basin 160
Table IV-26: Predicted changes in annual average loads delivered to the outlet of Ohio River Basin
SWAT watersheds 160
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Table IV-27: Impacts to modeled reaches with public drinking water intakes under the proposed rule in
the Ohio River Basin SWAT watersheds 161
Table IV-28: Summary of predicted net sediment depositions in reservoirs in the Ohio River Basin
(tons/year) in 2040 162
Table IV-29: Annualized dredging cost changes in Ohio River Basin (2017$ thousands) 163
Table IV-30: Hydrographic profile of case study watersheds in the Lower Missouri River Basin 167
Table IV-31: Section 402 individual permits (SIC codes in parentheses) issued in case study watersheds
in the Lower Missouri River Basin 167
Table IV-32: Section 404 permits issued in case study watersheds in the Lower Missouri River Basin
(201 1-2015) 169
Table IV-33: Estimated changes in average mitigation required per year in the Lower Missouri River
Basin, by policy scenario 170
Table IV-34: Average annual reduction in 404 permit application costs in the Lower Missouri River Basin
171
Table IV-35: Annual cost savings (2017$) of reduced mitigation requirements in the Lower Missouri
River Basin resulting from the proposed definitional change, by policy scenario 172
Table IV-36: Total annual estimated cost savings in the Lower Missouri River Basin (Millions 2017$) 173
Table IV-37: Annualized forgone benefits (Millions 2017$) of lost mitigation requirements in the Lower
Missouri River Basin resulting from the proposed definitional change, by policy scenario (3%
Discount Rate) 175
Table IV-38: Annualized forgone benefits (Millions 2017$) of lost mitigation requirements in the Lower
Missouri River Basin resulting from the proposed definitional change, by policy scenario (7%
Discount Rate) 176
Table IV-39: Summary of SWAT models used to estimate water quality impacts of the proposed rule in
the Missouri River basin 177
Table IV-40: Summary of 404 Program activities in Missouri River Basin SWAT models for permits with
permanent or temporary impacts to waters potentially affected by the proposed rule and with
mitigation requirements over 20-year analysis period. Modeled scenario considers permanent
impacts only 178
Table IV-41: Summary of land use changes in Missouri River Basin SWAT watersheds resulting from
404 permits with permanent impacts to waters affected by the proposed rule and with mitigation
requirements, under Baseline scenario 179
Table IV-42: Summary of land use changes in Missouri River Basin SWAT watersheds resulting from
404 permits with permanent impacts to waters affected by the proposed rule and with mitigation
requirements, under Policy scenario 179
Table IV-43: Summary of basin-level annual average water balance and constituent transport in Missouri
River Basin SWAT watersheds 180
Table IV-44: Estimated change in annual average subbasin water balance and constituent transport in
SWAT watershed HUC 1025 180
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Table IV-45: Estimated change in annual average subbasin water balance and constituent transport in
SWAT watershed I Il ( 1027 180
Table IV-46: Summary of predicted changes in loads transported by HUC12 reaches and in-stream
concentrations within the SWAT watersheds for the Missouri River Basin 181
Table IV-47: Predicted changes in annual average loads delivered to the outlet of Missouri River Basin
SWAT watersheds 182
Table IV-48: Drinking Water Intakes in Lower Missouri River Study Areas 183
Table IV-49: Summary of predicted net sediment depositions in reservoirs in the Missouri River Basin
(tons/year) in 2040 183
Table IV-50: Hydrographic profile of case study watersheds in the Rio Grande River Basin 187
Table IV-51: Section 402 individual permits (SIC codes in parentheses) issued in case study watersheds
in the Rio Grande River Basin 187
Table IV-52: Section 404 permits issued in case study watersheds in the Rio Grande River Basin (2011-
2015) 189
Table IV-53: Average annual reduction in 404 permit application costs in the Rio Grande River Basin 191
Table IV-54: Proximity of waters to active oil production wells in the Upper and Lower Pecos watersheds
193
Table IV-55: Public drinking water intakes in the Upper and Lower Pecos watersheds 194
Table IV-56: Scenario 0 — Potential impacts, cost savings, and forgone benefits in the Case Study areas
excluding the impact from states that may continue their baseline dredged/fill and surface water
permitting practices 201
Table IV-57: Scenario 1 —Potential impacts, cost savings, and forgone benefits in the Case Study areas
excluding the impact from states that may continue their baseline dredged/fill and surface water
permitting practices 202
Table IV-58: Scenario 2 & 3 —Potential impacts, cost savings, and forgone benefits in the Case Study
areas excluding the impact from states that may continue their baseline dredged/fill and surface
water permitting practices 203
Table IV-59: National average annual reduction in 404 permit application costs 205
Table IV-60: National average annual cost savings of reduced mitigation requirements resulting from the
proposed definitional change 206
Table IV-61: Total national estimated annual cost savings (Millions 2017$) 207
Table IV-62: Total national forgone benefit estimate of reduced mitigation requirements resulting from
the proposed definitional change, by policy scenario 208
Table V-l: CWA 404 Program NAICS Categories 210
Table V-2: CWA 311 Program NAICS Categories 211
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Contents
List of Figures
Figure II-1: Stylized tree diagram of potential impacts from proposed rule 28
Figure IV-1: Potential effects of the proposed rule on CWA section 402 program 89
Figure IV-2. Potential effects of the proposed rule on CWA section 404 program 102
Figure IV-3: Potential effects of the proposed rule on CWA section 311 SPCC program 109
Figure IV-4: Potential effects of the proposed rule on CWA section 311 FRP program 115
Figure IV-5: Potential effects of the proposed rule on CWA section 311 oil spill response and removals,
funding sources, and other requirements 118
Figure IV-6: HUC4 case study locations compared to states potential responses to CWA jurisdictional
changes - section 402 program 123
Figure IV-7: HUC4 case study locations compared to states potential responses to CWA jurisdictional
changes - section 404 program 123
Figure IV-8: Case study analysis components and input data 125
Figure IV-9: Overview of potential environmental impacts to selected CWA programs from proposed
changes in CWA jurisdiction for certain waters 133
Figure IV-10: Map of HUC 0509 - Middle portion of the Ohio River Basin showing high-resolution
NHD water features and NWI wetlands in relation to state boundaries, populated areas, and major
roads 135
Figure IV-11: Map ofHUC 0510 - Licking and Kentucky River Basins showing high-resolution NHD
water features and NWI wetlands in relation to state boundaries, populated areas, and major roads.
136
Figure IV-12: Locations of households included in the forgone benefits analysis for HUC 0509 148
Figure IV-13: Locations of households included in the forgone benefits analysis for HUC 0510 148
Figure IV-14: Map ofHUC 1025 - Republican River Basin showing high-resolution NHD water features
and NWI wetlands in relation to state boundaries, populated areas, and major roads 165
Figure IV-15: Map ofHUC 1027 - Kansas River Basin showing high-resolution NHD water features and
NWI wetlands in relation to state boundaries, populated areas, and major roads 166
Figure IV-16: Locations of households included in the forgone benefits analysis for HUC 1025 174
Figure IV-17: Locations of households included in the forgone benefits analysis for HUC 1027 175
Figure IV-18: Map ofHUC 1306 - Upper portion of the Pecos River Basin showing NHD water features
and NWI wetlands in relation to state boundaries, populated areas, and major roads 185
Figure IV-19: Map ofHUC 1307 - Lower portion of the Pecos River Basin showing NHD water features
and NWI wetlands in relation to state boundaries, populated areas, and major roads 186
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised ) viii
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Abbreviations
Abbreviations
AFVO
Animal fats and vegetable oils
BAT
Best Available Technology Economically Achievable
BMP
Best management practice
BPJ
Best professional judgment
BPT
Best Practicable Control Technology Currently Available
CAFO
Concentrated animal feeding operation
CWA
Clean Water Act
EA
Economic analysis
EO
Executive Order
ESA
Endangered Species Act
FOSC
Federal on-site coordinator
FR
Federal Register
FRP
Facility Response Plan
HUC
Hydrologic unit code
ICR
Information Collection Request
JD
Jurisdictional determination
LEDPA
Least environmentally damaging practicable alternative
MS4
Municipal Separate Storm Sewer System
MSGP
Multi-sector general permit
NCP
National Contingency Plan
NHD
National Hydrography Dataset
NOI
Notice of Intent
NPDES
National Pollutant Discharge Elimination System
NPFC
National Pollution Funds Center
NRC
National Response Center
NWI
National Wetlands Inventory
OMB
Office of Management and Budget
OPA
Oil Pollution Act of 1990
OSLTF
Oil Spill Liability Trust Fund
OSRO
Oil spill removal organization
PHMSA
Pipeline and Hazardous Materials Safety Administration
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I ix
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Abbreviations
PRA
Paperwork Reduction Act
Rapanos
Rapanos v. United States, 547 U.S. 715 (2006)
RFA
Regulatory Flexibility Act
RP
Responsible party
RPA
Resource and Programmatic Assessment
RPWWN
Wetlands adjacent to but not directly abutting relatively permanent waters
SAB
EPA's Science Advisory Board
SBA
Small Business Administration
SPCC
Spill Prevention, Control and Countermeasure
SWANCC
Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531
U.S. 159(2001)
SWAT
Soil and Water Assessment Tool
USACE
U.S. Army Corps of Engineers
U.S. EPA
U.S. Environmental Protection Agency
TAS
Treatment as State
TBEL
Technology-based effluent limit
TMDL
Total Maximum Daily Load
WLA
Wasteload allocation
WOTUS
Waters of the United States
WTP
Willingness to pay
WQBEL
Water quality-based effluent limit
WQS
Water quality standards
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I x
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Executive Summary
Executive Summary
The U.S. Environmental Protection Agency and Department of the Army ("the agencies") are proposing a
rule to revise the definition of the term "waters of the United States." "Waters of the United States" is a
foundational term establishing the jurisdictional scope of the Clean Water Act (CWA). The agencies are
proposing to establish six categories of jurisdictional waters and would define eleven exclusions for
features that would not be subject to CWA jurisdiction.
This Economic Analysis (EA) assesses the potential impacts of the proposed changes to the definition of
"waters of the United States" based on the potential effects to CWA programs that rely on the definition
of "waters of the United States." In this EA, the agencies describe how the proposed regulation compares
to the baseline of the Clean Water Rule: Definition of "Waters of the United States" (hereinafter referred
to as the 2015 Rule). 80 FR 37054 (June 29, 2015). The 2015 Rule is the current definition of "waters of
the United States" in the Code of Federal Regulation. However, as discussed further in the preamble of
this proposed rule, the 2015 Rule is enjoined in 28 states where the pre-2015 regulations are currently
being implemented. Therefore, the agencies also describe how the proposed regulation compares to an
alternate baseline of pre-2015 practice which represents the pre-2015 regulations as implemented
consistent with Supreme Court decisions and informed by applicable guidance documents and
longstanding agency practice. A separate Resource and Programmatic Assessment (available in Docket
No. EPA-HQ-OW-2018-0149) outlines the agencies' assessment of the potential effects of the proposed
definition on the regulation of aquatic resources across the country, as well as the potential effects on
CWA programs and certain other programs under other federal statutes. The RPA also provides snapshots
of the applicable regulatory and legal frameworks currently in place in states and some tribes to provide
context for how aquatic resources are regulated. The two documents together present a comprehensive
assessment of this proposed rule's potential impacts.
The agencies have applied a two-stage analysis for the economic analysis of this proposed rule to make
the best use of limited local and national level water resources information available and to inform
stakeholders and the public about the potential implications of these proposed actions. The agencies
confronted several data limitations that would not allow for a single analysis of the proposed rule from the
primary baseline directly to the proposed policy. Therefore, the agencies believe that the outputs of this
two-stage analysis are the best way to illustrate the potential impact of the proposed rule against the
baseline of the 2015 Rule being in effect nationwide (i.e., the sum effect of both stages) and of the 2015
Rule not being in effect (i.e.. second stage only).
The first stage (hereinafter Stage 1) assesses the potential impacts of moving from the 2015 Rule to the
pre-2015 baseline (i.e., repealing the 2015 Rule and recodifying the prior regulations). For the Stage 1
analysis, the agencies used the original 2015 Rule economic analysis as a starting point, and thus pursued
a quantitative assessment limited to Stage 1. However, several significant changes to the 2015 Rule
analysis have been made in the Stage 1 analysis to account for the incorporation of existing state laws and
programs that regulate water and potential state governance responses, as well as other analytic changes
incorporating better information in assessing the potential benefits and costs of the Stage 1 effects.
The second stage (hereafter Stage 2) examines the potential impacts of moving to a new definition under
the proposed rule from the pre-2015 baseline. Due to the analytic and data challenges discussed
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised ) xi
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Executive Summary
throughout, the agencies provide a series of qualitative analyses, three detailed case studies, and a national
analysis of the avoided costs and forgone benefits of the proposed change on the CWA 404 program in
the Stage 2 analysis. The agencies determined that a qualitative analysis and a series of case studies,
where waters potentially could be assessed on a smaller scale in specific locations, was the best available
alternative for applied empirical work estimating the potential benefits and costs of this proposed rule.
Focusing on smaller geographic scales allows the analyses to focus on areas with better than average data
availability, and when possible, to utilize additional location specific data sources. This economic analysis
begins by systematically outlining the complexity and various layers of uncertainty regarding the
potential implications of the proposed change in the CWA jurisdiction. The two main challenges faced by
the economic analysis include determining the level of water resource regulation undertaken by individual
states and tribes before and in response to the proposed change, and the difficulty in quantifying the
amount, type, and location of water resources that change CWA jurisdictional status. Each major
challenge and uncertainty and its implications for the costs and benefit of the proposed rule are discussed
in detail in this economic analysis.
Environmental Federalism
The agencies carefully examined the potential responses of the states based on the economics literature on
environmental federalism, the local provision of public goods, and federalism more broadly. The agencies
assessed current state programs and the insight they provide regarding predicting future plans under the
proposed CWA jurisdictional change. This revealed behavior, along with economic theory gleaned from
the literature, suggests how state governments could respond to the proposed shift in the regulatory
landscape. States have a continuum of responses to a change in CWA jurisdiction based on legal,
economic, and other constraints. These responses may differ depending on the type of water resources, as
well as across programs within a given state. The analysis considers CWA section 404 permitting and
other surface water quality programs separately because a state's responses to a change in jurisdiction
may differ between the two types of programs.
A state might choose to not regulate waters that now fall solely under its jurisdiction. In this case, the
agencies would expect avoided costs and forgone benefits. At the other end of the continuum are states
with regulations that are as broad or broader in scope than the CWA. In these states, the proposed change
in jurisdictional scope would have no cost or benefit implications. Many, if not most, states likely fall in
between these extremes. The federalism literature illustrates that states may actually be in a better position
than the federal government to regulate local environmental public goods (e.g., water quality). When
given more flexibility over which waters to regulate, states may be able to direct resources toward their
high priority waters and limit expenditures on their low priority waters, thereby maximizing the net
benefits derived from their waters.
Complicating the analysis are differences in state roles across CWA programs. While most states have
been authorized to administer at least some, if not all, parts of the CWA section 402 National Pollutant
Discharge Elimination System (NPDES) program, only two states have assumed administration of the
section 404 dredged and fill material program, and therefore, some states may lack the capacity to
administer the section 404 program or expand state dredged and fill permit programs that currently exist.
The agencies emphasize, however, that if states do make regulatory changes to maintain the previous
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised ) xii
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Executive Summary
federal baseline level of CWA jurisdiction then the states will likely incur some transition costs in the
short-run. The cost to states could be more or less than the cost to the federal government.
For state dredged and fill programs, state responses to the proposed change in CWA jurisdiction were
grouped into four possible categories based on how the state's laws may limit in some manner their
regulations of aquatic resources, how broadly they define their waters of the state, and whether they have
a state-level dredged and fill program.
Table ES-1: Dredged/fill categorization criteria
Category
State regulatory indicators
Likely response
1
State has broad legal limitations on regulating
aquatic resources
Likely to reduce regulatory practices
2
Does not have state-level dredged and fill
program; does not define waters of the state
more broadly than CWA; and does not have
broad legal limitations on regulating aquatic
resources.
State programs are likely to provide some
regulatory coverage of waters that would no
longer be "waters of the United States" and may
reduce aquatic resource permitting practices
3
Has either a state-level dredged and fill program
or defines waters of the state more broadly than
CWA; and does not have broad legal limitations
on regulating aquatic resources
State programs are likely to provide some
regulatory coverage of waters that would no
longer be "waters of the United States" and may
continue baseline permitting practices
4
Has a state-level dredged and fill program and
defines "waters of the state" more broadly than
CWA
Likely to continue dredged/fill permitting
practices in 2015 Rule
For state surface water programs, state responses to the proposed change in CWA jurisdiction were
grouped into three possible categories based on the state's legal limitations on regulating aquatic
resources, how broadly they define their waters of the state, and whether the state has NPDES
authorization.
Table ES-2: Surface water discharge permitting categorization criteria
Category
State regulatory indicators
Likely response
1
State does not define waters of the state more
broadly than CWA and has broad legal
limitations on regulating aquatic resources; or
state does not have NPDES authorization
Likely to reduce regulatory practices
2
NPDES-authorized state that either defines
waters of the state more broadly than CWA or
does not have broad legal limitations on
regulating aquatic resources
State programs may provide partial regulatory
or non-regulatory coverage of waters that
would no longer be "waters of the United
States" and may reduce surface water
permitting practices
3
NPDES-authorized state that defines waters of
the state more broadly than CWA and does not
have broad legal limitations on regulating
aquatic resources
State programs are likely to provide partial
regulatory coverage of waters that would no
longer be "waters of the United States" and may
continue regulatory practices in 2015 Rule
The dredged and fill and other surface water state response categories were then used to create a number
of possible state response scenarios for use in the Stage 1 and Stage 2 analysis. Scenario 0 is a lower
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I xiii
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Executive Summary
bound in which no states are assumed to regulate the newly non-jurisdictional waters and Scenario 3 is an
upper bound in which assumes the largest number of states would step in and regulate newly non-
jurisdictional waters. Table ES-3 lays out what is included in each scenario.
Table ES-3: Treatment of the effect of state response on cost and benefits in the sensitivity
analysis
Sensitivity analysis
Appendix
Scenario 1
Scenario 2
Scenario 3
Scenario 0
Scenario la
Change in baseline dredged and fill practices
1 - Likely reduce
Included
Included
Included
Included
Included
2 - May reduce
Included
Included
Excluded
Included
Included
3 - May continue
Included
Excluded
Excluded
Included
Excluded
4 - Likely continue
Excluded
Excluded
Excluded
Included
Excluded
Change in baseline surface water practices
1 - Likely reduce
Included
Included
Included
Included
Included
2 - May continue
Included
Excluded
Excluded
Included
Included
3 - Likely continue
Excluded
Excluded
Excluded
Included
Excluded
Data and Analytic Uncertainties
Limitations of the available data affected the agencies' ability to conduct national level analyses regarding
the potential effect of the proposed rule and contributed to uncertainty in results. The agencies attempted
to use the U.S. Geological Survey's National Hydrography Dataset (NHD) at high resolution and the U.S.
Fish and Wildlife Service's (U.S. FWS) National Wetlands Inventory (NWI) to estimate the potential
effect of the proposed rule on certain water types across the country. The datasets represent the best
national datasets of the potential location and extent of streams, rivers, lakes, ponds, and wetlands of
which the agencies are aware. However, because neither is a regulatory dataset, even where streams and
wetlands are identified in the datasets the question of CWA jurisdiction under both baselines and the
proposed rule often cannot be answered. For example, the proposed rule differentiates between
intermittent and ephemeral flow for purposes of federal regulatory jurisdiction under the CWA, but the
NHD generally does not differentiate between streams with intermittent or ephemeral flow in much of the
country. Likewise, the NWI does not contain information that would allow the agencies to identify
wetlands that meet or do not meet the baseline or proposed regulatory definitions of "adjacent wetlands,"
such as whether there is a berm between the wetland and the nearest river, and if so, what kind of surface
hydrologic connections, if any, are present. Please refer to the RPA for a more in-depth discussion of
these databases.
As a result, the agencies believe the best option for assessing the benefits and costs of the Proposed Rule
are to use an updated version of the 2015 Rule analysis for the Stage 1 analysis of this rule, and to rely on
qualitative discussions and three quantitative case studies, and a national analysis of the estimated
avoided costs and forgone benefits of the proposed change to the CWA 404 program for the Stage 2
analysis of this rule.
Stage 1: CWA jurisdictional change from the 2015 Rule to the Pre-2015 Practice
The Stage 1 analysis builds upon the analysis done for the 2015 Rule and its proposed repeal but makes
several significant changes and improvements. First among these improvements is consideration of
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potential state response to the proposed change in CWA jurisdiction previously discussed. Another
improvement made in the Stage 1 analysis is an updated wetlands benefits analysis. Because the wetlands
valuation analysis for the 2015 Rule did not follow a number of the best practices for benefit transfer, it
was deemed too uncertain to be include in the 2017 proposed repeal of the 2015 Rule. The Stage 1
analysis improves upon the 2015 analysis by utilizing a meta-analysis of wetland valuation studies that
combines and synthesizes the results from multiple valuations studies to estimate a new transfer function.
Meta-analyses have the advantage of drawing information on willingness to pay (WTP) from a large
number of disparate sources in order to control for a relatively large number of variables that influence
WTP. Because meta-analyses can control for the confounding attributes of the underlying studies in a
theoretically consistent way, it is sometimes possible to make use of a larger number of studies than
would be considered for a unit or function transfer.
The Stage 1 benefit and cost estimates are presented for each state response scenario. Scenario 1, which is
the most conservative federalism scenario in that it assumes the smallest number of states will take on the
regulation of newly non-jurisdictional waters, finds the proposed rule produces annual avoided costs
ranging between $98 and $164 million and forgone benefit ranging between $33 to $38 million.
Table ES-4: Estimates of avoided costs and forgone benefits of the potential CWA jurisdictional
change from the 2015 Rule to the Pre-2015 Practice excluding the impact from states that are
likely to continue the 2015 rule practices (Scenario 1)
Annual Avoided Costs
(2017$ millions)
Annual Forgone Benefits
(2017$ millions)
Low
High
Low
High
CWA 402 CAFO Administration
$0.1
$0.1
$1.7
$3.0
CWA 402 CAFO Implementation
$2.8
$2.8
CWA 402 Stormwater Administration
$0.1
$0.1
$14.2
$18.0
CWA 402 Stormwater Implementation
$14.3
$17.8
CWA 404 Permit Application
$15.7
$39.5
$16.7
$16.7
CWA 404 Mitigation - Wetlands
$37.7
$57.6
SUBTOTAL
$70.7
$117.8
$32.6
$37.7
CWA 311 Compliance
$7.3
$7.3
not quantified
not quantified
CWA 401 Administration
$0.4
$0.4
not quantified
not quantified
CWA 402 Pesticide General Permit
Implementation
$1.8
$2.0
not quantified
not quantified
CWA 404 Mitigation - Streams1
$18.0
$36.6
not quantified
not quantified
TOTAL
$98.2
$164.2
$32.6
$37.7
These results exclude the costs and benefits for 404 permit applications and wetland mitigation for states classified as response
category 4 for regulation of dredged or fill material, and they exclude the costs and benefits for all other categories for states
classified as response category 3 for other surface water regulation.
Stream mitigation benefits are not quantified in this Economic Analyses due to a lack of available studies estimating the value
of mitigation.
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Scenario 2 assumes a larger number of states will take actions to regulate newly non-jurisdictional waters.
Avoided annual costs range from $55 to $100 million and annual forgone benefits are estimated to be
roughly $16 to $17 million.
Table ES-5: Estimates of avoided costs and forgone benefits of the potential CWA jurisdictional
change from the 2015 Rule to the Pre-2015 Practice excluding the impact from states that are
likely to continue the 2015 rule practices (Scenario 2)
Annual Avoided Costs
(2017$ millions)
Annual Forgone Benefits
(2017$ millions)
Low
High
Low
High
CWA 402 CAFO Administration
$0.0
$0.0
$0.3
$0.6
CWA 402 CAFO Implementation
$0.5
$0.5
CWA 402 Stormwater Administration
$0.0
$0.0
$1.5
$1.9
CWA 402 Stormwater Implementation
$1.5
$1.9
CWA 404 Permit Application
$10.2
$25.5
$14.3
$14.3
CWA 404 Mitigation - Wetlands
$26.7
$42.1
SUBTOTAL
$38.9
$70.1
$16.1
$16.8
CWA 311 Compliance
$1.1
$1.1
not quantified
not quantified
CWA 401 Administration
$0.1
$0.1
not quantified
not quantified
CWA 402 Pesticide General Permit
Implementation
$0.4
$0.5
not quantified
not quantified
CWA 404 Mitigation - Streams
$14.0
$27.8
not quantified
not quantified
TOTAL
$54.6
$99.6
$16.1
$16.8
These results exclude the costs and benefits for 404 permit applications and wetland mitigation for states classified as response
category 3 and 4 for regulation of dredged or fill material, and they exclude the costs and benefits for all other categories for
states classified as response category 2 and 3 for other surface water regulation.
Scenario 3 assumes the largest number of states will take actions to regulate newly non-jurisdictional
waters. Avoided annual costs range from $9 to $15 million and annual forgone benefits are estimated to
be roughly $3 million. The change in cost and benefit estimates between Scenarios 1, 2, and 3 shows the
importance of accounting for state response to the proposed change in CWA jurisdiction.
Table ES-6: Estimates of avoided costs and forgone benefits of the potential CWA jurisdictional
change from the 2015 Rule to the Pre-2015 Practice excluding the impact from states that are
likely to continue the 2015 rule practices (Scenario 3)
Annual Avoided Costs
(2017$ millions)
Annual Forgone Benefits
(2017$ millions)
Low
High
Low
High
CWA 402 CAFO Administration
$0.0
$0.0
$0.3
$0.6
CWA 402 CAFO Implementation
$0.5
$0.5
CWA 402 Stormwater Administration
$0.0
$0.0
$1.5
$1.9
CWA 402 Stormwater Implementation
$1.5
$1.9
CWA 404 Permit Application
$1.5
$3.8
$1.2
$1.2
CWA 404 Mitigation - Wetlands
$2.3
$2.9
SUBTOTAL
$5.9
$9.2
$3.1
$3.7
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Table ES-6: Estimates of avoided costs and forgone benefits of the potential CWA jurisdictional
change from the 2015 Rule to the Pre-2015 Practice excluding the impact from states that are
likely to continue the 2015 rule practices (Scenario 3)
Annual Avoided Costs
(2017$ millions)
Annual Forgone Benefits
(2017$ millions)
Low
High
Low
High
CWA 311 Compliance
$1.1
$1.1
not quantified
not quantified
CWA 401 Administration
$0.1
$0.1
not quantified
not quantified
CWA 402 Pesticide General Permit
Implementation
$0.4
$0.5
not quantified
not quantified
CWA 404 Mitigation - Streams
$1.7
$3.8
not quantified
not quantified
TOTAL
$9.1
$14.6
$3.1
$3.7
These results exclude the costs and benefits for 404 permit applications and wetland mitigation for states classified as response
category 2, 3, or 4 for regulation of dredged or fill material, and they exclude the costs and benefits for all other categories for
states classified as response category 2 or 3 for other surface water regulation.
Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
The Stage 2 economic analysis consists of a series of qualitative analyses and three detailed case studies.
The purpose of the qualitative analysis is to provide the best national assessment of the likely effects of
this proposal without providing quantitative assessment. As stated, the agencies currently lack the data
sets to quantitatively assess the likely effects of this portion of the provisions. The qualitative analysis is
intended to provide information on the likely direction of the effects based on the best professional
judgments of the agencies. In addition, the agencies conducted three case studies in three major
watersheds to provide in-depth information on the likely quantitative assessment of the effects. The case
studies have considered likely ecological effects, and their accompanying economic effects. The case
studies highlight the complexity of the potential decision matrices and the depth of data and modeling
requirements, requiring more sophisticated analytic framework than the framework used in the 2015
analysis. The case studies conclude that the effects of provisions going beyond the pre-2015 baseline are
modest regardless of the level of state engagement in water resource protection as modeled in Scenarios 1
through 3. The anticipated cost savings range from $7 to $22 million, and the estimated foregone benefits
less than $1 to $3 million. The results of the case studies demonstrate that only the avoided costs and
forgone benefits of the CWA 404 program can be estimated reliably nationwide with the available data.
Using the same methodologies employed in the case studies, the national annual avoided costs of the
CWA 404 program are estimated to range from $28 to $266 million over Scenarios 1 through 3. National
annual forgone benefits from the CWA 404 program are estimated to range from $7 to $47 million over
Scenarios 1 through 3.
Stage 2 Qualitative Analyses
The first component of the Stage 2 analysis relies on a series of qualitative analyses of the major CWA
programs affected by a change in the definition of "waters of the United States." The CWA programs,
including the section 303(c) water quality standards program, the section 311 oil spill prevention
program, the section 401 water quality certification program, the section 402 National Pollutant
Discharge Elimination System (NPDES) permit program, and the section 404 permit program for the
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discharge of dredged or fill material, rely on the definition of "waters of the United States" for program
implementation. A revised definition of "waters of the United States" may affect these CWA programs as
implemented at the state level. Potential effects vary from state to state based on a state's ability and
authority under their own state law to regulate or address through non-regulatory programs their aquatic
resources. Please refer to the RPA for a more detailed description of these and other programs potentially
affected by this proposed rule.
Section 402
Facilities that currently have a NPDES permit under CWA section 402 or an authorized state program can
be assumed to either discharge to a "water of the United States" or to waters designated to be "waters of
the state" by the authorized state in which they are located. The proposed regulation could result in a
jurisdictional change to a discharger's receiving water or downstream water, and thus may result in a
potential change to the discharger's permit. This is more likely the case if the state does not currently
consider these immediate receiving waters to be "waters of the state" and/or if they do not extend this
status to these waters in response to a change in the definition of "waters of the United States." Facilities
that consider their receiving water's status to have potentially changed can opt to: continue with their
existing permit (status quo)-, formally request a permit modification; or formally request to have their
permit terminated.
Section 311
Section 311 of the CWA, Oil Spill Prevention, Preparedness, Reporting and Response, includes two main
components that address the risk and harm from oil spills: (1) spill prevention and preparedness, as
contained in the EPA's Spill Prevention, Control, and Countermeasure (SPCC) and Facility Response
Plan (FRP) regulations for non-transportation related facilities and in United States Coast Guard (USCG)
and Department of Transportation (DOT) regulations for transportation-related facilities, and (2) spill
notification and response, as described under the National Contingency Plan. The agencies estimate that
approximately 540,000 facilities are currently subject to SPCC requirements. This estimate is based on
the number of establishments in each industry sector and oil storage capacities. The estimate does not
explicitly account for the location of the facilities and reasonable potential for a discharge to a "water of
the United States;" it is therefore not possible to assess the degree to which a change in the scope of
jurisdictional waters will affect the number of regulated facilities. In determining the reasonable
expectation of a discharge, facility owners consider solely the geographical and locational aspects of the
facility.
In addition, the EPA requires a subset of SPCC facilities that could, because of their location, reasonably
be expected to cause substantial harm to the environment by discharging oil into or on the navigable
waters or adjoining shorelines to prepare and submit an FRP to the EPA Regional Administrator for the
state or tribe where the facility is located. Changes in CWA jurisdiction that would exempt a facility from
SPCC because the facility no longer has a reasonable potential of a discharge to a "water of the United
States" as described in 40 CFR 112.1(b) similarly would exempt the facility from FRP requirements.
The agencies expect no change to compliance costs or spill risk for facilities required to comply with
equivalent state regulations or that elect to voluntarily implement SPCC measures. At the other end of the
spectrum are facilities located in states and Indian lands without spill prevention requirements and that do
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not voluntarily follow industry standards. The compliance cost savings and spill risk are potentially larger
for these facilities. The agencies anticipate that most facilities potentially affected by the proposed rule
may fall between these two extremes. For example, facilities may choose to implement some spill
prevention measures that are considered good engineering practices for their industry, such as secondary
containment, overfill prevention, practices to ensure the safe transfer of oil to bulk storage containers,
visual inspections of bulk storage containers, etc., even if they are not subject to 40 CFR part 112.
Section 404
The proposed rule could affect requirements to obtain 404 permits for certain activities in waters whose
jurisdictional status would change, and for permittees to mitigate unavoidable impacts from those
activities, where applicable. Absent any state, tribal, or local programs regulating these waters under their
own dredged/fill programs, developers and other project proponents affecting these non-jurisdictional
waters may not take the same steps to avoid impacts to wetlands and other aquatic resources, as compared
to activities requiring a 404 permit in the baseline, nor would they need to demonstrate that they have
minimized potential impacts to the maximum extent practicable. Further, the amount of mitigation
required to offset impacts of activities would decrease due to the proposed rule, in the absence of any
similar state, tribal, or local requirements.
Section 303
The potential effect of the definitional change on the number of waterbodies added to the impaired waters
list (and subsequent total maximum daily load (TMDL) development) is uncertain. Absent the application
of the CWA to newly non-jurisdictional waters, states and tribes can still choose to impose similar state
law requirements on these waters irrespective of federal mandates. The development and revision of
statewide water quality standards is typically an ongoing process independent from changes to the
definition of "waters of the United States," although some states have developed standards for certain
categories of water (e.g., ephemeral features) that would be non-jurisdictional under the proposed rule.
The agencies thus do not project additional costs relating to development or revision of water quality
standards as a consequence of this proposed rule.
Changes in CWA jurisdiction could also lead to requests for changes in TMDL waste load allocations
(WLAs) for point sources and load allocations (LAs) for nonpoint sources and its margin of safety.
TMDL allocation revisions could shift additional pollutant reduction responsibility to those sources
discharging to jurisdictional waters downstream. Given that there are currently more than 73,000
completed TMDLs nationwide, requests to revise even a small percentage of them would require
significant resources to complete (U.S. EPA and U.S. Department of the Army, 2018).
Section 401
Under the proposed rule, the number of CWA section 404 permits would be expected to decrease since
wetlands that no longer meet the proposed definition of adjacent wetlands and ephemeral features would
be categorically excluded from the definition of "waters of the United States," and certain ditches, certain
interstate waters, and certain lakes and ponds would not be jurisdictional. Some of these features are
regulated categorically or based upon a case-specific significant nexus analysis under the pre-2015
practice, and substantially more of these features are regulated under the 2015 Rule. A reduction in 404
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permits could result in costs savings to states and authorized tribes by reducing the number of 401
reviews and required staff time. However, a reduction in the scope of CWA jurisdiction could affect a
state or tribe's ability to regulate wetlands that no longer meet the proposed definition of adjacent
wetlands, ephemeral features, and certain other waters via section 401 authority.
The vast majority of states have been authorized to administer section 402 of the CWA. States that have
not been authorized for the section 402 program and tribes authorized to administer section 401 would
continue to have the opportunity to complete section 401 certification on EPA-issued 402 permits. If there
are fewer EPA-issued 402 permits, then there would be a reduction in the number of 401 reviews and
associated staff time. As with 404 permits, a reduction in the scope of CWA jurisdiction could affect a
state or tribe's ability to regulate wetlands that no longer meet the proposed definition of adjacent
wetlands, ephemeral features, and certain other waters via section 401 authority.
Stage 2 Case Study Analyses
To support benefit-cost analyses of the proposed rule, the agencies relied on three case studies for the
second component of the Stage 2 economic analysis. The case studies enable the agencies to focus on key
geographical areas to explore factors that determine potential proposed rule impacts in greater detail than
would be possible in a national analysis given the large size and limitations of critical datasets. The
agencies initially selected three geographic regions. Within these regions, the agencies then identified a
total of six watersheds intersecting 10 states to explore potential changes and resulting forgone benefits
and avoided costs. The major factors in selecting specific case study locations included: complete NHD
data coverage, availability of other data (e.g., studies needed for monetizing forgone benefits), and
projected state responses to a change in CWA jurisdiction. The case study locations analyzed include the
Ohio River Basin, the Lower Missouri River Basin, and the Rio Grande River Basin.
The case studies illustrate the potential impacts of the proposed rule on major program areas - notably on
the number of facilities subject to CWA section 311 oil spill prevention and preparedness regulations,
section 402 permits, and section 404 permits requiring mitigation - and on the resulting environmental
effects and impacts on regulated entities. For each case study, the agencies first identified the facilities
and activities covered under each of the three CWA programs under baseline conditions. The identified
facilities and activities were then assessed to determine whether they would be affected by the changes to
regulatory requirements under the proposed rule. The high-resolution NHD and NWI data have
significant gaps and limitations that impede the agencies' ability to categorically identify waters that will
change jurisdictional status under the proposed rule in a large fraction of the United States. Therefore,
where the available data were sufficiently detailed, the agencies identified affected facilities and activities
using data from the relevant program database(s) that describe the flow regime of the affected resources.
These data most often reflect site-specific assessments that supported the issuance of the permit.
The agencies then evaluated the impacts of these proposed changes on compliance costs, stream flows,
water quality, drinking water treatment, endangered and threatened species habitats, and other ecosystem
services. The agencies quantified and monetized the impacts where possible given the available data and
methods. In general, annual avoided costs exceed annualized forgone benefits, but limitations of the data
curtailed the agencies' ability to quantify or monetize some of the environmental effects and forgone
benefits of the proposed rule.
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Under state response Scenario 1, annual avoided costs ranged from almost $0 to over $16 million, while
annual forgone benefits ranged from almost $0 to slightly over $2 million.
Table ES-7: Scenario 1 — Estimates of avoided costs and forgone benefits of the potential CWA
jurisdictional change from the Pre-2015 Practice to the Proposed Rule excluding the impact
from states that are likely to continue the 2015 rule practices (Scenario 1)
Annual Avoided Costs
(2017$ millions)
Annual Forgone Benefits
(2017$ millions)
Low
High
Low
High
Ohio River Basin
CWA 402
$0.0
$0.0
$0.0
$0.0
CWA 404 Permit Application
$0.32
$0.32
CWA 404 Mitigation - Wetlands &
Ephemeral Streams
$6.42
$15.93
$0.372
$2.44
CWA 404 Mitigation -Water Quality
N/A
N/A
not quantified
not quantified
CWA 404 Reservoir Dredging
N/A
N/A
not quantified
not quantified
CWA 311 - FRP Requirements
not monetized
not monetized
not monetized
not monetized
CWA 311 - SPCC Requirements
not monetized
not monetized
not monetized
not monetized
SUBTOTAL
$6.74
$16.26
$0.37
$2.44
Lower Missouri River Basin
CWA 402
not monetized
not monetized
not monetized
not monetized
CWA 404 Permit Application
$0.26
$0.26
N/A
N/A
CWA 404 Mitigation - Wetlands &
Ephemeral Streams
$1.36
$5.34
$0.123
$0.81
CWA 404 Mitigation -Water Quality
N/A
N/A
not quantified
not quantified
CWA 404 Mitigation-Reservoir
Dredging
N/A
N/A
not quantified
not quantified
CWA 311 - FRP Requirements
not monetized
not monetized
not monetized
not monetized
CWA 311 - SPCC Requirements
not monetized
not monetized
not monetized
not monetized
SUBTOTAL
$1.62
$5.60
$0.12
$0.81
Rio Grande River Basin
CWA 402
not monetized
not monetized
not monetized
not monetized
CWA 404 Permit Application
$0.11
$0.11
N/A
N/A
CWA 404 Mitigation - Wetlands &
Ephemeral Streams
negligible4
negligible
not monetized
not monetized
CWA 404 Mitigation -Water Quality
N/A
N/A
not quantified
not quantified
CWA 404 Mitigation-Reservoir
Dredging
N/A
N/A
not quantified
not quantified
CWA 311 - FRP Requirements
not monetized
not monetized
not monetized
not monetized
CWA 311 - SPCC Requirements
not monetized
not monetized
not monetized
not monetized
SUBTOTAL
$0.11
$0.11
Total 3 Case Studies
TOTAL (Monetized Categories)
$8.47
$21.97
$0.49
$3.25
1 Annualized benefits are estimated at a 3% discount rate.
2 The estimated forgone annualized benefits from reduced mitigation requirements in the Ohio River Basin range from a low
of $0.27 to a high of $1.80 million at a 7% discount rate.
3 Annualized forgone benefits from reduced mitigation requirements in the Lower Missouri River Basin range from a low
$0.09 to a high $0.60 at a 7% discount rate.
4The estimated annual mitigation cost savings range from $187 to $261.
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Under state response Scenarios 2 and 3, total avoided costs and forgone benefit estimates decrease
somewhat. Annual avoided costs across all case studies range from essentially $0 to $16 million, while
annual forgone benefits range from close to $0 to slightly over $2 million
Table ES-8: Estimates of avoided costs and forgone benefits of the potential CWA jurisdictional
change from the Pre-2015 Practice to the Proposed Rule excluding the impact from states that
are likely to continue the 2015 rule practices (Scenarios 2 & 3)
Annual Avoided Costs
(2017$ millions)
Annual Forgone Benefits
(2017$ millions)
Low
High
Low
High
Ohio River Basin
CWA 402
$0.0
$0.0
$0.0
$0.0
CWA 404 Permit Application
$0.31
N/A
N/A
N/A
CWA 404 Mitigation - Wetlands &
Ephemeral Streams
$6.42
$15.93
$0.372
$2.44
CWA 404 Mitigation -Water Quality
N/A
N/A
not quantified
not quantified
CWA 404 Reservoir Dredging
N/A
N/A
not quantified
not quantified
CWA 311 - FRP Requirements
not monetized
not monetized
not monetized
not monetized
CWA 311 - SPCC Requirements
not monetized
not monetized
not monetized
not monetized
SUBTOTAL
$6.73
$16.25
$0.37
$2.44
Lower Missouri River Basin
CWA 402
not monetized
not monetized
not monetized
not monetized
CWA 404 Permit Application
<$0.01
<$0.01
N/A
N/A
CWA 404 Mitigation - Wetlands &
Ephemeral Streams
$0.00
$0.00
$0.00
$0.00
CWA 404 Mitigation -Water Quality
N/A
N/A
not quantified
not quantified
CWA 404 Mitigation-Reservoir
Dredging
N/A
N/A
not quantified
not quantified
CWA 311 Compliance
not monetized
not monetized
not monetized
not monetized
CWA 311 Compliance
not monetized
not monetized
not monetized
not monetized
SUBTOTAL
<$0.01
<$0.01
$0.00
$0.00
Rio Grande River Basin
CWA 402
not monetized
not monetized
not monetized
not monetized
CWA 404 Permit Application
$0.113
$0.11
N/A
N/A
CWA 404 Mitigation - Wetlands &
Ephemeral Streams
negligible4
negligible
not monetized
not monetized
CWA 404 Mitigation - Water
Quality
N/A
N/A
not quantified
not quantified
CWA 404 Mitigation - Reservoir
Dredging
N/A
N/A
not quantified
not quantified
CWA 311 - FRP Requirements
not monetized
not monetized
not monetized
not monetized
CWA 311 - SPCC Requirements
not monetized
not monetized
not monetized
not monetized
SUBTOTAL
$0.11
$0.11
$0.00
$0.00
Total 3 Case Studies
TOTAL (Monetized Categories)
$6.84
$16.36
$0.37
$2.44
1 Annualized forgone benefits are estimated at a 3% discount rate.
2 The estimated forgone annualized benefits from reduced mitigation requirements in the Ohio River Basin range from a low
of $0.27 to a high of $1.80 million at a 7% discount rate.
3 Estimated annual reduction in 404 permit application costs under Scenario 3 is zero.
4 The estimated annual mitigation cost savings range from range of $187 to $261 under Scenario 2 and zero under
Scenario 3.
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Stage 2 National Analysis
The case studies demonstrate that data limitations constrain the agencies' ability to quantify and value the
effects of the proposed rule on the section 402 and 311 programs across the country, but that it is possible
to quantify and value at least some of the potential effects of the proposed rule through the CWA 404
program nationwide. Accordingly, to evaluate the impacts of the Stage 2 analysis under the proposed rule
at the national level, the agencies focused on 404 program impacts of the proposed rule for which data are
sufficient to develop quantitative estimates. The approach incorporates the predicted state response under
various scenarios (see Section III.C.l). Inputs for this analysis were derived using the same approach as
described for the case studies (see Section IV.B.2.2.2), which relies on 404 permit data from the Corps'
ORM2 database to identify aquatic resources and permits potentially affected by the proposed rule. To
estimate cost savings, the agencies used the same methodology described in Section IV.B.2.2.2.1. To
estimate forgone benefits, the agencies used a meta function benefits transfer to value forgone wetland
mitigation (see Section III.C.2).
Table ES-9: Total national estimated CWA section 404 related annual cost savings (Millions
2017$)
Cost Type
Scenario 01
Scenario l2
Scenario 23
Scenario 34
Low
High
Low
High
Low
High
Low
High
Permit Cost
Savings
$26.6
$26.6
$16.0
$16.0
$10.6
$10.6
$2.4
$2.4
Mitigation Cost
Savings
$209.9
$470.0
$118.6
$249.7
$101.9
$204.3
$25.3
$60.2
Total
$236.5
$496.6
$134.6
$265.7
$112.5
$214.9
$27.6
$62.6
1 Includes all states except Hawaii.
2 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Iowa, Idaho, Kansas, Kentucky, Louisiana,
Missouri, Mississippi, Montana, North Carolina, North Dakota, Nebraska, New Mexico, Nevada, Oklahoma, South Carolina,
South Dakota, Texas, Utah, Wisconsin, West Virginia, and Wyoming
3 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Idaho, Kentucky, Missouri, Mississippi,
Montana, North Dakota, New Mexico, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming
4 Includes Arizona, Idaho, Kentucky, Mississippi, and South Dakota
To estimate forgone benefits, the agencies relied upon a wetland valuation meta-analysis function. The
meta-analysis uses the results of multiple wetland valuation studies to derive an underlying valuation
function that can be adjusted and applied nationally (see Section III.C.2).
Table ES-10: Total national estimated CWA section 404 related annual forgone benefits (Millions
2017$)
Scenario
Mean WTP
per
household
per acre
(2017$)
Mean estimate
of forgone
benefits
(Millions
2017$)
Lower 5th
WTP per
household
per acre
(2017$)
Lower 5th
estimate of
forgone benefits
(Millions 2017$)
Upper 95th
WTP per
household
per acre
(2017$)
Upper 95th
estimate of
forgone
benefits
(Millions
2017$)
Scenario 01,2
$0.0231
$135.6
$0.0001
$0.7
$0.0453
$300.3
Scenario l1,3
$0.0192
$46.8
$0.0001
$0.3
$0.0422
$104.0
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | xxiii
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Executive Summary
Table ES-10: Total national estimated CWA section 404 related annual forgone benefits (Millions
2017$)
Scenario
Mean WTP
per
household
per acre
(2017$)
Mean estimate
of forgone
benefits
(Millions
2017$)
Lower 5th
WTP per
household
per acre
(2017$)
Lower 5th
estimate of
forgone benefits
(Millions 2017$)
Upper 95th
WTP per
household
per acre
(2017$)
Upper 95th
estimate of
forgone
benefits
(Millions
2017$)
Scenario 21,4
$0.0211
$41.7
$0.0001
$0.2
$0.0463
$92.7
Scenario 31,5
$0.0236
$6.9
$0.0001
<$0.1
$0.0504
$14.2
1 Annual average mitigation reduction based on permits issued in years 2011-2015 with mitigation requirements on
waterways determined to be RPWWN-type wetlands or ephemeral streams. Excludes permits issued for mitigation or
restoration activities because the main purpose of these activities is to restore or enhance ecosystem services provided by
water resources as opposed to dredge and fill activities that lead to permanent or temporary losses of ecosystem services.
2 Includes all states except Hawaii.
3 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Iowa, Idaho, Kansas, Kentucky, Louisiana,
Missouri, Mississippi, Montana, North Carolina, North Dakota, Nebraska, New Mexico, Nevada, Oklahoma, South Carolina,
South Dakota, Texas, Utah, Wisconsin, West Virginia, and Wyoming.
4 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Idaho, Kentucky, Missouri, Mississippi,
Montana, North Dakota, New Mexico, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming.
5 Includes Arizona, Idaho, Kentucky, Mississippi, and South Dakota.
The estimated section 404 related cost savings from avoided permit applications and mitigation generally
exceed forgone benefits of wetlands. This is true for all four state response scenarios the agencies
analyzed and under most cost or WTP assumptions. For example, under Scenario 2, annual cost savings
range between $112.5 million and $214.9 million (under low and high cost assumptions), compared to
estimated forgone benefits of $41.7 million (based on mean WTP). One exception is Scenario 0 for which
forgone benefits based on the 95th percentile of the WTP for wetlands are greater than the lower bound of
estimated cost savings.
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I Introduction and Overview
I. Introduction and Overview
The U.S. Environmental Protection Agency and Department of the Army ("the agencies") are proposing a
rule to revise the definition of the term "waters of the United States." "Waters of the United States" is a
foundational term establishing the jurisdictional scope of the Clean Water Act (CWA). The agencies are
proposing to establish six categories of jurisdictional waters and would define eleven exclusions for
features that would not be subject to federal CWA jurisdiction. Waters that currently are outside the scope
of CWA jurisdiction or would be following a change to the definition of "waters of the United States"
may be subject to separate state or tribal authorities. The definition of "waters of the United States" was
last changed on June 29, 2015 when the agencies issued a final rule entitled amending Clean Water Rule:
Definition of "Waters of the United States" (hereinafter referred to as the 2015 Rule). 80 FR 37054.
In addition, on February 28, 2017, the President issued Executive Order 13778 entitled "Restoring the
Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule."
The Executive Order directs the EPA and the Army to review the 2015 Rule and to issue a proposed rule
rescinding or revising the 2015 Rule as appropriate and consistent with law. The Executive Order also
directs the agencies to "consider interpreting the term 'navigable waters' ... in a manner consistent with"
Justice Scalia's plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006).
This proposed rule is the second step in a two-step approach to implementing the Executive Order. On
July 27, 2017, the agencies issued the "Step One" notice of proposed rulemaking (82 FR 34899) that
proposed to repeal the 2015 Rule and recodify the regulatory text that governed prior to the promulgation
of the 2015 Rule, consistent with Supreme Court decisions and informed by applicable guidance
documents and agency practice, and which the agencies had been implementing in certain parts of the
country since the U.S. District Court for the District of North Dakota preliminarily enjoined the 2015
Rule in the 13 States that challenged the rule in that court.1 On July 12, 2018, the agencies published a
supplemental notice of proposed rulemaking to clarify, supplement, and seek additional comment on the
Step One notice of proposed rulemaking. 83 FR 32227. In this "Step Two" rulemaking, the agencies are
proposing a new definition of "waters of the United States."
This Economic Analysis (EA) assesses the impacts of the proposed changes to the definition of "waters of
the United States" based on the potential effects to CWA programs that rely on the definition of "waters
of the United States." In this EA, the agencies describe how the proposed regulation compares to the
baseline of the 2015 Rule. The 2015 Rule is the current definition of "waters of the United States" in the
Code of Federal Regulations. However, as discussed further in the preamble, the 2015 Rule is enjoined in
28 states where the pre-2015 regulations are currently being implemented. Therefore, the agencies also
describe how the proposed regulation compares to an alternate baseline of pre-2015 practice which
represents the pre-2015 regulations as implemented consistent with Supreme Court decisions and
informed by applicable guidance documents and longstanding agency practice.
-i
Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South
Dakota, and Wyoming. The agencies note that Iowa is now also subject to the preliminary injunction issued by the District
of North Dakota. See Order, North Dakota v. EPA, No. 3:15-cv-59 (D.N.D. Sept. 18, 2018). See the Resource and
Programmatic Assessment for a more robust discussion of the litigation involving the 2015 Rule and the rule's status.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised ) 1
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I Introduction and Overview
Unlike many environmental regulations, this proposed rule is not correcting a market failure. Instead, the
agencies are proposing this rule to provide clarity and regulatory certainty to states, tribes, the regulated
community, and the public as to the scope of CWA jurisdiction as described more fully in the preamble
for the proposed rule.
A separate Resource and Programmatic Assessment (RPA) (available in the docket on Regulations.gov at
Docket Id. No. EPA-HQ-OW-2018-0149 for this proposed rule) outlines the agencies' assessment of the
potential effects of the proposed definition on the regulation of aquatic resources across the country, as
well as the potential effects on CWA programs and certain other programs under other federal statutes.
The RPA also provides snapshots of the applicable regulatory and legal framework currently in place in
states and some tribes to provide context for how aquatic resources are regulated. The two documents
together present a comprehensive assessment of this rule's potential impacts.
I.A Summary of the Potential Changes in CWA Jurisdiction Due to the Proposed
Rule
I.A.1 The 2015 Rule
At the time of publication of this proposed rule, the 2015 Rule is currently being implemented in 22
states, the District of Columbia, and the U.S. Territories and is the existing regulation in the Code of
Federal Regulations. As such, it serves as the baseline for analysis in this EA. The 2015 Rule defines
"waters of the United States" to include:
• Traditional navigable waters (TNWs);
• Interstate waters including interstate wetlands;
• Territorial seas;
• Impoundments of jurisdictional waters;
• Tributaries of the above waters;
• Adjacent waters of the aforementioned waters;
• Similarly situated regional waters found to have a significant nexus; and
• Certain waters with a case-specific significant nexus.
The 2015 Rule identifies certain waters that can be "waters of the United States" only where a case-
specific determination has found a significant nexus between the water and TNWs, interstate waters, or
the territorial seas. The agencies specify five types of waters (prairie potholes, Delmarva and Carolina
bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands) that the agencies
had determined to be "similarly situated" in watershed that drains to the nearest TNW, interstate water, or
territorial sea, and thus would be considered in combination with waters of the same subcategory within
the point of entry watershed in a significant nexus analysis (referred to as (a)(7) waters). In addition, the
2015 Rule specifies that waters located within the 100-year floodplain of a TNW, interstate water, or the
territorial seas, and waters located within 4,000 feet from the high tide line or the ordinary high water
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mark of TNWs, interstate waters, the territorial seas, impoundments, or covered tributaries may be found
to have a significant nexus on a case-specific basis, but the agencies would need to make a determination
of "similarly situated" waters on a case-by-case basis. These are referred to as (a)(8) waters. The 2015
Rule sets forth nine functions relevant to these case-specific significant nexus analyses.
The agencies exclude specified waters from the definition of "waters of the United States" in the 2015
Rule, carrying forward the existing exclusions for prior converted cropland and waste treatment systems.
The 2015 Rule creates additional exclusions from the definition of "waters of the United States,"
including for certain waters and features that have been generally considered to not be "waters of the
United States" in practice (e.g., exclusion for certain ditches that are not located in or draining wetlands);
for additional types of ditches; for groundwater and erosional features; for stormwater control features
constructed to convey, treat, or store stormwater; and for cooling ponds that are created in dry land.
In the 2015 Rule, the agencies define a tributary as a water that (1) contributes flow, either directly or
through another water (including an impoundment), to a TNW, interstate water, or the territorial seas, and
(2) that is characterized by the presence of physical indicators of bed and banks and an ordinary high
water mark. All perennial, intermittent, and ephemeral streams that meet the definition of tributary are
"waters of the United States" under the 2015 Rule.
Under the 2015 Rule, all adjacent waters, including wetlands, are jurisdictional where the waters are
adjacent to a TNW, interstate water, territorial sea, jurisdictional impoundment, or a jurisdictional
tributary, and where the water meets that rule's definition of adjacent. The 2015 Rule carries forward the
definition of "adjacent"—waters that are bordering, contiguous, or neighboring the aforementioned
waters—and it also defines "neighboring" and includes open waters such as lakes and ponds as adjacent.
The 2015 Rule defines "neighboring" to mean:
• all waters located within 100 feet of the ordinary high water mark of (1) through (5) water,
• all waters located within the 100-year floodplain of a (1) through (5) water and not more than
1,500 feet from the ordinary high water mark of such water, and
• all waters located within 1,500 feet of the high tide line of a (1) or (3) water, and all waters
within 1,500 feet of the ordinary high water mark of the Great Lakes.
The definition of "adjacent" in the 2015 Rule does not include those waters in which established, normal
farming, silviculture, and ranching activities occur. Wetlands and farm ponds in which normal farming
activities occur, as those terms are used in section 404(f) of the CWA and its implementing regulations,
would not be per se jurisdictional as "adjacent" waters. Instead, waters in which normal farming,
ranching, and silviculture activities occur would be subject to case-specific review.
I.A.2 Alternate Baseline of Pre-2015 Practice
The agencies are currently implementing the definition of "waters of the United States" under the
definition promulgated in 19862, see 51 FR 41206 (Nov. 13, 1986), as informed by Supreme Court
2 For convenience, the agencies refer to the Corps' regulations as opposed to the EPA's. EPA codification of the definition of
"waters of the United States" is found at 40 CFR 110.1, 112.2, 116.3, 117.1, 122.2,230.3,232.2, 300.5,401.11, and
Appendix E to Part 300.
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I Introduction and Overview
decisions in United States v. Riverside Bayview Homes (Riverside Bayview), Solid Waste Agency of
Northern Cook County v. United States (SWANCC), and Rapanos v. United States (Rapanos) and agency
guidance documents in 28 states.3 Because the pre-2015 practice is being implemented in certain parts of
the country, the agencies have identified it as an alternate baseline for analysis in this EA.
In 2007, the agencies issued joint memorandum entitled, "Clean Water Act Jurisdiction Following the
U.S. Supreme Court's Decision in Rapanos v. United States and Carabell v. United States," providing
guidance to their respective staffs on implementing Rapanos. The guidance was reissued on December 2,
2008, with minor changes (hereinafter the Rapanos Guidance).4 Under the Rapanos Guidance, the
agencies determine that a water may be jurisdictional if it meets either the plurality's or Justice Kennedy's
standard for jurisdictional waters. "Relatively permanent" waters ("RPWs") are interpreted in the
guidance documents as tributaries5 that typically flow year-round or have continuous flow at least
seasonally (e.g., typically three months).6 Wetlands that have a "continuous surface connection" are those
that are directly abutting (e.g., they are not separated by upland, a berm, dike, or similar feature from the
water of the United States to which they are adjacent).
Under the Rapanos Guidance, the agencies assert jurisdiction over the following waters without the need
for further analysis:
• TNWs;
• Wetlands adjacent to TNWs;
• Non-navigable tributaries of TNWs that are relatively permanent where the tributaries typically
flow year-round or have continuous flow at least seasonally (e.g., typically three months); and
• Wetlands that directly abut such tributaries.
The agencies assess whether the following waters are jurisdictional based on a case-specific analysis to
determine whether they have a significant nexus with a TNW:
• Non-navigable tributaries that are not relatively permanent;
2
United States v. Riverside Bayview Homes, 474 U.S. 121, 131-35 & n.9 (1985); Solid Waste Agency of Northern Cook County
v. United States, 531 U.S. 159 (2001); Rapanos v. United States, 547 U.S. 715 (2006).
4 See U.S. EPA and U.S. Army Corps of Engineers. Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision
in Rapanos v. United States & Carabell v. United States at 1 (Dec. 2, 2008), available at
https://www.epa.gov/sites/production/files/2016-Q2/documents/cwa jurisdiction following rapanosl20208.pdf.
5 For purposes of the Rapanos Guidance, a tributary includes natural, man-altered, or man-made water bodies that carry flow
directly or indirectly into a traditional navigable water.
6 The agencies have further clarified that three months for seasonal flow was provided as an example in the guidance, and the
agencies have flexibility under the guidance to determine what seasonally means in a specific case. For instance, in one case,
the agencies found that two months of continuous flow was seasonal at a particular site in a particular region of the country.
See "Memorandum to Assert Jurisdiction for NWP-2007-945," available at
http://www.usace.armv.mi1/Portals/2/docs/civilworks/regulatorv/cwa auide/NWP-2007-945.pdf.
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I Introduction and Overview
• Wetlands adjacent to non-navigable tributaries that are not relatively permanent; and
• Wetlands adjacent to, but that do not directly abut, a relatively permanent non-navigable
tributary.
Under the Rapanos Guidance, the agencies generally do not assert jurisdiction over the following
features: swales or erosional features (e.g., gullies, small washes characterized by low volume, infrequent,
or short duration flow) or ditches (including roadside ditches) excavated wholly in and draining only
uplands and that do not carry a relatively permanent flow of water. Consistent with the Rapanos
Guidance, a significant nexus analysis assesses the flow characteristics and functions of the tributary itself
and the functions performed by all wetlands adjacent to the tributary, including consideration of
hydrologic and ecologic factors, to determine if they significantly affect the chemical, physical, and
biological integrity of downstream TNWs. Under pre-2015 practice, the agencies interpret TNWs or
(a)(1) waters to encompass tidal waters, including tidally-influenced ditches and wetlands. The agencies
issued guidance in 2007 regarding which waters the agencies consider to be TNWs.7
The agencies interpret all wetlands that are bordering, contiguous, or neighboring other jurisdictional
waters to be jurisdictional perthe definition of "adjacent" that existed in the regulations prior to the 2015
Rule (hereinafter referred to as the 1980s regulations). In the Rapanos Guidance, the agencies clarified
that they consider wetlands adjacent if they meet one of three criteria: 1) there is an unbroken surface or
shallow sub-surface connection to jurisdictional waters; 2) they are physically separated from
jurisdictional waters by man-made dikes or barriers, natural river berms, beach dunes, and the like; or 3)
their proximity to a jurisdictional water is reasonably close, supporting the science-based inference that
such wetlands have an ecological interconnection with jurisdictional waters. Non-jurisdictional ditches
and other features like swales can contribute to a surface hydrologic connection between a wetland and
the water to which it is adjacent.
The Rapanos Guidance does not address waters not at issue in the Rapanos case, including interstate
waters, the territorial seas, and the "(a)(3)" provision for nonnavigable, isolated, intrastate waters. The
(a)(3) provision was addressed in the 2001 SWANCC decision and the agencies' subsequent 2003
SWANCC guidance.8 Since the 2001 decision in SWANCC, the agencies have generally not asserted
jurisdiction over nonnavigable, isolated, intrastate waters using the (a)(3) portion of the regulations.
The 1980s regulations define "waters of the United States" to include interstate waters, including
interstate wetlands. Under the pre-2015 practice, interstate waters are therefore "waters of the United
States" even if they are not navigable for purposes of federal regulation under (a)(1) and do not connect to
such waters. In the Operation and Maintenance Business Information Link, Regulatory Module (ORM2),
these waters are captured under other categories in the approved jurisdictional determination (AJD) form,
including categories for TNWs, tributaries (RPWs or non-RPWs), adjacent wetlands (those adjacent to a
TNW, directly abutting an RPW, adjacent to but not directly abutting an RPW, or adjacent to non-RPWs),
7 See "U.S. Army Corps of Engineers Jurisdictional Determination Form Instructional Guidebook, Appendix D, 'Traditional
Navigable Waters,'" available at
http://www.usace.armv.mi1/Portals/2/docs/civilworks/regulatorv/cwa guide/app d traditional navigable waters.pdf.
8 See 68 FR 1991, 1995 (January 15, 2003), available at https://www.epa. gov/sites/production/files/2016-
04/documents/swancc guidance ian 03.pdf.
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I Introduction and Overview
and impoundments of jurisdictional waters. The CWA and the agencies' 1980s regulations include "the
territorial seas" as "waters of the United States." The territorial seas are also considered to be TNWs
under pre-2015 practice and are portrayed as such in the ORM2 database
Under pre-2015 practice, impoundments of jurisdictional waters remain jurisdictional. Impoundments
were not addressed in the Riverside Bayview, SWANCC, or Rapanos Supreme Court decisions. Under pre-
2015 practice, the agencies implement two longstanding exclusions from the definition of "waters of the
United States." Prior converted cropland and waste treatment systems have been excluded from the
definition of "waters of the United States" since 1993 and 1979 respectively. Excluded waters are non-
jurisdictional and not subject to the regulatory programs of the CWA. The agencies have also interpreted
certain waters to be non-jurisdictional in preamble language explaining the 1980s regulations9 and in the
Rapanos Guidance. The 1986 preamble language states that generally the agencies do not consider certain
waters, such as artificially irrigated areas which would revert to upland if the irrigation ceased or certain
artificial stock water ponds created on dry land, to be waters of the United States. The Rapanos Guidance
states that the agencies generally will not assert jurisdiction over the following features: swales or
erosional features (e.g., gullies, small washes characterized by low volume, infrequent, or short duration
flow) and ditches (including roadside ditches) excavated wholly in and draining only upland and that do
not carry a relatively permanent flow of water.
I.A.3 The Proposed Rule
The agencies now propose that the definition of "waters of the United States" encompasses the following
waters:
• TNWs, including the territorial seas;
• Tributaries of TNWs;
• Ditches that are TNWs or certain ditches that satisfy the conditions of the tributary definition;
• Lakes and ponds that are TNWs, that contribute perennial or intermittent flow to a TNW in a
typical year, or that are flooded by a TNW, tributary, jurisdictional ditch, or impoundment in a
typical year;
• Impoundments of jurisdictional waters; and
• Wetlands adjacent to the aforementioned waters.
The agencies propose to continue to include traditional navigable waters (including tidal waters) as
"waters of the United States." The proposed rule incorporates "the territorial seas" into the (a)(1) or TNW
category to simplify the regulation, but otherwise does not change the text of the prior two categories.
This proposal is consistent with how the Corps captures such waters on its Rapanos AJD form and in its
ORM2 database under pre-2015 practice. The proposed rule eliminates interstate waters as a separate
category of jurisdictional waters. Interstate waters would be jurisdictional only if they meet another
9 See 51 FR 41206, 41217 (Nov. 13, 1986).
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I Introduction and Overview
category of jurisdictional waters under the proposal (e.g., if they are TNWs, tributaries ofTNWs, adjacent
wetlands, etc.).
The agencies' proposal continues to include tributaries ofTNWs as "waters of the United States" The
proposed rule defines tributary to mean:
A river, stream, or similar naturally occurring surface water channel that contributes perennial or
intermittent flow to a water identified in paragraph (a)(1) of this section in atypical year either
directly or indirectly through a water(s) identified in paragraphs (a)(2)-(6) of this section or
through water features identified in paragraph (b) of this section so long as those water features
convey perennial or intermittent flow downstream. A tributary does not lose its status as a
tributary if it flows through a culvert, dam, or other similar artificial break or through a debris
pile, boulder field, or similar natural break so long as the artificial or natural break conveys
perennial or intermittent flow to a tributary or other jurisdictional water at the downstream end of
the break. The alteration or relocation of a tributary does not modify its status as a tributary as
long as it continues to satisfy this definition.
Perennial is defined as surface water flowing continuously year-round during a typical year. Intermittent
is defined as surface water flowing continuously during certain times of a typical year and more than in
direct response to precipitation (e.g., seasonally when the groundwater table is elevated or when
snowpack melts). Ephemeral is defined as surface water flowing or pooling only in direct response to
precipitation (e.g., rain or snow fall). The proposed rule's definition of tributary includes only those rivers
and streams that contribute perennial or intermittent flow to a TNW in a typical year.
The proposed rule includes ditches that are TNWs (including tidal ditches); ditches constructed in a
tributary or that relocate or alter a tributary as long as those ditches also satisfy the conditions of tributary
definition; and ditches constructed in an adjacent wetland as long as those ditches also satisfy the
conditions of tributary definition. The term "ditch" is defined as an artificial channel used to convey
water. In the 2015 Rule baseline and the alternate baseline, ditches are not included as a separate category
of jurisdiction, but instead are "waters of the United States" where they meet the criteria under one of the
categories for jurisdiction (e.g., are TNWs, tributaries, etc.).
The proposed rule includes certain lakes and ponds as a separate category of "waters of the United
States." Lakes and ponds are considered "waters of the United States" under the proposal where they are
TNWs, contribute perennial or intermittent flow to a TNW in atypical year either directly or indirectly
through another jurisdictional water or through water features that are excluded from this proposed rule so
long as those water features convey perennial or intermittent flow downstream, or are flooded in a typical
year by a TNW, tributary, jurisdictional ditch, jurisdictional lake or pond, or impoundments of
jurisdictional waters. The agencies propose to continue to include impoundments of jurisdictional waters
as "waters of the United States."
The proposed rule includes as "waters of the United States" adjacent wetlands—defining adjacent as
those wetlands that abut or have a direct hydrologic surface connection in a typical year to TNWs,
jurisdictional ditches, jurisdictional lakes or ponds, or impoundments of jurisdictional waters. Abut means
to touch at least at one point or side of a TNW, tributary, jurisdictional ditch, jurisdictional lake or pond,
or jurisdictional impoundment. A direct hydrologic surface connection occurs as a result of inundation
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised ) 7
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I Introduction and Overview
from a TNW, tributary, jurisdictional ditch, jurisdictional lake or pond, or jurisdictional impoundment or
via perennial or intermittent flow between a wetland and a TNW, tributary, jurisdictional ditch,
jurisdictional lake or pond, or jurisdictional impoundment. Wetlands physically separated from a TNW,
tributary, jurisdictional ditch, jurisdictional lake or pond, or jurisdictional impoundment by upland or by
dikes, barriers, or similar structures and also lacking a direct hydrologic surface connection to such waters
are not adjacent.
The agencies propose to retain the two pre-existing exclusions for prior converted cropland and waste
treatment systems, though with modifications to the regulatory text. The agencies are proposing for the
first time to define prior converted cropland in the regulatory text and to clarify that a designation of
"prior converted cropland" for purposes of the CWA no longer applies if the area has been abandoned and
reverted to wetland. The agencies also propose to define waste treatment systems to include all
components, including lagoons and treatment ponds (such as settling or cooling ponds), designed to
convey or retain, concentrate, settle, reduce, or remove pollutants, either actively or passively, from
wastewater prior to discharge (or eliminating any such discharge).
Also excluded from the definition of "waters of the United States" are any waters or water features that
are not explicitly included as "waters of the United States;" groundwater, including groundwater drained
through subsurface drainage systems; ephemeral features and diffuse stormwater run-off such as
directional sheet flow over upland; ditches that are not specifically included as categorical "waters of the
United States;" artificially irrigated areas that would revert to upland should application of irrigation
water to that area cease, including fields flooded for rice or cranberry growing; artificial lakes and ponds
constructed in upland, such as water storage reservoirs, farm and stock watering ponds, and log cleaning
ponds, and that are not jurisdictional lakes, ponds, or impoundments; water-filled depressions created in
upland incidental to mining or construction activity, and pits excavated in upland for the purpose of
obtaining fill, sand, or gravel; stormwater control features excavated or constructed in upland to convey,
treat, infiltrate, or store stormwater run-off; and wastewater recycling structures constructed in upland,
such as detention, retention and infiltration basins and ponds, and groundwater recharge basins.
I.A.4 Comparison of Scope of Jurisdiction between the 2015 Rule, the Pre-2015 Practice,
and the Proposed Rule
In this section, the agencies describe potential changes to the CWA jurisdictional status of categories of
waters that would occur under the proposed rule relative to the 2015 Rule and pre-2015 practice. The
agencies utilized the Operation and Maintenance Business Information Link, Regulatory Module
(ORM2), which is the Army Corps of Engineers' internal database system that documents CWA section
404 application and permit data, including information on jurisdictional determinations, to help inform
the evaluation of potential change in jurisdictional scope when comparing pre-2015 practice to the
proposed rule. The agencies are not using data from ORM2 for approved jurisdictional determinations
(AJDs) that were made under the 2015 Rule for this analysis. The relatively small number of AJDs made
under the 2015 Rule before it was stayed by the courts or in states where the stay was recently lifted is not
a representative sample when compared to the large numbers of AJDs documented in ORM2 under pre-
2015 practice, which the agencies continued to implement nationwide from October 2015 to August 2018
and currently continue to implement in certain states during the various judicial stays of the 2015 Rule.
The agencies were also concerned about using AJD information reflecting the categories of waters that
the agencies would have found jurisdictional or non-jurisdictional under the 2015 Rule because a
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I Introduction and Overview
disproportionate number of the AJDs finalized under the 2015 Rule involve exclusions and non-
significant nexus determination categories.
Although the agencies have jurisdictional data on where they have determined on a case-by-case basis if
particular waters are or are not "waters of the United States," 10 they are not aware of any datasets that
fully depict the jurisdictional extent of waters under the 2015 Rule or pre-2015 practice, and note that all
data carry unavoidable uncertainties and associated limitations. The agencies considered using publicly-
available data from two particular national datasets which are widely used and recognized as the best
available national datasets that map waters and wetlands (/. e., the National Hydrography Dataset (NHD)
at high resolution and the National Wetlands Inventory (NWI)) to assess the potential extent of waters
whose jurisdictional status might change as a result of the proposed rule. However, neither the NHD nor
the NWI datasets are able or designed to portray the jurisdictional status of waters under the CWA. In
addition, the NHD high resolution does not distinguish between intermittent and ephemeral streams
nationwide; they are only distinguished in parts of the arid West and other limited areas11 where data
stewards have provided such differentiation.12 Further, these datasets do not use terms that directly
correspond to the categories of jurisdictional and excluded waters in the proposed rule. Therefore, these
datasets have technical limitations that the agencies believe render them unsuitable for use in conducting
a national cost-benefit analysis for this proposed rule.
Accordingly, the agencies present a qualitative analysis of the potential changes between the proposed
rule and the 2015 Rule baseline, as well as the alternate baseline of the pre-2015 practice. The agencies
discuss these limitations further in the Resource and Programmatic Assessment (RPA) for the Proposed
Rule and solicit comment on what other datasets may be utilized to quantify the potential change in
jurisdiction between the proposed rule and the two baselines for this analysis.
To avoid redundancy, the agencies combine the descriptions of the potential changes under the 2015 Rule
baseline and the alternate baseline. When this document refers to categories used in the 2015 Rule or pre-
2015 practice, the agencies are specifically referring to the categories as they are implemented under the
2015 Rule or as they are implemented under the pre-2015 regulatory regime. For example, when
discussing "tributary" under pre-2015 practice, the agencies are using that term as it is implemented under
the 1980s regulations and subsequent guidance and do not mean to use the term as it defined in the 2015
Rule (or in the proposed rule).
I.A.4.1 Traditional Navigable Waters (TNWs) and Territorial Seas
The agencies propose to continue the regulation of traditional navigable waters (TNWs or (a)(1) waters),
including waters subject to the ebb and flow of the tide. The proposed rule does make a modification in
10 See, e.g., the Corps' ORM2 database and the EPA's Clean Water Act Approved Jurisdictional Determinations website,
available at: https://watersgeo.epa.gov/cwa/CWA-JDs/.
11 In other parts of the country, ephemeral streams may often be mapped as intermittent in the NHD high resolution or are not
mapped at all.
12 The NHD datasets are regularly updated and maintained through stewardship partnerships with states and other collaborative
bodies, such as federal agencies. An agency in each state manages the maintenance activities within the state, and updates
are made available in the national dataset. For example, the U.S. Forest Service and the Bureau of Land Management were
some of the first data stewards to add ephemeral streams within certain federal lands to the NHD.
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the regulatory text as compared to both baselines by adding the territorial seas to the (a)(1) category, but
that proposed change in the regulatory text does not have an effect on which waters would be regulated as
TNWs. According to ORM2 data for FY13-FY17, 17,630 waters were determined to be jurisdictional as
TNWs under pre-2015 practice. This number includes any tidal wetlands that the Corps has determined
are (a)(1) waters, but the agencies are unable to parse out how many of these determinations may have
been for such wetlands.
I.A.4.2 Interstate Waters
The agencies propose to remove interstate waters as a separate category of "waters of the United States,"
which is a change from both baselines. With this proposed change, interstate waters would be
jurisdictional only if they otherwise meet one of the categories under the proposed rule (e.g., if they are
TNWs, tributaries of TNWs, etc.). Interstate waters, including wetlands and ephemeral waters, are
jurisdictional under the 2015 Rule. Under pre-2015 practice, any waters that are part of a state or
international boundary or that cross state or international boundaries may be considered jurisdictional as
interstate waters. The proposed rule would reduce the number of waters considered to be jurisdictional as
interstate waters as compared to the 2015 Rule and the alternate baseline. This proposed change also
would result in potential changes in jurisdiction for wetlands adjacent to interstate waters, tributaries of
interstate waters and their adjacent wetlands, and impoundments of the above waters and any adjacent
wetlands to those impoundments, where such waters do not otherwise meet the proposed definition of
"waters of the United States."
The agencies are unable to quantify the potential change in jurisdiction under the proposed rule relative to
the 2015 Rule or pre-2015 practice with respect to interstate waters, because interstate waters are not
identified as a distinct category in publicly available data sets or ORM2.
I.A.4.3 Impoundments
The agencies propose to continue to include impoundments of jurisdictional waters in the definition of
"waters of the United States." The number of impounded waters that are jurisdictional would change
under the proposed rule because certain waters that are impounded would be no longer jurisdictional. For
example, impoundments of those ephemeral streams determined to be jurisdictional under the 2015 Rule
by virtue of meeting that rule's "tributary" definition and/or under pre-2015 practice via a significant
nexus analysis would have also been jurisdictional under those two regulations. Such impoundments
would not be jurisdictional under the proposed rule.
The impoundments of certain interstate waters, their tributaries, and wetlands adjacent to such waters that
may have been jurisdictional under both baselines but would no longer be jurisdictional under the
proposal, would thus no longer be jurisdictional. In addition, certain other wetlands and ephemeral
streams would no longer be jurisdictional under the proposed rule that may have been jurisdictional under
the 2015 Rule and/or pre-2015 practice. Therefore, impoundments of such wetlands and ephemeral
streams would not be jurisdictional under the proposed rule. As discussed previously, the agencies have
not analyzed AJDs for the 2015 Rule and are unable to quantify the potential change in jurisdiction of
impoundments as compared to the 2015 Rule baseline.
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According to ORM2 data from FY 13-FY 17, 751 waters were determined to be jurisdictional
impoundments under pre-2015 practice. Based on these ORM2 data, 7.5 percent of impoundments were
located on non-RPWs. However, non-RPWs as implemented under pre-2015 practice do not directly
correlate with ephemeral streams. Some percentage of non-RPWs are intermittent streams that are not
seasonal but that would be included as jurisdictional waters under the proposed rule. ORM2 data are not
available for impoundments of interstate waters that might not be jurisdictional under the proposed rule,
or for impoundments of tributaries of such interstate waters and wetlands adjacent to such waters. Thus,
the agencies cannot quantify the potential change in jurisdiction of impoundments as compared to pre-
2015 practice based on ORM2 data.
I.A.4.4 Tributaries
As proposed, tributaries may be perennial or intermittent rivers, streams, or similar naturally occurring
surface water channel, while ephemeral features would not be jurisdictional. Under the proposed rule,
such waters must contribute perennial or intermittent flow to a TNW in a typical year either directly or
indirectly through other jurisdictional waters or through the proposed excluded waters so long as those
water features convey perennial or intermittent flow downstream. This represents a change from both pre-
2015 practice and the 2015 Rule with respect to how intermittent and ephemeral streams are considered,
as discussed further. Some perennial streams may also no longer be considered "waters of the United
States" compared to both baselines, as described below. Because ditches are proposed as a separate
category of jurisdictional waters under the proposal, they are discussed in the next section.
Under the 2015 Rule, all streams that meet the definition of tributary (i.e.. contribute flow to a TNW,
interstate water, or territorial sea and have the physical indicators of a bed and banks and an ordinary high
water mark), regardless of flow regime, are jurisdictional without the need for a case-specific significant
nexus evaluation. As compared to the 2015 Rule, the proposed rule would not find any ephemeral features
jurisdictional, including those ephemeral streams meeting the 2015 Rule's definition of tributary. In
addition, some perennial and intermittent streams would not be considered jurisdictional under the
proposed rule that may be jurisdictional under the 2015 Rule if such waters convey perennial or
intermittent flow to TNW in a typical year. For example, in some parts of the country, streams may be
perennial or intermittent at the headwaters but become ephemeral downstream due to natural conditions
(e.g., losing streams) or due to anthropogenic alterations (e.g., water withdrawals). Such perennial or
intermittent waters would not be jurisdictional under the proposed rule but would be jurisdictional under
the 2015 Rule so long as they are characterized by the presence of the physical indicators of a bed and
banks and an ordinary high water mark and contribute flow to a TNW at some unspecified time.
Under pre-2015 practice, all tributaries that are RPWs and non-RPW tributaries that have a significant
nexus with a TNW are jurisdictional. RPWs include waters that are perennial as well as intermittent
waters that are seasonal. Non-RPWs include non-seasonal intermittent tributaries and ephemeral
tributaries. Perennial RPWs do not require further analysis. Seasonal RPWs are also jurisdictional under
pre-2015 practice, but as a matter of policy the Corps conducts a significant nexus determination for such
waters for documentation purposes. Under pre-2015 practice, the unit of analysis of the significant nexus
evaluation is the individual tributary (the entire reach of the stream that is of the same order) and any
wetlands that are adjacent to that reach of the tributary. As compared to pre-2015 practice, the proposed
rule would not regulate any of the ephemeral streams found to be jurisdictional based on a case-specific
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significant nexus evaluation. The proposed rule would potentially regulate non-seasonal intermittent
tributaries that may have been found to be non-jurisdictional after a case-specific significant nexus
evaluation. In addition, the proposed rule would not regulate perennial or intermittent streams that flow
into ephemeral features before flowing to a TNW, whereas such waters would be jurisdictional under pre-
2015 practice if they are RPWs or are non-RPWs that have a significant nexus.
The agencies are unable to quantify what the change in jurisdiction for tributaries would be as compared
to the 2015 Rule or pre-2015 practice on a national scale due to the lack of information on the extent of
ephemeral streams13 and the fact that ephemeral streams are not categorically jurisdictional under pre-
2015 practice. The agencies expect, however, that in portions of the country where ephemeral streams are
more prevalent (e.g., the arid West), the change would be greater relative to other parts of the country.
The agencies are also unable to quantify how many perennial or intermittent streams have ephemeral
reaches that would render such waters non-jurisdictional under the proposed rule.
Tributaries evaluated under pre-2015 practice are categorized as either RPWs or non-RPWs. In ORM2,
RPWs are not further categorized into seasonal intermittent or perennial RPWs, so separating these two
components of RPWs to identify a subset for the baseline would be impracticable. In ORM2 from FY 13-
FY17, 15,980 waters were determined to be jurisdictional as RPWs under pre-2015 practice. The agencies
anticipate that the proposed rule would not change the jurisdictional status of most of these RPWs, and
that they would continue to be jurisdictional under the proposed rule. As discussed previously, there may
be some RPWs that would no longer be jurisdictional under the proposed rule because they do not convey
perennial or intermittent flow to a TNW in a typical year.
Data from ORM2 indicate that many but not all non-RPWs are jurisdictional under pre-2015 practice.
From FY13-FY17, 3,776 waters in ORM2 were determined to be jurisdictional non-RPWs after a case-
specific significant nexus evaluation, while 2,012 non-RPWs were determined to be non-jurisdictional
after a case-specific significant nexus evaluation. The agencies are unable to approximate what
percentage of currently jurisdictional non-RPWs are ephemeral streams and therefore would no longer be
jurisdictional under the proposed definition of "waters of the United States." In addition, the agencies are
not able to quantify the extent of non-RPWs that are intermittent tributaries that were determined to be
non-jurisdictional under pre-2015 practice that could be included as "waters of the United States" under
the proposed rule. There may be some intermittent non-RPWs found to have a significant nexus under
pre-2015 practice that would no longer be jurisdictional under the proposed rule because they do not
convey perennial or intermittent flow to a TNW in a typical year.
I.A.4.5 Ditches
The proposed rule differs from both the 2015 Rule and pre-2015 practice with regard to ditches, as the
agencies are proposing a category of jurisdictional ditches. Ditches that would be jurisdictional under the
proposed rule include ditches that satisfy any of the conditions to be an (a)(1) water (e.g., ditches that are
traditional navigable waters, including tidal ditches); ditches constructed in a tributary or that relocate or
alter a tributary as long as those ditches also satisfy the conditions of the tributary definition; and ditches
constructed in an adjacent wetland as long as those ditches also satisfy the conditions of the tributary
13 Note that only those ephemeral streams meeting the 2015 Rule's definition of tributary would be jurisdictional as a tributary
under that Rule.
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definition. All other ditches are proposed to be excluded from the definition of "waters of the United
States."
Under the 2015 Rule, a ditch is jurisdictional if it is a TNW (including tidal ditches), an interstate water,
or a tributary (so long as it is not excluded). The 2015 Rule excludes ditches with ephemeral flow that are
not a relocated tributary or excavated in a tributary; ditches with intermittent flow 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 TNW, interstate water, or the territorial seas. Under pre-2015 practice, a
ditch is jurisdictional if it is a TNW (including tidal ditches), an interstate water, a relatively permanent
tributary, or a non-relatively permanent tributary that has a significant nexus and is not constructed in dry
land (e.g., is constructed in a wetland or another aquatic resource). Under pre-2015 practice, ditches are
not explicitly excluded in rule text; however, ditches (including roadside ditches) excavated wholly in and
draining only upland and that do not carry a relatively permanent flow of water are generally not
jurisdictional.
The proposed rule's inclusion of ditches that are TNWs (including tidal ditches) does not represent a
change from either baseline.
Under the proposed rule, interstate ditches would not be jurisdictional unless they meet one of the
proposal's three criteria for jurisdictional ditches. Interstate ditches under both baselines would be
jurisdictional. There may be some interstate ditches or ditches that contribute flow to interstate waters that
would be jurisdictional as tributaries under the 2015 Rule or pre-2015 practice that would not be
jurisdictional under the proposed rule. In addition, there may be some ditches that drain wetlands that
would be considered jurisdictional under the 2015 Rule or pre-2015 practice that would not be
jurisdictional under the proposed rule, where the wetlands do not meet the criteria to be adjacent under the
proposal and/or where those ditches do not satisfy the conditions of the proposal's tributary definition.
There may be some perennial or intermittent ditches that would be jurisdictional under the 2015 Rule that
would not be jurisdictional under the proposed rule if such ditches do not convey perennial or intermittent
flow to a TNW in a typical year.
Under the proposed rule, ditches constructed in tributaries, that alter or relocate a tributary, or that are
constructed in the proposed rule's definition of adjacent wetlands would be jurisdictional, so long as such
ditches also satisfy the conditions of the tributary definition under the proposal. Such waters are also
jurisdictional under the 2015 Rule. Under pre-2015 practice such ditches are jurisdictional if they are an
RPW or if they have a significant nexus to a TNW. Similar to the proposed definition of tributaries, there
may be some non-RPW intermittent ditches that alter or relocate a tributary or are constructed in
tributaries or adjacent wetlands and meet the conditions of the proposed rule's definition of tributary that
would be jurisdictional under the proposal but are not jurisdictional under pre-2015 practice because they
do not have a case specific significant nexus. However, the agencies are unable to quantify this potential
change. In addition, some perennial and intermittent ditches would be jurisdictional under pre-2015
practice (e.g., where they are RPWs or have a significant nexus) that would not be jurisdictional under the
proposed rule if such ditches do not convey perennial or intermittent flow to a TNW in a typical year.
Under both baselines, the agencies do not consider whether a ditch is constructed in a water that meets the
definition of "waters of the United States" when determining if it is jurisdictional, but under the proposed
rule, the agencies would need to make such a consideration. For example, if a ditch is draining a wetland,
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that wetland would not need to meet the definition of adjacent for the ditch to be considered jurisdictional
under pre-2015 practice, so long as the ditch is either an RPW or is a non-relatively permanent tributary
that has a case-specific significant nexus.
Finally, under the proposed rule, no ephemeral ditches would be jurisdictional, which is a change from
both baselines. The agencies are not able to quantify these differences, however, for reasons already
discussed.
The agencies are unable to estimate the potential change in jurisdiction for ditches using either the ORM2
data or the NHD and NWI data. As previously discussed, the agencies have not analyzed ORM2 data for
the 2015 Rule AJDs. ORM2 does not track ditches separately as a category for jurisdiction, so the data
cannot be used to determine which ditches the agencies have found to be jurisdictional under pre-2015
practice that would not be jurisdictional under the proposed rule.
I.A.4.6 Lakes and Ponds
Under the proposed rule, the following lakes and ponds would be jurisdictional:
1. lakes and ponds that are TNWs;
2. lakes and ponds that contribute perennial or intermittent flow to a TNW in a typical year14 either
directly or indirectly through tributaries, jurisdictional ditches, other jurisdictional lakes and
ponds, jurisdictional impoundments, or adjacent wetlands or through water features identified in
the proposed rule as exclusions so long as those water features convey perennial or intermittent
flow downstream; and
3. lakes and ponds that are flooded by a TNW, tributary, jurisdictional ditch, other jurisdictional
lake or pond, or jurisdictional impoundment in a typical year.
Under the 2015 Rule, lakes and ponds that are adjacent are jurisdictional. Adjacent is defined in the 2015
Rule to mean "bordering, contiguous, or neighboring." Lakes and ponds that would be jurisdictional
under the proposed rule would also be jurisdictional as adjacent waters underthe 2015 Rule. However,
the 2015 Rule would also include as jurisdictional additional lakes and ponds that do not meet the
proposed rule's definition of "waters of the United States." The 2015 Rule includes as "adjacent"
ephemeral lakes and ponds as well as lakes and ponds that are not flooded by a jurisdictional water in a
typical year, so long as those waters meet that rule's definition of "adjacent." In addition, certain lakes
and ponds would be jurisdictional under the 2015 Rule that would not be jurisdictional under the
proposed rule if such waters do not convey perennial or intermittent flow to a TNW in a typical year.
Thus, the proposed rule would include fewer lakes and ponds as jurisdictional than the 2015 Rule, but this
change cannot be quantified.
Under pre-2015 practice, all relatively permanent lakes and ponds that are considered tributaries are
regulated as "waters of the United States," and would continue to be jurisdictional underthe proposed
rule. The agencies anticipate that these types of lakes and ponds would be jurisdictional because they
14 The term typical year means within the normal range of precipitation over a rolling thirty-year period for a particular
geographic area.
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contribute perennial or intermittent flow either directly to a TNW or indirectly through an otherwise
jurisdictional water or through an excluded feature that conveys perennial or intermittent flow
downstream. In addition, under pre-2015 practice, non-relatively permanent lakes and ponds that are
considered tributaries undergo a case-specific significant nexus evaluation to determine their
jurisdictional status. These non-RPW lakes and ponds would include both non-seasonal intermittent
waters as well as ephemeral lakes and ponds. Some but not all ephemeral lake and pond tributaries are
found to be jurisdictional under pre-2015 practice. Those ephemeral lakes and ponds that are tributaries
under pre-2015 practice would be non-jurisdictional under the proposed rule. Non-seasonal intermittent
lakes and ponds that are tributaries would be considered jurisdictional under the proposed rule. Some but
not all these non-seasonal intermittent lake and pond tributaries are found to be jurisdictional under pre-
2015 practice. Thus, the agencies assume that there may be a change in jurisdiction between pre-2015
practice and the proposed rule for such non-seasonal intermittent lakes and ponds that are tributaries, but
this change cannot be quantified. In addition, certain lakes and ponds would be jurisdictional under the
pre-2015 practice (e.g., where they are RPWs or have a significant nexus) that would not be jurisdictional
under the proposed rule if such waters do not convey perennial or intermittent flow to a TNW in a typical
year.
Available data from ORM2 on the status of lakes and ponds that are tributaries under pre-2015 practice is
discussed in the "Tributaries" section above. The agencies are not able to easily parse from the available
AJD data under pre-2015 practice if the tributary at issue is a lake, a pond, or a stream, as there is no field
in ORM2 for the project manager to denote this. The agencies are therefore not able to estimate the
percentage of non-relatively permanent lake and pond tributaries which are deemed jurisdictional under
pre-2015 practice. Furthermore, as discussed above in the "Tributaries" section, the data do not further
indicate if a non-RPW water is a non-seasonal intermittent water or ephemeral feature, further
complicating any quantification of potential change for this category of waters. The agencies are also
unable to quantify how many lakes and ponds are connected to TNWs through ephemeral reaches that
would render those lakes and ponds non-jurisdictional under the proposed rule
I.A.4.7 Adjacent Wetlands
Under the proposed rule, adjacent wetlands are wetlands that abut or have a direct hydrologic surface
connection to a TNW (including the territorial seas), a tributary, a jurisdictional ditch, a jurisdictional lake
or pond, or a jurisdictional impoundment in a typical year. These are wetlands that are among those that
are contiguous and/or bordering under the 2015 Rule and are directly abutting under pre-2015 practice.
The proposed rule would exclude most wetlands that are "neighboring" per the 2015 Rule and most that
are not directly abutting per pre-2015 practice. The proposal also does not include wetlands separated
from "waters of the United States" by dikes or barriers, natural river berms, beach dunes, and the like as
adjacent wetlands, except where such wetlands have a direct hydrologic surface connection to a TNW,
tributary, jurisdictional ditch, jurisdictional lake or pond, or jurisdictional impoundment in atypical year.
Under the 2015 Rule, all waters, including wetlands, adjacent to a TNW, interstate water, territorial sea, a
tributary (as defined in that rule), or impoundment of a jurisdictional water are considered "waters of the
United States." The 2015 Rule defines adjacent as bordering, contiguous, or neighboring. The 2015 Rule
defines neighboring as:
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(i) All waters located within 100 feet of the ordinary high water mark of a water identified in
paragraphs (a)(1) through (5) of this section. The entire water is neighboring if a portion is
located within 100 feet of the ordinary high water mark;
(ii) All waters located within the 100-year floodplain of a water identified in paragraphs (a)(1)
through (5) of this section and not more than 1,500 feet from the ordinary high water mark of
such water. The entire water is neighboring if a portion is located within 1,500 feet of
the ordinary high water mark and within the 100-year floodplain;
(iii) All waters located within 1,500 feet of the high tide line of a water identified in paragraphs
(a)(1) or (a)(3) of this section, and all waters within 1,500 feet of the ordinary high water mark of
the Great Lakes. The entire water is neighboring if a portion is located within 1,500 feet of
the high tide line or within 1,500 feet of the ordinary high water mark of the Great Lakes.
The 2015 Rule includes more streams as tributaries than the proposed rule as well as more ditches as
"waters of the United States," and therefore, also covers more wetlands adjacent to those 2015 Rule
tributaries. Under the 2015 Rule, wetlands that are part of an ongoing farming, ranching, or silvicultural
operation are not "adjacent," but may be jurisdictional based on a case-specific significant nexus analysis.
In addition, the 2015 Rule's definition of adjacent would include more wetlands as adjacent than the
proposed definition of adjacent. Some wetlands considered neighboring under the 2015 Rule would have
a direct hydrologic surface connection to jurisdictional waters to in a typical year, but many other
neighboring wetlands would not have a direct hydrologic surface connection as defined in the proposed
rule. The 2015 Rule also includes wetlands separated from jurisdictional waters by dikes, berms, barriers,
or similar structures as adjacent, without regard as to whether the wetlands have a direct hydrologic
surface connection to those jurisdictional waters. Thus, the proposed rule would include fewer wetlands
as "waters of the United States" than the 2015 Rule. The agencies are unable to quantify the proposed
rule's reduction in jurisdiction of adjacent wetlands compared to the 2015 Rule.
Under pre-2015 practice, wetlands that are adjacent include wetlands that are bordering, contiguous, or
neighboring a "water of the United States" per the 1980s regulations, including wetlands behind aberm,
constructed barriers, and the like. Not all adjacent wetlands are jurisdictional under pre-2015 practice.
The Rapanos Guidance states that adjacent wetlands are evaluated differently depending on the water to
which they are adjacent (TNWs, RPWs, and non-RPWs). Under pre-2015 practice, wetlands adjacent to
RPWs are analyzed in different ways, depending on whether they are directly abutting. Adjacent wetlands
that directly abut an RPW are jurisdictional without the need for further analysis under pre-2015 practice.
Wetlands adjacent to but not directly abutting an RPW require a case-specific significant nexus analysis
to determine their jurisdictional status. Similarly, all wetlands adjacent to non-RPWs require a case-
specific significant nexus evaluation to determine their jurisdictional status.
Pre-2015 practice includes more streams as tributaries than the proposed rule as well as more ditches as
"waters of the United States," and therefore, also covers more wetlands adjacent to those pre-2015
practice tributaries. Pre-2015 practice also includes wetlands separated from jurisdictional waters by
dikes, berms, barriers, or similar structures as adjacent, without regard as to whether the wetlands have a
direct hydrologic surface connection to those jurisdictional waters. Under pre-2015 practice such
wetlands that are adjacent to TNWs are per se jurisdictional, while such wetlands that are adjacent to
RPWs and non-RPWs are jurisdictional when they have significant nexus. The proposed rule would
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potentially regulate wetlands adjacent to non-seasonal intermittent tributaries that may have been found to
be non-jurisdictional under pre-2015 practice after a case-specific significant nexus evaluation.
The agencies analyzed data in ORM2 from FY13-17 for AJDs for adjacent wetlands conducted under pre-
2015 practice. The ORM2 database under pre-2015 practice includes the following categories of adjacent
wetlands: wetlands adjacent to TNWs, wetlands that directly abut RPWs, wetlands adjacent to but that do
not directly abut RPWs, and wetlands adjacent to non-RPWs. Although the agencies did not analyze
ORM2 data for AJDs conducted under the 2015 Rule, for comparative purposes the agencies do
narratively describe the differences between the proposed rule and both baselines for each previously
mentioned category of adjacent wetlands.
Data in ORM2 from FY13-FY17 indicate that 5,261 waters were determined to be jurisdictional as
wetlands adjacent to TNWs under pre-2015 practice. For these AJDs, the agencies cannot parse out
directly from available data whether a wetland is abutting or not abutting, because the AJD forms only
have a field to indicate whether the wetland is adjacent but not what type of adjacency. To better assess
the potential effect of the proposed rule on the CWA jurisdiction of wetlands adjacent to TNWs under
pre-2015 practice, 25 of the 38 Corps Districts examined specific AJD ORM2 data for wetlands adjacent
to TNWs (all but 38 of the 5,261 wetlands adjacent to TNWs were completed in those 25 Corps Districts)
to assess whether the wetlands are abutting or not abutting a TNW. Some Corps Districts examined all
AJDs for this wetland category from FY 13-FY 17, while other Corps Districts analyzed a random sample
of AJDs. The Corps examined 3,581 of the 5,261 wetlands adjacent to TNWs in the analysis.15 The
Districts used AJD hard copies, information in the administrative file, remote tools, as well as experience
with regional resources and the specific review area in this analysis to determine whether the wetlands
were adjacent and abutting, or whether they were considered neighboring or were behind a berm or
similar feature. Finally, the determinations of whether wetlands were abutting or not abutting were
compiled in spreadsheets, and the agencies used this raw data to calculate the following statistics.
The Corps Districts found that 55 percent of wetlands adjacent to TNWs in the AJDs that were evaluated
were abutting (i.e., touching) and 45 percent of wetlands adjacent to TNWs in the AJDs that were
evaluated were not abutting.16 According to the analysis of the wetlands adjacent to TNWs reviewed by
the Corps Districts, about 10 percent of wetlands adjacent to TNWs that do not abut the TNW have a
surface connection to the TNW via a culvert or tide gate. Such wetlands would most likely have a direct
hydrologic surface connection under the proposed rule and would thus presumably meet the agencies'
proposed definition of adjacent. The agencies do not have additional information to estimate how many of
the other wetlands adjacent to TNWs would be found jurisdictional under the proposed rule due to a
direct hydrologic surface connection where they otherwise do not abut. Because the proposed rule would
include as adjacent wetlands only those non-abutting wetlands that have a direct hydrologic surface
connection, fewer wetlands adjacent to TNWs would be considered jurisdictional as compared to both
baselines. The agencies are unable to quantify this change.
15 See Appendix A.
16 The agencies have placed in the docket as a "Supporting Document" a table of the Corps wetlands adjacent to TNW
determinations that were evaluated listed by their Department of the Army (DA) Number. Docket materials are available at
https://www.regulations.gov/ (Docket ID: EPA-HQ-OW-2018-0149).
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Under pre-2015 practice, from FY13-FY17, 11,203 waters were determined to be jurisdictional wetlands
directly abutting an RPW. These wetlands would also be jurisdictional under the 2015 Rule. The agencies
do not anticipate that the proposed rule would change the jurisdictional status of these wetlands as
compared to either baseline.
Under pre-2015 practice, the agencies' data indicate that most wetlands that are adjacent to but that do not
directly abut RPWs are found to be jurisdictional following a significant nexus analysis. In ORM2 from
FY13-FY17, there were 3,939 adjacent wetlands that do not directly abut an RPW, and thus required
additional jurisdictional analysis. Of these, 3,834 waters were determined to be jurisdictional because they
had a significant nexus, and 105 were found non-jurisdictional because they lacked a significant nexus -
meaning approximately 97 percent of such wetlands were determined to be jurisdictional under pre-2015
practice. Under the 2015 Rule, wetlands that meet the definition of adjacent, which is broader than the
proposed definition, would be considered as "waters of the United States." As compared to the proposed
rule, these wetlands would not be jurisdictional unless they have a direct hydrologic surface connection to
the jurisdictional water in a typical year. The agencies have no additional information about the extent of
such wetlands, but anticipate that many such wetlands would lack such a connection. Thus, compared to
both baselines, fewer wetlands would be jurisdictional under the proposed rule for this category of
wetlands where they do not abut the RPW and lack a direct hydrologic surface connection to the RPW in
a typical year.
Available data from AJDs indicate that under pre-2015 practice, most wetlands adjacent to non-RPWs
have been determined to be jurisdictional after a case-specific significant nexus analysis that considered
both the non-RPW and its adjacent wetlands. In ORM2 from FY13-FY17, 1,681 waters were determined
to be jurisdictional wetlands adjacent to a non-RPW17 and 152 wetlands adjacent to a non-RPW were
determined to be non-jurisdictional - 92 percent of wetlands adjacent to non-RPWs were determined to
be jurisdictional. The agencies are not able to further parse out which of these non-RPWs were
intermittent or ephemeral or to parse out which adjacent wetlands are abutting. Thus, the agencies are
unable to quantify what the change in jurisdiction would be for this category of wetlands as compared to
the proposed rule. Wetlands abutting intermittent non-RPWs or that have a direct hydrologic surface
connection to intermittent non-RPWs in a typical year would be jurisdictional under the proposed rule.
Wetlands adjacent to ephemeral non-RPWs and wetlands that do not have a direct hydrologic surface
connection to intermittent non-RPWs in a typical year would not be jurisdictional under the proposed
rule. Thus, compared to both baselines, fewer wetlands would be considered jurisdictional under the
proposed rule for this category of wetlands, but the agencies are not able to quantify this change.
I.A.4.8 Nonnavigable, Isolated, Intrastate Waters
Nonnavigable, isolated, intrastate waters would not be considered "waters of the United States" under the
proposed rule. They would expressly fall into the proposed rule's first exclusion for waters not identified
in the proposal's categories of "waters of the United States." As noted previously, since the Supreme
Court's decision in 2001 in SWANCC, the agencies have not determined jurisdiction based on the (a)(3)
category of the 1980s regulations. Some of these waters that have been determined to be non-
17 The non-RPWs were also determined to be jurisdictional in these cases, as under pre-2015 practice the agencies evaluate the
tributary along with any adjacent wetlands for a case-specific significant nexus.
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jurisdictional under pre-2015 practice would be determined jurisdictional underthe 2015 Rule either
because they meet that rule's definition of adjacent or under a case-specific nexus analysis under the
(a)(7) (for similarly situated regional waters) or (a)(8) categories.
In ORM2 from FY13-FY17, 20,353 waters were determined to be non-jurisdictional non-navigable,
isolated, intrastate waters under pre-2015 practice. As compared to pre-2015 practice, the agencies do not
anticipate that there will be a change in jurisdiction for nonnavigable, isolated, intrastate waters. There
may be a change as compared to the 2015 Rule baseline, but the agencies are not able to quantify that
change and have not analyzed data from ORM2 for AJDs conducting using the 2015 Rule.
I.A.4.9 Waters Excluded from the Definition of "Waters of the United States"
The proposed rule would explicitly exclude waters that are not included in the definition of "waters of the
United States." The prior sections of this chapter discuss the potential effects of the proposal's definition
of "waters of the United States" on waters that may have been determined to be jurisdictional under one
or both baselines that may not be jurisdictional under the proposed rule. This section addresses potential
effects of the proposed rule's exclusions compared to exclusions under each of the baselines. Where the
agencies assume no changes or limited changes when comparing the exclusions identified in paragraph
(b) of the proposal and those of pre-2015 practice or the 2015 Rule, there is no further discussion. For
example, many of the water features that the 2015 Rule specifically excludes and that are generally not
considered "waters of the United States" under pre-2015 practice would not be included in the proposed
definition of "waters of the United States" and therefore would be excluded under (b)(1) of the proposed
definition. In addition, groundwater, including groundwater drained through subsurface drainage systems,
is excluded in the both the proposed rule and the 2015 Rule, and such groundwater, though not
specifically excluded in the regulatory text, is not considered a "water of the United States" under pre-
2015 practice.
Under pre-2015 practice, the agencies do not record in the ORM2 database if a water is excluded from the
definition of "waters of the United States" due to one of the regulatory exclusions. Such waters may be
entered into the database as "uplands." However, other aquatic resources or features that the Corps
determines to not meet the regulatory definition of "waters of the United States" are also categorized as
"uplands" in the database. The Corps conducted 14,357 upland determinations in FY 13-17 under pre-
2015 practice. The agencies are unable to query ORM2 to determine how many waters have been
determined to meet an exclusion from the definition of "waters of the United States" under pre-2015
practice. After the 2015 Rule was finalized, the ORM2 database was updated to track when waters were
determined not to be "waters of the United States" due to the exclusions underthe 2015 Rule, but the
agencies have not analyzed the 2015 Rule AJDs for the reasons previously stated.
Ephemeral Features and Diffuse Stormwater Run-off
The proposed rule would exclude ephemeral features and diffuse stormwater water run-off, including
directional sheet flow over upland from the definition of "waters of the United States." As previously
discussed, the exclusion for all ephemeral features represents a change from both pre-2015 practice and
the 2015 Rule. For example, pre-2015 practice includes those ephemeral streams that contribute flow to
downstream TNWs as jurisdictional where they have a case-specific significant nexus, and the 2015 Rule
includes as jurisdictional ephemeral streams that meet that rule's definition of tributary. The agencies are
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I Introduction and Overview
unable to estimate the change in jurisdiction from either baseline due to this portion of the exclusion in
the proposed rule. The exclusion for diffuse stormwater runoff does not represent a change, as diffuse
stormwater water run-off (including directional sheet flow over upland) is not considered jurisdictional
under either baseline.
Ditches
In terms of the exclusions for ditches, all ditches that are not identified in the ditch category of "waters of
the United States" are excluded in the proposed rule. The discussion of the change from both baselines is
included in the "Ditch" section above; the agencies are unable to quantify potential changes as a result of
the proposed ditch exclusion.
Prior Converted Cropland
The proposed rule continues to exclude all prior converted cropland. The proposed rule defines prior
converted cropland as "any area that, prior to December 23, 1985, was drained or otherwise manipulated
for the purpose, or having the effect, of making production of an agricultural product possible. EPA and
the Corps will recognize designations of prior converted cropland made by the Secretary of Agriculture.
An area is no longer considered prior converted cropland for purposes of the Clean Water Act when the
area is abandoned and has reverted to wetland, as defined in paragraph (c)(15) of the proposal.
Abandonment occurs when prior converted cropland is not used for, or in support of, agricultural
purposes at least once in the immediately preceding five years. For the purposes of the Clean Water Act,
the EPA Administrator shall have the final authority to determine whether prior converted cropland has
been abandoned." Wetlands are defined as "areas that are inundated or saturated by surface or ground
water at a frequency and duration sufficient to support, and that under normal circumstances do support, a
prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include
swamps, marshes, bogs, and similar areas."
Neither the 2015 Rule nor pre-2015 practice define "prior converted croplands," nor do they explain when
cropland can lose the prior converted designation. However, the preamble to EPA and the Corps' 1993
regulations provided that land would lose its prior converted status if it is abandoned and it exhibits
wetland characteristics.18 Subsequently, a 2005 Memorandum to the Field issued by the Army and USDA
states that a certified prior converted cropland determination remains valid as long as the area is devoted
to an agricultural use.19 The memorandum further states that if the land changes to a non-agricultural use,
the prior converted determination no longer applies and a new jurisdictional determination is required, the
2005 memorandum did not clearly address the abandonment principle that the agencies had been
implementing since the 1993 rulemaking. The change in use policy was never promulgated as a rule and
18 58 FR 45034 (August 25, 1993). The agencies summarized the abandonment provision by explaining that prior converted
cropland is considered to be abandoned unless at least once in every five years the area has been used for the production of
an agricultural commodity, or the area has been used and will continue to be used for the production of an agricultural
commodity in a commonly used rotation with aquaculture, grasses, legumes or pasture production.
19 "Memorandum to the Field: Guidance on Conducting Wetland Determinations for the Food Security Act of 1985 and Section
404 of the Clean Water Act," February 25, 2005. Available at
https://prod.nrcs.usda.gov/Internet/FSE DOCUMENTS/nrcsl43 007869.pdf.
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was declared unlawful by one district court because it effectively modified the 1993 preamble language
without any formal rulemaking process.20
The proposed definition of prior converted cropland is consistent with guidance for prior converted
cropland included in the preamble to the 1993 amendment to the regulatory definition of "waters of the
United States" to categorically exclude "prior converted croplands" (58 FR 45033). Not all cropland
eligible for the proposed CWA prior converted cropland exclusion has been mapped and officially
designated by U.S. Department of Agriculture's Natural Resources Conservation Service (NRCS).
Further, the agencies note that NRCS is statutorily prohibited from sharing data and information on
program participants and their land, even with other federal agencies.21 In addition, the agencies do not
document in ORM2 when waters meet the prior converted cropland exclusion under pre-2015 practice, so
no agency data exist to provide estimates on the current extent of prior converted cropland. Therefore, it
is likely that not all land that qualifies by statute as prior converted cropland has been formally designated
as such.
To establish a baseline and estimate any potential effect of the proposed rule language, the agencies
would need to have estimates of the acreage of prior converted cropland that would lose the prior
converted designation if it were subject to the abandonment principles and, of such abandoned prior
converted cropland, how much has reverted to wetlands. The agencies would then need to establish the
acreage of the abandoned prior converted cropland that has reverted to wetlands, and the acreage of the
wetlands that would meet the proposed definition of adjacent wetlands. Because fewer wetlands would
likely be jurisdictional under the proposed rule compared to both baselines, it is therefore likely that there
would be fewer wetlands that would now be considered "abandoned" and also subject to the CWA under
the proposed rule.
Under both baselines, prior converted cropland loses its status as an excluded water under the CWA if it
is either abandoned or if it is subject to a change in use. The proposed rule would clarify that the only way
for prior converted cropland to lose its status as an excluded water under the CWA is when the area is
abandoned and has reverted to a wetland meeting the regulatory definition of "wetlands." The proposal
further clarifies that prior converted cropland is abandoned if it is not used for, or in support of,
agricultural purposes at least once in the immediately preceding five years. The agencies note that most
prior converted cropland should not regain wetland status since it is generally manipulated to such a
degree that wetland conditions would not return. As is the practice under both baselines, where wetland
conditions do not return, the area would not be subject to the CWA. However, where wetland conditions
do return, anew jurisdictional determination would be required to determine if the wetlands would be
adjacent as proposed. Since the agencies would no longer apply the change in use provision as used under
both baselines to prior converted cropland, fewer wetlands may be identified as jurisdictional under the
proposed rule compared to both baselines. Under both baselines, "change in use" did not require that the
20 New Hope Power Co. v. U.S. Army Corps ofEng 'rs, 746 F. Supp. 2d 1272, 1282 (S.D. Fla. 2010).
21 Section 1619 of the Food, Conservation, and Energy Act of 2008 prohibits USDA, its contractors, and cooperators, from
disclosing information provided by an agricultural producer or owner of agricultural land concerning the agricultural
operation, farming or conservation practices, or the land itself, in order to participate in a USDA program, as well as
geospatial information maintained by USDA with respect to such agricultural land or operations, subject to certain
exceptions and authorized disclosures. Covered information may only be shared with other federal agencies outside USDA
for specific purposes under a cooperative program, i.e., not for general regulatory or enforcement purposes.
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area not be used for agricultural purposes at least once in the immediately preceding five years (this time
requirement was only in place for the abandonment provision); change from an agricultural to a non-
agricultural use could occur immediately.
Artificially Irrigated Areas. Artificial Lakes and Ponds, and Water-Filled Depressions
The proposed rule includes an exclusion for artificially irrigated areas, including fields flooded for rice or
cranberry growing, that would revert to upland should application of irrigation water to that area cease.
The text of the exclusion changes somewhat from that of the 2015 Rule's exclusion and the 1986
preamble language used under pre-2015 practice by combining factors from two of the 2015 Rule's
exclusions and from two of the 1986 preamble's categories of waters that are generally not jurisdictional
into one category and by adding fields flooded for cranberry growing.22 In spite of the differences in the
language for the proposed exclusion, the agencies anticipate that there will be no or little change as
compared to both baselines.
The proposed rule includes an exclusion for artificial lakes and ponds constructed in upland, such as
water storage reservoirs, farm and stock watering ponds, and log cleaning ponds, and that are not
jurisdictional lakes and ponds or jurisdictional impoundments under the proposal. The proposed rule
differs from the 2015 Rule and pre-2015 practice by identifying water storage reservoirs as an additional
excluded type of artificial lakes and ponds, and does not specifically include cooling ponds in this
exclusion. Cooling ponds are specifically included in the definition of waste treatment systems in the
proposed rule, which are discussed below. The proposed rule text also differs somewhat from pre-2015
practice where these features are to be used exclusively for the stated purposes. Artificially water storage
reservoirs are not specifically excluded in the 2015 Rule and are not specifically listed as a category of
water that is generally not jurisdictional in the 1986 preamble. Therefore, there could be waters excluded
under the proposed rule that would not be excluded under either baseline. The agencies are unable to
quantify that change.
The proposed rule's exclusion for water-filled depressions created in upland incidental to mining or
construction activity, and pits excavated in upland for the purpose of obtaining fill, sand, or gravel is not
appreciably different from the 2015 Rule's exclusion for water-filled depressions, and the agencies
anticipate no change from the 2015 Rule for this exclusion. The proposed exclusion differs from the text
of the 1986 preamble language used under pre-2015 practice for waters that are generally not
jurisdictional, as the 1986 preamble includes additional specifications that such waters are generally non-
jurisdictional unless and until the construction or excavation operation is abandoned and the resulting
body of water meets the definition of "waters of the United States." Therefore, there could be waters
excluded under the proposed rule that would not be excluded under pre-2015 practice. The agencies are
unable to quantify that change.
Stormwater Control Features
22 "Fields flooded for rice growing" under pre-2015 practice would likely be considered features that are generally non-
jurisdictional, as they would be "[a]rtificial lakes or ponds created by excavating and/or diking dry land to collect and retain
water and which are used exclusively for such purposes as.. .rice growing." 51 FR 41217 (November 13, 1986). Such fields
are explicitly excluded in the 2015 Rule.
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The proposed rule's exclusion for stormwater control features differs from the 2015 Rule's exclusion in
that the 2015 Rule limited such exclusions to features that convey, treat, or store stormwater run-off,
while the proposal's exclusion added the term "infiltrate." There is no such exclusion for stormwater
control features under pre-2015 practice, though some stormwater features may be considered and found
non-jurisdictional on a case-specific basis. The agencies are unable to quantify the magnitude, if any, of
such a change.
Wastewater Recycling Structures
The proposed rule excludes wastewater recycling structures constructed in upland, such as detention,
retention and infiltration basins and ponds, and groundwater recharge basins. The 2015 Rule contains a
similar exclusion for wastewater recycling structures constructed in dry land that does not specifically
include basins and ponds used for infiltration but does specify that the exclusion applies to percolation
ponds built for wastewater recycling and water distributary structures built for wastewater recycling. The
agencies anticipate that there would be no practical difference between the two exclusions, as the
exclusions generally apply to wastewater recycling structures constructed in upland. Such waters are
likely not considered jurisdictional under pre-2015 practice unless they are connected to the tributary
network, and even then, some such waters could be considered as excluded under the exclusion for waste
treatment systems.
Waste Treatment Systems
The agencies propose to continue the exclusion for waste treatment systems but with textual changes from
both baselines. The agencies propose to revise the text in the waste treatment system exclusion to read
just "waste treatment systems" and propose to define waste treatment systems for the first time to include
all components, including lagoons and treatment ponds (such as settling or cooling ponds), designed to
convey or retain, concentrate, settle, reduce, or remove pollutants, either actively or passively, from
wastewater prior to discharge (or eliminating any such discharge). The agencies do not intend for this
proposed rule to change pre-2015 practice or application under the 2015 Rule regarding the waste
treatment system exclusion. Thus, the agencies anticipate no change from either baseline for the exclusion
for waste treatment systems.
I. A. 5 Summary
As discussed in this section, the agencies' analysis indicates that the largest potential effects associated
with the proposed rule policies would be to wetlands and ephemeral streams. Not all wetlands are
jurisdictional under the 2015 Rule or pre-2015 practice. Similarly, not all ephemeral streams would be
"waters of the United States" under the 2015 Rule or pre-2015 practice, but the agencies anticipate that in
those instances where ephemeral streams would have been found jurisdictional under the pre-2015
practice, their jurisdictional status would change under the proposed rule. Some intermittent and perennial
streams may also no longer be jurisdictional under the proposed rule that may be jurisdictional under the
2015 Rule and pre-2015 practice, if such streams do not convey perennial or intermittent flow to a TNW
in a typical year. In addition, there could be a subset of interstate waters, their tributaries, and
impoundments of the above waters that were jurisdictional under the 2015 Rule and pre-2015 practice
that would not be jurisdictional under the proposed rule according to the proposed elimination of
interstate waters as a separate category of jurisdictional waters.
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The proposed rule would likely not affect the scope of jurisdictional TNWs, most perennial streams, or
many intermittent streams. As discussed above, the agencies anticipate that the proposed rule would
decrease the number of jurisdictional wetlands and impoundments, and the scope of lakes and ponds that
are jurisdictional would likely be smaller when compared to the pre-2015 practice.
The agencies recognize that some of the waters that would not be subject to CWA jurisdiction under the
proposed rule would be otherwise regulated under state or tribal authorities and programs. This is
discussed further in Section II.B and in the RPA.
I.B Overview of Economic Analysis
The legal uncertainty of the 2015 Rule creates the need for two economic baselines. The primary baseline
reflects the 2015 Rule being in effect. A second alternate baseline is the pre-2015 regulations as
implemented consistent with Supreme Court decisions and informed by applicable guidance documents
and longstanding agency practice (i.e.. the 2015 Rule not being in effect). This regulatory regime was in
place immediately prior to the 2015 Rule, and the agencies continued to administer these regulations
pursuant to judicial stays of the 2015 Rule23. The agencies are currently implementing the pre-2015
practice in those 28 states where the 2015 Rule is enjoined, and this is the regulatory regime that the
agencies have proposed to recodify in Step 1.24 This alternate baseline reflects the fact that the 2015 Rule
has never been in effect nationwide.
The agencies have applied a two-stage analysis for the economic analysis for the proposed rule to revise
the definition of "waters of the United States" to make the best use of limited local and national level
water resources information available to inform stakeholders and the public about the potential
implications of these proposed actions. The agencies confronted limitations in a critical dataset that they
determined would not allow analysis of the proposed rule from the primary baseline directly to the
proposed policy. The agencies considered conducting a geospatial analysis of the regulatory options and
identifying specific waterbodies that would potentially no longer be jurisdictional. However, the database
which the agencies understood to be the most comprehensive and nationally-consistent geospatial surface
hydrology data available, the National Hydrography Dataset,25 does not differentiate between waterbody
types at a sufficiently refined level nationally to make accurate policy-relevant distinctions. The proposed
rule would exclude ephemeral features from federal jurisdiction (but would cover intermittent and
perennial "tributaries" as defined in the proposal); thus, systematic analysis of available national datasets
could not accurately portray the potential effects of the proposed definition on streams nationwide.
Additionally, the National Wetlands Inventory (NWI) does not use the agencies' regulatory definition of
wetlands, further complicating the task of modeling the potential effects of the proposed rule. Finally,
certain waters are not categorically jurisdictional under pre-2015 practice (e.g., non-relatively permanent
waters such as all ephemeral streams and some intermittent streams), and the jurisdictional status of such
waters must be determined using a case-specific significant nexus analysis. As a result, the agencies do
23 See In re EPA &Dep'tofDef. Final Rule, 803 F.3d 804 (6th Cir. 2015) (staying 2015 Rule nationwide on October 9, 2015);
North Dakota v. EPA, 127 F. Supp. 3d 1047 (D.N.D. 2015) (issuing preliminary injunction against 2015 Rule in 13 states on
August 27, 2015, prior to the rule's effective date).
24 See "Definition of 'Waters of the United States' Recodification of Pre-Existing Rules," 82 FR34899 (Proposed July 27, 2017).
25 United States Geological Survey (USGS), https://nhd.USgS.gOvA accessed April 17, 2018.
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I Introduction and Overview
not believe that they can identify the universe of federally regulated waters under the pre-2015 practice in
order to establish a comparative baseline of jurisdictional waters. See Section II.C and the proposed rule's
RPA for more detailed discussion of the data limitations.
Instead, the agencies are analyzing the effects of the proposed policy in two discrete stages. The first
stage (hereafter Stage 1) assesses the potential impacts of moving from the 2015 Rule to the pre-2015
baseline (i.e., repealing the 2015 Rule and recodifying the prior regulations), and entails a less
comprehensive set of waters being considered "waters of the United States." For the Stage 1 analysis, the
agencies can use the original 2015 Rule economic analysis as a starting point, and thus pursue a
quantitative assessment limited to Stage 1. However, several significant changes to the 2015 Rule analysis
are made to account for the incorporation of existing state laws and programs that regulate water and
potential state governance responses, as well as other analytic changes incorporating better information in
assessing the potential benefits and costs of the Stage 1 effects.
The second stage (hereafter Stage 2) examines the potential costs and benefits of moving to a new
definition under the proposed rule from the pre-2015 baseline. Due to the analytic and data challenges
discussed throughout, the agencies provide a series of qualitative analyses, three detailed quantitative case
studies, and a national CWA 404 program analysis. The agencies determined that a qualitative analysis
and a series of case studies, where waters potentially could be assessed on a smaller scale in specific
locations, was the best available alternative for applied empirical work estimating the potential benefits
and costs of this proposed rule. Focusing on smaller geographic scales allows the analyses to focus on
areas with better than average data availability, and when possible, to utilize additional location specific
data sources. The results of the case studies illustrate that only data for the CWA 404 program are
available and suitable for conducting a national level analysis. The national CWA 404 program analysis
does not provide the total avoided costs and forgone benefits of the proposed rule (CWA section 402, 311
and other programs are not captured), but it does allow for a direct comparison between the estimated
impacts of the Stage 1 and Stage 2 analyses and does provide national totals for the CWA 404 program.
The outputs of the two-stage analysis were determined to be the best way to illustrate the expected impact
of the 2015 Rule being in effect nationwide (i.e., the sum effect of both stages) and of the 2015 Rule not
being in effect (i.e., Stage 2 only). The alternate pre-2015 baseline is important to consider given the legal
uncertainty of the 2015 Rule.
Dividing the EA into two stages allows the agencies to examine the potential effects of the proposed
change that maximizes the use of available information. Together, these two stages describe the potential
effects of moving from the 2015 Rule to the proposed rule. The agencies solicit comment on the overall
approach to conducting this economic analysis including whether they should consider conducting
additional case studies and whether there are methods by which they can aggregate the quantitative results
from the three case studies to a nationwide estimate.
Although there might appear to be a correlation between the analysis of the 2017 proposed rule to repeal
the 2015 Rule and recodify the prior regulations ("Step 1") and the 2018 proposed rule to revise the
definition of "waters of the United States" ("Step 2") and Stages 1 and 2 of this analysis, the agencies are
adopting the nomenclature of "Stages" here, because this full document is the analysis of the proposed
Step 2 rule considering both of the two possible states of the world. However, the Stage 1 analysis, found
in Section III, should be considered distinct from an analysis of the Step 1 rule; the agencies are not
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I Introduction and Overview
modifying or finalizing that rule with this action. Should the agencies finalize the Step 1 rule in the future,
the agencies would finalize an economic analysis focused on the Step 1 rule and refer to it as the
economic analysis of the Step 1 final rule.
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II Discussion and Analyses of the Major Causes of Uncertainty
11. Discussion and Analyses of the Major Causes of Uncertainty
The first section of this EA systematically outlines the complexity and various layers of uncertainty
regarding the potential implications of the proposed change in the regulatory regime. The final economic
welfare implications of this proposed rule will be a function of the amount, type, and location of water
resources that change CWA jurisdictional status, the level of water resource regulation undertaken by
individual states and tribe before and in response to the proposed change, and the responses of regulated
entities to the proposed change. Tree-diagrams like the one in Figure II-l provide a systematic framework
for understanding and qualitatively analyzing the potential implications of the proposed rule, and provide
a useful introduction to the subsequent analyses that go into further detail regarding one or several layers
of uncertainty. As shown in the stylized example in Figure II-1, the potential effects of the proposed
change in the jurisdictional status of waters can range from having a minimal and possibly zero impact, to
yielding savings in compliance costs and losses in environmental benefits.26 In some cases, the proposed
rule may result in an increase in net benefits.
26 See Section IV for analogous diagrams and qualitative analyses specific to three key CWA programs potentially affected by the
proposed rule (sections 402, 404, and 311).
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II —Discussion and Analyses of the Major Causes of Uncertainty
Figure 11-1: Stylized tree diagram of potential impacts from proposed rule.
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In the simplest case, as shown in the rightmost branch in Figure II-1, if an entity (e.g., a development
project, manufacturing facility, or state transportation project) impacts a water that is not considered a
"water of the United States" in the baseline regulatory regime, then it is also assumed not to be a "water
of the United States" under the proposed rule, and hence there would be no changes in the compliance
costs incurred by that entity nor in the environmental benefits experienced. Therefore, there is no impact
to society in this situation.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised 28
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II Discussion and Analyses of the Major Causes of Uncertainty
At the other extreme, in the leftmost branch of Figure II-1, if an entity impacts a water that is considered a
"water of the United States" in the baseline, and this water is also considered a "water of the United
States" under the proposed rule, then there will also be no change in regulatory requirements, and thus no
change in compliance costs or environmental benefits. Again, in this situation there is a zero-net impact to
society. As described in the program specific analyses in Section IV, many categories of baseline
activities regulated under the CWA sections 401, 402, 303(d), 404, and 311 will likely fall into this type
of situation and continue to be regulated by the CWA under the proposed rule.
The cases of interest are those where an entity directly or indirectly impacts a water that is considered a
"water of the United States" under the baseline regulatory regime but would no longer be considered a
"water of the United States" under the proposed rule. Generally, the state/tribal governments could take
one of three actions in response to the proposed rule. First, a state or tribe's current regulatory regime
under state or tribal law may already be as comprehensive, or more comprehensive, than that of the
federal government. It is also possible that a state or tribe will revise its current laws and regulations to
address these waters and continue the actions required by the CWA in the baseline. In either case, state or
tribal requirements would fully address any regulatory difference in the wake of the proposed change in
what waters are considered a "water of the United States." This will result in no change in compliance
costs to the regulated community and no change in environmental benefits.
It is important to emphasize that any shift in regulatory administration, implementation, and enforcement
from the federal government to states or tribes represents a transfer in administrative costs. If federal and
state or tribal administrative costs are similar, the net impact should be roughly zero in the long-run.
However, there could be significant short-run, and possibly long run, costs to states and tribal
governments to build, expand, and maintain the necessary regulatory infrastructure. To the extent that
state, tribe, or local cost of implementing an expanded regulatory framework are greater than the previous
federal expenses, net benefits could decrease. It is also possible that the state and local management costs
could be borne most directly by state and local tax payers, although the data necessary to estimate the size
and distribution of the tax impacts was not available for use in this analysis. The agencies recognize that
this would be more of an issue in some programs than others (e.g., oil spill response under the 311
program), and is described in more detail in the program specific analyses in Section IV and in the state
response analysis in Section II.A.
Another potential outcome is a federalism scenario, where states, tribes, and local governments who may
be more knowledgeable of the local factors that can influence the environmental and economic values of
the waterbodies in their jurisdiction can allocate resources more efficiently than the federal government to
focus programs on aquatic resources of relatively higher environmental and social value. Depending on
whether the newly non-jurisdictional water would be regulated, the compliance costs for an individual
water resource could increase or decrease accordingly. And in turn, the corresponding environmental
benefits could increase or decrease
A final scenario is that states or tribes would invoke a less comprehensive regulatory regime in response
to the change in CWA coverage, or not implement any state or tribal regulations beyond federal
requirements. For example, some states and all tribes are currently not authorized to implement the
NPDES program, and so they would potentially not have the capacity (staff and resources) to regulate
discharges to waters that would no longer be jurisdictional. These states or tribes may opt to not build
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such a capacity depending on the preferences of their residents and budget constraints, or the fact that
they currently have legal requirements to not regulate beyond the CWA.27 In such cases, unless regulated
entities continue to behave as if still regulated (due to fixed costs already incurred, fear of future liability,
or goodwill with local citizens), there will likely be avoided costs to the regulated community and forgone
benefits to the public. Whether the net effect is positive or negative would depend on whether the
resulting cost-savings are greater than the absolute value of the forgone environmental benefits. Regulated
entities' potential responses are more thoroughly described in Section II.B and under the program specific
discussions in Section IV.A.
Overall, the generalized tree diagram here (Figure II-1) and program specific tree-diagrams in Section
IV.A provide a systematic and transparent organization to the qualitative discussion. These diagrams
convey that in many cases the potential net effects could be minimal. Quantifying the frequency in which
the scenarios in any branches of the tree take place, not to mention the magnitude of any resulting costs
and benefits, is extremely difficult. Doing so requires data and well-informed assumptions regarding the
current characterization of waters nationwide, the potential changes in "waters of the United States"
across the country, and the potential response of state and tribal governments and the regulated entities
across the various CWA programs and regulated waters. In addition, such a quantitative analysis faces the
usual challenges of trying to model, quantify, and monetize the potential costs and benefits. For these
reasons, the agencies pursue qualitative analyses organized around each of the key layers of uncertainty
(as discussed through the remainder of Section II) and around key CWA programs where the agencies
would expect to see potential effects (see Section IV.A).
II.A Potential State and Tribal Regulator Response
The CWA programs outlined in this section, including the section 303 water quality standards program,
the section 311 Oil Spill Prevention program, the section 401 certification program, the section 402
National Pollutant Discharge Elimination System (NPDES) permit program, and the section 404 permit
program for the discharge of dredged or fill material, rely on the definition of "waters of the United
States" for program implementation. A revised definition of "waters of the United States" would affect
these federal programs as implemented at the state or tribal level. Potential effects of this rule, however,
will vary based on a state's or tribe's independent legal authority and programs under its own state or
tribal law to regulate aquatic resources. Please refer to the Resource and Programmatic Assessment for a
more in-depth discussion of these and other programs potentially affected by this rule.
II.A. 1 Implementation of the CWA at the State Level
The purpose of this section is to summarize the current status of CWA programs in the states and describe
how that information is used to characterize the states' potential responses regarding waters that would no
longer be jurisdictional under the CWA following a revised definition. The agencies recognize that the
federal and state laws and programs can be duplicative with some states having more stringent
27 For example, to prepare for NPDES authorization, the state of Alaska created a capacity building plan that increased the full-
time equivalents (FTEs) allocated to the program by nearly 50 percent (ADEC 2008); the state of Idaho anticipated more
than doubling the relevant staff (IDEQ 2017); and the state of Massachusetts estimates that authorization would require over
100 FTE (MassDEP 2013).
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requirements than the federal regulations. How these programs are administered and affect the water
pollution source behavior will depend on the requirements or permits issued.
I.A.1.1 CWA Section 401 Water Quality Certification Program
All 50 states, the District of Columbia, and the territories of the United States have 401 certification
programs which provide the states authority to approve, disapprove, or conditionally approve federal
permits and licenses issued within their state. States vary in their implementation of CWA section 401
authority; some states involve themselves in federal permitting activities and make informed certification
decision, while others often waive their certification authority over federal permits and licenses. For
purposes of this analysis, the agencies assume that state approaches to section 401 certification are
unlikely to change following anew jurisdictional rule.
The authority of states under section 401 corresponds directly to the issuance of federal permits and
licenses within the state. Any change in the scope of the "waters of the United States" definition would
alter the frequency with which the federal government issues permits and licenses for activities affecting
"waters of the United States." In turn, this will potentially affect how often states can exercise their
authority under section 401. In other words, if the federal government reduces the jurisdictional scope
under the CWA (e.g., fewer section 404 permits issued), it would not issue as many permits, and the
states would not issue as many section 401 certifications. This would result in states issuing fewer section
401 certifications but is unlikely to change how states approach the section 401 process.
I.A.1.2 CWA Section 402 National Pollutant Discharge Elimination System
The CWA section 402 NPDES permit program is administered by the EPA, unless states have received
authorization for the program. Forty-seven states and the U.S. Virgin Islands have authority to administer
the NPDES program.28 States may be approved for all or some of the major components of an NPDES
program: biosolids, pretreatment, federal facilities, and general permits and basic municipal and industrial
permits. Seven states are fully authorized for all components of the NPDES program.29 Forty states have
authority over one or more of the NPDES program components, with EPA administering the other
components.30 Currently, the EPA issues all NPDES permits in the three states that do not have authority
for the NPDES program as well as all permits in the District of Columbia, all U.S. Territories (excluding
the U.S. Virgin Islands), and on virtually all tribal reservation lands.31
28 Idaho has recently been approved to run its own NPDES program, effective July 1,2018, and will be taking over
administration of the program in four phases over four years.
29 Those states with fully authorized programs are: Arizona, Michigan, Ohio, Oklahoma, South Dakota, Utah, and Wisconsin.
30 Those states with partial NPDES authorization are: Alabama, Alaska, Arkansas, California, Colorado, Connecticut, Delaware,
Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Minnesota,
Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New York, North Carolina, North Dakota, Oregon,
Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, Washington, West Virginia, and
Wyoming.
31 The three states are Massachusetts, New Hampshire, and New Mexico. At present, no tribes have authorization for a tribal
NPDES permitting program. Maine is authorized to issue NPDES permits on some tribal lands.
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The agencies are aware that many states issue discharge permits under state law that are separate from the
scope of the federal NPDES program. These state programs may already regulate state waters that are not
considered "waters of the United States" or could be used to do so in the future. At this time, the agencies
do not have sufficient information to determine the extent of these programs. Should federal CWA
jurisdiction change, these authorized state programs may continue issuing permits as they have been for
discharges into waters outside the scope of CWA jurisdiction. Alternatively, if the discharge is no longer
into a "water of the United States," states may modify existing NPDES permits to recognize that the
receiving waterbody of concern is further away from the pollutant discharge point requiring an NPDES
permit.
I.A.1.3 CWA Section 404 Dredged and Fill Permit Program
The CWA section 404 permitting program regulates the discharge of dredged or fill material into "waters
of the United States" including wetlands. The Corps administers the day-to-day program in tribal
reservation lands, the District of Columbia, and all U.S. Territories, as well as in the 48 states that have
not assumed the program. To date only New Jersey and Michigan have assumed the section 404 program
for those "waters of the United States" within their borders that are assumable,32 meaning that the EPA
has approved their administration of a state dredged and fill program in lieu of the federal section 404
program administered by the Corps.
In addition to the section 404 program, 30 states have some form of dredged and fill permitting programs
for state inland waters, which vary in scope and do not necessarily address waters already covered under
section 404.33 The other 21 states rely on the section 401 certification program to address dredged and fill
activities that are permitted by the Corps in inland waters. Those states with a state dredged and fill
program may have a greater capacity to administer dredged and fill permitting for "waters of the state,"
including waters that would not be considered "waters of the United States" based on the changes to
CWA jurisdiction in this proposal.
The agencies note that the presence of a state program that regulates dredged and fill activities does not
necessarily indicate that the state program parallels or regulates waters equivalent to the geographic scope
and range of activities regulated under CWA section 404. Section 404 regulates a wide variety of
activities that result in the discharge of dredged and fill material to any water that is a "water of the
United States." State dredged and fill programs vary widely in what types of waters and activities they
regulate, with states often relying on a range of laws and regulations that are targeted to different waters
and activities.34 While some of these programs may regulate more broadly than the geographical
32 CWA section 404(g) authorizes states, with approval from the EPA, to assume authority to administer the 404 program in
some, but not all, "waters of the United States," within their borders. Section 404(g)(1) describes the waters over which the
Corps must retain administrative authority even after program assumption by a state or tribe.
33 Thirty states have explicit authority to issue permits for dredged and fill activities in inland waters: California, Connecticut,
Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan,
Minnesota, Mississippi, Nevada, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania,
Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin. The agencies have identified the presence of
these programs in state laws and regulations, but did not attempt to characterize how the states implement these programs or
what effects these programs have on a state's aquatic resources.
34 See footnote 68 (in Section II) and Appendix B of the Resource and Programmatic Assessment for more details.
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jurisdiction of the CWA, they often do not regulate all types of waters or activities covered by section 404
of the CWA. However, the existence of these state dredged and fill programs serves as an indicator of a
state's interest and capacity in regulating dredged and fill activities within waters of their state. As a
result, the economic analysis has made the simplifying assumption that states with existing programs,
regardless of scope, are likely to have the capacity and interest to regulate waters that may no longer be
jurisdictional following a change in the definition of "waters of the United States."
I.A.1.4 CWA Section 303(c) Water Quality Standards and 303(d) Impaired Waters Listing and
Total Maximum Daily Load Program
Currently, all states and 45 tribes have approved federal water quality standards (WQS) under CWA
section 303(c). Under CWA section 303(d) and the EPA's implementing regulations, states are required
to assemble and evaluate all existing and readily available water quality-related data and information and
submit a list of impaired waters to the EPA every two years. For waters identified on a section 303(d) list,
states must establish Total Maximum Daily Loads (TMDLs) for all pollutants preventing or expected to
prevent attainment of relevant WQS. While several tribes have expressed interest in obtaining 303(d)
TAS authority, none have submitted applications for 303(d) TAS to date.
States and tribes may develop standards under state or tribal law for waters that are not "waters of the
United States," but they would not be in effect for CWA purposes. States and many authorized tribes
already have WQS that do or could apply to waters that are currently outside the scope of CWA
jurisdiction. If federal CWA jurisdiction were to change for certain waters under the proposed rule, such
states could apply their WQS as a matter of state law, and authorized tribes could apply their WQS to the
extent their authority under tribal law would allow.
I.A.1.5 CWA Section 311 Oil Spill Prevention, Preparedness, and Response
Implementation of the CWA section 311 program cannot be delegated to states or tribes. Thus, the scope
of the section 311 programs is tied to the extent of "waters of the United States." Coordination with states
or tribes is a part of the program's implementation by EPA Regions. For spill response, the Oil Pollution
Act of 1990 (OPA) authorize the Oil Spill Liability Trust Fund (OSLTF) to reimburse costs of assessing
and responding to oil spills in "waters of the United States." Funding from the OSLTF allows for an
immediate response to a spill, including containment, countermeasures, cleanup, and disposal activities.
The OSLTF is not available to reimburse costs incurred by states or tribes to clean up spills, as well as
costs related to business and citizen impacts (e.g., lost wages and damages), for spills to waters not
subject to CWA jurisdiction.
Generally, all states have a program that covers at least some of the areas included in section 311. These
programs vary from state to state in their requirements, coverage, and process. Additionally, all states
have some mechanism, with a large variety of approaches, for oil spill cleanup reimbursement from
responsible parties, with 46 states providing for clean-up cost recovery, 45 states allowing for some form
of civil penalties, and 34 with trust funds to aid in cleanup. The agencies do not have sufficient
information at this time to assess how these state programs and funding mechanisms may be affected by a
revised definition of "waters of the United States."
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I.A.1.6 Waters of the State
Each state has its own definition of "waters of the state," and many states define similar types of areas and
aquatic resources as "waters of the state." A few states also reference "waters of the United States" within
their definitions of "waters of the state." All state definitions are more inclusive than past and current
definitions of "waters of the United States" in at least some way. Most state definitions also include some
combination of groundwater and artificial waters. Very few states mention flow requirements in their
definitions, but the ones that do define "waters of the state" as those waters which flow perennially,
seasonally, and intermittently. Some states may choose not to regulate all waters within the scope of their
definition of "waters of the state," often including exemptions in their regulations for certain types of
"waters of the state," for certain industries, or for certain types of permits. Effectively, about half of the
states regulate at least some waters beyond the scope of federal CWA requirements.
Most states have a definition of wetlands in their state laws and regulations. While these definitions also
vary widely in exact language, they all either recite, reference, incorporate, or outline similar factors as
the federal regulatory definition of wetlands. Some are more inclusive than the federal regulatory
definition, while others incorporate the exact federal factors of a wetland. Many states have different
wetland definitions for tidal, nontidal, coastal, and freshwater wetlands. It is apparent that isolated waters
and wetlands are rarely specified under these definitions; however, at least 20 states have programs to
cover all or some "isolated" wetlands. The agencies do not have sufficient information at this time to
conclude that only those 20 states cover some or all "isolated" wetlands.
I.A.I. 7 State Conditions and Requirements
States retain authority under the CWA to determine what kinds of aquatic resources are regulated under
state law to protect the interests of the state and their citizens. State environmental agencies and some
local governments may use existing state legal authorities to address certain water resources that do not
meet the definition of "waters of the United States." As noted above, about half of states regulate at least
some waters beyond the scope of federal CWA requirements. There are also some state laws that
constrain a state's authority to regulate more broadly than the federal "floor" set by the CWA. Whether a
state actually regulates more broadly is not necessarily controlled by the presence or absence of state
determinations that federal standards are sufficient.
Thirteen states have adopted laws that require their state regulations to parallel federal regulations.35 The
agencies note that these state laws address the sufficiency of federal CWA standards beyond simply
geographic jurisdiction. For example, some state laws included in this discussion only limit the
application of state regulations to certain industries, types of resources, or types of permits. Thus, five of
these states still regulate some waters that are not considered within the scope of "water of the United
States." The remaining eight states do not regulate waters beyond the scope of federal regulation.
35 The 13 states that require their regulations to parallel federal regulations are: Arizona, Colorado, Idaho, Iowa, Kentucky,
Minnesota, Mississippi, North Carolina, Oregon, South Dakota, Texas, Virginia, and Wisconsin.
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Twenty-three states have adopted laws that require extra steps or findings of benefits to impose state
regulations beyond federal requirements.36 The effects of these laws vary widely, depending on their
exact requirements and how they are implemented in a given state. Some of these regulations effectively
restrict state authority to regulate waters more strictly than federal CWA requirements; other "extra step"
laws appear to have no noticeable effect on state regulations that are broader in scope than federal CWA
requirements. Eight of these 23 states are also included in the 13 states above that have determined that
federal standards are sufficient. Of the 15 states that only have the "extra step" requirements, nine
regulate some waters that are not covered by the federal CWA. The other six states with these
requirements have not established regulations for waters outside the scope of the CWA.
The remaining twenty-two states and the District of Columbia do not appear to have any laws that address
state regulations outside the scope of the CWA. Eleven of these states regulate waters beyond the scope of
the CWA, while the other 11 states and the District of Columbia do not.37
Some states may adjust their current practices in light of a revised definition of "waters of the United
States." The agencies are not able to predict what changes might result from the proposed rule. The
agencies are aware that there are currently, and have been in the past, bills before state legislatures to
either add or repeal laws that address the scope of state regulation compared to federal requirements.
While future legislative changes could affect waters that are not "waters of the United States" in the
future, the agencies will not speculate on the outcomes of these efforts and instead are focused in this
chapter on the information that is available to the agencies at this time.
II.A.2 Environmental Federalism
Changing the definition of "waters of the United States" in a way that reduces the amount of aquatic
resources under federal jurisdiction effectively hands sole regulatory authority of those resources to the
states and tribes. States and tribes can respond by maintaining an equivalent level of regulation over those
resources or allowing those resources to be managed without permitting and regulation, or in a less
complete or less stringent way so that the result is between the two bounding cases. The balance of
regulatory authority over environmental resources between centralized and local governments and the
result when that balance changes is a question of environmental federalism.
I.A.1.8 Lessons Learned from the Literature
To help the agencies better understand the environmental federalism literature, the EPA commissioned a
comprehensive literature review report (Fredriksson, 2018). The report reviews literature on
environmental federalism and political economy, focusing on that which is most relevant for the potential
36 The 23 states that have requirements for extra steps or findings are: Arkansas, Colorado, Florida, Idaho, Indiana, Iowa,
Kentucky, Maine, Maryland, Minnesota, Montana, Nevada, New Jersey, North Dakota, Ohio, Oklahoma, Oregon,
Pennsylvania, Tennessee, Utah, Virginia, West Virginia, and Wisconsin.
37 ELI (2013), State Constraints: State-Imposed Limitations on the Authority of Agencies to Regulate Waters Beyond the Scope
of the Federal Clean Water Act, available at https://www.eli.org/sites/default/files/eli-pubs/d23-04.pdf. The agencies note
that this report has been criticized as inaccurate and recognize its limitations as a definitive resource. See, e.g., Comments of
the Waters Advocacy Coalition on the Environmental Protection Agency's and U.S. Army Corps of Engineers' Proposed
Rule to Define "Waters of the United States" Under the Clean Water Act EPA-HQ-OW-2011-0880 (November 13, 2014) at
7-11. Docket ID: EPA-HQ-OW-2011-0880-14568, available at https://www.regulations.gov/document?D=EPA-HQ-
QW-2011-0880-14568.
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change in regulatory control of waters under the CWA. The author describes several theoretical
predictions and summarizes the literature.
• Efficiency of Decentralization: The seminal paper by Oates and Schwab (1988) suggests that, to
the extent benefits and costs are contained within the state jurisdiction, decentralized state
policymaking can be more efficient than national policies. Decentralized policymaking has
efficiency enhancing properties - state regulators have a better ability and more flexibility to
produce the highest returns (benefits less costs) for their citizens. However, their model assumes
no transboundary pollution, many jurisdictions, perfectly mobile capital and immobile labor, a
homogenous population, perfect information, production costs and benefits that are locally
internalized, and welfare maximizing local governments. Some real-world modifications, such as
transboundary pollution, fewer mobile firms (imperfect competition) or jurisdictions,
transportation costs, different policy instruments, and various political economy pressures,
change Oates and Schwab's main result. In general, the theoretical literature argues that
decentralization can yield inefficiently weak regulations (Dijkstra and Fredriksson, 2010).38
Local regulators may have superior information regarding local conditions and may therefore
implement more efficient regulations (Levinson, 2003). Environmental dimensions may also be
closely related to other local issues such as urban planning, favoring a decentralized approach
(Sjoberg, 2016). On the other hand, environmental protection may involve economies of scale,
which favors a centralized system (Adler, 2005). The central government likely has an advantage
in supporting research in environmental science and pollution control technologies (Oates, 2001).
Seabright (1996) argues that decentralization reduces policy coordination but raises the
accountability of government.
• Race to the Bottom: Local jurisdictions may engage in strategic policymaking to attract and retain
mobile industry and jobs, raise wages and expand the local tax base. The fear is that such capital
(investment) competition could lead to sub-optimally weak environmental regulations under
decentralized systems. The literature review finds that most of the results in the empirical
literature fail to support a race to the bottom.39 If a race occurs, it may take more complicated
forms. For example, states may respond only to changes in neighboring states with more stringent
policies. A state's regulatory stringency is pulled upward by neighbors which already have
stricter policies. However, changes in neighbors with weaker regulations have no impact. This
asymmetrical result contradicts the race-to-the-bottom hypothesis.
• Political Economy. To understand and predict actual policy outcomes, it is critical to take the
political pressures on policy into account. The majority political party (in the U.S. Congress, or in
state capitals), tends to favor the social welfare of its home districts (its constituency) over other
minority districts. Helland (1998) finds evidence that local special interests influence enforcement
effort when national policy is delegated to the state level.
38 Dijkstra and Fredriksson (2010) limit their review to models in which pollution does not cross jurisdictional boundaries and in
which labor and households are immobile between jurisdictions.
39 See also Oates (1997, 2002).
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Given the literature's findings, states and tribes are likely to manage their environmental resources with
the benefit of local knowledge and with the welfare of their constituents in mind. A race to the bottom is
presumed to be unlikely to occur once states and tribes assume authority over aquatic resources. Effective
regulation of the resources, however, requires the political capital and fiscal resources to do so. As such,
the best indication of how states will exercise their authority as the federal government retracts its
jurisdiction is how they have exercised existing authority in the past and whether the infrastructure to
manage the regulatory programs already exists. The agencies collected data on these factors and the
following sections summarize the data sources and how they inform our analysis.
I.A.I. 9 State Snapshots and Listening Sessions
The agencies compiled information on state wetland and surface water programs and regulations to
describe the breadth of state authorities and to provide a current picture of federal and state regulatory
management of aquatic resources. Information was drawn from multiple state and federal sources, as well
as from previous analyses undertaken by independent associations and institutions. Definitions for state
and territorial waters, including wetlands, were drawn from online directories of regulatory titles and
codes, therefore pulled directly from state laws. Information on state and territorial water laws and
programs was found through state and territorial agency websites, and information on the various CWA
programmatic areas (303, 311, 401, 402, and 404) was drawn from EPA and Corps websites, numerous
publications, maps, and from EPA regional staff. These summaries were shared with state and territorial
agencies for corrections and the agencies welcome further comments to ensure the accuracy of the
information.40
I.A.1.10 Status and Trends Report on State Wetland Programs in the Unites States
The Association of State Wetland Managers (ASWM) has prepared state wetland program summaries
approximately every 10 years starting in the 1980s. The most recent report (ASWM, 2015) relies on
information from past state summaries (both by ASWM and the Environmental Law Institute), state and
federal reports, websites, and other related resources and compiles this information into draft state
summaries. ASWM conducted verification phone calls and correspondence via email with 50 states,
attempting to ensure that information for each state summary is up-to-date for the status of state wetland
program activities as of December 2014.
Information compiled in this report focuses on four core elements. They are: 1) wetland regulation, 2)
wetland monitoring and assessment, 3) wetland water quality standards, and 4) voluntary wetland
restoration. Wetland regulation is the element most relevant from this report to anticipating potential state
responses to changes to the "waters of the United States" definition. States take one of three approaches to
40 See the supporting "Resource and Programmatic Assessment for the Revised Definition of 'Water of the United States'
Proposed Rule, Appendix B" for additional details on the state snapshot summaries.
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regulating wetlands: 404 assumption,41 state-level dredged and fill programs for inland waters in addition
to 401 certifications, and primarily relying on 401 certifications.42
It is reasonable to assume that there will be little or no change to the permitting process in New Jersey,
one of the two states that has assumed section 404 permitting authority. In Michigan, unless the state
legislature passes new legislation, it is reasonable to assume that there will be at least some change to the
permit process correlating to the proposed change in CWA jurisdiction, as the state currently limits its
permit program to the jurisdictional scope of the CWA.43 The other states that have developed their own
dredged and fill programs may choose to expand their programs to cover waters that would no longer be
considered "waters of the United States" under a revised definition. States that rely primarily on 401
certifications to address dredged and fill activities may or may not develop a state-level permitting
program for non-jurisdictional waters.
I.A.1.11 State-Imposed Limitations on the Authority of Agencies to Regulate Waters Beyond
the Jurisdictional Scope of the Clean Water Act
The agencies collected information from several sources to characterize states ability to regulate waters
beyond the jurisdictional scope of the CWA. The main source is the State Snapshot analysis presented in
the RPA for this rule.44 Alternate sources of information, including an Environmental Law Institute (ELI)
report that "examines [the] limitations imposed by state law that could constrain the ability of state
agencies" to regulate water resources in the absence of CWA regulation (ELI, 2013)45 were also
consulted to corroborate and supplement the information in the agencies' State Snapshot analysis found in
Appendix B of the RPA. The agencies recognize that these summaries do not necessarily capture all the
41 Although only two states (Michigan and New Jersey) have assumed the 404 permitting program to date, states and tribes have
recently expressed significant interest in assuming the program. See, e.g., Final Report of the Assumable Water
Subcommittee (May 2017).
42 Five of these states issue permits for dredged and fill activities in coastal waters and wetlands. However, the agencies have
concluded that inland programs are more indicative of a state's capacity to address waters that may no longer be federally
jurisdictional.
43 Passed in 2013, PA 98 states: "Sec. 30101a. For the purposes of this part, the powers, duties, functions, and responsibilities
exercised by the department because of federal approval of Michigan's permit program under section 404(g) and (h) of the
federal water pollution control act, 33 USC 1344, apply only to "navigable waters" and "waters of the United States" as
defined under section 502(7) of the federal water pollution control act, 33 USC 1362, and further refined by federally
promulgated rules and court decisions that have the full effect and force of federal law. Determining whether additional
regulation is necessary to protect Michigan waters beyond the scope of federal law is the responsibility of the Michigan
legislature based on its determination of what is in the best interest of the citizens of this state." EPA found fourteen of the
provisions in PA 98 reduced the geographic or permitting scope of the state program to be inconsistent with the CWA, but
the Governor has asked for reconsideration and approval of these.
44 See the supporting "Resource and Programmatic Assessment for the Revised Definition of 'Water of the United States'
Proposed Rule, Appendix B" for additional details on the state snapshot summaries.
45 See Appendix I of the ELI report.
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complexities of state programs and solicit additional information on state water programs and regulation
to further the agencies' understanding.46
II.A.3 State Response Categories
For purposes of this analysis, the agencies assume states will have a continuum of different responses to a
change in CWA jurisdiction based on legal and other constraints, though the states' responses are difficult
to predict. The agencies expect some states could reduce the scope of their programs to align with a
change in federal jurisdiction because of these constraints. In states with legal constraints, the agencies
would expect both avoided costs and forgone benefits from a change in the definition if certain waters are
no longer jurisdictional. In states that regulate waters, including wetlands, more broadly than the federal
definition, the agencies would expect little to no direct effect on costs or benefits. Many, if not most,
states are likely to fall in between these extremes (see below for more discussion of this point). And while
most states have been authorized to administer at least some, if not all, parts of the NPDES program,
states that are not authorized (or not authorized for a given part) may have different responses.
State responses may differ from those that would be predicted based purely on existing state regulation
and legislation. For example, during the agencies' discussions with co-regulators, several states indicated
that they may change their laws to regulate waters that might no longer be jurisdictional under the CWA.
These responses are even more difficult to predict than those described.
I.A.1.12 Regulation of Dredged and Fill Material
The commissioned literature review (Fredriksson (2018)) identified the variables most commonly used in
the federalism literature that are useful in anticipating how states could respond to the proposed definition
of "waters of the United States." An available subset of these variables is used to characterize potential
state responses regarding dredged or fill permitting and perform sensitivity analyses on the results. The
reports on state responses and the data on which they are based indicate that the following variables will
have the strongest bearing on the way states are likely to respond:47
• State-level dredged and fill program: Twenty-eight states have such permitting programs for
inland wetlands and other waters. While none of the reports referenced above evaluate the extent
of state-level dredged and fill permitting programs, their existence serves as an indication that
they are more likely to regulate some wetlands and other waters that would no longer be subject
to the federal section 404 program.
46 While the ELI report is a readily available summary of potential limitations imposed by state law that could constrain states to
regulate waters in the absence of federal regulation, commenters on the then-proposed 2015 Rule have identified numerous
shortcomings and inaccuracies of the analysis and results that may limit the degree to which the agencies can rely upon it.
See, e.g., Comments of the Waters Advocacy Coalition on the Environmental Protection Agency's and U.S. Army Corps of
Engineers' Proposed Rule to Define "Waters of the United States" Under the Clean Water Act EPA-HQ-OW-2011-0880
(November 13, 2014) at 7 - 11. Docket ID: EPA-HQ-OW-2011-0880-14568, available at
https://www.regulations.gov/document?D=EPA-HO-OW-2Ql 1-0880-14568
47 State enforcement capabilities would also possibly be important in determining state responses, however no measure of
enforcement capability was available for use in this analysis. Following Circular A-4, in situations where full information is
not available the appropriate treatment is to assume full compliance. The agencies do not believe including enforcement
would change the decision on the proposed rule.
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II Discussion and Analyses of the Major Causes of Uncertainty
• Regulate waters more broadly than CWA: In some cases, the definition of "waters of the state" is
broader than the baseline definition of "waters of the United States." In those states, it is likely
that states will continue to regulate or address some wetlands and/or other waters that would not
be jurisdictional under the proposed rule. "Waters of the state" designation is distinct from the
stringency of water quality standards and the permitting program in that state but may be a useful
indicator that some regulation or non-regulatory program is likely to be in place for those
wetlands and other waters following the change in jurisdiction.
• Legal limitations: While state legislatures may be able to change applicable legal restrictions, if a
state prohibits or requires additional justification for a state rule that imposes requirements
beyond a corresponding federal law, those restrictions are a useful indicator that states are
unlikely to regulate wetlands and other waters that would no longer be "waters of the United
States." Although the State Snapshots presented in the RPA (and other data sources) document
several types of legal provisions, for the purposes of this analysis, the agencies are treating such
legal provisions as a binary variable.
The agencies used the criteria noted above48 to place states in one of four likely response categories,
recognizing that any categorization must rely on simplifying assumptions given the variation and
complexity of state laws and programs (Table II-1).
Table 11-1: Dredged/fill categorization criteria
Category
State regulatory indicators
Likely Response
1
State has broad legal limitations on regulating
aquatic resources
Likely to reduce regulatory practices
2
Does not have state-level dredged and fill
program; does not define waters of the state
more broadly than CWA; and does not have
broad legal limitations on regulating aquatic
resources.
State programs are likely to provide some
regulatory coverage of waters that would no
longer be "waters of the United States" and may
reduce aquatic resource permitting practices
3
Has either a state-level dredged and fill program
or defines waters of the state more broadly than
CWA; and does not have broad legal limitations
on regulating aquatic resources
State programs are likely to provide some
regulatory coverage of waters that would no
longer be "waters of the United States" and may
continue baseline permitting practices
4
Has a state-level dredged and fill program and
defines "waters of the state" more broadly than
CWA
Likely to continue baseline dredged/fill
permitting practices
Table II-2 reports the criteria for each state in columns 2 through 4 using '0' to indicate a negative and ' 1'
to indicate the affirmative. Column 5 reports the resulting likely-response category.
48 It has also been suggested that the quantity of water resources found in a state may help determine their response, but no clear
pattern was discernable in scoping exercises. A breakdown of the quantity of water resources by state can be found in
Appendix A.
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II Discussion and Analyses of the Major Causes of Uncertainty
Table 11-2: Dredged/Fill regulation criteria and likely-response category
Has a State dredge
Regulates waters
Does not have
Likely-response
State
and fill program
more broadly than
broad legal
category
(inland)
the CWA requires
limitations
Alabama
0
0
1
2
Alaska
0
0
1
2
Arizona
0
0
1
Arkansas
0
0
1
2
California
1
1
1
4
Colorado
0
0
1
2
Connecticut
1
1
1
4
Delaware
0
0
1
2
Florida
1
1
1
4
Georgia
0
0
1
2
Hawaii
0
0
1
2
Idaho
1
0
1
Illinois
1
1
1
4
Indiana
1
1
1
4
Iowa
1
0
1
3
Kansas
1
0
1
3
Kentucky
1
0
1
Louisiana
1
0
1
3
Maine
1
1
1
4
Maryland
1
1
1
4
Massachusetts
1
1
1
4
Michigan
1
1
1
4
Minnesota
1
1
1
4
Mississippi
1
0
1
Missouri
0
0
1
2
Montana
0
0
1
2
Nebraska
0
1
1
3
Nevada
1
0
1
3
New Hampshire
1
1
1
4
New Jersey
1
1
1
4
New Mexico
0
0
1
2
New York
1
1
1
4
North Carolina1
1
1
3
North Dakota
0
0
1
2
Ohio
1
1
1
4
Oklahoma
0
0
1
2
Oregon
1
1
1
4
Pennsylvania
1
1
1
4
Rhode Island
1
1
1
4
South Carolina
0
0
1
2
South Dakota
0
0
1
Tennessee
1
1
1
4
Texas
0
0
1
2
Utah
0
0
1
2
Vermont
1
1
1
4
Virginia
1
1
1
4
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II Discussion and Analyses of the Major Causes of Uncertainty
Table 11-2: Dredged/Fill regulation criteria and likely-response category
Has a State dredge
Regulates waters
Does not have
Likely-response
State
and fill program
more broadly than
broad legal
category
(inland)
the CWA requires
limitations
Washington
1
1
1
4
West Virginia
0
1
1
3
Wisconsin1
1
1
0
3
Wyoming
0
0
1
2
1The existence of a legal limitation on state authority to regulate beyond the scope of the CWA does not always prohibit a
state from regulating waters beyond those protected by the CWA. See section on additional state conditions and
requirements in the Resource and Programmatic Assessment. Rather the existence of these limitations presents an additional
factor for states to address. This in turn may make it more difficult for states with such a limitation to readjust their
protection of state waters following the proposed rule. For purposes of this analysis, any state with such a limitation that has
not already expanded its regulation of state waters beyond the scope of the CWA is assumed to not do so under any change
to the definition of "waters of the United States," and is accordingly placed in response category 1. Any states that have
already expanded their regulatory scope, specifically North Carolina and Wisconsin, will be assumed to continue such
practices. Thus, for purposes of this analysis, North Carolina and Wisconsin were placed in category 3 to reflect both their
broader scope and the existence of legal limitations that may affect any future attempts to increase regulation of state
waters.
I.A.1.13 Categorizing State Responses: Surface Waters Discharge Permitting
Like the study of dredged and fill regulation, a subset of variables that are most informative are used to
characterize potential state responses related to regulation of surface waters and perform sensitivity
analyses on the results. Reviewing the reports on state responses and the data on which they are based, the
following variables likely have the strongest bearing on how states could respond.49
• State authorization :50 A critical determinant of potential state responses to a change in "waters of
the United States" jurisdiction is if they are authorized to administer NPDES programs for surface
waters under the CWA. At the time the agencies completed this analysis, three states
(Massachusetts, New Hampshire, and New Mexico), the District of Columbia, and every U.S.
Territory except the U.S. Virgin Islands, were not authorized to run the section 402 program
under the CWA. All remaining states and the U.S. Virgin Islands are authorized to implement the
NPDES program and issue permits. The agencies assume that states without authorized programs
would be less likely to have the capacity to regulate additional waters beyond those that are
defined as a "waters of the United States."
• Coverage of waters: Some states have restrictions limiting regulated waters to the requirements of
the CWA; other states regulate more broadly than required by the CWA. The former states are
assumed to be less likely to regulate beyond the CWA (especially if they have legal provisions, as
49 State enforcement capabilities would also possibly be important in determining state responses, however no measure of
enforcement capability was available for use in this analysis. Following Circular A-4, in situations where full information is
not available the appropriate treatment is to assume full compliance. The agencies do not believe including enforcement
would change the decision on the proposed rule.
50 Source: https://www.epa.gov/npdes/npdes-state-program-information.
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II Discussion and Analyses of the Major Causes of Uncertainty
discussed below). The latter states are assumed to be more likely to continue to regulate waters
that could become non-jurisdictional under the CWA.
• Legal limitations: If a state prohibits or requires additional justification for a state rule that
imposes requirements beyond a corresponding federal law, it is assumed that state would be less
likely to create the programs necessary to continue NPDES activities on waters that would no
longer be jurisdictional. Although the State Snapshots presented in the RPA (and other data
sources) document several types of legal provisions, for the purposes of this analysis, the agencies
are treating such legal provisions as a binary variable.
Table II-4 presents a summary of this information for the 50 states plus the District of Columbia.
Although the same criteria (legal criteria and whether the state regulates more broadly than the CWA) are
presented for all states, the states (plus the District of Columbia) without NPDES authorization are less
experienced in regulating discharges into waters and may have legal or capacity barriers in regulating
waters that are not subject to federal jurisdiction. The remaining states can be classified based on the
absence of broad legal restrictions and whether they regulate waters more broadly than the CWA requires.
States with one but not both classifiers are placed in a middle category, representing uncertainty in state
responses. States with higher scores can be interpreted as being more likely to continue to regulate waters
that would no longer be jurisdictional.
The agencies used the criteria noted above to place states in one of three likely response categories (Table
II-3).
Table 11-3: Surface water discharge permitting categorization criteria
Category
State regulatory indicators
Likely Response
1
State does not define waters of the state more
broadly than CWA and has broad legal
limitations on regulating aquatic resources; or
state does not have NPDES authorization
Likely to reduce regulatory practices
2
NPDES-authorized state that either defines
waters of the state more broadly than CWA or
does not have broad legal limitations on
regulating aquatic resources
State programs may provide partial regulatory
or non-regulatory coverage of waters that
would no longer be "waters of the United
States" and may reduce surface water
permitting practices
3
NPDES-authorized state that defines waters of
the state more broadly than CWA and does not
have broad legal limitations on regulating
aquatic resources
State programs are likely to provide partial
regulatory coverage of waters that would no
longer be "waters of the United States" and may
continue baseline regulatory practices
Table II-4 reports the criteria for each state in columns 2 through 4 using '0' to indicate a negative and ' 1'
to indicate the affirmative. Column 5 reports the resulting likely-response category.
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II Discussion and Analyses of the Major Causes of Uncertainty
Table 11-4: Surface water regulation criteria and likely-response category
State
NPDES
Regulates waters
Does not have
Likely response
Authorization
more broadly
than the CWA
requires
broad legal
limitations
Alabama
1
0
1
2
Alaska
1
0
1
2
Arizona
1
0
1
Arkansas
1
0
1
2
California
1
1
1
3
Colorado
1
0
1
2
Connecticut
1
1
1
3
Delaware
1
0
1
2
District of Columbia
0
1
1
Florida
1
1
1
3
Georgia
1
0
1
2
Hawaii
1
0
1
2
Idaho
1
0
1
Illinois
1
1
1
3
Indiana
1
1
1
3
Iowa
1
0
1
2
Kansas
1
0
1
2
Kentucky
1
0
1
Louisiana
1
0
1
2
Maine
1
1
1
3
Maryland
1
1
1
3
Massachusetts
1
1
2
Michigan
1
1
1
3
Minnesota
1
1
1
3
Mississippi
1
0
1
Missouri
1
0
1
2
Montana
1
0
1
2
Nebraska
1
1
1
3
Nevada
1
0
1
2
New Hampshire
1
1
2
New Jersey
1
1
1
3
New Mexico
0
1
1
New York
1
1
1
3
North Carolina1
1
1
3
North Dakota
1
0
1
2
Ohio
1
1
1
3
Oklahoma
1
0
1
2
Oregon
1
1
1
3
Pennsylvania
1
1
1
3
Rhode Island
1
1
1
3
South Carolina
1
0
1
2
South Dakota
1
0
1
Tennessee
1
1
1
3
Texas
1
0
1
2
Utah
1
0
1
2
Vermont
1
1
1
3
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II Discussion and Analyses of the Major Causes of Uncertainty
Table 11-4: Surface water regulation criteria and likely-response category
State
NPDES
Regulates waters
Does not have
Likely response
Authorization
more broadly
broad legal
than the CWA
limitations
requires
Virginia
1
1
1
3
Washington
1
1
1
3
West Virginia
1
1
1
3
Wisconsin1
1
1
0
3
Wyoming
1
0
1
2
1The existence of a legal limitation on state authority to regulate beyond the scope of the CWA does not always prohibit a
state from regulating waters beyond those protected by the CWA. See section on additional state conditions and
requirements in the Resource and Programmatic Assessment. Rather the existence of these limitations presents an
additional factor for states to address. This in turn may make it more difficult for states with such a limitation to readjust
their protection of state waters following the proposed rule. For purposes of this analysis, any state with such a limitation
that has not already expanded its regulation of state waters beyond the scope of the CWA is assumed to not do so under any
change to the definition of "waters of the United States," and is accordingly placed in response category 1. Any states that
have already expanded their regulatory scope, specifically North Carolina and Wisconsin, will be assumed to continue such
practices. Thus, for purposes of this analysis, North Carolina and Wisconsin were placed in category 3 to reflect both their
broader scope and the existence of legal limitations that may affect any future attempts to increase regulation of state
waters.
I.A.1.14 Caveats to State Categorization
The potential responses described above are intended to provide insight to whether and how states may
regulate waters that would no longer be jurisdictional based on the proposed definition of "waters of the
United States" and the agencies solicit comment on their assumptions. There are, however, several
caveats to that characterization that deserve mention.
• Stringency limitations: Some states that currently have legal limitations may remove or modify
those limitations following a revised definition of "waters of the United States" so that the
difference in regulation created by a new definition could be filled either partially or completely
by state-level regulation.
• Trans-boundary benefits: While it is possible that states operating with better information on the
potential benefits and costs would regulate more efficiently for their own constituents, they are
also less likely to consider benefits that accrue outside of their borders. This could include cases
where waters flow out of the state. Another situation where this is relevant is where non-use
benefits accrue to residents of other states.
• Limited state resources and political influences: Some states could develop new programs or
expand existing ones to address waters that would no longer be jurisdictional based on the
proposed definition of "waters of the United States." Not all states will have the resources to staff
and manage the new or expanded programs and may not be able to conduct quality benefit-cost
analyses as a result. As the literature review (Fredriksson 2018) pointed out, decentralized
programs are also more likely to be swayed by political influences which could distort the
regulatory process in ways that are detrimental to social welfare.
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II Discussion and Analyses of the Major Causes of Uncertainty
The cumulative direction of these caveats with regards to potentially addressing non-jurisdictional waters
and the resulting social welfare impacts is ambiguous. So, rather than bounding the potential effect on one
side they combine to increase the uncertainty surrounding potential state responses. As such, the base case
of the categorization of states will be based on the current regulatory regime at the state level and
sensitivity analyses will be used to explore the range of possible state responses on potential benefits and
costs of the proposed change in CWA jurisdiction. Recognizing that the Fredriksson report provides an
important basis for the categorizations, the agencies will conduct an external peer review of this report
prior to issuing a final regulation.
II.B Response of Regulated Entities
The generic tree diagram Figure II-1 illustrates potential effects of the proposed rule on regulated entities
(i.e.. facilities, permit or plan holders) and potentially affected water resources. The potential responses of
regulated entities are likely to vary across CWA programs and depend on the type of permit or regulatory
requirement, the industry sector or activity, attributes of the potentially affected waters — notably
whether the waters would fall outside of CWA jurisdiction — the range of likely state responses, as well
as industry standards, recommended practices, and a regulated entity's decision on pollution prevention
measures it voluntarily implements.
An entity may decide to continue its current compliance practices, perhaps because compliance mainly
entails fixed costs that were already incurred or because reducing current abatement activities is costlier
than simply continuing current abatement activities. Fear of future liability and goodwill with local
citizens may also be factors. Regardless of the motivation, if an entity voluntarily continues baseline
compliance practices, then there would be no change in cost or environmental outcomes, and the net
effect would be zero.
In contrast, an entity could decide to reduce its costs by reducing or potentially eliminating any baseline
compliance practices. Doing so would result in cost-savings to the regulated entity and foregone
environmental benefits to society more broadly. Whether the net effect is positive or negative would
depend on whether the resulting cost-savings are greater than the absolute value of the forgone
environmental benefits.
Section IV of this document presents program-specific tree diagrams for the three major CWA programs
analyzed: sections 402, 404, and 311 programs. The diagrams illustrate the range of potential outcomes
depending on regulated entities' responses to each of these programs. There may be gradations within
each general category of entity response. The number of determining factors and outcomes highlight the
uncertainties inherent in trying to quantify these impacts. Ideally, the analysis would quantify the
frequency, costs, and benefits of the outcomes corresponding to each branch in the diagram, but that is not
possible at every level of the tree diagram for all three programs due to data limitations.
II.C Data and Analytic Uncertainties
In addition to uncertainty in the response of states and regulated entities to changes in CWA jurisdiction,
limitations of the available data affected the agencies' ability to conduct national level analyses regarding
the potential effect of the proposed rule and contributed to uncertainty in results presented in the
following sections. The agencies attempted to use the U.S. Geological Survey's NHD at high resolution
and the U.S. Fish and Wildlife Service's (U.S. FWS) NWI to estimate the potential effect of the proposed
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II Discussion and Analyses of the Major Causes of Uncertainty
rule on certain water types across the country. The datasets represent the best national datasets of the
potential location and extent of streams, rivers, lakes, ponds, and wetlands of which the agencies are
aware. The agencies considered using the NHD to represent streams and the NWI to represent wetlands in
this economic analysis to estimate national costs and benefits. However, because neither is a regulatory
dataset, even where streams and wetlands are identified in the datasets the question of CWA jurisdiction
under both baselines and the proposed rule cannot be answered. For example, the proposed rule
differentiates between intermittent and ephemeral flow for purposes of federal regulatory jurisdiction
under the CWA, but the NHD generally does not differentiate between streams with intermittent or
ephemeral flow in much of the country. Likewise, the NWI does not contain information that would allow
the agencies to identify wetlands that meet or do not meet the baseline or proposed regulatory definitions
of adjacent, such as whether there is a berm between the wetland and the nearest river, and if so, what
kind of surface hydrologic connections, if any, are present.
• High-resolution NHD: The high-resolution NHD represents the water drainage network of the
United States as mapped at a scale of 1:24,000 or better (1:63,360 or better in Alaska). The data
are maintained in partnership with states and other stewards. While the high-resolution NHD is
the most comprehensive and most detailed nationally-consistent representation of the
hydrographic network, it does not include a comprehensive or regionally representative
categorization of all waterbodies that may be covered under the CWA. For example, in many
regions of the United States, some NHD Stream/River flowlines are unclassified for hydrographic
category, meaning that the NHD does not further classify them as perennial, intermittent, or
ephemeral. In some states, streams in selected quadrangles are uniformly assigned to the
perennial category even though other nearby quadrangles show differences among streams.
Outside of the southwestern United States and other limited areas where data stewards have
provided updated data, the dataset generally does not differentiate between intermittent and
ephemeral streams - ephemeral streams in those areas are generally mapped as intermittent or
may not be mapped at all.51 For these reasons, the agencies are not able to accurately identify
waters that may change jurisdictional status under the proposed rule using the NHD. Given the
nature of the data and these analyses, these limitations would likely result in inaccurate estimation
of the potential effects of the proposed in the scope of CWA jurisdiction. The agencies used NHD
data from March 2017 for all states except California, which were September 2017 data.52 See the
Resource and Programmatic Assessment for additional information about the limitations of the
dataset.
• National Wetlands Inventory (NWI): The agencies attempted to rely on a combination of the NWI
and high-resolution NHD to identify wetlands that may change jurisdictional status under the
proposed rule. Like the NHD, while the NWI is the best national dataset of the potential extent of
wetlands across the country of which the agencies are aware, it has limitations. The NWI does not
51 Table A-l in Appendix A provides a summary of the available high resolution NHD data broken down by stream type per
state. The incomplete mapping of ephemeral streams is clearly evident in the table through the numerous states with missing
or zero ephemeral stream miles mapped. As previously noted it is not possible to determine if ephemeral streams in these
states are mapped as intermittent streams or simply not mapped.
52 U.S. Geological Survey. 2007-2018. National Hydrography Dataset available at https://nhd.usgs.gov, accessed March 2017 and
September 2017.
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II Discussion and Analyses of the Major Causes of Uncertainty
map all wetlands and sometimes maps wetlands that do not exist on the ground. At its best, NWI
only approximates the location and boundaries of a Cowardin wetland type (Cowardin et al.,
1979). The NWI was not intended or designed for regulatory purposes. NWI uses the Cowardin
wetland classification system, which is broader in scope than wetlands that meet the agencies'
regulatory definition of wetland. For CWA purposes, a water must have three specific factors to
be classified as a wetland: hydric soils, hydrophytic vegetation, and hydrology. Specifically, the
longstanding regulations define wetlands as "those areas that are inundated or saturated by
surface or groundwater at a frequency and duration sufficient to support, and that under normal
circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes, bogs, and similar areas."53 That
definition would not change under the proposed rule. Also, the wetland boundaries as mapped in
NWI do not equate to wetland delineation boundaries per the 1987 Corps wetland delineation
manual54 and its regional supplements. To properly apply the delineation manual for CWA
purposes, one must conduct on-the-ground inspection. Wetlands that meet the regulatory
definition of wetland would also need to meet additional proposed regulatory requirements (such
as the conditions for applying the term "adjacency" as proposed) before they would be considered
"waters of the United States."
As described in the RPA (p. 14), and the RPA's Appendix A, the NWI contains a Water Regime
Modifier in the classification of wetlands and deepwater habitats, which provides a description in
general terms of hydrologic characteristics. For example, "Temporarily Flooded" is defined as
when surface water is present for brief periods (from a few days to a few weeks) during the
growing season, but the water table usually lies well below the ground surface for most of the
season. "Intermittently Flooded" in NWI indicates that surface water is present for variable
periods without detectable seasonal periodicity, and that weeks, months, or even years may
intervene between periods of inundation. "Seasonally Flooded" means that surface water is
present for extended periods (generally for more than a month) during the growing season, but is
absent by the end of the growing season in most years; when surface water is absent, the depth to
substrate saturation may vary considerably among sites and among years. The agencies have
interpreted Water Regime Modifiers "Temporarily Flooded" and "Intermittently Flooded" in the
NWI as describing ephemeral streams, and "Seasonally Flooded" as describing intermittent
streams. Note that not all features are assigned a Water Regime Modifier.
To approximate the NWI wetlands that might be more likely to meet the CWA regulatory
definition of wetland for this analysis, the agencies contemplated identifying vegetated NWI
wetlands as a potential surrogate. These wetland types are more likely to meet the regulatory
definition of "wetlands" than non-vegetated NWI wetlands. To estimate the NWI wetlands that
are likely to be abutting rivers, streams, lakes, and ponds mapped in NHD, the agencies
contemplated performing an intersection analysis of the two datasets. Because the NWI is one of
the largest polygonal datasets in the nation and national analyses of the data are challenging and
53 33 CFR 328.3(b) and 40 CFR 232.2.
54 U.S. Army Corps of Engineers. 1987. Corps of Engineers Wetlands Delineation Manual. Wetlands Research Program
Technical Report Y-87-1. Department of the Army, Vicksburg, VA. Available at
https://el.erdc.dren.mil/elDubs/pdf/wlman87.pdf.
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II Discussion and Analyses of the Major Causes of Uncertainty
time-consuming, the agencies determined that to attempt an analysis they would need to rasterize
(i.e., convert into pixels) the NWI data so that they could aggregate NWI wetlands that are
touching each other into one feature. The agencies considered converting NWI polygon features
to raster cells (i.e.. grids of pixels) at a 30-meter resolution and then attributing features of the
polygon with the maximum combined area of overlap with the raster cell to the entire cell. The
agencies then considered attempting to associate wetlands with the nearest stream category
(ephemeral, intermittent, or perennial) derived from the NHD flowlines. NHD flowlines would
have been converted into 30-meter raster cells. All "ArtificialPath" features in NHD would have
been attributed as "Other" for this analysis. However, after deliberation, the agencies agreed that
all these steps introduced sufficient confounders such that any analytical use of the data would be
inconclusive for purposes of indicating potential changes in federal jurisdiction.
Additionally, because the NHD does not distinguish between intermittent and ephemeral streams
nationwide, the analysis would have treated wetlands that are physically connected to both
intermittent and ephemeral streams as non-jurisdictional under the proposed rule even though the
proposed definition would include as jurisdictional those wetlands that abut intermittent waters
meeting the proposed "tributary" definition. This assumption would directly result in an
overstatement of the quantity of wetlands becoming non-jurisdictional. As is the case for streams,
CWA approved jurisdictional determinations are done on an individual basis and cannot be
approximated by combining NWI data with high-resolution NHD.
• Jurisdictional status of certain waters under pre-2015 practice: In addition to the limitations of
the NHD and NWI datasets, the agencies face the confounding factor of not knowing the current
jurisdictional status of certain waters as a category, including:
- Non-navigable tributaries that are not relatively permanent;
- Wetlands adjacent to non-navigable tributaries that are not relatively permanent; and
- Wetlands adjacent to but that do not directly abut a relatively permanent non-navigable
tributary.
According to the Rapanos Guidance, such waters are not categorically jurisdictional. Rather, the
agencies must conduct a case-specific significant nexus analysis to determine their jurisdictional
status. It is not possible for the agencies to perform a comprehensive national-scale significant
nexus analysis for purposes of this EA. As a result, the agencies did not find a reasonable way to
identify the universe of federally regulated waters under the pre-2015 practice in order to
establish a comparative baseline of jurisdictional waters. This EA does not analyze the benefits
and costs of the new treatment of ditches.
• Other state, tribal, and federal programs: The analysis does not account for other programs that
may address affected resources associated with non-jurisdictional waters. For example, more than
one-third of the United States' threatened and endangered species live only in wetlands, and
nearly half use wetlands at some point in their lifecycle (U.S. EPA, 2017). Wetlands and other
aquatic resources designated as critical habitats will remain subject to the Endangered Species
Act (ESA) Section 9(a)(1)(B) which makes it unlawful for any person to "take" any fish or
wildlife species listed under the ESA. Therefore, activities in wetlands and other aquatic
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II Discussion and Analyses of the Major Causes of Uncertainty
resources may require engagement with the U.S. Fish and Wildlife Service or the National
Marine Fisheries Service, which could lead to project modification or mitigation requirements.
• Universe of regulated facilities and activities: Data on the universe of regulated facilities and
activities varies in the level of detail and coverage. For example, data on facilities or activities
subject to general permits or facilities with minor status under the section 402 program are
limited to the permit information included in the EPA's Integrated Compliance Information
System National Pollutant Discharge Elimination System (ICIS-NPDES) database (see Section
IV.A.l for detail). Some industrial facilities or activities subject to section 402 requirements may
be underrepresented in the database if states did not provide relevant permit information. Permit
data maintained in the ORM2 database by the Corps under the section 404 program (see Section
IV.A.2) provide high-level characteristics of the projects such as the type of project and permitted
impacts in acres or linear feet. However, the affected waters are not always described in sufficient
detail to determine how the proposed changes in the "waters of the United States" definition
would have (counterfactually) changed the requirements in previously issued 404 permits. As
discussed in Section IV.A.3, there is no universal reporting requirement for the CWA section 311
Spill Prevention, Control, and Countermeasure (SPCC) program, and the agencies therefore rely
on estimates related to prior SPCC rulemakings and imputed data for a subset of facilities that
have been inspected to characterize SPCC-regulated facilities. The agencies also have detailed
information on facilities required to submit a Facility Response Plan (FRP) to the EPA.
• Facility and activity coordinates: The analyses are limited by the availability and accuracy of
geographical coordinates to relate program impacts to streams and wetlands. First, some facilities
or activities have missing or invalid coordinates. For permitted 402 dischargers, available
coordinates can be those of the facility and not necessarily the outfall. This contributes to
potential errors when determining the receiving waterbody. Some impacts, such as oil spills, can
potentially affect different waterbodies depending on the location within the facility where the
spill originates and the size of the spill.
• Locations offuture permitted facilities or activities: Data on existing facilities and activities may
not accurately represent the distribution of future facilities or activities. For example, construction
and development activity accounts for an estimated sixteen percent of permitted discharges under
the 402 program and the majority of activities covered under the section 404 program. The
location of future construction and development activities can only be estimated to scale too
coarsely to be useful in analyzing the potential effects of this proposed rule (even if the agencies
had accurate maps of affected wetlands).
• Methods to value changes in environmental outcomes: The agencies typically rely on benefit
transfer from existing studies to value changes in ecosystem services provided by aquatic
resources due to implementation of CWA programs. Applicability of the existing wetland
valuation studies to specific geographic location, type of wetlands and ecosystem services, and
the research methods used in the original studies, constrained the agencies' ability to value
potential wetland losses to selected geographic locations only (see Sections III.C.2 and IV.B for
detail).
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II Discussion and Analyses of the Major Causes of Uncertainty
These data issues limit the agencies' ability to conduct a national-level analysis to evaluate 1) waters
potentially changing jurisdictional status; 2) relationship between these waters and facilities and activities
covered under the CWA; and 3) potential impacts of changes in the level of regulation of jurisdictional
and non-jurisdictional waters. With hundreds of thousands of facilities or permitted activities covered
under CWA programs, it is not possible to review and analyze characteristics of individual facilities or
activities contained in permits to assess how their particular requirements may change under a revised
"waters of the United States" definition. For these reasons, the agencies relied on updating the 2015 Rule
economic analysis for Stage 1 and on qualitative descriptions, case studies, and a national analysis of the
CWA 404 program in Stage 2. The agencies solicit comment on this approach to evaluating the costs and
benefits of the proposed rule and if there are alternative approaches that would be appropriate for use in
this type of economic analysis.
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III. Stage 1 Analyses: CWA Jurisdictional Change from the 2015 Rule to
the Pre-2015 Practice
As previously described, rather than addressing a market failure, this proposal addresses an alternative
federalism arrangement concerning jurisdiction of the CWA and this EA assesses the potential benefits
and costs of this action. The agencies examined a similar issue in the 2015 Rule, which increased the
CWA jurisdiction, and again in 2017 when the agencies proposed to repeal that same 2015 Rule and
recodify the prior regulations. Those analyses provide a potential starting point for evaluating this current
proposal. This EA adopts and modifies the 2015 methodology in the Stage 1 analysis (which assesses the
benefits and costs of a baseline of the 2015 Rule to the pre-2015 practice).
The 2015 Rule economic analysis55 relied on the assumption that the change in CWA jurisdiction due to
the rule affected all CWA programs proportionally for purposes of estimating costs and benefits. The
agencies estimated a percentage change in CWA jurisdiction, and then for many programs simply
multiplied that percentage change by previously estimated CWA program costs and benefits, adjusting for
the change in the program size. While this assumption allowed for the estimation of national benefits and
costs of the 2015 Rule, the resulting estimates may have been significantly over-stated. This EA adopts
this assumption of proportionality to allow for a comparison with the 2015 Rule and its 2017 proposed
repeal, but it also updates estimates to 2017$ and corrects a few errors in the 2015 analysis.
The Stage 2 change in CWA jurisdictional waters, moving from the pre-2015 practice regulatory regime
to the proposed rule, does not adopt this proportionality assumption. That is, the impact of the second
stage on different aquatic resource types is not expected to equally impact all CWA programs. Instead, the
Stage 2 analysis relies on qualitative descriptions and conceptually more complete and rigorous case
studies.
The following sections first summarize the methodologies used in the 2015 Rule and the 2017 proposed
repeal, then explain the major concerns the agencies now have with the original methodologies, and then
finally describe the updated analysis and results.
III.A Summary of the Analyses Used in the 2015 Rule and its 2017 Proposed
Repeal
In the economic analysis for the 2015 Rule, the agencies projected an increase in the jurisdiction of the
CWA by identifying several previously determined non-jurisdictional waters and wetlands and categories
of waterbodies that could potentially be considered jurisdictional under the 2015 Rule, dependent on case-
specific analysis (see Section 4 of the economic analysis for the 2015 Rule for details). This estimate was
for purposes of calculating additional costs to regulated entities and benefits associated with the rule,
rather than an analysis of how the scope of CWA jurisdiction changed. It was estimated that the 2015
Rule would result in an increase of waters, including wetlands, that are within the scope of CWA
jurisdiction of between 2.84 percent and 4.65 percent in total. The estimated increase in jurisdiction over
55 U. S. Environmental Protection Agency and U.S. Department of the Army .2015. Economic Analysis of the EPA-Army Clean
Water Rule. Docket ID EPA-HQ-2011-0880-20866. Available at https://www.regulations.gov/document?D=EPA-HO-OW-
2011-0880-20866.
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certain categories of waters and certain states, however, was estimated to be larger than this overall
average increase.
The estimated increase in jurisdiction was anticipated to provide benefits and costs to the nation by
increasing the reach of a number of CWA programs covered under sections 303, 311, 401, 402, and 404.
The 2.84 percent to 4.65 percent increases in overall CWA jurisdiction were used to then estimate the
total costs and benefits of that rule. Specifically, the total costs and benefits from the most recent
regulatory impact analysis for each of the affected CWA programs were first adjusted to 2014 dollars,
then the program sizes were adjusted to reflect sector growth or realized information on the size of the
sector, and finally, those estimates were simply multiplied by the estimated 2.84 percent and 4.65 percent
increase in CWA jurisdiction to calculate an estimated range of costs and benefits for each CWA program
under the 2015 Rule. The costs and benefits across programs were then summed to estimate the
nationwide costs and benefits of the 2015 Rule. The 2017 proposed repeal of the 2015 Rule simply
assumed that the previously estimated costs were now avoided costs and the previously estimated benefits
were now forgone benefits (and expressed in 2017 dollars).
The one exception to the application of the 2015 Rule methodology laid out above to the 2017 proposed
repeal was the wetlands benefits category. Wetlands benefits were estimated to accrue as part of the
expected increase in mitigation under the CWA section 404 dredged and fill permitting program. Section
404 requires applicants to avoid and minimize impacts to jurisdictional waters. In cases where impacts are
unavoidable, it requires that the impacts be mitigated, for example, either through the restoration of
aquatic resources or through the enhancement of other existing aquatic resources. Individual permits were
assumed to be required to mitigate two acres for every one acre disturbed, although the resulting
ecosystem services and values held by society were assumed to be provided on a one to one basis. In
other words, this 2-for-l acres requirement assumed for permits was meant to account for the fact that
mitigated wetlands may not be as productive at providing valued ecosystem services as the wetland being
developed, on a per acre basis. Half of the expected general permits were assumed to require 2-for-l acre
mitigation, while the other half were assumed to require no mitigation. The overall general permit per
acre mitigation ratio was therefore 1-for-l.
However, wetland benefits were determined to be too uncertain to monetize in the 2017 proposal. Instead,
wetlands benefits were described qualitatively. (See Section 3.1 of the Economic Analysis for the 2017
Proposal.) The rationale for omission of calculating these forgone benefits is stated in the Economic
Analysis for the 2017 proposal:
"In the case of the forgone benefits of wetland protection the agencies believe the
cumulative uncertainty in this context is too large to include quantitative estimates in the
main analysis for this proposed rule. However, the agencies are confident that the forgone
benefits of wetlands protection are greater than zero" (EPA 2017, p. 9)
III.B Potential Biases in the 2015 Rule and its 2017 Proposed Repeal
Since publication of the final 2015 Rule, the agencies have received information through filings in
litigation against the 2015 Rule and comments received in response to the 2017 proposed rulemaking
suggesting that the estimate of the average estimate of a 2.84 to 4.65 percent increase in jurisdictional
determination may not accurately reflect the potential costs and benefits associated with the first stage of
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this economic analysis (see Section II. C. 3 of the Supplemental notice of proposed rulemaking, 83 FR
32227, July 12, 2018).
Some commenters suggested that the increase in jurisdictional waters could be substantially larger than
the average for certain categories of waters or in certain states. For instance, the agencies estimated that
34.5 percent of "isolated waters" (identified as "other waters" in the Corps' FY13 and FY14 ORM2
database representing six percent of the aquatic resources) could have become jurisdictional under the
2015 Rule, after having been determined not jurisdictional under pre-2015 practice. In addition, certain
states, particularly those in the arid West, could see significant, much larger than average expansions of
federal jurisdiction over streams. In the FY13-FY14 ORM2 records for Arizona, 709 of 1,070 total
streams (66.3 percent) were determined to be non-jurisdictional. For Arkansas, 116 of 213 total streams
(54.5 percent) were determined to be non-jurisdictional. In South Dakota, North Dakota, Nevada, New
Mexico, and Wyoming, 8.5 percent, 9.2 percent, 13.2 percent, 16.7 percent, and 57.1 percent of streams
in the FY13-FY14 ORM2 database, respectively, were identified as non-jurisdictional.56 To the extent
that these percentages reflect the increase in jurisdictional coverage from the 2015 Rule, the costs and
benefit based on the average increase in federal jurisdiction is potentially underestimated.
In contrast, there may be reasons to believe that the estimated costs and benefits of the 2015 rule were
overstated. The assumptions in the 2015 Rule were designed to maximize the estimated costs and benefits
of that rule's definition of the "waters of the United States" so as to not understate the potential impact of
that rule. As stated in the 2015 Rule economic analysis
"Note that waters that are currently found to be jurisdictional may also be subject to the
expanded set of exclusions included in the final rule. For these and similar reasons, the
agencies believe that positive jurisdictional determinations under the final rule will be
less than assumed for the purposes of this economic analysis." (U.S. EPA and
Department of the Army 2015, p. 8)
Fewer positive jurisdictional determinations than the analysis's 2.84 percent overall increase assumption
would imply that both the estimated costs and benefits of the 2015 Rule were over-stated.57
Since the 2017 proposed repeal used the same assumptions as were in the 2015 Rule (with minor
updating), the avoided costs and forgone benefits of that action would also be over-stated for the same
reason if there are fewer positive jurisdictional determinations. In addition, a potentially more important
reason, discussed earlier in this economic analysis, may be that state, and tribal governments may choose
to regulate waters at a level consistent with or above that associated with the 2015 Rule. This was
explicitly recognized in the 2015 Rule economic analysis.
56 See "Supporting Documentation (Analysis of Jurisdictional Determinations for Economic Analysis and Rule)" in the Docket
for the 2015 Rule (Docket ID: EPA-HQ-OW-2011 -0880). Available at https://www.regulations.gov/document?D=EPA-HO-
QW-2011-0880-20877.
57 The Stage 1 economic analysis for this proposal focuses on the 2.84 percent estimate of potential overall increase in
jurisdiction, although the same changes in approach would apply to the 4.65 percent potential overall increase estimate from
the 2015 Rule economic analysis.
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"This economic analysis does not account for the possibility that some states, as a matter
of state law, may be considering a broader set of waters to be subject to a state's
implementation of certain CWA programs. Although the extent of a state's CWA
jurisdiction may not be smaller than the definition of waters of the U.S., states and tribes
may elect to implement their water quality protection programs more broadly, according
to a definition of 'waters of the state' or 'waters of the tribe.' Where individual states
have elected to regulate waters more broadly, the estimated costs and benefits of this rule
would be smaller than presented here (because states may already be asserting
jurisdiction over waters for which this analysis presumed jurisdiction was not generally
asserted in practice)." (U.S. EPA and Department of the Army, 2015, p. 4)
If states previously regulated waters more broadly than the federal government required, then the cost and
benefits of the 2015 Rule and avoided costs and forgone benefits of the 2017 proposal would be
potentially overestimated.
Another reason why the cost and benefits of both the 2015 Rule and 2017 proposed repeal may have been
overestimated is that both analyses assumed that the rule would affect entities regulated under the CWA
in direct proportion to the percent change in positive jurisdictional determinations. For example, a 2.84
percent increase in positive jurisdictional determinations implied a 2.84 percent increase in CWA section
402 CAFO permits and implementation. In effect, these analyses assumed that CAFO, stormwater
construction and other activities currently regulated under the CWA are distributed exactly the same way
across both large, navigable waterways as well as along adjacent wetlands, open waters, non-navigable
tributaries (including streams and ditches), and other aquatic resources in the 2015 Rule's case-specific
categories. Given that the waterbodies subject to these actions are not perennial waters and therefore not
as well suited to many industrial or agricultural discharge uses, this proportional assumption may not be
appropriate. This, too, was explicitly recognized in the 2015 analysis.
"It is also unlikely that new CAFOs and stormwater-relevant construction would be built
on newly jurisdictional waters without decreases in construction or CAFO activities
elsewhere." (U.S. EPA and Department of the Army, 2015, p. xi)
In a similar fashion, the estimated benefits and costs from the 2015 Rule and the 2017 Proposal assumed
that the percentage increase in costs and benefits of increased positive jurisdictional determinations were
equal to the percentage increase in regulated activities. For example, the estimated 2.84 percent increase
in CAFO permit and implementation activity was assumed to result in a 2.84 percent of the costs and
benefits of the 2003 CAFO rule. It is not clear, a priori, whether this assumption would imply an
overestimate or underestimate of the costs and benefits in the 2015 Rule and the 2017 Proposal. If the
marginal benefits of regulating water decline as smaller waterbodies are regulated (which would be a
common assumption of a diminishing marginal benefits) then the benefits of the 2015 Rule and 2017
Proposal may be overstated. If the costs of regulating increases as smaller water bodies are regulated (an
assumption of increasing marginal costs) then the costs of these two actions would have been
underestimated.
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III.C Updated Analysis of the Repeal of the 2015 Rule
For the reasons stated above, a revision to earlier analyses for the first stage of this proposed action is
appropriate. However, not all the factors described can be addressed. This analysis uses some of the same
basic approach as was used for both the 2015 analysis and the 2017 proposal, including the estimated 2.84
percent increase in jurisdiction under the 2015 Rule (but not the 4.65 percent), but it does make several
important improvements.
III.C. 1 Incorporation of State Responses
The 2015 analysis and the 2017 proposed repeal analysis did not account for potential state behavior
regulatory actions in response to a change in CWA jurisdiction. Both analyses implicitly assumed that
states always adjust regulatory regimes to match the federal jurisdictional level anytime there is a change
in federal jurisdiction. It is important to note that states' water quality and dredged and fill programs can
work independently, and both must therefore be considered. States may be more or less protective in their
programs depending on a variety of factors, including their constituents' preferences and the types of
resources located within their boundaries.
As described in Sections II.A, there are number of possible ways that states could respond to changes in
CWA jurisdiction. States may adjust their regulatory programs to match any changes in federal CWA
jurisdiction. If CWA jurisdiction is reduced and states followed suit, states and regulated entities would
avoid costs and the public would forgo water quality and wetland benefits. At the other extreme, state-
level baseline regulations may be broader than the federal requirements. In this case, if CWA jurisdiction
is reduced at the federal level, states may simply maintain their broader, baseline regulations. It is also
possible that if CWA jurisdiction is reduced at the federal level, a state may choose to revise its current
state laws and programs to continue the baseline actions required by the federal government. In both last
two cases, state requirements would fully fill any regulatory gap in the wake of a change in the definition
of "water of the United States." This state "gap-filling" would result in no change in compliance costs to
the regulated community and no change in environmental benefits (that is, neither avoided costs nor
forgone benefits would occur), suggesting a zero-net impact in the long-run. The agencies emphasize,
however, that if states do make regulatory changes to maintain the previous federal baseline level of
CWA jurisdiction then the states will likely incur some transition costs in the short-run, and some of the
cost of running programs will be transferred from the federal government to the states. The cost to states
could be more or less than the federal government.
Another potential outcome is a federalism scenario. In this scenario, when requirements imposed by the
federal government are altered, state and local governments may be able to find more efficient ways of
managing local resources. This is in line with the theory of "fiscal federalism."58 States are more likely to
be knowledgeable about which waters their local constituents' value and may more efficiently manage
them. States can choose to allocate more resources to manage high-valued waters and wetlands and
reduce regulation on less valued waters and wetlands. Depending on whether a newly characterized non-
jurisdictional water is highly or lowly valued, states may choose to regulate or not regulate it and the
compliance costs could increase or decrease, respectively. And in turn, the corresponding environmental
benefits could increase or decrease. In either case, however, net benefits will increase, assuming a state
58 For example, see Oates, W. E. (1999). An essay on fiscal federalism. Journal of economic literature, 37(3), 1120-1149, or
Oates, W. E. (1998). On the welfare gains from fiscal decentralization. University of Maryland, Department of Economics.
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can more efficiently allocate resources towards environmental protection due to local knowledge of
amenities and constituent preferences (see Section II.A for details).
In short, potential state responses to a change in the definition of a "water of the United States" fall along
a continuum and depend on legal and other constraints. Furthermore, these responses may differ for
surface water programs and dredged/fill permit programs. States that have laws defining "waters of the
state" to be no broader than "waters of the United States" cannot currently regulate past the Federal
definition. Cost savings and forgone benefits from these states should be included in the costs and
benefits of the Stage 1 action. In contrast, states that have regulations of surface waters, including
wetlands, that are as broad or broader than the 2015 Rule may not be affected by the Stage 1 action.
Therefore, no cost savings or forgone benefits should be assumed for these. States that fall in between
these extremes can be evaluated by either including or excluding them from the estimating of cost savings
and forgone benefits.
Section II.A discussed how the agencies categorized state regulations of dredged and fill permitting
programs and surface waters discharge permitting programs. These categorizations can be used to
evaluate possible state responses to a change in the definition of the "waters of the United States." State
regulation of dredged and fill programs is assumed to affect the costs and benefits of CWA section 404
permitting and section 404 wetland and stream mitigation. State regulation of surface water discharge
programs is assumed to affect the costs and benefits of CWA section 402 CAFO, stormwater, and
pesticide regulation; section 311 compliance; and section 401 administration.
State responses to dredged and fill regulation were classified into one of four categories:
• Category 1 - States likely to reduce dredged/fill permitting practices or do not have dredged/fill
permitting programs. The costs and benefits from CWA section 404 permitting and wetland
mitigation is included in this analysis.
• Category 2 - States likely to provide partial regulatory coverage of waters that would no longer
be "waters of the United States" and may reduce their regulatory practices. The costs and benefits
from CWA section 404 permitting and wetland mitigation are assessed using a sensitivity
analysis by either including or excluding them from the analysis.
• Category 3 - States likely to provide partial regulatory coverage of waters that would no longer
be "waters of the United States" and may continue baseline regulatory and non-regulatory
practices. The costs and benefits from CWA section 404 permitting and wetland mitigation for
these states are assessed using a sensitivity analysis by either including or excluding them from
the analysis
• Category 4 - States likely to continue baseline dredged/fill permitting practices. The costs and
benefits from CWA section 404 permitting and wetland mitigation for these states are excluded
from this analysis.
State responses to surface water regulation were classified into one of three categories forNPDES-
authorized states:
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• Category 1- States that do not regulate waters more broadly than the CWA and have broad legal
restrictions are likely to reduce baseline practices as a consequence of this action. The costs and
benefits from CWA sections 402, 311, and 401 are included in this analysis.
• Category 2 - States that regulate waters more broadly than the CWA or do not have broad legal
restrictions may continue their baseline practices. The costs and benefits from CWA sections 402,
311, and 401 for these states are assessed using a sensitivity analysis by either including or
excluding them from the analysis.
• Category 3 - States that regulate waters more broadly than the CWA and do not have broad legal
restrictions are likely to continue baseline practices. The costs and benefits from CWA sections
402, 311, and 401 are excluded from this analysis.
The agencies assumed that states without NPDES authorization would generally have limited capacity to
regulate discharges to waters that would no longer be jurisdictional, regardless of the category they would
otherwise be placed in, so they are always placed in Category 1.
For both dredged and fill and surface water programs, states classified as Category 1 are the most likely to
reduce their baseline practices to match a federal change in CWA jurisdiction. Impacts in these states are
always included in the estimate of cost savings and forgone benefits. States classified as Category 4 for
dredged and fill regulation and as Category 3 for surface water regulation are most likely to continue
baseline practices even after a change in federal CWA jurisdiction. Impacts from these states are always
excluded from cost savings and forgone benefits estimates. States classified as Category 2 and 3 for
dredged and fill regulation and as Category 2 for surface water regulation fall in between these extremes;
they may reduce, or they may continue their baseline practices. These states are included or excluded
from the cost savings and forgone benefits estimates in a sensitivity analysis.
The various combinations of possible state responses are detailed in Table III-l below. The sensitivity
analysis will evaluate three scenarios. Scenario 1 is the most broad and includes the cost savings and
forgone benefits for all states except those that are likely to continue their baseline practices regardless of
federal action. Scenario 2 narrows the number of states used in the estimate by excluding states that are
likely to continue and those that may continue baseline practices. Scenario 3 is the most narrow in that
only includes states that are likely to reduce baseline practices to match the federal level.
Appendix B includes two additional scenarios. Scenario 0 includes all states in the estimate of cost
savings and forgone benefits, regardless of the categorization of the states regulations. This scenario is
included as a comparison to the 2015 Rule and the 2017 Proposal analysis. Both of those analyses
included all states in the calculations. Scenario la excludes states that are likely to continue and those that
may continue baseline dredged and fill practices but only excludes states that are likely to continue
baseline surface water practices. This is a potentially plausible scenario, but it produces results similar to
Scenario 1 so it is included in Appendix B. Table III-l describes which categories are included or
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excluded from each scenario. The number in parentheses represents the number of states in each
category.59
Table 111-1: Treatment of the effect of state response on cost and benefits in the sensitivity
analysis
Category (number of
Sensitivity Analysis
Appendix
states)
Scenario 1
Scenario 2
Scenario 3
Scenario 0
Scenario la
Change in baseline dredged and fill practices (affects Section 404 programs)
1 - Likely reduce (5)
Included
Included
Included
Included
Included
2 - May reduce (15)
Included
Included
Excluded
Included
Included
3 - May continue (8)
Included
Excluded
Excluded
Included
Excluded
4 - Likely continue (21)
Excluded
Excluded
Excluded
Included
Excluded
Change in baseline surface water practices (affects Sections 402, 311, and 401 programs)
1 - Likely reduce (6)
Included
Included
Included
Included
Included
2 - May continue (20)
Included
Excluded
Excluded
Included
Included
3 - Likely continue (23)
Excluded
Excluded
Excluded
Included
Excluded
III.C.2 Wetland Mitigation Valuations Methods
A re-evaluation of the economic analysis of the 2015 Rule and its proposed repeal led to the identification
of several methodological issues that need to be addressed in future analyses. The method used to value
wetland mitigation acres, discussed below, and the fact that the current state regulatory regimes were not
considered, discussed above, are particularly of concern as the agencies consider the 2015 EA. These
issues are relevant to both the first and second stage economic analysis of this proposal and are discussed
in detail below.
III.C.2.1 The 2015 Rule Wetland Valuation Methodology
The agencies identified several issues with the wetlands valuation methodology used to assess the 2015
Rule. First, the implicit baseline did not account for potential wetland development. A developer can
mitigate wetland impacts through creating new wetlands, restoring existing wetlands, or preserving other
existing wetlands. In the latter case, if the preserved wetlands were not under some risk of future
development to begin with, then there is no actual change in wetlands from such mitigation. Ideally, the
assumed baseline would include a spatially explicit projection of what wetlands would be developed and
when, and this would then be compared to a policy scenario with spatially explicit projections of which
wetlands are preserved as part of the 404 permit mitigation requirements. Such a task would be difficult to
undertake and fraught with uncertainties.
Many other aspects of the wetland valuation methodology implemented to assess the 2015 Rule are also
of concern. To value the expected change in wetland acres, the Economic Analysis for the 2015 Rule
applied willingness to pay (WTP) values for preserving or expanding wetland acreage from the academic
literature to the estimated changes in wetland acres resulting from the rule. The application of WTP
values from the literature to a new policy setting is known as benefit transfer. The EPA's Guidelines for
59 Hawaii and the District of Columbia were included in the state categorization exercise but were not included in the estimate of
avoided costs and forgone benefits due to a lack of data. These states were also from the analyses for the 2015 Rule and
2017 Proposal.
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Preparing Economic Analyses (2010) lays out requirements for performing a valid benefit transfer. The
studies being transferred must first have valid and relevant results. Assuming the results are valid, studies
being transferred should have a similar (1) definition of the environmental commodity being valued
(including considerations like scale and the presence of substitutes); (2) baseline and extent of
environmental changes; and (3) characteristics of affected populations. Many components of the 2015
analysis do not satisfy these requirements. No national level studies concerning WTP for the expansion or
preservation of wetland acreage are currently available for the U.S., and the U.S. freshwater (non-coastal)
wetlands valuation literature is relatively thin. While there are several wetlands valuation studies in the
literature, many are context dependent and not suitable or appropriate for transfer in this analysis. Also, a
large portion of the available studies do not use accepted economic valuation methods but instead rely
upon estimates of annual value per acre for wetland (not based on WTP) using net factor income,
replacement costs, energy-based analyses, the market value of extracted products, and other
methodologies. These studies do not satisfy accepted benefit transfer study selection criteria and are
therefore not appropriate to average or to transfer to other locations.
The 2015 Rule relied on estimates of WTP for wetland preservation or expansion from ten studies, most
of which were state or local level studies. These were used to create a single, national WTP per acre per
household values for emergent wetlands and another single, national WTP value for forested/shrub
wetlands. Some studies provided multiple WTP estimates. The agencies concluded that six of the ten do
not satisfy standard unit value benefit transfer study selection criteria. These six studies are described
below.
• Azevedo et al. (2000): The report describes two stated preference questions given to a random
sample of Iowa residents on their WTP for easements to restore land to its natural wetland state.
While there is a detailed discussion of the survey instrument, the report only provides two charts
plotting the "% of respondents willing to pay x" against stated payment amounts presented in the
surveys. Average WTP is assumed to be given by the 50th percentile of the range of stated WTP.
No statistics beyond the charts are presented and no parametric estimation was conducted. No
summary statistics, standard errors, or confidence intervals are reported, and it is unclear if the
report was peer reviewed. Without additional detail on the underlying data and estimation results
it is not possible to validate or replicate the results, and so the agencies conclude that it is not
appropriate to apply the results of this study to the current context.
• Dillman et al. (1993): The report values three types of wetlands in South Carolina: floodplain
swamps, bottomland hardwood forests, and pine plantations with scattered hardwood runners.
The survey, sent to a random sample of South Carolina residents, informs respondents that the
floodplain swamps provide the greatest amount and variety of wetland function, followed by the
bottomland forests and pine plantations, respectively (although the ranking of the latter two does
not hold across all 14 attributes used to describe the functionality and services of these wetlands).
The payment vehicle is a donation to a "wetland preservation fund." Donation payment vehicles
are subject to several biases including free riding and a lack of consequentiality which can
exacerbate hypothetical bias. The study design does not vary the number of acres protected,
telling all respondents that 2,500 acres of wetland would be protected making it difficult to
conduct a scope test, at least in terms of quantity of waters impacted. The study tests for
differences in WTP for the different types of wetlands using constants for two of the three types
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but fails to find significant effects despite differences in the provision of ecosystem services.
Finally, the study does not appear to be peer reviewed. Given the issues in study design and lack
of peer review, the agencies conclude that it is not appropriate to apply the results of this study to
the current context.
• Johnson and Linder (1986): The wetland valuation estimates presented in this paper were
derived from a one percent sample of the 1982 licensed resident hunters in South Dakota. Hunters
in this region often view wetlands as a recreational resource. The WTP amounts estimated in the
paper therefore only apply to hunters in the South Dakota region and are not applicable to the
general population. The agencies conclude that it is not appropriate to apply the results of this
study to the current context.
• Lant and Tobin (1989): The authors investigated three different drainage basin improvement
scenarios but only collected between seven and sixteen responses for each scenario. The estimates
presented in this paper were intended as illustrations and not as exact estimates of population
WTP. The authors explicitly state that "the comparative case study approach and small samples
preclude statistical inference or precise quantitative estimates" which disqualifies the study for
use in benefit transfer.
• Poor (1999): This paper valued unique Nebraska wetlands that were part of the North American
Flyway in the state's Rainwater Basin using a double bounded dichotomous choice response
format. A significant portion of the Rainwater Basin is designated as a Wildlife Refuge and
attracts thousands of birdwatchers per year. The study design employs a three-way split sample,
varying the scope of wetland protection across treatments. Using the split sample design, the
authors conduct an external scope test and fail to find significant scope effects. External scope is
a high bar and rigorous test of validity that some otherwise well-designed studies do not achieve.
However, the lack of significant scope effects makes it difficult to calculate a per acre value for
wetland protection. Instead, the authors apply the mean and median total WTP values to the
smallest program in the experimental design (16,000) acres which provides the largest net benefit.
It also results in the largest per acre value for benefit transfer. Given the ad hoc approach to
deriving a per acre value, this study is not appropriate for direct unit value benefit transfer.
• Roberts and Leitch (1997): This paper attempted to value Mud Lake, a managed, lacustrine
wetland on the Minnesota-South Dakota border using a random sample of households who live
within 30 miles of Mud Lake. The payment card format and voluntary contribution payment
vehicle used in the paper are now generally not thought of as appropriate by economists. In
addition, the total value estimated in the report appears to be the sum of separately estimated
recreational, option, and bequest values. The current literature advocates estimating total value as
opposed to summing up separate values. The authors also express reservations about their results
when they state "[e]ven though the results of this study are first approximations and rest on some
bold assumptions, they should provide useful benchmarks for resource managers and encourage
others to develop better estimates." The agencies conclude that it is not appropriate to apply the
results of this study to the current context.
Of the original ten studies used in the 2015 Rule analysis, only four clearly satisfied standard benefit
transfer selection criteria. These studies included two focusing on Kentucky (Blomquist and Whitehead
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(1998) and Whitehead and Blomquist (1991)), one from California (Loomis et al. (1991)), and one from
Wisconsin (Mullarkey and Bishop (1999)). These four studies derived their WTP estimates from samples
of state residents (although Bloomquist and Whitehead also surveyed respondents in nearby population
centers outside of Kentucky). Because valid transfers require the transfer and policy cases to have similar
affected populations, environmental quality, and extent of changes, the most appropriate geographic scale
of transfer for these wetlands valuation study results would be at the state-level, and only to the states in
which the primary studies were conducted, or arguably other states with similar populations and wetland
resources. These concerns led the agencies to conclude that application of these wetlands valuation
studies on a national level would lead to invalid WTP estimates.
Setting aside the validity of the wetland WTP per acre per household value estimates used in the 2015
Rule EA, the way in which the WTP estimates were applied to calculate total national benefit values was
also problematic. For the 2015 analysis, the two national average wetland WTP per acre per household
values, for emergent wetlands and forested/shrub wetlands, were multiplied by the number of acres
changed by the rule and the assumed number of affected households to arrive at an estimate of total WTP.
The number of affected households was represented by two different scenarios. In the first scenario,
changes in wetland acres were assumed to only have value to households in the state in which the
changed wetlands were located. This was a "state-level approach." The second scenario was labeled a
"regional approach" and relied on eight wetland regions defined by the USDA Economic Research
Service and assumed all households within a given multi-state wetland region had a positive WTP for all
changes in wetland acreage within their home region.60 Both scenarios applied the same average WTP for
a wetland acre within the state or region, depending on the approach, but this value dropped to zero once
outside of the state or region borders.
For the regional approach, EPA used the eight wetland regions identified by USDA's Economic Research
service: Central Plains, Delta and Gulf, Mountain, Midwest, Northeast, Pacific, Prairie Potholes, and
Southeast.61 While it is certainly true that wetlands provide services that affect households outside of a
state's borders, the regional approach applied the national average WTP value for changes in wetland
acres thousands of miles away. For example, the regional approach applies the willingness to pay value
from residents in Tucson, Arizona, to changes in wetland acres in Boise, Idaho; and from residents in
Bozeman, Montana to changes in wetland acres in Des Moines, Iowa.
The final WTP estimates for the 2015 Rule were calculated using a "blended" method that averaged the
state-level and the regional WTP scenarios. There is no clear support for this blending assumption
reflected in the benefit transfer literature. In particular, the regional approach that applied household WTP
values to wetlands thousands of miles away is inappropriate. Several of the ten non-market valuation
studies used focused on more local populations around a specific wetland. Others even focused on a
60 The regions were USDA/ERS defined regions; see the 2015 Rule Final Economic Analysis, fn 25, p. 49 for additional details.
61 Heimlich, R.E., R. Claassen, K.D. Wiebe, D. Gadsby, and R.M. House. 1998. Wetlands and Agriculture: Private Interests and
Public Benefits. AER-765, U.S. Department of Agriculture Economic Research Service, Washington, D.C. Heimlich et al.
(1998) assigned states to regions as follows: Central Plains (KS, NE, OK), Delta and Gulf (AR, LA, MS, TN, TX),
Mountain (AZ, CO, ID, NM, UT, WY), Midwest (IL, IN, KY, MI, MN, OH), Northeast (CT, DE, MA, MD, ME, NH, NY,
PA, RI, VT, WV), Pacific (CA, OR, WA), Prairie Potholes (IA, MT, ND, NE, SD), and Southeast (AL, FL, GA, NC, SC,
VA)
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particular subset of the population (e.g., hunters and fishermen) whose preferences are unlikely to be
representative of the population more broadly.
III.C.2.2 Updated Methodology for Wetlands Benefits
It is important to emphasize that the agencies acknowledge that there are benefits to the preservation of
wetlands. The proposed rule, if finalized will result in certain wetland acres becoming non-jurisdictional
under the CWA. Some of these newly non-jurisdictional wetland acres may be disturbed or developed
without any corresponding federal wetland mitigation to offset the losses, particularly in situations where
state laws do not maintain the previous levels of regulation. The loss of these wetlands will likely result in
the loss of benefits that they would have provided. However, due to the reasons above (failure to account
for state governance, reliance on inappropriate studies, and questionable benefit transfer methods), the
agencies believe that the methodology used to estimate wetlands benefits from the 2015 Rule is not
appropriate. Instead, the agencies have developed a more appropriate methodology to estimate the amount
of forgone wetland benefits that could arise as a result of this proposal.
III.C.2.2.1 Steps of Benefit Transfer
As mention above, the EPA's Guidelines for Preparing Economic Analyses (2010) lay out requirements
for performing a valid benefit transfer. The first step is to describe the policy case. The second step is to
then select study cases for transfer that are applicable to the policy case and produce valid estimates of
willingness to pay using accepted and appropriate methods. Once study cases have been selected, the next
step is to transfer their values to the policy case. There are several methods of transferring values
including unit value transfers, function transfers, meta-analyses, and structural benefit transfer. The
appropriate method to use will be dependent on the selected study cases. The final step is to report the
results including all key judgements and assumptions used to select the case studies and transfer method
used.
III.C.2.2.1.1 Describe the policy case
The proposed rule includes as "waters of the United States" adjacent wetlands—defining adjacent as
those wetlands that abut or have a direct hydrologic surface connection to a non-wetland jurisdictional
water in a typical year. Abut means to touch at least at one point or side of a jurisdictional water. A direct
hydrologic surface connection occurs as a result of inundation from jurisdictional water to a wetland or
via perennial or intermittent flow between a wetland and a jurisdictional water. Wetlands physically
separated from jurisdictional waters by upland or by dikes, barriers, or similar structures and also lacking
a direct hydrologic surface connection to such waters are not adjacent. In addition, the proposed rule
includes as jurisdictional tributaries, rivers, streams, or similar naturally occurring surface water channels
that contribute perennial or intermittent flow to a TNW in a typical year either directly or indirectly
through other jurisdictional waters. A tributary does not lose its status as a tributary if it flows through a
culvert, dam, or other similar artificial break.
The agencies also propose to retain the two pre-existing exclusions for prior converted cropland and
waste treatment systems, though with modifications to the regulatory text, and nine other exclusions. The
agencies also propose to define waste treatment systems to include all components, including lagoons and
treatment ponds (such as settling or cooling ponds), designed to convey and retain, concentrate, settle,
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reduce and remove pollutants, either actively or passively, from wastewater or stormwater prior to
discharge (or eliminating any such discharge). The agencies are proposing to clarify that a designation of
"prior converted cropland" for purposes of the CWA no longer applies if the area is abandoned and has
reverted to wetland.
III. C. 2.2.1.2 Select study cases and apply explicit selection criteria
The foundation of any benefit transfer is the underlying studies that are being transferred. All available
studies should be collected and evaluated against the necessary criteria for inclusion in the benefit
transfer. Acceptable studies should be similar to the policy case (1) in their definition of the
environmental commodity being valued including scale and the presence of substitutes, (2) the baseline
and extent of environmental changes, and (3) the characteristics of the affected populations. Studies must
also employ valid and accepted economic theory and econometric techniques.
Because wetlands potentially have significant nonuse values, they are commonly valued using stated
preference methods. The complex way in which wetlands provide ecosystem services make them a
particularly challenging commodity for which to elicit accurate preferences and willingness to pay values.
Careful selection of studies is crucial to conducting an accurate transfer.
III.C.2.2.1.3 Transfer Values
The simplest way to transfer values is known as a unit value transfer. In this method, a point estimate of
willingness to pay (WTP) from a case study is applied directly to the policy site. The point estimate can
be a single value from a study or average of a small number of estimates from a few case studies. Unit
value transfers should only be used in cases where the case study and policy sites are very similar. Point
estimates are generally a function of several variables (e.g., income, region) and simply transferring them
to a new location without accounting and controlling for those difference can lead to inaccurate results.
Instead of using a single value from a case study, function transfers use the estimated function from which
the case study's estimated WTP value was generated. Using the estimating function allows the transferred
WTP estimate to control for factors that are known to influence WTP. While function transfers can adjust
for small differences between the case study and policy area populations, they are still subject to the unit
value benefit transfer requirements that the study and policy cases be similar in the type and size of the
quality change and the population being evaluated.
Meta-analyses, a third type benefit transfer approach, combines and synthesizes the results from multiple
valuations studies to estimate a new transfer function. Meta-analyses have the advantage of drawing
information on WTP from a large number of disparate sources in order to control for a relatively large
number of variables that influence WTP. Because meta-analysis controls for the confounding attributes of
the underlying studies, it is sometimes possible to make use of a larger number of studies than would be
considered for a unit or function transfer. There are several different forms meta-analyses may take, and
the form is often determined by the type and amount of information available for use in the meta-
analyses. See Johnston et al. (2015) for more details on meta-analyses and other transfer methodologies. It
is important to recognize that techniques such as meta-analyses cannot correct for all study qualities or the
appropriateness of the underlying studies. If the underlying studies do not provide a good match to the
resource in question or do not rely on well accepted practices for questionnaire development and/or
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econometric techniques, those studies should be excluded from meta-analysis. Thus, the agencies
carefully vetted wetland valuation studies included in the meta-analysis to support wetland valuation in
Stage 1 and Stage 2 analyses presented in Section III.C.2.2.3.2.62 Moreover, the Moeltner et al. (2018)
study used in benefit transfer relied on Bayesian Stochastic Search Variable (SCSV) algorithm to test
whether combining studies that valued different wetland types (i.e., freshwater and saltwater) is
appropriate for benefit transfer applications focused on freshwater wetlands only. As discussed in
Moeltner et al. (2018), the meta-regression model relying on freshwater studies only produced the best
estimates for the purpose of this analysis.
III.C.2.2.1.4 Report Results
Information on all studies used in the benefit transfer as well as the full results should be reported. In
addition, all assumptions and judgements that were made in the selection of case studies and transfer
methodologies should be clearly explained. Any uncertainty in the estimates should be reported and
discussed when possible.
III.C.2.2.2 Wetlands Benefits using the 2015 WOTUS Approach
The 2015 Economic Analysis reported CWA 404 wetlands benefits of $306.1 million, using a 3%
discount rate. As described above, this was based on an analysis that did not account for state or tribal
regulations and used a "blended" estimate of the WTP. In creating a new estimate of the forgone benefits
from this action, it is important to understand how the 2015 estimate was derived and whether it is a
useful point of comparison for our new estimate.
In the 2015 analysis, 22 estimates of the per household per acre WTP for wetland improvements were
combined from ten studies.63 The individual study estimates were categorized as applying to either
forested wetlands (13 estimates from four studies) or emergent wetlands (9 estimates from six studies).
The WTP estimate was inflated to 2014$ and the estimate was classified as an annual value or a total
WTP. Total WTP values were annualized over 20 years at both the 3% and 7% rate. These studies and
calculations are summarized in Table III-2 below.
62 The reasons for not including wetland valuation studies in the final meta-data are summarized in a memo provided in the
docket for this action (Docket No. EPA-HQ-OW-2018-0149).
63 It is important to note that six of the ten studies whose values were transferred in the 2015 analysis were found to be
inappropriate for use in a unit value transfer and therefore should not have been used (see section III.C.2.1 for details).
Those studies are used in this section only to illustrate the issues with the way which the 2015 Rule's benefit transfer was
conducted.
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Table 111-2: Summary of wetland benefit studies used to generate WTP estimates in the 2015 Rule
analysis
Study (Year)
Acres
WTP
Value
Inflated
to 2014$
Annual
Value
Annual or 20-Year
Annualized WTP
(per household) 2014$
Annual WTP per
household per acre
2014$
3%
7%
3%
7%
Emergent Wetlands
Johnson and Linder (1986)
1,307,187
$626.18
No
$42.09
$59.11
$0.0000
$0.0000
Loomis et al. (1991) 1
85,000
$267.68
Yes
$267.68
$267.68
$0.0031
$0.0031
Loomis et al. (1991) 2
125,000
$441.49
Yes
$441.49
$441.49
$0.0035
$0.0035
Azevedo et al. (2000) 1
7,000
$13.75
No
$0.92
$1.30
$0.0001
$0.0002
Azevedo et al. (2000) 2
32,345
$34.37
No
$2.31
$3.24
$0.0001
$0.0001
Roberts and Leitch (1997) 1
5,000
$9.34
Yes
$9.34
$9.34
$0.0019
$0.0019
Poor (1999)
41,000
$31.76
Yes
$31.76
$31.76
$0.0008
$0.0008
Mullarkey and Bishop
(1999) 1
110
$19.44
Yes
$19.44
$19.44
$0.1767
$0.1767
Mullarkey and Bishop
(1999) 2
110
$34.20
Yes
$34.20
$34.20
$0.3109
$0.3109
Average $94.36 $96.39 $0.0552 $0.0553
Forested
Lant and Tobin (1989) 1
2,109
$46.30
Yes
$46.30
$46.30
$0.0220
$0.0220
Lant and Tobin (1989) 2
1,108
$104.22
Yes
$104.22
$104.22
$0.0941
$0.0941
Blomquist and Whitehead
(1998) 1
500
$3.06
Yes
$3.06
$3.06
$0.0061
$0.0061
Blomquist and Whitehead
(1998) 2
500
$6.67
Yes
$6.67
$6.67
$0.0133
$0.0133
Blomquist and Whitehead
(1998) 3
500
$3.06
Yes
$3.06
$3.06
$0.0061
$0.0061
Blomquist and Whitehead
(1998)4
500
$20.30
Yes
$20.30
$20.30
$0.0406
$0.0406
Dillman et al (1993) 1
2,500
$28.25
No
$1.90
$2.67
$0.0008
$0.0011
Whitehead and Blomquist
(1991) 1
5,000
$20.81
Yes
$20.81
$20.81
$0.0042
$0.0042
Whitehead and Blomquist
(1991) 2
5,000
$14.03
Yes
$14.03
$14.03
$0.0028
$0.0028
Whitehead and Blomquist
(1991) 3
5,000
$9.72
Yes
$9.72
$9.72
$0.0019
$0.0019
Whitehead and Blomquist
(1991)4
5,000
$12.58
Yes
$12.58
$12.58
$0.0025
$0.0025
Whitehead and Blomquist
(1991) 5
5,000
$31.71
Yes
$31.71
$31.71
$0.0063
$0.0063
Whitehead and Blomquist
(1991) 6
5,000
$15.52
Yes
$15.52
$15.52
$0.0031
$0.0031
Average $22.30 $22.36 $0.0157 $0.0157
The Economic Analysis for the 2015 Rule stated that the per household per acre WTP for forest and
emergent wetlands "was calculated separately for each category by taking a geometric mean of the per-
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acre WTP values, weighted by the number of respondents in each study," but a review of the exact
calculations used suggest something different. It appears that the WTP (in 2014$) was used to calculate
the implied net present value per household over a 50-year horizon for each study. This net present value
was then divided by the number of acres in the study to calculate a "one-time willingness to pay per
household per acre." The log of this one-time WTP value for each study was multiplied by the proportion
of the study sample size to the total sample size count. The sum of this sample size proportion weighted
logged (one-time) WTP was then exponentiated and then used as the overall (annual) WTP for emergent
and forested acres.64 Using this approach, emergent wetlands were valued at about one-half of a cent per
acre and forested wetlands were valued between 4 and 6 cents per acre at 7% and 3% respectively (see
Figure 42 in the 2015 Economic Analysis).
This analysis uses a more straightforward method to calculate the average values from these ten studies.
Dividing the annual WTP by the number of acres for each study produces the annual WTP per household
per acre for wetland changes at both 3% and 7%. These values are reported in the last column of Table
III-2. There is a very minor difference between the 3% and 7% results because most of the studies
reported annual values. Averaging across the studies produces an average value for both types of
wetlands. Emergent wetlands are valued at about 5.5 cents per acre and forested wetlands are valued at
about 1.6 cents per acre. These values are somewhat different than those used in the 2015 economic
analysis, but the value still reflects and estimate of a few cents per acre and they are derived using what
the agencies consider a more defensible approach.
While the WTP per household per acre was assumed to apply nationally in the 2015 analysis, the total
benefits for each state differed because the number of households and the number of acres affected in
each state differed. As described above, a combination of two approaches was used to estimate the state
level benefits. The first was a state-level approach which assumed that only residents within a state's
boundaries receive benefits from wetland losses offset within that state. The second approach was a
regional approach which assumed that all residents within a wetland region benefit from wetland losses
offset anywhere in that region. For the final 2015 Rule, the agencies used a "blended" approach which
was the average of the total state-level and the total regional benefits estimates.
As described above, the regional approach applied the WTP value for changes in wetland acres thousands
of miles away. Even though the state-level approach may be overly conservative because wetlands can
provide services and benefits to downstream waters beyond a state's boundaries, the regional approach is
inappropriate for a benefit transfer exercise because the extent of the market considered in the majority of
the original studies was narrower (e.g., state population). As such, the agencies use the state-level
approach results from the 2015 Rule as a point of comparison for this this benefit transfer analysis.
Using state-level approach only but using the per household per acre WTP values for wetlands of one-half
cent per acre for emergent wetland and 6 cents per acre for forested wetlands from the 2015 analysis
produces wetland benefits of $106.9 million. If the agencies use the state-level approach with the estimate
of 1.6 cents for forested wetlands and 5.5 cents for emergent wetlands derived above indicates $96.5
million in wetland benefits from the 2015 Rule. This range, $96.5-$106.9 million, is the agencies best
64 Page 19 of the Supporting Documentation (Analysis of Jurisdictional Determinations for Economic Analysis and Rule), found
at https://www.regulations.gov/document?D=EPA-HO-OW-2Ql 1-0880-20877 illustrate these calculations.
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estimate of what the 2015 analysis should have reported for wetlands benefits. In a similar fashion, the
2017 proposed repeal of the 2015 Rule should have reported the same range in forgone wetland
mitigation benefits. It is important to reemphasize that this reflects a state-level approach that assumes
that all states are affected by the jurisdictional determination.
III.C.2.2.3 Updated and Revised Benefits Transfer
While the state-level approach from the 2015 Rule economic analysis is more appropriate than the
blended approach, the agencies believe it is still inappropriate for benefit transfer for two reasons. First,
the use of a national level average WTP value does not properly account for state level variation. If the
marginal value of wetland mitigation was approximately identical across the country, then the aggregation
of the 2017 proposal would be as simple as multiplying the national level mean per household per acre
value times the affected households and affected acres. This is exactly what is done in the state-level
approach. However, it seems unlikely that there is no regional variation in this WTP value given. Wetland
benefits are, in general, a more local commodity. The market for these benefits, including the
demographic profiles and cultural aspects, vary widely across the country. In addition, the conditions and
quality of the benefits (e.g., the ecosystem services) experienced from this mitigation is heavily dependent
on the local climate and topography. Proper benefit transfer requires correcting for these differences
across populations living in different areas.
Second, as described above, not all of the studies used in the 2015 analysis satisfy standard benefit
transfer study selection criteria for a unit transfer, which is effectively what is being done with the state-
level approach. A unit transfer assumes that the WTP at the study site is equal to the WTP at the policy
site, so the commodity being valued, and the population must be similar. As detailed above, six of the ten
studies used in the 2015 Rule do not meet the criteria for a unit transfer. The remaining four might be
appropriate. Note that while these six studies are not appropriate for a unit transfer, they might be
appropriate for a function transfer, which statistically controls for the variation of the WTP.
III.C.2.2.3.1 Unit Value Transfer
The evaluation of the studies for the 2015 Rule economic analysis produced four papers that are
appropriate for a unit benefit transfer: Bloomquist and Whitehead (1998), Loomis et al (1991), and
Mullarkey and Bishop (1999), and Whitehead and Bloomquist (1991). A more recent review of the
wetlands valuation literature identified these four studies and an additional study, Newell and Swallow
(2013) as appropriate for unit transfer. The agencies recognize that while there have been a number of
meta-analyses of wetland valuations published more recently, there are no other new primary studies that
assessed the valuation of wetlands that the agencies are aware of.
For example, the agencies commissioned Abt Associates to provide an overview of the wetland valuation
literature in [2017], There are a number of unexplained differences in the WTP values between the 2015
Rule and the Abt Associates review, but the Abt Associates values are more easily verified and are in a
more current base year, so the Abt values are used for this benefit transfer exercise. As was done above,
the agencies divide the annual WTP by the number of acres in the study to produce the annual WTP per
household per acre for wetland changes for each observation. Four WTP value can be created from the
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five studies by averaging the per household per acre value for all the observations in each study state.65 In
this case, there is no difference in the value based on the discount rate and there is no distinction between
the value for forested and emergent wetlands. The results are detailed in Table III-3 below.
Table 111-3: Summary of wetland benefit studies used in the current analysis
Annual WTP per
Annual WTP
household per acre
Author
Year
Target Population
Acres
(2017$)
(2017$)
Blomquist & Whitehead
1998
all KY HHs
500
$3
$0.0060
Blomquist & Whitehead
1998
all KY HHs
500
$8
$0.0160
Blomquist & Whitehead
1998
all KY HHs
500
$6
$0.0120
Blomquist & Whitehead
1998
all KY HHs
500
$19
$0.0380
Average
$0.0180
Whitehead & Blomquist
1991
all KY HHs
5,000
$19
$0.0038
(1) Average of Blomquist & Whitehead 1991/1998
$0.0109
(2) Mullarkey & Bishop
1999
all Wl HHs
110
$64
$0.5818
Newell & Swallow
2013
Two townships, Rl
29
$9
$0.3103
Newell & Swallow
2013
Two townships, Rl
45
$12
$0.2667
Newell & Swallow
2013
Two townships, Rl
60
$16
$0.2667
(3) Average Newell & Swallow
$0.2812
Loomis et al.
1991
all CA HHs
58,000
$258
$0.0044
Loomis et al.
1991
all CA HHs
40,000
$426
$0.0107
(4) Average of Loomis
$0.0075
HHs = Households
For the single unit value benefit transfer, the agencies assume that the per household WTP at the study
site is equal to the WTP at the policy site. Determining the relevant extent of the market and the affected
population is important in this case because projecting unit values to a larger population or spatial area
than that in the study can lead to errors (Johnston et. al. 2015). As such, there appear to be two possible
ways in which the unit values from Table III-3 might be applied:
1. Applying the unit values only to the state in which in the study was conducted.
2. Applying the unit values to the state in which the study was conducted and appropriate
surrounding states.
The results of these unit transfer applications are detailed in Table III-4.
65 Note that Blomquist and Whitehead (1998) and Whitehead and Blomquist (1991) both focus on the state of Kentucky so their
results are averaged to create a single value.
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Table 111-4: Estimated total WTP by state using unit value transfers
Annual WTP
Only State of
State and Adjacent
per
Total New
Primary Study1
States2
Study
household
Impacted
Annual Forgone
Annual Forgone
Estimate
per acre
Number of
Acres by
State Benefits
State Benefits
State
Number
(2017$)
Households
State
(2017$)
(2017$)
KY
1
$0.0109
1,719,965
4.4
$137,417
$137,417
IL
1
$0.0109
4,836,972
51.9
$4,521,460
IN
1
$0.0109
2,502,154
17.0
$766,320
MO
1
$0.0109
2,375,611
1.3
$56,940
OH
1
$0.0109
4,603,435
88.5
$7,331,34
TN
1
$0.0109
2,493,552
5.8
$258,989
VA
1
$0.0109
3,056,058
22.9
$1,261,512
WV
1
$0.0109
763,831
33.0
$453,628
Wl
2
$0.5818
2,279,768
3.3
$4,317,438
$4,317,438
IA
2
$0.5818
1,221,576
2.1
$1,472,181
Ml
2
$0.5818
3,872,508
0.1
$333,354
MS
2
$0.5818
1,115,768
0.9
$576,286
Rl
3
$0.2812
413,600
0.1
$17,209
$17,209
CT
3
$0.2812
1,371,087
0.1
$57,049
MA
3
$0.2812
2,547,075
0.6
$423,919
CA
4
$0.0075
12,577,498
37.3
$3,540,117
$3,540,117
AZ
4
$0.0075
2,380,990
11.1
$199,454
NV
4
$0.0075
1,006,250
54.9
$416,968
OR
4
$0.0075
1,518,938
5.8
$66,165
Total
52,656,636
341.2
$7,957,978
$20,374,834
1 Omits values from 44 states. Some primary studies included population from the cities adjacent to the study area in
addition to the state population where affected wetlands were located (e.g., Blomquist and Whitehead, 1998).
2 Omits values from 30 states
If the four unit values are applied to the four states associated with the primary study, then the monetized
portion of annual forgone benefits of the 2017 proposal would be about $8 million. It is important to be
explicit that this estimate omits values from 44 states where wetlands would also be impacted. If the unit
values are applied to the state of the primary study and the adjacent states, the estimate of the forgone
annual benefits is just over $20 million. When values are applied to adjacent states, forgone benefits from
30 states are not monetized.
III.C.2.2.3.2 Meta Function Transfer
Moeltner et al. (2018) performs a meta-analysis of wetland valuation studies to estimate a benefit function
for preserving or restoring acres of wetlands. The study is an application of the methodologies developed
in Moeltner et al. (2007), Moeltner and Rosenberger (2014), and Moeltner (2015). The study performs a
Bayesian non-linear meta-regression that ensures the benefits function meets a set of utility theoretic
validity criteria. Those criteria are: concavity of the benefits function over wetland acres, sensitivity to
scope, a scope elasticity that is not restricted by the functional form of the benefit function, and the adding
up condition which ensures dividing a change up into smaller increments does not affect the total benefit.
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The data for the meta-regression consist of 38 observations from 17 stated preference studies identified in
the 2017 Abt Associates wetlands literature review that contained WTP estimates potentially useful in a
meta-analysis. The meta-data include 21 observations from 11 studies associated with freshwater
wetlands. The remaining 17 cases target salt marshes or, more broadly, "coastal wetlands." The
following discussion focuses on the freshwater wetlands only. Moeltner et al. (2018) provides detail on
the full dataset.66 Six of the studies value state-wide changes in wetland area and five focus on wetlands
at the sub-state level. Given that the plurality of the observations in the meta-analysis are from studies
conducted at the state level, the agencies estimate changes in benefits at the state level, assuming WTP for
out of state changes is zero, and aggregate WTP across states ex post.
Table 111-5: Studies used in the freshwater only meta-regression model in Moeltner et al. (2018)
WTP
Author
Year
Target Population
Wetland Type
Acres
(2017$)
Maumee Bay SP, OH,
Awondo et al.
2011
visitors
freshwater, unspec.
2,499
$193
Beran, L.J.
1995
alISC HHs
freshwater, forested
2,500
$36
Beran, L.J.
1995
alISC HHs
freshwater, forested
2,500
$27
Beran, L.J.
1995
alISC HHs
freshwater, forested
2,500
$33
Blomquist & Whitehead
1998
all KY HHs
freshwater
500
$3
Blomquist & Whitehead
1998
all KY HHs
freshwater, forested
500
$8
Blomquist & Whitehead
1998
all KY HHs
freshwater, forested
500
$6
Blomquist & Whitehead
1998
all KY HHs
freshwater, forested
500
$19
deZoysa
1995
selected MSAs, OH
freshwater, unspec.
3,000
$109
Loomis et al.
1991
all CA HHs
freshwater, unspec.
58,000
$258
Loomis et al.
1991
all CA HHs
freshwater, unspec.
40,000
$426
MacDonald et al.
1998
Atlanta region, GA
freshwater, unspec.
330
$108
Mullarkey & Bishop
1999
all Wl HHs
freshwater, forested
110
$64
Newell & Swallow
2013
Two townships, Rl
freshwater, forested
29
$9
Newell & Swallow
2013
Two townships, Rl
freshwater, forested
45
$12
Newell & Swallow
2013
Two townships, Rl
freshwater, forested
60
$16
Poor1
1999
all NE HHs
freshwater, unspec.
16,000
$47
Poor
1999
all NE HHs
freshwater, unspec.
41,000
$42
Poor
1999
all NE HHs
freshwater, unspec.
66,000
$47
Whitehead et al.
2009
selected counties, Ml
freshwater, unspec.
1,125
$73
Whitehead & Blomquist
1991
all KY HHs
freshwater, forested
5,000
$19
HHs = Households
1 This study is included in meta-analysis discussed in Section III.C.2.2 because the dependent variable in the meta-regression
model is the total WTP per household and not per acre values
The dependent variable in the meta-regression is the natural log of household WTP for the specified
change. Willingness to pay is modeled as a function of "context-defining" and "moderator" variables in
the non-linear regression equation. Context-defining variables are those that are policy-relevant including
66 The EA incorporates all the underlying studies used in Moeltner et al (2018) for completeness. Because of the concerns
discussed about Poor (1999), the agency plans to refine the meta-analysis by excluding the results of this study in addition to
the results currently presented. The agency expects that the results of the meta-analysis will not materially change due to the
exclusion of Poor (1999).
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the baseline number of acres, the number of acres preserved or restored, whether those acres are forested
wetlands, and whether they were described by the primary study to provide several specific ecosystem
services. Moderating variables generally refer to details on how the study was conducted and are not
relevant to benefit transfer but are included to avoid omitted variable bias and/or to adjust for the study
characteristics (e.g., voluntary payment, a study is not peer-reviewed) to ensure that the meta-regression
function used in benefit transfer reflects the best benefit transfer practices and desired study
characteristics (e.g., a peer reviewed study and non-voluntary payment such as income tax). The means
and standard deviations of all explanatory variables are reported in Table III-6. The model specification
used to estimate the benefit parameters for transfer (called Model 3 in Moeltner et al., 2018) is
ys = Xsp + ln(Y~1(exp(Yq1j) ~ exp(rq0,s))) +
£s~n(0, er£2/s)
where y, is the natural log of WTP from study 5, Xs is a vector of moderator variables from study s, qljS is
the post-policy wetland area, qo,s is the baseline wetland area, fJ> and fare vectors of estimated parameters,
ce2 is the variance of the error term and f , is an s-dimensional identity matrix. Moeltner (2018) tested
other specifications that allow for unobserved study-level heterogeneity and observation-level
heteroskedasticity but found that the model with spherical, idiosyncratic errors performed best.
Table 111-6: Meta-regression variable summary from Moeltner et al. (2018)1
Description
Mean
Min
Max
Lnwtp
log(total wtp in 2017 dollars)
3.56
1.05
6.06
Lnyear
log(year of data collection - oldest year +1)
1.57
0.00
2.89
Lninc
log(income in 2017 dollars)
10.97
10.64
11.48
Sagulf
1 = S-Atlantic/Gulf (AL,GA,SC,LA)
0.19
0.00
1.00
Nema
1 = NE/mid-Atlantic,(DE,MD,NJ,PA,RI)
0.14
0.00
1.00
Nmw
N/Mid-West (KY,MI,NE,OH,WI)
0.57
0.00
1.00
Local
1 = target population at sub-state level
0.33
0.00
1.00
Prov
1 = provisioning function affected
0.24
0.00
1.00
Reg
1 = regulating function affected
0.52
0.00
1.00
Cult
1 = cultural function affected
0.76
0.00
1.00
Forest
1 = forested wetland
0.52
0.00
1.00
qO
baseline acres (1000s)
40
0
220
ql
policy acres (1000s)
51
1
220
Volunt
1 = payment mechanism = voluntary contribution
0.43
0.00
1.00
lumpsum
1 = payment frequency = lump sum (single payment)
0.43
0.00
1.00
Ce
1 = elicitation method = choice experiment
0.14
0.00
1.00
Nrev
1 = study was not peer-reviewed
0.24
0.00
1.00
median
1 = wtp estimate = median
0.33
0.00
1.00
Nummary statistics is based on the freshwater studies only. See Moeltner et al. (2018) for saltwater and combined
freshwater and saltwater datasets.
The Bayesian estimation routine provides distributions for each of the estimated parameters and is
performed using Gibbs sampling (Train, 2009). An additional feature of the Moeltner (2018) estimation
algorithm is that primary studies that do not closely match the policy context can be included and
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evaluated to determine if they provide useful information to estimating the parameters of the benefits
function. The algorithm which evaluates the efficiency of pooling data across different types of studies is
called stochastic search variable selection (SSVS). In this application the studies being evaluated for
inclusion value acres of saltwater wetlands while the most policy-relevant studies value freshwater
wetlands. The author finds that values from saltwater studies diverge significantly from freshwater
studies, so while that information will not contribute to the benefits function, it is an indication of validity
in the primary studies in that somewhat different environmental services are valued differently by
respondents to the stated preference surveys.
The posterior means and standard deviations for the parameters of the meta-regression are reported in
Table III-7. Based on the estimated distributions of the parameters, the variables local, regulating,
forested, and provisioning, are the strongest predictors of WTP with more than 90% of their probability
mass on one side of zero. These are followed by variables for year of the study, income of the sample, and
the regional variables for northeast/mid-Atlantic and midwest with more than 70% of their probability
mass on one side of zero.
Table 111-7: Meta-regression results from Moeltner et al. (2018)
mean
std.
p(> o)1
Constant
-0.546
3.097
0.430
context-specific
Lnyear
-0.359
0.667
0.281
Lninc
0.211
0.363
0.723
Sagulf
-0.406
1.743
0.405
Nema
-0.784
1.538
0.295
Nmw
-1.073
1.556
0.244
Local
3.130
0.895
0.999
Prov
-2.273
0.876
0.009
Reg
1.632
0.850
0.970
Cult
-0.317
1.563
0.413
Forest
1.118
0.726
0.937
Moderators
Volunt
-0.016
1.038
0.495
lumpsum
1.486
0.771
0.968
T
0.008
0.007
0.883
oe2
0.474
0.260
1.000
1Prob(>0) equals the share of the posterior density to the right of zero.
Using the results of the meta-analysis to estimate a change in benefits for each state resulting from a
change in wetland area requires the following state-specific variables: change in wetland acres because of
CWA jurisdictional changes, average household income, number of households, proportion of change in
acres that is forested, and region of the United States. The baseline acres in the primary studies generally
referred to an area that was under consideration for restoration or preservation and is a small fraction of
total statewide acres. As such, the mean value for baseline acres from the primary studies is used for qo
which is 10,000 acres to avoid predicting out of sample. The value for qi for each state is 10,000 acres
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plus the expected change in jurisdictional wetland acres for each state. Table III-8 lists the values for each
state-specific variable used in the benefit transfer.
Table 111-8: State-specific benefit transfer variables
State
Average
Income
(2016$)
South
Atlantic/Gulf
Northeast/Mid
-Atlantic
Northern/Mid-
West
Proportion of
Forested
Acres
Change in
Wetland
Acres
AL
47,221
1
0
0
0.9632
7.3
AK
75,723
0
0
0
0.4291
1.0
AZ
57,100
0
0
0
0.8201
11.1
AR
45,907
1
0
0
0.9676
7.3
CA
66,637
0
0
0
0.2856
37.3
CO
70,566
0
0
0
0.1648
7.7
CT
75,923
0
1
0
0.9141
0.1
DE
58,046
1
0
0
0.9311
0.1
DC
70,982
1
0
0
0.9425
0.0
FL
51,176
1
0
0
0.6875
28.6
GA
53,527
1
0
0
0.9456
4.1
HI
72,133
0
0
0
0.8991
0.0
ID
56,564
0
0
0
0.2339
0.6
IL
61,386
0
0
1
0.8032
51.9
IN
56,094
0
0
1
0.7774
17.0
IA
59,094
0
0
1
0.5192
2.1
KS
56,810
0
0
1
0.3633
10.4
KY
45,369
1
0
0
0.9157
4.4
LA
42,196
1
0
0
0.6932
1.9
ME
50,856
0
1
0
0.8966
0.1
MD
73,760
1
0
0
0.9210
2.2
MA
72,266
0
1
0
0.9060
0.6
Ml
57,091
0
0
1
0.9027
0.1
MN
70,218
0
0
1
0.7107
10.7
MS
41,099
1
0
0
0.9573
0.9
MO
55,016
0
0
1
0.8054
1.3
MT
57,075
0
0
0
0.1435
27.4
NE
59,374
0
0
1
0.1765
9.9
NV
55,431
0
0
0
0.2464
54.9
NH
76,260
0
1
0
0.8448
0.1
NJ
68,468
0
1
0
0.9025
1.5
NM
48,451
0
0
0
0.4369
0.1
NY
61,437
0
1
0
0.8394
44.4
NC
53,764
1
0
0
0.9703
7.0
ND
60,184
0
0
1
0.0156
440.3
OH
53,985
0
0
1
0.7972
88.5
OK
50,943
1
0
0
0.8142
0.7
OR
59,135
0
0
0
0.2044
5.8
PA
60,979
0
1
0
0.8350
17.6
Rl
61,528
0
1
0
0.9471
0.1
SC
54,336
1
0
0
0.9384
44.2
SD
57,450
0
0
1
0.0266
50.9
TN
51,344
1
0
0
0.9368
5.8
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Table 111-8: State-specific benefit transfer variables
State
Average
South
Northeast/Mid
Northern/Mid-
Proportion of
Change in
Income
Atlantic/Gulf
-Atlantic
West
Forested
Wetland
(2016$)
Acres
Acres
TX
58,146
1
0
0
0.4585
72.2
UT
67,481
0
0
0
0.1108
11.4
VT
60,837
0
1
0
0.7913
0.4
VA
66,451
1
0
0
0.8946
22.9
WA
70,310
0
0
0
0.4797
1.2
WV
44,354
1
0
0
0.6375
33.0
Wl
59,817
0
0
1
0.7921
3.3
WY
57,829
0
0
0
0.2138
2.1
Source: EPA analysis
Willingness to pay for each state is estimated using the full multi-variate distributions of the estimated
parameters, generating a distribution of WTP for each state. Those distributions are summarized in Table
III-9. The sum of the mean estimate of forgone benefits using the meta-analysis approach is $59.34
million, which is lower than the $96.5-$106.9 million comparison value using the state-level approach
from the 2015 Rule (and is significantly lower than the $306.1 million reported in the 2015 Economic
Analysis for that rule using the blended approach). Table III-9 also contains the lower 5th and upper 95th
percentile WTP estimate for each state.67 The estimated mean value derived from the meta-analysis is
lower than the lower range of values derived from the value-based benefit transfer approach although the
lower and upper bound estimates based on the meta-analysis are inclusive of the range of estimates based
on the value transfer (see Table III-9). This result stems from the ability to tailor the meta-fiinction to
better reflect the policy scenario. In particular, the meta-regression model allows the agencies to account
for the value of independent regressors like affected resource characteristics such as wetland location
(e.g., Mid West or New England or Mid Atlantic), the number of wetland acres affected, the ecosystem
services typically provided by freshwater wetlands, and the extent of the market (e.g., state-level vs local).
Similarly, it allows to estimate values assuming moderator variables reflect the best methodological
practices for stated preference studies (e.g., use of non-voluntary payment mechanisms) and the agencies'
preference for peer reviewed studies. Finally, the meta-regression model developed by Moeltner et al.
(2018) satisfies fundamental theoretical properties, such as sensitivity to scope and adding-up condition,
which may not be captured in the value-based transfer approach.
In two of the four primary state case study locations used in the unit value transfer exercise, the unit value
transfers and the meta-analysis results are roughly equal. In the Kentucky case study, the unit value
transfer estimate of the annual WTP per household per acre for wetlands was $0.01, while the meta-
analysis estimate was $0.03. In the California case study, the unit transfer annual WTP per household per
acre estimates was $0.01 compared to $0.02 for the meta-analysis. The largest difference between the unit
value estimates and the meta-analysis estimates can be seen in the Wisconsin case study where the annual
WTP per household per acre was estimated to be $0.58 per acre using the unit value, but only $0.01 per
67 To be precise, the estimate of the total foregone benefits should be obtained from the full distribution of the meta-analysis
rather than summing the state by state estimates. Using the full distribution, the mean estimate of total foregone benefits is
$60.71 million. The lower 95th and upper 95th percentile estimates of total foregone benefits are $0.46 million and $130.42
million respectively.
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acre using the mean meta-analysis. This difference results in a $4.24 million difference in total forgone
benefits between the two methodologies. The unit value estimate of $0.28 WTP per household per acre
annually from the Rhode Island case study is also significantly higher than the mean meta-analysis
estimate of $0.05 annually per household per acre.
The agencies deployed two techniques to assess the likely foregone wetland benefits. The unit value
transfer technique is a more restrictive approach to benefit transfer in that the study case and the policy
case would need to be similar enough to allow for the transfer of the WTP values. The meta-analysis
technique may allow wider inclusion of studies because the technique can control for confounding
variables. Using the unit value transfer technique, the estimated wetland benefits that accrued to the 2015
Rule would have ranged from approximately $8 million to $20 million ($2017), depending on whether
the values are applied only in the states where the studies are conducted or whether adjacent areas are
included in the benefit transfer. It is important to note that the unit value transfer estimate does not
represent the entire country so the total unit value transfer estimate is only a partial measure of the
national wetland forgone benefits. Using the meta-analysis, the mean national wetland benefits that
accrued to the 2015 Rule would have been $59 million ($2017).
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 76
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Ill Stage 1 Analyses: CWA Jurisdictional Change from the 2015 Rule to the Pre-2015 Practice
Table 111-9: Unit and meta-analysis based transfer results by state
Benefit Transfer Results Based on Meta-Regression (Moeltner et al., 2018)
Upper
Unit Value
Lower 5th
95th WTP
Upper 95th
Transfer
Lower 5th
Estimate of
per
Estimate of
Total New
Foregone
Mean WTP per
Mean Estimate of
WTP per
Forgone
household
Forgone
Impacted Acres
Benefits
household per
Forgone Benefits
household per
Benefits
per acre
Benefits
State
Households
by State
(2017$)
acre (2017$)
(2017$)
acre (2017$)
(2017$)
(2017$)
(2017$)
AK
258,058
1.0
$0,020
$5,419.22
$0.000000
$0.00
$0,050
$13,419.02
AL
1,883,791
7.2
$0,030
$414,434.02
$0.000138
$1,883.79
$0,062
$853,357.32
AR
1,147,084
7.2
$0,031
$256,946.82
$0.000138
$1,147.08
$0,063
$524,217.39
AZ
2,380,990
11.1
$199,453.52
$0,035
$926,205.11
$0.000180
$4,761.98
$0,079
$2,095,271.20
CA1
12,577,498
37.3
$3,540,117.46
$0,017
$8,099,908.71
$0.000080
$37,732.49
$0,043
$20,262,349.28
CO
1,972,868
7.7
$0,015
$230,825.56
$0.000130
$1,972.87
$0,038
$581,996.06
CT
1,371,087
0.1
$57,048.74
$0,047
$9,597.61
$0.000000
$0.00
$0,074
$15,081.96
DE
342,297
0.1
$0,027
$1,369.19
$0.000000
$0.00
$0,061
$3,080.67
FL
7,420,802
28.6
$0,019
$4,036,916.29
$0.000105
$22,262.41
$0,043
$9,060,799.24
GA
3,585,584
4.1
$0,028
$419,513.33
$0.000241
$3,585.58
$0,060
$892,810.42
IA
1,221,576
2.1
$1,472,181.41
$0,007
$17,102.06
$0.000000
$0.00
$0,017
$42,755.16
ID
579,408
0.6
$0,017
$5,794.08
$0.000000
$0.00
$0,041
$13,905.79
IL
4,836,972
51.9
$4,521,460.16
$0,011
$2,684,519.46
$0.000077
$19,347.89
$0,024
$6,099,421.69
IN
2,502,154
17.0
$766,319.53
$0,011
$447,885.57
$0.000059
$2,502.15
$0,024
$1,005,865.91
KS
1,112,096
10.4
$0,006
$65,613.66
$0.000000
$0.00
$0,014
$162,366.02
KY1
1,719,965
4.4
$137,416.50
$0,028
$216,715.59
$0.000225
$1,719.97
$0,059
$448,910.87
LA
1,728,360
1.9
$0,020
$67,406.04
$0.000000
$0.00
$0,044
$146,910.60
MA
2,547,075
0.6
$423,918.91
$0,047
$71,318.10
$0.000000
$0.00
$0,076
$114,618.38
MD
2,156,411
2.2
$0,025
$118,602.61
$0.000000
$0.00
$0,056
$269,551.38
ME
557,219
0.1
$0,054
$4,457.75
$0.000000
$0.00
$0,074
$6,129.41
Ml
3,872,508
0.1
$333,353.58
$0,014
$7,745.02
$0.000000
$0.00
$0,027
$15,490.03
MN
2,087,227
10.7
$0,009
$198,286.57
$0.000094
$2,087.23
$0,021
$469,626.08
MO
2,375,611
1.3
$56,939.79
$0,011
$35,634.17
$0.000000
$0.00
$0,025
$78,395.16
MS
1,115,768
0.9
$576,285.85
$0,032
$31,241.50
$0.000000
$0.00
$0,063
$62,483.01
MT
409,607
27.4
$0,015
$171,215.73
$0.000073
$819.21
$0,037
$418,618.35
NC
3,745,155
7.0
$0,029
$767,756.78
$0.000144
$3,745.16
$0,062
$1,621,652.12
ND
281,192
440.3
$0,004
$468,747.06
$0.000030
$3,655.50
$0,010
$1,211,375.14
NE
721,130
9.9
$0,005
$32,450.85
$0.000000
$0.00
$0,012
$82,208.82
NH
518,973
0.1
$0,047
$3,632.81
$0.000000
$0.00
$0,074
$5,708.70
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 77
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Ill Stage 1 Analyses: CWA Jurisdictional Change from the 2015 Rule to the Pre-2015 Practice
Table 111-9: Unit and meta-analysis based transfer results by state
Benefit Transfer Results Based on Meta-Regression (Moeltner et al., 2018)
Upper
Unit Value
Lower 5th
95th WTP
Upper 95th
Transfer
Lower 5th
Estimate of
per
Estimate of
Total New
Foregone
Mean WTP per
Mean Estimate of
WTP per
Forgone
household
Forgone
Impacted Acres
Benefits
household per
Forgone Benefits
household per
Benefits
per acre
Benefits
State
Households
by State
(2017$)
acre (2017$)
(2017$)
acre (2017$)
(2017$)
(2017$)
(2017$)
NJ
3,214,360
1.5
$0,049
$231,433.92
$0.000000
$0.00
$0,076
$360,008.32
NM
791,395
0.1
$0,020
$2,374.19
$0.000000
$0.00
$0,047
$5,539.77
NV
1,006,250
54.9
$416,967.95
$0,017
$934,806.25
$0.000073
$4,025.00
$0,041
$2,278,150.00
NY
7,317,755
44.4
$0,048
$15,733,173.25
$0.000045
$14,635.51
$0,073
$23,797,339.26
OH
4,603,435
88.5
$7,331,303.82
$0,011
$4,474,538.82
$0.000068
$27,620.61
$0,024
$9,943,419.60
OK
1,460,450
0.7
$0,023
$24,827.65
$0.000000
$0.00
$0,050
$54,036.65
OR
1,518,938
5.8
$66,164.88
$0,016
$141,261.23
$0.000000
$0.00
$0,040
$347,836.80
PA
5,018,904
17.6
$0,048
$4,276,106.21
$0.000057
$5,018.90
$0,073
$6,459,329.45
Rl1
413,600
0.1
$17,209.24
$0,054
$3,308.80
$0.000000
$0.00
$0,081
$4,963.20
SC
1,801,181
44.2
$0,028
$2,220,856.17
$0.000136
$10,807.09
$0,059
$4,737,106.03
SD
322,282
50.9
$0,004
$63,167.27
$0.000020
$322.28
$0,010
$162,430.13
TN
2,493,552
5.8
$258,988.84
$0,028
$406,448.98
$0.000173
$2,493.55
$0,060
$857,781.89
TX
8,922,933
72.2
$0,013
$8,601,707.41
$0.000083
$53,537.60
$0,032
$20,504,900.03
UT
877,692
11.4
$0,015
$145,696.87
$0.000088
$877.69
$0,036
$363,364.49
VA
3,056,058
22.9
$1,261,511.78
$0,025
$1,717,504.60
$0.000131
$9,168.17
$0,055
$3,844,520.96
VT
256,442
0.4
$0,047
$5,385.28
$0.000000
$0.00
$0,072
$8,206.14
WA
2,620,076
1.2
$0,021
$65,501.90
$0.000000
$0.00
$0,053
$165,064.79
Wl1
2,279,768
3.3
$4,317,438.27
$0,010
$77,512.11
$0.000000
$0.00
$0,024
$177,821.90
WV
763,831
33.0
$453,628.32
$0,018
$465,936.91
$0.000091
$2,291.49
$0,041
$1,031,935.68
WY
226,879
2.1
$0,016
$7,713.89
$0.000000
$0.00
$0,040
$18,830.96
Total
$26,150,6602
$59,416,523
$238,021
$121,700,961
1 Unit value transfer estimate came from a study conducted in the same state.
2 Note that the unit value transfer exercise does not produce a comprehensive estimate of forgone benefits because more than half the states do not have appropriate unit
value estimate to transfer.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 78
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ill Stage 1 Analyses: CWA Jurisdictional Change from the 2015 Rule to the Pre-2015 Practice
III.C.3 Disaggregation of Costs and Benefits by State
The most straightforward way to take state responses to proposed changes in CWA jurisdiction into
account is to estimate benefits and costs at the state level. The emphasis of the economic analysis for the
2015 Rule was national level estimates, although the analysis included a few categories of benefits and
costs estimated at the state level, aggregated to and reported at the national level, with the rest of the
categories being estimated directly at the national level.68 The state-level treatment categories were
stream mitigation costs, wetlands mitigation costs, and wetlands benefits, though as noted above, the
agencies calculated wetlands benefits at both the state and regional level. These are the categories for
which both the agencies could obtain state level data, and for which unit costs or per household benefits
were expected to vary geographically. All other categories were nationally estimated and are the focus of
the disaggregation to state-level analysis here. This section describes the additional analysis to
disaggregate those categories of benefits and costs to the state level. The CWA programs that the 2015
Rule assumed would be affected are discussed below. It is possible that other CWA programs would be
affected by the 2015 Rule and its repeal, but this analysis is limited to those programs addressed in the
2015 analysis.
The CWA section 311 program addresses oil spill prevention and preparedness, reporting obligations and
response planning, and pertains to facilities that produce or store oil products, depending on volume and
whether there is a reasonable expectation for an oil discharge in harmful quantities into or upon "waters
of the United States" or adjoining shorelines. The EPA, the agency that administers this program, has
information on the location by state of the high-risk facilities and those facilities that have been inspected.
The EPA also has estimates of the overall number of facilities and the distribution by EPA Region from
its latest Paperwork Reduction Act Information Collection Request (ICR) renewal and from Regulatory
Impact Analyses (RIAs) related to prior SPCC rulemakings, each of which was published in the Federal
Register and available for public comment. While the ICR and RIA data do not describe the universe of
facilities at the state level, the agencies were able to leverage these sources to distribute the estimate of
total facilities affected from the 2015 Rule analysis to each state.69 The average number of facilities
potentially affected in the first stage analysis per state is 20, but these range from 1 to 150. Unit costs per
facility are not assumed to vary by location, thus, costs vary at the state level mainly because of variable
activity levels.
The CWA section 402 CAFOs permitting program is implemented by states with NPDES permitting
authority, or the EPA in the states that have not been authorized. The EPA compiles annual summaries on
the implementation status of the NPDES CAFO regulations. The agencies used percent of total CAFOs
with NPDES permits in 2016 to disaggregate to the state level the national estimates for administrative
costs, compliance costs, and benefits from the 2015 economic analysis. The average number of facilities
potentially affected in the first stage analysis per state is about 120, but these range from 0 to nearly 600.
68 Benefits and costs for the 311 program, 402 program, and parts of the 404 program are estimated at a national level and then
apportioned to each state based on the amount of programmatic activity in each state. Because initial estimates are national
in scope, externalities that cross state lines should in theory be included in the apportioned state totals.
69 These assumptions and additional calculations are reported in the spreadsheet entitled "Revised Step 1 Rule Analysis" found in
the docket (See Docket No. EPA-HQ-OW-2018-0149).
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 79
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ill Stage 1 Analyses: CWA Jurisdictional Change from the 2015 Rule to the Pre-2015 Practice
Unit costs per facility are not assumed to vary by location, thus, costs vary at the state level mainly
because of variable activity levels.
The CWA section 402 stormwater permitting program is also implemented by states with NPDES
permitting authority, or the EPA in the states that have not been authorized. The national estimates of
administrative costs, compliance costs, and benefits in the economic analysis of the 2015 Rule are based
on certain construction activities that are expected to generate stormwater runoff. The EPA does not have
detailed and complete information at the state level on construction projects covered by a construction
stormwater permit. To apportion the regional goals to the state level, the agencies used data from the U.S.
Census on new residential construction starts for 2016.70 While new non-residential construction starts are
not included in the U.S. Census data, total construction generally tracks residential construction
reasonably well. The average number of residential construction starts affected in the first stage analysis
in states in 2016 was 3,600, with a range of 100 to 24,000. For purposes of this analysis, administrative
and compliance costs and benefits per site are not assumed to vary significantly with location, thus,
estimates of benefits and costs vary at the state level mainly because of variable activity levels.
While several components of the CWA section 404 permitting program were based on state-level
information on wetland acres and stream miles in the economic analysis for the 2015 Rule, permitting
costs were reported as a national aggregate. The Corps maintains data on section 404 permits issued; the
agencies used the total number of permits in fiscal years 2011 to 2016 to estimate the annual average
portion of national permitting activity that occurred in each state. The average percentage potentially
affected in the first stage analysis per state is 2.0 percent, with a range from 0.1 percent to over 10
percent. CWA section 404 permitting costs are not assumed to vary significantly with location, thus,
estimates of costs vary at the state level mainly because of variable activity levels.
Finally, two categories of costs were apportioned to states, by spreading those costs equally across the
states. These two categories are those for which there were no readily available data denoting state
differences, and are also two of the categories among the smaller costs at the national level.71 For CWA
section 401 administrative costs, the agencies have applied a weighted average cost, where the cost by
level of effort is weighted by an assumed representative distribution of states by level of effort.72 By using
the weighted average cost, the agencies are able to abstract from specific knowledge of the level of effort
each state applies to CWA section 401 administration. For CWA section 402 pesticide general permitting
costs, the agencies could not identify a source of state-level data on the number of entities covered by a
state pesticides general permit. In addition, because these two categories are among the smaller
categories, having more refined data is unlikely to have a significant impact on the overall results.
70 See https://www.census.gov/construction/bps/txt/tb2u2016.txt.
71 Two other cost categories have smaller national costs - CWA section 402 CAFOs Administration and CWA section 402
Stormwater Administration; however, these categories have implementation costs that make their overall impact larger, and
the agencies were able to parse the administrative costs by state using the same data as for the implementation costs and
benefits.
72 See Section 7 of the 2015 economic analy sis for more detail on the costs by level of effort and distribution of states by level of
effort for the CWA section 401 Administration program.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 80
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ill Stage 1 Analyses: CWA Jurisdictional Change from the 2015 Rule to the Pre-2015 Practice
III.C.4 Adjustment of Values from a Base Year of 2014 to 2017
The adjustment of values in the 2015 economic analysis from 2014 to 2017 entails two components. In
the 2015 economic analysis, the size of each program (e.g., number of permits) was adjusted from the
year of the underlying analysis to 2014, to represent a more accurate size, before applying a factor for the
percent of jurisdictional determinations expected to change from negative to positive as a consequence of
the 2015 Rule. In this analysis the agencies have converted from 2014 dollars to 2017 dollars, using the
CPI-U index from the Bureau of Labor Statistics.
III.C.5 Improved Estimate of the High End of the Cost Savings for CWA Section 404 Permit
Application
In reviewing the calculations for the economic analysis for the 2015 Rule and 2017 Step 1 proposal for
the adjustments noted above, the agencies discovered an inadvertent error in the formula for the high end
estimate of the CWA section 404 permitting costs. The per-acre variable cost term from the Sunding and
Zilberman (2002) study was not multiplied by the number of permits, which resulted in a significant
decrease in the high-end cost estimate for 404 permitting in the 2015 and 2017 economic analyses. This
error has been corrected in this analysis. This category of costs (and benefits) was the only category in
which this error occurred.
III.C.6 Results and Discussion
For comparison with the 2015 Rule and the 2017 proposal, the results of this analysis, except for states'
response to changes in the definition of "waters of the United States," are reported in Table B-l in
Appendix B. The results in Table B-l are similar to those of Table 1 of the economic analysis for the Step
1 proposed rule, although they are not exactly the same. First, they include the forgone benefits from
CWA section 404 wetlands mitigation using the meta function transfer (see Section III.C.2.2). Second,
the CWA section 404 permitting costs high range estimate is significantly larger due to the correction of a
previous error (see Section III.C.5). Third, the costs and benefits associated with other programs changed
slightly (by $0.1 million to $1.0 million) due to adjusting to 2017 prices (see Section III.C.4).
Table III-10 to Table 111-12 display the results of implementing the several scenarios of state responses
described in Section II. The effect of implementing these scenarios produces smaller estimates of avoided
costs and forgone benefits (as compared to the 2017 analysis), reflecting what the agencies consider to be
a more realistic estimate of repealing the 2015 regulation. The assumptions here are the result of the
agencies' re-examination of prior analyses and judgment that this analysis more accurately reflects the
avoided costs and forgone benefits of this action. Table III-10 shows the results for Scenario 1, in which
states that were already regulating waters at levels above the pre-2015 practice are excluded from the
analysis.
Table 111-10: Scenario 1 - Estimates of avoided costs and forgone benefits excluding the impact
from states that are likely to continue their baseline dredged/fill and other surface water
permitting practices
Annual Avoided Costs
Annual Forgone Benefits
(2017$ millions)
(2017$ millions)
Low
High
Low
High
CWA 402 CAFO Administration
$0.1
$0.1
$1.7
$3.0
CWA 402 CAFO Implementation
$2.8
$2.8
CWA 402 Stormwater Administration
$0.1
$0.1
$14.2
$18.0
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised ) 81
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Ill Stage 1 Analyses: CWA Jurisdictional Change from the ,2015 Rule to the Pre-2015 Practice
Table 111-10: Scenario 1 - Estimates of avoided costs and forgone benefits excluding the impact
from states that are likely to continue their baseline dredged/fill and other surface water
permitting practices
Annual Avoided Costs
(2017$ millions)
Annual Forgone Benefits
(2017$ millions)
CWA 402 Stormwater Implementation
$14.3
$17.8
CWA 404 Permit Application
$15.7
$39.5
$16.7
$16.7
CWA 404 Mitigation - Wetlands
$37.7
$57.6
SUBTOTAL
$70.7
$117.8
$32.6
$37.7
CWA 311 Compliance
$7.3
$7.3
not quantified
not quantified
CWA 401 Administration
$0.4
$0.4
not quantified
not quantified
CWA 402 Pesticide General Permit
Implementation
$1.8
$2.0
not quantified
not quantified
CWA 404 Mitigation - Streams
$18.0
$36.6
not quantified
not quantified
TOTAL
$98.2
$164.2
$32.6
$37.7
These results exclude the costs and benefits for 404 permit applications and wetland mitigation for states classified as response
category 4 for regulation of dredged or fill material, and it excludes the costs and benefits for all other categories for states
classified as response category 3 for other surface water regulation.
Table III-10 shows that the avoided costs and forgone benefits estimates are reduced from the 2017
proposal analysis, with the largest decrease in the high range of avoided costs, and somewhat larger
effects on avoided costs than on forgone benefits. Table B-2 in the Appendix to this analysis shows a
slight variation on Scenario 1, also excluding states that may continue the baseline dredged/fill regulation.
This scenario produces slightly lower but similar values as Scenario 1, as only a few states' responses are
assumed to change.
Table III-11 shows Scenario 2, which assumes that some states without broad legal restrictions to regulate
more broadly than the federal "floor" would react to regulate at the state level waters that would no longer
be considered jurisdictional under the CWA. In assuming that these states would respond in this way,
Scenario 2 shows results that are dramatically smaller in magnitude than the Scenario 1 results. Avoided
costs in Scenario 2 are approximately 50 to 60 percent of the avoided costs in Scenario 1.
Table 111-11: Scenario 2 - Estimates of avoided costs and forgone benefits excluding the impact
from states that may continue their baseline dredged/fill and surface water permitting practices
Annual Avoided Costs
(2017$ millions)
Annual Forgone Benefits
(2017$ millions)
Low
High
Low
High
CWA 402 CAFO Administration
$0.0
$0.0
$0.3
$0.6
CWA 402 CAFO Implementation
$0.5
$0.5
CWA 402 Stormwater Administration
$0.0
$0.0
$1.5
$1.9
CWA 402 Stormwater Implementation
$1.5
$1.9
CWA 404 Permit Application
$10.2
$25.5
$14.3
$14.3
CWA 404 Mitigation - Wetlands
$26.7
$42.1
SUBTOTAL
$38.9
$70.1
$16.1
$16.8
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised
| 82
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Ill Stage 1 Analyses: CWA Jurisdictional Change from the ,2015 Rule to the Pre-2015 Practice
Table 111-11: Scenario 2 - Estimates of avoided costs and forgone benefits excluding the impact
from states that may continue their baseline dredged/fill and surface water permitting practices
Annual Avoided Costs
(2017$ millions)
Annual Forgone Benefits
(2017$ millions)
Low
High
Low
High
CWA 311 Compliance
$1.1
$1.1
not quantified
not quantified
CWA 401 Administration
$0.1
$0.1
not quantified
not quantified
CWA 402 Pesticide General Permit
Implementation
$0.4
$0.5
not quantified
not quantified
CWA 404 Mitigation - Streams
$14.0
$27.8
not quantified
not quantified
TOTAL
$54.6
$99.6
$16.1
$16.8
These results exclude the costs and benefits for 404 permit applications and wetland mitigation for states classified as response
category 3 or 4 for regulation of dredged or fill material, and it excludes the costs and benefits for all other categories for states
classified as response category 2 or 3 for other surface water regulation.
Table III-12 shows Scenario 3, which only includes states likely to reduce their baseline dredged/fill and
other surface water permitting practices. This only includes the potential effect of states which have legal
restrictions or some other constraint (such as lack of permitting authorization) that limits the ability to
regulate above the federal standard. Assuming that only these states would respond to the first stage of
this proposed action reduces the estimated avoided costs and forgone benefits even further. Avoided costs
and forgone benefits in Scenario 3 are approximately 10 percent of their respective values in Scenario 1.
Table 111-12: Scenario 3 - Estimates of avoided costs and forgone benefits only including the
impact from states that are likely to reduce their baseline dredged/fill and surface water
permitting practices
Annual Avoided Costs
(2017$ millions)
Annual Forgone Benefits
(2017$ millions)
Low
High
Low
High
CWA 402 CAFO Administration
$0.0
$0.0
$0.3
$0.6
CWA 402 CAFO Implementation
$0.5
$0.5
CWA 402 Stormwater Administration
$0.0
$0.0
$1.5
$1.9
CWA 402 Stormwater Implementation
$1.5
$1.9
CWA 404 Permit Application
$1.5
$3.8
$1.2
$1.2
CWA 404 Mitigation - Wetlands
$2.3
$2.9
SUBTOTAL
$5.9
$9.2
$3.1
$3.8
CWA 311 Compliance
$1.1
$1.1
not quantified
not quantified
CWA 401 Administration
$0.1
$0.1
not quantified
not quantified
CWA 402 Pesticide General Permit
Implementation
$0.4
$0.5
not quantified
not quantified
CWA 404 Mitigation - Streams
$1.7
$3.8
not quantified
not quantified
TOTAL
$9.1
$14.6
$3.1
$3.8
These results exclude the costs and benefits for 404 permit applications and wetland mitigation for states classified as response
category 2, 3, or 4 for regulation of dredged or fill material, and it excludes the costs and benefits for all other categories for
states classified as response category 2 or 3 for other surface water regulation.
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IV. Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015
Practice to the Proposed Rule
This section focuses on the second stage analysis of effects of this proposed rule, that is, the potential
effects associated with going from the pre-2015 practice to the proposed definition of "waters of the
United States." The Stage 2 economic analysis consists of a series of qualitative analyses and three
detailed case studies and a national analysis related to the CWA section 404 program. The purpose of the
qualitative analysis is to provide the best national assessment of the likely effects of this proposal without
providing quantitative assessment. As stated, the agencies currently lack the data sets to quantitatively
assess the likely effects of this portion of the provisions. The qualitative analysis is intended to provide
information on the likely direction of the effects based on the best professional judgments of the agencies.
In addition, the agencies conducted three case studies in three major watersheds to provide in-depth
information on the likely quantitative assessment of the effects. The case studies have considered likely
ecological effects, and their accompanying economic effects. The case studies highlight the complexity of
the potential decision matrices and the depth of data and modeling requirements, requiring more
sophisticated analytic framework than the framework used in the 2015 analysis. The case studies
conclude that the effects of provisions going beyond the pre-2015 baseline are modest regardless of the
level of state engagement in water resource protection as modeled in Scenarios 1 through 3. The
anticipated combined case study cost savings range from $6.84-21.97 million (2017$, 7% discount rate),
and the estimated foregone benefits $0.37-3.25 million (2017$, 3% discount rate). Finally, the agencies
conducted a national analysis of the proposed changes in CWA jurisdiction on the CWA 404 program.
Nationally the proposed CWA jurisdictional changes are estimated to result in between $27.6 to $265.7
million in avoided costs and between $6.9 and $46.8 million in forgone benefits.
IV.A Qualitative Assessment of Effects on CWA Programs
This section focuses on the potential effects associated with the change from the pre-2015 practice to the
proposed definition of "waters of the United States." The first three subsections describe the effects on the
section 402, section 404, and the section 311 programs, respectively. The fourth subsection covers other
CWA programs.
IV.A.1 Section 402: National Pollutant Discharge Elimination System
Section 402 of the CWA establishes the NPDES program to authorize the discharge of pollutants from
point sources to "waters of the United States," in compliance with applicable requirements and
conditions. NPDES permits may incorporate different statutory and regulatory requirements depending on
the source type, volume of discharge, receiving waterbody, and state/tribal water quality standards.
Section 402 regulates discharges of the following categories of pollutants:
• Conventional pollutants: BOD, TSS, oil and grease, fecal coliform, and pH
• Toxic pollutants: 126 "Priority Pollutants" (40 CFRpart 423), which include metals (e.g., Cu, Pb,
Hg) and organic compounds (e.g., PCBs, dioxin)
• Non-conventional pollutants: all other pollutants (e.g., chlorine, ammonia, nitrogen, phosphorus)
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As discussed earlier, the NPDES permit program is administered by authorized states or the EPA. The
EPA issues some NPDES permits for discharges from federal facilities,73 most of the tribal reservation
lands,74 and U.S. Territories (except the U.S. Virgin Islands) as well as all permits in the three states that
have not been authorized to administer the program (Massachusetts, New Hampshire, and New Mexico)
and for certain activities in states with only partial authority. The EPA has authorized most (47) states to
operate the CWA section 402 permitting program, and states assert jurisdiction over "waters of the state"
which must be as inclusive as "waters of the United States" but may be more expansive.
IV. A. 1.1 Overview
The CWA requires a permit for discharges of pollutants to "waters of the United States" from point
sources, defined in the act as any discernable, confined, and discrete conveyances (e.g., pipes, ditches,
channels, concentrated animal feeding operations, or vessels). Typically, the compliance point for NPDES
permits is the location where the effluent is being discharged from the facility. See NPDES Permit
Writers' Manual at pages 8-1 to 8-5. Agencies may issue individual or general permits. Individual permits
may be issued when site-specific limits, management practices, monitoring and reporting, or other
facility-specific permit conditions are needed. One individual permit is issued per one applicant; the
individual permit may cover several outfall points. General permits are issued when multiple dischargers
require permit coverage, sources and discharges are similar, and permit conditions are relatively uniform.
One general permit is issued for multiple dischargers. The permit identifies coverage area, sources
covered, and administrative processes for dischargers to identify that they intend to be covered (e.g.,
whether the applicant must submit a Notice of Intent (NOI) to seek coverage under the general permit).
The EPA's ICIS-NPDES database includes 250,040 unique permit numbers, including individual and
general permits.75 Some facilities may have more than one permit (e.g., an individual permit for process
wastewater and a general permit for storm water).76 Table IV-1 summarizes the NPDES permits by EPA
Region and permit type. The majority (49,908) of the NPDES permits potentially affected by the
proposed rule are general permits (including stormwater). Section IV.A. 1.2 discusses the potential effects
of proposed changes to the "waters of the United States" definition on the section 402 program.
Table IV-1: Estimated number of NPDES permits by EPA region
EPA Region
All NPDES Permits1
All Individual Permits1
All General Permits1
1
7,030
1,240
5,790
2
17,152
4,895
12,257
3
30,015
9,096
20,919
73 In general, federal facilities are defined as buildings, installations, structures, land, public works, equipment, aircraft, vessels,
other vehicles, and property, owned, constructed or manufactured for leasing to the Federal government.
('https://www.epa.gov/enforcement/enforcement-and-compliance-federal-facilities'l
74 The state of Maine has authority to issue NPDES permits on the territory of two tribes.
75 This estimate includes both active and expired permits in ICIS-NPDES since facilities with expired permits can still operate. It
excludes "terminated" permits that are no longer binding. It also excludes permits that did not have valid latitude/longitude
coordinates or were not truly NPDES permits (see Appendix A in the Resource and Programmatic Assessment for detail).
16 In this section, "facility" refers to plants, construction sites, or other types of point source dischargers.
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Table IV-1: Estimated number of NPDES permits by EPA region
EPA Region
All NPDES Permits1
All Individual Permits1
All General Permits1
4
81,883
8,621
73,262
5
17,207
10,042
7,165
6
26,173
5,573
20,600
7
22,467
6,394
16,073
8
15,180
1,968
13,212
9
20,560
986
19,574
10
11,472
1,153
10,319
Other2
901
255
646
Total
250,040
50,223
199,817
1 Source: EPA's ICIS-NPDES data, 2017. The facility permits included in the spatial analysis are limited to
those for which the ICIS-NPDES database includes latitude/longitude coordinates. The number of NPDES
permits is likely to overstate the number of affected entities since each permit holder may have more
than one NPDES permit (e.g., industrial discharge and stormwater permits).
2 Includes U.S. territories and tribal lands.
The EPA and state NPDES permitting agencies develop technology-based effluent limits (TBEL) for all
applicable pollutants of concern. TBELs are based on national technology based effluent limitations and
standards (i.e., effluent limitations guidelines and standards) that are developed to establish minimum
levels of pollutant controls for most direct and indirect dischargers for conventional pollutants, non-
conventional pollutants, and toxic pollutants and provide equity among dischargers within categories. In
the absence of national limitations and standards, TBELs are developed on a case-by-case, best
professional judgment (BPJ) basis. Instead of this effluent guidelines approach, the statute provides for
the EPA to establish secondary treatment standards for publicly-owned treatment works.
If TBELs are not adequate to protect water quality to meet applicable water quality standards, the CWA
requires the permitting authority to include water quality-based effluent limits (WQBEL) as necessary to
meet applicable state or tribal water quality standards and that are consistent with any EPA-established or
EPA-approved TMDLs that may apply to the discharge. Currently, all states have state water quality
standards under CWA section 303, as well as listed impaired waters and TMDLs for those impaired
waters under section 303(d). If a TMDL has been developed for the receiving waterbody, states (or EPA
regions) assign waste load allocation to each point source discharge and load allocation to nonpoint
sources such that predicted receiving water concentrations do not exceed water quality criteria. States and
tribes may develop standards for non-jurisdictional waters under state or tribal law, but these criteria are
not enforceable under the CWA.77
77 CWA section 402(p)(3)(B)(iii) provides for a unique standard to be used for controls of municipal separate storm sewer
systems (MS4s).
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IV.A.1.2 Potential Effects of the Proposed Rule on Section 402 Program
Facilities that currently have a NPDES permit under CWA section 402 or a state permit under an
authorized state program can be assumed to either discharge to a "water of the United States" or to waters
designated to be "waters of the state" by the authorized state in which they are located. The proposed
regulation could result in a jurisdictional change to a discharger's receiving water or downstream water,
and thus may result in a potential change to the discharger's permit. This is more likely the case if the
state does not currently consider these receiving waters to be "waters of the state" and/or if they do not
extend this status to these waters in response to a change in the definition of "waters of the United States."
Facilities that consider their receiving water's status to have potentially changed can opt to: continue with
their existing permit (status quo)-, formally request a permit modification;78 or formally request to have
their permit terminated.
When evaluating potential impacts from removing CWA jurisdiction on certain waters, the agencies
carefully considered potential state-level and facility responses, as shown in Figure IV-1. This figure
illustrates the variety of potential outcomes that could result for any single facility, and in turn the
numerous complexities that would have to be addressed to quantitatively estimate the impacts of the
proposed rule. Nonetheless, based on this analysis the agencies believe that the definitional change to
"waters of the United States" would not greatly affect the number of facilities that operate under
individual NPDES permits such as those issued for municipal wastewater treatment plants or industrial
facilities. Similarly, entities covered by general permits, such as construction projects, are not likely to
experience a change in their regulatory status. The exception may be in arid areas of the country where
there could be a greater change in the number of jurisdictional waters. After the 2006 Rapanos decision,
several NPDES permit holders in the Western United States asserted they no longer required a permit
because of the potential non-jurisdictional status of a receiving water. The agencies are aware that in
some cases such inquiries have resulted in a permitting authority determining that a discharger no longer
needed a permit. There are several potential explanations for this, related to the nature of the permitted
activity, state requirements, and facility-level incentives.
First, the nature of a traditional discharge permit where a facility is seeking to discharge wastewater is
different from a section 404 permit (described in Section IIV.A.2 below) where a developer or landowner
is, for example, seeking to fill a portion of a "water of the United States." It is possible for a CWA section
402-permitted discharger to contribute to creating a permanent water feature where there once was an
intermittent stream or ephemeral features because of continuous discharge (i.e.. an "effluent-dependent"
or "effluent-dominated" water). In these cases, which are the exception rather than the norm, this proposal
may not affect jurisdiction.
Second, the EPA has authorized most (47) states to administer the CWA section 402 permitting program.
In addition, some states assert state law jurisdiction over "waters of the state" which is inclusive of
"waters of the United States" but may be more expansive. These state law programs can, and in some
cases already do, cover waters that are not considered "waters of the United States." Should CWA
jurisdiction change, states may respond in different ways. As discussed in Section II.A, state programs
may choose to issue permits for non-federally regulated waters solely based on state authority. States may
78 This request could happen before or during their permit reissuance process.
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also revise WQBELs to reflect attenuation or additional dilution farther downstream (to a water subject to
the CWA) from the source of the pollutant if the discharge point is no longer into a "water of the United
States." Some states (e.g., California, Connecticut, Maryland, Michigan, New York, and several others)
have enacted or amended laws to regulate state water resources that have lost federal oversight, or whose
coverage by federal law is now uncertain.79
Additionally, existing facilities may have made the capital investments in wastewater treatment systems
that discharge to receiving water that will no longer be their jurisdictional and may willingly continue
operating under their permit and see no need to challenge jurisdictional status of the receiving waters.
Depending on industry standards or recommended practices, the facility may implement treatment
technologies or best management practices voluntarily but could still save on some compliance costs. The
following subsections discuss in greater detail potential permittee's responses by permit type potentially
affected by a change in the definition of "waters of the United States."
79 See the supporting "Resource and Programmatic Assessment for the Revised Definition of 'Waters of the United States'
Proposed Rule, Appendix B."
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IV —Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Figure IV-1: Potential effects of the proposed rule on CWA section 402 program.
E Dischargers under
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
IV.A.1.3 Potential Effects of Proposed Rule on Individual NPDES Permits
As outlined in Figure IV-1, the potential cost savings and forgone benefits of the proposed rule affecting
industries or entities with section 402 permits to discharge to non-jurisdictional receiving waters will
depend on multiple factors. These factors include: the state decision on whether to continue regulating
newly non-jurisdictional waters to the same level as federal regulations (see Section II.A for detail), the
basis for the NPDES permit (TBEL vs. WQBEL), whether the facility's discharge conveys to a "water of
the United States" downstream from the non-jurisdictional receiving reach, and the facility's decision to
continue voluntarily implementing controls.
Individual permit holders may already have treatment technologies in place and may willingly continue
operating under the conditions set in their existing permit even though they may not require a NPDES
permit in the future. New permit holders with no existing capital investments in treatment systems may
make different decisions. Thus, new establishments in the affected industrial categories that would have
been subject to effluent limitations are more likely to request an approved jurisdictional determination to
reduce both capital and operational costs unless the state continues a similar level of regulation of the
receiving waters. Reducing controls on effluent discharging to non-jurisdictional waters may have
adverse water quality impacts on the receiving waters as well as downstream.
A permittee currently discharging to a jurisdictional water that is not attaining water quality standards is
subject to more stringent limits based on a WQBEL which must also be consistent with any applicable
wasteload allocations in a TMDL. If the receiving water becomes non-jurisdictional under a definitional
change of "waters of the United States," but eventually conveys to a "water of the United States," the
permittee could request a jurisdictional determination and revision of its WQBEL to account for potential
dilution or attenuation of the pollutant(s) occurring between end-of-pipe and the point where the effluent
enters jurisdictional waters. Under this scenario, the permittee may realize cost savings as compared to
meeting the previous permit limits. Less stringent effluent limitations may have a negative impact on
water quality in the receiving non-jurisdictional streams. Under the proposed rule, state water quality
standards could continue to apply to the now non-jurisdictional receiving waters if state regulations apply
more broadly, but these standards would not be federally enforceable and water quality monitoring would
not be required by the CWA within these waters.
IV.A.1.4 General Permits
As noted above, NPDES general permits cover dischargers with similar characteristics (e.g., within the
same industry) within a given geographical location. In most cases, a permittee is required to complete
and submit a Notice of Intent (NOI) and comply with the terms of the general permit. Each permittee
receives a unique NPDES number. Because a large number of facilities can be covered under a single
general permit, general permits may offer a cost-effective option for permitting agencies. Nearly
60 percent of the general permits the agencies analyzed are stormwater permits, and these are discussed in
Section IV.A. 1.5.
IV.A.1.5 Section 402 Stormwater Permitting
Stormwater runoff is generated when precipitation from rain and snowmelt flows over land or impervious
surfaces instead of percolating into the ground. As the runoff travels (especially over paved streets,
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parking lots, and building rooftops), it can accumulate debris, chemicals, sediment, and/or other pollutants
that may be detrimental to stream water quality; runoff can also gain velocity and be directed towards
waterbodies, thus increasing the probability of these pollutants reaching a stream. Polluted stormwater
runoff can harm or kill fish and other wildlife. Excess sedimentation can impair aquatic habitat, and high
volumes of runoff can cause stream bank erosion. Debris can clog waterways and potentially reach the
ocean where it can harm marine wildlife and degrade habitats.
Some stormwater discharges have been designated by statute, regulations, or on a case-by-case basis and
require coverage under a NPDES permit. Under CWA section 402(p), the EPA implemented the
stormwater program in two phases, with the Phase I rule issued in 1990 and the Phase II rule issued in
1999. The stormwater program regulates stormwater from some construction sites (i.e.. those disturbing
one or more acres of land, or disturbing less than one acre but part of a common plan of development or
sale that will disturb one or more acres), specific industrial sectors specified in the Phase I rule, and
discharges from some Municipal Separate Storm Sewer Systems (MS4s). The EPA's ICIS-NPDES data
used by the agencies includes 120,989 stormwater permits, including individual and general permits. Over
20 percent of the permitted dischargers analyzed (26,366) are for stormwater discharges from
construction and development activities. Dischargers with unknown industry classification (missing SIC
code) and in "other" categories account for 51 and 21 percent of the total stormwater permits respectively.
Industrial facilities covered under an industrial stormwater permit, such as the EPA's Multi-Sector
General Permit (MSGP) account for approximately five percent of stormwater permit holders. MS4s
account for less than one percent of all permittees covered under the stormwater program.
IV.A.1.5.1 Construction Stormwater
In general, the NPDES stormwater program requires permits for discharges from construction activities
that disturb one or more acres, and discharges from smaller sites that are part of a larger common plan of
development or sale. The Construction and Development (C&D) effluent limitations guidelines (ELGs)
apply to permits for stormwater discharges from all construction activities including clearing, grading,
and excavation, except operations that result in the disturbance of less than one acre of land area, unless
they are part of a common plan of development or sale that disturbs more than one acre (40 CFR part
122.26(b)(14)(x) and 40 CFR part 122.26(b)(15)). Under 40 CFR part 450 (the C&D ELGs), all covered
entities must: (1) design, install, and maintain erosion and sediment controls; (2) initiate soil stabilization
in disturbed areas immediately whenever any clearing, grading, excavating, or other earth disturbing
activities have ceased; (3) design, install, and maintain pollution prevention measures to minimize the
discharge of pollutants to surface waters; (4) prevent the discharge of the wastewater, fuels, oils, or other
pollutants used in vehicle and equipment operations and maintenance and equipment washing; and (5)
implement other BMPs to minimize adverse effects on surface water.
The agencies carefully considered the potential effect of the proposed definitional change to "waters of
the United States" on the issuance of section 402 permits for stormwater from construction and
development sites. As suggested by Figure IV-1, due to data limitations and the lack of a strong basis for
the necessary analytical assumptions, it is not feasible to rigorously estimate the potential avoided costs to
the construction industry and corresponding forgone benefits of no longer needing a section 402 permit
for stormwater discharges from construction sites to non-jurisdictional waters. The agencies, however,
believe that both potential cost savings to the industry and the potential environmental impacts from
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construction activities due to a change to the definition of "waters of the United States," as proposed,
would likely to be modest in the areas where construction activities have a potential to affect both non-
jurisdictional and jurisdictional waters. First, projects disturbing at least one acre of land, and which in
turn require NPDES permit coverage, are presumed to be large enough to generate stormwater runoff that
could reach a jurisdictional water, either directly or through a conveyance such as a municipal storm
sewer, and so would be required to obtain permit coverage. Procedures typically required by construction
stormwater general permits have been widely adopted as normal practices in the construction industry
and, as a result, the requirements are not usually considered to impose a significant burden. A reduction in
jurisdictional waters is not likely to change these circumstances for most areas of the country. The
exception may be for stormwater discharges from construction sites in arid states where many streams are
ephemeral (e.g., Arizona, Nevada, and New Mexico) and, as a result, federal standards may not be
applicable for a large portion of the state waters that may be affected by stormwater discharges from
construction activities (U.S. EPA and Department of the Army 2015).
Second, states and eligible tribes may develop standards for non-jurisdictional waters under state or tribal
law. Potential state and tribal responses are discussed in detail in Section II.A. Third, many states and
tribes have specific designated uses and water quality criteria for ephemeral streams in their state or tribal
water quality standards (WQS), which could be implemented at their discretion for waters that are not
"waters of the United States." Unless a state or tribe changes their WQS to downgrade these uses,
WQBEL-based NPDES permits will still be applicable if the discharge reaches state waters. Finally, even
if not required by federal law, developers may implement stormwater BMPs for a variety of reasons,
including the need to comply with local erosion and sediment control requirements and/or to operate in a
manner consistent with industry standards, the additional time required for obtaining an exemption from
section 402 permit requirements, or concerns about the public perception of operating without a permit.
The agencies expect little change to compliance costs or adverse water quality impacts from construction
stormwater pollution control measures required to comply with equivalent state regulations80 or those
voluntarily implemented by developers. Construction sites located in arid states that, as a result of
changes in the definition of "waters of the United States" as proposed, would not be required to obtain
NPDES permit coverage are most likely to realize cost savings and affect environmental quality.
IV.A.1.5.2 Industrial Stormwater
Available data are not sufficiently detailed to develop quantitative estimates of the potential cost savings
and environmental impacts from stormwater discharges from regulated industrial facilities discharging to
waters whose jurisdictional status could change under the proposed rule. However, qualitative analysis
suggest that potential impacts may be limited. Most industrial sectors regulated under the Phase I
stormwater rule are located in urbanized areas. Any permitted entity that is currently discharging to an
ephemeral feature would still be required to have an NPDES permit if their discharge conveys to a
jurisdictional water. However, they may request to adjust their effluent limitations to account for potential
dilution or attenuation of pollutants that occurs before the discharge reaches a jurisdictional water.
Regulated industrial sectors that are likely located near ephemeral streams represent a minority of the
regulated industrial stormwater universe. Additionally, these types of facilities are generally large and due
to their scale, they likely discharge into perennial streams (outside of the arid West). Therefore, the
80 Section II.A provides detail on existing state programs and potential state responses to CWA jurisdictional changes.
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agencies expect that industrial facilities with stormwater discharges regulated under the Phase I rule likely
would continue with existing stormwater management practices, meaning there would likely be no cost
savings or foregone benefits due to the proposed rule.
IV.A.1.5.3 Municipal Separate Storm Sewer Systems (MS4s)
Stormwater runoff in cities and towns is commonly transported through MS4s, from which it is often
discharged, untreated, into local waters. To prevent harmful pollutants from being washed or dumped
into, and being discharged from, an MS4, certain MS4s are required by law to obtain NPDES permit
coverage and develop a stormwater management program (SWMP). The Stormwater Phase I rule,
promulgated in 1990, requires operators of medium and large MS4s serving populations of 100,000 or
more to obtain NPDES permit coverage for their stormwater discharges. The Stormwater Phase II rule,
promulgated in 1999, requires regulated small MS4s in urbanized areas, as well as small MS4s outside
the urbanized areas that are designated by EPA or the State, to obtain NPDES permit coverage for their
stormwater discharges. Generally, Phase I MS4s are covered by individual permits and Phase II MS4s are
covered by general permits. MS4 permits include terms and conditions that are adequate to meet the MS4
standard of reducing pollutant discharges from the MS4 to the "maximum extent practicable" (MEP),
eliminating non-stormwater discharges to the MS4, and including other such conditions that the
permitting authority deems appropriate to protect water quality.
An MS4 may have many different outfalls within its service area, some of which may discharge to waters
no longer federally jurisdictional as a result of the proposed definition. However, MS4s often implement
their SWMPs uniformly across their area without regard to the receiving water of a specific outfall. Thus,
a change in jurisdictional status of some receiving waters is not expected to have a noteworthy effect in
terms of costs or benefits, unless the proposed rule would mean that every outfall of a particular MS4
discharges to a non-jurisdictional water and that pollutants never reach a jurisdictional water. Therefore,
the agencies expect little change to compliance costs or adverse water quality impacts from MS4s
regulated under the EPA Phase I and Phase II stormwater rules.
IV.A.1.6 Uncertainty and Limitations
There are multiple sources of uncertainty inherent in the analysis of the potential impacts of the proposed
change to the definition of "waters of the United States" on the section 402 program. First, there is
significant uncertainty in the universe of entities that would be affected by a change in jurisdictional
scope. The analysis presented in this report is based on the existing section 402 permits included in the
EPA's ICIS-NPDES database. The database is based on states' reporting and may not account for all
existing facilities and activities that may affect waters whose jurisdictional status might change under the
proposed rule. It also does not necessarily represent all future activities that could have adverse impacts
on such waters. In particular, specific locations of future construction activities as well as the potential for
their stormwater discharges to affect ephemeral streams is unknown. Similarly, demand for industrial
domestic wastewater treatment is driven by land development, and locations of future industrial domestic
wastewater treatment facilities are not known. Second, it is impossible to predict with certainty whether
states would enact new or keep existing regulations in place to regulate waters that would no longer be
jurisdictional under this proposal (see Section II.A for detail). Third, entities that are likely to affect non-
jurisdictional waters may have incentives to continue voluntarily using technologies and best management
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practices or to implement them in the future in the case of new activities. These incentives include, but are
not limited to, industry standards, public relations, and the time required for obtaining exemption from
section 402 requirements. However, new permittees motivated by potential cost savings that are likely
larger than for existing permit holders may be more likely to seek jurisdictional determinations and, as a
result, lead to greater realization of avoided costs and forgone benefits due to potential exemptions from
the section 402 requirements.
IV.A.2 Section 404: Discharge of Dredged or Fill Material
Unless the activity is statutorily exempted,81 the CWA prohibits discharges of dredged or fill material
from a point source into "waters of the United States," including wetlands, without a permit. Such
discharges are regulated under CWA section 404, which is administered by the U.S. Army Corps of
Engineers with oversight by the EPA. In addition, the states of Michigan and New Jersey have assumed
administration of the CWA section 404 permitting program for certain waters within their borders. The
basic premise of the section 404 permitting program is that no discharge shall be permitted if (1) a
practicable alternative exists that is less damaging to the aquatic environment, or (2) the discharge would
cause waters of the United States to be significantly degraded.82
This section describes requirements of the CWA 404 program and discusses potential impacts resulting
from the proposed changes to the definition of "waters of the United States."
IV.A.2.1 Overview
For a project to be permitted under the 404 program, the permittee must demonstrate that, to the extent
practicable, the permittee has taken all steps to avoid impacts to wetlands and other aquatic resources,
minimized potential impacts, and compensated for remaining unavoidable impacts if required. This
process, commonly referred to as the mitigation sequence, applies the following mitigation steps in
sequential order:
• Avoidance: Mitigating an aquatic resource impact by selecting the least-damaging project type,
spatial location, and extent compatible with achieving the purpose of the project. Avoidance is
achieved through an analysis of appropriate and practicable alternatives and a consideration of
impact footprint.
• Minimization: Mitigating an aquatic resource impact by managing the severity of a project's
impact on resources at the selected site. Minimization is achieved through the incorporation of
appropriate and practicable design and risk avoidance measures.
81 The statutory exemptions to CWA Section 404 are set forth in subsection (f)(1). The first and most significant 404(f)(1)
exemptions is for normal and ongoing farming, silviculture and ranching activities. Other examples of statutory exemptions
are for maintenance, including emergency repair of recently damaged, currently serviceable structures, and for construction
or maintenance of farm ponds, irrigation ditches, farm or forest roads, and temporary roads for moving mining equipment.
These statutory exemptions are significantly circumscribed by the provision making them inapplicable for exemption if the
activity brings an area subject to jurisdiction into a use to which it was not previously subject, where the flow or circulation
of navigable waters may be impaired or the reach or waters reduced (CWA Section 404(f)(2)).
82 See CWA Section 404(b)(1) and https://www.epa.gov/cwa-404/section-404-permit-program for more information.
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
• Compensatory Mitigation: Mitigating an aquatic resource impact by replacing or providing
substitute aquatic resources for impacts that remain after avoidance and minimization measures
have been applied. Compensatory mitigation is achieved through appropriate and practicable
restoration, establishment, enhancement, or preservation of aquatic resource functions and
services.
Avoidance and minimization steps assure that only projects that are the least environmentally damaging
practicable alternative (LEDPA) will receive legal authority to discharge. The Corps may only permit the
LEDPA (40 CFR 230.10(a)). While this sounds straightforward, there are many variables at play and they
multiply in complexity depending on the type of project, the local market, the geographic context, and the
type, functionality, and local importance of the aquatic resources involved.
Compensatory mitigation may be required to replace the loss of wetland and aquatic resource functions
by offsetting unavoidable adverse impacts which remain after all appropriate and practicable avoidance
and minimization has been achieved. There are three mechanisms for providing compensatory mitigation
(listed below in order of most-to-least preferred, as established by the regulations):
• Mitigation bank: A site, or suite of sites, where aquatic resources are restored, established,
enhanced, or preserved for the purpose of providing compensatory mitigation for impacts
authorized by Department of the Army permits. Mitigation banks sell compensatory mitigation
credits to permittees with regulatory requirements to offset aquatic resource impacts. The
purchase of credits transfers liability for compensation from the permittee to the mitigation bank.
Large compensatory mitigation banks generally provide compensation for multiple, smaller
impacts.
• In-lieu fee program: A program involving the restoration, establishment, enhancement, or
preservation of aquatic resources through funds paid to a "governmental or non-profit natural
resources management entity" to satisfy compensatory mitigation requirements for Department of
the Army permits. The fund payment transfers responsibility for compensation from the permittee
to the in-lieu program operator. In-lieu fee programs identify and initiate projects across their
service area within set timeframes from when funds are collected.
• Permittee-responsible mitigation: Aquatic resource restoration, establishment, enhancement, or
preservation activity undertaken by the permittee (or an authorized agent or contractor) to provide
compensatory mitigation for which the permittee retains full responsibility.
The agencies consider banks and in-lieu fee programs preferable to permittee-re sponsible mitigation
because they consolidate compensatory mitigation projects where ecologically appropriate, use a
watershed approach, provide a greater level of financial planning and scientific expertise, reduce temporal
losses of ecological functions, increase economic efficiency, and reduce uncertainty over project success.
Two types of permits are available through the 404 program: individual permits and general permits.
Individual permits are required for potentially significant impacts. The Corps evaluates potential
environmental and socioeconomic effects of the proposed activity and issues a public notice that describes
the proposed project. The Corps reviews all comments received and makes a final permit decision.
Alternatively, letters of permission, a type of individual permit, may be used when the district engineer
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determines that the proposed work would be minor, would not have significant individual or cumulative
impacts on the environment, and would encounter little to no public opposition.
General permits are suitable for activities that will have only minimal adverse effects individually or
cumulatively. General permits authorize activities the Corps has identified as being substantially similar
in nature and causing only minimal individual and cumulative environmental impacts. General permits
may authorize activities in a limited geographic area (e.g., county or state), a particular region of the
country (e.g., group of contiguous states), or the nation. The general permit process eliminates individual
review and allows certain activities (e.g., minor road maintenance, utility line backfill) to proceed with
little or no delay, provided that the conditions for the general permit are met.
IV.A.2.2 Potential Effects of the Proposed Rule on the Section 404 Program
Under the proposed rule, the following features, among others, would not be jurisdictional: wetlands that
are not adjacent to otherwise jurisdictional waters; rivers and streams that do not contribute perennial or
flow to traditional navigable waters or the territorial seas; isolated lakes and ponds that are not TNWs in
their own right; and certain ditches. The proposed rule could affect requirements to obtain 404 permits for
certain activities in waters whose jurisdictional status would change, and for permittees to mitigate
unavoidable impacts from those activities, where applicable. Absent any state, tribal, or local programs
regulating these waters under their own dredged/fill programs, developers and other project proponents
affecting these non-jurisdictional waters may not take the same steps to avoid impacts to wetlands and
other aquatic resources, as compared to activities requiring a 404 permit in the baseline, nor would they
need to demonstrate that they have minimized potential impacts to the maximum extent practicable.
Further, the amount of mitigation required to offset impacts of activities would change under the proposed
rule, in the absence of any similar state, tribal, or local requirements. It is not possible to assess the
potential impacts of removing the minimization requirements on the types of activities that developers
may pursue in the future, or on project specifications.
Data from Corps permits issued under the 404 program in fiscal years 2011 to 201583 indicate the amount
of wetlands, streambanks, and shorelines affected by dredged or fill activities and the extent of mitigated
impacts under the 404 permitting process. During this timeframe, 248,688 permits were issued under the
404 program. Permits are divided into ten different general project types: agriculture, aquaculture,
development, dredging, energy generation, mining and drilling, mitigation, structure, transportation, and
an "other" type. Table IV-2 provides authorized permanent impacts, temporary impacts, and mitigation
requirements for each project type.
Table IV-2: Authorized impact area of CWA section 404 permits issued in 2011-2015, by project
type
Permanent Impacts
Temporary Impacts
Mitigation Required
Project Type
(Per Year)
(Per Year)
Permits
Acres
Length Feet
Acres
Length Feet
Acres
Length Feet
Using
Credits1
Agriculture
583
966,813
99
73,963
311
47,383
8
Aquaculture
13,758
16,603
6,599
581
2
49
0
83 Calendar year 2015 was the most recent complete year available at the time the agencies accessed data for use in this analysis.
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Table IV-2: Authorized impact area of CWA section 404 permits issued in 2011-2015, by project
type
Project Type
Permanent Impacts
Temporary Impacts
(Per Year)
Mitigation Required
(Per Year)
Acres
Length Feet
Acres
Length Feet
Acres
Length Feet
Permits
Using
Credits1
Development
19,099
2,563,048
275
108,992
9,859
278,370
990
Dredging
4,997
932,081
2,272
523,532
294
24,269
19
Energy
Generation
2,320
741,194
166
93,718
676
235,181
57
Mining and
Drilling
6,187
2,992,779
508
1,731,983
2,648
679,215
146
Mitigation
14,063
15,418,091
1,064
530,120
869
97,926
13
Structure
7,000
3,237,833
1,242
568,435
898
177,000
330
Transportation
13,224
5,932,043
1,994
796,314
4,592
231,032
1,546
Other
3,463
6,772,584
626
543,839
3,911
227,144
53
Total
84,694
39,573,069
14,844
4,971,478
24,060
1,997,569
3,163
1 Mitigation credits are the trading medium that is used to represent the ecological gains at mitigation bank sites. The
number of credits available from a mitigation bank depends on the quantity and quality of the resources that are restored,
created, enhanced, or preserved. The number of acres or linear feet per credit varies among and within U.S. Army Corps
Districts. This variability makes summing credits across regions inappropriate, so the number of permits utilizing mitigation
credits is provided instead of total mitigation credits.
Figure IV-2 presents potential effects of the proposed rule on the section 404 program. Without CWA
coverage for certain wetlands, ephemeral streams, and other waters whose jurisdictional status could
change, the decision to regulate these waters will solely reside with states and tribes.84 States and tribes
could respond in the following ways (see "State Regulations & Review" and "Responses to regulation" in
Figure IV-2):
• Regulate these waters above the levels previously required at the federal level, for example by
prohibiting certain activities altogether or requiring more comprehensive mitigation actions.
Some states and tribes may need to establish their own review, permitting, and verification
program to ensure equivalent regulation of these waters (see Section II .A).
• Continue regulating non-adjacent wetlands, ephemeral streams, and other waters not
jurisdictional under the proposed rule at levels equivalent to previous federal requirements. Some
states and tribes may need to establish their own review, permitting, and verification program to
ensure equivalent regulation of these waters (see Section II .A).
• Provide some regulation of these waters but at a lower level than previously required at the
federal level.
84 The agencies note that many of these features, including ephemeral streams, are not categorically jurisdictional under the pre-
2015 practice and according to the Rapanos Guidance would have to satisfy a significant nexus analysis to be determined
jurisdictional under the CWA.
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• Provide no regulation of these waters once federal jurisdiction is removed.
Each state and tribe's response to a change in CWA jurisdiction would affect total impacts of the
proposal. On the one hand, for states and tribes that choose to continue the same level of regulation as
previously required under the CWA, the agencies assume that the annual average number of mitigation
acres would remain unchanged in future years. On the other hand, for states and tribes that choose to
provide no regulation beyond the new federal scope, there could be no mitigation of impacts. Impacts in
states and on tribal reservations with stricter or more lenient requirements are difficult to predict since the
agencies do not know how changes will affect the mitigation procedure.
Without knowing each state's and tribe's likely response to changes to the definition of "waters of the
United States," the agencies can only identify states that could have potentially large impacts based on the
authorized impact areas of 404 permits. The proposed rule, if finalized, could have a significant effect in
states with large impact areas and large mitigation areas in non-coastal waters. Table IV-3 shows
authorized impact areas and mitigation requirements from non-coastal 404 permits issued in 2011-2015
for each EPA region (see Appendix C for a breakdown by state). The states of Florida, Louisiana, Alaska,
and Texas had the largest areas of authorized permanent impacts for permitted activities on non-ocean
and non-tidal water resources. States with large mitigation requirements, whether in terms of acres, linear
feet or credits—including Florida, South Carolina, Texas, Louisiana, and Indiana—would likely
experience significant impacts from the proposed "waters of the United States" definitional changes if the
states do not require similar mitigation following the change. Permits utilizing mitigation credits are
presented instead of total credits because the number of acres or linear feet per credit varies among and
within U.S. Army Corps Districts. Summing mitigation credits thus would not provide meaningful results.
Table IV-3: Authorized impact area of CWA section 404 permits issued in 2011-2015, excluding
mitigation type permits and permits affecting resources categorized as "ocean" or "tidal."
EPA
Permanent Impacts1
Temporary Impacts1
Mitigation Required1
Region
(Per Year)
(Per Year)
Permits
Acres
Length Feet
Acres
Length Feet
Acres
Length Feet
Using
Credits2
1
687
392,280
175
65,712
1,656
5,038
30
2
401
546,025
79
55,851
364
13,202
18
3
5,111
2,406,621
819
509,094
459
305,507
140
4
18,229
3,842,185
682
319,864
12,317
335,565
1,066
5
5,738
5,289,594
510
409,753
1,373
488,018
419
6
11,208
2,183,522
1,909
610,310
3,149
368,462
684
7
1,662
2,963,411
114
1,629,274
313
88,826
130
8
1,478
1,507,359
235
146,724
274
94,709
74
9
3,349
986,347
284
189,385
925
105,071
323
10
5,154
1,687,844
371
163,967
644
79,697
134
Total
53,017
21,805,188
5,178
4,099,934
21,474
1,884,095
3,018
Source: Analysis of U.S. Army Corps of Engineers' ORM2 data.
1 The estimated impact area does not include projects from New Jersey and Michigan.
2 Mitigation credits are the trading medium that is used to represent the ecological gains at mitigation bank sites. The
number of credits available from a mitigation bank depends on the quantity and quality of the resources that are restored,
created, enhanced, or preserved. The number of acres or linear feet per credit varies among and within U.S. Army Corps
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Table IV-3: Authorized impact area of CWA section 404 permits issued in 2011-2015, excluding
mitigation type permits and permits affecting resources categorized as "ocean" or "tidal."
EPA
Permanent Impacts1
Temporary Impacts1
Mitigation Required1
Region
(Per Year)
(Per Year)
Permits
Acres
Length Feet
Acres
Length Feet
Acres
Length Feet
Using
Credits2
Districts. This variability makes summing credits across regions inappropriate, so the number of permits utilizing mitigation
credits is provided instead of total mitigation credits.
Several potential overall effects on the CWA section 404 permit program are possible based on a change
in CWA jurisdiction as proposed:
• Transfers: Projects may shift away from areas containing waters that require 404 permits to
areas with waters that would not be jurisdictional under the proposed rule (e.g., non-adjacent
wetlands and ephemeral features; see "Policy affected waters" in Figure IV-2). All else being
constant, profit-maximizing entities will aim to avoid regulatory requirements and the associated
costs. Therefore, the agencies expect that following a new definition of "waters of the United
States," projects affecting "waters of the United States" to decrease and projects that affect only
waters that are non-jurisdictional to increase. The potential change in the number of projects
affecting both jurisdictional and non-jurisdictional waters is uncertain. As described above and
depending on state, tribal, or local requirements, in cases where the project would not be subject
to a federal permit, the developer may elect to not go through the same steps to minimize impacts
and the length or acres of affected non-jurisdictional waters could increase as compared to the
baseline. Further, as a result of projects shifting to non-jurisdictional waters, the number of
projects requiring avoidance measures would decrease. However, developers may still practice
avoidance measures for projects for which such actions are in the developer's best interest. The
net change in impact area reductions resulting from avoidance measures is thus uncertain.
• Lower permit and administrative costs: Several possible scenarios would result in reduced
permit costs. When projects involve only non-jurisdictional waters and no state or tribal permits
are required, permit burden (including any construction delays) would be reduced at the federal
level and for regulated entities. Permit burden would also be reduced when states or tribes
implement less protective regulations for waters that are not "waters of the United States." For
projects where the area of jurisdictional waters would be reduced as a result of the proposed
change in the definition of "waters of the United States," permit burden may also be reduced
because of a shift from individual permits to general permits, and fewer individual permits that
may receive public hearings (see "Response to regulation" in Figure IV-2). The agencies
anticipate that the Corps would generally incur reduced administrative actions under the proposed
rule associated with the decreased permitting workload, and the regulated community would also
see reduced workload in not needing to go through the permit process. The agencies are unable to
predict if the workload associated with issuing approved jurisdictional determinations (JDs)
would increase or decrease as a result of a change in the definition of "waters of the United
States."
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The Corps is usually the permitting authority for CWA section 404 permits. The states of
Michigan and New Jersey have assumed administration of the CWA section 404 permitting
program for certain waters and may experience similar changes, or if they maintain regulation of
waters whose status as a "water of the United States" would change under their programs there
may be no changes in their administrative costs. Specific changes in Corps administrative costs
would include: responding to a change in the number of requests for approved JDs; an overall
decrease in workload-related tasks such as permit actions, consultations, and compliance and
enforcement actions; improved efficiency in issuing approved JDs due to the revised definition of
"waters of the United States;" including no longer performing significant nexus analyses (see
"Federal regulations" in Figure IV-2). The change in the number of approved JDs is uncertain;
the Corps may experience an increase in approved JDs if applicants request the certainty
associated with an approved JD, or a decrease in the number of approved JDs as applicants may
be able to estimate jurisdiction more readily. However, the agencies would also likely need to
provide program management, training, and compliance oversight associated with administering
changes to the program, especially in the near term.
• Forgone benefits: Establishing non-adjacent wetlands, ephemeral features, certain ditches, and
certain lakes and ponds, for example, as non-jurisdictional, places any potential regulation of
these features solely in the hands of state and tribal governments. States that currently do not
regulate these waters or choose to reduce or eliminate regulation of these waters could see larger
impact areas from projects (from eliminating the minimization requirements), fewer mitigation
measures, and greater wetlands acreage losses than they currently experience under federal
regulations. Additionally, potential impacts of the proposed definitional changes on the types of
404 permits issued (i.e., higher likelihood for general permits; likely fewer individual permits
with public hearings and more individual permits with letters of permission) could result in
decreased regulation of projects affecting non-jurisdictional waters. The impacts to these waters
without avoidance, minimization, or compensation would result in forgone benefits over time,
including habitat support, recreation, and aesthetic benefits.
IV.A.2.3 Uncertainty and Limitations
The likely response of states to definitional changes is uncertain. Past environmental policies and current
state regulations offer some indication of potential policy responses, but actual responses may differ from
the agencies' projections in this analysis. Differing state responses makes quantifying impacts to potential
newly non-jurisdictional waters difficult. The agencies are particularly interested in additional
information on state programs and potential response for this report.
In addition to uncertainties regarding state responses, the analysis is limited by the precision of the
datasets available for determining water classification types. For example, as noted earlier, the high
resolution NHD used to map streams for this analysis does not differentiate between intermittent and
ephemeral streams nationwide, the NHD and the NWI were analyzed using 30-meter grid cells, and the
NWI does not indicate whether a feature it identifies as a wetland satisfies all three criteria to meet the
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
regulatory definition of "wetlands" (i.e., hydric soils, hydrophytic vegetation, hydrology), further
complicating the task of modeling the potential effects of the proposed rule.85
Beyond the inherent limitations of the NHD and NWI datasets, the agencies face the confounding factor
of the pre-2015 practice requiring a significant nexus analysis in order to determine the jurisdictional
status for certain categories of water, including: non-navigable tributaries that are not relatively
permanent; wetlands adjacent to non-navigable tributaries that are not relatively permanent; and wetlands
adjacent to but that do not directly abut a relatively permanent non-navigable tributary. According to the
Rapanos Guidance, such features are not categorically jurisdictional. As a result, the agencies cannot
identify the universe of federally regulated waters under the pre-2015 practice to establish a comparative
baseline of jurisdictional waters. Due to these limitations and confounders, the methodology used in this
analysis only provides a description of the potential effects of the proposed rule on the 404 permitting
program.
Mitigation credits complicate efforts to quantify the amount of mitigation that would be required under
the proposed rule. This is because the number of acres or linear feet per credit varies among and within
U.S. Army Corps districts depending on assessment practices. Converting the number of mitigation
credits into a consistent unit of measure for a national analysis is thus difficult without consulting
individual permits. To avoid conversion errors, the agencies summarized mitigation credit impacts
separately from acre and linear feet impacts.
The response of regulated entities to a change in CWA jurisdiction as proposed is also uncertain. For
instance, regulated entities may continue using a protocol that avoids and minimizes impacts to non-
jurisdictional waters—regardless of state-level regulations—for example, to standardize their protocol
across states. Using standardized project specifications that minimize impacts on waters may also enable
developers to accelerate project approval for projects for which they are uncertain as to whether the
affected resources are within CWA jurisdiction. The response of regulated entities in states with less
stringent requirements would likely depend on the type of work, the stage of work (e.g., planning, active,
completed, an on-going basis), and the stringency of permit requirements that the entity faces in other
areas.
The effect of the proposed definitional changes on permit costs is also uncertain. Reduced permit burden
for non-404 projects, a shift from individual permits to general permits, and fewer individual permits
requiring public hearings would all result in cost savings. The amount of cost savings depends on many
factors, including state or tribal response and regulated entity response to the changes. Additionally, in the
other direction, the proposed definitional changes could increase the number of jurisdictional
determinations required and increase burden and construction delays. The agencies believe, however, that
the proposed rule provides clearer definitions for "tributary" and "adjacent wetland" and would eliminate
the case-specific significant nexus analysis needed for many waters under the pre-2015 practice, thereby
reducing uncertainty regarding the scope of CWA jurisdiction.
85 See the RPA Chapter 1 for additional details.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised ) 101
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IV —Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Figure IV-2. Potential effects of the proposed rule on CWA section 404 program
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Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised 102
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
IV.A.3 Section 311: Oil Spill Prevention, Preparedness, Reporting and Response
CWA section 311 includes two main components that address the risk and harm from oil spills:
• Spill prevention and preparedness, which has been addressed in the EPA's SPCC and FRP
regulations for non-transportation related facilities and in USCG and DOT regulations for vessels
and transportation-related facilities.
• Spill notification and removal, as described under the National Contingency Plan.
This section describes each part of the program and discusses the potential impacts of proposed changes
to the definition of "waters of the United States."
IV.A.3.1 Overview
Under the authority of CWA section 311, the EPA requires certain non-transportation-related facilities to
prepare Spill Prevention, Control and Countermeasure (SPCC) plans if they have a reasonable potential to
have a discharge of oil to navigable waters and adjoining shorelines and meet other applicability criteria
including aggregate oil storage capacity (see SPCC rule at 40 CFR part 112). Specifically, the SPCC rule
applies to facilities "engaged in drilling, producing, gathering, storing, processing, refining, transferring,
distributing, using, and consuming oils and oil products, 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..." [section 112.1(b)] where
"navigable waters" (as opposed to "navigable waters of the United States") are defined at section 112.2 as
waters of the United States, including the territorial seas.86 Facilities in a broad spectrum of industry
sectors are currently subject to the SPCC rule, including farms, oil production facilities, industrial sites,
manufacturing plants, and retail establishments.
The agencies estimate that approximately 540,000 facilities are subject to SPCC requirements and must
prepare, implement, and maintain their SPCC Plan (U.S. EPA, 2016). Approximately 40 percent of these
facilities (230,000) are in the oil production sector (Table IV-4), which includes production, drilling, and
workover.87 Other industry sectors with a significant share of facilities include electric utilities (including
distribution substations), real estate rental and leasing, and farms. On an ongoing basis, approximately
three percent of the universe of SPCC-regulated facilities are new facilities that must develop an SPCC
Plan and implement the spill prevention measures required by the regulation (e.g., sized secondary
containment, overfill prevention, and employee training) before they start operating and handling oil. The
remaining facilities must maintain their existing plan. They must amend their Plan when there is a change
86 The CWA [33 U.S.C. 1321(b)] sets as national policy that there "should be no discharges of oil or hazardous substances into or
upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone, or in
connection with activities under the Outer Continental Shelf Lands Act [43 U.S.C. 1331 et seq.] or the Deepwater Port Act
of 1974 [33 U.S.C. 1501 et seq.], or which may affect natural resources belonging to, appertaining to, or under the exclusive
management authority of the United States (including resources under the Magnuson-Stevens Fishery Conservation and
Management Act [16U.S.C. 1801 et seq. ])." While section 311 uses the phrase "navigable waters of the United States,"
EPA has historically interpreted it to have the same breadth as the phrase "navigable waters" used elsewhere in section 311,
and in other sections of the CWA. See Resource and Programmatic Assessment.
87 Workover refers to various interventions or maintenance activities on oil or gas wells such as replacing the production tubing.
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in operations that materially affects the risk of a discharge and review their Plan at least once every five
years.
Table IV-4: Estimated number of facilities subject to SPCC in 2016.
Sector
Number of Facilities
Oil Production
230,405
Electric Utility1
64,919
Real Estate Rental and Leasing
30,395
Farms2
21,864
Other Commercial
18,764
Retail Trade
18,158
Contract Construction
17,327
Transportation
15,846
Other Manufacturing
15,781
Arts Entertainment & Recreation
15,054
Wholesale Trade
14,883
Education
9,317
Manufacturing Facilities Using and Storing AFVOs
7,859
Other Services (Except Public Administration)
7,493
Hospitals & Other Health Care
7,239
Accommodation and Food Services
5,330
Information Finance and Insurance
4,596
Petroleum Bulk Stations and Terminals
4,405
Fuel Oil Dealers
4,225
Gasoline stations
3,715
Food Manufacturing
3,684
Warehousing and Storage
3,545
Mining
3,145
Metal Manufacturing
2,828
Chemical Manufacturing
2,654
Petroleum Refining and Related Industries
2,075
Religious Organizations
1,563
Military Installations
789
Pipelines
647
Government
613
Total
539,118
1 Electric utility includes generation plants, distribution substations, and other types of facilities
2 Reflects changes in SPCC applicability to farms due to the Water Resources Reform and
Development Act of 2014 (WRRDA)
Source-. U.S. EPA (2016)
Additionally, under the Facility Response Plan (FRP) rule at 40 CFR 112.20 et seq, the EPA requires a
subset of SPCC facilities that could, because of their location, reasonably be expected to cause substantial
harm to the environment by discharging oil into or on the navigable waters or adjoining shorelines to
prepare and submit an FRP to the EPA Regional Administrator for the state where the facility is located.
The EPA maintains an internal database on FRP facilities, including their locations and characteristics.
Table IV-5 summarizes the number of active FRP facilities by EPA Region.
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Table IV-5: Number of active FRP facilities
by EPA region
EPA Region
Number of Facilities
1
133
2
203
3
283
4
531
5
527
6
956
7
259
8
225
9
278
10
407
Total
3,802
Source: U.S. EPA, Emergency Management-Oil
Database, 2018
Section IV. A.3.2 discusses the potential impacts of the proposed change to the definition of "waters of the
United States" on the SPCC and FRP programs.
Spill preparedness requirements also exist for onshore transportation-related facilities such as pipelines
and railcars. These programs derive their authority from CWA section 311 as amended by the Oil
Pollution Act (OPA) of 1990 and therefore are affected by changes in the scope of jurisdictional waters.
Under 49 CFR part 194, the operator of an onshore oil pipeline that, because of its location, could
reasonably be expected to cause substantial harm or significant and substantial harm to the environment
by discharging oil into or on any navigable waters of the United States or adjoining shorelines must
submit an oil spill response plan to Pipeline and Hazardous Materials Safety Administration (PHMSA) of
the Department of Transportation. The worst-case discharge for planning purposes is the largest
foreseeable discharge of oil (e.g., from a pipeline rupture, fire or explosion) in adverse weather conditions
(e.g., rain, currents, cold temperatures). The pipeline operator needs to identify resources necessary to
respond to a worst-case discharge in operator-defined response zones.88 PHMSA has approximately
530 oil spill response plans from pipeline operators (PHMSA, as of April 30, 2018). Section IV. A.3.2.2
discusses the effects of proposed changes in the definition of "waters of the United States" on the pipeline
spill preparedness program.
Under 49 CFR part 130, railroad owners or operators must prepare oil spill response plans to cover tank
car shipments of petroleum oils. Among other requirements, the basic written plan must describe the
manner of response to discharges that may occur during transportation; take into account the maximum
potential discharge of the contents from the packaging; and identify private personnel and equipment
available to respond to a discharge.
88 4 9 CFR 194.101 defines a response zone as a "geographic area along a length of pipeline or including multiple pipelines,
containing one or more adjacent line sections, for which the operator must plan for the deployment of, and provide, spill
response capabilities. The size of the zone is determined by the operator after considering available capability, resources,
and geographic characteristics."
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Under OPA, states may impose additional requirements for facility response plans as long as these
requirements are at least as stringent as the federal standards. For example, both Alaska and Washington
State have regulations requiring facility response plans or comprehensive contingency plans for certain
large facilities such as refineries, refueling terminals, and pipelines. Both states further require public
participation in the planning process to ensure that the plans appropriately reflect community concerns
and priorities.
Section 311(c) of the CWA as amended by OPA of 1990 authorizes response to discharges or threats of
discharges of oil. The CWA provides that the President shall ensure effective and immediate removal of a
discharge or substantial threat of discharge (1) into or on navigable waters, (2) on the adjoining shorelines
to the navigable waters, (3) into or on the waters of the exclusive economic zone, or (4) that may affect
natural resources belonging to, appertaining to, or under the exclusive management authority of the
United States. The CWA requires that oil discharges and releases of reportable quantities of hazardous
substances be reported to the National Response Center (NRC), which in turn notifies the relevant federal
on-scene coordinators (FOSC). FOSCs have the authority to conduct, direct and coordinate response
efforts to protect the environment, public health, and worker safety and health under CWA Sections
311(c) and (e). Most oil and chemical incidents are addressed by the state, local, or tribal governments
and/or by responsible parties (RPs). The FOSC determines the need for federal involvement under the
CWA and the NCP.
Liability for response and cleanup costs falls to the RP if one can be identified. The Oil Spill Liability
Trust Fund (OSLTF) provides funding to cover removal costs incurred by the U.S. Coast Guard and the
EPA and by state and tribal governments. The OSLTF may pay for uncompensated removal costs and
damages up to $1 billion per incident, of which no more than $500 million may be paid for natural
resource damages. The National Pollution Funds Center (NPFC), which manages the OSLTF, seeks
reimbursement from the RP for any response expenses, claims, and damage assessment initiation paid by
the Fund. One of the key criteria89 the NPFC applies when approving access to the OSLTF is whether the
oil spill incident affected or substantially threatened a "water of the United States." Changing the scope of
jurisdictional waters could potentially affect the EPA's ability to access the OSLTF to oversee an RP's
response to an oil spill or respond to an oil spill. See Section IIV.A.3.2.3 for further discussion of impacts
to spill notification and response programs.
IV.A.3.2 Potential Effects of the Proposed Rule on Section 311 Programs
IV.A.3.2.1 Effects on Non-Transportation-Related Spill Prevention and Preparedness
IV.A.3.2.1.1 SPCC Program
Figure IV-3 illustrates the potential impacts of the proposed rule on the SPCC program. The agencies
estimate that approximately 540,000 facilities are currently subject to SPCC requirements. This estimate
is based on the number of establishments in each industry sector and oil storage capacities. The estimate
does not explicitly account for the location of the facilities and reasonable potential for a discharge to a
"water of the United States." In determining whether a facility has a reasonable expectation of an oil
discharge that could reach a "water of the United States," facility owners consider solely the geographical
89 Other criteria include whether the substance is an oil.
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and locational aspects of the facility [40 CFR 112. l(d)(l)(i)]. As the EPA describes in its SPCC
Guidance, "the owner or operator should consider the location of the facility in relation to a stream, ditch,
gully, or storm sewer; the volume of material likely to be spilled; drainage patterns; and soil conditions.
An owner or operator may not consider constructed features, such as dikes, equipment, or other manmade
structures that prevent, contain, hinder, or restrain a discharge as described in section 112.1(b), when
making this determination." (U.S. EPA (2013), page 2-34)
Typically, natural conveyances or stream channels are principal spill pathways for impacts to aquatic
resources in remote and undeveloped inland areas that lack engineered stormwater conveyance systems.
Manufacturing facilities and other facilities located in developed areas may also affect streams through
discharges to stormwater drains or other engineered conveyance systems. Given this, the agencies
anticipate that owners or operators of facilities located in relatively less developed areas would be more
likely to base their applicability determination on whether there is a reasonable potential for an oil
discharge to reach waterbodies in the immediate proximity of the facility. Of the current universe of
SPCC-regulated facilities, the agencies anticipate that the inland onshore oil production and farm sectors
would be the most likely to be affected by proposed changes in CWA jurisdiction given their locations.
Following the diagram in Figure IV-3, potential jurisdictional changes for certain waters may result in a
facility previously subject to the SPCC requirements in the baseline (because of reasonable potential for
an oil discharge to reach waters that are currently jurisdictional) no longer being subject to 40 CFR part
112. Depending on the stringency of applicable state requirements and measures the facility may
implement voluntarily (such as following industry standards or recommended practices), this change
could lead some subset of these facilities to save compliance costs. Reduction in spill prevention
measures could in turn increase the probability of the facility experiencing an incident that results in an
oil discharge leaving the facility and causing environmental damage (also referred to as "oil spill risk" in
further discussions).
At one end of the spectrum are facilities located in states with requirements equivalent to those of 40 CFR
part 112 for the type of facility and oil product. Some states limit the applicability of their spill prevention
requirements based on aggregate storage volume, facility type (e.g., farms, production, others), and type
of oil (e.g., petroleum oils, non-petroleum oils). Other states reference 40 CFR part 112 explicitly. The
agencies expect no change to compliance costs or spill risk for facilities required to comply with
equivalent state or tribal regulations or that elect to voluntarily implement SPCC measures.
At the other end of the spectrum are facilities located in states without spill prevention requirements and
that do not voluntarily follow industry standards or recommended practices. The compliance cost savings
and spill risk would be larger for these facilities. The agencies anticipate that most facilities affected by a
change in the definition of "waters of the United States" would fall between these two extremes. For
example, facilities may choose to implement some spill prevention measures that are considered good
engineering practices for their industry, such as secondary containment, overfill prevention, practices to
ensure the safe transfer of oil to bulk storage containers, and visual inspections of bulk storage containers,
even if they are not subject to 40 CFR part 112.
Applying the federalism scenarios to the SPCC program is complicated by the fact that the factors
considered in the state rankings do not necessarily reflect all baseline state regulatory programs pertinent
to oil spill prevention, and the scope of these programs would also depend on the industry. In addition,
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
while other federal regulations (e.g., Department of Interior requirements for leases on federal land) and
state regulations may fill some gaps, a 2007 EPA study of spill prevention regulations for oil production
facilities concluded that, of 17 oil producing states the EPA reviewed, none of the states had requirements
that were as stringent as the SPCC rule (U.S. EPA, 2007b). The EPA's regulatory impact analysis for the
2008 amendments to the SPCC regulation researched state regulations affecting the spectrum of facilities
subject to the federal SPCC rule and identified some states with complete, substantial, or partial overlap
with federal requirements. The degree of state overlap was somewhat higher for larger facilities
(33 percent) as compared to smaller facilities (10 percent); overall across the regulated facility universe,
the EPA determined that approximately 13 percent of the SPCC burden overlapped with some state
requirements (U.S. EPA, 2008; Exhibit 5-22). Accordingly, impacts of changes in the definition of
"waters of the United States" are expected to be less in states that have some overlapping requirements
(e.g., Alaska, California, Colorado, Delaware, Georgia, Hawaii) and which are likely to continue
regulating ephemeral streams and other waters that would not be jurisdictional under the CWA.90
90 Ephemeral streams are not categorically jurisdictional under the pre-2015 practice. According to the Rapanos Guidance, the
agencies conduct a significant nexus analysis for certain types of waters referred to as "non-relatively permanent waters,"
which includes ephemeral features and some intermittent streams. See Rapanos Guidance at 7 ("'[Relatively permanent'
waters do not include ephemeral tributaries which flow only in response to precipitation and intermittent streams which do
not typically flow year-round or have continuous flow at least seasonally. However, CWA jurisdiction over these waters will
be evaluated under the significant nexus standardf.]").
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IV —Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Figure IV-3: Potential effects of the proposed rule on CWA section 311 SPCC program
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-6 provides estimates of SPCC compliance costs for various types of facilities. These costs
represent average unit costs per facility for spill prevention measures required under the existing program.
The magnitude of any compliance cost savings due to the proposed rule will depend in part on whether a
facility already exists and complies with SPCC measures, or is a new facility. As noted above, it will also
depend on any existing state requirements. A facility that implements an SPCC Plan in the baseline is
unlikely to remove existing structural controls, such as secondary containment or double-walled tanks,
but may avoid some ongoing compliance expenses, such as Plan review and PE-certification, container
inspections and integrity testing, and employee training. By contrast, the owner of a new facility not
subject to SPCC under the proposed definition could theoretically forgo structural spill prevention and
control measures if not otherwise required under state, tribal, or local regulations. In practice, however,
actual cost savings for new facilities may be similar to those of existing facilities, since the measures
required by the SPCC rule are by now widely accepted and represent good engineering practice. For
example, the agencies expect that sized secondary containment for aboveground storage tanks - a major
share of capital costs attributed to the SPCC regulation - would still be part of the design of new oil-
handling facilities even without an SPCC Plan requirement, since secondary containment is typically
required by the Uniform Fire Code, which has generally been adopted by states. As such, cost savings for
new facilities may consist mainly of the costs related to the preparation of the actual Plan (e.g.,
documentation of the measures, Professional Engineer-certification).
Table IV-6: Estimated annualized per-facility SPCC compliance costs, by facility type and size
(2017$)
Storage Facilities1,2
Production Facilities1,2
Item
1
II
III
IV
1
II
III
IV
New Facility
Plan preparation
$6,200
$16,300
$23,500
$34,300
$5,400
$9,700
$18,900
$28,300
Sized secondary
$34,400
$56,900
$172,500
$361,200
$25,100
$37,600
$137,300
$462,400
containment
Inspections and
$3,700
$8,900
$24,200
$43,900
$2,400
$4,800
$9,500
$14,300
Tests
Other control
$45,900
$53,100
$153,700
$224,400
$5,600
$7,100
$7,400
$14,200
measures
Training
$2,400
$4,500
$4,500
$4,500
$2,400
$4,500
$4,500
$4,500
Total
$92,700
$139,600
$378,400
$668,300
$40,900
$63,600
$177,700
$523,700
Existing Facility
Plan
$500
$1,400
$1,900
$2,400
$500
$800
$1,100
$500
maintenance
Inspections and
$4,400
$9,500
$24,900
$44,600
$2,400
$4,800
$9,500
$14,300
Tests
Other control
$200
$200
$800
$1,100
$900
$2,200
$2,200
$8,200
measures
Training
$2,400
$4,500
$4,500
$4,500
$2,400
$4,500
$4,500
$4,500
Total
$7,500
$15,600
$32,200
$52,600
$6,200
$12,300
$17,400
$27,500
1 Categories l-IV correspond to oil storage capacity ranges as follows: (I) less than 10,000 gallons; (II) 10,001 to 42,000 gallons;
(III) 42,001 to 1 million gallons; and (IV) greater than 1 million gallons.
2 Source: 2002 rule baseline costs minus cost savings from the 2008 rule amendments [U.S. EPA (2008)]. Costs escalated from
2007 dollars to 2017 dollars using the employment cost index or construction cost index, depending on the type of
compliance cost (i.e., mostly labor or mostly constructed structures or materials).
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In the analysis supporting its Information Collection Request (ICR) for the SPCC rule (U.S. EPA, 2016),
the EPA estimated the annual probability of a reportable discharge meeting the criteria at 40 CFR
112.4(a)91 at an SPCC facility at approximately one incident per year per 670 facilities (0.15 percent
annual spill probability).92 That analysis was published in two separate Federal Register notices, as
required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), and thus available for public
comment. Forgoing SPCC prevention measures may increase the probability of a spill occurring,
particularly as equipment ages and becomes more prone to failure. The increase in probability is likely
greatest for facilities that are exempt from state requirements. The agencies do not have sufficient data to
quantify the change, if any, in spill risk due to the proposed change in the "waters of the United States"
definition at this time.
Although data of past spills at FRP facilities are available from the Plans submitted to the EPA, this is
only a subset of the relevant facilities covered under CWA section 311 (3,800 out of approximately
540,000 facilities or less than one percent of the overall affected universe).93 The EPA conducted a
detailed review of the NRC dataset for Fiscal Years 2009 through 2011, including an evaluation of the
causes of the incidents, the amount of oil prevented from reaching jurisdictional waters, and the amount
of oil that reached jurisdictional waters. For this time frame, FRP facilities experienced 52 oil discharge
incidents whereby in 16 of the incidents, oil that was discharged reached jurisdictional waters. Of the
amount of oil that was discharged in the 52 incidents, about 90 percent of the oil was prevented from
reaching jurisdictional waters (i.e., was retained in secondary containment).
To augment the prior analysis done by the EPA, the agencies also reviewed Pollution Reports for 1,064
emergency removal actions that EPA FOSCs responded to and documented during the period of 2001
through 2017.94 The agencies reviewed descriptions of 60 incidents95 involving non-transportation related
facilities during the period of 2014 through 2016. The average volume of oil discharged in these incidents
was approximately 6,500 gallons. It is unknown how the number of incidents or volume of oil discharged
would change with a change in spill prevention requirements at certain facilities. Even facilities that
implement some SPCC measures are not anticipated to exhibit a zero probability of an oil discharge; in
several incidents oil reached waters despite the presence of secondary containment (e.g., via a storm drain
or due to vandalism).
Projecting baseline and policy scenario spill risks for the broader SPCC universe would require making
unsupported assumptions regarding the characteristics and distribution of activities (e.g., the number and
91 A discharge of oil occurring within any 12-month period that triggers the section 112.4 reporting requirements is: (1) A single
discharge as described in section 112.1(b) of more than 1,000 U.S. gallons; or (2) Two or more discharges as described in
section 112.1 (b), each of which is over 42 U. S. gallons.
92 For the 2002 rule ICR, EPA estimated that approximately 0.15 percent of all facilities would incur costs each year due to
reporting requirements related to an oil discharge under section 112.4(a).
93 A review of the NRC database for Fiscal Years 2002 through 2011 done by EPA in support of the Program Assessment Rating
Tool (PART) attempted to identify oil discharge incidents at FRP facilities, but the results for Fiscal Years 2005 and 2006
were substantially affected by hurricanes, making inferences from this dataset difficult.
94 The Pollution Reports are available at https://response.epa.gov/.
95 EPA selected incidents overseen by EPA FOSCs between 2014 and 2016 and excluded removals that addressed historical
releases or abandoned facilities, or originated from a pipeline, truck, or other transportation-related source.
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location of facilities entering and existing the market, and the volumes of oil handled at those facilities),
as well as data to accurately project future industry practices and state and tribal responses to the
proposed rule.
IV.A.3.2.1.2 FRP Program
A subset of SPCC facilities are also subject to FRP preparedness and response requirements. Figure IV-4
illustrates the potential impacts of the proposed rule on the FRP program. Similar to the anticipated
effects on the SPCC program described above, the proposed rule could potentially affect FRP facilities
primarily through changes in the applicability of requirements to the facilities, but with impacts occurring
at two stages: 1) changes to the overall applicability of 40 CFR part 112, and 2) changes to the FRP-
specific self-identification applicability criteria at 40 CFR 112.20(f)(1).
Proposed changes in CWA jurisdiction that would exempt a facility from SPCC because the facility no
longer has a reasonable potential of a discharge as described in section 112.1(b) similarly would exempt
the facility from FRP requirements. The second way a change in CWA jurisdiction could affect the FRP
program is through FRP applicability factors. As defined in 40 CFR 112.20(f)(1), a non-transportation
related onshore facility is required to prepare and implement an FRP if:
1. The facility transfers oil over water to or from vessels and has a total oil storage capacity
greater than or equal to 42,000 U.S. gallons, or
2. The facility has a total oil storage capacity of one million U.S. gallons or more, and at least
one of the following is true:
a) The facility does not have secondary containment for each aboveground storage area
sufficiently large to contain the capacity of the largest aboveground tank within each
storage area plus sufficient freeboard for precipitation.
b) The facility is located at a distance such that a discharge could cause injury to fish and
wildlife and sensitive environments.
c) The facility is located such that a discharge would shut down a public drinking water
intake.
d) The facility has had a reportable discharge greater than or equal to 10,000 U.S. gallons in
the last five years.
The criteria related to reportable discharges (item 2d in the list above) and to distance to sensitive
environments (2b) could be affected by a change in CWA jurisdiction.96 For example, by changing the
scope of waters that trigger the "reportable discharge" applicability criterion, some FRP planholders
would no longer need to prepare or maintain an FRP on the basis of their spill history. To assess the
potential significance of the effects, the agencies reviewed the data available for the current 3,802 FRP
planholders and found only two that had FRP status solely because of reportable spill history (i.e.. no
96 The criterion related to transfers over water to or from vessels is not expected to be affected by revisions to the "waters of the
United States" definition because the involvement of vessels necessarily implies navigation and therefore federally regulated
waters. The secondary containment criterion is unrelated to the definition of "waters of the United States." The criterion
related to public drinking water intakes refers specifically to the potential for a discharge to shut down an intake. Public
drinking water system intakes are expected to draw from perennial streams which are expected to remain within scope of the
CWA. The agencies note, however, that an oil discharge may also affect drinking water systems if it contaminates the
sources that feed those intakes, perhaps including features the jurisdiction of which may be affected by the proposed rule.
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other applicability factor). Most of the 55 FRP planholders with histories of reportable discharges also
triggered one or more of the other applicability criteria, such as transfers over water (39 facilities),
inadequate secondary containment (8 facilities), or potential to affect drinking water intakes (28 facilities)
or sensitive environments (47 facilities).
The potential effect of a change in the definition of "waters of the United States" on sensitive
environments is more difficult to assess a priori. The FRP regulation relies on a definition offish and
wildlife and sensitive environments" at 40 CFR 112.2 during the applicability evaluation by a facility
owner/operator and in the development of the FRP by the planholder (e.g., development of the
vulnerability analysis; see Appendix F, Section 1.4.2 of 40 CFR 112). As described in 40 CFR 112.2 and
in Department of Commerce/NOAA Guidance (1994), "fish and wildlife and sensitive environments"
may include wetlands, national and state parks, critical habitats for endangered/threatened species,
wilderness and natural areas, marine sanctuaries and estuarine reserves, conservation areas, preserves,
wildlife areas, wildlife refuges, wild and scenic rivers, recreational areas, national forests, public drinking
water intakes, federal and state lands that are research natural areas, heritage program areas, land trust
areas, and historical and archeological sites and parks. These areas may also include aquaculture sites,
agricultural surface water intakes, and unique habitats, such as bird nesting areas, critical biological
resource areas, designated migratory routes, and designated seasonal habitats. The Area Committee and
the spill response Unified Command Structure may consult with the natural resource management
agencies, to determine additional areas to be considered sensitive environments for the purposes of OPA.
40 CFR 112.20(g)(1) requires FRP to be consistent with the National Contingency Plan and with the
applicable Area Contingency Plans. Thus, to the extent that Area Committees designated sensitive areas
based on federally-regulated waters, it is possible that changes to CWA jurisdiction could alter this factor
and potentially FRP applicability. The agencies did not have sufficient information about the sensitive
environments considered in determining FRP applicability to assess the significance of the change. A
majority of FRP planholders (2,115 facilities) identify the potential to affect sensitive environments as a
determinant of FRP applicability.
Even in cases where overall FRP applicability is unaffected and the facility still needs to prepare and
submit an FRP, changes in the definition of "waters of the United States" could affect the FRP harm
designation assigned by the EPA Regional Administrators. The EPA Regional Administrators may
categorize a facility that meets multiple criteria as higher risk, denoted as "significant and substantial
harm." The EPA reviews all FRPs and must approve the FRP for facilities categorized as significant and
substantial harm. The EPA's Emergency Management-Oil Database shows that, of the 55 FRP facilities
with reportable discharge history, 52 FRP facilities are currently categorized as significant and substantial
harm facilities. It is uncertain whether the EPA Regional Administrator would have categorized these
facilities as lower risk (substantial harm) without the reportable spill history factor. If so, the change may
reduce the burden on the EPA and facility owners related to the Plan approval process.
A revised definition of "waters of the United States" could lead some facilities to avoid FRP compliance
costs. The magnitude of the savings depends on the stringency of any applicable state requirements and
measures the facility may implement voluntarily in accordance with recommended industry practices. For
example, FRP facility owners or operators may no longer need to maintain their FRP, maintain a contract
with an oil spill removal organization (OSRO), or conduct periodic drills and exercises to maintain
preparedness. Table IV-7 summarizes FRP compliance costs for existing and new facilities. These costs
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are unit costs (per facility) for preparing, maintaining, or implementing an FRP where required under
federal regulations.
Table IV-7: Estimated per-facility FRP compliance costs (2017$)
Item
Basis
Costs
Plan preparation (new facility only)1
One-time
$20,000 to $40,000
Plan preparation (new facility only)1
Annualized3
$1,800 to $3,500
Plan maintenance1
Annual
$2,300 to $7,200
OSRO retainer2
Annual
$10,000
Drills and exercises2
Annual
$20,000
1 Source: Supporting Statement for the Renewal of ICR 1630.13, OMB Control No. 2050-0135 (Docket
ID EPA-HQ-OLEM-2018-0105)
2 Source: Email communication from Florida Power and Light on 5/21/18.
3 Annualized over 20 years using a 7 percent discount rate.
EPA estimates the costs of developing an FRP at $20,000 to $40,000 per facility, depending on the size
and complexity of operations. Costs for subsequent Plan maintenance are approximately $1,800 to $3,500
per year, costs for contracting with an OSRO are approximately $10,000 per year, and costs for drills and
exercises are approximately $20,000 per year. As described in Figure IV-4, a change in CWA jurisdiction
could result in certain facilities avoiding FRP-related costs in cases where the facility no longer meets
applicability criteria under 40 CFR 112.20 or where the facility changes risk category (e.g., from
significant and substantial harm to substantial harm). The cost savings will depend in part on the changes
in facility status and on any state requirements.
While a facility that is no longer required to prepare or maintain an FRP would be saving some or all of
the costs in Table IV-7, forgoing these activities will reduce preparedness and could delay the response to
a spill or make this response less effective and therefore increase the magnitude of environmental
damages. It could also increase the risk to other resources, including transportation routes, businesses,
residences - that incidentally benefit from an effective response to an oil discharge from the facility.
Conversely, some facilities could elect to voluntarily maintain (or prepare) an FRP despite a change in
their status and obligations under 40 CFR 112. Facility owner or operator responses to changes in CWA
jurisdiction is unknown.
Available data are not sufficiently detailed to develop precise estimates of the cost savings and to quantify
the associated changes in risk. The net outcome of the proposed rule is therefore uncertain. The case
studies in Section IV.B assess the potential impacts of changes in CWA jurisdiction on the FRP program
by analyzing the proximity of FRP facilities to waters in three selected regions and considering scenarios
about potential responses by FRP facility owners or operators to the changes.
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IV —Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Figure IV-4: Potential effects of the proposed rule on CWA section 311 FRP program
SPCC requirements still apply
even if FRP requirements don't.
Regional
Administrator may
categorize facility
meeting two or more
criteria as "significant
and substantial harm"
(sig & sub).
Non aquatic sensitive environments
(e.g., E&T habitats, parks,
wilderness areas,
management areas)
Change in WOTUS
applicability may
change FRP category
from sig & sub to sig
only.
Aquatic sensitive
[e.g., wetlands)
Prepare/
WOTUS
WOTUS
Non-WOTUS
Prepare/
Prepare/
Applicable
WOTUS
Non-WOTUS
Non-WOTUS
Applicable1,
Applicable1"
Applicable1,
State has
equivalent
requireme nts
State has less
stringent
requirements
State has no
requirements
Prepare/
Prepare/
Facility...
Facility...
Prepare/
Higher
Costs
Unknown
Unknown Unknown
Requests
jurisdictional
determination
Could affect drinking
water intake
Could cause "injury"
to fish, wildlife, and
sensitive
environments
Has had a "reportable
"discharge in last five
years
Does not have
sufficient secondary
containment
Facility subject to SPCC regulation
(see "SPCC diagram")
has a total oil storage capacity
greater tha n or equal to 42,000
gallons and it transfers oil over
water to/from vessels
has a total oil storage capacity
greater than or equal to 1 million
gallons and ...
Imple me nts
equivalent
FRP practices
Imple ments
some FRP
practices
Implements
equivale nt
FRP practices
Implements
some FRP
practices
Implements
no practices
IV.A.3.2.2 Effects on Transportation-Related Spill Prevention and Preparedness
As described in Section IV.A.3.1, the preparation of an FRP for a pipeline facility is based on the
potential for a discharge to a "water of the United States" or adjoining shorelines. In a Report to
Congress, PHMSA estimated that hazardous liquid pipelines cross inland waterbodies at 18,136 locations
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
and 5,110 of these crossings are 100 feet or greater (PHMSA, 2013), but this count likely understates the
number of water crossings, since it was based on a relatively coarse hydrographic dataset that would not
account for most perennial and intermittent streams. Because the existing regulation gives pipeline
operators the flexibility to define planning areas, it is unknown how reducing the number of jurisdictional
water crossings would affect the number of FRPs that pipeline operators may develop or their planned
response resources.
Pipeline integrity management (IM) requirements such as pipeline burial depth and inspection of water
crossings are specific to streams at least 100 feet wide and to navigable waters. Since these waters would
remain jurisdictional under the proposed rule, the proposed rule is not expected to affect these
requirements.
IV.A.3.2.3 Effects on Spill Notification, Response, and Penalties
Figure IV-5, at the end of this section, illustrates the potential impacts of the proposed changes in the
"waters of the United States" definition on response programs. As noted above, impact or substantial
threat to a "water of the United States" is one of the key criteria determining access to the OSLTF for
removal costs and uncompensated damages, along with confirming that the substance involved in the
discharge is an oil, as opposed to a hazardous substance (which would be addressed by CERCLA).
The jurisdictional status of the water impacted or threatened by a discharge determines oversight
authorities under the NCP and what resources are available for removal or for compensating damages. For
waters that remain within CWA jurisdiction under the proposed rule, the FOSC would continue to
oversee the response and removal actions. For waters that would become non-jurisdictional, oversight
would fall on the states and tribes, with removal requirements depending on the state or tribal
requirements for the particular aquatic resource. More than 11,000 oil spills97 were reported to the NRC
during calendar year 2017 from sources other than offshore vessels or platforms. Of these incidents, more
than 7,000 reportedly affected waters in general. The number of incidents that affected or threatened
waters that currently are, or would no longer be, subject to federal regulation under the proposed rule is
uncertain, since notifications to the NRC generally do not provide sufficient detail on the aquatic
resources at risk to determine jurisdictional status.
The agencies expect a change in CWA jurisdiction would have a limited impact on the frequency of NRC
notifications. While impact or threat to waters is one of the criteria for notifying the NRC of an incident,
the NRC also receives notifications for a wide range of incidents of public concern under CERCLA,
Emergency Planning and Community Right-to-Know Act, and other environmental or safety regulations.
Because there are potential penalties for failing to notify the NRC of a reportable incident but no adverse
consequence from unnecessarily reporting an incident, NRC notification generally has become standard
operating procedure for facility owners or operators.
However, changes in CWA jurisdiction could affect the response to reported incidents as responsibilities
for overseeing the response to some incidents shift from the FOSC to state, local, or tribal governments.
97 Count reflects NRC's Calendar Year 2017 incident data involving substances with names containing the terms "oil,"
"gasoline," or "diesel."
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
During the period of 2001-2017, EPA FOSCs oversaw emergency removal activities for 1,064 incidents
involving the discharge of oil or substantial threat of a discharge to waters of the United States. The
agencies reviewed Pollution Reports for each of these emergency oil removal actions.98 These incidents
either involved active oil discharges or substantial threat of a discharge to waters of the United States.
Under the current legal framework, the OSLTF is not available for removals or damages to non-
jurisdictional waters. Changing the scope of jurisdictional waters could potentially affect the EPA's
ability to access the OSLTF to oversee the RP's response to an oil spill or directly respond to an oil spill.
It could also affect the availability of the Fund to states, tribes, and other parties. During the period of
October 2012 through April 2018, NPFC paid a total of $52.8 million to cover expenses incurred by the
EPA to respond to oil spills affecting inland waters and originating from facilities." NPFC additionally
paid claims for removal costs totaling $0.9 million to state and local governments and OSROs.
In some cases, non-jurisdictional waters may still be federally regulated in the event of an oil spill under
other statutes, such as the Endangered Species Act (ESA), even if they would no longer be subject to
CWA jurisdiction. The natural and cultural resource trustee has oversight authority for the response.
However, based on the authorities that established the OSLTF, the Fund would not be available to pay for
non-RP response and removal of discharged oil if the waters are not jurisdictional. Funding would need to
come from the relevant appropriated budgets for parties (states and/or tribes) involved in the response
activities.
The potential for a residual threat to a "water of the United States" exists if the response to an oil spill is
delayed by the absence of a direct and immediate threat to jurisdictional waters. This impact may be
exacerbated by adverse weather conditions such as heavy rain or wind.
Figure IV-5 highlights different possible outcomes of changes to the scope of CWA jurisdiction,
including for oil spill incidents affecting potentially new non-jurisdictional waters. These outcomes
depend on the state requirements and RP actions following the incident. They range from no change (in
cases where the RP assumes full responsibility for response and cleanup), to the transfer of the response
burden to the state or tribe (in cases where the OSLTF is no longer available), to reduced cleanup and
environmental damages and/or response delays as the relevant authorities determine whether a threat to
downstream "water of the United States" exists.
98 The Pollution Reports are available at https://response.epa.gov/.
99 Based on data from NPFC on EPA FOSC inland cases involving facilities (excludes vessels). Source: email communication
from U.S. Coast Guard, National Pollution Funds Center, April 26,2018.
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IV —Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Figure IV-5: Potential effects of the proposed rule on CWA section 311 oil spill response and
removals, funding sources, and other requirements.
¦Hazardous Substances-
¦Oil substances-
^"Affects or threatens adjoining
shorelines of...
Affects or threatens adjoining"
shorelines of...
State has no
requirements
for affected
Transfer to
states
Transfer to
trustees
Transfer to
states
Unknown Unknown
Unknown
National
Pollution
Fund
budgets
budgets
budgets
Equivalent
RP/State/
Local
Equivalent
RP/State/
Local
State has less
stringent
requirements
State has
equivalent
requirements
Natural and
Cultural Resource
Federal/State
appropriated
budgets for the
FOSC/RP/ State/
Local response
Hazardous
substance release
underCERCLA
Threatens federally
protected sensitive
resource (e.g., ESA)
Does not threatens
federally protected
sensitive resource
Oil discharge under
CWA Section 311(d)
More limited
RP/State/
Local
Equivalent
RP response
More limited
RP response
Federal/ State/
Local Trustee
The economic implications of these proposed changes are uncertain since they depend on the location of
the spill, the stringency of state requirements, and other factors. It is possible that a RP for a spill affecting
non-jurisdictional resources would reduce response costs in cases where state requirements are less
stringent than the baseline federal requirements. State regulations cover the discharge to state waters or
land of any substance that may be detrimental to environmental quality and are generally similar to
baseline oil discharge prohibition requirements under the CWA.
Whereas the federal regulations cover spills of non-petroleum oils such as animal fats and vegetable oils
(AFVOs), some state requirements focus mainly on petroleum oils and requirements for non-petroleum
oils may be less stringent or may not apply. For example, Georgia defines "oil" as "including but not
limited to gasoline, crude oil, fuel oil, diesel oil, lubricating oil, sludge, oil refuse, oil mixed with wastes,
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
and another other petroleum related product." (Georgia Oil or Hazardous Material Spills or Releases Act
(OCGA section 12-14-1, emphasis added).100 The definition does not explicitly include non-petroleum oils
such as AFVOs. There may also be higher spill reporting requirement thresholds than provided by the
CWA. For example, in New York, reporting is not needed when the spill involves less than a threshold
amount of oil, is under control, has not reached the state's water or land,101 and is cleaned up within two
hours of discovery (New York Department of Environmental Conservation, 2018).
Accordingly, some discharges reportable under the baseline may no longer be reportable under state
regulations, depending on the basis for the definition of "waters of the state." The lack of reporting
requirements for certain incidents that fall outside both CWA and state requirements may increase
environmental risks.
Another key difference, even where the state requirements are otherwise equivalent to those of the CWA,
is the availability of resources to help defray removal costs or compensate affected parties for damages
not reimbursed by the RP.
IV.A.3.3 Uncertainty and Limitations for Assessing Effects on Section 311 Program
There is significant uncertainty in the universe of facilities that could be affected by a change in CWA
jurisdictional scope. The SPCC rule does not require facility owners/operators to identify themselves to
the EPA, unless these facilities are subject to the RFP rule, requiring submittal of an oil spill response
plan to EPA. Whereas owners or operators must comply with 40 CFR part 112 and prepare and maintain
an SPCC Plan, they do not submit this Plan, a Notice of Intent (NOI), or any similar notification to the
EPA. No national, state, or industry inventory of SPCC facilities exists, although the EPA has developed
estimates of the universe of facilities to support rulemaking and Information Collection Requests (ICRs).
For some sectors, notably onshore oil production, detailed public data provide both the number and
location of individual equipment or facility components (e.g., oil wells). This information can be used to
characterize the potential distribution of oil production equipment, but this does not necessarily lead to
accurate identification of SPCC-regulated facility, since production tank batteries are not necessarily co-
located with oil wells and are typically connected to multiple wells. For other sectors, including farms,
manufacturing, and other facilities, publicly available data provide counts of facilities per county or state,
but does not indicate the aggregate storage capacity to assess SPCC applicability. None of the datasets
(except for inspected SPCC facilities and FRP-subject facilities) provide direct information to infer
reasonable potential for a discharge.
IV.A.4 Other CWA Parts
IV.A.4.1 Section 303: Water Quality Standards and Total Maximum Daily Loads
CWA section 303 includes development of state or tribal water quality standards, assessment of water
quality, and development of total maximum daily loads (TMDLs) for waters that are determined to not
meet applicable water quality standards.
100 See https: //law.justia. com/codes/georgia/2010/title- 12/chapter-14/12-14-1/.
101 New York does not consider paved surfaces (asphalt or concrete) as "land."
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States and tribes typically develop water quality standards for general categories of waters, including
wetlands, in addition to creating site-specific standards and more generic standards that can apply
broadly.
State water quality standards for waters jurisdictional under the CWA are required to be consistent with
the CWA, for example in terms of designating uses, criteria to protect those uses, and anti-degradation
policies. If a feature is not jurisdictional under the CWA, states and authorized tribes are not required to
develop water quality standards for it. There is also no federal requirement under section 303(d) for states
to assess "non-jurisdictional" waterbodies. Therefore, a change in the scope of CWA jurisdiction has the
potential to increase the number of waters that are not assessed or otherwise identified as impaired
pursuant to section 303(d). As a result, states would not be required to develop TMDL restoration plans
for waters that are impaired but have not been so identified. This could result in reduced protection for
aquatic ecosystems and public health and welfare (see the Resource and Programmatic Assessment for
more detail).
The effect of the proposed rule on the number of waterbodies added to the impaired waters list (and
subsequent TMDL development) is uncertain. States typically have a set budget for water quality
monitoring and assessment and monitor only a subset of waters in any year. Since water quality sampling
needs are often higher than budgets allow, this proposed rule, which may reduce the number of waters
that states choose to monitor, is unlikely to motivate states to increase monitoring budgets. If non-
adjacent wetlands and ephemeral features are categorically not jurisdictional, states may have
opportunities to reallocate monitoring resources currently dedicated to such waters to collect data in
waters that meet the proposed definitions of "tributary" and "adjacent wetlands." Under this scenario,
states and tribes may be better able to allocate their resources toward waters of relatively higher
environmental and social value.
Absent CWA jurisdiction, states and tribes can still choose to regulate waters irrespective of federal
mandates. For example, over 90 percent of streams in New Mexico are mapped as ephemeral or
intermittent and the state currently has water quality standard categories for all waters (i.e.. ephemeral,
intermittent, and perennial). New Mexico could retain these categories, thereby regulating certain waters
above the federal standard, or it could modify the water quality standards to only meet minimum CWA
requirements. Even if New Mexico and other arid states do not change their water quality standards, they
may no longer assess non-jurisdictional waters or develop TMDLs for them if they are impaired.
The development and revision of water quality standards is typically an ongoing process often
independent from changes to the definition of "waters of the United States"—although some states, such
as New Mexico, have developed standards for certain categories of waters (e.g. ephemeral features) that
would be non-jurisdictional under the proposed rule. The agencies thus do not project additional costs
relating to development or revision of water quality standards as a consequence of this proposed rule.
Changes in CWA jurisdiction could also lead to requests for changes in TMDL waste load allocations
(WLAs) for point sources and load allocations (LAs) nonpoint sources and its margin of safety. TMDL
revisions could shift additional pollutant reduction responsibility to those sources discharging to
jurisdictional waters downstream. Given that there are currently more than 73,000 completed TMDLs
nationwide, requests to revise even a small percentage of them would require significant resources to
complete (U.S EPA and U.S. Department of the Army 2018).
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IV.A.4.2 Section 401: State and Tribal Roles
Under section 401 of the CWA, states, authorized tribes, and interstate agencies have the authority to
review and approve, condition, or deny any federal permits or licenses that may result in a discharge to
"waters of the United States" within their borders, including wetlands. States, authorized tribes, and
interstate agencies make their decisions to deny, certify, or condition permits or licenses primarily by
ensuring the activity will comply with applicable water quality standards, effluent limitation guidelines,
new source performance standards, toxic pollutants restrictions, and other appropriate water resource
requirements of state or tribal law. Section 401 certification is commonly applied to CWA section 404
permits and Rivers and Harbors Act Section 10 permits issued by the U.S. Army Corps of Engineers,
CWA section 402 permits in the states where the EPA issues NPDES permits, and Federal Energy
Regulatory Commission licenses for non-federal hydroelectric dams. States, authorized tribes, and
interstate agencies may choose to waive their section 401 certification authority, either explicitly or
through the passage of time.
Under the proposed rule, the agencies estimate that the number of CWA section 404 permits would likely
decrease since non-adjacent wetlands, ephemeral features, and certain lakes and ponds would not be
jurisdictional under the CWA, whereas currently some of these waters would be categorically
jurisdictional or found to be jurisdictional based on a significant nexus analysis. A decline in 404 permits
could result in costs savings to states and authorized tribes by reducing the number of 401 reviews and
required staff time. The vast majority of states have been authorized to administer section 402 of the
CWA, and any cost savings that would result from the proposed rule due to section 402 permitting are
discussed in Section IV.A. 1. States that have not been authorized for the section 402 program and tribes
authorized to administer section 401 would continue to have the opportunity to complete section 401
certification on EPA-issued 402 permits. Fewer EPA-issued 402 permits would then reduce the number of
401 reviews and associated staff time.
Fewer 404 permits as a result of a reduction in the scope of the CWA jurisdiction could affect a state or
tribe's ability to regulate non-adjacent wetlands and ephemeral features via section 401 authority. For
waters whose jurisdictional status would not change under the proposal, states and authorized tribes can
place additional restrictions on federally-issued permits through their section 401 authority, enhancing
environmental benefits and increasing costs to permittees. For instance, states may impose additional
permit conditions on permits issued within watersheds of concern.
IV.A.4.3 National Pretreatment Program
The EPA and authorized NPDES state pretreatment programs approve local municipalities to perform
permitting, administrative, and enforcement tasks for discharges into the municipalities' publicly-owned
treatment works (POTWs). The program is designed to protect POTW infrastructure and reduce
conventional and toxic pollutant levels discharged by industries and other nondomestic wastewater
sources into municipal sewer systems and subsequently discharged into receiving waters. The agencies
expect no impacts on the national pretreatment program from CWA jurisdictional changes since the
program is already administered by municipalities and the main focus of the program is minimizing
effects of industrial and other nondomestic wastewater discharges on POTW infrastructure and processes
and subsequent POTW discharges to receiving waters.
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
IV.B Case Studies
To evaluate the potential effects of proposed changes to the definition of "waters of the United States,"
the agencies conducted analyses in three selected geographical areas. The analyses illustrate the potential
impacts of the proposed rule on major program areas - notably on the number of facilities subject to
CWA section 311 oil spill prevention and preparedness regulations, section 402 permits, and section 404
permits requiring mitigation - and on the resulting environmental effects and impacts on regulated
entities. The case studies allow for more detailed evaluation of individual facilities, permits, hydrographic
features, and other factors that would not be possible in a national analysis. As explained in Section I.B,
the purpose of the case studies is to evaluate a range of scenarios that illustrate the potential outcomes
from proposed changes in the definition of "waters of the United States" rather than develop conclusive
quantitative estimates of the economic and environmental outcomes of the proposed rule.
The agencies selected the case study locations to reflect a range of ecosystems, hydrographic
characteristics, and regulatory contexts, considering data availability and quality, including the
availability of relevant wetland valuation studies. Additional considerations in case study selection
included the fraction of waters that may be affected by the proposed rule and potential state response
described in Section II.A which suggested some regions with comparatively smaller potential for impacts
(see Section II. A. 3 for a detailed discussion of the agencies evaluation of potential state responses to
CWA jurisdictional changes). Based on the agencies' analysis of potential state responses, the agencies
estimate that 23 states are likely to continue regulating non-jurisdictional102 non-wetland surface waters,
21 may continue, and 7 may reduce regulation of such waters following the proposed rule. Reduced
regulation could result in a potential increase in pollutant discharge to these waters. Twenty-one states are
likely to continue regulating non-jurisdictional wetlands, eight may continue, 16 may reduce regulation of
such waters, and five are likely to not regulate waters that are non-jurisdictional under the proposed rule,
resulting in a reduction of wetlands compared to the baseline level.103
Based on the results of the potential state response analysis, the agencies prioritized geographic locations
where non-permanent streams represent a relatively large fraction of waters located within the state, as
mapped by the high-resolution NHD.104 The combination of factors meant that there were no case study
candidates in the Northeast and along the Pacific coast. Figure IV-6 and Figure IV-7 show selected case
study watersheds against the backdrop of state responses.
102 Non-jurisdictional in this context refers to waters that do not meet the definition of "waters of the United States."
103 The agencies note that some states (e.g., New York) may have limitations on the size of isolated wetlands they can regulate.
104 When screening locations for case studies, the agencies initially considered the extent to which both intermittent and
ephemeral waters have been delineated in the high-resolution National Hydrography Dataset since many parts of the country
do not differentiate among these categories of streams, and some areas do not differentiate between ephemeral, intermittent,
and perennial (i.e., streams are unclassified for hydrographic category). Subsequent analyses focused on potential impacts to
ephemeral streams more specifically since the proposed definition of "waters of the United States" affects these waters more
specifically by categorically excluding them from federal jurisdiction.
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IV —Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Figure IV-6: HUC4 case study locations compared to states potential responses to CWA
jurisdictional changes - section 402 program
0 125 250 500 Miles
1 1 1
Continue Baseline Surface
Water Regulation Under:
] Case Study Watersheds
J All Scenarios
^ Scenarios 2 and 3
[ No Scenarios
Figure IV-7: HUC4 case study locations compared to states potential responses to CWA
jurisdictional changes - section 404 program
A
Continue Baseline Dredged
and Fill Regulation Under:
Y///\ Case Study Watersheds
| All Scenarios
| Scenarios 2 and 3
| Scenario 3
[ No Scenarios
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The three case study areas, as shown in Figure IV-6 and Figure IV-7 are:
• In the Ohio River Basin:
- HUC 0509 - Middle Ohio: The Ohio River Basin below the confluence with the
Kanawha River Basin to the confluence with the Kentucky River Basin, excluding the
Big Sandy, Great Miami, Guyandotte, Kentucky, Licking and Scioto River Basins. The
watershed encompasses 8,850 mi2 in Indiana, Kentucky, Ohio, and West Virginia.
- HUC 0510 - Kentucky-Licking: The Licking and Kentucky River Basins. The watershed
encompasses 10,500 mi2 in Kentucky. The outlet of this watershed flows into watershed
0509.
• In the Lower Missouri River Basin:
- HUC 1025 - Republican: The Republican River Basin. The watershed encompasses
24,700 mi2 in Colorado, Kansas, Nebraska. The outlet of this watershed flows into
watershed 1027.
- HUC 1027 - Kansas: The Kansas River Basin, excluding the Republican and Smoky Hill
River Basins. The watershed encompasses 15,000 mi2 in Kansas, Nebraska, and
Missouri.
• In the Rio Grande River Basin:
- HUC 1306 - Upper Pecos: The Pecos River Basin to and excluding the Delaware River
Basin. The watershed encompasses 23,500 mi2 in New Mexico and Texas.
- HUC 1307 - Lower Pecos: The Pecos River Basin from and including the Delaware
River Basin to the confluence with the Rio Grande. The watershed encompasses
20,800 mi2 in New Mexico and Texas.
IV.B.l Methods
IV.B.1.1 Overview
The agencies calculated cost savings and forgone benefits based on the proposed changes in each case
study area for each of the different federalism scenarios. Figure IV-8 shows the major components of the
case study analysis and the data and methods used.
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IV —Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Figure IV-8: Case study analysis components and input data
Oil Production
Wells
ORM2 404
Permit Data
NPDES Permit
Data
FRP Data
NHD+NWI
Avoided 404
permit
Change in
WQBEL
Avoided
SPCC Plan
Forgone
mitig ation
Avoided FRP
a. u
Unit transfer or
WTP m eta-
regression
SWAT Models
Unit costs
Unit costs
Forgone
benefits
Cost savings
treatment
^ costs ^
ing
costs
The agencies used program specific data (permits and other programmatic data) to describe the activity in
each program. In the case of the 402 and 311 programs, the agencies attempted to match program permit
data to available water and wetland inventories. In most cases, data limitations resulted in qualitative
descriptions of the effects on the programs. In the case of the 404 program, the agencies used the Corps"
ORM2 404 permit data to determine the number of permits that would no longer be required because they
affect non-jurisdictional waters under the proposed rule as well as forgone mitigation of impacts that
affect non-jurisdictional waters under the proposed rule. Cost savings related to the 404 program were
defined as:
1) Reduced permit costs, including application costs, permitting time costs, and impact avoidance
and minimization costs, for projects no longer affecting waters regulated under the CWA, and
2) Reduced compensatory mitigation costs when impacts occur on waters no longer regulated under
the CWA.
Forgone benefits included the value of lost mitigation area, monetized using area resident WTP obtained
from location appropriate studies estimating WTP or from the wetland WTP meta-regression discussed in
section III.C.2.2.3.2. The agencies also modeled selected environmental impacts resulting from the
forgone mitigation using the Sediment and Water Assessment Tool (SWAT) model (release 659) (Arnold
et al., 2012, Neitsch et al., 2011). These impacts include changes in water balance and nutrient and
sediment loads and transport, which may increase drinking water treatment costs and the frequency of
reservoir dredging. Dredging costs resulting from regulatory changes were noted. Other environmental
impacts were not specifically monetized.
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IV.B.1.2 Relating Permits and Activities to Aquatic Resources Affected by the Proposed Rule
More specifically, for each case study, the agencies first identified the facilities and activities covered
under each of the three CWA programs under baseline conditions. The identified facilities and activities
were then assessed to determine whether they would be affected by the changes to regulatory
requirements under the proposed rule. As discussed in Section II.C, the high-resolution NHD and NWI
data have significant gaps and limitations. These limitations impede the agencies' ability to categorically
identify waters that will change jurisdictional status under the proposed rule in a large fraction of the
United States. Therefore, where the available data were sufficiently detailed, the agencies identified
affected facilities and activities using available data from the relevant program database(s) that describe
the flow regime of the affected resources. These data most often reflect site-specific assessments that
supported the issuance of the permit.
To assess impacts on activities permitted under the 404 program in each case study watershed, the
agencies used information provided in the Corps ORM2 database. The ORM2 database records existing
Corps-issued permits and associated aquatic resources determined to be jurisdictional at the time the
permit was issued. The ORM2 database identifies certain tributaries as having an ephemeral flow regime
(based on the code "R6-Riverine Ephemeral")105 or wetlands that are adjacent to but that do not directly
abut relatively permanent waters (based on the Water Type "RPWWN"). For purposes of this economic
analysis, the agencies are assuming that all waters that had previously been found jurisdictional but that
are classified as "R6" or were determined to be wetlands that are adjacent to but do not directly abut
relatively permanent waters would be no longer jurisdictional under the proposed rule. The agencies
acknowledge that such an assumption is imperfect, as, for example, there could be some individual waters
that do not directly abut the tributary that would meet the proposed rule's definition of adjacent because
they have a direct hydrologic surface connection with the tributary. While the information contained in
the ORM2 database allows the agencies to identify a subset of waters that likely would no longer be
jurisdictional under the proposed rule, and thereby the corresponding projects that would likely have a
reduced 404 permit burden, this approach does not capture all 404 impacted waters that may change
jurisdiction. Using these two categories to identify waters that have a high likelihood of experiencing a
jurisdictional change should not be construed as determining that all these waters would change
jurisdiction under the rule.
Data from the 402 and 311 programs can be used to identify the waters that were likely considered
jurisdictional during permit and plan development, however, this information is not sufficiently detailed
to identify waters that may change jurisdiction under the rule. The agencies supplemented the program
databases with data from the NWI to identify facilities affecting waters that are likely to change
jurisdiction under the rule. For example, for section 311 and 402 programs, the agencies considered the
proximity of each facility to receiving and downstream waters potentially changing jurisdiction under the
proposed definition based on NWI descriptors that may identify ephemeral waters.106
105 See https://www.spa.usace.annv.mil/Portals/16/docs/civilworks/regulatorv/Bulk%20Upload/Bulk%20Data%20Cowardin.pdf.
106 Discharges to non-jurisdictional waters may still be regulated if their downstream flow reaches a CWA jurisdictional water.
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The U.S. Fish and Wildlife Service (U.S. FWS) established the NWI program to conduct a nationwide
inventory of wetlands to provide biologists and others with information on the distribution and type of
wetlands to aid in conservation efforts.107 Today, NWI is used for general mapping of wetlands and
deepwater habitats and for data analyses and modeling. The NWI geospatial dataset is a mapping dataset
that provides detailed information on the extent, characteristics, and distribution of wetlands and
deepwater habitats across the United States. These data are primarily derived from manual aerial image
interpretation. The NWI dataset is available as digital data at the 1:24,000-scale or higher throughout the
country, except for large portions of Alaska (data in Alaska are at the 1:63,360-scale or higher). Digital
data are currently not available for approximately 60 percent of Alaska. Additional information on the
NWI is available in the RPA and RPA Appendix A.
While the NWI is the most comprehensive national dataset of the potential extent of wetlands across the
country, it has limitations. The NWI does not map all wetlands and sometimes maps wetlands that do not
exist on the ground. At its best, NWI only approximates the location and boundaries of a Cowardin
wetland type according to the Cowardin Classification System.108 This classification framework was
created to inventory wetlands and deepwater habitats of the United States. The five "Systems" that form
the highest level of the classification hierarchy are Marine, Estuarine, Riverine, Lacustrine, and
Palustrine. The primary objective of this classification is to impose boundaries on natural ecosystems for
the purposes of inventory, evaluation, and management. Neither the Cowardin Classification System nor
the NWI which relies on it for wetland and deepwater habitat mapping purposes were intended or
designed for regulatory purposes. The Cowardin definition of "wetlands" differs from the agencies'
regulatory definition of "wetlands."109 No available datasets depict the jurisdictional extent of waters of
the United States under the 2015 Rule or pre-2015 practice, and all data carry unavoidable uncertainties
and associated limitations. See RPA and RPA Appendix A.
Aquatic habitat located on stream- and riverbeds is generally mapped as "Riverine" in the NWI according
to the Cowardin Classification System (Cowardin et al., 1979; Federal Geographic Data Committee,
2013). The Cowardin "Riverine System" includes all wetlands and deepwater habitats contained within a
channel, with two exceptions: (1) wetlands dominated by trees, shrubs, persistent emergents, emergent
mosses, or lichens, and (2) habitats with water containing ocean-derived salts in excess of 0.5 ppt. A
channel is "an open conduit either naturally or artificially created which periodically or continuously
contains moving water, or which forms a connecting link between two bodies of standing water"
107 U.S. Fish and Wildlife Service. "NWI Program Overview." Available at https://www.fws.gov/wetlands/nwi/overview.html.
108 Cowardin, L. M., V. Carter, F. C. Golet, and E. T. LaRoe. 1979. Classification of Wetlands and Deepwater Habitats of the
United States. U.S. Fish and Wildlife Service. FWS/OBS-79/31. Washington, DC. Available at:
https://www.fws.gov/wetlands/Documents/Classification-of-Wetlands-and-Deepwater-Habitats-of-the-United-States.pdf.
109 Cowardin et al. (1979) define "wetlands" as "lands transitional between terrestrial and aquatic systems where the water table
is usually at or near the surface or the land is covered by shallow water. For purposes of this classification wetlands must
have one or more of the following three attributes: (1) at least periodically, the land supports predominantly hydrophytes; (2)
the substrate is predominantly undrained hydric soil; and (3) the substrate is nonsoil and is saturated with water or covered
by shallow water at some time during the growing season of each year." The agencies' regulations define "wetlands" as
"those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and
that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.
Wetlands generally include swamps, marshes, bogs, and similar areas." 33 CFR 328.3(b) and 40 CFR 232.2.
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(Langbein and Iseri 1960:5). Water is usually, but not always, flowing in the Riverine System (Cowardin
etal., 1979; Federal Geographic Data Committee, 2013).
The Riverine System is divided into four Subsystems: Tidal, Lower Perennial, Upper Perennial, and
Intermittent. Each is defined in terms of water permanence, gradient, substrate, and the extent of
floodplain development. All four Subsystems are not necessarily present in all stream or rivers. The
Cowardin Classification System identifies the Riverine Subsystems as follows:
• Tidal (Rl). This Subsystem extends from the upstream limit of tidal fluctuations down to the
upper boundary of the Estuarine System, where the concentration of ocean-derived salts reaches
0.5 ppt during the period of average annual low flow. The gradient is low and water velocity
fluctuates under tidal influence. The stream bottom is mainly mud with occasional patches of
sand. Oxygen deficits may sometimes occur and the fauna is similar to that in the Lower
Perennial Subsystem. The floodplain is typically well developed.
• Lower Perennial (R2). This Subsystem is characterized by a low gradient. There is no tidal
influence, and some water flows all year, except during years of extreme drought. The substrate
consists mainly of sand and mud. Oxygen deficits may sometimes occur. The fauna is composed
mostly of species that reach their maximum abundance in still water, and true planktonic
organisms are common. The gradient is lower than that of the Upper Perennial Subsystem and the
floodplain is well developed.
• Upper Perennial (R3). This Subsystem is characterized by a high gradient. There is no tidal
influence, and some water flows all year, except during years of extreme drought. The substrate
consists of rock, cobbles, or gravel with occasional patches of sand. The natural dissolved oxygen
concentration is normally near saturation. The fauna is characteristic of running water, and there
are few or no planktonic forms. The gradient is high compared with that of the Lower Perennial
Subsystem, and there is very little floodplain development.
• Intermittent (R4). This Subsystem includes channels that contain flowing water only part of the
year. When the water is not flowing, it may remain in isolated pools or surface water may be
absent.
The habitat that occurs in non-perennial streams that are mapped in the NWI is typically classified within
the Riverine Intermittent (R4) subsystem. The Cowardin Classification System that the NWI uses does
not have an "Ephemeral" subsystem.
Under the Cowardin Classification System, Water Regime Modifiers are used for all nontidal parts of the
Riverine System. Water Regime Modifiers are defined as:
• Permanently Flooded. Water covers the substrate throughout the year in all years.
• Intermittently Exposed. Water covers the substrate throughout the year except in years of
extreme drought.
• Semipermanently Flooded. Surface water persists throughout the growing season in most years.
When surface water is absent, the water table is usually at or very near the land surface.
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• Seasonally Flooded. Surface water is present for extended periods (generally for more than a
month) during the growing season, but is absent by the end of the season in most years. When
surface water is absent, the depth to substrate saturation may vary considerably among sites and
among years.
• Seasonally Flooded-Saturated. Surface water is present for extended periods (generally for more
than a month) during the growing season, but is absent by the end of the season in most years.
When surface water is absent, the substrate typically remains saturated at or near the surface.
• Seasonally Saturated. The substrate is saturated at or near the surface for extended periods
during the growing season, but unsaturated conditions prevail by the end of the season in most
years. Surface water is typically absent, but may occur for a few days after heavy rain and upland
runoff.
• Continuously Saturated. The substrate is saturated at or near the surface throughout the year in
all, or most, years. Widespread surface inundation is rare, but water may be present in shallow
depressions that intersect the groundwater table, particularly on a floating peat mat.
• Temporarily Flooded. Surface water is present for brief periods (from a few days to a few weeks)
during the growing season, but the water table usually lies well below the ground surface for most
of the season.
• Intermittently Flooded. The substrate is usually exposed, but surface water is present for variable
periods without detectable seasonal periodicity. Weeks, months, or even years may intervene
between periods of inundation. The dominant plant communities under this Water Regime may
change as soil moisture conditions change. Some areas exhibiting this Water Regime do not fall
within our definition of wetland because they do not have hydric soils or support hydrophytes.
This Water Regime is generally limited to the arid West.
• Artificially Flooded. The amount and duration of flooding are controlled by means of pumps or
siphons in combination with dikes, berms, or dams. The vegetation growing on these areas cannot
be considered a reliable indicator of Water Regime. Examples of Artificially Flooded wetlands
are some agricultural lands managed under a rice-soybean rotation, and wildlife management
areas where forests, crops, or pioneer plants may be flooded or dewatered to attract wetland
wildlife. Neither wetlands within or resulting from leakage from man-made impoundments, nor
irrigated pasture lands supplied by diversion ditches or artesian wells, are included under this
Modifier. The Artificially Flooded Water Regime Modifier should not be used for impoundments
or excavated wetlands unless both water inputs and outputs are controlled to achieve a specific
depth and duration of flooding.
For Riverine Intermittent features, the NWI restricts the Water Regime Modifiers to "Temporarily
Flooded," "Seasonally Flooded," and "Intermittently Flooded" which are identified by codes R4SBA
(Riverine, Intermittent, Streambed, Temporarily Flooded), R4SBC (Riverine, Intermittent, Streambed,
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Seasonally Flooded), and R4SBJ (Riverine, Intermittent, Streambed, Intermittently Flooded),
respectively.110
Neither the Cowardin Classification System nor the NWI were created to identify the flow regime of
rivers and streams (i.e., perennial, intermittent, or ephemeral). Nevertheless, the agencies have attempted
to distinguish intermittent and ephemeral streams within the Riverine Intermittent classification using the
Water Regime Modifiers given that they provide a description in general terms of riverine hydrologic
characteristics. "Temporarily Flooded" is defined as when surface water is present for brief periods (from
a few days to a few weeks) during the growing season, but the water table usually lies well below the
ground surface for most of the season (Cowardin et al., 1979; Federal Geographic Data Committee,
2013). "Intermittently Flooded" in NWI indicates that surface water is present for variable periods
without detectable seasonal periodicity, and that weeks, months, or even years may intervene between
periods of inundation (Id). The "Intermittently Flooded" Water Regime Modifier is "generally limited to
the arid West." (Id) "Seasonally Flooded" means that surface water is present for extended periods
(generally for more than a month) during the growing season, but is absent by the end of the growing
season in most years; when surface water is absent, the depth to substrate saturation may vary
considerably among sites and among years (Id.).
The agencies recognize that none of the Riverine Intermittent Water Regime Modifiers expressly
describes ephemeral features, but believe that the modifiers may serve as proximates for use in identifying
non-perennial flow regimes. Specifically, the agencies believe "Temporarily Flooded" (R4SBA) and
"Intermittently Flooded" (R4SBJ) categories may represent ephemeral streams, and the "Seasonally
Flooded" (R4SBC) category may represent intermittent streams. Photographs in Cowardin et al. (1979) of
"Intermittently Flooded" streams, for example, appear to be ephemeral, with the description of one of the
streams reading, "Streambeds such as this are common throughout the arid West. They carry water for
brief periods after snowmelt and following rainstorms which are irregular and unpredictable in
occurrence" (See id. at Plates 38 and 39). Based upon this interpretation, the agencies have used
streambed habitat mapped as R4SBA (Riverine, Intermittent, Streambed, Temporarily Flooded) and
R4SBJ (Riverine, Intermittent, Streambed, Intermittently Flooded) in the NWI as proximates for
ephemeral streams for the section 311 and 402 analyses in the following Case Studies. Note that not all
features are assigned a Water Regime Modifier.
The Corps does not use official Cowardin System Classification codes to identify ephemeral features for
the purposes of 404 permit ORM2 data entry. Rather, in June 2009, the Corps added a non-Cowardin
classification code "R6," entitled "Riverine, Ephemeral," to identify ephemeral aquatic resources.111 The
Corps created the R6 code to provide clarity to field staff when identifying ephemeral waters for entry
into the ORM2 database. Because the Corps' ORM2 database categorizes ephemeral features explicitly
using the R6 designation, the agencies used ORM2-identified R6 features to identify ephemeral streams
for the section 404 analyses within the Case Studies.
The agencies solicit comment regarding the assumptions and validity of the use of Cowardin
Classification System codes R4SBA and R4SBJ to identify ephemeral features for use in the Case Study
110 See https://www.fws.gov/wetlands/documents/NWI Water Regime Restriction Table.pdf.
111 See https://www.spa.usace.armv.mil/Portals/16/docs/civilworks/regulatorv/Bulk%20Upload/Bulk%20Data%20Cowardin.pdf.
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section 311 and section 402 analyses. More specifically, given the "Temporarily Flooded" category
includes streams where surface water may be present for "a few weeks," and the "Temporarily Flooded"
definition implies there may be times when the water table is above the ground surface, the agencies seek
comment whether waters identified as "Temporarily Flooded" would more appropriately be classified as
intermittent rather than ephemeral for purposes of the agencies' analyses. Additionally, the agencies seek
comment whether the "Temporarily Flooded" category covers both intermittent and ephemeral
streambeds and cannot be used to distinguish between the two for purposes of the agencies' analyses.
Finally, given the Corps ORM2 database does not parse out "Riverine Intermittent" (R4) codes into
ephemeral and intermittent features, but instead uses an entirely new "Riverine, Ephemeral" category
(R6) to identify ephemeral aquatic resources, the agencies solicit comment whether it is appropriate to
bifurcate the "Riverine Intermittent" subsystem into ephemeral and intermittent features for purposes of
the agencies' analyses.
As discussed in Section II.C, the high resolution NHD maps ephemeral streams for several basins in the
southwest region of the country, so for the Rio Grande Basin case study in Section IV.B.4, the agencies
also used the high-resolution NHD data to identify ephemeral streams potentially affected by the
regulated facilities.
Table IV-8 summarizes the criteria the agencies used to identify existing permits and plans that affect
waters anticipated to change jurisdictional status under the proposed rule.
Table IV-8: Criteria used to identify waters affected by CWA program activities that may change
jurisdictional status under the proposed rule
Basis for
Criterion
Baseline Status
Likely Status under Proposed
Determination
Definition
402 Impacts (based on feature analyzed as receiving the permitted discharge)
Based on NWI (Cowardin Code) of water feature
closest to outfall
Riverine1
R4SBA
Jurisdictional
Non-Jurisdictional
R4SBJ
Jurisdictional
Non-Jurisdictional
All Others
Jurisdictional
Jurisdictional (No change)
Non-tidal wetland
All
Varies (unable to determine
categorically)2
Varies (unable to determine
categorically)
Tidal wetland
All
Jurisdictional
Jurisdictional (No change)
404 impacts (based on affected aquatic resource requiring mitigation)
Based on ORM2 Name Field3
Stream
R6-Riverine, ephemeral4
Jurisdictional
Non-Jurisdictional5
Others - perennial flow
Jurisdictional
Jurisdictional (No change)
regimes
Others - intermittent flow
Jurisdictional
Varies (unable to determine
regimes
categorically)6
Others - Flow regime not
Jurisdictional
Varies (unable to determine
specified
categorically)6
Non-tidal wetland
All
Jurisdictional
Varies (unable to determine
categorically)6
Tidal wetland
All
Jurisdictional
Jurisdictional (No change)
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-8: Criteria used to identify waters affected by CWA program activities that may change
jurisdictional status under the proposed rule
Basis for
Determination
Criterion
Baseline Status
Likely Status under Proposed
Definition
Based on ORM2 Water Type Field
Wetland
RPWWN
Jurisdictional
Non-jurisdictional7
Based on Additional Information from NWI-NHD
Adjacency Analysis8
Non-tidal wetland
Not Abutting
Jurisdictional
Non-jurisdictional7
Abutting
Jurisdictional
Varies (unable to determine
categorically)5
311 Impacts (based on features located within half mile of the facility)
Based on NWI (Cowardin Code) of water features
within a half-mile of the facility
Riverine
R4SBA
Jurisdictional
Non-Jurisdictional
R4SBJ
Jurisdictional
Non-Jurisdictional
All Others
Jurisdictional
Jurisdictional (No change)
Non-tidal wetland
All
Varies (unable to determine
categorically)
Varies (unable to determine
categorically)
Tidal wetland
All
Jurisdictional
Jurisdictional (No change)
Based on high-resolution NHD where flow
attributes are available
Stream/river
Ephemeral
Jurisdictional
Non-Jurisdictional
All Others
Jurisdictional
Jurisdictional
1 The agencies have interpreted streambeds identified in the NWI with Cowardin codes R4SBA (Riverine, Intermittent,
Streambed, Temporarily Flooded) or R4SBJ (Riverine, Intermittent, Streambed, Intermittently Flooded) as ephemeral, and
streambeds with Cowardin code R4SBC (Riverine, Intermittent, Streambed, Seasonally Flooded) as intermittent.
2 The 402 permit information only provides outfall coordinates but does not identify the type of water receiving the discharge
or not it is considered a water of the United States. An outfall only needs to discharge to a feature that conveys to a water of
the United States.
3 All affected waters are "Jurisdictional" in the baseline since the database includes only issued 404 permits.
4 In June 2009, the Corps added a classification code to ORM2 - R6 (Riverine, Ephemeral) for ephemeral aquatic resources.
This code is used to document the presence of ephemeral streams. This is not a class in the Cowardin Classification System
but was added for Corps data entry purposes.
5 This category includes some wetlands that directly abut non-RPWS, including ephemeral streams. For purposes of this
analysis, the agencies assumed that all waters classified as R6 were non-wetland waters that would be excluded under the
proposed rule. Note that wetlands with ephemeral hydrology would not automatically be excluded under the proposed rule.
6 The agencies may be understating the impacts of the proposed rule for these waters since available data are not sufficiently
detailed to determine status categorically.
7 The agencies may be overstating the impacts of the proposed rule for these waters since some wetlands that are non-
abutting will still meet the proposed definition of adjacent if they have a direct hydrologic surface connection in a typical year,
but available data are not sufficiently detailed to determine how often this occurs.
8 Included only in the sensitivity analysis (see Appendix E). The primary analysis is based on ORM2 data only.
As noted in the rightmost column in Table IV-8, available data are not sufficiently detailed for some
waters to predict a change in jurisdictional status under the proposed rule. Because of this uncertainty, the
agencies focused the primary analysis detailed in this section on those permits and facilities that could be
identified with a high degree of certainty as affected by the proposed rule based on program data. The
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IV —Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
agencies also conducted a sensitivity analysis that includes a broader set of affected resources, notably
non-abutting wetlands identified based on the overlay of the high-resolution NHD data and NWI
wetlands. Appendix E provides the results of this sensitivity analysis.
IV.B.1.3 Costs and Environmental Effects of Jurisdictional Changes
The agencies then evaluated the impacts of these proposed changes on compliance costs, stream flows,
water quality, drinking water treatment, endangered and threatened species habitats, and other ecosystem
services. The agencies quantified and monetized the impacts where possible given the available data and
methods. Figure IV-9 illustrates the types of potential impacts resulting from changes in wetland and
stream CWA jurisdiction, permitted pollutant discharges, and spill prevention and preparedness.
Figure IV-9: Overview of potential environmental impacts to selected CWA programs from
proposed changes in CWA jurisdiction for certain waters.
CWA program Reduced CWA jurisdiction
404 Permits
and Mitigation
402 Permits
311SPCC/
FRP/Pipeline
Plans
Environmental
Effects
Dredging/ Reduced
Fill in wetland
streams habitats
Changes in
flow regimes
1
Greater
pollutant loads
Economic
impacts
Increased
flood risk
Reduced Downstream
ecosystem inundation
values damages
Degraded
aquatic
habitats
I
Reduced
ecosystem
values provided
by surface
waters
Greater Sediment
waterbody concentrations
impairments ancj deposition
Greater Greater
restoration drinking water
costs treatment and
dredging costs
Increased oil
spill risk
(frequency,
magnitude,
and reduced
response
effectiveness)
Affected
ecosystems
and drinking
water intakes
Greater spill
response cost;
damages
Note1 This figure assumes no state responses to changes in CWA jurisdiction. The analysis in Section li.A suggests that many
states will continue to regulate newly non-jurisdictional waters, thereby reducing any potential impacts from the changes in
CWA jurisdiction.
The proposed changes to CWA jurisdiction could have a wide range of impacts on the ecosystem services
provided by aquatic resources, including decline in wildlife habitat quantity and quality, downstream
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised 133
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
inundation damages, greater drinking water treatment and dredging costs, greater spill response cost and
damages. Impacts specific to each CWA program are briefly summarized below and assessed in more
detail in each case study.
• Pollutants discharged to surface waters are known to have negative impacts on human health,
wildlife habitat, and economic productivity. A change in scope of CWA jurisdiction could lead to
less stringent limits for point sources under section 402 if they discharge to newly non-
jurisdictional waterbodies.112 This could result in reduced protection for aquatic ecosystems and
public health and welfare. The value of forgone benefits under section 402 associated with a
potential increase in pollutant loadings from point sources depends on the specific pollutants
discharged (e.g., toxic vs. conventional), the type of ecosystems services provided by the affected
waterbodies (e.g., drinking water source, fishing area, aquatic habitat), presence of substitute
sites, and the public value of ecosystem services provided by water resources.
• Compensatory mitigation required under section 404 offsets unavoidable negative impacts on
wetlands and other aquatic resources from any dredging and filling projects. The anticipated
decrease in the number of section 404 permits or permittee obligations would reduce the required
compensatory mitigation. As a result, water quality in rivers, streams, and lakes may degrade as a
result of pollutant loading from newly non-jurisdictional waters; loss of wetlands and streams
without corresponding mitigation; or loss of impact reduction, minimization, and other
requirements previously provided under section 404 program. Water quality degradation may
adversely affect species habitat, costs of drinking water treatment and reservoir maintenance, as
well as human uses of downstream water resources (e.g., fishing). Loss of wetland area may also
increase downstream flood risk. To estimate flow and water quality changes downstream from
affected activities, the agencies developed a series of watershed models for analysis using the Soil
and Water Assessment Tool (SWAT) (Arnold et al., 2012, Neitsch et al., 2011). The SWAT
model projections capture the impacts of potential changes in wetland acres, including riparian
areas and wetlands abutting ephemeral streams and non-abutting wetlands, due to potentially
reduced mitigation requirements under the CWA section 404 program.
• Oil spills present a risk to ecological and human health. Less stringent regulatory requirements
for spill prevention and preparedness may lead to more frequent or larger oil spills and reduce the
effectiveness of immediate response actions following a spill (e.g., by delaying the response).
Several oil components are toxic to humans. Consequences of an oil discharge include direct
costs for cleanup and remediation and environmental damages such as loss of wildlife and
habitats. These damages depend on the type of oil, size of the spill, prevailing conditions and spill
circumstances, and affected environments.
The agencies solicit comment on all aspects of these case studies, including the assumptions of expected
state responses and data sources.
112 Discharges into non-jurisdictional waters will still be regulated if the discharges eventually flow to a jurisdictional water. In
such cases discharge limits may become less stringent if the increased distance to a jurisdictional water allows for
dissipation of some of the discharge.
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IV —Stage 2 Analysis: C.WA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
IV.B.2 Case Study 1: Ohio River Basin
This case study includes the middle portion of the Ohio River that runs along the border of Ohio.
Kentucky, and Indiana. The Middle Ohio and Kentucky-Licking watersheds stretch across several
ecoregions, primarily the Western Allegheny Plateau. Interior Plateau, and Eastern Com Belt Plains.
According to the Commission for Environmental Cooperation (CEC, 2011), these ecoregions are
characterized by a mid-latitude, humid climate with hot summers and mild to cold winters. Annual
precipitation ranges from 860 to 1470 mm (33.9 to 57.9 inches). Primary land uses include forests,
cropland, and coal mining, with some urban development.
Figure IV-10 and Figure V-10 show maps of the HUC 0509 and HUC 0510 case study watersheds,
respectively. Note that the outlet of watershed HUC 0510 flows into watershed HUC 0509, along with the
watersheds delineated by HUCs 0503, 0505, 0506, 0507, and 0508.
Figure IV-10: Map of HUC 0509 - Middle portion of the Ohio River Basin showing high-resolution
NHD water features and NWI wetlands in relation to state boundaries, populated areas, and major
roads.
aWestffl
[Cnestefj
I Islington]
Muncie
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highways
I I HUC4
H NHD Waterbody
H NHD Area
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0 12.5 25
o
N
NHD Flowlines
Perennial
Artificial Path
Intermittent
Ephemeral
1:1,500,000
Source: NHD, 2018; NWI, 2018; ESRI2018
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised 135
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IV —Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Figure IV-11: Map of HUC 0510-Licking and Kentucky River Basins showing high-resolution NHD
water features and NWI wetlands in relation to state boundaries, populated areas, and major
roads.
icinratij
^jjjgGovmgto^
NHD Flowlines
Perennial
Artificial Path
intermittent
Ephemeral
!e:
Legend
— highways
I I HUC4
NHD Waterbody
NHD Area
NWI_Sele ctedH U C4s
0 12.5 25
1:1,600,000
Source: NHD, 2018; NWI, 2018; ESRI2018
' /
IV.B.2.1 Aquatic Resources Characteristics
Table IV-9 summarizes the hydrography within the case study watersheds in tenns of the number of
stream miles in each flow category and acres of non-abutting and abutting wetlands (as discussed below)
as represented in the high resolution NHD and NWI data, respectively. As presented in the table, 54 to 62
percent of all stream miles within the two watersheds are either ephemeral or intermittent, and 19 percent
to 22 percent of all wetland acres are non-abutting (/. e., not touching or intersecting perennial,
intermittent, or ephemeral NHD streams).
The small number of miles of ephemeral streams within the two watersheds (none in HUC 0510 and
two miles in HUC 0509) is due to the lack of specific flow regime categorization in the high resolution
NHD data rather than the absence of such streams. Wetlands were estimated to be either abutting or non-
abutting based on analyzing the proximity of NWI wetland features to waters delineated in the high
resolution NHD. Chapter I in the Resources and Programmatic Assessment (Aquatic Resource Analysis)
describes the approach the agencies used to determine adjacency. As mentioned in Section II.C, these
estimates are only approximations and the agencies did not consider the data to be sufficiently accurate in
this region to analyze the potential impacts of the proposed regulation.
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-9: Hydrographic profile of case study watersheds in the Ohio River Basin
Feature
Feature
HUC 0509
HUC 0510
type
attributes
Miles or Acres
Percent of total
Miles or Acres
Percent of total
NHD
Total Mapped
38,277
100%
26,895
100%
Streams
Perennial
7,627
20%
6,917
26%
(miles)
Intermittent
20,548
54%
16,547
62%
Ephemeral
2
0%
-
0%
Artificial path
3,351
9%
3,389
13%
Other1
6,749
18%
42
0%
NWI
Total Mapped
53,316
100%
15,824
100%
Wetlands
Abutting
41,358
78%
12,793
81%
(acres)
Non-abutting
11,958
22%
3,031
19%
1 Includes canals/ditches, aqueducts, and other features without attributes.
The values are based on the agencies' geospatial analysis of NHD and NWI data and reflect gaps in NHD stream attributes.
IV.B.2.2 Program Changes
IV.B.2.2.1 Section 402
Table IV-10 presents the number of NPDES permits113 issued in the Ohio River Basin by the most
common industry categories. The number of permits issued in the two case study watersheds includes
914 individual permits and 2,441 general permits. As mentioned in Section II.C, the agencies judged the
NHD data as insufficient for estimating the jurisdictional status of waterways since the dataset does not
map most ephemeral streams or classifies those that are mapped as intermittent in the case study
watersheds.114 To estimate those permitted discharges that might be affected by the proposed rule, the
agencies relied on 402 permit locational information and the NWI data on the flow regime of the
receiving waters.115 The agencies used the Cowardin classification code (Cowardin etal. 1979; Federal
Geographic Data Committee, 2013) assigned to the NWI resource closest to the coordinates of permitted
outfalls to approximate the flow regime of the receiving waters. The Cowardin Classification System
subdivides waters, which include but are not limited to wetlands, into systems, subsystems, classes,
subclasses, and dominance types, and includes Water Regime Modifiers (seasonally flooded,
intermittently flooded, etc.) for classes and subclasses.
As further described in Section II.C, the NWI contains a Water Regime Modifier in the classification of
wetlands and deepwater habitats, which provides a description in general terms of hydrologic
characteristics. The agencies have interpreted streambeds identified in the NWI with Cowardin codes
113 Data on regulated facilities or activities subject to individual permits or general permits under the Section 402 program is
primarily from the EPA's Integrated Compliance Information System National Pollutant Discharge Elimination System
(ICIS-NPDES) database. ICIS-NPDES is an information management system maintained by the EPA's Office of
Compliance to track permit compliance and enforcement status of facilities regulated by the National Pollutant Discharge
Elimination System (NPDES) under the CWA. ICIS-NPDES data are available for download from EPA's Enforcement and
Compliance History Online website at https://echo.epa.gov/tools/data-downloads.
114 See the Resource and Programmatic Assessment for additional errors in the dataset.
115 The agencies used a two-step approach to identify 402 discharges to ephemeral streams. First, the agencies used NHD dataset
to determine whether receiving waters are perennial. Second, for non-perennial waters, the agencies used NWI data on the
flow regime to distinguish between intermittent and ephemeral streams.
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
R4SBA (Riverine, Intermittent, Streambed, Temporarily Flooded) or R4SBJ (Riverine, Intermittent,
Streambed, Intermittently Flooded) as ephemeral, and streambeds with Cowardin code R4SBC (Riverine,
Intermittent, Streambed, Seasonally Flooded) as intermittent. If the Cowardin classification code of the
receiving water was either R4SBA (Riverine, Intermittent, Streambed, Temporarily Flooded) or R4SBJ
(Riverine, Intermittent, Streambed, Intermittently Flooded), the agencies assumed the permitted discharge
to likely be to an ephemeral water.
Based on this analysis, all NPDES permits in the case study areas affect streams with permanent or
intermittent flow regimes. However, because the NHD data did not consistently distinguish between
intermittent and ephemeral streams and NWI data are also subject to limitations, some discharges may be
affecting ephemeral streams. See Section II.C for more details on data limitations.
Table IV-10: Section 402 individual permits (SIC codes in parentheses) issued in case study
watersheds in the Ohio River Basin
Individual Permits1
General Permits1
Industry category
Total
number
of NPDES
permits
Permits with discharge
point near ephemeral
streams2
Total
number
of NPDES
permits1
Permits with discharge
point near ephemeral
streams2
Number of
permits
Percent of
all permits
Number of
permits
Percent of
all permits
HUC 0509
Sewerage Systems
(4952)
156
0
0%
206
0
0%
Water Supply (4941)
28
0
0%
11
0
0%
Industrial Domestic
Wastewater Treatment3
55
0
0%
194
0
0%
Construction and
Development4
10
0
0%
282
0
0%
Other Categories5
253
0
0%
156
0
0%
Missing SIC Codes
11
0
0%
11
0
0%
Total
513
0
0%
860
0
0%
HUC 0510
Industrial Domestic
Wastewater Treatment3
115
0
0%
158
0
0%
Construction and
Development4
31
0
0%
743
0
0%
Asphalt Paving Mixtures
and Blocks (2951)
1
0
0%
25
0
0%
Sewerage Systems
(4952)
67
0
0%
0
0
0%
Other Categories5
187
0
0%
648
0
0%
Missing SIC Codes
0
0
-
7
0
0%
Total
401
0
0%
1,581
0
0%
Total, both watersheds
914
0
0%
2,441
0
0%
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-10: Section 402 individual permits (SIC codes in parentheses) issued in case study
watersheds in the Ohio River Basin
Individual Permits1
General Permits1
Industry category
Total
number
of NPDES
permits
Permits with discharge
point near ephemeral
streams2
Total
number
of NPDES
permits1
Permits with discharge
point near ephemeral
streams2
Number of
permits
Percent of
all permits
Number of
permits
Percent of
all permits
1Source: EPA's ICIS-NPDES data, 2017. The facility permits included in the spatial analysis are limited to those for which the
ICIS-NPDES database includes latitude/longitude coordinates. For permits with multiple SIC codes, only one SIC code was
retained, with manufacturing industries prioritized, to avoid double-counting.
2 The agencies used the Cowardin classification code in NWI to determine whether 402 discharges are likely to affect
ephemeral streams (i.e., the agencies interpreted Cowardin codes R4SBA and R4SBJ as ephemeral; see Section IV.B for
more detail).
3 Includes SIC Codes 6513, 6514, 6515, 7011, 7032, 7033, 8211, 8221, 8641, and 8661.
4 Includes SIC Codes 1629, 1794, 6552, 1611, 1799, 1521,1522, and 1623.
5 Includes multiple categories, such as Aggregate Mining (1422,1423,1429,1442,1446,1459,1474,1475,1481,1499),
Surface Coal Mining (1221,1222), Motor Vehicle Parts, Used (5015), Gasoline Service Stations (5541), Ready-Mixed
Concrete (3273), Scrap and Waste Materials (5093), Refuse Systems (4953), Petroleum Bulk Stations and Terminals (5171),
Electric Services (4911), Animal Feeding Operations (211, 212, 213, 214, 219, 241, 251, 252, 253, 254, 259, 271, 272, 279),
Industrial Organic Chemicals (2869), Trucking Facilities (4212, 4231), Sawmills and Planning Mills (2421), Farm Supplies
(5191), and Civic, Social, and Fraternal Associations (8641).
NPDES permits in the case study area were issued in three states in HUC 0509 (Kentucky, Ohio, and
West Virginia) and one state in HUC 0510 (Kentucky). Based on potential state responses and different
analytic scenarios described in Section II.A.3, Ohio and West Virginia are expected to regulate 402
permitted discharges to waters beyond the CWA under Scenarios 1, 2 and 3, while Kentucky is not
anticipated to regulate 402 discharges to waters beyond the CWA under any scenarios. This means under
all federalism scenarios in the Ohio River Basin, only Kentucky may experience any regulatory changes
due to a change in CWA jurisdiction. Therefore, even if some of the 402 permits may affect ephemeral
streams, these discharges will be regulated in two of the three states where case study watersheds are
located.
Given that none of the 402 permits in HUC 0509 and HUC 0510 are likely to be affected by the proposed
rule, the agencies do not anticipate potential reduction in treatment costs and corresponding increases in
loading to receiving waters, nor the potential costs for the NPDES authority that may arise from
recalculating permitted limits116 to account for dilution.
IV.B.2.2.2 Section 404
The agencies relied on the Army Corps of Engineers' ORM2 database to identify 404 permits affecting
waters that may no longer be jurisdictional under the proposed rule. For each permit, the ORM2 database
116 Several of the common industry categories in the Ohio River Basin have technology-based effluent limitations (TBELs),
including construction and development, sewage systems (secondary), and asphalt paving mixtures and blocks. The
industrial domestic wastewater treatment and water supply industries do not have national TBELs. For facilities in these two
industry categories, effluent limitations are either water quality-based (WQBELs) for pollutants with applicable water
quality standards, orTBELs based on the best professional judgement of the permit writer (U.S. EPA; 2011).
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
provides information about affected waters, permanent and temporary impacts, and mitigation
requirements. Under the proposed rule, ephemeral streams and wetlands that are adjacent to but that do
not directly abut relatively permanent waters will likely no longer be jurisdictional under the CWA. The
agencies identified permits affecting these waters using the following methodology:
1) Ephemeral streams: The Cowardin classes field in the Corps' ORM2 database includes
information about river/stream type (perennial, intermittent, or ephemeral). The agencies
classified any stream with a "Riverine, Ephemeral" (R6) class as an ephemeral stream. Whenever
the Cowardin code field did not specify stream type, the agencies assumed that the stream would
remain jurisdictional under the proposed rule, which could possibly result in an underestimation
of potentially affected waters.
2) Wetlands adjacent to but not directly abutting permanent waters: The agencies used the water
type field in the Corps' ORM2 database to select wetlands with a RPWWN water type. The
RPWWN water type identifies wetlands that are adjacent to but do not directly abut relatively
permanent waters.
The agencies consider recent section 404 permitted activity to be the best predicter of the future location
and type of activities potentially subject to section 404 permitting. Table IV-11 summarizes section 404
permits issued in 2011-2015 within the two selected watersheds of the Ohio River Basin. The table
includes permits that required mitigation and potentially affected ephemeral streams or wetlands adjacent
to but not directly abutting permanent waters. As presented in the table, the agencies' geospatial analysis
shows 55 permits in HUC 0509 and 38 permits in HUC 0510 issued by the Corps with impacts that
required mitigation on waters potentially affected by the proposed "waters of the United States"
definitional changes. Permanent impacts resulting from 404 permits included annual averages of 2.9 acres
and 18,466 linear feet in HUC 0509 and l.Oacreand 12,458 linear feet in HUC 0510. Most permit
impacts occurred in Ohio and Kentucky for this case study. Ohio is likely to regulate waters beyond the
CWA (i.e.. impacts excluded in Scenarios 1, 2, and 3) according to the assumptions previously stated.
Kentucky is assumed to be less likely to regulate waters that are no longer jurisdictional under the CWA
(i.e.. impacts included in all three scenarios).
Table IV-11: Section 404 permits issued in case study watersheds in the Ohio River Basin (2011-
2015)
State
#
Permitted
Projects
# Permits with mitigation
requirements potentially
affected by proposed
change in definition of
"waters of the United
States"1'2
Permanent impacts
Average Temporary
impacts
Acres
Length Feet
Acres
Length Feet
HUC 0509
IN
101
10
0.00
0
0.55
0
KY
226
15
4.54
41,122
0.00
0
OH
351
30
9.76
51,209
0.19
3,009
WV
141
0
0.00
0
0.00
0
Total
819
55
14.30
92,331
0.74
3,009
Avg. per
year
164
11
2.86
18,466
0.15
602
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-11: Section 404 permits issued in case study watersheds in the Ohio River Basin (2011-
2015)
State
#
Permitted
Projects
# Permits with mitigation
requirements potentially
affected by proposed
change in definition of
"waters of the United
States"1'2
Permanent impacts
Average Temporary
impacts
Acres
Length Feet
Acres
Length Feet
HUC 0510
KY
967
38
5.13
62,288
0.04
2,261
Total
967
38
5.13
62288
0.04
2,261
Avg. per
year
193
8
1.03
12,458
0.01
452
1 Values based on permits with mitigation requirements on waterways determined to be RPWWN-type wetlands or
ephemeral streams. Excludes permits issued for mitigation or restoration activities because the main purpose of these
activities is to restore or enhance ecosystem services provided by water resources as opposed to dredge and fill activities
that lead to permanent or temporary losses of ecosystem services.
2 Number of permits includes permits with mitigation requirements that affect at least one water determined likely to no
longer jurisdictional under the CWA underthe proposed rule.
The 404 program has an explicit national policy of "no net loss" in wetlands and other aquatic resources.
Mitigation is designed to compensate for the loss of wetlands and other aquatic resources by providing
equivalent ecosystem functions and services. As such, the agencies assumed that any mitigation is by
definition functionally equivalent to the impact it is meant to compensate, though recognize that
functional equivalence may not always occur on a case-by-case basis for all mitigated impacts. The
agencies therefore use total permanent impacts, rather than total acres of mitigation, to estimate
reductions in mitigation requirements from the proposed CWA jurisdiction definitional changes. Table
IV-12 presents expected reductions in average annual mitigation requirements in the two selected Ohio
River Basin watersheds under different likely state response scenarios following the proposed "waters of
the United States" definitional changes.
To estimate the expected reduction in mitigation requirements in the case study area, the agencies used
estimated permanent impacts and the U.S. Army Corps of Engineers (USACE) guidance on the ratio for
compensatory mitigation for Category III wetlands (U.S. Army Corps of Engineers 2014). Category III
wetlands are defined as not rare or unique and usually plentiful in the watershed. The recommended
compensatory ratios for Category III wetlands range from less than 1:1 to 1.5:1. This analysis uses a 1:1
ratio.117
As shown in Table IV-11 and Table IV-12, mitigation is also required for streams (linear feet). For
streams, mitigation requirements include establishment of a riparian buffer for runoff treatment, reduction
of nutrient loading from adjacent land uses, and reduction of stream temperature. Requirements for the
117 The agencies validated this assumption using ORM2 data on about 4000 projects where the relationship between impacted
acres and required mitigation acres could be isolated. This analysis excludes any projects where impacts or mitigation
included linear feet values and projects where some or all of the mitigation used credits or in-lieu fees. Based on the
statistical analysis of these data, the most frequently observed mitigation ratio (the mode of the distribution) is 1:1 and
median ratio is 1:5: 1.
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
riparian buffer width vary from state to state. The state of Ohio requires a minimum buffer width of 50
feet on each side of the stream, while West Virginia uses a site-specific assessment and Kentucky does
not provide a specific guidance on the buffer width (ELI 2016). To estimate the expected average
reduction in riparian area mitigation, the agencies assumed that buffer establishment requirements for
ephemeral streams would be lower compared to the minimum requirements in Ohio since these
requirements do not distinguish among different stream types.118 Based on the minimum buffer zone
requirements specific to ephemeral streams from other states, the agencies assumed that a 25 feet buffer
zone would be required on each side of the stream. The agencies used the 50-foot buffer (25 feet on each
side) assumption to convert linear feet mitigation requirements provided in the Corps' ORM2 database to
riparian acres.
Mitigation may also be required to compensate for temporary impacts (see Table IV-11). The mitigation
is expected to be permanent even where the impacts are not; therefore, the reliance on permanent impacts
only as proxy for estimating forgone mitigation may understate the potential changes under the proposed
rule. This underestimation is likely be small since temporary impacts account for less than five percent of
total impacts in both HUC 0509 and HUC 0510.
The agencies also note that the estimated reduction in average mitigation requirements per year are based
on 404 permits issued in 2011-2015 and therefore may not be representative of future impacts on water
resources or mitigation requirements. Section IV.B.5 provides more detailed discussion of uncertainty
inherent in this analysis.
Table IV-12: Estimated changes in average mitigation required per year in the Ohio River Basin,
by policy scenario
State
Expected Reduction in Average
Mitigation Acres per Year1
Expected Reduction in Average
Mitigation Length Feet per
Year1
Expected Reduction in Average
Mitigation Riparian Acres per
Year1'3
Scenario
0
Scenario
1
Scenarios
2 & 32
Scenario
0
Scenario
1
Scenarios
2 & 32
Scenario
0
Scenario
1
Scenarios
2 & 32
HUC 0509
IN
0.0
0.0
0.0
0
0
0
0.0
0.0
0.0
KY
0.9
0.9
0.9
8,224
8,224
8,224
9.4
9.4
9.4
OH
2.0
0.0
0.0
10,242
0
0
11.8
0.0
0.0
Total
2.9
0.9
0.9
18,466
8,224
8,224
21.2
9.4
9.4
HUC 0510
KY
1.0
1.0
1.0
12,458
12,458
12,458
14.3
14.3
14.3
Total
1.0
1.0
1.0
12,458
12,458
12,458
14.3
14.3
14.3
1 Values based on permits with mitigation requirements on waterways determined to be RPWWN-type wetlands or
ephemeral streams. Excludes permits issued for mitigation or restoration activities because these permits do not result in the
loss of ecosystems services provided by wetlands and streams. Permanent acre and linear feet impacts provided in the ORM2
118 There is no consensus among scientists whether areas adjacent to ephemeral streams/rivers as should be called riparian (called
xeroriparian). The main argument for including areas adjacent to ephemeral streams/rivers, in the definition of riparian areas
is that these areas have "many" of the characteristic ecological functions performed by true riparian areas adjacent to
perennial (called hydroriparian) and intermittent (called mesoriparian) streams. The counter argument is that xeroriparian
areas do not provide a full spectrum ecological function performed by riparian areas adjacent to perennial and intermittent
streams (Zaimes et al. 2007). In this report, the agencies refer to the areas adjacent to ephemeral streams as "riparian."
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-12: Estimated changes in average mitigation required per year in the Ohio River Basin,
by policy scenario
State
Expected Reduction in Average
Mitigation Acres per Year1
Expected Reduction in Average
Mitigation Length Feet per
Year1
Expected Reduction in Average
Mitigation Riparian Acres per
Year13
Scenario
0
Scenario
1
Scenarios
2 & 32
Scenario
0
Scenario
1
Scenarios
2 & 32
Scenario
0
Scenario
1
Scenarios
2 & 32
database are used to estimate mitigation requirements. The agencies assumed a 1:1 ratio for compensatory requirements
based on the USACE guidance (U.S. Army Corps of Engineers 2014).
2 Scenarios 2 and 3 are combined because all values are identical.
3 Based on mitigation lengths where impacts in linear feet are converted to acres by multiplying total linear feet by an average
total buffer width of 50 feet (25 feet on each side of the stream) and converting square feet to acres.
IV.B.2.2.2.1 Cost Savings
The proposed definitional changes could result in cost savings in two ways:
1) Reduced permit costs, including application costs, permitting time costs, and impact avoidance
and minimization costs, for projects no longer affecting waters regulated under the CWA, and
2) Reduced compensatory mitigation costs when impacts occur on waters no longer regulated under
the CWA.
To estimate potential permit cost savings, the agencies determined the average number of individual and
general 404 permits issued each year, based on permits issued from 2011 to 2015, that potentially affect
only waters that would no longer be regulated as "waters of the United States" under the proposed rule.
The number of permits considered in the permit cost analysis may differ from the number considered in
the mitigation cost analysis. The permit cost analysis considers 404 permits that potentially affect only
waters that would no longer be jurisdictional under the CWA under the proposed rule. These permits may
or may not have mitigation requirements. Any permits affecting both waters likely to remain
jurisdictional and waters likely to no longer be jurisdictional under the proposed rule are not considered in
the cost savings analysis. The mitigation cost analysis considers permits with mitigation requirements that
potentially affect at least one water likely to no longer be jurisdictional under the proposed rule, excluding
permits issued for mitigation or restoration activities.
As described earlier, the agencies derived water classifications using the Corps' ORM2 404 permit
database to determine whether a permit affected only waters that would no longer be jurisdictional under
the proposed rule (e.g., ephemeral streams, wetlands with a RPWWN water type). The agencies then
multiplied the annual average number of reduced individual and general 404 permits by lower bound
Corps estimates of permit costs (U.S. EPA and Department of the Army, 2015).
The Corps estimated 404 permit application costs to calculate incremental permit application costs
associated with the replacement of Nationwide Permit 26 (NWP 26) with a suite of new and modified
nationwide permits in the year 2000 (U.S. EPA and Department of the Army, 2015). The Corps analysis
notes that the costs were developed for "typical" projects affecting up to three acres of jurisdictional
waters. The agencies are only considering permit application cost savings for permits solely affecting
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
waters affected by the proposed rule. The impacts of these permits are less than "typical" on average.119
The agencies thus used the lower bound estimate of the Corps' permit application cost range. Table IV-13
shows the average number of estimated reduced individual and general 404 permits, Corps unit
application costs, and the estimated reduction in permit applications costs for individual and general
permits in the Ohio River Basin under each scenario. The Corps unit costs estimates ($14,700 per
individual permit; $4,400 per general permit) are adjusted from 1999$ to 2017$ using the CPI-U.
Permits affecting only RPWWN-type wetlands and ephemeral streams were issued in four states in HUC
0509 (Indiana, Kentucky, Ohio, and West Virginia) and one state in HUC 0510 (Kentucky). Under
Scenario 0, the average annual reduction in 404 permit application costs for the Ohio River Basin is
approximately $0.41 million. Under Scenario 1, which includes permit reductions in Kentucky and West
Virginia, permit cost savings drop to $0.32 million. Under Scenarios 2 and 3, which include permit
reductions in Kentucky only, permit cost savings drop to $0.31 million.
Table IV-13: Average annual reduction in 404 permit application costs in the Ohio River Basin
Permit
Type
Unit
Costs
from
Corps
NWP
Analysis
(2017$)
Scenario 01
Scenario l1
Scenarios 2 & 31,2
Annual
Average
Reduction in
Permits with
Proposed
Rule
Estimated
Reduction
in Permit
Costs
(millions
2017$)
Annual
Average
Reduction
in Permits
with
Proposed
Rule
Estimated
Reduction
in Permits
Costs
(millions
2017$)
Annual
Average
Reduction
in Permit
with
Proposed
Rule
Estimated
Reduction
in Permit
Costs
(millions
2017$)
HUC 0509
IP
$14,700
0.0
$0.00
0.0
$0.00
0.0
$0.00
GP
$4,400
32.4
$0.14
14.0
$0.06
11.4
$0.05
Total
32.4
$0.14
14.0
$0.06
11.4
$0.05
HUC 0510
IP
$14,700
0.0
$0.00
0.0
$0.00
0.0
$0.00
GP
$4,400
59.8
$0.26
59.8
$0.26
59.8
$0.26
Total
59.8
$0.26
59.8
$0.26
59.8
$0.26
Both Watersheds
IP
0.0
$0.00
0.0
$0.00
0.0
$0.00
GP
92.2
$0.41
73.8
$0.32
71.2
$0.31
Total
92.2
$0.41
73.8
$0.32
71.2
$0.31
1 Includes permits estimated to only affect waters no longer jurisdictional under the CWA under the proposed rule.
2 Scenarios 2 and 3 are combined because all values are identical.
To estimate annual cost savings from reduced mitigation requirements, the agencies multiplied the cost of
each mitigation acre or linear foot (low and high estimates) by the expected reduction in annual mitigation
requirements (Table IV-12), and summed the acreage and linear feet values for each scenario. The Corps
estimated state-specific per-acre costs of wetland mitigation and per linear foot estimates of stream
119 On average, 404 permits issued between years 2011 and 2015 on freshwater resources had 0.25 permanent impact acres.
During the same timeframe, permits solely impacting waters affected by the proposed rule had 0.15 permanent impact acres.
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mitigation by examining published studies and survey results, making phone inquiries to Corps Districts
and mitigation banks, and researching web sites (U.S. EPA and Department of the Army, 2015). A team
of Corps experts developed a range of values for each state. Costs for mitigation in estuarine
environments, whose jurisdictional status will not be affected by this rule, are not included where
explicitly identified by mitigation bank and in-lieu fee program fee schedules. Mitigation costs for each
state vary widely. Costs vary based on land acquisition costs, the nature of the work being done, demand
for mitigation in the state, as well as other factors. The unit costs identified here, based on mitigation bank
and in-lieu-fee program fee schedules represent fully-loaded unit costs and include the costs of land
acquisition, construction work completed on site, monitoring for mitigation success, and long-term
stewardship. In some cases, permittees may not purchase credits from a mitigation bank but rather
complete a permittee-responsible mitigation project. The costs of this permittee-responsible mitigation
project may be lower than the purchase of credits, particularly in circumstances where a mitigation project
is constructed on the same tract of land as the permitted impacts. In this circumstance new land would not
have to be acquired, lowering the costs of the project. Therefore, the Corps' mitigation costs estimates
may be an overestimate (U.S. EPA and Department of the Army, 2015).
Table IV-14 provides annual cost savings estimates from reduced mitigation requirements in the Ohio
River Basin under different policy scenarios. The annual cost savings from reduced mitigation
requirements for HUC 0509 vary by scenario to account for potential state responses to the proposed
definitional change. Since Kentucky is not expected to regulate waters above the federal level, the annual
mitigation cost savings for HUC 0510 remain consistent across all scenarios. Annual mitigation cost
savings for the Ohio River Basin under Scenario 0 range from a low of $8.18 million to a high of $30.18
million. Under Scenarios 1, 2, and 3, annual mitigation cost savings range from a low of $6.42 million to
a high of $15.93 million.
Table IV-14: Annual cost savings (2017$) of reduced mitigation requirements in the Ohio River
Basin resulting from the proposed definitional change, by policy scenario
Cost Per Acre
(2017$)
Cost Per Linear
Scenario 01
Scenario l1
Scenarios 2 & 31'2
State
Foot
(2017$)
(Millions 2017$)
(Millions 2017$)
(Millions 2017$)
Low
High
Low
High
Low
High
Low
High
Low
High
HUC 0509
IN
$50,000
$71,000
$294
$636
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
KY
$110,016
$165,024
$300
$755
$2.57
$6.36
$2.57
$6.36
$2.57
$6.36
OH
$37,500
$216,000
$165
$1,350
$1.76
$14.25
$0.00
$0.00
$0.00
$0.00
Total
-
-
-
-
$4.33
$20.61
$2.57
$6.36
$2.57
$6.36
HUC 0510
KY
$110,016
$165,024
$300
$755
$3.85
$9.57
$3.85
$9.57
$3.85
$9.57
Total
-
-
-
-
$3.85
$9.57
$3.85
$9.57
$3.85
$9.57
Both Watersheds
Total
-
-
-
-
$8.18
$30.18
$6.42
$15.93
$6.42
$15.93
1 Estimated changes in average mitigation required per year are presented in Table IV-12. For each state, cost savings are
calculated by multiplying the cost of each mitigation acre or linear foot (low and high estimates) by the expected reduction
in annual mitigation requirements, and summing the acreage and linear feet values for each scenario.
2 Scenarios 2 and 3 are combined because all values are identical.
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-15 provides total annual 404 program cost savings120 in the Ohio River Basin resulting from the
proposed rule, under each policy scenario. Total costs savings combine the estimated reduction in permit
costs and mitigation requirements. Under Scenario 0, estimated cost savings range from a low of
$8.59 million to a high of $30.59 million annually. Under Scenario 1, which includes cost savings in
Kentucky and West Virginia, the total estimate cost savings range from $6.74 million to $16.26 million
annually. Under Scenarios 2 and 3, which only include cost savings in Kentucky, total estimated cost
savings are similar to those under Scenario 1 and range from alow of $6.73 million and a high of $16.25
million annually. These estimates are subject to uncertainty discussion in Section IV.B.5. The sources of
uncertainty come from data limitations and as well as parameter uncertainty used as input in this analysis
(e.g., the ratio used for estimating for compensatory mitigation and per unit mitigation costs).
Table IV-15: Total estimated annual cost savings in the Ohio River
Basin (Millions 2017$)
HUC
Scenario 01
Scenario l1
Scenario 2 & 31,2
Low
High
Low
High
Low
High
05093
$4.47
$20.75
$2.63
$6.42
$2.62
$6.41
05103
$4.11
$9.84
$4.11
$9.84
$4.11
$9.84
Total
$8.59
$30.59
$6.74
$16.26
$6.73
$16.25
1The total estimated cost savings is equal to the sum of reduction in application costs
and the reduction in mitigation costs.
2Scenarios 2 and 3 are combined because all values are identical.
3 For HUC 0509, Scenario 0 includes cost savings in Indiana, Kentucky, Ohio, and West
Virginia. Scenario 1 includes cost savings in Kentucky and West Virginia. Scenario 3
includes cost savings in Kentucky only. For HUC 0510, cost savings remain constant
across all scenarios since all permits are issued in Kentucky, a state that is not likely to
regulate waters above federal requirements.
IV.B.2.2.2.2 Forgone Benefits
Reductions in mitigation requirements from the proposed change in CWA jurisdiction would result in
forgone benefits. Without mitigation requirements on certain waters, the agencies anticipate a decline in
total non-abutting wetland acreage, ephemeral stream miles and the riparian areas associated with
ephemeral streams. The decline in water resources would result in a decline in the services that these
resources provide, including fauna and flora support, flood control, water filtration, and recreation.
Section IV.B.2.3.4 provides more detail on ecosystem services provided by affected resources.
To estimate the forgone benefit value of lost mitigation acres, the agencies used a benefit transfer value
from Blomquist and Whitehead (1998), who used survey responses to calculate household WTP values
for preserving four types of wetlands (i.e., freshwater marsh, temporarily, seasonally, and permanently
flooded bottomland hardwood forest) in the Western Kentucky coal field region. Because the Blomquist
and Whitehead (1998) study was conducted in the same geographic area the resources valued in the
original study are representative of the wetland types found in the case study area. The NWI wetlands
mapper indicates that both "forested and shrub wetlands" and "freshwater emergent wetlands" are
120 The total estimated cost savings equal the sum of reduction in applications costs and reduction in mitigation costs.
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
dominant in the Ohio River Basin case study area (U.S. FWS, 2018). Within the Ohio River Basin,
forested wetlands provide ecosystem services similar to those valued in the original study, including
hydrologic, biogeochemical, and ecological water management services and enhance habitats for several
different species (University of California Association of Natural Resource Extension Professionals,
2014).
The agencies calculated per acre estimates for the four different wetland types by dividing the WTP
values by 500, the number of acres respondents were told to value in the survey. The agencies used the
minimum and maximum WTP values for the four types of wetlands to derive low ($0.006/acre) and high
($0.038/acre) per acre WTP values, respectively. As noted above, the agencies estimated the total wetland
and riparian area lost due to reduced mitigation requirements by (1) multiplying linear feet values
provided in the ORM2 database by an average total buffer width of 50 feet (25 feet on each side of the
stream) and converting square feet to acres and (2) adding this value to the estimated annual loss of
wetland acreage obtained from the ORM2 database based on mitigated impacts for relevant permits. The
agencies then estimated annual forgone benefits by multiplying per acre WTP estimates by the total
annual number of impact acres (sum of wetland acres and linear feet converted to acres) potentially
affected by the proposed rule and the number of households that value required mitigation.
To determine the number of households that value the required mitigation, the agencies applied a similar
methodology to the one used in Blomquist and Whitehead (1998). The survey population included all
Kentucky households as well as households in four cities outside of, but bordering, western Kentucky:
Evansville, IN; Clarksville, TN; Carbondale, IL; and Cape Girardeau, MO. Following Blomquist and
Whitehead (1998), the agencies applied the household WTP value to all households in the watershed's
primary state (Ohio for HUC 0509; Kentucky for HUC 0510) as well as households in areas adjacent to
the watershed (Figure IV-12; Figure IV-13). Given that future location of 404 impacts is uncertain, the
agencies used population in all counties within the affected watershed and counties adjacent to the
watershed to determine potentially affected population residing outside of Kansas where the majority of
404 impacts occurred between 2011-2015.
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IV —Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Figure IV-12: Locations of households included in the forgone benefits analysis for HUC 0509.
Indiana
A
Ohio
Franklin
Decatu
arbor
Ripley
Boone Campbell
Ohio
switzeriand
Pendlet
Putnam
Greenup
Grant
Lewis
Fleming TV ) carter Boyd
abeii West Virginia
r
Carroll
Lincoln
L y Rowan
. L vj j v wayne
/Rowanr?
Elliott ,
vi. J Lawrence
Morgan rW
Kentucky
HUC 0509
Adjacent Counties
Ohio (Primary State)
Mingo Logan
60 Miles
0 15 30
1 h
Figure IV-13: Locations of households included in the forgone benefits analysis for HUC 0510.
Indiana
West Virginia
Kentucky
HUC 0510
Adjacent Counties
Kentucky (Primary State)
Virginia
wise
0 15 30
60 Miles
The agencies calculated an annualized forgone benefit value based on forgone benefits from 2020 to 2039
(Eq. IV-1):
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IV Stage 2 Analysis: CWA jurisdictional Change from Pre-2015 Practice to the Proposed Rule
T=2020
2039
WTP —
vv 1 r Annualized
HWTPy X HHy
i x (1 + i)n
Eq. IV-1
(1 + i)y"2017
(1 + i)n+1 - 1
Where:
WTP Annualized = Annualized forgone benefit value in 2017 dollars
HWTPy = Annual household WTP in Start Year dollars for the required mitigation in year (Y)
To estimate the number of affected households in future years, the agencies used projected population
changes from 2015 to 2040 (Kentucky State Data Center, 2016; Ohio Development Services Agency,
2018; University of Virginia, 2017; West Virginia University, 2014) divided by the average number of
people per household (U.S. Census Bureau, 2015).
Table IV-16 and Table IV-17 provide estimated annualized forgone benefits from lost mitigation
requirements in the Ohio River Basin under different state response scenarios, with three percent and
seven percent discount rates, respectively. HUC 0509 includes mitigation requirements in Kentucky,
Ohio, and Indiana. Scenario 0 includes mitigation requirements in all three states. Under Scenarios 1, 2,
and 3, only mitigation requirements in Kentucky are included. All mitigation requirements in HUC 0510
occur in Kentucky, which is not expected to regulate waters above the federal level under any scenarios.
The estimated forgone benefits for HUC 0510 thus remain the same under all scenarios. Annualized
forgone benefits for the Ohio River Basin under Scenario 0 range from a low of $ 0.50 million to a high
of $4.52 million, while the total present value (TPV) of forgone benefits during the 2020-2039 study
period ranges from $10.06 million to $90.47 million. For Scenarios 1, 2, and 3, annualized forgone
benefits range from a low of $0.27 million to a high of $2.44 million, and TPV ranges from $5.43 million
to $48.89 million. Similar to the estimates of avoided costs, these estimates are subject to uncertainty and
limitations that are discussed in Section IV.B.5 of this report.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 149
HHy
n
T
Number of affected households in year (Y)
Year when benefits are realized
Discount rate (3 percent)
Number of periods for annualization (20 years for this analysis)
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-16: Annualized forgone benefits (Millions 2017$) of lost mitigation requirements in the
Ohio River Basin resulting from the proposed definitional change, by policy scenario (3%
Discount Rate)
HUC
# Affected
Scenario 01
Scenario l1
Scenarios 2 & 31,2
Households in
High
High
High
20203
Low
Low
Low
0509
5,170,870
$0.55
$3.65
$0.24
$1.57
$0.24
$1.57
0510
1,866,005
$0.13
$0.88
$0.13
$0.88
$0.13
$0.88
Total
7,036,875
$0.68
$4.52
$0.37
$2.44
$0.37
$2.44
1 Estimated changes in average mitigation required per year are presented in Table IV-12. Forgone benefits are calculated for
each scenario by multiplying total forgone mitigation values for each scenario (sum of acres and linear feet converted into
acres) by the total number of affected households and the appropriate household WTP value (low: $0.006/acre; high:
$0.038/acre). The agencies calculated forgone benefits for the years 2020-2039 and annualized values using a 3% discount
rate.
2 Scenarios 2 and 3 are combined because all values are identical.
3 The agencies accounted for population growth and change in the number of households throughout the 2020-2039 study
period.
Table IV-17: Annualized forgone benefits (Millions 2017$) of lost mitigation requirements in the
Ohio River Basin resulting from the proposed definitional change, by policy scenario (7%
Discount Rate)
HUC
# Affected
Scenario 01
Scenario l1
Scenarios 2 & 31,2
Households in
High
High
High
20203
Low
Low
Low
0509
5,170,870
$0.41
$2.70
$0.17
$1.16
$0.17
$1.16
0510
1,866,005
$0.10
$0.64
$0.10
$0.64
$0.10
$0.64
Total
7,036,875
$0.50
$3.34
$0.27
$1.80
$0.27
$1.80
1 Estimated changes in average mitigation required per year are presented in Table IV-12. Forgone benefits are calculated for
each scenario by multiplying total forgone mitigation values for each scenario (sum of acres and linear feet converted into
acres) by the total number of affected households and the appropriate household WTP value (low: $0.006/acre; high:
$0.038/acre). The agencies calculated forgone benefits for the years 2020-2039 and annualized values using a 7% discount
rate.
2 Scenarios 2 and 3 are combined because all values are identical.
3 The agencies accounted for population growth and change in the number of households throughout the 2020-2039 study
period.
IV.B.2.2.3 Section 311
The Middle Ohio watershed (HUC 0509) includes a total of 32 FRP facilities across Indiana, Kentucky,
Ohio, and West Virginia according to geospatial analysis of the EPA's internal database of FRP facilities.
As noted in section II.C, the high resolution NHD data are not sufficiently complete or detailed in many
parts of the United States to identify ephemeral streams that may change jurisdictional status under the
proposed rule. These limitations apply to the watersheds in the Ohio River basin, as the high-resolution
NHD data do not differentiate ephemeral streams in this region. For this reason, and since planning
requirements consider proximity to any jurisdictional waters or wetlands as one factor in determining
FRP applicability to a given facility, the agencies used the presence of perennial waters and wetlands
abutting those waters as indication that FRP plan owners would reach the same FRP applicability
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
determination under the proposed rule, i.e., the proposed rule would have no impact on section 311
applicability to these facilities.
Of the total of 32 FRP planholders in the Middle Ohio watershed, the agencies found 30 FRP facilities
with at least one perennial stream within a half-mile of the facility. The remaining two facilities are
located in proximity to a wetland whose Cowardin codes indicate a perennial flow regime. Thus, the
planholders would likely reach the same FRP applicability determination when assessing their facility's
potential for a discharge to waters of the United States under the proposed rule given the proximity to
waters within CWA jurisdiction within the planning distance.
There are six FRP facilities in the Kentucky-Licking watershed (HUC 0510), all in Kentucky. The
geospatial analysis shows that all six facilities are located in close proximity to perennial streams (within
a half-mile) as mapped in the high resolution NHD, in addition to also having other streams and wetlands
in proximity. The presence of jurisdictional waters within the half-mile planning distance of the facilities
suggests that the FRP determination would remain the same under the proposed rule even if some other
waters within this radius become non-jurisdictional.
As described in Section IV.A.3, changes in the jurisdictional status of certain streams and wetlands may
lead owners of some oil handling facilities to conclude that they do not pose a reasonable potential for a
discharge of oil to waters of the United States. The agencies do not have sufficiently detailed information,
such as facility coordinates, about facilities that prepared and maintain SPCC plans in the Ohio River
watersheds to assess the potential impacts of the proposed rule on the universe of regulated facilities in
the two case study watersheds.
Neither Indiana, Ohio, nor West Virginia have state-specific requirements for spill plans. Kentucky has
established state-specific requirements for oil and gas facilities under 401.KAR.5:090, Control ofWater
Pollution from Oil and Gas Facilities. The state requirements specify that operators must develop and
implement SPCC Plans "when required under 40 CFR part 112." (emphasis added) Therefore, to the
extent that some SPCC planholders forgo implementing the prevention measures required under SPCC,
the risk of spills to ephemeral streams and other non-jurisdictional waters may increase.
Historical spill data provide limited illustration of the potential impacts. Between 2001 and 2017, EPA
FOSCs oversaw responses to 31 oil spills affecting waters within the two case study watersheds. The
resources affected in these incidents range from unnamed drainage ditches that flow into perennial or
intermittent waterbodies to large traditional navigable waters such as the Ohio River. In one incident,121
the discharge affected a dry creek bed but posed a threat to tributaries of the Ohio River. The EPA FOSC
deployed to oversee the incident response noted that "response taken in the aftermath of the spill were
effective in containing the migration of product to the immediate area downgradient of the wreck." In
several incidents, the oil travelled along drainage paths before reaching a larger waterbody.
It is uncertain whether the FOSC determination to intervene due to impacts or threat to "waters of the
United States" would have been different for these and other similar incidents under the proposed rule,
121 http: //www. epao sc. org/LewisU S2 5 Spill
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
particularly in cases where the waters in the immediate path of the release are ephemeral streams or non-
abutting wetlands.
IV.B.2.3 Potential Environmental Impacts
IV.B.2.3.1 Water Quality
To evaluate the potential water quality impacts of the proposed rule, the agencies developed models of the
selected case study watersheds using the Soil and Water Assessment Tool (SWAT) (Nietsch et al. 2011).
Each model encompasses roughly one 4-digit HUC watershed and delineates subbasins and reaches at the
resolution of 12-digit HUCs. Land uses within each watershed are based on the 2006 National Land
Cover Database (NLCD; Fry et al, 2011),122 the 2011-2012 Cropland Data Layer (U.S. Department of
Agriculture, 2015), as well as wetlands represented in the NWI. The SWAT model represents wetlands
through both land cover (as provided in hydrologic response units, or HRUs) and as distinct hydrologic
features within the subbasins. The SWAT models represent two main categories of wetlands in each
subbasin: abutting wetlands that are hydrologically connected to the main reach of a subbasin, and non-
abutting wetlands without a direct connection. The agencies used two HRU groups to represent each of
the wetland land cover types, and two SWAT hydrologic features, ponds and wetlands, to represent the
hydrology of the two wetland groups. The SWAT pond function was configured to represent non-abutting
wetlands hydrology by specifying the aggregated subbasin area and depth of non-abutting wetlands
according to the NWI data. In subbasins that include actual ponds, the wetland area was added to the
ponds area since only one pond per subbasin is currently supported in SWAT. Abutting wetlands
hydrology was represented by the SWAT wetlands function. By configuring the model this way, the
agencies can distinguish the two wetland categories in modeling the impacts. As described below, the
modeled scenarios address changes in the jurisdictional status of certain wetlands abutting streams with
ephemeral flow regimes and riparian areas of ephemeral streams. The sensitivity analysis included in
Appendix E also addresses changes to non-abutting wetlands. Table IV-18 describes the two models used
for the Ohio River basin case study.
The agencies used estimates of potential changes in section 404 permits requiring mitigation of wetland
impacts under the proposed rule (see Section IV.B.2.2.2 for details) to also specify scenario inputs for
SWAT. These inputs include net changes in the number of wetland acres (including riparian areas) within
each watershed due to forgone mitigation activities based on the analysis of the ORM2 permit data. They
also include the associated changes in water storage and pollutant removal capacity provided by the
wetlands. As discussed in Section IV.B.2.2.1, estimated changes in permitted point source discharges
under section 402 are very small and the agencies therefore did not model incremental pollutant loads
entering reaches within each watershed; existing point source loads were kept constant across the
scenarios. The agencies further assumed no state-level regulation of waters potentially affected by the
proposed rule (i.e., Scenario 0).
122 The 2006 NLCD is the most current data EPA pre-processed and incorporated into the Hydrologic and Water Quality System
(HAWQS) to streamline the development of SWAT models for national-level analyses. EPA is in the process of updating
HAWQS to incorporate the NCLD 2011 data and the agencies may be able to use these data in future analyses of this
rulemaking.
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-18: Summary of SWAT models used to estimate water quality impacts of the
proposed rule in the Ohio River basin
Model characteristics
HUC 0509
HUC 0510
Middle Ohio
Kentucky-Licking
Total watershed area (square-miles)1
10,754
3,706
Number of HUC12 subbasins and reach segments modeled2
346
106
Average annual precipitation (in/year)
48.8
52.4
Baseline land use distribution:
% developed
6.3%
2.3%
% agriculture
28.1%
44.7%
% forested
61.7%
51.3%
% water
3.0%
1.5%
% wetlands
0.9%
0.2%
Unmitigated stream and wetland impacts3 under the
481.1
145.2
proposed rule over 20 years (acres)
Unmitigated stream and wetland impacts3 under the
0.8%
2.9%
proposed rule over 20 years (% of baseline acres)
1 The watershed area is based on the SWAT model and may differ from the description in the introduction to Section IV.B
due to the omission or inclusions of HUC12 subbasins within the scope of each watershed as delineated in SWAT.
2 For HUC 0509, reach-level predictions also include contributions from upstream watersheds HUCs 0503, 0505, 0506,
0507, 0508, and 0510.
3 Unmitigated wetland impacts are based on permitted permanent impacts requiring mitigation and affecting wetlands
abutting ephemeral streams from 2011-2015. Following the approach described in Section IV.B.2.2.2, the agencies
assumed a width of 50 feet for permitted impacts provided in linear feet in the ORM2 database. For watershed HUC 0509,
the values in this table include only impacts in HUC12s subbasins of HUC 0509 and do not include impacts within the
catchment of upstream tributaries which may also affect reach-level predictions in HUC 0509.
IV.B.2.3.1.1 CWA Program Impacts
The agencies simulated the watershed response to land use changes over a 20-year period, based on
permitted activities shown in the ORM2 database in 2011-2015, under both the baseline (without the
proposed rule) and policy scenario (with the proposed rule). The differences between model predictions
for these two scenarios illustrate the potential effects of the proposed rule on HUC12 reaches downstream
from potentially affected waters. The watershed model enables the agencies to look at the impacts of
changes occurring within each subbasin immediately draining to the reach concurrently with cumulative
effects from areas of the watershed upstream of the reach. For HUC 0509, the upstream reaches include
impacts from changes modeled in HUC 0510 since this watershed drains to a tributary of the Middle Ohio
River.
Table IV-19 shows the predicted wetland impacts in HUCs 0509 and 0510 specified in the SWAT model.
These inputs are derived from the same analysis of the ORM2 404 permit data described in Section
IV.B.2.2.2 and used in estimating cost savings and forgone benefits under the 404 program. The impacts
differ from the values reported under Section IV.B.2.2.2 because of differences in the temporal scope of
the analysis and geographical extent of the SWAT watershed. First, while Section IV.B.2.2.2 reports
impacts over the five-year period of 2011-2015 or as annual averages, SWAT models use as inputs
impacts projected over a 20-year period, which are calculated by multiplying impacts in 2011-2015 by
four. Second, while the SWAT models approximately cover the extent of HUC 0509 and HUC 0510
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watersheds, the boundaries do not match exactly and the SWAT models omit some HUC12 subbasins
with permit impacts in the 404 data (although these HUC12 subbasins may be represented in a different
SWAT model); in particular, of 5.1 acres of permanent impacts reported in the ORM2 404 database in
HUC 0510, 2.8 acres (54 percent) are located in subbasins of the SWAT model for that watershed (these
2.8 acres become 11.1 acres when projected over 20 years). Similarly, only a fraction of linear impacts in
the relevant HUC 12 watersheds in the section 404 data is captured within the geographical extent of the
SWAT model. Overall, subbasins in the SWAT model encompass about half (47 percent) of the
permanent impacts reported in the section 404 data for HUC 0510. This means that while the SWAT
model results can provide further understanding of the forgone benefits analyzed in Section IV.B.2.2.2,
the two analyses should not be compared directly.
Table IV-19: Summary of 404 program activities in Ohio River Basin SWAT models for permits
with permanent or temporary impacts to waters potentially affected by the proposed rule and
with mitigation requirements over 20-year analysis period. Modeled scenario considers
permanent impacts only.
Total1
Total1
Permanent
Permanent
Permanent
Temporary
Temporary
Temporary
Type of Potentially
Impacts
Impact
Impacts
Impact
Impact
Impacts
Affected Resource2
(Acres)
(Linear Feet)
(Acres)
(Acres)
(Linear Feet)
(Acres)
HUC 0509
Wetland abutting
57.2
0
57.2
2.9
0
2.9
ephemeral stream
Ephemeral stream3
0.0
369,323
423.9
0
12,036
13.8
Total
57.2
369.323
481.1
2.9
12,036
16.8
HUC 0510
Wetland abutting
11.1
0
11.1
0.1
0
0.1
ephemeral stream
Ephemeral stream3
0.0
116,804
134.1
0.0
7,844
9.0
Total
11.1
116,804
145.2
0.1
7,844
9.1
1 Represents the sum of impacts reported in acres and impacts reported in linear feet, assuming a width of 50 feet for linear
impacts.
2 See Table IV-8 for criteria used to identify affected resources that may change jurisdiction under the proposed rule.
3 Represents forgone mitigation for impacts to riparian areas of ephemeral streams, assuming a total buffer 50 feet wide.
The ORM2 database measures authorized impacts as either areas or lengths. Following the approach in
Section IV.B.2.2.2, the agencies assumed a width of 50 feet (total) for stream impact measured in linear
feet and calculated the equivalent affected area. For the analysis described below, the agencies considered
only forgone mitigation of permanent impacts, but temporary impacts may also require mitigation and the
mitigation actions may have permanent effects. Appendix E provides the results of a sensitivity analysis
that includes a wider (100 feet) riparian area for linear projects affecting ephemeral streams, forgone
mitigation of temporary impacts presented in Table IV-19, and forgone mitigation of impacts to non-
abutting wetlands.
The modeling baseline assumes continued regulation of some ephemeral streams and adjacent wetlands
under the CWA, based on requirements contained in section 404 permits issued in 2011-2015 to mitigate
permanent impacts to these waters. Not all ephemeral and intermittent streams are jurisdictional under the
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2015 Rule (only those streams that meet the 2015 Rule's definition of "tributary" are jurisdictional).
"Isolated" and non-perennial waters typically require a significant nexus test or other review to determine
jurisdiction under pre-2015 practice. The agencies used issued 404 permits to develop inputs for the
baseline scenario and therefore all waters affected by permitted activities were deemed to be jurisdictional
under the definition of "waters of the United States" in effect at the time the permit was issued. This
includes the ephemeral streams in Table IV-19. The modeling baseline assumes that future projects of a
similar character as those in the ORM2 data set would get similar requirements over the next 20 years.
Thus, under the assumed modeling baseline, a developer that permanently affects a wetland abutting
ephemeral streams may be required to mitigate those impacts, for example by creating an equivalent
wetland or purchasing corresponding credits, such that the wetland functions are maintained. The same
would be true for stream impacts. For the purpose of modeling this scenario in SWAT, therefore, the
agencies assume no net change in wetland or stream area, i.e., mitigation actions replace affected waters
on a one-to-one basis. While projects requiring 404 permits are diverse, for the SWAT analysis, the
agencies further assume that permanent wetland and stream impacts arise from projects that increase
developed areas, such as industrial development, low density residential areas, roads, etc., and replace
wetlands with a mix of pervious and impervious surfaces. Conversely, the agencies assume that wetlands
created through compensatory mitigation are placed on available agricultural land within the same
subbasin. As such, the net effect of the modeled baseline is less agricultural land and more developed land
(and not net change in wetland areas).
The agencies modelled this scenario in SWAT by increasing the areas of hydrologic response units
(HRUs)123 with developed land uses by the amount equivalent to the mitigation requirements in Table
IV-19, and decreasing the areas of HRUs with agricultural land uses by the same amount. First, the
agencies distributed the total changes in wetland areas across HUC12 subbasins within the watershed in
proportion to existing wetland areas for those subbasins where development was also present in the
SWAT model.124 Then, the agencies applied the absolute change in acres to other land uses within each
subbasin as appropriate depending on the Baseline or Policy scenario (i.e., developed areas, agricultural
land). Finally, within any given land use category in a HUC12 subbasin, the agencies distributed the
subbasin-level change to individual HRUs in proportion to their existing area share.
In addition, because the SWAT model represents wetlands through both land use and as distinct
hydrologic features within the subbasins, the agencies also adjusted the size of these features in the
SWAT model to represent the scenario. Specifically, the agencies adjusted the dimensions of the two
main types of wetlands in SWAT to account for the proposed policy changes and proportionally reduced
the size of the catchment of each wetland.
123 HRUs are the smallest spatial unit of analysis in the SWAT model. They are defined as unique combinations of subbasin, land
use, soil, and slope within the modeled watershed.
124 The agencies considered assigning changes in wetland areas based strictly on the HUC12 subbasins where each 404 permit
was located but encountered instances where the HUC12 where the permitted activity was recorded did not have wetland
land uses in the SWAT watersheds, or had fewer wetland acres than implied by mitigation activities over the 20-year
analysis period. Rather than omitting some permitted activities or reassigning the permitted activities to other subbasins in
an ad hoc manner, the agencies instead matched the total permitted activities at the HUC4 level and distributed them to the
subbasins in proportion to modeled wetland land uses in subbasins where developed areas also exist.
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The estimated changes due to the proposed rule are relatively small, as compared to both the total area of
the watershed and the area of the affected land use type. Thus, mitigation requirements summarized in
Table IV-19 total 481.1 acres in watershed 0509 and 145.2 acres in watershed 0510, which translates into
0.11 and 0.27 percent increases in the amount of development in HUC 0509 and HUC 0510, respectively,
and 0.02 percent and 0.01 percent decrease in the total agricultural land in the two watersheds. The
calculations are applied to each HUC12 subbasin and the magnitude of impacts therefore varies across the
watersheds, as summarized in Table IV-20, which includes statistics for the subbasin with the largest
absolute change.
Table IV-20: Summary of land use changes in Ohio River Basin SWAT watersheds resulting
from 404 permits with permanent impacts to waters potentially affected by the proposed rule
and with mitigation requirements, under baseline scenario
Land use
HUC12 Subbasins
(largest absolute change)1
Total watershed
(all subbasins)1
acres
% of existing
land use
Acres
% of existing
land use
HUC 0509
Developed area
20.8
2.44%
481.1
0.11%
Agricultural area
-20.8
-0.15%
-481.1
-0.02%
HUC 0510
Developed area
6.3
4.20%
145.2
0.27%
Agricultural area
-6.3
-0.43%
-145.2
-0.01%
1The number of subbasins with specified changes under the scenario is 300 in HUC 0509 (out of a total of 346 HUC12
subbasins in the watershed), and 84 in HUC 0510 (out of 106 subbasins).
The modeled Policy scenario accounts for the permanent reduction in wetland areas due to the removal of
mitigation requirements for projects affecting ephemeral streams and non-abutting wetlands. The net
effect of the scenario is a reduction in wetland and stream riparian areas due to forgone mitigation.
Similar to the Baseline scenario described above, the agencies assumed that permitted projects result in
increased developed land uses in the watershed, but this time the increase is accompanied by a net
reduction in wetland areas. The agencies assumed that incremental development within each subbasin is
of the same character as the existing developed land use (e.g., if 70 percent of the development within the
subbasin consists of low-density development, then 70 percent of the increase is assumed to be low
density development). The agencies mapped the changes presented in Table IV-19 to the SWAT wetland
land uses and wetland features.125 Table IV-21 summarizes the changes by land use type. As described
above, the agencies also adjusted the dimensions of SWAT wetlands to correspond to the estimated
reduction in wetland and stream area within each subbasin. The potential effect of the proposed rule is
thus two-fold: (1) changes in runoff/recharge and response to precipitation due to the changes in land
cover, and (2) reduction in water storage and nutrient and sediment removal capacity.
125 For the sensitivity analysis that includes impact to non-abutting wetlands, the agencies specified the changes in SWAT based
on the type of wetland potentially affected by the proposed rule. Changes to wetlands abutting ephemeral streams and
riparian areas were mapped to the woody wetland (WETF) land uses in SWAT and to the SWAT wetlands whereas changes
to non-abutting wetlands were mapped to emergent/herbaceous wetland (WETN) land uses and to the SWAT ponds.
Wetlands and ponds are standard SWAT modeling features defined at the level of individual subbasins.
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Table IV-21: Summary of land use changes in Ohio River Basin SWAT watersheds resulting
from 404 permits with permanent impacts to waters potentially affected by the proposed rule
and with mitigation requirements, under Policy scenario
Land Use
HUC12 Subbasins
(subbasin with largest absolute
change)1
Total Watershed
(all subbasins)1
acres
% of existing
land use
acres
% of existing
land use
HUC 0509
Developed area
20.8
2.44%
481.1
0.11%
Wetland area2
-20.8
-1.05%
-481.1
-0.82%
HUC 0510
Developed area
6.3
4.20%
145.2
0.27%
Wetland area2
-6.3
-3.64%
-145.2
-2.86%
1The number of subbasins with specified changes under the scenario is 300 in HUC 0509 (out of a total of 346 HUC12
subbasins in the watershed), and 84 in HUC 0510 (out of 106 subbasins).
2 The difference between the percent of wetland land use affected in an individual HUC12 subbasin and for the overall
watershed is due to the distribution of changes among HUC12 subbasins that have both existing wetland and developed
areas. Some subbasins with wetland areas do not see changes under the modeled scenarios because they lack corresponding
existing developed areas to increase. For example, in watershed HUC 0510, 89 of the 106 subbasins have existing wetlands.
Of these 89 subbasins, 84 also have developed areas. The agencies distributed total wetland changes among these 84
subbasins in proportion to their existing wetland areas.
IV.B.2.3.1.2 Changes in Water Balance and Constituent Transport
Comparing SWAT outputs for the Policy scenario with those for the Baseline scenario indicates the
potential net impacts of the proposed rule on the watershed and receiving streams. Those impacts - in
terms of land use changes and wetland area - are first felt at the HUC12 subbasin level as changes in
runoff, recharge, groundwater flows, and pollutant loadings delivered to the receiving reach. Table IV-22
summarizes changes in basin-level annual average water balance and constituent transport in the two
watersheds. Table IV-23 and Table IV-24 summarize changes between the policy and baseline scenarios
across subbasins within the two watersheds. Appendix D provides more detailed outputs.
Table IV-22: Summary of basin-level annual average water balance and constituent transport in
Ohio River Basin SWAT watersheds
Parameter
HUC 0509
HUC 0510
Baseline
Policy
Change
%
Change
Baseline
Policy
Change
%
Change
Precipitation (mm)
1,239.00
1,239.00
0.00
0.0%
1,331.80
1,331.80
0.00
0.0%
Surface runoff (mm)
183.22
183.22
0.00
0.0%
357.12
357.12
0.00
0.0%
Lateral flow (mm)
218.70
218.69
-0.01
0.0%
78.03
78.30
0.27
0.3%
Groundwater flow (mm)
40.03
40.02
-0.01
0.0%
61.88
61.74
-0.14
-0.2%
Water yield (mm)
495.14
495.11
-0.03
0.0%
524.75
524.80
0.05
0.0%
Evapotranspiration (mm)
738.80
738.90
0.10
0.0%
739.90
739.90
0.00
0.0%
Sediment loading (ton/ha)
2.410
2.410
0.000
0.0%
1.17
1.18
0.010
0.9%
Organic N (kg/ha)
2.360
2.360
0.000
0.0%
7.008
7.010
0.002
0.0%
Organic P (kg/ha)
0.267
0.267
0.000
0.0%
0.582
0.583
0.001
0.2%
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Table IV-22: Summary of basin-level annual average water balance and constituent transport in
Ohio River Basin SWAT watersheds
Parameter
HUC 0509
HUC 0510
Baseline
Policy
Change
%
Change
Baseline
Policy
Change
%
Change
N03 in surface runoff
0.954
0.954
0.000
0.0%
2.637
2.638
0.001
0.0%
(kg/ha)
N03 in lateral flow (kg/ha)
1.019
1.019
0.000
0.0%
0.593
0.593
0.000
0.0%
Soluble P yield (kg/ha)
0.137
0.137
0.000
0.0%
0.192
0.192
0.000
0.0%
N03 leached (kg/ha)
0.494
0.494
0.000
0.0%
2.535
2.535
0.000
0.0%
P leached (kg/ha)
0.009
0.009
0.000
0.0%
0.021
0.021
0.000
0.0%
Table IV-23: Estimated change in annual average subbasin water balance and constituent
transport in SWAT watershed HUC 0509.
Number of Subbasins
by Direction of
Change1
Absolute Change
Model parameter
Increase
Decrease
Average
Median
Minimum
Maximum
Evapotranspiration (mm/yr)
277
8
0.03
0.01
-0.18
0.50
Surface runoff (mm/yr)
151
142
0.00
0.00
-0.17
0.05
Lateral flow (mm/yr)
29
257
-0.01
0.00
-0.45
0.03
Groundwater flow (mm/yr)
8
285
-0.01
0.00
-0.23
0.01
Total water yield (mm/yr)
2
286
-0.03
-0.01
-0.62
0.01
Sediment yield (ton/ha/yr)
267
23
0.000
0.000
0.000
0.008
Organic N (kg/ha/yr)
280
15
0.000
0.000
0.000
0.008
Organic P (kg/ha/yr)
280
14
0.000
0.000
0.000
0.001
N03 in surface runoff (kg/ha/yr)
273
22
0.000
0.000
0.000
0.002
Soluble P (kg/ha/yr)
275
21
0.000
0.000
0.000
0.000
1 Total number of SWAT HUC12 subbasins is 346. Some modeled subbasins show no change in annual average values and
are not included in the counts above.
Table IV-24: Estimated change in annual average subbasin water balance and constituent
transport in SWAT watershed HUC 0510.
Number of Subbasins
by Direction of
Change1
Absolute Change
Model parameter
Increase
Decrease
Average
Median
Minimum
Maximum
Evapotranspiration (mm/yr)
0
0
0.00
0.00
0.00
0.00
Surface runoff (mm/yr)
7
80
-0.20
-0.20
-1.00
0.06
Lateral flow (mm/yr)
84
0
0.27
0.30
0.00
1.02
Groundwater flow (mm/yr)
21
69
-0.09
-0.03
-3.65
4.30
Total water yield (mm/yr)
52
42
0.07
0.00
-2.12
3.69
Sediment yield (ton/ha/yr)
92
2
0.004
0.002
0.000
0.028
Organic N (kg/ha/yr)
88
7
0.002
0.001
-0.023
0.022
Organic P (kg/ha/yr)
78
17
0.000
0.000
-0.001
0.002
N03 in surface runoff (kg/ha/yr)
87
8
0.001
0.001
-0.005
0.008
Soluble P (kg/ha/yr)
40
55
0.000
0.000
0.000
0.001
1 Total number of SWAT HUC12 subbasins is 106. Some modeled subbasins show no change in annual average values and
are not included in the counts above.
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The direction of the changes is generally consistent with current understanding of wetland functions.
Wetlands have been shown to play an important role in the biogeochemical cycling and removal of
nutrients and in trapping suspended sediment. They also serve to buffer the response to storms by storing
and slowly releasing surface water. Thus, all else being equal, increasing the amount of developed land
within the watershed increases impervious cover, the amount of runoff generated in response to storm
events, and associated nutrient and sediment loads. Accordingly, overall watershed results show an
increase in lateral flow, decrease in groundwater flows, and increase in sediment, nitrogen, and
phosphorus loads. The changes are relatively small (all less than one percent and many found to result in
no change), which follows from the relatively small changes in land use and wetland storage specified for
the policy scenario.
IV.B.2.3.1.3 Impacts to Streams
Changes within the immediate subbasin contributing to each reach affect the flow regime and water
quality within the streams at the scale ofHUC12 subbasins. The significance of these changes depends on
their magnitude relative to other stream inputs such as point sources or contributions from upstream
catchments.
The agencies compared SWAT model predictions for the Policy and Baseline scenarios to estimate
changes in nutrient and sediment loadings to HUC12 streams, changes in runoff and subsurface flows,
and instream constituent concentrations resulting from changes in both loads and flow regimes. Table
IV-25 summarizes the direction and relative magnitude of mean annual changes over all reaches modeled
in the two watersheds. Table IV-26 summarizes changes in mean annual loadings delivered to the outlet
of each watershed. These results reflect the contributions from all upstream reaches and their respective
catchments, as well as intervening instream processes modeled in SWAT, such as sediment deposition in
stream channels and reservoirs. For HUC 0509, the results reflect changes within both the subbasins
within the scope of the watershed, as well as those in HUC 0510 through tributary inputs.126 More
detailed results are included in Appendix D.
As shown in the two tables, the SWAT model outputs suggest that the proposed rule would increase
nutrient and sediment loads in streams. This increase follows from the combined effects of reduced
stream and wetland functions, as modeled in SWAT via the two wetland types, and land use changes
described in the previous section. The relative magnitude of the changes at the scale of HUC 12 reaches is
attenuated by "background" contributions from point sources to these same reaches - which, in the
context of this analysis, likely are not affected by the policy - and from upstream HUC 12 reaches - which
may or may not be affected by the policy, depending on whether the agencies modeled the changes
126 SWAT model runs for HUC 0509 incorporate simulated flows and delivered loads at the outlet of HUC 0510 for each
scenario (baseline and policy). The model run assumes no change in the contributions of other tributaries (HUCs 0503,
0505, 0506, 0507, and 0508), even though these tributaries would also see changes from forgone mitigation for some
projects within the immediate catchments that affected resources that change jurisdictional status under the proposed rule.
Omission of these impacts from the analysis of HUC 0509 understates the estimated impacts of the proposed rule on HUC
0509 reaches.
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explicitly (e.g., the agencies modeled changes in HUC 0510, but not changes affecting other tributaries to
HUC 0509).
Table IV-25: Summary of predicted changes in loads transported by HUC12 reaches and in-
stream concentrations within the SWAT watersheds for the Ohio River Basin
Parameter
Number of Reaches
by Direction of
Change1
Absolute and Percent Change
Increase
Decrease
Average
Change
Median
Change
Average %
Change
Median %
Change
Maximum
% Change
HUC0509
Annual TN load (kg/yr)
300
12
105.5
4.5
0.01%
0.00%
0.11%
Annual TP load (kg/yr)
293
18
7.1
0.4
0.01%
0.00%
0.05%
Annual sediment load (kg/yr)
143
168
6.6
0.0
0.00%
0.00%
0.45%
Mean daily flow (cms)
13
298
-0.001
0.000
-0.01%
0.00%
0.01%
HUC 0510
Annual TN load (kg/yr)
94
6
359.3
52.1
0.04%
0.03%
4.67%
Annual TP load (kg/yr)
90
10
20.4
3.5
0.03%
0.02%
3.10%
Annual sediment load (kg/yr)
64
36
18.2
0.0
0.04%
0.01%
4.22%
Mean daily flow (cms)
64
35
0.003
0.000
0.02%
0.00%
1.91%
1 Total number of reaches is 346 in HUC 0509 and 106 in HUC 0510. Some modeled reaches show no change in annual
average values and are not included in the counts above.
Table IV-26: Predicted changes in annual average loads delivered to the outlet of Ohio River
Basin SWAT watersheds
Parameter
Baseline
Policy
Change
% Change
HUC 0509
Annual TN load (kg/yr)
280,583
280,616
33
0.01%
Annual TP load (kg/yr)
79,524
79,526
2
0.00%
Annual sediment load (ton/yr)
2,227,544
2,227,541
-3
0.00%
HUC 0510
Annual TN load (kg/yr)
8,683,858
8,686,931
3,072
0.04%
Annual TP load (kg/yr)
714,981
715,123
142
0.02%
Annual sediment load (ton/yr)
156,983
157,203
221
0.14%
On average across the modeled reaches, the proposed rule is predicted to increase mean daily flows,
loadings, and concentrations slightly as compared to the baseline. While the direction of the changes
suggests that reducing CWA jurisdiction under the proposed rule could have some adverse impacts, the
magnitude of these changes is small and often zero at the HUC 12 spatial resolution explicitly addressed in
the SWAT model.
IV.B.2.3.2 Drinking Water
According to the EPA's Safe Drinking Water Information System (SDWIS) database, 29 community
water systems get their source water from intakes located within the scope of the Middle Ohio SWAT
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watershed (HUC 0509) and 15 community water systems get their water from sources located in the
Kentucky-Licking SWAT watershed (HUC 0510).
Results from the SWAT analysis show that daily suspended sediment concentration would increase in
reaches with drinking water intakes in HUC 0509 and HUC 0510 as a result of forgone mitigation of
ephemeral stream and non-abutting wetland impacts.127 The estimated changes in average daily sediment
concentration range from zero to 0.3 percent in HUC 0509, with an average increase of 0.05 percent.
Changes in HUC 0510 range from less than -0.1 percent to 0.1 percent, with an average of 0.02 percent.
Public water systems (PWS) use a variety of treatment processes to remove sediment through filtration
and the addition of coagulants. Studies of drinking water treatment costs show that increased sediment
loadings, and increased pollutants bound to these sediments, are likely to increase operation costs to the
affected PWS (Dearmont, McCarl, & Tolman, 1998; Holmes, 1998; McDonald, Weber, Boucher, &
Shemie, 2016). Given the small predicted changes in sediment loadings, the agencies did not estimate the
potential change in drinking water treatment costs.
Table IV-27: Impacts to modeled reaches with public drinking water intakes under the
proposed rule in the Ohio River Basin SWAT watersheds
SWAT
Watershed
HUC4
Number of
community
water
systems
Number of
intakes
Number of people
served
Change in daily suspended sediment
concentration
Min
Mean
Max
0509
29
49
1,375,475
-0.03%
0.02%
0.45%
0510
15
17
290,235
-0.06%
0.03%
0.25%
Total
44
66
1,665,710
Source: EPA analysis of SDWIS (2017) data. Based on intakes located in the HUC12 subbasins within the scope of SWAT
models for HUC 0509 and HUC 0510. The analysis assumes that intakes are located on the main stem within each HUC12. If
intakes are instead located on a tributary to the main stem, the impacts may be lower or greater than those presented
here, depending on forgone mitigation within the catchment of the relevant tributary.
IV.B.2.3.3 Dredging for Water Storage and Navigation
The SWAT models identify 11 reservoirs within the Middle Ohio watershed (HUC 0509) and one
reservoir in the Kentucky-Licking SWAT watershed (HUC 0510).128 Reservoirs serve many functions,
including storage of drinking and irrigation water supplies, flood control, hydropower supply, and
recreation. Streams can carry sediment into reservoirs, where it can settle and cause buildup of silt layers
over time. Sedimentation reduces reservoir capacity (Graf et al. 2010) and the useful life of reservoirs
unless measures such as dredging are taken to reclaim capacity (Clark, et al., 1985).
SWAT model runs predict increases in sediment deposition in reservoirs, calculated as the difference
between fluxes in minus fluxes out of the reservoirs, by an average of 684 tons per year, a 0.1 percent
increase from the baseline sediment deposition of 515,463 tons per year in HUC 0509. In HUC 0510,
127 There are 49 surface water intakes within the scope of SWAT model HUC 0509 and 17 intakes within the scope of SWAT
model HUC 0510.
128 The SWAT watersheds include reservoirs identified in the U.S. Army Corps of Engineers National Inventory of Dams as of
October 2010.
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sediment depositions are expected to increase by eight tons per year, a less than 0.1 percent increase from
the baseline sediment flux of 57,025 tons per year (see Table IV-28 for detail).
Table IV-28: Summary of predicted net sediment depositions in reservoirs in the
Ohio River Basin (tons/year) in 2040
HUC4
Number of
reservoirs1
Net annual sediment
deposition in reservoirs
Change relative to baseline
Baseline
Policy
Tons/year
Percent
0509
11
516,659
516,993
333
0.06%
0510
1
57,034
57,071
37
0.06%
Total
12
573,693
574,064
370
0.06%
1 Reservoirs modeled in SWAT watersheds, based on the U.S. Army Corps of Engineers National Inventory
of Dams as of October 2010.
SWAT model outputs provide the estimated difference in annual sediment deposition relative to the
baseline in 2040. Annual deposition is assumed to increase or decrease linearly throughout the analysis
period until it equals the estimated 2040 value. For example, in the policy scenario (no mitigation and
with land use change), the annual sediment deposition increases each year, increasing the cumulative
change in sediment deposited in the reservoir relative to the baseline. Once the reservoir is dredged, the
cumulative change relative to the baseline is reset, as it is assumed that the reservoir is dredged to the
same level it would have been previously. The cumulative change in sediment will then begin to rise
again at an increasing rate until the subsequent dredge. This pattern continues according to the dredging
frequency until the end of the analysis period.
The frequency of reservoir dredging is highly site-specific, depending on many factors including the
average sediment concentration of the influent river or stream, the flow regime, the size of the reservoir
and excess storage capacity, and any sediment routing practices. For this analysis, the agencies chose a
general frequency of reservoir dredging based on information presented by the Corps in a Final Dredged
Material Management Plan and Environmental Impact Statement for reservoirs in Washington (U.S.
Army Corps of Engineers, 2002). The report states that "dredging cycles may vary from 2 to 10 years"
(U.S. Army Corps of Engineers, 2002, p. 66). A dynamic programming simulation of effective sediment
management in reservoirs found that once the capacity of a reservoir reaches its steady state, sediment
dredging should be practiced annually, assuming a constant unit cost of dredging (Kawashima, 2007, p.
4).129 Given potential economies of scale that could result in a lower unit cost, the agencies used a
dredging cycle of five years and the national average unit cost of dredging ($13.76 per cubic yard) to
estimate a potential increase in dredging costs of reservoirs.130 Detailed description of the methodology
used in this analysis is presented in Appendix K of Benefit Cost Analysis of the Steam Electric Effluent
129 Because site specific studies of dredging cycles for reservoirs are not available, the agencies synthesized information from two
available studies to inform their assumption regarding dredging frequency in the Ohio River Basin case studies. Given that
reservoir sedimentation is a common problem across the United States and all states use standard strategies to maintain
reservoir capacity (i.e., reduce sediment yield from upstream, route sediments, and remove sediment deposits), the agencies
believe that it is reasonable to use studies of dredging cycles from other locations in the U.S. (Randle et al., 2017).
130 The agencies used the national average unit cost of dredging from the analysis of USACE Dredging Information System Data
for the U.S. from 1998-2018. Dredging costs were converted to 2017 U.S. dollars using the Construction Cost Index.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 162
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Limitations Guidelines and Standards for Steam Electric Power Generating Point Source Category (U.S.
EPA 2015a).
Table IV-29: Annualized dredging cost changes in Ohio River Basin (2017$ thousands)
HUC4
Increase in Annual
Sediment
(cubic yards)
(2040)
3% Discount Rate ($/year)
7% Discount Rate ($/year)
Low
Medium
High
Low
Medium
High
0509
333
$1.7
$1.8
$1.9
$1.3
$1.5
$1.6
0510
37
$0.2
$0.2
$0.2
$0.1
$0.2
$0.2
Total
370
$1.9
$2.0
$2.1
$1.4
$1.7
$1.8
Increased reservoir sedimentation due to forgone mitigation of section 404 project impacts on ephemeral
streams is expected to generate additional annualized dredging costs of $1,802 with a three percent
discount rate, or $1,468 with a seven percent discount rate in HUC 0509. In HUC 0510, the estimated
increase in reservoir sedimentation is expected to generate additional annualized dredging costs of $200
with a three percent discount rate, or $163 with a seven percent discount rate. These estimates are subject
to uncertainty. For example, some states may implement erosion controls in the upstream watershed to
reduce the rate of sedimentation in the affected reservoirs instead of sediment dredging (Randle et al.,
2017). The cost associated with erosion control strategies may be greater or lower than the estimated
dredging costs. Also, more frequent dredging may lead to higher annualized costs due to the discounting
effect. See Section IV.B.5 for more detail on uncertainties in this analysis.
IV.B.2.3.4 Ecosystem Services Provided by Wetlands and Ephemeral Streams
In reviewing the Draft Connectivity Report entitled "Connectivity of Streams and Wetlands to
Downstream Waters: A Review of the Scientific Evidence,"131 EPA's Science Advisory Board (SAB)
found that "[t]he literature review provides strong scientific support for the conclusion that ephemeral,
intermittent, and perennial streams exert a strong influence on the character and functioning of
downstream waters and that tributary streams are connected to downstream waters," at the same time the
SAB stressed that "the EPA should recognize that there is a gradient of connectivity."132 The SAB
recommended that "the interpretation of connectivity be revised to reflect a gradient approach that
recognizes variation in the frequency, duration, magnitude, predictability, and consequences of physical,
chemical, and biological connections."133 As the preamble to the proposed rule describes, the SAB found
perennial and intermittent streams have a greater probability to impact downstream waters compared to
ephemeral streams.
131 U.S. EPA. Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence
(External Review Draft). U.S. Environmental Protection Agency, Washington, DC, EPA/600/R11/098B, September 2013.
132 Letter to Gina McCarthy. October 17, 2014. SAB Review of the Draft EPA Report Connectivity of Streams and Wetlands to
Downstream Waters: A Review and Synthesis of the Scientific Evidence. Page 3.
133 Id. at 2 (emphasis added).
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
The agencies recognize that waters within a watershed are connected along such a gradient and that the
degree of connectivity among aquatic components varies along a continuum from highly connected to
highly isolated (U.S. EPA 2015b). Although isolated, ephemeral streams and isolated wetlands support
various ecosystem services. For example, ephemeral streams, including dry channels, have a role in
supporting biodiversity. Their functions may vary depending on stream phases: water flow, pools, and dry
bed. Occasional flow in ephemeral streams provides opportunities for aquatic organism dispersal. Pools
may provide habitat for amphibians, snails, and insects and drinking water for wild animals, particularly
during droughts (Stubbington et al. 2017). Several amphibian species found in the study area, such as the
four-toed salamander, wood frog, and Ohio's state amphibian the spotted salamander, breed primarily in
ephemeral wetlands not hydrologically connected to the stream network (or vernal pools), where there are
fewer predators than in permanent waterbodies (Kern, Nassar, C., & Dorcas, 2013; Semlitsch & Skelly,
2007). Ephemeral streams in the Middle Ohio (HUC 0509) and Kentucky-Licking (HUC 0510)
watersheds also provide habitat for state-listed threatened and endangered species, including streamside
salamander listed as endangered in West Virginia and red salamanders listed as endangered in Indiana
(Schneider, 2010; IUCN SSC Amphibian Specialist Group, 2014; Niemiller, et al., 2006).
IV.B.3 Case Study 2: Lower Missouri River Basin
This case study area encompasses the area along the border of Nebraska and Kansas, stretching into
Colorado on the west and touching the Missouri River on the east. The Republican River and Kansas
River watersheds lie mainly within the High Plains and Central Great Plains ecoregions. There are several
climate zones in the area, ranging from mild mid-latitude and humid to dry steppe climates. Summers are
typically hot, and winters can be mild to severe. Annual precipitation ranges from 305 to 940 mm (12 to
37 inches). Most streams in the area are intermittent, and a few are perennial. Land is primarily used for
cropland. Other uses include land for grazing as well as oil and gas production (CEC, 2011).
Figure IV-14 and Figure IV-15 show maps of the HUC 1025 and HUC 1027 case study watersheds,
respectively. The Republican River is a tributary to the Kansas River and therefore the outlet of watershed
HUC 1025 flows into HUC 1027, along with contributions from HUC 1026.
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IV —Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Nebraska
Colorado
ff1 Grand Islant
Kearney
**«^Kansa^*
ManHattan]
[Salina]
Legend
highways
HUC4
NWI Wetlands
NHD Waterbody
NHD Area
NHD Flowlines
Perennial
Artificial Path
Intermittent
Ephemeral
[Hutchinson1
Garden City-
Figure IV-14: Map of HUC 1025 - Republican River Basin showing high-resolution NHD water
features and NWI wetlands in relation to state boundaries, populated areas, and major roads.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised 165
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IV —Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Figure IV-15: Map of HUC 1027 - Kansas River Basin showing high-resolution NHD water features
and NWI wetlands in relation to state boundaries, populated areas, and major roads.
B.ufsj
•Belize
GrandJIsland
Kearney
Lincoln
.e ay en worth]
Gladstone!^
KBBtrKjepiendence M
nsa^
2 -: Raytaw1.1;'
i o na tta-Y
Overlaid
Park
^^O^aha.
:^Gounci?i#
U
1 _
©
1027
"Salina
Legend
highway s
~ HUC4
¦ NHD Waterbody
H NHD Area
NHD Flowlines
— Perennial
Artificial Path
— Intermittent
NWI_SelectedHUC4s Ephemeral
. 0 2D 40
I I Mies
1:2 250. ICC
Hutchinson
Source: NHD. 2018: NWI. 2015; ESRI 2018
IV.B.3.1 Aquatic Resources Characteristics
Table IV-30 summarizes the hydrography within the case study watersheds in terms of the number of
stream miles in each flow category and acres of non-abutting abutting wetlands based on the agencies"
geospatial analysis134 of the high resolution NHD and the NWI. As presented in the table, 77 to 86
percent of all stream miles within the two watersheds are either ephemeral or intermittent, and 11 to 17
percent of all wetland acres are non-abutting (i.e., not touching, intersecting, or adjacent per the proposed
rule to high resolution NHD streams).1 As was the case for the Ohio River basin, the NHD data within
the study areas generally do not differentiate streams according to their flow regime, which explains the
very small number of ephemeral reach miles, relative to the total number of reach miles. To overcome
this limitation in the analyses of program impacts, the agencies therefore again relied on in formation
available in permits and in the NWI data to identify impacts to ephemeral streams, wetlands abutting
ephemeral streams, and non-abutting wetlands.
134 See Resource and Programmatic Assessment, Section I: Aquatic Resource Analysis for details.
135 The agencies do not know how many wetlands that were determined to be "non-abutting" might have a direct hydro logic
surface connection with a jurisdictional water and would thus be jurisdictional under the proposed rule.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised 166
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-30: Hydrographic profile of case study watersheds in the Lower Missouri River Basin
Feature
Feature
HUC 1025
HUC 1027
type
attributes
Miles or Acres
Percent of total
Miles or Acres
Percent of total
Streams
Total
40,561
100%
37,933
100%
(miles)
Perennial
2,339
6%
5,361
14%
Intermittent
35,031
86%
29,362
77%
Ephemeral
1
0%
11
0%
Artificial path
2,407
6%
2,819
7%
Other1
784
2%
380
1%
Wetlands
Total
356,673
100%
398,436
100%
(acres)
Abutting
242,234
68%
325,484
82%
Non-abutting
114,439
32%
72,951
18%
1 Includes canal, ditches, aqueducts, and other features without attributes.
The values are based on the agencies' geospatial analysis of NHD and NWI data and reflect gaps in NHD stream attributes.
IV.B.3.2 Program Changes
IV.B.3.2.1 Section 402
Table IV-31 presents the number of NPDES permits issued in the Lower Missouri River Basin by the
most common industry categories. The number of permits issued in the two case study watersheds
includes 538 individual permits and 1,940 general permits. Twenty-eight permits in the Lower Missouri
River Basin have at least one discharge near an ephemeral stream (3 individual and 25 general
permits).136 Based on the permits with SIC codes, the most common industry requiring NPDES permits
with at least one discharge near an ephemeral stream in the Lower Missouri River Basin include
aggregate mining (15 permits) and construction and development (4 permits).
Table IV-31: Section 402 individual permits (SIC codes in parentheses) issued in case study
watersheds in the Lower Missouri River Basin
Individual permits1
General permits1
Industry category
Total
number
of NPDES
permits
Permits with discharge
point near ephemeral
streams2
Total
number
of NPDES
permits
Permits with discharge
point near ephemeral
streams2
Number of
Percent of
Number of
Number of
permits
all permits
permits
permits
HUC 1025
Sewerage Systems (4952)
34
0
0%
8
1
13%
Aggregate Mining3
3
0
0%
21
15
71%
Construction and
0
0
0%
47
9%
Development4
Ready-Mixed Concrete
(3273)
0
0
0%
4
1
25%
136 Note that none of the permits the agencies reviewed for this watershed affected waters with the code "R4SBJ." All permits
shown in Table IV-31 as having a discharge point near ephemeral streams affect waters with a Cowardin code "R4SBA."
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-31: Section 402 individual permits (SIC codes in parentheses) issued in case study
watersheds in the Lower Missouri River Basin
Individual permits1
General permits1
Total
number
of NPDES
permits
Permits with discharge
Total
number
of NPDES
permits
Permits with discharge
Industry category
point near ephemeral
streams2
point near ephemeral
streams2
Number of
permits
Percent of
all permits
Number of
permits
Number of
permits
Petroleum Bulk Stations
and Terminals (5171)
0
0
0%
1
1
100%
Other Categories5
70
0
0%
31
-
0%
Missing SIC Codes
6
2
33%
150
1
1%
Total
113
2
2%
262
23
9%
HUC 1027
Sewerage Systems (4952)
161
0
0%
9
0
0%
Aggregate Mining3
24
0
0%
8
0
0%
Construction and
0
0%
17
0
0%
Development4
Ready-Mixed Concrete
(3273)
0
0
0%
12
0
0%
Petroleum Bulk Stations
0
0
0%
0
0%
and Terminals (5171)
Other Categories5
140
0
0%
152
0
0%
Missing SIC Codes
99
1
1%
1,480
2
0%
Total
425
1
0%
1,680
2
0%
Total for both watersheds
538
3
1%
1,942
25
1%
1Source: EPA's ICIS-NPDES data, 2017. The facility permits included in the spatial analysis are limited to those for which the
ICIS-NPDES database includes valid latitude/longitude coordinates. For permits with multiple SIC codes, only one SIC code was
retained, with manufacturing industries prioritized, to avoid double-counting.
2 The agencies used the Cowardin classification code in NWI to determine whether 402 discharges are likely to affect
ephemeral streams (i.e., the agencies interpreted Cowardin codes R4SBA and R4SBJ as ephemeral; see Section IV.B for more
detail). All permits shown as having a discharge point near ephemeral streams affect waters with a Cowardin code R4SBA.
3 Includes SIC Codes 1422, 1423, 1429, 1442, 1446, 1459,1474, 1475, 1481, and 1499.
4 Includes SIC Codes 1629, 1794, 6552, 1611, 1799, 1521,1522, and 1623.
5 Includes multiple categories, such as Asphalt Paving Mixtures and Blocks (2951), Animal Feeding Operations (211, 212, 213,
214, 219, 241, 251, 252, 253, 254, 259, 271, 272, and 279), Electric Services (4911), Industrial Domestic Wastewater
Treatment (6513, 6514, 6515, 7011, 7032, 7033, 8211, 8221, 8641, and 8661), Industrial Organic Chemicals (2869), Motor
Vehicle Parts, Used (5015), Refuse Systems (4953), Trucking Facilities (4212, 4231), and Water Supply (4941).
The majority of section 402 permit holders in the Lower Missouri River Basin have technology-based
effluent limitations (TBELs), including sewage systems (secondary), aggregate mining, and construction
and development. The ready-mixed concrete and petroleum bulk stations and terminals industries do not
have national TBELs. For facilities in these two industry categories, effluent limitations are either water
quality-based (W QBELs) for pollutants with applicable water quality standards, or TBELs based on the
best professional judgement of the permit writer (U.S. EPA; 2011).
Of the three individual NPDES permits potentially affecting ephemeral streams, none (0) have WQBELs.
Should the definition of "waters of the United States" change, a permittee subject to more stringent limits
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
based on a WQBEL could request a revision of its WQBEL to account for potential dilution or
attenuation of the pollutant(s) occurring between end-of-pipe and the point where the effluent enters
jurisdictional waters. Under this scenario, the permittee may realize cost savings as compared to meeting
the previous permit limits.
NPDES permits potentially affecting ephemeral waters (25 general and 3 individual) were issued in two
states in the Lower Missouri River Basin (Colorado and Kansas). Colorado and Kansas are expected to
regulate waters beyond the CWA under Scenario 2 (3) only.137 All permits potentially affecting
ephemeral waters thus drop from consideration under Scenario 2 (3). Section II.A describes potential state
responses and different analytic scenarios in more detail.
NPDES permits issued under the ready-mixed concrete and petroleum bulk stations and terminals
categories are not subject to national TBELs. In the Lower Missouri River Basin case study watersheds,
two permits potentially affected by the proposed rule were issued in these categories from 2011-2015.
Both of these permits were issued in Colorado and thus drop from consideration under Scenario 2 (3).
IV.B.3.2.2 Section 404
To estimate the effect of reduced mitigation requirements for non-abutting wetlands and ephemeral
streams on potential cost savings and forgone benefits, the agencies used the approach described in
Section IV.B.2.2.2. Table IV-32 summarizes section 404 permits issued in 2011-2015 within the Lower
Missouri River Basin that required mitigation on RPWWN-type wetlands or ephemeral streams. As
presented in the table, the agencies' geospatial analysis shows 40 permits in HUC 1025 and 57 permits in
HUC 1027 issued by the Corps with impacts that required mitigation on waters potentially affected by the
proposed changes to the definition of "waters of the United States." Permanent impacts resulting from
404 permits issued in 2011-2015 included annual averages of 0.1 acres and 6,646 linear feet in HUC 1025
and 0.9 acres and 7,873 linear feet in HUC 1027. In both case study watersheds, permit impacts occurred
in Kansas and Nebraska. Kansas and Nebraska are likely to implement state regulations more stringent
than the federal level (i.e., impacts excluded in Scenarios 2 and 3).
Table IV-32: Section 404 permits issued in case study watersheds in the Lower Missouri River
Basin (2011-2015)1
State
#
Permitted
Projects
# Permits with mitigation
requirements potentially
affected by proposed
changes to the definition
of "waters of the United
States"2
Permanent impacts
Temporary impacts
Acres
Length Feet
Acres
Length Feet
HUC 1025
CO
10
0
0.00
0
0.00
0
KS
207
38
0.63
33230
0.00
5005
NE
141
2
0.02
0
0.00
0
Total
358
40
0.65
33,230
0.00
5,005
Avg.
per
year
72
8
0.13
6,646
0.00
1,001
137 Scenarios 2 and 3 are identical for the 402 program analysis.
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-32: Section 404 permits issued in case study watersheds in the Lower Missouri River
Basin (2011-2015)1
State
#
Permitted
Projects
# Permits with mitigation
requirements potentially
affected by proposed
changes to the definition
of "waters of the United
States"2
Permanent impacts
Temporary impacts
Acres
Length Feet
Acres
Length Feet
HUC 1027
KS
742
52
4.22
39,131
0.30
730
MO
1
0
0.00
0
0.00
0
NE
288
5
0.43
236
0.00
0
Total
1031
57
4.65
39,367
0.30
730
Avg.
per
year
206
11
0.93
7,873
0.06
146
1 Values based on permits with mitigation requirements on waterways determined to be RPWWN-type wetlands or
ephemeral streams. Excludes permits issued for mitigation or restoration activities because the main purpose of these
activities is to restore or enhance ecosystem services provided by water resources as opposed to dredge and fill activities
that lead to permanent or temporary losses of ecosystem services.
2 Number of permits includes permits with mitigation requirements that potentially affect at least one water no longer
jurisdictional under the CWA under the proposed rule.
Table IV-33 presents expected reductions in average annual mitigation requirements in the Lower
Missouri River Basin under different likely state response scenarios following the proposed "waters of the
United States" definitional changes. Section IV.B.2.2.2 provides detail on input data and the assumptions
used in this analysis.
Table IV-33: Estimated changes in average mitigation required per year in the Lower Missouri
River Basin, by policy scenario
State
Expected Reduction in Average
Mitigation Acres per Year1,2
Expected Reduction in Average
Mitigation Length Feet per
Year12
Expected Reduction in Average
Mitigation Riparian Acres per
Year123
Scenario
0&1
Scenario
2
Scenario
3
Scenario
0&1
Scenario
2
Scenario
3
Scenario
0& 1
Scenario
2
Scenario
3
HUC 1025
KS
0.1
0.0
0.0
6,646
0
0
7.6
0.0
0.0
NE
0.0
0.0
0.0
0
0
0
0.0
0.0
0.0
Total
0.1
0.0
0.0
6,646
0
0
7.6
0.0
0.0
HUC 1027
KS
0.8
0.0
0.0
7,826
0
0.0
9.0
0.0
0.0
NE
0.1
0.0
0.0
47
0
0.0
0.1
0.0
0.0
Total
0.9
0.0
0.0
7,873
0
0.0
9.0
0.0
0.0
1 Values based on permits with mitigation requirements on waterways determined to be RPWWN-type wetlands or
ephemeral streams. Excludes permits issued for mitigation or restoration activities because these permits do not result in
the loss of ecosystems services provided by wetlands and streams. Permanent acre and linear feet impacts provided in the
ORM2 database are used to estimate mitigation requirements. The agencies assumed a 1:1 ratio for compensatory
requirements based on the USACE guidance (U.S. Army Corps of Engineers 2014).
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-33: Estimated changes in average mitigation required per year in the Lower Missouri
River Basin, by policy scenario
State
Expected Reduction in Average
Mitigation Acres per Year1,2
Expected Reduction in Average
Mitigation Length Feet per
Year12
Expected Reduction in Average
Mitigation Riparian Acres per
Year123
Scenario
0&1
Scenario
2
Scenario
3
Scenario
0&1
Scenario
2
Scenario
3
Scenario
0& 1
Scenario
2
Scenario
3
2 Scenarios 0 and 1 are combined because all values are identical.
3 Based on mitigation lengths where impacts in linear feet are converted to acres by multiplying total linear feet by an
average total buffer width of 50 feet (25 feet on each side of the stream) and converting square feet to acres.
IV.B.3.2.2.1 Cost Savings
To estimate permit cost savings, the agencies determined the average number of individual and general
404 permits issued each year, based on permits issued from 2011 to 2015, that potentially affect only
waters no longer considered "waters of the United States" under the proposed rule. The agencies then
multiplied the annual average number of reduced individual and general permits by lower bound USACE
estimates of permit costs (U.S. EPA and Department of the Army, 2015). The agencies used the lower
bound estimate to avoid double-counting compensatory mitigation costs.
Table IV-34 shows the average number of reduced individual and general 404 permits, USACE unit
application costs, and the estimated reduction in permit applications costs for individual and general 404
permits in the Lower Missouri River Basin under each scenario. The USACE unit cost estimates ($14,700
per individual permit; $4,400 per general permit) are adjusted from 1999$ to 2017$ using the CPI-U.
Permits affecting only RPWWN-type wetlands and ephemeral streams were issued in three states in HUC
1025 (Colorado, Kansas, and Nebraska) and two states in HUC 1027 (Kansas and Nebraska). Under
Scenarios 0 and 1, the average annual reduction in 404 permit application costs for the Lower Missouri
River Basin is approximately $0.26 million. Under Scenario 2, which includes permit reductions in
Colorado, permit cost savings drop to less than $0.01 million. Under Scenario 3, permit cost savings drop
to $0 since all states are expected to regulate waters beyond the CWA.
Table IV-34: Average annual reduction in 404 permit application costs in the Lower Missouri
River Basin
Unit
Scenario 0 & l1,2
Scenario 21
Scenario 31
Permit
Type
Costs
from
Corps
NWP
Analysis
(2017$)
Annual
Average
Reduction in
Permits with
Rule
Estimated
Reduction
in Permit
Costs
(millions
2017$)
Annual
Average
Reduction
in Permits
with Rule
Estimated
Reduction
in Permit
Costs
(millions
2017$)
Annual
Average
Reduction
in Permits
with Rule
Estimated
Reduction
in Permit
Costs
(millions
2017$)
HUC 1025
IP
$14,700
0.0
$0.00
0.0
$0.00
0.0
$0.00
GP
$4,400
21.0
$0.09
0.8
<$0.01
0.0
$0.00
Total
21.0
$0.09
0.8
<$0.01
0.0
$0.00
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-34: Average annual reduction in 404 permit application costs in the Lower Missouri
River Basin
Unit
Scenario 0 & l1,2
Scenario 21
Scenario 31
Permit
Type
Costs
from
Corps
NWP
Analysis
(2017$)
Annual
Average
Reduction in
Permits with
Rule
Estimated
Reduction
in Permit
Costs
(millions
2017$)
Annual
Average
Reduction
in Permits
with Rule
Estimated
Reduction
in Permit
Costs
(millions
2017$)
Annual
Average
Reduction
in Permits
with Rule
Estimated
Reduction
in Permit
Costs
(millions
2017$)
HUC 1027
IP
$14,700
1.0
$0.01
0.0
$0.00
0.0
$0.00
GP
$4,400
34.6
$0.15
0.0
$0.00
0.0
$0.00
Total
35.6
$0.17
0.0
$0.00
0.0
$0.00
Both Watersheds
IP
1.0
$0.01
0.0
$0.00
0.0
$0.00
GP
55.6
$0.24
0.8
<$0.01
0.0
$0.00
Total
56.6
$0.26
0.8
<$0.01
0.0
$0.00
1 Includes permits estimated to only affect waters no longer jurisdictional under the CWA under the proposed rule.
2 Scenarios 0 and 1 are combined because all values are identical.
To estimate annual cost savings from reduced mitigation requirements, the agencies multiplied the cost of
each mitigation acre or linear foot (low and high estimates) by the expected reduction in annual mitigation
requirements (Table IV-33), and summed the estimated cost savings for each scenario. The agencies
estimated low and high per acre and liner foot mitigation costs for each state. Table IV-35 provides
annual cost savings estimates from reduced mitigation requirements in the Lower Missouri River Basin
under different policy scenarios. Annual mitigation cost savings under Scenarios 0 and 1 range from a
low of $ 1.36 million to a high of $5.34 million. Cost savings drop to $0 under Scenarios 2 and 3 since
Kansas and Nebraska, the two states where all mitigation requirement reductions occur in the two case
study watersheds, are expected to regulate waters beyond CWA requirements.
Table IV-35: Annual cost savings (2017$) of reduced mitigation requirements in the Lower
Cost Per Acre
(2017$)
Cost Per Linear
Scenarios 0 & l1,2
Scenario 21
Scenario 31
State
Foot
(2017$)
(Millions 2017$)
(Millions 2017$)
(Millions
2017$)
Low
High
Low
High
Low
High
Low
High
Low
High
HUC1025
KS
$54,000
$105,400
$90
$360
$0.60
$2.41
$0.00
$0.00
$0.00
$0.00
NE
$54,000
$105,400
$90
$360
<$0.01
<$0.01
$0.00
$0.00
$0.00
$0.00
Total
-
-
-
-
$0.61
$2.41
$0.00
$0.00
$0.00
$0.00
HUC1027
KS
$54,000
$105,400
$90
$360
$0.75
$2.91
$0.00
$0.00
$0.00
$0.00
NE
$54,000
$105,400
$90
$360
$0.01
$0.03
$0.00
$0.00
$0.00
$0.00
Total
-
-
-
-
$0.76
$2.93
$0.00
$0.00
$0.00
$0.00
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-35: Annual cost savings (2017$) of
Missouri River Basin resulting from the pro
reduced mitigation requirements in the Lower
posed definitional change, by policy scenario
State
Cost Per Acre
(2017$)
Cost Per Linear
Foot
(2017$)
Scenarios 0 & l1,2
(Millions 2017$)
Scenario 21
(Millions 2017$)
Scenario 31
(Millions
2017$)
Low
High
Low
High
Low
High
Low
High
Low
High
Both Watersheds
Total
-
-
-
-
$1.36
$5.34
$0.00
$0.00
$0.00
$0.00
1 Estimated changes in average mitigation required per year are presented in Table IV-33. For each state, cost savings are
calculated by multiplying the cost of each mitigation acre or linear foot (low and high estimates) by the expected
reduction in annual mitigation requirements, and summing the acreage and linear feet values for each scenario.
2 Scenarios 0 and 1 are combined because all values are identical.
Table IV-36 provides total annual 404 program cost savings estimated in the Lower Missouri River Basin
resulting from the proposed rule, under each policy scenario. Total costs savings combine the estimated
reduction in permit costs and mitigation requirements. Under Scenarios 0 and 1, estimated cost savings
range from a low of $1.62 million to a high of $5.60 million. Estimated cost savings drop to less than
$0.01 million under Scenario 2, which includes permit cost savings in Colorado. Under Scenario 3, total
estimated cost savings drop to $0.
Table IV-36: Total annual estimated cost savings in the Lower Missouri
River Basin (Millions 2017$)
HUC
Scenarios 0 & l1,2
Scenario 22
Scenario 32
Low
High
Low
High
Low
High
1025
$0.70
$2.50
<$0.01
<$0.01
$0.00
$0.00
1027
$0.93
$3.10
$0.00
$0.00
$0.00
$0.00
Total
$1.62
$5.60
<$0.01
<$0.01
$0.00
$0.00
1 Scenarios 0 and 1 are combined because all values are identical.
2 Scenarios 0 and 1 include cost savings in Kansas, Nebraska, and Colorado. Scenario 2 includes cost
savings in Colorado only. Since none of the 404 permits issued in Colorado between 2011 and 2015
with impacts to waters affected by the proposed rule had mitigation requirements, Scenario 2 only
includes minimal permits cost savings. Under Scenario 3, cost savings drop to zero because all
states in the case study region are expected to regulate waters beyond CWA requirements.
IV.B.3.2.2.2 Forgone Benefits
To estimate the forgone benefit value associated with reduced mitigation requirements for non-abutting
wetlands and ephemeral streams, the agencies relied on per household WTP values for preventing
wetland losses from Blomquist and Whitehead (1998). Blomquist and Whitehead (1998) values are
appropriate for the Lower Missouri watershed because the wetland types are similar to those found in the
original study region (/'. e., freshwater marsh, temporarily, seasonally or permanently flooded bottomland
hardwood). In particular, Missouri wetlands are dominated by forested and shrub swamps subject to
frequent flooding from Missouri and other local rivers (MO DNR 2016). Within the southern Nebraska
portion of the Lower Missouri River watershed, wetland types include both freshwater marshes (such as
those within the Platte River region sandhills) and forested wetlands/swamps (such as those near the
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IV —Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Central Platte River in south-central Nebraska; LaGrange, 2005). Certain southern Nebraska basin
wetlands are dominated by row-crop agriculture, such as those located in the Southwest Playas and the
Rainwater Basin, and others are dominated by forested wetlands, such as those located near the Lower
Missouri River (U.S. EPA, 2015c). The National Wetlands Inventory (NWI) wetlands mapper indicates
that both "forested and shrub wetlands" and "freshwater emergent wetlands" are present in the Lower
Missouri River Basin case study area (U.S. FWS, 2018). The number of wetland acres considered in the
valuation scenario (500 acres) is small enough to calculate reasonable per acre WTP estimates.
To determine the number of potentially affected households, the agencies applied a similar methodology
to the one used in Blomquist and Whitehead (1998). The survey population included state households
where the affected wetlands were located (i.e., Kentucky in the original study) as well as households in
four cities outside of, but bordering, western Kentucky: Evansville, IN; Clarksville, TN; Carbondale, IL;
and Cape Girardeau, MO. Following Blomquist and Whitehead (1998), the agencies applied the
household WTP value to all households in the state with the majority of the watershed's 404 impacts
(Kansas for both HUC 1025 and 1027) as well as households in other counties within the watershed area
and counties adjacent to the watershed (Figure IV-16; Figure IV-17). Given that future location of 404
impacts is uncertain, the agencies used population in all counties within the affected watershed and
counties adjacent to the watershed to determine potentially affected population residing outside of Kansas
where the majority of 404 impacts occurred between 2011-2015.
Figure IV-16: Locations of households included in the forgone benefits analysis for HUC 1025.
Perkins
Phillips
Frontier
Harlan
H itch co c I
ismngton Yuma
Elbert
Lincoln
Nebraska
Colorado
Kansas
I I HUC 1025
Adjacent Counties
| | Kansas (Primary State)
0 25 50 100 Miles
Wyoming
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IV —Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Figure IV-17: Locations of households included in the forgone benefits analysis for HUC 1027.
Nebraska
Butler
Iowa
Polk
York
Hall
Hamilton
Lancaster
Clay
Fillmor
Adams
Saline
Nucko Is
Thayer
er i
Frankli
Jeffers
Kansas
Missouri
Jacks oi
HUC 1027
Adjacent Counties
Kansas (Primary State)
100 Miles
To estimate the number of affected households in future years, the agencies used projected population
changes from 2015 to 2040 (CEDBR, 2016; State of Colorado, 2018; Missouri Office of Administration,
2008; Drozd and Deichert, 2015) divided by the average number of people per household (U.S. Census
Bureau, 2015).
Table IV-37 and Table IV-38 provide estimated annualized forgone benefits from lost mitigation
requirements in the Lower Missouri River Basin under different state response scenarios, with three
percent and seven percent discount rates, respectively. Mitigation requirements for HUCs 1025 and 1027
occur in Kansas and Nebraska. Scenarios 0 and 1 include mitigation acres from both states. Annualized
forgone benefits for the Lower Missouri River Basin under Scenarios 0 and 1 range from a low of $ 0.09
million to a high of $0.81 million, while the TPV of forgone benefits during the 2020-2039 study period
ranges from $1.80 million to $16.25 million. Under Scenarios 2 and 3, the forgone benefits drop to $0
since both Kansas and Nebraska are expected to regulate waters beyond federal requirements.
Table IV-37: Annualized forgone benefits (Millions 2017$) of lost mitigation requirements in the
Lower Missouri River Basin resulting from the proposed definitional change, by policy scenario
(3% Discount Rate) "
HUC
# Affected
Households in
20203
Scenarios 0 & l1,2
Scenario 21
Scenario 31
Low
High
Low
High
Low
High
1025
1,264,605
$0.05
$0.30
$0.00
$0.00
$0.00
$0.00
1027
1,689,217
$0.08
$0.51
$0.00
$0.00
$0.00
$0.00
Total
2,953,822
$0.12
$0.81
$0.00
$0.00
$0.00
$0.00
1 Estimated changes in average mitigation required per year are presented in Table IV-33. Forgone benefits are calculated for
each scenario by multiplying total forgone mitigation values for each scenario (sum of acres and linear feet converted into
acres) by the total number of affected households and the appropriate household WTP value (low: $0.006/acre; high:
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-37: Annualized forgone benefits (Millions 2017$) of lost mitigation requirements in the
Lower Missouri River Basin resulting from the proposed definitional change, by policy scenario
(3% Discount Rate) "
HUC
# Affected
Scenarios 0 & l1,2
Scenario 21
Scenario 31
Households in
High
High
High
20203
Low
Low
Low
$0.038/acre). The agencies calculated forgone benefits for the years 2020-2039 and annualized values using a 3% discount
rate.
2 Scenarios 0 and 1 are combined because all values are identical.
3 The agencies accounted for population growth and change in the number of households throughout the 2020-2039 study
period.
Table IV-38: Annualized forgone benefits (Millions 2017$) of lost mitigation requirements in the
Lower Missouri River Basin resulting from the proposed definitional change, by policy scenario
(7% Discount Rate) "
HUC
# Affected
Households in
20203
Scenarios 0 & l1,2
Scenario 21
Scenario 31
Low
High
Low
High
Low
High
1025
1,264,605
$0.03
$0.22
$0.00
$0.00
$0.00
$0.00
1027
1,689,217
$0.06
$0.38
$0.00
$0.00
$0.00
$0.00
Total
2,953,822
$0.09
$0.60
$0.00
$0.00
$0.00
$0.00
1 Estimated changes in average mitigation required per year are presented in Table IV-33. Forgone benefits are calculated for
each scenario by multiplying total forgone mitigation values for each scenario (sum of acres and linear feet converted into
acres) by the total number of affected households and the appropriate household WTP value (low: $0.006/acre; high:
$0.038/acre). The agencies calculated forgone benefits for the years 2020-2039 and annualized values using a 7% discount
rate.
2 Scenarios 0 and 1 are combined because all values are identical.
3 The agencies accounted for population growth and change in the number of households throughout the 2020-2039 study
period.
IV.B.3.2.3 Section 311
Six FRP facilities are located within the Republican River watershed (HUC 1025) and an additional 36
FRP facilities are located within the Kansas River watershed (HUC 1027). The high-resolution NHD data
for the case study watersheds do not accurately depict the extent of ephemeral streams in those
watersheds, as some might be mapped as intermittent while others are not mapped at all. Therefore, the
agencies were not able to determine the type of waters located in proximity of these facilities. However,
as noted in Section IV.B.2.2.3 for Case Study 1, a facility owner may determine that FRP requirements
are applicable to the facility based on reasonable potential of an oil discharge (among other criteria)
which means that proximity to any jurisdictional waters is a relevant consideration even if some other
waters in the vicinity of the facility are not jurisdictional.
The agencies' analysis of the 42 facilities in the two case study watersheds identified five facilities
without perennial or intermittent streams in the high-resolution NHD within a half-mile of the facility and
only isolated water bodies visible on aerial photos. The proposed rule may affect the FRP applicability
criteria for existing planholders by changing the inventory of resources considered within the half-mile
planning distance and potentially leading facility owners to conclude that their facilities do not have a
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
reasonable potential for an oil discharge to waters of the United States. Where FRP applicability changes,
the facility owners may submit a request to EPA to reconsider FRP requirements.
EPA FOSCs responded to two incidents in the Kansas River watershed HUC 1027 between 2001 and
2017. The first incident138 was associated with a vehicle accident that released petroleum into a ditch that
flows into Piper Creek. The second incident,139 a 10-inch diesel pipeline break, was determined upon
FOSC evaluation not to affect waters of the United States. The FOSC and RP identified an intermittent
creek approximately 150 yards south of the pipeline source of the spill, but the creek was completely dry
at the time of the response and the extent of the diesel had been contained on land. The FOSC and RP
agreed to check the creek periodically to verify that no diesel has traveled there. The information
available for these spills suggests that the proposed rule would be unlikely to yield a different
determination regarding the response or oversight.
IV.B.3.3 Potential Environmental Impacts and Costs
IV.B.3.3.1 Water Quality
The agencies assessed the potential water quality impacts of the proposed rule using the same
methodology as described for the Ohio River basin watersheds. Table IV-39 describes the two SWAT
models used for this second case study. Modeled wetland impacts for HUC 1025 represent a very small
share of the existing acres of wetlands in the watershed and of the overall watershed size.
Table IV-39: Summary of SWAT models used to estimate water quality impacts of the
proposed rule in the Missouri River basin
Model characteristics
HUC 1025
HUC 1027
Republican River
Kansas River
Total watershed area (square miles)1
24,248.4
16,252.6
Number of HUC12 subbasins and reach segments modeled2
600
422
Average annual precipitation (in/year)
21.4
31.7
Baseline land use distribution:
% developed
0.5%
2.0%
% agriculture
96.3%
85.5%
% forested
0.3%
5.1%
% water
0.6%
3.1%
% wetlands
2.3%
4.3%
Unmitigated stream and wetland impacts3 under the
154.1
191.6
proposed rule over 20 years (acres)
Unmitigated stream and wetland impacts3 under the
0.04%
0.04%
proposed rule over 20 years (% of baseline wetland acres)
138 https://response.epa.gov/site/site_profile.aspx?site_id=8440
139 https://response.epa.gov/site/site_profile.aspx?site_id=7346
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-39: Summary of SWAT models used to estimate water quality impacts of the
proposed rule in the Missouri River basin
Model characteristics
HUC 1025
HUC 1027
Republican River
Kansas River
1 The watershed area is based on the SWAT model and may differ from the description in the introduction to Section IV.B
due to the omission or inclusions of HUC12 subbasins within the scope of each watershed as delineated in SWAT.
2 For HUC 1027, reach-level predictions also include contributions from upstream watersheds HUCs 1025 and 1026.
3 Unmitigated wetland impacts are based on permitted permanent impacts requiring mitigation and affecting wetlands
abutting ephemeral streams and non-abutting wetlands. The agencies assumed a width of 50 feet for linear impacts. For
watershed HUC 1027, the value includes only impacts in HUC12s subbasins of HUC 1025 and does not include impacts
within the catchment of other upstream tributaries (HUC 1026) which may also affect reach-level predictions.
IV.B.3.3.1.1 CWA Program Impacts
Following the approach described in Section IV.B.2.3.1, the agencies used estimates potential changes in
required mitigation for section 404 permits to specify changes in land use and wetland area in SWAT
models. Table IV-40 shows the predicted impacts in HUCs 1025 and 1027 as defined in the SWAT model
(i.e.. counting only permits that affected resources in HUC12 subbasins in the two SWAT HUC4
watersheds).
Table IV-40: Summary of 404 Program activities in Missouri River Basin SWAT models for
permits with permanent or temporary impacts to waters potentially affected by the proposed
rule and with mitigation requirements over 20-year analysis period. Modeled scenario considers
permanent impacts only.
Type of Potentially
Affected Resource2
Permanent
Impacts
(Acres)
Permanent
Impact
(Linear
Feet)
Total1
Permanent
Impacts
(Acres)
Temporary
Impact
(Acres)
Temporary
Impact
(Linear
Feet)
Total1
Temporary
Impacts
(Acres)
HUC 1025
Wetland abutting
ephemeral stream
2.3
0
2.3
0.0
0.0
0.0
Ephemeral stream3
0.0
132,920
152.6
0.0
20,020
23.0
Total
2.3
132,920
154.9
0.0
20,020
23.0
HUC 1027
Wetland abutting
ephemeral stream
17.5
0
17.5
1.2
0.0
1.2
Ephemeral stream3
0.0
151,692
174.1
0.0
2,920
3.4
Total
17.5
151,692
191.6
1.2
2,920
4.6
1 Represents the sum of impacts reported in acres and impacts reported in linear feet, assuming a width of 50 feet for linear
impacts.
2 See Table IV-8 for criteria used to identify affected resources that may change jurisdiction under the proposed rule.
3 Represents forgone mitigation for impacts to riparian areas of ephemeral streams, assuming a total buffer 50 feet wide.
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-41 and Table IV-42 summarize the changes specified for the baseline and policy scenarios,
respectively.
Table IV-41: Summary of land use changes in Missouri River Basin SWAT watersheds resulting
from 404 permits with permanent impacts to waters affected by the proposed rule and with
mitigation requirements, under Baseline scenario
Watershed and Land use
HUC12 Subbasins
(largest absolute change)1
Total watershed
(all subbasins)1
acres
% of existing
land use
Acres
% of existing
land use
HUC 1025
Developed area
2.4
0.26%
154.9
0.20%
Agricultural area
-2.4
-0.01%
-154.9
<-0.01%
HUC 1027
Developed area
1.4
<0.01%
191.6
0.09%
Agricultural area
-1.4
<-0.01%
-191.6
<-0.01%
1The number of subbasins with specified changes under the scenario is 531 in HUC 1025 (out of a total of 600 HUC12
subbasins in the watershed), and 420 in HUC 1027 (out of 422 subbasins).
Table IV-42: Summary of land use changes in Missouri River Basin SWAT watersheds resulting
from 404 permits with permanent impacts to waters affected by the proposed rule and with
mitigation requirements, under Policy scenario
Watershed and Land Use
HUC12 Subbasins
(subbasin with largest absolute
change)1
Total Watershed
(all subbasins)
acres
% of existing
land use
acres
% of existing
land use
HUC 1025
Developed area
2.4
0.26%
154.9
0.20%
Wetland area2
-2.4
-0.06%
-154.9
-0.04%
HUC 1027
Developed area
1.4
<0.01%
191.6
0.09%
Wetland area2
-1.4
-0.05%
-191.6
-0.04%
1The number of subbasins with specified changes under the scenario is 531 in HUC 1025 (out of a total of 600 HUC12
subbasins in the watershed), and 420 in HUC 1027 (out of 422 subbasins).
2 The difference between the percent of wetland land use affected in an individual HUC12 subbasin and for the overall
watershed is due to the distribution of changes among HUC12 subbasins that have both wetland and developed areas. Some
subbasins with wetland areas do not see changes under the modeled scenarios because they lack corresponding existing
developed areas to increase.
IV.B.3.3.1.2 Changes in Water Balance and Constituent Transport
Table IV-43 summarizes changes in basin-level annual average water balance and constituent transport in
the two watersheds of the Missouri River basin. Table IV-45 and Table IV-46 summarize changes
between the Policy and Baseline scenarios across subbasins within the two watersheds. Appendix D
provides more detailed outputs.
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-43: Summary of basin-level annual average water balance and constituent transport in
Missouri River Basin SWAT watersheds
Parameter
HUC 1025
HUC 1027
Baseline
Policy
Change
%
Change
Baseline
Policy
Change
%
Change
Precipitation (mm)
543.50
543.50
0.00
0.0%
805.00
805.00
0.00
0.0%
Surface runoff (mm)
8.33
8.33
0.00
0.0%
82.88
82.88
0.00
0.0%
Lateral flow (mm)
0.09
0.09
0.00
0.0%
2.94
2.94
0.00
0.0%
Groundwater flow (mm)
2.44
2.44
0.00
0.0%
12.99
12.99
0.00
0.0%
Water yield (mm)
10.46
10.45
-0.01
-0.1%
98.96
98.96
0.00
0.0%
Evapotranspiration (mm)
533.90
533.90
0.00
0.0%
685.40
685.40
0.00
0.0%
Sediment loading (ton/ha)
0.120
0.120
0.000
0.0%
2.370
2.370
0.000
0.0%
Organic N (kg/ha)
0.310
0.310
0.000
0.0%
2.687
2.687
0.000
0.0%
Organic P (kg/ha)
0.040
0.040
0.000
0.0%
0.317
0.317
0.000
0.0%
N03 in surface runoff
0.013
0.013
0.000
0.0%
0.008
0.008
0.000
0.0%
(kg/ha)
N03 in lateral flow (kg/ha)
0.001
0.001
0.000
0.0%
0.012
0.012
0.000
0.0%
Soluble P yield (kg/ha)
0.008
0.008
0.000
0.0%
0.102
0.102
0.000
0.0%
N03 leached (kg/ha)
0.116
0.116
0.000
0.0%
0.190
0.190
0.000
0.0%
P leached (kg/ha)
0.005
0.005
0.000
0.0%
0.016
0.016
0.000
0.0%
Table IV-44: Estimated change in annual average subbasin water balance and constituent
transport in SWAT watershed HUC 1025.
Number of Subbasins
by Direction of
Change1
Absolute Change
Model parameter
Increase
Decrease
Average
Median
Minimum
Maximum
Evapotranspiration (mm/yr)
338
132
0.00
0.00
-0.01
0.03
Surface runoff (mm/yr)
52
482
0.00
0.00
-0.01
0.00
Lateral flow (mm/yr)
113
410
0.00
0.00
0.00
0.00
Groundwater flow (mm/yr)
3
286
0.00
0.00
-0.02
0.00
Total water yield (mm/yr)
33
497
0.00
0.00
-0.03
0.00
Sediment yield (ton/ha/yr)
131
329
0.000
0.000
0.000
0.000
Organic N (kg/ha/yr)
246
283
0.000
0.000
0.000
0.002
Organic P (kg/ha/yr)
258
270
0.000
0.000
0.000
0.000
N03 in surface runoff (kg/ha/yr)
302
227
0.000
0.000
0.000
0.000
Soluble P (kg/ha/yr)
273
256
0.000
0.000
0.000
0.000
1 Total number of subbasins is 600. Some modeled subbasins show no change in annual average values and are not included
in the counts above.
Table IV-45: Estimated change in annual average subbasin water balance and constituent
transport in SWAT watershed HUC 1027.
Number of Subbasins
by Direction of
Change1
Absolute Change
Model parameter
Increase
Decrease
Average
Median
Minimum
Maximum
Evapotranspiration (mm/yr)
375
32
0.01
0.00
0.00
0.05
Surface runoff (mm/yr)
119
300
0.00
0.00
-0.02
0.09
Lateral flow (mm/yr)
200
197
0.00
0.00
0.00
0.00
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-45: Estimated change in annual average subbasin water balance and constituent
transport in SWAT watershed HUC 1027.
Number of Subbasins
by Direction of
Change1
Absolute Change
Model parameter
Increase
Decrease
Average
Median
Minimum
Maximum
Groundwater flow (mm/yr)
6
414
0.00
0.00
-0.04
0.08
Total water yield (mm/yr)
17
403
-0.01
0.00
-0.03
0.07
Sediment yield (ton/ha/yr)
353
67
0.000
0.000
0.000
0.007
Organic N (kg/ha/yr)
366
54
0.000
0.000
0.000
0.002
Organic P (kg/ha/yr)
368
52
0.000
0.000
0.000
0.000
N03 in surface runoff (kg/ha/yr)
362
58
0.000
0.000
0.000
0.000
Soluble P (kg/ha/yr)
374
46
0.000
0.000
0.000
0.000
1 Total number of subbasins is 422. Some modeled subbasins show no change in annual average values and are not included
in the counts above.
IV.B.3.3.1.3 Impacts to Streams
Table IV-46 summarizes the direction and relative magnitude of mean annual changes over all reaches
modeled in the two watersheds. Table IV-47 summarizes changes in mean annual loadings delivered to
the outlet of each watershed. These results reflect the contributions from all upstream reaches and their
respective catchments, as well as intervening instream processes modeled in SWAT, such as sediment
deposition. For HUC 1027, the results reflect changes within both the subbasins within the scope of the
watershed, as well as those in HUC 1025 through tributary inputs.140 More detailed results are included in
Appendix D.
As shown in the two tables, the SWAT model runs suggest that the proposed rule will increase nutrient
and sediment loads in streams within the Missouri River basin. This increase follows from the combined
effects of reduced wetland functions and land use change described in the previous section, but the
relative magnitude of the changes impact is attenuated by "background" contributions from point sources
- which, in the context of this analysis, are not affected by the policy - and from upstream reaches -
which may or may not be affected by the policy, depending on the location.
Table IV-46: Summary of predicted changes in loads transported by HUC12 reaches and in-
stream concentrations within the SWAT watersheds for the Missouri River Basin
Number of Reaches
Magnitude of Change
by Direction of
Change1
Increase
Decrease
Average
Median
Average %
Median %
Maximum
Parameter
Change
Change
Change
Change
% Change
HUC1025
Annual TN load (kg/yr)
125
428
-3.8
-0.1
-0.01%
0.00%
0.01%
Annual TP load (kg/yr)
153
398
-0.5
0.0
-0.01%
0.00%
0.01%
Annual sediment load (kg/yr)
165
387
-0.5
0.0
-0.01%
0.00%
0.07%
140 SWAT model runs for HUC 1027 incorporate simulated flows and delivered loads at the outlet of HUC 1025 for each
scenario (baseline and policy). The model run assumes no change in the contributions of other tributaries (HUCs 1026).
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Table IV-46: Summary of predicted changes in loads transported by HUC12 reaches and in-
stream concentrations within the SWAT watersheds for the Missouri River Basin
Number of Reaches
by Direction of
Change1
Magnitude of Change
Parameter
Increase
Decrease
Average
Change
Median
Change
Average %
Change
Median %
Change
Maximum
% Change
Mean daily flow (cms)
64
480
0.000
0.000
-0.01%
0.00%
0.01%
HUC 1027
Annual TN load (kg/yr)
379
41
25.8
2.0
0.00%
0.00%
0.03%
Annual TP load (kg/yr)
380
40
6.7
0.4
0.00%
0.00%
0.03%
Annual sediment load (kg/yr)
231
189
5.2
0.1
0.00%
0.00%
0.29%
Mean daily flow (cms)
12
408
-0.001
0.000
-0.01%
-0.01%
0.04%
1 Total number of reaches is 600 in HUC 1025 and 422 in HUC 1027. Some modeled reaches show no change in annual average
values and are not included in the counts above.
Table IV-47: Predicted changes in annual average loads delivered to the outlet of Missouri River
Basin SWAT watersheds
Parameter
Baseline
Policy
Change
% Change
HUC 1025
Annual TN load (kg/yr)
2,899,348
2,899,387
38
<0.01%
Annual TP load (kg/yr)
639,879
639,893
14
<0.01%
Annual sediment load (ton/yr)
174,827
174,746
-81
-0.05%
HUC 1027
Annual TN load (kg/yr)
17,798,788
17,799,129
341
0.00%
Annual TP load (kg/yr)
3,790,102
3,790,203
101
0.00%
Annual sediment load (ton/yr)
2,755,694
2,755,818
124
0.00%
IV.B.3.3.2 Drinking Water
There is one public drinking water intake and one spring in the Republican River watershed (HUC 1025)
and one infiltration gallery, 14 public drinking water intakes, and one spring in the Kansas River
watershed (HUC 1027).
The SWAT runs predict very small changes (0.02 percent) in mean daily suspended sediment
concentration in the reach used as the source for the sole drinking water intake in HUC 1025. The
agencies did not quantify the changes in drinking water treatment costs but the small predicted changes in
sediment concentrations are unlikely to result in material changes to these costs.
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Table IV-48: Drinking Water Intakes in Lower Missouri River Study Areas
SWAT
Watershed
HUC4
Number of
community
water
systems
Number of
intakes
Number of
people
served
Change in daily suspended sediment
concentration
Minimum
Mean
Maximum
1025
1
1
2.812
0.02%
0.02%
0.02%
1027
11
14
668,979
-0.02%
0.00%
0.03%
Total:
12
15
676,232
Source: EPA analysis of SDWIS (2017) data.
IV.B.3.3.3 Dredging for Water Storage and Navigation
The SWAT models identify nine reservoirs within HUC 1025 and five reservoir in HUC 1027.141 As
shown in Table IV-49, the SWAT model runs predict small declines (less than 0.1 percent in HUC 1025
and less than 0.01 percent in HUC 1027) in sediment deposition in reservoirs in the watersheds,
calculated as the difference between incoming sediment fluxes and outgoing fluxes.
Table IV-49: Summary of predicted net sediment depositions in reservoirs in the
Missouri River Basin (tons/year) in 2040
HUC4
Number of
reservoirs1
Net annual sediment
deposition in reservoirs
Change relative to baseline2
Baseline
Policy
Tons/year
Percent
1025
9
14,979
14,970
-10
-0.07%
1027
5
6,804,648
6,804,568
-81
-0.00%
Total
14
6,819,627
6,819,538
-91
-0.00%
1 Reservoirs modeled in SWAT watersheds, based on the U.S. Army Corps of Engineers National Inventory
of Dams as of October 2010.
2 Changes may not correspond to the differences in sediment deposition due to rounding.
The agencies used the approach described in Section IV.B.2.3.3 for Case Study 1 to estimate the change
in annualized dredging costs. The estimated change in dredging costs is negligible in both HUC 1025 and
HUC 1027 at less than $500 per year overall across the two watersheds. See Section IV.B.5 for more
detail on uncertainties in this analysis.
IV.B.3.3.4 Ecosystem Services Provided by Ephemeral Streams
In reviewing the Draft Connectivity Report entitled "Connectivity of Streams and Wetlands to
Downstream Waters: A Review of the Scientific Evidence," 142 EPA's SAB found that "[t]he literature
141 The SWAT watersheds include reservoirs identified in the U.S. Army Corps of Engineers National Inventory of Dams as of
October 2010.
142 U.S. EPA. Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence
(External Review Draft). U.S. Environmental Protection Agency, Washington, DC, EPA/600/R11/098B, September 2013.
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
review provides strong scientific support for the conclusion that ephemeral, intermittent, and perennial
streams exert a strong influence on the character and functioning of downstream waters and that tributary
streams are connected to downstream waters," at the same time the SAB stressed that "the EPA should
recognize that there is a gradient of connectivity."143 The SAB recommended that "the interpretation of
connectivity be revised to reflect a gradient approach that recognizes variation in the frequency, duration,
magnitude, predictability, and consequences of physical, chemical, and biological connections."144 As the
preamble to the proposed rule describes, the SAB found perennial and intermittent streams have a greater
probability to impact downstream waters compared to ephemeral streams.
The agencies recognize that waters within a watershed are connected along such a gradient and that the
degree of connectivity among aquatic components varies along a continuum from highly connected to
highly isolated (U.S. EPA 2015b). In Missouri, generally more isolated temporary streams such as
intermittent and ephemeral streams far outnumber generally more connected perennial streams (see Table
IV-30 for detail). Ephemeral streams in Missouri are located above the water table year-round and flows
originate primarily from precipitation runoff (U.S. Army Corps of Engineers, 2013).
Although more isolated than perennial streams and adjacent wetlands, ephemeral streams and isolated
wetlands support various ecosystem services. For example, in the Lower Missouri River Basin, temporary
streams provide habitat to hundreds of species of insects, snails and other invertebrates that, in turn,
provide food for amphibians, reptiles, birds, and mammals. Riparian vegetation surrounding temporary
streams even when they appear dry often provide the only habitat for many wildlife species, particularly
in agricultural landscapes (Dasho and DiStephano, 2011). Vegetation along the banks of temporary
streams also filters runoff-related non-point source pollutants, such as nitrogen and phosphorus, and
prevents the runoff of such pollutants into downstream reaches.
Species that rely on temporary streams are well adapted to the wet/dry cycle. For example, the eggs of
some stoneflies sometimes remain dormant for several years until streams are rewetted. Other organisms
have also developed wet/drought life cycles. Missouri salamanders often prefer temporary streams to
perennial streams, burrowing into wetted stream bottoms when the stream dries (Dasho and Di Stephano,
2011). Amphibian species in the Lower Missouri River floodplain such as the eastern tiger salamander,
smallmouth salamander, Great Plains toad, Woodhouse's toad, and Plains spadefoot toad rely on
ephemeral waterbody habitats for reproduction (U.S. Army Corps of Engineers, Kansas City District,
2017). Ephemeral waterbodies also provide habitat to threatened and endangered species. Threatened in
Kansas, the Strecker's chorus frog breeds in ephemeral pools where there are no predator fish present
(Fort Hays State University, 2018; Kansas Department of Wildlife, Parks and Tourism, n.d.).
IV.B.4 Case Study 3: Rio Grande River Basin
This case study encompasses the length of the Pecos River from southeast of Santa Fe, New Mexico to
the Texas-Mexico border where the Pecos River meets the Rio Grande. The Upper and Lower Pecos
River watersheds are located within the Southwestern Tablelands ecoregion (CEC, 2011). According to
143 Letter to Gina McCarthy. October 17, 2014. SAB Review of the Draft EPA Report Connectivity of Streams and Wetlands to
Downstream Waters: A Review and Synthesis of the Scientific Evidence. Page 3.
144 Id. at 2 (emphasis added).
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IV —Stage 2 Analysis: C.WA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
CEC (2011), the ecoregion is characterized by dry mid-latitude stepped climate. Mean annual
precipitation is 448 mm (17.6 inches). Water is generally scarce with streams mostly ephemeral and
intermittent. Land use is mostly semiarid rangeland with ranching and livestock grazing the dominant
land uses, and some oil and gas production.
Figure IV-18 and Figure V-14 show maps of the HUC 1306 and HUC 1307 case study watersheds,
respectively.
Figure IV-18: Map of HUC 1306 - Upper portion of the Pecos River Basin showing NHD water
features and NWI wetlands in relation to state boundaries, populated areas, and major roads.
Legend
highways
» I HUC4
H NHD Waterbody
M NMD Area
NWI Wetlands
Intermittent
Ephemeral
|Y t2.400.II)0
Soiree: NHD, 2018; NWI. 2018; ESRI.201S
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IV —Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Figure IV-19: Map of HUC 1307 - Lower portion of the Pecos River Basin showing NHD water
features and NWI wetlands in relation to state boundaries, populated areas, and major roads.
htobbs
Legend
highways NHD Flowlines
I I HUC4 Perennial
IH f^lD Waterbody Artificial Path
I ¦ WD Area Intermittent
WW I Wetlands Ephemeral
O0 12.5 25
|| 12.100.030
Source: NHD. 2018; NWI. 2Q1& ESRI.2D18
IV.B.4.1 Aquatic Resources Characteristics
Table IV-50 summarizes the hydrography within the case study watersheds. The data present the number
of stream miles in each flow regime category, as well as acres of non-abutting and abutting wetlands
according to the agencies" geospatial analysis of the high resolution NHD and the NWI.145 The high
resolution NHD data for this region differentiates stream attributes according to the stream flow regime.
145 The agencies note that this analysis may not capture those wetlands that are not abutting a jurisdictional water but have a
direct hydrologic surface connection to a jurisdictional water in a typical year and would thus meetthe proposed definition
of "adjacent wetlands."
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As presented in the table, 85 to 91 percent of stream miles within the two watersheds are ephemeral, and
34 to 62 percent of all wetland acres are non-abutting wetlands.
Table IV-50: Hydrographic profile of case study watersheds in the Rio Grande River Basin
Feature
Feature
HUC 1306
HUC 1307
Type
Attributes
Miles or acres
Percent of total
Miles or acres
Percent of total
Streams
Total
35,440
100%
25,436
100%
(miles)
Perennial
872
2%
126
0%
Intermittent
2,210
6%
947
4%
Ephemeral
30,164
85%
23,171
91%
Artificial path
1,252
4%
744
3%
Other1
943
3%
448
2%
Wetlands
Total
52,652
100%
17,353
100%
(acres)
Abutting
34,593
66%
6,666
38%
Non-abutting
18,058
34%
10,688
62%
1 Includes canal, ditches, aqueducts, and other feature without attributes.
The values are based on the agencies' geospatial analysis of NHD and NWI data and reflect gaps in NHD stream attributes.
IV.B.4.2 Program Changes
IV.B.4.2.1 Section 402
Table IV-51 presents the number of NPDES permits issued in the Rio Grande River Basin by the most
common industry categories. The number of permits issued in the two case study watersheds includes 22
individual permits and 201 general permits. Based on the permits with SIC codes, the most common
industries in the Rio Grande River Basin include aggregate mining, motor vehicle parts (used), animal
feeding operations, sewage systems, scrap and waste materials, ready-mixed concrete, and industrial
domestic wastewater treatment. The agencies estimated that one individual permit and six general permits
in the Rio Grande River Basin have at least one discharge near an ephemeral stream. None of the permits
affected by the rule have SIC codes available.
Table IV-51: Section 402 individual permits (SIC codes in parentheses) issued in case study
watersheds in the Rio Grande River Basin
Individual permits1
General permits1
Industry category
Total
number
of NPDES
permits
Permits with discharge
point near ephemeral
streams2
Total
number
of NPDES
permits1
Permits with discharge
point near ephemeral
streams2
Number of
permits
Percent of
all permits
Number of
permits
Number of
permits
HUC 1306
Aggregate Mining3
0
0
0%
15
0
0%
Motor Vehicle Parts, Used
(5015)
0
0
0%
9
0
0%
Animal Feeding
Operations4
0
0
0%
6
0
0%
Scrap and Waste Materials
(5093)
0
0
0%
6
0
0%
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Table IV-51: Section 402 individual permits (SIC codes in parentheses) issued in case study
watersheds in the Rio Grande River Basin
Individual permits1
General permits1
Industry category
Total
number
of NPDES
permits
Permits with discharge
point near ephemeral
streams2
Total
number
of NPDES
permits1
Permits with discharge
point near ephemeral
streams2
Number of
permits
Percent of
all permits
Number of
permits
Number of
permits
Sewerage Systems (4952)
9
0
0%
1
0
0%
Other Categories5
6
0
0%
31
0
0%
Missing SIC Codes
0
0
0%
105
5
5%
Total
15
0
0%
173
5
3%
HUC 1307
Industrial Domestic
Wastewater Treatment6
2
0
0%
0
0
0%
Ready-Mixed Concrete
(3273)
0
0
0%
3
0
0%
Aggregate Mining3
0
0
0%
2
0
0%
Animal Feeding
Operations4
0
0
0%
2
0
0%
Sewerage Systems (4952)
3
0
0%
0
0
0%
Other Categories5
2
0
0%
0
0
0%
Missing SIC Codes
0
1
0%
21
1
5%
Total
7
1
14%
28
1
4%
Total for both watersheds
22
1
5%
201
6
3%
1Source: EPA's ICIS-NPDES data, 2017. The facility permits included in the spatial analysis are limited to those for which the
ICIS-NPDES database includes latitude/longitude coordinates. For permits with multiple SIC codes, only one SIC code was
retained, with manufacturing industries prioritized, to avoid double-counting.
2 The agencies used the Cowardin classification code in NWI to determine whether 402 discharges are likely to affect
ephemeral streams (i.e., the agencies interpreted Cowardin codes R4SBA and R4SBJ as ephemeral; see Section IV.B for more
detail).
3 Includes SIC Codes 1422, 1423, 1429, 1442, 1446, 1459,1474, 1475, 1481, and 1499
4 Includes SIC Codes 211, 212, 213, 214, 219, 241, 251, 252, 253, 254, 259, 271, 272, and 279
5 Includes Asphalt Paving Mixtures and Blocks (2951), Construction and Development (1629,1794, 6552,1611,1799,1521,
1522, and 1623), Trucking Facilities (4212, 4231), and Water Supply (4941)
6 Includes SIC Codes 6513, 6514, 6515, 7011, 7032, 7033, 8211, 8221, 8641, and 8661
Only one individual NPDES permit potentially affects ephemeral streams (NPDES ID TX0076422), and
this permit is subject to WQBELs.146 Should the definition of "waters of the United States" change, a
permittee subject to more stringent limits based on a WQBEL could request revision of its WQBEL to
account for potential dilution or attenuation of the pollutant(s) occurring between end-of-pipe and the
146 Some of the common industry categories in the Rio Grande River Basin have technology-based effluent limitations (TBELs),
including aggregate mining, animal feeding operations, and sewage systems (secondary). The industrial domestic
wastewater treatment, motor vehicle parts, scrap and waste materials, and ready-mixed concrete industries do not have
national TBELs. For facilities in these four industry categories, effluent limitations are either water quality-based
(WQBELs) for pollutants with applicable water quality standards, or TBELs based on the best professional judgement of the
permit writer (U.S. EPA; 2011).
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
point where the effluent enters jurisdictional waters. Under this scenario, the permittee may realize cost
savings as compared to meeting the previous permit limits.
NPDES permits for discharges near ephemeral waters were issued in one states in HUC 1306 (New
Mexico) and two states in HUC 1307 (New Mexico and Texas). Based on potential state responses and
analytic scenarios described in Section II.A.3, Texas is expected to protect waters beyond the CWA under
Scenarios 2 and 3, while New Mexico is not anticipated to protect waters beyond the CWA under any
scenarios.
The number of permits affected by the proposed rule in HUC 1306 remains constant under all scenarios
since all permits for discharges near ephemeral streams are issued in New Mexico, which is not expected
to regulate waters beyond the CWA under any scenario. The number of permits affected by the rule in
HUC 1307 is reduced from 2 to 1 under Scenario 2 (3). As noted above, SIC codes are not available for
the affected permits and therefore it is unknown whether these permits are based on TBELs or WQBELs
and as a result the effects of the proposed rule on potential cost savings and changes in pollutant
discharges are highly uncertain.
IV.B.4.2.2 Section 404
Table IV-52 summarizes section 404 permits issued in 2011-2015 within the Rio Grande River Basin that
required mitigation on RPWWN-type wetlands or ephemeral streams. As presented in the table, the
agencies' geospatial analysis shows one permit in HUC 1306 issued by the Corps with impacts that
required mitigation on waters affected by the proposed "waters of the United States" definitional changes.
The annual average permanent impacts resulting from 404 permits in HUC 1306 is 0.004 acres. Permit
impacts occurred in New Mexico, a state that is only expected to implement state protections more
stringent than CWA requirements under Scenario 3. From 2011-2015, no permits were issued in HUC
1307 that required mitigation on waters affected by the proposed rule.
Table IV-52: Section 404 permits issued in case study watersheds in the Rio Grande River
Basin (2011-2015)
State
#
Permitted
Projects
# Permits with
mitigation
requirements affected
by proposed changes
to the definition of
"waters of the United
States"12
Permanent impacts1
Temporary impacts1
Acres
Length Feet
Acres
Length Feet
HUC 1306
NM
168
1
0.018
0.0
0.000
0.0
Total
168
1
0.018
0
0.000
0
Avg.
per
year
34
0
0.004
0
0.000
0
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-52: Section 404 permits issued in case study watersheds in the Rio Grande River
Basin (2011-2015)
State
#
Permitted
Projects
# Permits with
mitigation
requirements affected
by proposed changes
to the definition of
"waters of the United
States" ^2
Permanent impacts1
Temporary impacts1
Acres
Length Feet
Acres
Length Feet
HUC 1307
NM
39
0
0.000
0
0.000
0
TX
6
0
0.000
0
0.000
0
Total
45
0
0.000
0
0.000
0
Avg.
per
year
9
0
0.000
0
0.000
0
1 Values based on permits with mitigation requirements on waterways determined to be RPWWN-type wetlands or
ephemeral streams. Excludes permits issued for mitigation or restoration activities because the main purpose of these
activities is to restore or enhance ecosystem services provided by water resources as opposed to dredge and fill activities
that lead to permanent or temporary losses of ecosystem services. No 404 permits in HUC 1307 meet these requirements.
2 Number of permits includes permits with mitigation requirements that potentially affect at least one water no longer
jurisdictional under the CWA under the proposed rule.
IV.B.4.2.2.1 Cost Savings
To estimate permit cost savings, the agencies determined the average number of individual and general
404 permits issued each year, based on permits issued from 2011 to 2015, that affect only waters no
longer protected as jurisdictional under the proposed rule. The agencies then multiplied the annual
average number of reduced individual and general permits by lower bound US ACE estimates of permit
costs (U.S. EPA and Department of the Army, 2015). The agencies used the lower bound estimate to
avoid double-counting compensatory mitigation costs.
Table IV-53 shows the average number of reduced individual and general permits, USACE unit
application costs, and the estimated reduction in permit applications costs for individual and general
permits in the Rio Grande River Basin under each scenario. The USACE unit costs estimates ($14,700
per individual permit; $4,400 per general permit) are adjusted from 1999$ to 2017$ using the CPI-U.
Permits affecting only RPWWN-type wetlands or ephemeral streams were issued in one state in HUC
1306 (New Mexico) and two states in HUC 1307 (New Mexico and Texas). Reduced permit costs remain
constant at $0.11 million under Scenarios 0, 1, and 2. Under Scenario 3, permit cost savings drop to $0
since both states are expected to protect waters beyond the CWA.
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-53: Average annual reduction in 404 permit application costs in the Rio Grande River
Basin
Unit
Costs
from
Corps
NWP
Analysis
(2017$)
Scenario 0 & l1,2
Scenario 21
Scenario 31
Permit
Type
Annual
Average
Reduction in
Permits with
the
Proposed
Rule
Estimated
Reduction
in Permits
Costs
(millions
2017$)
Annual
Average
Reduction
in Permits
with the
Proposed
Rule
Estimated
Reduction
in Permits
Costs
(millions
2017$)
Annual
Average
Reduction
in Permits
with the
Proposed
Rule
Estimated
Reduction
in Permits
Costs
(millions
2017$)
HUC 1306
IP
$14,700
0.0
$0.00
0.0
$0.00
0.0
$0.00
GP
$4,400
17.0
$0.07
17.0
$0.07
0.0
$0.00
Total
17.0
$0.07
17.0
$0.07
0.0
$0.00
HUC 1307
IP
$14,700
0.0
$0.00
0.0
$0.00
0.0
$0.00
GP
$4,400
8.0
$0.04
8.0
$0.04
0.0
$0.00
Total
8.0
$0.04
8.0
$0.04
0.0
$0.00
Both Watersheds
IP
0.0
$0.00
0.0
$0.00
0.0
$0.00
GP
25.0
$0.11
25.0
$0.11
0.0
$0.00
Total
25.0
$0.11
25.0
$0.11
0.0
$0.00
1 Includes permits estimated to only affect waters no longer jurisdictional under the CWA under the proposed rule.
2 Scenarios 0 and 1 are combined because all values are identical.
Because the average annual reduction in mitigation requirements is small in the Rio Grande River Basin
(0.004 acres in HUC 1306; no reductions in HUC 1307), the annual cost savings from reduced mitigation
requirements is negligible. To estimate annual cost savings from reduced mitigation requirements in HUC
1306, the agencies multiplied the expected reduction in annual mitigation requirements (0.004 acres) by
low ($51,850) and high ($72,490) per acre estimates for New Mexico. Annual mitigation cost savings
under Scenarios 0, 1, and 2 are significantly less than $0.01 million ($187 to $261). Mitigation cost
savings drop to $0 under Scenario 3 since New Mexico, the state where all mitigation requirement
reductions occur in the Rio Grande River Basin, is expected to protect waters beyond CWA requirements.
Because mitigation cost savings are so small, the permit cost savings values presented in Table IV-53
represent total cost savings.
IV.B.4.2.2.2 Forgone Benefits
The agencies did not estimate the forgone benefit value of lost mitigation acres for the Rio Grande River
Basin case study because none of the existing wetland valuation studies were conducted in the same
geographic area or provided a good match for the affected resource characteristics. The meta-analysis of
wetland valuation studies developed by Moeltner et al. (2018) was also based on a set of studies
conducted in different geographic areas that valued the type of wetlands not typically present in the case
study watershed (e.g., fresh water marshes or forested seasonally or temporary flooded wetlands). Given
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that the estimated reduction in mitigation requirements in the case study area is very small (annual
average of 0.004 acres), the expected value of forgone benefits is likely to be small as well.
IV.B.4.2.3 Section 311
The watershed encompasses the Edwards Plateau's inland oil production area around Odessa and
Midland, Texas. There were approximately 49,800 active oil wells in the two watersheds in 2018, based
on data the agencies obtained from the Texas Railroad Commission and New Mexico's Oil Conservation
Division. Assuming that a facility corresponds to a tank battery with an average of four producing wells
per tank battery,147 this translates into an estimated 12,400 facilities that may be subject to SPCC
requirements in the baseline if they have a reasonable expectation of a discharge to "waters of the United
States." Additionally, the 2012 Census of Agriculture (USDA, 2014) shows approximately 20 million
acres of land in farm production and 4,000 farm establishments in the two watersheds. Based on average
annual fuel expenditures by size class in the Census, the agencies estimate that approximately 160 farms
may be subject to SPCC requirements in the baseline if they also have a reasonable expectation of a
discharge to "waters of the United States." The proposed rule could affect an unknown share of these
facilities in cases where they no longer have a reasonable expectation of a discharge to a "water of the
United States."
The high-resolution NHD data in these two watersheds include attributes that distinguish ephemeral
streams from those with perennial or intermittent flow regimes. In addition, the agencies obtained data on
the location of wells that may be associated with onshore oil production regulated under the SPCC
program. The combination of these two datasets enabled the agencies to assess the potential impacts of
the proposed rule on an important subset of SPCC-regulated facilities in this region and nationally. The
agencies' analysis inventoried the NHD waters and NWI wetlands located within a half-mile distance of
each well. The use of a half-mile radius was informed by the planning distance used in the FRP rule to
identify resources that could be affected by an oil discharge; it is not a hard rule for determining SPCC
applicability.
There are approximately 49,800 oil production wells in the upper and lower Pecos River watersheds
(HUC 1306 and 1307). Of these wells, approximately 24,800 wells have water bodies, including
wetlands, located within a half-mile of the well. For over half of those wells (13,800 wells), the only
streams within the half-mile search radius are ephemeral (i.e.. there are no perennial or intermittent
streams). Based on this analysis, and assuming that the geographical distribution of SPCC facilities is
similar to that of the wells, the agencies estimate that 3,460 oil production facilities148 within the
watershed may be farther than a half-mile from any perennial or intermittent streams, and therefore may
be less likely to have a reasonable potential to discharge to waters of the United States under the proposed
rule. Facility owners that determine that their facility does not have a reasonable potential of a discharge
may forgo preparing or maintaining an SPCC Plan in accordance with 40 CFR 112. As presented in
Section IV. A.3.2 (see Table IV-6), the annualized cost of maintaining an SPCC Plan for a production
147 The 4:1 ratio of wells per tank battery follows the approach EPA used for the Regulatory Impact Analysis for the 2008
Amendments to the Oil Pollution Prevention Regulations (40 CFR PART 112) (U.S. EPA, 2007)
148 The agencies estimated the number of facilities by assuming an average of 4 wells per facility (13,846 wells / 4 wells per
facility = 3,461 facilities).
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facility ranges between $6,200 and $27,500. For a new facility, the annualized cost ranges between
$40,900 and $523,700. The agencies did not have sufficient data to quantify the potential increase in oil
spill risk from any change in the implementation of SPCC measures.
Table IV-54: Proximity of waters to active oil production wells in the Upper and Lower Pecos
watersheds
Number of active
Number of wells based on proximity to waters, including
wetlands, (within a half-mile radius)
HUC4
State
oil wells
Any stream or wetland
Ephemeral stream only
NM
13,565
6,104
4,116
TX
0
0
0
Total
13,565
6,104
4,116
1306
% of total
100%
45%
30%
NM
7,115
3,137
1,611
TX
29,083
15,551
8,119
Total
36,198
18,688
9,730
1307
% of total
100%
52%
27%
Total
49,763
24,792
13,846
% of Total
100%
50%
28%
Based on geospatial analysis of oil well locations obtained from Texas Railroad Commission and New Mexico Oil Conservation
Commission, relative to NHD and NWI features.
The two watersheds also count a total of 16 FRP facilities, four in HUC 1306 and 12 in HUC 1307. Two
of these facilities have streams categorized as perennial or intermittent in the high resolution NHD within
a half-mile of the facility. The other 14 facilities have only ephemeral streams or wetlands within a half-
mile of the facility. Therefore, to the extent that the proposed rule makes ephemeral streams and certain
non-abutting wetlands non-jurisdictional and these are the only resources within the FRP planning
distance, the agencies anticipate that these facilities could potentially seek reconsideration of FRP
applicability. If so, then there may be cost savings for these facilities from not having to maintain an FRP.
As presented in Section IV.A.3.2, the costs of maintaining an FRP ranges from approximately $32,300 to
$37,200 (see Table IV-7), The agencies did not have sufficient data to quantify the potential increase in
oil spill risk, but analysis of the 14 facilities shows that they all have at least one million gallons of oil
storage capacity and for at least 9 facilities, an oil discharge could impact sensitive environments,
according to the harm criteria provided in EPA's FRP database. Sensitive environments are Plan-specific
and include transportation routes, flora and fauna, and recreational areas.
EPA FOSCs did not respond to any oil spill incidents in the Upper and Lower Pecos watersheds between
2001 and 2017.
IV.B.4.3 Potential Environmental Impacts and Costs
IV.B.4.3.1 Water Quality
As described in Section IV.B.4.2, the agencies found the projected impacts of the proposed rule on the
404 and 402 programs to be small in the upper and lower Pecos River watersheds. Given this finding of
minimal changes and the scale and scope of the SWAT model, the agencies did not model water quality
impacts downstream from affected wetlands and streams. While the agencies did not quantify the impacts
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of these changes, in general, the agencies anticipate that forgone wetland mitigation in the Rio Grande
watersheds could increase pollutant loads downstream from the affected areas. These changes may in turn
increase sedimentation in reservoirs, increase the turbidity of source waters, and increase the potential for
and magnitude of floods.
IV.B.4.3.2 Drinking Water
According to the EPA's SDWIS database, the Upper Pecos River watershed (HUC 1306) includes 30
public drinking water facilities, including four intakes, two reservoirs, and 23 springs. There are no public
drinking water facilities (intakes, springs, or others) in the Lower Pecos watershed. As described in the
previous section, higher sediment loads due to reduced wetlands could increase the turbidity of source
water, but these effects are expected to be small given predicted 404 program impacts.
Table IV-55: Public drinking water intakes in the Upper and Lower Pecos
watersheds
HUC4
Number of intakes
Number of people
served
Potential impacts
from proposed rule
1306
4
37,120
Not quantified
1307
0
0
Not quantified
Total
4
37,120
Not quantified
Source: EPA analysis of SDWIS (2017) data.
IV.B.4.3.3 Dredging for Water Storage and Navigation
The agencies did not quantify the impacts of the proposed rule on reservoir sedimentation. As described
above, higher sediment loads due to reduced wetlands could increase sedimentation in downstream
reservoirs, but these effects are expected to be small given predicted 404 program impacts.
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IV.B.4.3.4 Ecosystem Services Provided Ephemeral Streams
In reviewing the Draft Connectivity Report entitled "Connectivity of Streams and Wetlands to
Downstream Waters: A Review of the Scientific Evidence,"149 EPA's SAB found that "[t]he literature
review provides strong scientific support for the conclusion that ephemeral, intermittent, and perennial
streams exert a strong influence on the character and functioning of downstream waters and that tributary
streams are connected to downstream waters," at the same time the SAB stressed that "the EPA should
recognize that there is a gradient of connectivity."150 The SAB recommended that "the interpretation of
connectivity be revised to reflect a gradient approach that recognizes variation in the frequency, duration,
magnitude, predictability, and consequences of physical, chemical, and biological connections."151 As the
preamble to the proposed rule describes, the SAB found perennial and intermittent streams have a greater
probability to impact downstream waters compared to ephemeral streams.
The agencies recognize that waters within a watershed are connected along such a gradient and that the
degree of connectivity among aquatic components varies along a continuum from highly connected to
highly isolated (U.S. EPA 2015b). In the semi-arid Upper and Lower Pecos watersheds (HUC 1306 and
1307), the majority of streams are ephemeral, falling toward the more isolated end of the connectivity
gradient (see Table IV-50). Although these streams have different characteristics from generally more
highly connected perennial streams that are in wetter environments, they perform similar hydrological and
ecological functions, including moving water, sediments, and nutrients, providing connectivity within the
watershed and habitat to wildlife (Levick et al. 2008).
Ephemeral streams in arid and semi-arid areas support a variety of ecosystem services. For example,
ephemeral streams play an important role in replenishing groundwater in the arid West, which people in
the study area heavily depend on for irrigation and drinking water supply (Levick, et al., 2008). One of
the major sources of regional groundwater in the Rio Grande, for instance, is seepage from the Rio
Grande, the Rio Puerco, and from the ephemeral Abo and Tijera Arroyos (U.S. EPA, 2015b).
Even during dry periods, water may always be present below the ground in ephemeral streams and
accessible to a rich assemblage of plant and animal life. In arid areas ephemeral stream channels are
easily recognizable by their dense corridor of vegetation that supports the disproportionately high
biological diversity of desert environments relative to their total area (Warren and Anderson, 1985 as
cited in Levick et al. 2008). Ephemeral stream channels (washes) with shallow ground-water zones are
typically lined with trees including Fremont Cottonwood, Arizona sycamore, Arizona ash, acacia, blue
palo verde, or velvet mesquite and shrubs such as wolfberry or brickellbush (Hardy et al., 2004; Levick et
al. 2008). Federally listed threatened plants such as Pecos sunflower also inhabit stream courses
dependent on shallow groundwater (U.S. FWS 2005).
149 U.S. EPA. Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence
(External Review Draft). U.S. Environmental Protection Agency, Washington, DC, EPA/600/R11/098B, September 2013.
150 Letter to Gina McCarthy. October 17, 2014. SAB Review of the Draft EPA Report Connectivity of Streams and Wetlands to
Downstream Waters: A Review and Synthesis of the Scientific Evidence. Page 3.
151 Id. at 2 (emphasis added).
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Because ephemeral stream channels have a higher moisture content and more abundant vegetation than
the surrounding areas, they support the greatest concentrations of wildlife in arid regions. Wildlife utilizes
ephemeral stream channels with continuous vegetation for food sources, predator protection, breeding and
nesting sites, shade, and movement corridors. Some species that depend on the microclimates provided by
ephemeral streams cannot survive the harsh desert environment, and therefore cannot move to other
suitable habitats if their homes are harmed (Levick, et al., 2008).
IV.B.5 Limitations and Uncertainty of Case Study Analyses
Several methodological and data limitations affect the case study analyses or contribute to uncertainty.
These limitations are in addition to the limitations inherent to the data sources previously discussed in
Section II.C. They include:
• Case study locations may not be indicative of nationwide impacts. Case study locations do not
include watersheds predicted to see the largest changes in wetland areas or ephemeral streams and
may therefore not be representative of impacts of the proposed rule across the United States.
Factors considered by the agencies in selecting among case study candidates prioritized locations
for which primary wetland valuation studies were available and the states were less likely to
continue to regulate newly non-jurisdictional waters. While these locations show that the
proposed rule will have relatively small impacts, the 404 program data used in the later national
analysis identify other watersheds where a significantly greater amount of mitigation occurred in
2011-2015 to address impacts of permitted activities. Therefore, cost savings, environmental
impacts, and forgone benefits in these watersheds may be larger (or smaller) than estimated for
the three case studies presented in this section. The agencies welcome comment on whether the
three case studies are sufficient to illustrate the impacts of the proposed rule.
• Available data provide only an incomplete inventory of existing projects and permits
affecting ephemeral streams and other waters affected by the proposed rule. The high
resolution NHD data do not consistently differentiate stream attributes according to the stream
flow regime, limiting the agencies' ability to identify activities or dischargers affecting these
waters in the baseline. Because of this limitation, EPA relied primarily on information provided
in program databases and/or NWI wetland attributes when determining the type of affected
waters. The information provided in these alternative data sources was not always sufficient to
categorize the flow regime; where this was the case, the agencies assumed that these waters are
not ephemeral. This may have omitted relevant activities or permits from the analysis, which
would understate the impacts of the proposed rule.
• The analysis of the 402 program uses NWI data to estimate the flow regime of receiving
waters. To estimate which permitted discharges might be affected by the proposed rule, the
agencies relied on 402 permit locational information and NWI data. The agencies used the
Cowardin classification code assigned to the NWI resource closest to the coordinates of permitted
outfalls to approximate the flow regime of the receiving waters. If the Cowardin classification
code of the receiving water was either R4SBA (Riverine, Intermittent, Streambed, Temporarily
Flooded) or R4SBJ (Riverine, Intermittent, Streambed, Intermittently Flooded), the permitted
discharge was assumed to likely be to an ephemeral water. The agencies used NWI instead of
NHD to assess flow regime of receiving waters because the NHD dataset does not consistently
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distinguish between intermittent and ephemeral streams nationwide. The use of NWI data may
result in an underestimate of the number of 402 permits potentially discharging to ephemeral
waters, as the NWI does not map all ephemeral streams and does not include a Water Regime
Modifier for all streams, which was used to determine which streams mapped in the NWI were
likely ephemeral. The agencies solicit comment regarding the assumptions and validity of the use
of Cowardin Classification System codes R4SBA and R4SBJ to identify ephemeral features for
use in the Case Study section 311 and section 402 analyses. More specifically, given the
"Temporarily Flooded" category includes streams where surface water may be present for "a few
weeks," and the "Temporarily Flooded" definition implies there may be times when the water
table is above the ground surface, the agencies seek comment whether waters identified as
"Temporarily Flooded" would more appropriately be classified as intermittent rather than
ephemeral for purposes of the agencies' analyses. Additionally, the agencies seek comment
whether the "Temporarily Flooded" category covers both intermittent and ephemeral streambeds
and cannot be used to distinguish between the two for purposes of the agencies' analyses. Finally,
given the Corps ORM2 database does not parse out "Riverine Intermittent" (R4) codes into
ephemeral and intermittent features, but instead uses an entirely new "Riverine, Ephemeral"
category (R6) to identify ephemeral aquatic resources, the agencies solicit comment whether it is
appropriate to bifurcate the "Riverine Intermittent" subsystem into ephemeral and intermittent
features for purposes of the agencies' analyses.
• Projects permitted in 2011-2015 may not be representative of future projects. For the case
study analysis, the agencies assumed that projects permitted under the 404 program during the
period of 2011-2015 are representative of projects that may be permitted over the next 20 years in
terms of the type and location of the projects, extent and character of the affected resources, and
mitigation requirements. In fact, future development patterns may follow different distributions
and affect locations that the agencies did not consider for this analysis. The agencies welcome
comments on whether it is reasonable to use past projects as indication of future development and
activities.
• The analysis focuses on compensatory mitigation as the main change under the 404
program. The 404 permitting process promotes preventing impacts to waters through project
location and design and only where those actions are not sufficient is mitigation of the
unavoidable impacts necessary. For waters that are no longer jurisdictional, the incentive to
prevent or limit impacts would no longer be present. As such, impacts to existing wetlands and
streams may be larger than indicated by the impacts for permitted projects, thereby understating
the impacts of the proposed rule. The agencies welcome data on the likely response of developers
to reduced incentives to limit impacts.
• The analysis of the 404 program considers forgone mitigation of permanent wetland
impacts only. The analysis of avoided costs, forgone benefits, and SWAT model scenarios
incorporate the impacts of forgone mitigation for permanent impacts to wetlands and omit
additional mitigation that may also be needed to compensate for temporary impacts. To the extent
that mitigation of temporary impacts results in the permanent protection of wetlands, the analytic
scenarios may understate the impacts of the proposed rule on cost savings, forgone benefits, and
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water quality. Appendix E provides results of a sensitivity analysis that includes forgone
mitigation of temporary impacts, among other assumptions.
• The analysis omits impacts on isolated (non-abutting) wetlands. Some non-abutting wetlands
may have previously been found to be jurisdictional following a significant nexus determination
(e.g., as adjacent wetlands) and thus mitigation actions were required if these wetlands were
affected by 404 permitted activities. Categorically excluding these wetlands from jurisdictional
waters may negatively affect habitats for a variety of species, including amphibians and water
fowl, that rely on persistent waterbodies that are not directly located on the stream network.
Appendix E provides results of a sensitivity analysis that includes forgone mitigation of impacts
to non-abutting wetlands, among other assumptions.
• The analysis of the 404 program relies on the ORM2 data on permanent impacts and the
mitigation ratios to estimate changes in compensatory mitigation resulting from the
proposed rule. The agencies assumed that 404 permitted projects primarily affect Category III
wetlands and streams. Category III water resources are defined as not rare or unique and usually
plentiful in the watershed. The recommended compensatory ratios range from less than 1:1 to
1.5:1. If pristine or otherwise unique resources are affected the mitigation ratios could range from
2:1 for Category II wetlands to 3:1 for Category I wetlands. The estimated costs and benefits are
likely to be understated if Category I and II wetlands are affected. In some cases, a mitigation
ratio of less than 1:1 may be required; in such cases cost savings and forgone benefits are likely to
be overstated. Although the agencies validated their assumptions based on statistical analysis of
ORM2 data on 4,000 projects where the relationship between impacted acres and required
mitigation acres could be isolated, this analysis excluded any projects where impacts or
mitigation included linear feet values and any projects where some or all of the mitigation used
credits or in-lieu fees. To the extent that excluded projects used significantly different mitigation
ratios, the estimated costs savings and forgone benefits could be under- or overstated.
• The 404 permit cost savings analysis relies on Corps' estimates of permit application costs.
The Corps estimated permit application costs based on a "typical" permit. The permit application
cost savings analysis for the proposed rule only includes permits solely affecting waters that
change jurisdictional status under the proposed rule (e.g., ephemeral streams and RPWWN-type
wetlands). Since the impacts of these permits are less than "typical" on average, the agencies used
the lower bound estimate of the Corps' permit application cost range. The use of the lower bound
estimate may underestimate costs for larger projects or for permits in high-cost regions. Any
permits affecting both waters likely to remain jurisdictional and waters likely to no longer be
jurisdictional under the proposed rule are not considered in the cost savings analysis. Cost savings
may be greater than estimated by the agencies in cases where eliminating some waters from
permitting requirements streamlines the process and reduces overall permit costs.
• The analysis of forgone benefits associated with reduced mitigation requirements for
ephemeral streams, typically expressed in linear feet, focuses on the total ecological impacts
associated with reduced riparian areas. As noted above, requirements for the riparian buffer
width vary from state to state. The agencies assumed that a 25-foot buffer zone on each stream
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side (50 feet total) is required around ephemeral streams in the main analysis.152 Because some
states don't specify minimum requirements for a buffer zone, while others specify a minimum
requirement of a 50-foot buffer, the agencies' estimate of the lost riparian area may be overstated
for some locations and understated for others. Appendix E provides results of a sensitivity
analysis that uses a 100 feet buffer (50 feet on either side), among other assumptions.
• The value of forgone benefits from reduced riparian areas around ephemeral streams could
be lower or higher compared to the WTP to avoid wetland losses, depending on the role of
ephemeral streams and their riparian areas in a given watershed. Valuation of reduced
mitigation requirements for wetlands and riparian areas is based on benefit transfer from a study
by Bloomquist and Whitehead (1998) that valued freshwater wetlands (including riparian). Given
that riparian areas adjacent to ephemeral streams perform many of the characteristic ecological
functions performed by true riparian areas adjacent to perennial and intermittent streams, but may
not provide a full spectrum of ecological functions (Zaimes et al. 2007), the estimated forgone
benefits for the reduction in riparian areas around ephemeral streams may be overstated.
• Transfer error may occur when benefit estimates from a study site are adopted to forecast
the benefits of a policy site. Rosenberger and Stanley (2006) define transfer error as the
difference between the transferred and actual, generally unknown, value. The wetland valuation
study used in benefits transfer (i.e.. Bloomquist and Whitehead, 1998) focused on wetlands
within the Ohio River Basin. Thus, it provides nearly a perfect match to the resource
characteristics considered in the analysis of forgone benefits. However, it was conducted 20 years
ago and public preferences for wetland protection may change over time. It provides a good, but
not a perfect match for the Lower Missouri River case study. Although the wetland types valued
in the original study are the same as in the Lower Missouri River case study area, public
preferences for wetland preservation may differ across states and communities, for example, due
to the difference in the baseline wetland area, the importance of wetland preservation at the
watershed level, and other factors. Therefore, the estimated WTP values may under- or overstate
the value of foregone benefits in the case study areas.
• Potential hypothetical bias may be present in the source study used in benefits transfer.
Following standard benefit transfer approaches, this analysis proceeds under the assumption that
the source study provides a valid, unbiased estimate of the welfare measure under consideration
(cf. Moeltner et al. 2007; Rosenberger and Phipps 2007).
• The effect of distance between the affected households and the affected wetlands was not
explicitly included in the analysis. Following the Bloomquist and Whitehead study (1998), the
agencies assumed that all households in the state where wetland losses occur and households in
the counties adjacent to the affected resources that reside in the neighboring state hold the same
average WTP value for preventing wetland losses. The agencies would expect values for water
quality improvements to diminish with distance (all else equal) between the home and affected
water resources. This difference is implicitly captured in the average WTP reported in the original
152 A 50 feet buffer zone on each stream side (100 feet total) was used in the sensitivity analysis.
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study. If the distribution of households by distance is different at the policy site, the estimated
value of forgone benefits could be biased either upward or downward.
• Water quality modeling focuses on environmental impacts within the immediate watershed.
The scope of the water quality models covers the HUC4 watersheds where wetland changes
occur. However, the impacts of land use changes and forgone ecosystem services are not limited
to these watersheds. Changes in flows and nutrients and sediments fluxes may also affect
downstream waters, including in states that continue broad protections of non-jurisdictional
waters. As such, the analysis understates the potential impacts of the proposed rule.
• Water quality modeling scenarios assume wetland impacts distributed across subbasins
within a watershed. As described in Section IV.B.2.3.1, the agencies distributed changes in 404
program impacts due to the policy among all subbasins within the SWAT watershed that had both
existing wetlands and developed areas. This approach of distributing total watershed changes may
understate localized hydrological and water quality impacts in cases where projects are
concentrated in a few subbasins within a watershed. For example, in watershed HUC 0509, the
ORM2 data show mitigated wetland impacts in 33 subbasins over 5 years, whereas the agencies
distributed impacts over 300 subbasins over 20 years. For watershed HUC 0510, the ORM2 data
show impacts in 11 subbasins, whereas the agencies distributed the impacts over 84 subbasins for
modeling purposes. The agencies request comments on alternative assumptions and ways to
distribute watershed-level changes that could better represent projected development over the
coming decades.
• The water quality models use a simplified representation of wetland functions in each
watershed. As described in Section IV.B.2.3.1, the SWAT models represent wetlands through
both land cover (HRUs) and as distinct hydrologic features within the subbasins. The SWAT
models represent two main categories of wetlands in each subbasin: abutting wetlands that are
hydrologically connected to the main reach of a subbasin, and non-abutting wetlands without a
direct connection. The analysis used two HRU groups to represent each of the wetland land cover
types, and two SWAT hydrologic features, ponds and wetlands, to represent the hydrology of the
two wetland groups. SWAT pond functions were configured to represent non-abutting wetlands
hydrology by specifying the aggregated subbasin area and depth of non-abutting wetlands
according to the NWI data. In subbasins that include actual ponds, the wetland area was added to
the ponds area since only one pond per subbasin is currently supported in SWAT. Abutting
wetlands hydrology was represented by the wetlands function of SWAT. By configuring the
model this way, the agencies can distinguish the two wetland categories in modeling the impacts,
but the modeling approach otherwise models the wetlands in a spatially aggregated manner that
does not account for the exact location of the wetlands within each HUC 12 subbasins. The
agencies would appreciate comments on this approach for modeling non-abutting and abutting
wetlands with SWAT.
• The analysis used the distance between certain oil storage or production facilities and
waters as an approximate indicator of reasonable potential for a discharge for the 311
program. There is significant uncertainty in the universe of oil storage or production facilities
that could be affected by a change in CWA jurisdictional scope. The SPCC rule does not require
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facility owners/operators to identify themselves to the EPA. While the agencies were able to use
location data for equipment associated with a small subset of the SPCC-regulated universe (oil
production wells) and FRP facilities, these data provide only partial insight into the reasonable
potential for a discharge of oil to "waters of the United States" that determines SPCC and FRP
applicability.
Appendix E presents the results of a sensitivity analysis that evaluate the effects of different assumptions
regarding the scope of 404 program impacts:
• Non-abutting wetlands: The sensitivity analysis includes impacts to wetlands determined to be
non-abutting based on the agencies' analysis of high-resolution NHD and NWI data, whereas the
primary analysis described in this section assumes that these wetlands have no change in
jurisdictional status.
• Scope of impacts: The sensitivity analysis includes both temporary and permanent impacts, as
compared to permanent impacts only in the analysis described in this section.
• Width of assumed stream riparian buffer for linear impacts: The sensitivity analysis assumes a
width of 100 feet, as compared to 50 feet for the primary analysis described in this section.
IV.B.6 Discussion of Case Study Analysis Findings
Table IV-56 to Table IV-58 summarize the findings of the Stage 2 analysis across the three case study
areas. In general, annual avoided costs exceed annualized forgone benefits, but as discussed in Section
IV. B. 5 and noted in the summary tables, limitations of the data curtailed the agencies' ability to quantify
or monetize some of the environmental effects and forgone benefits of the proposed rule.
Table IV-56: Scenario 0 — Potential impacts, cost savings, and forgone benefits in the Case Study
areas excluding the impact from states that may continue their baseline dredged/fill and surface
water permitting practices
Annual Avoided Costs
Annualized Forgone Benefits
(2017$ millions)
(2017$ millions)1
Low
High
Low
High
Ohio River Basin
CWA 402
$0.0
$0.0
$0.0
$0.0
CWA 404 Permit Application
$0.41
$0.41
N/A
N/A
CWA 404 Mitigation - Wetlands &
$8.18
$30.18
$0.682
$4.52
Ephemeral Streams
CWA 404 Mitigation - Water Quality
N/A
N/A
not monetized
not monetized
CWA 404 - Reservoir Dredging
N/A
N/A
< $0.13
<$0.1
CWA 311 - FRP Requirements
not monetized
not monetized
not monetized
not monetized
CWA 311 - SPCC Requirements
not monetized
not monetized
not monetized
not monetized
SUBTOTAL
$8.59
$30.59
$0.68
$4.52
Lower Missouri River Basin
CWA 402
not monetized
not monetized
not monetized
not monetized
CWA 404 Permit Application
$0.26
$0.26
N/A
N/A
CWA 404 Mitigation - Wetlands &
$1.36
$5.34
$0.124
$0.81
Ephemeral Streams
CWA 404 Mitigation - Water Quality
N/A
N/A
not monetized
not monetized
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-56: Scenario 0 — Potential impacts, cost savings, and forgone benefits in the Case Study
areas excluding the impact from states that may continue their baseline dredged/fill and surface
water permitting practices
Annual Avoided Costs
(2017$ millions)
Annualized Forgone Benefits
(2017$ millions)1
Low
High
Low
High
CWA 404 Mitigation - Reservoir
Dredging
N/A
N/A
negligible5
negligible
CWA 311 - FRP Requirements
not monetized
not monetized
not monetized
not monetized
CWA 311 - SPCC Requirements
not monetized
not monetized
not monetized
not monetized
SUBTOTAL
$1.62
$5.60
$0.12
$0.81
Rio Grande River Basin
CWA 402
not monetized
not monetized
not monetized
not monetized
CWA 404 Permit Application
$0.11
$0.11
N/A
N/A
CWA 404 Mitigation - Wetlands &
Ephemeral Streams
negligible6
negligible
not monetized
not monetized
CWA 404 Mitigation -Water Quality
N/A
N/A
not quantified
not quantified
CWA 404 Mitigation-Reservoir
Dredging
N/A
N/A
not quantified
not quantified
CWA 311 - FRP Requirements
not monetized
not monetized
not monetized
not monetized
CWA 311 - SPCC Requirements
not monetized
not monetized
not monetized
not monetized
SUBTOTAL
$0.11
$0.11
$0.00
$0.00
Total 3 Case Studies
TOTAL (Monetized Categories)
$10.32
$36.30
$0.80
$5.33
Annualized forgone benefits are estimated at a 3% discount rate.
2 The estimated annualized forgone benefits from reduced mitigation requirements range from a low of $0.50 to a high $3.34
million at a 7% discount rate.
3 Estimated increase in annualized dredging costs is $2.0 thousands with a three percent discount rate, or $1.6 thousands with
a seven percent discount rate.
Annualized forgone benefits from reduced mitigation requirements in the Lower Missouri River Basin range from a low of
$0.09 million to a high of $0.60 million at a 7% discount rate.
5The estimated annual change in reservoir dredging costs range from -$465 to -$512.
6 The estimated annual mitigation cost savings range from range of $187 to $261.
Table IV-57: Scenario 1 — Potential impacts, cost savings, and forgone benefits in the Case Study
areas excluding the impact from states that may continue their baseline dredged/fill and surface
water permitting practices
Annual Avoided Costs
(2017$ millions)
Annual Forgone Benefits
(2017$ millions)
Low
High
Low
High
Ohio River Basin
CWA 402
$0.0
$0.0
$0.0
$0.0
CWA 404 Permit Application
$0.32
$0.32
CWA 404 Mitigation - Wetlands &
Ephemeral Streams
$6.42
$15.93
$0.372
$2.44
CWA 404 Mitigation -Water Quality
N/A
N/A
not quantified
not quantified
CWA 404 Reservoir Dredging
N/A
N/A
not quantified
not quantified
CWA 311 - FRP Requirements
not monetized
not monetized
not monetized
not monetized
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-57: Scenario 1 — Potential impacts, cost savings, and forgone benefits in the Case Study
areas excluding the impact from states that may continue their baseline dredged/fill and surface
water permitting practices
Annual Avoided Costs
(2017$ millions)
Annual Forgone Benefits
(2017$ millions)
Low
High
Low
High
CWA 311 - SPCC Requirements
not monetized
not monetized
not monetized
not monetized
SUBTOTAL
$6.74
$16.26
$0.37
$2.44
Lower Missouri River Basin
CWA 402
not monetized
not monetized
not monetized
not monetized
CWA 404 Permit Application
$0.26
$0.26
N/A
N/A
CWA 404 Mitigation - Wetlands &
Ephemeral Streams
$1.36
$5.34
$0.123
$0.81
CWA 404 Mitigation -Water Quality
N/A
N/A
not quantified
not quantified
CWA 404 Mitigation-Reservoir
Dredging
N/A
N/A
not quantified
not quantified
CWA 311 - FRP Requirements
not monetized
not monetized
not monetized
not monetized
CWA 311 - SPCC Requirements
not monetized
not monetized
not monetized
not monetized
SUBTOTAL
$1.62
$5.60
$0.12
$0.81
Rio Grande River Basin
CWA 402
not monetized
not monetized
not monetized
not monetized
CWA 404 Permit Application
$0.11
$0.11
N/A
N/A
CWA 404 Mitigation - Wetlands &
Ephemeral Streams
negligible4
negligible
not monetized
not monetized
CWA 404 Mitigation -Water Quality
N/A
N/A
not quantified
not quantified
CWA 404 Mitigation-Reservoir
Dredging
N/A
N/A
not quantified
not quantified
CWA 311 - FRP Requirements
not monetized
not monetized
not monetized
not monetized
CWA 311 - SPCC Requirements
not monetized
not monetized
not monetized
not monetized
SUBTOTAL
$0.11
$0.11
Total 3 Case Studies
TOTAL (Monetized Categories)
$8.47
$21.97
$0.49
$3.25
Annualized benefits are estimated at a 3% discount rate.
2 The estimated forgone annualized benefits from reduced mitigation requirements in the Ohio River Basin range from a low of
$0.27 to a high of $1.80 million at a 7% discount rate.
Annualized forgone benefits from reduced mitigation requirements in the Lower Missouri River Basin range from a low of
$0.09 million to a high of $0.60 million at a 7% discount rate.
4The estimated annual mitigation cost savings range from $187 to $261.
Table IV-58: Scenario 2 & 3 — Potential impacts, cost savings, and forgone benefits in the Case
Study areas excluding the impact from states that may continue their baseline dredged/fill and
surface water permitting practices
Annual Avoided Costs
(2017$ millions)
Annual Forgone Benefits
(2017$ millions)
Low
High
Low
High
Ohio River Basin
CWA 402
$0.0
$0.0
$0.0
$0.0
CWA 404 Permit Application
$0.31
N/A
N/A
N/A
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-58: Scenario 2 & 3 — Potential impacts, cost savings, and forgone benefits in the Case
Study areas excluding the impact from states that may continue their baseline dredged/fill and
surface water permitting practices
Annual Avoided Costs
(2017$ millions)
Annual Forgone Benefits
(2017$ millions)
Low
High
Low
High
CWA 404 Mitigation - Wetlands &
Ephemeral Streams
$6.42
$15.93
$0.372
$2.44
CWA 404 Mitigation -Water Quality
N/A
N/A
not quantified
not quantified
CWA 404 Reservoir Dredging
N/A
N/A
not quantified
not quantified
CWA 311 - FRP Requirements
not monetized
not monetized
not monetized
not monetized
CWA 311 - SPCC Requirements
not monetized
not monetized
not monetized
not monetized
SUBTOTAL
$6.73
$16.25
$0.37
$2.44
Lower Missouri River Basin
CWA 402
not monetized
not monetized
not monetized
not monetized
CWA 404 Permit Application
<$0.01
<$0.01
N/A
N/A
CWA 404 Mitigation - Wetlands &
Ephemeral Streams
$0.00
$0.00
$0.00
$0.00
CWA 404 Mitigation -Water Quality
N/A
N/A
not quantified
not quantified
CWA 404 Mitigation-Reservoir
Dredging
N/A
N/A
not quantified
not quantified
CWA 311 Compliance
not monetized
not monetized
not monetized
not monetized
CWA 311 Compliance
not monetized
not monetized
not monetized
not monetized
SUBTOTAL
<$0.01
<$0.01
$0.00
$0.00
Rio Grande River Basin
CWA 402
not monetized
not monetized
not monetized
not monetized
CWA 404 Permit Application
$0.113
$0.11
N/A
N/A
CWA 404 Mitigation - Wetlands &
Ephemeral Streams
negligible4
negligible
not monetized
not monetized
CWA 404 Mitigation - Water Quality
N/A
N/A
not quantified
not quantified
CWA 404 Mitigation - Reservoir
Dredging
N/A
N/A
not quantified
not quantified
CWA 311 - FRP Requirements
not monetized
not monetized
not monetized
not monetized
CWA 311 - SPCC Requirements
not monetized
not monetized
not monetized
not monetized
SUBTOTAL
$0.11
$0.11
Total 3 Case Studies
TOTAL (Monetized Categories)
$6.84
$16.36
$0.37
$2.44
Annualized forgone benefits are estimated at a 3% discount rate.
2 The estimated forgone annualized benefits from reduced mitigation requirements in the Ohio River Basin range from a low of
$0.27 million to a high of $1.80 million at a 7% discount rate.
3 Estimated annual reduction in 404 permit application costs under Scenario 3 is zero.
4 The estimated annual mitigation cost savings range from range of $187 to $261 under Scenario 2 and zero under Scenario 3.
IV.C Stage 2 Quantitative Assessment of National Impacts
The case studies demonstrate that data limitations constrain the agencies' ability to quantify and value the
effects of the proposed rule on the section 402 and 311 programs across the country, but that it is possible
to quantify and value at least some of the potential effects of the proposed rule on the 404 program
nationwide. Accordingly, to evaluate the impacts of the Stage 2 analysis under the proposed rule, the
agencies focused on 404 program impacts for which data are sufficient to develop quantitative estimates
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
at the national level. The approach incorporates the predicted state response under various scenarios (see
Section III.C.l). Inputs for this analysis were derived using the same approach as described for the case
studies (see Section IV.B.2.2.2), which relies on 404 permit data from the Corps' ORM2 database to
identify aquatic resources and permits potentially affected by the proposed rule. To estimate cost savings,
the agencies used the same methodology described in Section IV.B.2.2.2.1. To estimate forgone benefits,
the agencies used a meta function benefits transfer to value forgone wetland mitigation (see Section
III.C.2).
National-level results of this analysis are summarized below. Table IV-59 presents national-level cost
savings from reduced permit requirements. Table IV-60 presents national-level cost savings from reduced
mitigation requirements. Table IV-61 presents total national-level cost savings (sum of permit cost
savings and reduced mitigation requirement savings). Table IV-62 presents forgone benefit estimates
based on annual WTP for wetlands under each of the state response scenarios. State-level estimates of
cost savings and forgone benefits are provided in Appendix F.
As shown in the tables, the estimated cost savings from avoided permit applications and mitigation
generally exceed forgone benefits of wetlands. This is true for all four state response scenarios the
agencies analyzed and under most cost or WTP assumptions. For example, under Scenario 2, annual cost
savings range between $112.5 million and $214.9 million (under low and high cost assumptions),
compared to estimated forgone benefits of $41.7 million (based on mean WTP). One exception is
Scenario 0 for which forgone benefits based on the 95 th percentile of the WTP for wetlands are greater
than the lower bound of estimated cost savings.
Table IV-59: National average annual reduction in 404 permit application costs
Permit
Unit Costs from Corps NWP
Annual Average Reduction in
Estimated Reduction in Permit
Type
Analysis (2017$)
Permits with Proposed Rule
Costs (millions 2017$)
Scenario 01,2
IP
$14,700
88
$1.3
GP
$4,400
5,758
$25.3
Total
5,846
$26.6
Scenario l1,3
IP
$14,700
41
$0.6
GP
$4,400
3,509
$15.4
Total
3,550
$16.0
Scenario 21,4
IP
$14,700
28
$0.4
GP
$4,400
2,323
$10.2
Total
2,351
$10.6
Scenario 31,5
IP
$14,700
10
$0.2
GP
$4,400
499
$2.2
Total
509
$2.4
1 Annual average permit reductions based on permits issued in years 2011-2015 estimated to only affect RPWWN-type
wetlands or ephemeral streams.
2 Includes all states except Hawaii.
3 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Iowa, Idaho, Kansas, Kentucky, Louisiana,
Missouri, Mississippi, Montana, North Carolina, North Dakota, Nebraska, New Mexico, Nevada, Oklahoma, South Carolina,
South Dakota, Texas, Utah, Wisconsin, West Virginia, and Wyoming.
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-59: National average annual reduction in 404 permit application costs
Permit
Type
Unit Costs from Corps NWP
Analysis (2017$)
Annual Average Reduction in
Permits with Proposed Rule
Estimated Reduction in Permit
Costs (millions 2017$)
4 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Idaho, Kentucky, Missouri, Mississippi,
Montana, North Dakota, New Mexico, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming.
5 Includes Arizona, Idaho, Kentucky, Mississippi, and South Dakota.
Table IV-60: National average annual cost savings of reduced mitigation requirements resulting
from the proposed definitional change
Unit
Annual Average Mitigation
Reduction under Proposed Rule
Low
(Millions 2017$)
High
(Millions 2017$)
Scenario 01,2
Acres
973.9
$55.5
$120.7
LF
446,282
$154.3
$349.3
Total
$209.9
$470.0
Scenario l1,3
Acres
406.1
$22.4
$42.7
LF
311,025
$96.2
$206.9
Total
$118.6
$249.7
Scenario 21,4
Acres
272.5
$18.3
$32.3
LF
225,112
$83.6
$172.0
Total
$101.9
$204.3
Scenario 31,5
Acres
53.8
$3.0
$4.4
LF
74,661
$22.3
$55.8
Total
$25.3
$60.2
1 Annual average mitigation reduction based on permits issued in years 2011-2015 with mitigation requirements on
waterways determined to be RPWWN-type wetlands or ephemeral streams. Excludes permits issued for mitigation or
restoration activities because the main purpose of these activities is to restore or enhance ecosystem services provided by
water resources as opposed to dredge and fill activities that lead to permanent or temporary losses of ecosystem services.
Cost savings are calculated by multiplying the cost of each mitigation acre or linear foot (low and high estimates) for each
state by the expected reduction in annual mitigation requirements, and summing the state-level acreage and linear feet
values for each scenario.
2 Includes all states except Hawaii.
3 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Iowa, Idaho, Kansas, Kentucky, Louisiana,
Missouri, Mississippi, Montana, North Carolina, North Dakota, Nebraska, New Mexico, Nevada, Oklahoma, South Carolina,
South Dakota, Texas, Utah, Wisconsin, West Virginia, and Wyoming.
4 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Idaho, Kentucky, Missouri, Mississippi,
Montana, North Dakota, New Mexico, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming.
5 Includes Arizona, Idaho, Kentucky, Mississippi, and South Dakota.
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-61: Total national estimated annual cost savings (Millions 2017$)
Cost Type
Scenario 01
Scenario l2
Scenario 23
Scenario 34
Low
High
Low
High
Low
High
Low
High
Permit Cost
Savings
$26.6
$26.6
$16.0
$16.0
$10.6
$10.6
$2.4
$2.4
Mitigation Cost
Savings
$209.9
$470.0
$118.6
$249.7
$101.9
$204.3
$25.3
$60.2
Total
$236.5
$496.6
$134.6
$265.7
$112.5
$214.9
$27.6
$62.6
1 Includes all states except Hawaii.
2 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Iowa, Idaho, Kansas, Kentucky, Louisiana,
Missouri, Mississippi, Montana, North Carolina, North Dakota, Nebraska, New Mexico, Nevada, Oklahoma, South Carolina,
South Dakota, Texas, Utah, Wisconsin, West Virginia, and Wyoming.
3 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Idaho, Kentucky, Missouri, Mississippi,
Montana, North Dakota, New Mexico, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming.
4 Includes Arizona, Idaho, Kentucky, Mississippi, and South Dakota.
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IV Stage 2 Analysis: CWA Jurisdictional Change from Pre-2015 Practice to the Proposed Rule
Table IV-62: Total national forgone benefit estimate of reduced mitigation requirements resulting from the proposed definitional
Mean Estimate
of Forgone
Benefits
(Millions
2017$)
Lower 5th
Upper 95th
Scenario
Households
Annual Forgone
Mitigation Acres
Mean WTP per
household per
acre (2017$)
Lower 5th
WTP per
household per
acre (2017$)
Estimate of
Forgone
Benefits
(Millions
2017$)
Upper 95th
WTP per
household per
acre (2017$)
Estimate of
Forgone
Benefits
(Millions
2017$)
Scenario 01,2
115,994,247
1,486.2
$0.0231
$135.6
$0.0001
$0.7
$0.0453
$300.3
Scenario l1,3
45,033,201
763.1
$0.0192
$46.8
$0.0001
$0.3
$0.0422
$104.0
Scenario 21A
32,455,035
530.9
$0.0211
$41.7
$0.0001
$0.2
$0.0463
$92.7
Scenario 31,5
6,118,413
139.5
$0.0236
$6.9
$0.0001
<$0.1
$0.0504
$14.2
1 Annual average mitigation reduction based on permits issued in years 2011-2015 with mitigation requirements on waterways determined to be RPWWN-type wetlands or
ephemeral streams. Excludes permits issued for mitigation or restoration activities because the main purpose of these activities is to restore or enhance ecosystem services
provided by water resources as opposed to dredge and fill activities that lead to permanent or temporary losses of ecosystem services.
2 Includes all states except Hawaii.
3 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Iowa, Idaho, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, North Carolina, North
Dakota, Nebraska, New Mexico, Nevada, Oklahoma, South Carolina, South Dakota, Texas, Utah, Wisconsin, West Virginia, and Wyoming.
4 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Idaho, Kentucky, Missouri, Mississippi, Montana, North Dakota, New Mexico, Oklahoma, South
Carolina, South Dakota, Texas, Utah, and Wyoming.
5 Includes Arizona, Idaho, Kentucky, Mississippi, and South Dakota.
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V Regulatory Flexibility Act (RFA) Analysis
¥. Regulatory Flexibility Act (RFA) Analysis
The Regulatory Flexibility Act (RFA, 5 U.S.C. et seq., Public Law 96-354), amended by the 1996 Small
Business Regulatory Enforcement Fairness Act (SBREFA), requires the agencies to consider the
economic impact that a new rule will have on small entities. The purpose of the RFA and SBREFA laws
is to ensure that, in developing rules, agencies identify and consider ways to avoid undue impacts on
small entities that will be affected by the regulation, whether as small entities that will be subject to
regulatory requirements or as small governments that will be responsible for complying with or
administering the regulation. While the RFA does not require an agency to minimize a rule's impact on
small entities if there are legal, policy, factual, or other reasons for not doing so, it does require that
agencies:
• Determine, to the extent feasible, the economic impact on small entities subject to the rule;
• Explore regulatory options for reducing any significant economic impact on a substantial number
of such entities; and,
• Explain the ultimate choice of regulatory approach.
For any notice-and-comment rule it promulgates, the agencies must either certify that the rule "will not, if
promulgated, have a significant economic impact on a substantial number of small entities" ("SISNOSE")
or prepare a Regulatory Flexibility Analysis if the Agency cannot make this certification. Small entities
include small businesses and small organizations as defined by SBA, and governmental jurisdictions with
populations of less than 50,000.
The proposed rule is not expected to have a significant economic impact on a substantial number of small
entities under the RFA. This is a deregulatory action, that reduces the jurisdictional scope of the CWA
and the burden on entities regulated under the CWA that are affected by this proposed rule, including
small entities, is reduced compared to the 2015 Rule and pre-2015 practice. The agencies have therefore
concluded that this action will relieve regulatory burden to small entities.
V.A Entities Regulated under Clean Water Act Programs
The proposed rule will affect entities regulated under CWA programs that impact waters whose
jurisdictional status will change. The agencies consider these effects because they effect how these
entities comply with their CWA requirements. The potential impact of the proposed regulation on small
entities is difficult to assess due to the lack of sufficient geospatial data identifying waters resources that
will incur a jurisdictional change and resulting difficulty in identifying regulated activity that may be
affected. The Small Business Administration (SBA) has developed size standards to carry out the
purposes of the Small Business Act and are used for defining small entities under the RFA. The agencies
reviewed available information on the type of entities that are regulated under the CWA section 311, 402,
and 404 programs primarily affected by this proposed rule, with the purpose of identifying sectors with
small entities that may incur impacts. The proposed rule is expected to result in fewer entities subject to
these programs, and a reduced regulatory burden for a portion of the entities that will still be subject to
these programs. As a result, small entities subject to these regulatory programs are unlikely to suffer
adverse impacts due to compliance with the regulation.
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V Regulatory Flexibility Act (RFA) Analysis
Under the section 402 program, entities are covered by either an individual or general permit. The entities
covered by an individual permit, whether public or private, discharge to waters of sufficient size to
accommodate their effluent. Based on the results from the case study analyses, only a very small number
of NPDES permitted facilities were identified as potentially discharging to a water that may be affected
by the proposed rule. The agencies presume that the results from the case study analyses likely hold for
the rest of the country, and that most of these waters that have permitted discharges will be unaffected by
the proposed regulation. Those individual permittees that do discharge to waters that experience a
jurisdictional change will still require an individual permit but may actually experience a reduction in
their regulatory burden if the stringency of their limits is modified by their permitting authority. Those
entities whose activities are covered by a NPDES general permit are not likely to be affected by the
proposed rule. General permits are generic documents intended for a specific type of activity that can
impact water resources. Obtaining coverage under a general permit typically does not require a site-
specific assessment, and so takes less time and effort than an equivalent individual permit. However, with
a general permit to obtain coverage the entity must accept the terms of the permit as written, and without
a site-specific assessment the jurisdictional status of water resources that may be affected by the proposed
rule is not a factor. As a result, the agencies generally do not anticipate that general permittees will be
impacted by the proposed rule.153 Small entities are a subset of these entities subject to general permits
and they will be equally unaffected.154
Based on the lack of identified impacts in the three case study analyses, the agencies consider the effects
on the regulated community of NPDES permit holders to be minimal to none. This finding extends to
those NPDES permit holders that are small entities.
For the section 404 program, the proposed rule will reduce the number of waters under CWA jurisdiction,
and this will in turn reduce the amount of avoidance, minimization, and mitigation measures necessary to
obtain section 404 permit coverage, as well as a reduction in the total number of future section 404
permits. Table V-l provides a summary list of the North American Industrial Classification System
(NAICS) categories that engage in projects requiring 404 permit coverage, based on a review of national
404 permit data from 2011 through 2015. The agencies expect that the reduction in future section 404
permit obligations will result in cost savings rather than cost increases. These reductions are expected to
extend to the universe of small entities required to obtain 404 permit coverage approximately equal to
their existing portion of the overall 404 regulatory burden.155
Table V-1: CWA 404 Program NAICS Categories
NAICS Codes
NAICS Industry Description
Subsector 111
Crop Production
Subsector 112
Animal Production and Aquaculture
Subsector 113
Forestry and Logging
Subsector 211
Oil and Gas Extraction
153 An exception may occur in arid areas of the country where a significant portion of water features may change jurisdictional
status due to the proposed rule. In these areas the NPDES authority may require fewer entities to obtain general permit
coverage.
154 See above EA tables for a discussion of the total estimated avoided costs. (For example Tables IV-56 and 57)
155 See above EA tables for a discussion of the total estimated avoided costs. (For example Tables IV-56 and 57)
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 210
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V Regulatory Flexibility Act (RFA) Analysis
Table V-1: CWA 404 Program NAICS Categories
NAICS Codes
NAICS Industry Description
Subsector 212
Mining (except Oil and Gas)
Subsector 213
Support Activities for Mining
Subsector 221
Utilities
Subsector 236
Construction of Buildings
Subsector 237
Heavy and Civil Engineering Construction
The section 311 program has two main components that address the risk and harm from oil spills: spill
prevention and preparedness under the SPCC and FRP programs; and spill response under the National
Contingency Plan. The proposed rule may result in some facilities no longer having a reasonable potential
of a discharge to a water of the United States. Table V-2 lists the NAICS categories commonly regulated
under the 311 program. For these facilities the compliance burden will be reduced under the proposed rule
unless they decide to voluntarily continue implementing their plan or are required to by state or tribal
authorities. The agencies acknowledge that spill risks may increase for any of these facilities that reduce
their future spill protection measures.
Table V-2: CWA 311 Program NAICS Categories
NAICS Codes
Category
4227
Petroleum and Petroleum Products Wholesalers
2211
Electric Power Generation, Transmission, and Distribution
3241
Petroleum and coal products manufacturing
miscellaneous
Other Commercial Facilities
454311
Heating Oil Dealers
31-33
Manufacturing
Source: Renewal of Information Collection Request for the Implementation of the Oil Pollution Act Facility Response Plan
Requirements (40 CFR PART 112) (EPA # 1630.12)
Spill risk liabilities for states and tribes may increase if facilities decrease their future spill prevention
measures, States and tribes may also be impacted by the proposed rule even if facility spill prevention
measures do not change. For waters under federal jurisdiction, the Oil Spill Liability Trust Fund (OSLTF)
is used to cover containment, clean-up, and remediation costs when a responsible party cannot be
identified. For containment, clean-up, and remediation costs for spills affecting non-jurisdictional waters,
states and tribes bear the financial burden when a responsible party cannot be identified. So even if the
overall probability of a risk does not increase within a state or tribal jurisdiction, there may be an
increased financial risk that corresponds with the proposed change in the definition of "waters of the
United States." However, for the purposes of the RFA, states and tribal governments are not considered
small government entities.156
V.B Entities Impacted by Changes in Ecosystem Services
Narrowing the scope of federal jurisdiction under the CWA may result in a reduction in the ecosystem
services provided by some waters, such as less habitat, increased flood risk, and higher pollutant loads. As
156 The RFA defines "small governmental jurisdiction" as the government of a city, county, town, township, village, school
district, or special district with a population of less than 50,000 (5 U.S.C. section 601(5)).
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 211
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V Regulatory Flexibility Act (RFA) Analysis
a result, both public and private entities that rely on these ecosystem services may be adversely impacted,
albeit indirectly. For example, loss of wetlands can increase the risk of property damage due to flooding.
To predict if there will be significant impacts to any given sector it is important to assess which sectors
may be more impacted by changes in ecosystem services.
Increases in flood risk are likely to be specific to the watersheds where the wetland losses occur and are
not expected to impact a specific group or business sector. Habitat loss can have a direct effect on
recreational activities such as hunting, fishing, and bird watching, depending on the type of ecosystem
and species affected (e.g., NAICS Code: 114210- Hunting and Trapping). Businesses that serve hunters or
anglers, localities that collect admission fees or licenses, and non-profit organizations that focus on
recreating within or preserving natural habitats are examples of sectors that could be affected by habitat
loss, many of which could be categorized as small. Changes in water quality can also impact recreational
activities and by extension those businesses and localities that support these activities (e.g., NAICS Code:
423910-Sporting and Recreational Goods and Supplies Merchant Wholesalers). In addition, increased
pollutant loadings can lead to higher drinking water treatment costs for localities, and for businesses that
require water treatment for their production process. Higher sediment loads can impact downstream
communities by increasing the need for dredging to maintain reservoir capacity and for navigation, and by
shortening the useful life infrastructure damaged by increased scouring.
Potential changes in ecosystem services will be project specific and difficult to reasonably predict given
the uncertainty around the magnitude of potential changes due to the proposed rule. Based on the results
from the three case study analyses, it is very likely that many of these reductions in services will be small,
infrequent, and dispersed over wide geographic areas, thereby limiting the significance of the financial
impacts on small organizations and governments and small entities within specific business sectors. In
addition, states and tribes may already address waters potentially affected by a revised definition, thereby
reducing forgone benefits. For example, many states have the goal of "no net loss of wetlands" directly
incorporated into their regulations.
V.C Entities Impacted by Changes in Mitigation Demand
An economic sector that will be indirectly impacted by the proposed rule are mitigation banks, and
companies that provide restoration services. Mitigations banks are often limited liability companies that
have been authorized by a state or federal agency to generate credits that can be used to meet the demand
for mitigation, driven by state and federal regulations. Restoration services are businesses that provide the
range of services needed for mitigation efforts. There customers can be mitigation banks or permittees
that meet their regulatory requirements through on-site or off-site mitigation. Although primarily a
business sector, there are mitigation banks owned and managed by non-profit organizations and
government entities, such as state transportation departments. Businesses involved in mitigation banking
and providing ecological restoration services are not contained within a single economic sector as defined
by the North American Industrial Classification System (NAICS). A survey of this restoration sector,
conducted in 2014 showed that many of the businesses involved in this sector fall into five categories:
Environmental Consulting (NAICS: 541620); Land Acquisition (NAICS: 237210); Planning, Design, and
Engineering (NAICS: 541320, 541330); Site Work (earth moving, planting) (NAICS: 237210, 237990);
and Monitoring (BenDor et al, 2015).
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 212
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V Regulatory Flexibility Act (RFA) Analysis
Impacts to the mitigation banking sector and more broadly to the restoration sector would not be the
direct result of these businesses complying with the proposed rule, rather they would be the indirect result
of other entities coming into compliance with proposed rule. Because fewer waters would be subject to
CWA jurisdiction under the proposed rule than are subject to regulation under the 2015 Rule or current
practice, there would be a reduction in demand for mitigation and restoration services, under the section
404 permitting program and a corresponding reduction in revenue for the businesses. However, assessing
impacts to this sector is problematic, given that this sector lacks a SBA small business definition, and
many of the businesses that fall within this sector are also classified under various other NAICs
categories. Existing data on 404 permits maintained by the agencies does not identify sufficient
ownership and business arrangement information to determine the economic profile of mitigation bank
ownership, nor does it identify specific entities involved in performing restoration work. In addition,
States and Tribes may require mitigation for impacted waters no longer covered under the proposed rule,
thereby reducing the future change in mitigation demand.
V.D Conclusion
Overall, the agencies consider the small entity impacts of the proposed regulation are neither significant
nor substantial, based on the lack of any cost increase for those entities that must comply with regulations
under the CWA sections 311, 402, and 404 programs. Impacts to the mitigation banking sector would not
be the direct result of these businesses complying with the proposed rule, rather they would be the indirect
result of other entities coming into compliance with proposed rule. Similarly, potential impacts to small
localities, organizations, and businesses due to changes in ecosystem services are indirect effects. The
agencies certify that this action will not have a significant economic impact on a substantial number of
small entities under 5 U.S.C. § 605 (b) of the RFA. In making this determination, the impact of concern is
any significant adverse economic impact on small entities. An agency may certify that a rule will not have
a significant economic impact on a substantial number of small entities if the rule relieves regulatory
burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the
rule. This is a deregulatory action, and the burden on all entities affected by this proposed rule, including
small entities, is reduced compared to the 2015 Rule and pre-2015 practice. We have therefore concluded
that this action will relieve regulatory burden to small entities.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 213
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VI References
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Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 218
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Appendix A Mapped NHD Stream Mileage and NWI Wetland Acreage by State
Appendix A: Mapped NHD Stream Mileage and NWI Wetland Acreage by State
Table A-1: Mapped NHD Stream Mileage and NWI Wetland Acreage by State: The numbers and percentages of streams and
wetlands by category do not equate to a quantification of waters that will or will not be jurisdictional under the proposed rule nor do
they equate to a quantification of waters that are or are not jurisdictional under the pre-2015 practice. The data are presented to
NHD Streams
NWI Wetlands
Perennial
Intermittent
Ephemeral1
Other2
State
Miles
% of
Total
Miles
% of
Total
Miles
% of
Total
Miles
% of
Total
Acres
AK
666,417
48%
18,624
1%
82
0%
700,893
51%
-
AL
48,075
23%
69,415
33%
0
0%
95,602
45%
4,203,980
AR
20,915
9%
89,091
40%
30
0%
111,599
50%
2,408,523
AZ
4,194
1%
35,305
7%
249,591
51%
202,384
41%
354,060
CA
44,290
7%
85,290
13%
213,359
34%
291,058
46%
3,028,618
CO
32,715
7%
151,915
34%
66,955
15%
197,296
44%
2,002,309
CT3
7,593
35%
1,892
9%
-
0%
12,035
56%
310,505
DC3
26
19%
6
4%
-
0%
103
76%
319
DE3
2,404
26%
1,112
12%
-
0%
5,838
62%
263,327
FL
19,337
12%
8,123
5%
2
0%
127,332
82%
12,183,132
GA3
44,081
23%
53,965
28%
-
0%
93,464
49%
6,548,298
HI
IA
27,730
15%
72,310
39%
2,396
1%
82,259
45%
1,088,441
ID
54,355
30%
96,072
53%
8,551
5%
22,010
12%
1,324,822
IL
26,033
22%
78,490
65%
287
0%
15,676
13%
1,301,283
IN3-4
15,030
6%
33,453
13%
-
0%
217,363
82%
1,055,925
KS
19,065
10%
153,419
83%
316
0%
11,687
6%
1,899,863
KY
26,118
26%
59,695
60%
3
0%
13,133
13%
465,603
LA
34,365
25%
59,755
44%
24
0%
41,649
31%
8,028,273
MA3
8,519
51%
3,734
23%
-
0%
4,328
26%
695,752
MD3
13,399
53%
3,872
15%
-
0%
8,191
32%
814,720
ME
25,864
50%
13,413
26%
0
0%
12,893
25%
2,548,325
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised
219
-------
Appendix A Mapped NHD Stream Mileage and NWI Wetland Acreage by State
Table A-1: Mapped NHD Stream Mileage and NWI Wetland Acreage by State: The numbers and percentages of streams and
wetlands by category do not equate to a quantification of waters that will or will not be jurisdictional under the proposed rule nor do
they equate to a quantification of waters that are or are not jurisdictional under the pre-2015 practice. The data are presented to
NHD Streams
NWI Wetlands
Perennial
Intermittent
Ephemeral1
Other2
State
Miles
% of
Total
Miles
% of
Total
Miles
% of
Total
Miles
% of
Total
Acres
Ml3
29,251
36%
15,136
18%
-
0%
37,753
46%
7,796,982
MN
26,461
26%
38,028
37%
1
0%
38,269
37%
10,854,648
MO3
22,323
12%
141,077
76%
-
0%
21,160
11%
1,386,533
MS3
24,376
15%
114,831
70%
-
0%
23,982
15%
3,968,569
MT
49,899
13%
304,329
78%
3,627
1%
32,901
8%
3,227,102
NC4
43,069
31%
49,442
35%
1
0%
47,726
34%
4,366,486
ND
5,926
7%
73,640
81%
0
0%
11,165
12%
1,508,999
NE
13,472
11%
98,408
77%
521
0%
15,144
12%
1,314,903
NH
8,281
44%
6,861
37%
3
0%
3,592
19%
310,193
NJ3
12,834
54%
1,064
4%
-
0%
10,081
42%
889,188
NM
7,124
3%
60,237
25%
156,822
66%
13,182
6%
363,015
NV
10,741
3%
26,141
8%
267,153
85%
11,487
4%
1,033,171
NY3
56,516
57%
20,921
21%
-
0%
21,236
22%
2,207,886
OH
26,905
29%
53,172
58%
9
0%
11,627
13%
538,919
OK
33,924
20%
115,235
69%
482
0%
17,777
11%
1,379,591
OR
77,102
24%
192,672
61%
23,402
7%
22,322
7%
1,895,761
PA3
43,800
51%
30,131
35%
-
0%
12,065
14%
544,458
Rl3
1,224
62%
92
5%
-
0%
647
33%
60,714
SC3
25,819
33%
31,934
41%
-
0%
19,731
25%
3,932,560
SD
12,070
7%
135,766
82%
2,809
2%
13,957
8%
2,065,241
TN
68,240
60%
32,065
28%
254
0%
12,984
11%
1,165,666
TX
36,044
7%
346,494
65%
84,783
16%
62,472
12%
4,630,573
UT
15,117
8%
83,888
45%
71,561
39%
13,927
8%
758,798
VA
36,123
33%
55,846
51%
4
0%
17,581
16%
1,454,954
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised
220
-------
Appendix A Mapped NHD Stream Mileage and NWI Wetland Acreage by State
Table A-1: Mapped NHD Stream Mileage and NWI Wetland Acreage by State: The numbers and percentages of streams and
wetlands by category do not equate to a quantification of waters that will or will not be jurisdictional under the proposed rule nor do
they equate to a quantification of waters that are or are not jurisdictional under the pre-2015 practice. The data are presented to
State
NHD Streams
NWI Wetlands
Perennial
Intermittent
Ephemeral1
Other2
Miles
% of
Total
Miles
% of
Total
Miles
% of
Total
Miles
% of
Total
Acres
<
—I
U)
22,677
86%
11
0%
-
0%
3,757
14%
86,122
WA
69,058
29%
148,082
62%
2,330
1%
21,204
9%
959,626
Wl3
27,876
32%
42,114
49%
-
0%
16,745
19%
6,868,324
WV
21,230
39%
27,505
50%
11
0%
6,220
11%
57,052
WY
34,404
12%
197,979
69%
35,683
12%
20,774
7%
1,852,425
WA
2,002,413
21%
3,532,050
37%
1,191,051
12%
2,828,260
30%
959,626
Source: Based on analysis of NHD at high resolution and NWI data. See Section II.C for a description of the limitations of the NHD and NWI data in fully characterizing the
waters that may be potentially affected by the proposed changes to the definition of "waters of the United States." The numbers and percentages of streams and wetlands
by category do not equate to a quantification of waters that will or will not be jurisdictional under the proposed rule nor do they equate to a quantification of waters that
are or are not jurisdictional under the pre-2015 practice.
1 The percentages for this category represent the percentages of streams in each state that the NHD at high resolution maps as ephemeral. Zero percent for this category
does not mean that the state has no ephemeral streams. Ephemeral streams are not independently mapped in many states. Often ephemeral streams are mapped in the
intermittent stream category or are not mapped at all, which results in an overstatement of intermittent streams and an understatement of ephemeral streams. This table
is a summary of the available NHD data and is not likely to accurately represent the types of waters in any given state.
2 Includes unclassified streams, artificial paths, canal, ditches, aqueducts, and other feature without attributes.
3 NHD has no stream miles mapped as ephemeral for these states. See FN 1 above.
4 NHD has a high percentage of streams that are not classified as perennial, intermittent, or ephemeral (unclassified streams) for these states.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised
221
-------
Appendix B Revised Step 1 Analysis: Additional Scenarios
Appendix B: Revised Step 1 Analysis - Additional Scenarios
Table B-1: Estimates of avoided costs and forgone benefits including the impacts from all states
Annual Avoided Costs
(2017$ millions)
Annual Forgone Benefits
(2017$ millions)
Low
High
Low
High
CWA 402 CAFO Administration
$0.2
$0.2
$3.9
$6.8
CWA 402 CAFO Implementation
$6.3
$6.3
CWA 402 Stormwater Administration
$0.3
$0.3
$30.0
$38.1
CWA 402 Stormwater Implementation
$30.3
$37.7
CWA 404 Permit Application
$29.8
$74.7
$59.4
$59.4
CWA 404 Mitigation - Wetlands
$57.4
$159.7
SUBTOTAL
$124.2
$278.9
$93.4
$104.4
CWA 311 Compliance
$13.1
$13.1
not quantified
not quantified
CWA 401 Administration
$0.8
$0.8
not quantified
not quantified
CWA 402 Pesticide General Permit
Implementation
$3.4
$3.8
not quantified
not quantified
CWA 404 Mitigation - Streams
$23.3
$46.5
not quantified
not quantified
TOTAL
$164.9
$343.1
$93.4
$104.4
These results include the potential costs and benefits for all categories for all states.
Table B-2: Scenario 1a- Estimates of avoided costs and forgone benefits excluding the impact
from states that may continue their baseline dredged/fill permitting practices and are likely to
continue their baseline other surface water regulatory practices
Annual Avoided Costs
(2017$ millions)
Annual Forgone Benefits
(2017$ millions)
Low
High
Low
High
CWA 402 CAFO Administration
$0.1
$0.1
$1.7
$3.0
CWA 402 CAFO Implementation
$2.8
$2.8
CWA 402 Stormwater Administration
$0.1
$0.1
$14.2
$18.0
CWA 402 Stormwater Implementation
$14.3
$17.8
CWA 404 Permit Application
$10.2
$25.5
$14.3
$14.3
CWA 404 Mitigation - Wetlands
$26.7
$42.1
SUBTOTAL
$54.1
$88.5
$30.2
$35.3
CWA 311 Compliance
$7.3
$7.3
not quantified
not quantified
CWA 401 Administration
$0.4
$0.4
not quantified
not quantified
CWA 402 Pesticide General Permit
Implementation
$1.8
$2.0
not quantified
not quantified
CWA 404 Mitigation - Streams
$14.0
$27.8
not quantified
not quantified
TOTAL
$77.7
$126.0
$30.2
$35.3
These results exclude the costs and benefits for section 404 permit applications and mitigation for states classified as response
category 3 or 4 for regulation of dredged or fill material, and it excludes the costs and benefits for all other categories for states
classified as response category 3 for other surface water regulation.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 222
-------
Appendix C Current CWA Section 404 Permit Impacts by State
Appendix C: Current QUIA Section 404 Permit Impacts by State
Table C-1: Authorized impact of CWA section 404 permits issued in 2011-2015, excluding
mitigation type permits and permits affecting resources categorized as "ocean" or "tidal."
State
Permanent Impacts
Temporary Impacts
(Per Year)
Mitigation Required
(Per Year)
Acres
Length Feet
Acres
Length Feet
Acres
Length Feet
Permits
Using
Credits1
AK
4,003
78,117
261
17,294
306
10,886
52
AL
623
492,030
103
56,431
106
77,765
111
AR
763
460,637
46
171,979
191
35,702
53
AZ
357
34,970
35
8,631
5
0
16
CA
2,934
917,071
242
178,621
909
102,694
305
CO
329
346,971
41
37,438
31
3,952
35
CT
65
11,572
33
413
186
3,635
2
DE
81
26,185
4
823
64
221
1
FL
12,897
391,027
207
93,558
9,301
51,244
241
GA
880
354,335
33
16,514
23
558
233
HI
3
5,840
0
64
0
0
0
IA
726
848,952
19
19,074
145
13,447
26
ID
185
402,565
6
16,945
41
6,441
6
IL
561
872,731
116
46,765
191
36,610
41
IN
1,410
1,853,584
38
55,780
637
303,744
10
KS
313
1,177,940
38
40,795
28
55,620
34
KY
460
1,048,935
19
38,482
106
67,359
43
LA
7,189
338,458
1,031
162,411
1,424
17,184
246
MA
61
351,513
84
63,825
132
538
1
MD
2,898
612,839
25
32,609
40
25,732
4
ME
305
4,260
20
0
1,079
656
12
Ml
299
224,696
21
20,747
19
254
0
MN
2,030
820,610
173
55,308
173
505
214
MO
286
535,159
44
1,553,311
88
14,052
39
MS
1,320
155,233
75
25,930
283
15,507
89
MT
162
342,901
5
12,995
64
34,335
7
NC
991
558,106
209
51,530
265
13,765
242
ND
468
206,064
76
23,163
63
31,646
16
NE
337
401,360
13
16,094
52
5,707
30
NH
144
9,024
4
230
149
0
9
NJ
64
13,346
24
4,945
5
15
1
NM
110
12,298
23
8,811
13
50
0
NV
55
28,466
7
2,069
11
2,377
1
NY
337
532,679
55
50,906
359
13,187
16
OH
485
697,993
37
38,712
196
144,507
64
OK
181
145,259
16
10,235
70
32,118
4
OR
516
1,056,724
35
31,093
72
1,776
52
PA
457
692,703
301
252,293
95
43,486
6
Rl
12
501
7
0
1
200
0
SC
853
195,391
24
3,751
2,162
88,406
69
SD
245
319,605
11
16,511
43
1,673
10
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 223
-------
Appendix C Current CWA Section 404 Permit Impacts by State
Table C-1: Authorized impact of CWA section 404 permits issued in 2011-2015, excluding
mitigation type permits and permits affecting resources categorized as "ocean" or "tidal."
State
Permanent Impacts
Temporary Impacts
(Per Year)
Mitigation Required
(Per Year)
Acres
Length Feet
Acres
Length Feet
Acres
Length Feet
Permits
Using
Credits1
TN
205
647,128
12
33,668
71
20,961
38
TX
2,965
1,226,870
793
256,874
1,451
283,408
381
UT
149
193,037
96
54,587
47
22,873
6
VA
1,545
629,912
455
138,279
239
145,197
107
VT
100
15,410
27
1,244
109
9
6
WA
450
150,438
69
98,635
225
60,594
25
Wl
953
819,980
125
192,441
157
2,398
90
WV
130
444,982
34
85,090
21
90,871
21
WY
125
98,781
6
2,030
26
230
0
Source: EPA analysis of data from USACE ORM2 database (2018).
1 Mitigation credits are the trading medium that is used to represent the ecological gains at mitigation bank sites. The
number of credits available from a mitigation bank depends on the quantity and quality of the resources that are restored,
created, enhanced, or preserved. The number of acres or linear feet per credit varies among and within U.S. Army Corps
districts. This variability makes summing credits across regions inappropriate, so the number of permits utilizing mitigation
credits is provided instead of total mitigation credits.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 224
-------
Appendix D SWAT Modeling Results
Appendix D: SWAT Modeling Results
This appendix presents more detailed outputs for selected SWAT model runs to illustrate modeled
changes due to the proposed rule. The selected results are for the HUC 0510 SWAT model and
supplement the summary results presented in Section IV.B.2.3.1.
Figure D-l and Figure D-2 show time series of the hydro logic response and pollutant yields for an
individual HUC12 subbasin (051001010101: Headwaters of the Licking River, KY, represented as
subbasin 1 in SWAT model 0510). The figures show results over a six-year period based on historical
weather conditions in 2010-2015. In this subbasin the proposed rule is predicted to result in the net
reduction of approximately 3.7 percent of existing wetlands. The changes affect 0.5 acres of the 24,300-
acre subbasin. The changes between the two scenarios are not discernible relative to the range of
predicted values. Figure D-3 and Figure D-4 isolate the impacts of the Policy by plotting the difference
between the two scenarios. As shown in the plots, the Policy tends to result in lower surface runoff during
storm events (the increases tend to coincide with high flows in Figure D-l) and slightly lower
groundwater flow. The higher peaks are accompanied by higher sediment, nitrate and soluble phosphorus
yields.
Figure D-5 and Figure D-6 show time series of predicted in-stream variables at the outlet of SWAT
watershed 0510.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 225
-------
Appendix D —SWAT Modeling Results
Figure D-1: Precipitation and predicted hydrologic response of subbasin 051001010101:
Headwaters of the Licking River, KY under the baseline (black) and policy (red) scenarios.
Precipitation
50-
c 40-
t 30-
E 20-
10-
o-
2010
2016
Surface Runoff
40-
E 30-
E 20 -
1°: in i L .. I ^1 llil- *,i - .,,1 U L
ll 1 ^ Uil, li.
IiljL
2010
2012 2014
Date
2016
Evapotranspiration
E 4-
e2-
yvyVA,vvyvyy
2010
2012
2014
2016
Date
Groundwater Flow
Ei.o-
E 0.5-
o.o-
2010
2012
2014
2016
Date
Water Yield
40-
E 30-
E 20 -
10" i i
o-
i... t
I -U. . I-
1 mi JL Li - ^L' ¦ ili. .Ill
2010
2012
2014
2016
Date
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised 226
-------
Appendix D —SWAT Modeling Results
Figure D-2: Predicted sediment and nutrient yields in subbasin 051001010101: Headwaters of the
Licking River, KY under the baseline (black) and policy (red) scenarios.
Sediment Yield
0.003-
03
=£ 0.002-
o 0.001 -
0.000-
cn
1
_
jilt
111. Jl.ll ,1
1
LI
2010
Nitrate in Surface Runoff
2012
2014
Date
ro 0.06 -
" 0.04-
0 02 ¦
o.oo-
AiLi , * L ii.
2010
2012
2014
Date
Organic Nitrogen
0.20-
<5 0 .15 -
-&010
^ 0.05-
o.oo-
2010
2012
2014
Date
Organic Phosphorus
0.020-
JS 0.015 -
"3,0.010 -
0.005-
o.ooo-
2010
2012
2014
Date
2016
2016
1
1 j i, j. .ii 1.1 L ... 1.1 j J
1.1, 111
ll. ,
Li
ill,, .li.
iL jji
2016
ill, j 1 ,>
iA.
I. III.. li
.. i , A
j
Ml, l
,
kl
i
1. ll,
iln ..nil. ,1
2016
Soluble Phosphorus
ro 0.02-
050.01 -
o.oo-
|
JlJ, . J..I. , 1 JJ l ilJ U , L.
,1 1
.i... J li. jiiii ll i i.. ,l Ll ,
.ii J , .
2010
2012
2014
Date
2016
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised 227
-------
Appendix D —SWAT Modeling Results
Figure D-3: Predicted change in hydrologic response of subbasin 051001010101: Headwaters of
the Licking River, KY due to the Policy.
Surface Runoff
o.ooo-
-0.025-
-0.050-
-0.075-
-0.100-
1 I II III
1 I 1
2010
Evapotranspiration
0.050-
0.025-
o.ooo-
-0.025-
-0.050-
2010
Lateral Flow
0.0020-
0.0015-
0.0010-
0.0005-
0.0000-
2010
Groundwater Flow
0.50-
0.25-
o.oo-
-0.25-
-0.50-
2010
2012
2014
Date
2012
2014
Date
2012
2014
Date
2012
2014
Date
2016
2016
2016
i
2016
Water Yield
0.50-
0.25 -
o.oo-
-0.25-
-0.50-
2010
2012
2014
Date
i"
2016
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised 228
-------
Appendix D —SWAT Modeling Results
Figure D-4: Predicted change in sediment and nutrient yields ofsubbasin 051001010101:
Headwaters of the Licking River, KY due to the Policy.
Sediment Yield
0.003-
ro
=£ 0.002-
o 0.001 ¦
0.000-
2010
2012
2014
2016
Date
Nitrate in Surface Runoff
0.00020-
® 0.00015-
*3,0.00010-
0.00005-
o.ooooo-
1
Il-J... -
11,
.
1.1 ... .. .1.. ., .III.1
i. .1
, ,
2010
Organic Nitrogen
0.20-
<5 0 .15 -
-&010
^ 0.05-
o.oo-
2010
Organic Phosphorus
0.020-
JS 0.015 -
"3,0.010 -
0.005-
o.ooo-
2010
2012
2014
2016
Date
2012
2014
2016
Date
2012
2014
2016
Date
Soluble Phosphorus
3e-05 -
sz 2e-05-
^ 1e-05 -
0e+00-
1
1
J11 III
.11 J.JII
L II1111 Willi .
ill
,h i
i
11- 1.11. HI a
2010
2012
2014
2016
Date
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised 229
-------
Appendix D —SWAT Modeling Results
Figure D-5: Predicted daily stream flows and loads under the baseline (black) and policy (red)
scenarios for the outlet of HUC 0510 (time series are generally superimposed).
Daily Flow
5000-
4000-
« SCOO-
PS 2000-
1000-
o-
ilkj I J. Jill JLll . jjjiXi, j. .
2010
2012
2014
Date
Sediment Load
40000-
w 30000-
o 20000-
~ 10000-
o-
2010
2012
2014
Date
Total Nitrogen
O)
le-^06 •
5e-H)5¦
0e+00¦
uUvLuujL
2010
2012
2014
Date
2016
.
I
ill
J I |
LjU , jjkJiik
-J .>* -ini-ikiL i. .j WL . jL. . j... j
2016
... .J
2016
Total Phosphorus
150000-
100000-
50000-
o-
2010
2012
lUl ji.j.l-i jdxiAujLu .i..jiuiJi ^ ' jI ... i lj
2014
2016
Date
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised 230
-------
Appendix D —SWAT Modeling Results
Figure D-6: Predicted change in daily stream flows and loads due to the policy scenarios at the
outlet of HUC 0510.
Daily Flow
1.0-
<0 °-5"
§0.0" -Mf
-0.5 -
-1.0-
^ll 'njj- -r11 ^
2010
2012
2014
Date
Sediment
150 -
100 -
c 50-
o
~ o-
-50-
2010
2012
2014
Date
Total Nitrogen
1000 -
750-
™ 500-
250-
o- 4^
L - il ¦ -1 ill.. I L . . Jiiiw .. 4-L.. ... . ^
2010
2012
2014
Date
2016
I
.I.
I
I
2016
2016
Total Phosphorus
80-
60-
o)40-
20-
o-
2010
- ^jjIL
2012
-fc. .ll Lj. J li . I . . J IJ-U-J jL - ¦ I -J ..~L -.-I ¦ . . . * 1
2014
Date
2016
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised 231
-------
Appendix E Sensitivity Analyses
Appendix E: Sensitivity Analyses
This appendix summarizes results of the agencies' sensitivity analysis to evaluate the effects of different
assumptions regarding the scope of 404 program impacts:
• Permits affected by proposed rule: In the main analysis, the agencies relied solely on the Army
Corps of Engineers' ORM2 database to identify 404 permits with mitigation requirements
affecting waters that may no longer be jurisdictional under the proposed rule (ephemeral streams
and RPWWN-type wetlands). In the sensitivity analysis, the agencies used an NHD-NWI
adjacency analysis to account for the possibility of the proposed rule affecting additional non-
abutting wetlands. The agencies used the following methodology to identify 404 permits affecting
waters that may no longer be jurisdictional under the proposed rule:
- Ephemeral streams: The Cowardin classes field in the Corps' ORM2 database includes
information about river/stream type (perennial, intermittent, or ephemeral). The agencies
classified any stream with a "Riverine, Ephemeral" (R6) class as an ephemeral stream.
Whenever the Cowardin code field did not specify stream type, the agencies assumed that
the stream would remain jurisdictional under the proposed rule, which could possibly
result in an underestimation of potentially affected waters.
- Wetlands adjacent to but not directly abutting permanent waters: The agencies used
the water type field in the Corps' ORM2 database to select wetlands with a RPWWN
water type. The RPWWN water type identifies wetlands that are adjacent to but do not
directly abut relatively permanent waters.
- Additional non-abutting wetlands: The agencies used latitude and longitude
coordinates, provided in the ORM2 database, to locate waters affected by 404 permits on
the NHD and NWI hydrographic networks. The agencies labeled wetlands not connected
to an NHD reach as a non-abutting wetland. This methodology identified wetlands with
several different water types, not just the RPWWN water type, as non-abutting.
• Scope of impacts: The sensitivity analysis includes both temporary and permanent impacts, as
compared to permanent impacts only in the analysis described in Section IV.B
• Width of assumed stream riparian buffer for linear impacts: The sensitivity analysis assumes
a width of 100 feet, as compared to 50 feet for the primary analysis described in Section IV.B.
• Compensatory mitigation ratio: The sensitivity analysis uses a 1.5:1 ratio for estimating cost
savings from avoided wetland compensatory mitigation requirements (the agencies use the same
1:1 ratio used in the main analysis for estimating forgone benefits provided by wetlands and
water quality impacts).
E.1 Case Study 1: Ohio River Basin
E.1.1 Section 402
Because the NHD data layer does not classify any streams as "ephemeral" in the Ohio River Basin region,
the agencies did not perform a sensitivity analysis of section 402 program impacts using NHD data.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 232
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Appendix E Sensitivity Analyses
E.1.2 Section 404
Table E-l summarizes section 404 permits issued in 2011-2015 within the two selected watersheds of the
Ohio River Basin. The table includes permits that required mitigation and potentially affected ephemeral
streams, non-abutting wetlands, or wetlands adjacent to but not directly abutting relatively permanent
waters (RPWWN-type wetlands).
Table E-1: Section 404 permits issued in case study watersheds in the Ohio River Basin (2011-
2015)1
State
#
Permitted
projects
# Permits with mitigation
requirements potentially
affected by changes to
the definition of "waters
of the United States"2
Permanent impacts
Average temporary
impacts
Acres
Length feet
Acres
Length feet
HUC 0509
IN
101
17
0.5
3,000
0.9
0
KY
226
15
4.5
41,122
0.0
0
OH
351
33
10.6
51,209
0.2
3,009
WV
141
0
0.0
0
0.0
0
Total
819
65
15.6
95,331
1.1
3,009
Avg. per
year
164
13
3.1
19,066
0.2
602
HUC 0510
KY
967
38
6.8
62,608
0.0
2,261
Total
967
38
6.8
62608
0.0
2,261
Avg. per
year
193
8
1.4
12,522
0.01
452
1 Values based on permits with mitigation requirements on waterways determined to be non-abutting wetlands, RPWWN-
type wetlands, or ephemeral streams. Excludes permits issued for mitigation or restoration activities because the main
purpose of these activities is to restore or enhance ecosystem services provided by water resources as opposed to dredge
and fill activities that lead to permanent or temporary losses of ecosystem services.
2 Number of permits includes permits with mitigation requirements that affect at least one water determined likely to no
longer be jurisdictional under the CWA under the proposed rule.
Table E-2 presents expected reductions in average annual mitigation requirements in the Ohio River
Basin under different likely state response scenarios following the proposed "waters of the United States"
definitional changes.
Table E-2: Estimated changes in average mitigation required per year in the Ohio River Basin
based on the sensitivity analysis methodology, by policy scenario12
State
Expected reduction in average
mitigation acres per year
Expected reduction in average
mitigation length feet per year
Expected reduction in average
mitigation riparian acres per
year3
Scenario
Scenario
Scenario
Scenario
Scenario
Scenarios
Scenario
Scenario
Scenario
0
1
s 2 & 3
0
1
2 & 3
0
1
s 2 & 3
HUC 0509
IN
0.3
0.0
0.0
600
0
0
1.4
0.0
0.0
KY
0.9
0.9
0.9
8,224
8,224
8,224
18.9
18.9
18.9
OH
2.2
0.0
0.0
10,844
0
0
24.9
0.0
0.0
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 233
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Appendix E Sensitivity Analyses
Table E-2: Estimated changes in average mitigation required per year in the Ohio River Basin
based on the sensitivity analysis methodology, by policy scenario12
State
Expected reduction in average
mitigation acres per year
Expected reduction in average
mitigation length feet per year
Expected reduction in average
mitigation riparian acres per
year3
Scenario
0
Scenario
1
Scenario
s 2 & 3
Scenario
0
Scenario
1
Scenarios
2 & 3
Scenario
0
Scenario
1
Scenario
s 2 & 3
Total
3.3
0.9
0.9
19,668
8,224
8,224
45.2
18.9
18.9
HUC 0510
KY
1.4
1.4
1.4
12,974
12,974
12,974
29.8
29.8
29.8
Total
1.4
1.4
1.4
12,974
12,974
12,974
29.8
29.8
29.8
1 Values based on permits with mitigation requirements on waterways determined to be non-abutting wetlands, RPWWN-
type wetlands, or ephemeral streams. Excludes permits issued for mitigation or restoration activities because these permits
do not result in the loss of ecosystems services provided by wetlands and streams. Permanent and temporary acre and linear
feet impacts provided in the ORM2 database are used to estimate mitigation requirements. For this analysis, the agencies
assumed a 1:1 ratio for compensatory requirements based on the USACE guidance (U.S. Army Corps of Engineers 2014).
2 Scenarios 2 and 3 are combined because all values are identical.
3 Based on mitigation lengths where impacts in linear feet are converted to acres by multiplying total linear feet by an
average total buffer width of 100 feet (50 feet on each side of the stream) and converting square feet to acres.
Table E-3 compares the mitigation reduction estimates using the methodology described in Section IV.B
and the sensitivity analysis methodology.
Table E-3: Comparison of annual average mitigation requirements in the Ohio River Basin
between the main methodology and the sensitivity analysis methodology
Impact Type
Acres1
Linear feet2
Stream riparian acres3
Total acreage4
Main
Sensitivity
Main
Sensitivity
Main
Sensitivity
Main
Sensitivity
HUC0509
Permanent
2.9
3.1
18,466
19,066
21.2
43.8
24.1
46.9
Temporary
0.0
0.2
0
602
0.0
1.4
0.0
1.6
Total
2.9
3.3
18,466
19,668
21.2
45.2
24.1
48.5
HUC 0510
Permanent
1.0
1.4
12,458
12,522
14.3
28.7
15.3
30.1
Temporary
0.0
0.0
0
452
0.0
1.0
0.0
1.0
Total
1.0
1.4
12,458
12,974
14.3
29.8
15.3
31.2
1 Sensitivity analysis includes permanent and temporary impact acres from RPWWN-type wetlands, non-abutting wetlands,
and ephemeral streams. By contrast, the main analysis includes only permanent impact acres on RPWWN-type wetlands and
ephemeral streams.
2 Sensitivity analysis includes permanent and temporary impact linear feet on riparian areas of non-abutting wetlands,
RPWWN-type wetlands, and ephemeral streams. By contrast, the main analysis includes only permanent impact linear feet on
riparian areas of RPWWN-type wetlands and ephemeral streams.
3 Sensitivity analysis converts permanent and temporary linear feet impacts to acres using a 100-foot mitigation width (50
feet on each side). By contrast, the main analysis converts permanent linear feet impacts to acres using a 50-foot mitigation
width (25 feet on each side).
4Sum of the acres and stream riparian acres fields.
Table E-4, Table E-5, and Table E-6 present permit application cost savings, cost savings from reduced
mitigation requirements, and total costs savings, respectively.
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Appendix E Sensitivity Analyses
Table E-4: Average annual reduction in 404 permit application costs in the Ohio River Basin,
based on the sensitivity analysis methodology12
Permit
Type
Unit
costs
Annual
from
average
Corps
reduction in
NWP
permits with
analysis
proposed
(2017$)
rule
Scenario 0
Scenario 1
Estimated
reduction in
permit costs
(millions
2017$)
Annual
average
reduction in
permits
with
proposed
rule
Estimated
reduction in
permits
costs
(millions
2017$)
Scenarios 2 & 3
Annual
average
reduction in
permit with
proposed
rule
Estimated
reduction in
permit costs
(millions
2017$)
HUC 0509
IP
$14,700
0.2
<$0.01
0.0
$0.00
0.0
$0.00
GP
$4,400
36.2
$0.16
14.4
$0.06
5.4
$0.02
Total
36.4
$0.16
14.4
$0.06
5.4
$0.02
HUC 0510
IP
$14,700
0.0
$0.00
0.0
$0.00
0.0
$0.00
GP
$4,400
63.0
$0.28
63.0
$0.28
63.0
$0.28
Total
63.0
$0.28
63.0
$0.28
63.0
$0.28
Both Watersheds
IP
0.2
<$0.01
0.0
$0.00
0.0
$0.00
GP
99.2
$0.44
77.4
$0.34
68.4
$0.30
Total
99.4
$0.44
77.4
$0.34
68.4
$0.30
1 Includes permits estimated to only affect waters no longer jurisdictional under the CWA under the proposed rule
abutting wetlands, RPWWN-type wetlands, and ephemeral streams).
2 Scenarios 2 and 3 are combined because all values are identical.
,e.g., non-
Table E-5: Annual cost savings (2017$) of reduced mitigation requirements in the Ohio River
Basin based on the sensitivity analysis methodology, by policy scenario12
State
Cost per acre
(2017$)
Cost per linear
foot
(2017$)
Scenario 0
(Millions 2017$)
Scenario 1
(Millions 2017$)
Scenarios 2 & 3
(Millions
2017$)
Low
High
Low
High
Low
High
Low
High
Low
High
HUC 0509
IN
$50,000
$71,000
$294
$636
$0.29
$0.60
$0.00
$0.00
$0.00
$0.00
KY
$110,016
$165,024
$300
$755
$3.85
$9.54
$3.85
$9.54
$3.85
$9.54
OH
$37,500
$216,000
$165
$1,350
$2.81
$22.66
$0.00
$0.00
$0.00
$0.00
Total
-
-
-
-
$6.94
$32.80
$3.85
$9.54
$3.85
$9.54
HUC 0510
KY
$110,016
$165,024
$300
$755
$6.07
$15.03
$6.07
$15.03
$6.07
$15.03
Total
-
-
-
-
$6.07
$15.03
$6.07
$15.03
$6.07
$15.03
Both Watersheds
Total
-
-
-
-
$13.01
$47.83
$9.92
$24.57
$9.92
$24.57
1 Estimated changes in average mitigation required per year are presented in Table E-2. For each state, cost savings are
calculated by multiplying the cost of each mitigation acre or linear foot (low and high estimates) by the expected reduction in
annual mitigation requirements, summing the acreage and linear feet values for each scenario, and multiplying the total by
1.5. The agencies multiply the total by 1.5 to account for a compensatory mitigation requirement ratio of 1.5:1.
2 Scenarios 2 and 3 are combined because all values are identical.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 235
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Appendix E Sensitivity Analyses
Table E-6: Total estimated annual cost savings in the Ohio River
Basin, based on the sensitivity analysis methodology12
HUC
Scenario 0
Scenario 1
Scenario 2 & 3
Low
High
Low
High
Low
High
0509
$7.10
$32.96
$3.91
$9.60
$3.87
$9.56
0510
$6.34
$15.31
$6.34
$15.31
$6.34
$15.31
Total
$13.45
$48.27
$10.26
$24.91
$10.22
$24.87
1 Scenarios 2 and 3 are combined because all values are identical.
2 For HUC 0509, Scenario 0 includes cost savings in Indiana, Kentucky, Ohio, and West
Virginia. Scenario 1 includes cost savings in Kentucky and West Virginia. Scenario 3
includes cost savings in Kentucky only. For HUC 0510, cost savings remain constant
across all scenarios since all permits are issued in Kentucky, a state that is not likely to
regulate waters above federal requirements.
Table E-7 and Table E-8 provide estimated annualized forgone benefits from lost mitigation requirements
in the Ohio River Basin under different state response scenarios, with three percent and seven percent
discount rates, respectively.
Table E-7: Annualized forgone benefits (Millions 2017$) of lost mitigation requirements in the
Ohio River Basin based on the sensitivity analysis methodology, by policy scenario (3%
Discount Rate)1,2 "
HUC
# Affected
households in
20203
Scenario 0
Scenario 1
Scenarios 2 & 3
Low
High
Low
High
Low
High
0509
5,170,870
$1.11
$7.35
$0.45
$3.00
$0.45
$3.00
0510
1,866,005
$0.27
$1.78
$0.27
$1.78
$0.27
$1.78
Total
7,036,875
$1.37
$9.13
$0.72
$4.78
$0.72
$4.78
1 Estimated changes in average mitigation required per year are presented in Table E-2. Forgone benefits are calculated
for each scenario by multiplying total forgone mitigation values for each scenario (sum of acres and linear feet converted
into acres) by the total number of affected households and the appropriate household WTP value (low: $0.006/acre; high:
$0.038/acre). The agencies calculated forgone benefits for the years 2020-2039 and annualized values using a 3% discount
rate.
2 Scenarios 2 and 3 are combined because all values are identical.
3 The agencies accounted for population growth and change in the number of households throughout the 2020-2039
study period.
Table E-8: Annualized forgone benefits (Millions 2017$) of lost mitigation requirements in the
Ohio River Basin based on the sensitivity analysis methodology, by policy scenario (7%
Discount Rate)1,2 "
HUC
# Affected
households in
20203
Scenario 0
Scenario 1
Scenarios 2 & 3
Low
High
Low
High
Low
High
0509
5,170,870
$0.82
$5.44
$0.33
$2.22
$0.33
$2.22
0510
1,866,005
$0.20
$1.31
$0.20
$1.31
$0.20
$1.31
Total
7,036,875
$1.02
$6.75
$0.53
$3.53
$0.53
$3.53
1 Estimated changes in average mitigation required per year are presented in Table E-2. Forgone benefits are calculated
for each scenario by multiplying total forgone mitigation values for each scenario (sum of acres and linear feet converted
into acres) by the total number of affected households and the appropriate household WTP value (low: $0.006/acre; high:
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 236
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Appendix E Sensitivity Analyses
Table E-8: Annualized forgone benefits (Millions 2017$) of lost mitigation requirements in the
Ohio River Basin based on the sensitivity analysis methodology, by policy scenario (7%
Discount Rate)1,2 "
HUC
# Affected
Scenario 0
Scenario 1
Scenarios 2 & 3
households in
High
High
High
20203
Low
Low
Low
$0.038/acre). The agencies calculated forgone benefits for the years 2020-2039 and annualized values using a 7% discount
rate.
2 Scenarios 2 and 3 are combined because all values are identical.
3 The agencies accounted for population growth and change in the number of households throughout the 2020-2039
study period.
E.1.3 Section 311
Because the NHD data layer does not distinguish between intermittent and ephemeral streams in the Ohio
River Basin region, the agencies did not perform a sensitivity analysis of section 311 program impacts
using NHD data.
E.1.4 Water Quality Modeling
As described in Section IV.B.2.3.1, the SWAT models do not coincide exactly with the watershed
boundaries analyzed for the 404 program impacts. Table E-9 summarizes the impact of different
assumptions on the sensitivity analysis inputs. Forgone mitigation in the sensitivity analysis is
approximately twice that analyzed under the main analysis presented in Section IV.B.2.3.1.
Table E-9: Changes between 404 program impacts for the sensitivity scenario vs. primary
scenario for the Ohio River Basin SWAT models based on permits issued 2011-2015 (5 Years)
0509
0510
Area
Area
impacts
impacts
to
Linear
to
Linear
wetland
impacts
Area
wetland
impacts
Area
abutting
to
impacts
abutting
to
impacts
epheme-
epheme-
to non-
epheme-
epheme-
to non-
ral
ral
abutting
ral
ral
abutting
stream
stream
wetlands
stream
stream
wetlands
(Acres)
(Acres)1
(Acres)
Total
(Acres)
(Acres)1
(Acres)
Total
Total
Primary
Scenario
14.3
106.0
0
120.3
2.8
33.5
0
36.3
+ non-
abutting
wetlands
0.0
0.0
1.3
1.3
0.0
0.0
1.3
1.3
+ mitigation
of temporary
impacts
0.7
3.5
0.4
4.6
0.0
2.3
0.0
2.3
+ Widen
buffer width
(100 vs. 50 ft)
0
109.4
0
109.4
0
35.8
0
35.8
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 237
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Appendix E Sensitivity Analyses
Table E-9: Changes between 404 program impacts for the sensitivity scenario vs. primary
scenario for the Ohio River Basin SWAT models based on permits issued 2011-2015 (5 Years)
0509
0510
Area
Area
impacts
impacts
to
Linear
to
Linear
wetland
impacts
Area
wetland
impacts
Area
abutting
to
impacts
abutting
to
impacts
epheme-
epheme-
to non-
epheme-
epheme-
to non-
ral
ral
abutting
ral
ral
abutting
stream
stream
wetlands
stream
stream
wetlands
(Acres)
(Acres)1
(Acres)
Total
(Acres)
(Acres)1
(Acres)
Total
Total
Sensitivity
Scenario
15.0
218.9
1.7
235.6
2.8
71.5
1.3
75.6
1 Linear impacts converted to areas by multiplying the lengths by 50 feet for the Primary Scenario (Main Analysis) and by 100
feet for the Sensitivity Scenario and applying a conversion factor (1 acre = 43,560 square feet).
Table E-10 through Table E-15 present water quality modeling results for the sensitivity analysis,
following the same format as used in Section IV.B for the main analysis.
Table E-10: Summary of 404 Program activities in Ohio River Basin SWAT models for permits
with permanent or temporary impacts to waters potentially affected by the proposed rule and
with mitigation requirements over 20-year analysis period. Modeled scenario considers both
permanent and temporary impacts.
Type of
Permanent
Temporary
potentially
Total
affected
Linear
Total1
Linear
Total1
impacts
resource2
Acres
feet
acres
Acres
feet
acres
(acres)
HUC 0509
Wetland
62.5
0
62.5
4.4
0
4.4
64.0
abutting
ephemeral
stream
Ephemeral
0.0
369,323
847.8
0.0
12,036
27.6
875.5
stream
Total
62.5
369,323
910.4
4.4
12,036
31.1
942.5
HUC 0510
Wetland
16.3
0
16.3
0.1
0
0.1
16.4
abutting
ephemeral
stream
Ephemeral
0.0
116,804
268.1
0.0
7,844
18.0
286.2
stream
Total
16.3
116,804
284.5
0.1
7,844
18.1
302.6
1 Represents the sum of impacts reported in acres and impacts reported in linear feet, assuming a width of 100 feet for
linear impacts.
2 See Table IV-8 for criteria used to identify affected resources that may change jurisdiction under the proposed rule.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 238
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Appendix E Sensitivity Analyses
Table E-11: Summary of basin-level annual average water balance and constituent transport in Ohio
River Basin SWAT watersheds for the sensitivity scenario
Parameter
HUC 0509
HUC 0510
Baseline
Policy
Change
%
Change
Baseline
Policy
Change
%
Change
Precipitation (mm)
1,239.00
1,239.00
0.00
0.0%
1,331.80
1,331.80
0.00
0.0%
Surface runoff (mm)
183.22
183.21
-0.01
0.0%
357.12
357.11
-0.01
0.0%
Lateral flow (mm)
218.70
218.87
0.17
0.1%
78.03
78.51
0.48
0.6%
Groundwater flow (mm)
40.03
39.96
-0.07
-0.2%
61.88
61.63
-0.25
-0.4%
Water yield (mm)
495.14
495.08
-0.06
0.0%
524.75
524.75
0.00
0.0%
Evapotranspiration (mm)
738.80
738.90
0.10
0.0%
739.90
740.00
0.10
0.0%
Sediment loading (ton/ha)
2.410
2.420
0.010
0.4%
1.17
1.18
0.010
0.9%
Organic N (kg/ha)
2.360
2.361
0.001
0.0%
7.008
7.013
0.005
0.1%
Organic P (kg/ha)
0.267
0.267
0.000
0.0%
0.582
0.583
0.001
0.2%
N03 in surface runoff (kg/ha)
0.954
0.954
0.000
0.0%
2.637
2.639
0.002
0.1%
N03 in lateral flow (kg/ha)
1.018
1.019
0.001
0.1%
0.593
0.594
0.001
0.2%
Soluble P yield (kg/ha)
0.137
0.137
0.000
0.0%
0.192
0.192
0.000
0.0%
N03 leached (kg/ha)
0.494
0.494
0.000
0.0%
2.535
2.536
0.001
0.0%
P leached (kg/ha)
0.009
0.009
0.000
0.0%
0.021
0.021
0.000
0.0%
Table E-12: Estimated change in annual average subbasin water balance and constituent
transport in SWAT watershed HUC 0509 for the sensitivity scenario
Number of subbasins
by direction of
change1
Absolute change
Model parameter
Increase
Decrease
Average
Median
Minimum
Maximum
Evapotranspiration (mm/yr)
283
11
0.06
0.02
-0.34
0.99
Surface runoff (mm/yr)
5
295
-0.16
-0.15
-0.68
0.10
Lateral flow (mm/yr)
291
9
0.17
0.16
-0.58
0.69
Groundwater flow (mm/yr)
2
300
-0.07
-0.04
-0.51
0.05
Total water yield (mm/yr)
2
291
-0.07
-0.03
-1.27
0.00
Sediment yield (ton/ha/yr)
302
0
0.003
0.000
0.000
0.034
Organic N (kg/ha/yr)
291
10
0.001
0.000
0.000
0.018
Organic P (kg/ha/yr)
284
17
0.000
0.000
0.000
0.002
N03 in surface runoff (kg/ha/yr)
284
17
0.000
0.000
0.000
0.004
Soluble P (kg/ha/yr)
190
111
0.000
0.000
0.000
0.000
1 Total number of SWAT HUC12 reaches is 346. Some modeled reaches show no change in annual average values and are not
included in the counts above.
Table E-13: Estimated change in annual average subbasin water balance and constituent
transport in SWAT watershed HUC 0510 for the sensitivity scenario
Number of subbasins
by direction of
change1
Absolute change
Model parameter
Increase
Decrease
Average
Median
Minimum
Maximum
Evapotranspiration (mm/yr)
84
0
0.05
0.02
0.00
0.43
Surface runoff (mm/yr)
8
81
-0.34
-0.34
-1.71
0.12
Lateral flow (mm/yr)
86
0
0.48
0.52
0.00
1.78
Groundwater flow (mm/yr)
11
80
-0.20
-0.10
-3.79
4.17
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 239
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Appendix E Sensitivity Analyses
Table E-13: Estimated change in annual average subbasin water balance and constituent
transport in SWAT watershed HUC 0510 for the sensitivity scenario
Number of subbasins
by direction of
change1
Absolute change
Model parameter
Increase
Decrease
Average
Median
Minimum
Maximum
Total water yield (mm/yr)
35
59
0.02
-0.02
-2.90
3.60
Sediment yield (ton/ha/yr)
92
2
0.007
0.004
0.000
0.053
Organic N (kg/ha/yr)
90
5
0.005
0.004
-0.023
0.037
Organic P (kg/ha/yr)
89
6
0.000
0.000
-0.001
0.003
N03 in surface runoff (kg/ha/yr)
90
5
0.002
0.002
-0.005
0.018
Soluble P (kg/ha/yr)
41
54
0.000
0.000
-0.001
0.001
1 Total number of SWAT HUC12 reaches is 106. Some modeled reaches show no change in annual average values and are not
included in the counts above.
Table E-14: Summary of predicted changes in loads transported by HUC12 reaches and in-
stream concentrations within the SWAT watersheds for the Ohio River Basin for the sensitivity
scenario
Number of reaches
Magnitude of change
by direction of
change1
Increase
Decrease
Average
Median
Average %
Median %
Maximum
Parameter
Change
Change
Change
Change
% Change
HUC0509
Annual TN load (kg/yr)
312
3
235.7
11.9
0.03%
0.01%
0.22%
Annual TP load (kg/yr)
308
5
16.0
1.0
0.02%
0.01%
0.23%
Annual sediment load (kg/yr)
165
148
16.3
0.0
0.02%
0.00%
1.10%
Mean daily flow (cms)
13
300
-0.003
0.000
-0.01%
0.00%
0.06%
HUC 0510
Annual TN load (kg/yr)
97
3
718.6
132.7
0.08%
0.07%
8.88%
Annual TP load (kg/yr)
96
4
40.7
9.9
0.06%
0.04%
5.91%
Annual sediment load (kg/yr)
58
42
31.7
0.0
0.06%
0.00%
6.19%
Mean daily flow (cms)
48
51
0.001
0.000
0.01%
0.00%
1.16%
1 Total number of reaches is 346 in HUC 0509 and 106 in HUC 0510. Some modeled reaches show no change in annual average
values and are not included in the counts above.
Table E-15: Predicted changes in annual average loads delivered to the outlet of Ohio River
Basin SWAT watersheds for the sensitivity scenario
Parameter
Baseline
Policy
Change
% Change
HUC 0509
Annual TN load (kg/yr)
280,556
280,626
69
0.02%
Annual TP load (kg/yr)
79,523
79,527
4
<0.01%
Annual sediment load (ton/yr)
2,227,540
2,227,531
-9
<0.01%
HUC 0510
Annual TN load (kg/yr)
8,683,306
8,689,948
6,642
0.08%
Annual TP load (kg/yr)
714,975
715,287
312
0.04%
Annual sediment load (ton/yr)
156,983
157,386
403
0.26%
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 240
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Appendix E Sensitivity Analyses
E.1.5 Dredging for Water Storage and Navigation
Table E-16 presents predicted net sediment depositions in reservoirs in the Ohio River Basin for the
sensitivity scenario. Costs under the sensitivity scenario are summarized in Table E-17.
Table E-16: Summary of predicted net sediment depositions in reservoirs in the Ohio
River Basin (tons/year) in 2040 for sensitivity scenario
HUC4
Number of
reservoirs1
Net annual sediment
deposition in reservoirs
Change relative to baseline
Baseline
Sensitivity
Tons/year
Percent
0509
11
516,560
517,559
998
0.19%
0510
1
57,034
57,076
42
<0.1%
Total
12
573,594
574,635
1040
0.18%
1 Reservoirs modeled in SWAT watersheds, based on the U.S. Army Corps of Engineers National Inventory of
Dams as of October 2010.
Table E-17: Annualized Dredging Cost Changes in Ohio River Basin (2017$ thousands) for the
Sensitivity Scenario
Increase in annual
3% Discount rate ($/year)
7% Discount rate ($/year)
sediment
(cubic yards)
Low
Medium
High
Low
Medium
High
HUC4
(2040)
0509
998
$5.1
$5.4
$5.6
$3.8
$4.4
$4.8
0510
42
$0.2
$0.2
$0.2
$0.2
$0.2
$0.2
Total
1040
$5.3
$5.6
$5.8
$4.0
$4.6
$5.0
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 241
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Appendix E Sensitivity Analyses
E.2 Case Study 2: Lower Missouri River Basin
E.2.1 Section 402
Because the NHD data layer does not classify any streams as "ephemeral" in the Lower Missouri River
Basin region, the agencies did not perform a sensitivity analysis of section 402 program impacts using
NHD data.
E.2.2 Section 404
Table E-18 summarizes section 404 permits issued in 2011-2015 within the two selected watersheds of
the Lower Missouri River Basin. The table includes permits that required mitigation and potentially
affected ephemeral streams, non-abutting wetlands, or wetlands adjacent to but not directly abutting
relatively permanent waters.
Table E-18: Section 404 permits issued in case study watersheds in the Lower Missouri River
Basin (2011-2015)1
State
#
Permitted
projects
# Permits with mitigation
requirements potentially
affected by proposed
changes to the definition
of "waters of the United
States"2
Permanent impacts
Temporary impacts
Acres
Length feet
Acres
Length feet
HUC 1025
CO
10
0
0.0
0
0.0
0
KS
207
39
0.9
33230
0.0
5005
NE
141
2
0.0
0
0.0
0
Total
358
41
0.9
33,230
0.0
5,005
Avg. per
year
72
8
0.2
6,646
0.0
1,001
HUC 1027
KS
742
67
17.1
39,131
3.1
730
MO
1
0
0.0
0
0.0
0
NE
288
10
0.8
236
3.4
0
Total
1031
77
17.9
39,367
6.4
730
Avg. per
year
206
15
3.6
7,873
1.3
146
1 Values based on permits with mitigation requirements on waterways determined to be non-abutting wetlands, RPWWN-
type wetlands, or ephemeral streams. Excludes permits issued for mitigation or restoration activities because the main
purpose of these activities is to restore or enhance ecosystem services provided by water resources as opposed to dredge
and fill activities that lead to permanent or temporary losses of ecosystem services.
2 Number of permits includes permits with mitigation requirements that potentially affect at least one water no longer
jurisdictional under the CWA under the proposed rule.
Table E-19 presents expected reductions in average annual mitigation requirements in the Lower Missouri
River Basin under different likely state response scenarios following the proposed "waters of the United
States" definitional changes.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 242
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Appendix E Sensitivity Analyses
Table E-19: Estimated changes in average mitigation required per year in the Lower Missouri
River Basin based on the sensitivity analysis methodology, by policy scenario12
State
Expected reduction in average
mitigation acres per year
Expected reduction in average
mitigation length feet per year
Expected reduction in average
mitigation riparian acres per
year3
Scenario
Scenario
Scenario
Scenario
Scenario
Scenario
Scenario
Scenario
Scenario
0&1
2
3
0&1
2
3
0& 1
2
3
HUC 1025
KS
0.2
0.0
0.0
7,647
0
0
17.6
0.0
0.0
NE
0.0
0.0
0.0
0
0
0
0.0
0.0
0.0
Total
0.2
0.0
0.0
7,647
0
0
17.6
0.0
0.0
HUC 1027
KS
4.0
0.0
0.0
7,972
0
0.0
18.3
0.0
0.0
NE
0.8
0.0
0.0
47
0
0.0
0.1
0.0
0.0
Total
4.9
0.0
0.0
8,019
0
0.0
18.4
0.0
0.0
1 Values based on permits with mitigation requirements on waterways determined to be non-abutting wetlands, RPWWN-
type wetlands, or ephemeral streams. Excludes permits issued for mitigation or restoration activities because these permits
do not result in the loss of ecosystems services provided by wetlands and streams. Permanent and temporary acre and linear
feet impacts provided in the ORM2 database are used to estimate mitigation requirements. The agencies assumed a 1:1
ratio for compensatory requirements based on the USACE guidance (U.S. Army Corps of Engineers 2014).
2 Scenarios 0 and 1 are combined because all values are identical.
3 Based on mitigation lengths where impacts in linear feet are converted to acres by multiplying total linear feet by an
average total buffer width of 100 feet (50 feet on each side of the stream) and converting square feet to acres.
Table E-20 compares the mitigation reduction estimates in the Lower Missouri River Basin using the
methodology described in Section IV.B and the sensitivity analysis methodology.
Table E-20: Comparison of annual average mitigation requirements in the Lower Missouri River
Impact Type
Acres1
Linear feet2
Stream riparian acres3
Total acreage4
Main
Sensitivity
Main
Sensitivity
Main
Sensitivity
Main
Sensitivity
HUC 0509
Permanent
0.1
0.2
6,646
6,646
7.6
15.3
7.8
15.4
Temporary
0.0
0.0
0
1,001
0.0
2.3
0.0
2.3
Total
0.1
0.2
6,646
7,647
7.6
17.6
7.8
17.7
HUC 0510
Permanent
0.9
3.6
7,873
7,873
9.0
18.1
10.0
21.7
Temporary
0.0
1.3
0
146
0.0
0.3
0.0
1.6
Total
0.9
4.9
7,873
8,019
9.0
18.4
10.0
23.3
1 Sensitivity analysis includes permanent and temporary impact acres from RPWWN-type wetlands, non-abutting wetlands,
and ephemeral streams. By contrast, the main analysis includes only permanent impact acres on RPWWN-type wetlands and
ephemeral streams.
2 Main analysis includes permanent impact linear feet on riparian areas of RPWWN-type wetlands and ephemeral streams.
Sensitivity analysis includes permanent and temporary impact linear feet on riparian areas of non-abutting wetlands,
RPWWN-type wetlands, and ephemeral streams.
3 Sensitivity analysis converts permanent and temporary linear feet impacts to acres using a 100-foot mitigation width (50 feet
on each side). By contrast, the main analysis converts permanent linear feet impacts to acres using a 50-foot mitigation width
(25 feet on each side).
4Sum of the acres and stream riparian acres fields.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised
243
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Appendix E Sensitivity Analyses
Table E-21, Table E-22, and Table E-23 present permit application cost savings, cost savings from
reduced mitigation requirements, and total costs savings, respectively.
Table E-21: Average annual reduction in 404 permit application costs in the Lower Missouri
River Basin, based on the sensitivity analysis methodology12
Unit
costs
from
Corps
NWP
analysis
(2017$)
Scenarios 0 & 1
Scenario 2
Scenario 3
Permit
Type
Annual
average
reduction in
permits
with
proposed
rule
Estimated
reduction in
permit costs
(millions
2017$)
Annual
average
reduction in
permits
with
proposed
rule
Estimated
reduction in
permits
costs
(millions
2017$)
Annual
average
reduction in
permit with
proposed
rule
Estimated
reduction in
permit costs
(millions
2017$)
HUC 1025
IP
$14,700
0.2
<$0.01
0.0
$0.00
0.0
$0.00
GP
$4,400
22.4
$0.10
1.0
<$0.01
0.0
$0.00
Total
22.6
$0.10
1.0
<$0.01
0.0
$0.00
HUC 1027
IP
$14,700
2.0
$0.03
0.2
<$0.01
0.0
$0.00
GP
$4,400
40.0
$0.18
0.2
<$0.01
0.0
$0.00
Total
42.0
$0.21
0.4
<$0.01
0.0
$0.00
Both Watersheds
IP
2.2
$0.03
0.2
<$0.01
0.0
$0.00
GP
62.4
$0.27
1.2
$0.01
0.0
$0.00
Total
64.6
$0.31
1.4
$0.01
0.0
$0.00
1 Includes permits estimated to only affect waters no longer jurisdictional under the CWA under the proposed rule (i.e., non-
abutting wetlands, RPWWN-type wetlands, and ephemeral streams).
2 Scenarios 0 and 1 are combined because all values are identical.
Table E-22: Annual cost savings (2017$) of reduced mitigation requirements in the Lower
State
Cost per acre
(2017$)
Cost per linear
foot(2017$)
Scenarios 0 & 1
(Millions 2017$)
Scenario 2
(Millions 2017$)
Scenario 3
(Millions
2017$)
Low
High
Low
High
Low
High
Low
High
Low
High
HUC 1025
KS
$54,000
$105,400
$90
$360
$1.05
$4.16
$0.00
$0.00
$0.00
$0.00
NE
$54,000
$105,400
$90
$360
<$0.01
<$0.01
$0.00
$0.00
$0.00
$0.00
Total
-
-
-
-
$1.05
$4.16
$0.00
$0.00
$0.00
$0.00
HUC1027
KS
$54,000
$105,400
$90
$360
$1.40
$4.94
$0.00
$0.00
$0.00
$0.00
NE
$54,000
$105,400
$90
$360
$0.07
$0.16
$0.00
$0.00
$0.00
$0.00
Total
-
-
-
-
$1.48
$5.10
$0.00
$0.00
$0.00
$0.00
Both Watersheds
Total
-
-
-
-
$2.52
$9.26
$0.00
$0.00
$0.00
$0.00
1 Estimated changes in average mitigation required per year are presented in Table E-19. For each state, cost savings are
calculated by multiplying the cost of each mitigation acre or linear foot (low and high estimates) by the expected reduction
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised
244
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Appendix E Sensitivity Analyses
Table E-22: Annual cost savings (2017$) of reduced mitigation requirements in the Lower
State
Cost per acre
(2017$)
Cost per linear
foot(2017$)
Scenarios 0 & 1
(Millions 2017$)
Scenario 2
(Millions 2017$)
Scenario 3
(Millions
2017$)
Low
High
Low
High
Low
High
Low
High
Low
High
in annual mitigation requirements, summing the acreage and linear feet values for each scenario, and multiplying the total
by 1.5. The agencies multiply the total by 1.5 to account for a compensatory mitigation requirement ratio of 1.5:1.
2 Scenarios 0 and 1 are combined because all values are identical.
Table E-23: Total estimated annual cost savings in the Lower Missouri River
Basin, based on the sensitivity analysis methodology12
HUC
Scenarios 0 & 1
Scenario 2
Scenario 3
Low
High
Low
High
Low
High
1025
$1.15
$4.26
<$0.01
<$0.01
$0.00
$0.00
1027
$1.68
$5.30
<$0.01
<$0.01
$0.00
$0.00
Total
$2.83
$9.56
$0.01
$0.01
$0.00
$0.00
1 Scenarios 0 and 1 are combined because all values are identical.
2 Scenarios 0 and 1 include cost savings in Kansas, Nebraska, and Colorado. Scenario 2 includes cost
savings in Colorado only. Since none of the 404 permits issued in Colorado between 2011 and 2015
with impacts to waters affected by the proposed rule had mitigation requirements, Scenario 2 only
includes minimal permits cost savings. Under Scenario 3, cost savings drop to zero because all
states in the case study region are expected to regulate waters beyond CWA requirements.
Table E-24 and Table E-25 provide estimated annualized forgone benefits from lost mitigation
requirements in the Lower Missouri River Basin under different state response scenarios, with three
percent and seven percent discount rates, respectively.
Table E-24: Annualized forgone benefits (Millions 2017$) of lost mitigation requirements in the
Lower Missouri River Basin based on the sensitivity analysis methodology, by policy scenario
(3% Discount Rate)12
HUC
# Affected
Scenarios 0 & 1
Scenario 2
Scenario 3
households in
High
High
High
20203
Low
Low
Low
1025
1,264,605
$0.10
$0.68
$0.00
$0.00
$0.00
$0.00
1027
1,689,217
$0.18
$1.20
$0.00
$0.00
$0.00
$0.00
Total
2,953,822
$0.28
$1.88
$0.00
$0.00
$0.00
$0.00
1 Estimated changes in average mitigation required per year are presented in Table E-19. Forgone benefits are calculated for
each scenario by multiplying total forgone mitigation values for each scenario (sum of acres and linear feet converted into
acres) by the total number of affected households and the appropriate household WTP value (low: $0.006/acre; high:
$0.038/acre). The agencies calculated forgone benefits for the years 2020-2039 and annualized values using a 3% discount
rate.
2 Scenarios 0 and 1 are combined because all values are identical.
3 The agencies accounted for population growth and change in the number of households throughout the 2020-2039 study
period.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 245
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Appendix E Sensitivity Analyses
Table E-25: Annualized forgone benefits (Millions 2017$) of lost mitigation requirements in the
Lower Missouri River Basin based on the sensitivity analysis methodology, by policy scenario
(7% Discount Rate)12
HUC
# Affected
Scenarios 0 & 1
Scenario 2
Scenario 3
households in
High
High
High
20203
Low
Low
Low
1025
1,264,605
$0.08
$0.50
$0.00
$0.00
$0.00
$0.00
1027
1,689,217
$0.13
$0.88
$0.00
$0.00
$0.00
$0.00
Total
2,953,822
$0.21
$1.38
$0.00
$0.00
$0.00
$0.00
1 Estimated changes in average mitigation required per year are presented in Table E-19. Forgone benefits are calculated for
each scenario by multiplying total forgone mitigation values for each scenario (sum of acres and linear feet converted into
acres) by the total number of affected households and the appropriate household WTP value (low: $0.006/acre; high:
$0.038/acre). The agencies calculated forgone benefits for the years 2020-2039 and annualized values using a 7% discount
rate.
2 Scenarios 0 and 1 are combined because all values are identical.
3 The agencies accounted for population growth and change in the number of households throughout the 2020-2039 study
period.
E.2.3 Section 311
Because the NHD data layer does not distinguish between intermittent and ephemeral streams in the
Lower Missouri River Basin region, the agencies did not perform a sensitivity analysis of section 311
program impacts using NHD data.
E.2.4 Water Quality Modeling
Table E-26 summarizes the impact of different assumptions on the sensitivity analysis inputs. Forgone
mitigation in the sensitivity analysis is approximately twice that analyzed under the main analysis
presented in Section IV.B.3.3.1.
Table E-26: Changes between 404 program impacts for the sensitivity scenario vs. primary
scenario for the Missouri River Basin SWAT models based on permits issued 2011-2015 (5 Years)
1025
1027
Area
Area
impacts
impacts
to
Linear
to
Linear
wetland
impacts
Area
wetland
impacts
Area
abutting
to
impacts
abutting
to
impacts
epheme-
epheme-
to non-
epheme-
epheme-
to non-
ral
ral
abutting
ral
ral
abutting
stream
stream
wetlands
stream
stream
wetlands
(Acres)
(Acres)1
(Acres)
Total
(Acres)
(Acres)1
(Acres)
Total
Total Primary
0.6
38.1
0
38.7
4.4
43.5
0
47.9
Scenario
+ non-
0.0
0.0
0.0
0.0
0.0
0.0
6.7
6.7
abutting
wetlands
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 246
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Appendix E Sensitivity Analyses
Table E-26: Changes between 404 program impacts for the sensitivity scenario vs. primary
scenario for the Missouri River Basin SWAT models based on permits issued 2011-2015 (5 Years)
1025
1027
Area
Area
impacts
impacts
to
Linear
to
Linear
wetland
impacts
Area
wetland
impacts
Area
abutting
to
impacts
abutting
to
impacts
epheme-
epheme-
to non-
epheme-
epheme-
to non-
ral
ral
abutting
ral
ral
abutting
stream
stream
wetlands
stream
stream
wetlands
(Acres)
(Acres)1
(Acres)
Total
(Acres)
(Acres)1
(Acres)
Total
+ mitigation
0.0
5.7
0.0
5.7
0.3
0.8
6.1
7.3
of temporary
impacts
+ Widen
0
43.9
0
43.9
0
44.4
0
44.4
buffer width
(100 vs. 50 ft)
Total
0.6
87.8
0.0
88.4
4.7
88.7
12.8
106.2
Sensitivity
Scenario
1 Linear impacts converted to areas by multiplying the lengths by 50 feet for the Primary Scenario (Main Analysis) and by 100
feet for the Sensitivity Scenario and applying a conversion factor (1 acre = 43,560 square feet).
Table E-27 through Table E-32 present water quality modeling results for the sensitivity analysis,
following the same format as used in Section IV.B for the main analysis.
Table E-27: Summary of 404 Program activities in Lower Missouri River Basin SWAT models for
permits with permanent or temporary impacts to waters potentially affected by the proposed rule
and with mitigation requirements over 20-year analysis period. Modeled scenario considers both
permanent and temporary impacts.
Type of
Permanent
Temporary
potentially
Total
affected
Linear
Total1
Linear
Total1
impacts
resource2
Acres
feet
acres
Acres
feet
acres
(acres)
HUC 1025
Wetland abutting
ephemeral
stream
2.3
0
2.3
0.0
0
0.0
2.3
Ephemeral stream
0
132,920
305.1
0.0
20,020
46.0
351.1
Total
2.3
132,920
307.4
0.0
20,020
46.0
353.4
HUC 1027
Wetland abutting
ephemeral
stream
44.1
0
44.1
25.7
0
25.7
69.8
Ephemeral stream
0.0
151,692
348.2
0
2,920
6.7
354.9
Total
44.1
151,692
392.3
25.7
2,920
32.5
424.8
1 Represents the sum of impacts reported in acres and impacts reported in linear feet, assuming a width of 100 feet for linear
impacts.
2 See Table IV-8 for criteria used to identify affected resources that may change jurisdiction under the proposed rule.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 247
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Appendix E Sensitivity Analyses
Table E-28: Summary of basin-level annual average water balance and constituent transport in
Lower Missouri River Basin SWAT watersheds for the sensitivity scenario
Parameter
HUC 1025
HUC 1027
Baseline
Policy
Change
%
Change
Baseline
Policy
Change
%
Change
Precipitation (mm)
543.50
543.50
0.00
0.0%
805.00
805.00
0.00
0.0%
Surface runoff (mm)
8.33
8.33
0.00
0.0%
82.88
82.88
0.00
0.0%
Lateral flow (mm)
0.09
0.09
0.00
0.0%
2.94
2.94
0.00
0.0%
Groundwater flow (mm)
2.44
2.44
0.00
0.0%
12.99
12.99
0.00
0.0%
Water yield (mm)
10.46
10.45
-0.01
-0.1%
98.96
98.96
0.00
0.0%
Evapotranspiration (mm)
533.90
533.90
0.00
0.0%
685.40
685.40
0.00
0.0%
Sediment loading (ton/ha)
0.120
0.120
0.000
0.0%
2.370
2.370
0.000
0.0%
Organic N (kg/ha)
0.310
0.310
0.000
0.0%
2.687
2.687
0.000
0.0%
Organic P (kg/ha)
0.040
0.040
0.000
0.0%
0.317
0.317
0.000
0.0%
N03 in surface runoff (kg/ha)
0.013
0.013
0.000
0.0%
0.008
0.008
0.000
0.0%
N03 in lateral flow (kg/ha)
0.001
0.001
0.000
0.0%
0.012
0.012
0.000
0.0%
Soluble P yield (kg/ha)
0.008
0.008
0.000
0.0%
0.102
0.102
0.000
0.0%
N03 leached (kg/ha)
0.116
0.116
0.000
0.0%
0.190
0.190
0.000
0.0%
P leached (kg/ha)
0.005
0.005
0.000
0.0%
0.016
0.016
0.000
0.0%
Table E-29: Estimated change in annual average subbasin water balance and constituent
transport in SWAT watershed HUC 1025 for the sensitivity scenario
Number of subbasins
by direction of
change1
Absolute change
Model parameter
Increase
Decrease
Average
Median
Minimum
Maximum
Evapotranspiration (mm/yr)
391
106
0.01
0.00
0.00
0.07
Surface runoff (mm/yr)
62
471
0.00
0.00
-0.03
0.00
Lateral flow (mm/yr)
126
401
0.00
0.00
0.00
0.00
Groundwater flow (mm/yr)
4
286
0.00
0.00
-0.14
0.00
Total water yield (mm/yr)
37
495
0.00
0.00
-0.14
0.00
Sediment yield (ton/ha/yr)
172
327
0.000
0.000
0.000
0.001
Organic N (kg/ha/yr)
288
244
0.000
0.000
0.000
0.002
Organic P (kg/ha/yr)
289
242
0.000
0.000
0.000
0.000
N03 in surface runoff (kg/ha/yr)
329
203
0.000
0.000
0.000
0.000
Soluble P (kg/ha/yr)
329
202
0.000
0.000
0.000
0.000
1 Total number of SWAT HUC12 reaches is 346. Some modeled reaches show no change in annual average values and are not
included in the counts above.
Table E-30: Estimated change in annual average subbasin water balance and constituent
transport in SWAT watershed HUC 1027 for the sensitivity scenario
Number of subbasins
by direction of
change1
Absolute change
Model parameter
Increase
Decrease
Average
Median
Minimum
Maximum
Evapotranspiration (mm/yr)
0
0
0.00
0.00
0.00
0.00
Surface runoff (mm/yr)
238
181
0.00
0.00
0.00
0.09
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 248
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Appendix E Sensitivity Analyses
Table E-30: Estimated change in annual average subbasin water balance and constituent
transport in SWAT watershed HUC 1027 for the sensitivity scenario
Number of subbasins
by direction of
change1
Absolute change
Model parameter
Increase
Decrease
Average
Median
Minimum
Maximum
Lateral flow (mm/yr)
3
0
0.00
0.00
0.00
0.00
Groundwater flow (mm/yr)
71
312
0.00
0.00
-0.04
0.08
Total water yield (mm/yr)
193
226
0.00
0.00
-0.02
0.08
Sediment yield (ton/ha/yr)
341
79
0.000
0.000
0.000
0.007
Organic N (kg/ha/yr)
242
178
0.000
0.000
0.000
0.002
Organic P (kg/ha/yr)
232
188
0.000
0.000
0.000
0.000
N03 in surface runoff (kg/ha/yr)
255
165
0.000
0.000
0.000
0.000
Soluble P (kg/ha/yr)
283
137
0.000
0.000
0.000
0.000
1 Total number of SWAT HUC12 reaches is 106. Some modeled reaches show no change in annual average values and are not
included in the counts above.
Table E-31: Summary of predicted changes in loads transported by HUC12 reaches and in-
stream concentrations within the SWAT watersheds for the Lower Missouri River Basin for the
sensitivity scenario
Number of reaches
Magnitude of change
by direction of
change1
Increase
Decrease
Average
Median
Average %
Median %
Maximum
Parameter
change
change
change
change
% change
HUC1025
Annual TN load (kg/yr)
146
409
1.9
-0.1
-0.01%
0.00%
0.28%
Annual TP load (kg/yr)
147
406
-0.3
0.0
-0.01%
0.00%
0.28%
Annual sediment load (kg/yr)
187
368
-1.1
0.0
-0.01%
0.00%
1.50%
Mean daily flow (cms)
71
477
0.000
0.000
-0.02%
-0.01%
0.01%
HUC 1027
Annual TN load (kg/yr)
369
51
41.7
0.8
0.00%
0.00%
0.04%
Annual TP load (kg/yr)
379
41
10.2
0.2
0.00%
0.00%
0.04%
Annual sediment load (kg/yr)
318
102
7.6
0.3
0.00%
0.00%
0.04%
Mean daily flow (cms)
315
105
0.000
0.000
0.00%
0.00%
0.04%
1 Total number of reaches is 346 in HUC 0509 and 106 in HUC 0510. Some modeled reaches show no change in annual average
values and are not included in the counts above.
Table E-32: Predicted changes in annual average loads delivered to the outlet of Lower Missouri
River Basin SWAT watersheds for the sensitivity scenario
Parameter
Baseline
Policy
Change
% Change
HUC 1025
Annual TN load (kg/yr)
2,899,314
2,900,067
753
0.03%
Annual TP load (kg/yr)
639,885
640,026
142
0.02%
Annual sediment load (ton/yr)
174,826
174,767
-58
-0.03%
HUC 1027
Annual TN load (kg/yr)
17,798,742
17,799,323
582
0.00%
Annual TP load (kg/yr)
3,790,097
3,790,239
142
0.00%
Annual sediment load (ton/yr)
2,755,689
2,755,715
26
0.00%
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 249
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Appendix E Sensitivity Analyses
E.2.5 Dredging for Water Storage and Navigation
Table E-33 presents predicted net sediment depositions in reservoirs in the Lower Missouri River Basin
for the sensitivity scenario. Costs under the sensitivity scenario are summarized in Table E-34.
Table E-33: Summary of predicted net sediment depositions in reservoirs in the
Missouri River Basin (tons/year) in 2040 for sensitivity scenario
HUC4
Number of
reservoirs1
Net annual sediment
deposition in reservoirs
Change relative to baseline
Baseline
Sensitivity
Tons/year
Percent
1025
11
14,980
14,964
-16
-0.11%
1027
5
6,804,625
6,804,620
-5
-0.00%
Total
16
6,819,605
6,819,584
-21
-0.00%
1 Reservoirs modeled in SWAT watersheds, based on the U.S. Army Corps of Engineers National Inventory
of Dams as of October 2010.
Table E-34: Annualized Dredging Cost Changes in Missouri River Basin (2017$ thousands) for
the Sensitivity Scenario
Increase in annual
3% Discount rate ($/year)
7% Discount rate ($/year)
sediment
(cubic yards)
Low
Medium
High
Low
Medium
High
HUC4
(2040)
1025
-16
-$0.1
-$0.1
-$0.1
-$0.1
-$0.1
-$0.1
1027
-5
<-$0.1
<-$0.1
<-$0.1
<-$0.1
<-$0.1
<-$0.1
Total
-21
-$0.1
-$0.1
-$0.1
-$0.1
-$0.1
-$0.1
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 250
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Appendix E Sensitivity Analyses
E.3 Case Study 3: Rio Grande River Basin
E.3.1 Section 402
Table E-35 presents the number of NPDES permits issued in the Rio Grande River Basin as well as
permits with at least one discharge point near ephemeral waters by the most common industry categories.
The number of permits with at least one discharge point near ephemeral waters is based on NHD high
resolution categorizations instead ofNWI Cowardin codes as used for the main analysis. As described in
Section II.C, the agencies used NHD data from March 2017 for all states except California, which were
September 2017 data.
Table E-35: Section 402 individual permits (SIC codes in parentheses) issued in case study
watersheds in the Rio Grande River Basin
Individual permits1
General permits1
Total
number
of NPDES
permits
Permits with discharge
Total
number
of NPDES
permits1
Permits with discharge
Industry category
point near ephemeral
streams2
point near ephemeral
streams2
Number of
permits
Percent of
all permits
Number of
permits
Number of
permits
HUC 1306
Sewerage Systems (4952)
9
1
11%
1
0
0%
Animal Feeding
Operations3
0
0
0%
6
2
33%
Motor Vehicle Parts, Used
(5015)
0
0
0%
9
7
78%
Aggregate Mining4
0
0
0%
15
6
40%
Construction and
0
0
0%
40%
Development5
Other Categories6
6
0
0%
32
9
28%
Missing SIC Codes
0
0
0%
105
51
49%
Total
15
1
7%
173
77
45%
HUC1307
Industrial Domestic
Wastewater Treatment7
2
0
0%
0
0
0%
Sewerage Systems (4952)
3
0
0%
0
0
0%
Aggregate Mining4
0
0
0%
2
1
50%
Ready-Mixed Concrete
(3273)
0
0
0%
3
1
33%
Animal Feeding
Operations3
0
0
0%
2
0
0%
Other Categories6
2
0
0%
0
0
-
Missing SIC Codes
0
0
-
21
10
48%
Total
7
0
0%
28
12
43%
Total for both
watersheds
22
1
5%
201
89
44%
1Source: EPA's ICIS-NPDES data, 2017. The facility permits included in the spatial analysis are limited to those for which the
ICIS-NPDES database includes latitude/longitude coordinates. For permits with multiple SIC codes, only one SIC code was
retained, with manufacturing industries prioritized, to avoid double-counting.
2 The agencies used FCODES in the NHD dataset to determine whether 402 discharges are likely to affect ephemeral streams.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised
| 251
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Appendix E Sensitivity Analyses
Table E-35: Section 402 individual permits (SIC codes in parentheses) issued in case study
watersheds in the Rio Grande River Basin
Industry category
Individual permits1
General permits1
Total
number
of NPDES
permits
Permits with discharge
point near ephemeral
streams2
Total
number
of NPDES
permits1
Permits with discharge
point near ephemeral
streams2
Number of
permits
Percent of
all permits
Number of
permits
Number of
permits
3 Includes SIC Codes 211, 212, 213, 214, 219, 241, 251, 252, 253, 254, 259, 271, 272, and 279
4 Includes SIC Codes 1422, 1423, 1429, 1442, 1446, 1459,1474, 1475, 1481, and 1499
5 Includes SIC Codes 1629, 1794, 6552, 1611, 1799, 1521,1522, and 1623
6 Includes Asphalt Paving Mixtures and Blocks (2951), Scrap and Waste Materials (5093), Trucking Facilities (4212, 4231), and
Water Supply (4941)
7 Includes SIC Codes 6513, 6514, 6515, 7011, 7032, 7033, 8211, 8221, 8641, and 8661
Table E-36 illustrates the plausible effects of state responses following a change to the definition of
"waters of the United States" on the number of NPDES permits in the Rio Grande River Basin. Potential
state responses and different analytic scenarios are described in Sections II.B and III.C.l. NPDES permits
for discharges near ephemeral waters were issued in one state in HUC 1306 (New Mexico) and two states
in HUC 1307 (New Mexico and Texas). Texas is expected to regulate waters beyond the CWA under
Scenarios 2 and 3. New Mexico is not anticipated to regulate waters beyond the CWA under any
scenarios.
Table E-36: Section 402 permits issued in case study watersheds in the Rio Grande River Basin
potentially affected by proposed definition of "waters of the United States," by policy
scenario1'23
Individual Permits with discharge
General Permits with discharge
Industry category
point near ephemeral streams
point near ephemeral streams
Scenario 0
Scenario 1
Scenario 2
(3)4
Scenario 0
Scenario 1
Scenario 2
(3)4
HUC 1306
Sewerage Systems (4952)
1
1
1
0
0
0
Animal Feeding Operations5
0
0
0
2
2
2
Motor Vehicle Parts, Used
(5015)
0
0
0
7
7
7
Aggregate Mining6
0
0
0
6
6
6
Construction and Development7
0
0
0
2
2
2
Other Categories8
0
0
0
9
9
9
Missing SIC Codes
0
0
0
51
51
51
Total
1
1
1
77
77
77
HUC 1307
Industrial Domestic Wastewater
Treatment9
0
0
0
0
0
0
Sewerage Systems (4952)
0
0
0
0
0
0
Aggregate Mining6
0
0
0
1
1
1
Ready-Mixed Concrete (3273)
0
0
0
1
1
0
Animal Feeding Operations5
0
0
0
0
0
0
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 252
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Appendix E Sensitivity Analyses
Table E-36: Section 402 permits issued in case study watersheds in the Rio Grande River Basin
potentially affected by proposed definition of "waters of the United States," by policy
scenario1'23
Individual Permits with discharge
General Permits with discharge
Industry category
point near ephemeral streams
point near ephemeral streams
Scenario 0
Scenario 1
Scenario 2
(3 )4
Scenario 0
Scenario 1
Scenario 2
(3 )4
Other Categories8
0
0
0
0
0
0
Missing SIC Codes
0
0
0
10
10
10
Total
0
0
0
12
12
11
Total for both watersheds
1
1
1
89
89
88
1Source: EPA's ICIS-NPDES data, 2017. The facility permits included in the spatial analysis are limited to those for which the
ICIS-NPDES database includes latitude/longitude coordinates. For permits with multiple SIC codes, only one SIC code was
retained, with manufacturing industries prioritized, to avoid double-counting.
2 The agencies used FCODES in the NHD dataset to determine whether 402 discharges are likely to affect ephemeral streams.
3See Table II1-1 for description of policy scenarios.
4 Policy scenarios 2 and 3 are identical for surface water dischargers-
5 Includes SIC Codes 211, 212, 213, 214, 219, 241, 251, 252, 253, 254, 259, 271, 272, and 279
6 Includes SIC Codes 1422, 1423, 1429, 1442, 1446, 1459,1474, 1475, 1481, and 1499
7 Includes SIC Codes 1629, 1794, 6552, 1611, 1799, 1521,1522, and 1623
8 Includes Asphalt Paving Mixtures and Blocks (2951), Scrap and Waste Materials (5093), Trucking Facilities (4212, 4231), and
Water Supply (4941)
9 Includes SIC Codes 6513, 6514, 6515, 7011, 7032, 7033, 8211, 8221, 8641, and 8661
E.3.2 Section 404
Table E-37 summarizes section 404 permits issued in 2011-2015 within the two selected watersheds of
the Rio Grande River Basin. The table includes permits that required mitigation and potentially affected
ephemeral streams, non-abutting wetlands, or wetlands adjacent to but not directly abutting permanent
waters.
Table E-37: Section 404 permits issued in case study watersheds in the Rio Grande River Basin
(2011-2015)1
It Permits with
Permanent impacts
Temporary impacts
M
mitigation
State
Permitted
projects
requirements affected
by changes to the
definition of "waters
of the United States"2
Acres
Length feet
Acres
Length feet
HUC 1306
NM
168
1
17.5
0
0.0
0
Total
168
1
17.5
0
0.0
0
Avg.
per
34
0
3.5
0
0.0
0
year
HUC 1307
NM
39
0
0.0
0
0.0
0
TX
6
0
0.0
0
0.0
0
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 253
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Appendix E Sensitivity Analyses
Table E-37: Section 404 permits issued in case study watersheds in the Rio Grande River Basin
(2011-2015)1
State
#
Permitted
projects
# Permits with
mitigation
requirements affected
by changes to the
definition of "waters
of the United States"2
Permanent impacts
Temporary impacts
Acres
Length feet
Acres
Length feet
Total
45
0
0.0
0
0.0
0
Avg.
per
9
0
0.0
0
0.0
0
year
1 Values based on permits with mitigation requirements on waterways determined to be non-abutting wetlands, RPWWN-
type wetlands, or ephemeral streams. Excludes permits issued for mitigation or restoration activities because the main
purpose of these activities is to restore or enhance ecosystem services provided by water resources as opposed to dredge
and fill activities that lead to permanent or temporary losses of ecosystem services. No 404 permits in HUC 1307 meet these
requirements.
2 Number of permits includes permits with mitigation requirements that potentially affect at least one water no longer
jurisdictional under the CWA under the proposed rule.
Table E-38 presents expected reductions in average annual mitigation requirements in the Rio Grande
River Basin under different likely state response scenarios following the proposed "waters of the United
States" definitional changes.
Table E-38: Estimated changes in average mitigation required per year in the Rio Grande River
Basin based on the sensitivity analysis methodology, by policy scenario12
State
Expected reduction in average
mitigation acres per year
Expected reduction in average
mitigation length feet per year
Expected reduction in average
mitigation length feet acres per
year3
Scenario
0&1
Scenario 2
Scenario
3
Scenario
0& 1
Scenario
2
Scenario
3
Scenario
0&1
Scenario 2
Scenario
3
HUC 1306
NM
3.5
3.5
0.0
0
0
0
0.0
0.0
0.0
Total
3.5
3.5
0.0
0
0
0
0.0
0.0
0.0
HUC 1307
TX
0.0
0.0
0.0
0
0
0.0
0.0
0.0
0.0
Total
0.0
0.0
0.0
0
0
0.0
0.0
0.0
0.0
1 Values based on permits with mitigation requirements on waterways determined to be non-abutting wetlands, RPWWN-
type wetlands, or ephemeral streams. Excludes permits issued for mitigation or restoration activities because these permits
do not result in the loss of ecosystems services provided by wetlands and streams. No 404 permits in HUC 1307 meet these
requirements. Permanent and temporary acre and linear feet impacts provided in the ORM2 are used to estimate mitigation
requirements. The agencies assumed a 1:1 ratio for compensatory requirements based on the USACE guidance (U.S. Army
Corps of Engineers 2014).
2 Scenarios 0 and 1 are combined because all values are identical.
3 Based on mitigation lengths where impacts in linear feet are converted to acres by multiplying total linear feet by an average
total buffer width of 100 feet (50 feet on each side of the stream) and converting square feet to acres.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 254
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Appendix E Sensitivity Analyses
Table E-39 compares the mitigation reduction estimates in the Rio Grande River Basin using the
methodology described in Section IV.B and the sensitivity analysis methodology.
Table E-39: Comparison of annual average mitigation requirements in the Rio Grande River
Impact Type
Acres1
Linear feet2
Stream riparian acres3
Total acreage4
Main
Sensitivity
Main
Sensitivity
Main
Sensitivity
Main
Sensitivity
HUC 0509
Permanent
0.02
3.51
0
0
0.00
0.00
0.02
3.51
Temporary
0.00
0.00
0
0
0.00
0.00
0.00
0.00
Total
0.02
3.51
0
0
0.00
0.00
0.02
3.51
HUC 0510
Permanent
0.00
0.00
0
0
0.00
0.00
0.00
0.00
Temporary
0.00
0.00
0
0
0.00
0.00
0.00
0.00
Total
0.00
0.00
0
0
0.00
0.00
0.00
0.00
1 Main analysis includes permanent impact acres on RPWWN-type wetlands and ephemeral streams. Sensitivity analysis
includes permanent and temporary impact acres from RPWWN-type wetlands, non-abutting wetlands, and ephemeral
streams.
2 Main analysis includes permanent impact linear feet on riparian areas of RPWWN-type wetlands and ephemeral streams.
Sensitivity analysis includes permanent and temporary impact linear feet on riparian areas of non-abutting wetlands,
RPWWN-type wetlands, and ephemeral streams.
3 Main analysis converts permanent linear feet impacts to acres using a 50-foot mitigation width (25 feet on each side).
Sensitivity analysis converts permanent and temporary linear feet impacts to acres using a 100-40foot mitigation width (50
feet on each side).
4Sum of the acres and stream riparian acres fields.
Table E-40, Table E-41, and Table E-42 present permit application cost savings, cost savings from
reduced mitigation requirements, and total costs savings, respectively.
Table E-40: Average annual reduction in 404 permit application costs in the Rio Grande River
Basin, based on the sensitivity analysis methodology12
Unit
Scenario 0 & 1
Scenario 2
Scenario 3
Permit
Type
costs
from
Corps
NWP
analysis
(2017$)
Annual
average
reduction in
permits with
rule
Estimated
reduction in
permits
costs
(millions
2017$)
Annual
average
reduction in
permits
with rule
Estimated
reduction in
permits
costs
(millions
2017$)
Annual
average
reduction in
permits
with rule
Estimated
reduction in
permits
costs
(millions
2017$)
HUC 1306
IP
$14,700
0.2
<$0.01
0.2
<$0.01
0.0
$0.00
GP
$4,400
17.0
$0.07
17.0
$0.07
0.0
$0.00
Total
17.2
$0.08
17.2
$0.08
0.0
$0.00
HUC 1307
IP
$14,700
0.0
$0.00
0.0
$0.00
0.0
$0.00
GP
$4,400
8.0
$0.04
8.0
$0.04
0.0
$0.00
Total
8.0
$0.04
8.0
$0.04
0.0
$0.00
Both Watersheds
IP
0.2
<$0.01
0.2
<$0.01
0.0
$0.00
GP
25.0
$0.11
25.0
$0.11
0.0
$0.00
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 255
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Appendix E Sensitivity Analyses
Table E-40: Average annual reduction in 404 permit application costs in the Rio Grande River
Basin, based on the sensitivity analysis methodology12
Unit
Scenario 0 & 1
Scenario 2
Scenario 3
Permit
Type
costs
from
Corps
NWP
analysis
(2017$)
Annual
average
reduction in
permits with
rule
Estimated
reduction in
permits
costs
(millions
2017$)
Annual
average
reduction in
permits
with rule
Estimated
reduction in
permits
costs
(millions
2017$)
Annual
average
reduction in
permits
with rule
Estimated
reduction in
permits
costs
(millions
2017$)
Total
25.2
$0.11
25.2
$0.11
0.0
$0.00
1 Includes permits estimated to only affect waters no longer jurisdictional under the CWA under the proposed rule (i.e., non-
abutting wetlands, RPWWN-type wetlands, and ephemeral streams).
2 Scenarios 0 and 1 are combined because all values are identical.
Table E-41: Annual cost savings (2017$) of reduced mitigation requirements in the Rio Grande
River Basin based on the sensitivity analysis methodology, by policy scenario12
Cost per acre
Cost per LF
Scenarios 0 & 1
Scenario 2
Scenario 3
State
(2017$)
(2017$)
(Millions 2017$)
(Millions 2017$)
(Millions 2017$)
Low
High
Low
High
Low
High
Low
High
Low
High
HUC 1306
NM
$51,850
$72,490
$294
$675
$0.27
$0.38
$0.27
$0.38
$0.00
$0.00
Total
-
-
-
-
$0.27
$0.38
$0.27
$0.38
$0.00
$0.00
HUC 1307
TX
$54,000
$105,400
$525
$900
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Total
-
-
-
-
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Both Watersheds
Total
-
-
-
-
$0.27
$0.38
$0.27
$0.38
$0.00
$0.00
1 Estimated changes in average mitigation required per year are presented in Table E-38. For each state, cost savings are
calculated by multiplying the cost of each mitigation acre or linear foot (low and high estimates) by the expected reduction in
annual mitigation requirements, summing the acreage and linear feet values for each scenario, and multiplying the total by
1.5. The agencies multiply the total by 1.5 to account for a compensatory mitigation requirement ratio of 1.5:1.
2Scenarios 0 and 1 are combined because all values are identical.
Table E-42: Total annual cost savings in the Rio Grande River Basin,
based on the sensitivity analysis methodology12
HUC
Scenarios 0 & 1
Scenario 2
Scenario 3
Low
High
Low
High
Low
High
1306
$0.35
$0.46
$0.35
$0.46
$0.00
$0.00
1307
$0.04
$0.04
$0.04
$0.04
$0.00
$0.00
Total
$0.39
$0.49
$0.39
$0.49
$0.00
$0.00
Scenarios 0 and 1 are combined because all values are identical.
2 Scenarios 0,1, and 2 include cost savings in New Mexico and Texas. Under Scenario 3, cost
savings drop to zero because both states in the case study region are expected to regulate
waters beyond CWA requirements.
The agencies did not estimate the forgone benefit value of lost mitigation acres for the Rio Grande River
Basin case study because none of the existing wetland valuation studies were conducted in the same
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 256
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Appendix E Sensitivity Analyses
geographic area or provided a good match for the affected resource characteristics. See Section
IV.B.4.2.2.2 for additional details.
E.3.3 Section 311
The agencies used the high-resolution NHD data in the main analysis to estimate impacts on section 311
programs. Therefore, the results for the sensitivity analysis are the same as discussed in Section
IV.B.4.2.3 for the main analysis.
E.3.4 Water Quality Modeling
As discussed in Section IV.B.4.3.1, given the small level of 404 activity in the two watersheds, the
agencies did not perform SWAT model runs for this case study.
E.3.5 Dredging for Water Storage and Navigation
Because the agencies did not perform SWAT model runs for the Rio Grande case study (see Section
IV.B.4.3.1), net sediment depositions and annualized dredging cost change estimates are not available.
E.4 Stage 2 Quantitative Assessment of National Impacts
Table E-43, Table E-44, and Table E-45 present national-level permit cost savings, mitigation cost
savings, and total cost savings (sum of permit cost savings and reduced mitigation requirement savings),
respectively, based on the sensitivity analysis methodology. Table E-46 presents forgone benefit estimates
based on the sensitivity analysis methodology.
Table E-43: National average annual reduction in CWA section 404 permit application costs
based on the sensitivity analysis methodology
Permit
Unit costs from Corps NWP
Annual average reduction in
Estimated reduction in permit
Type
analysis (2017$)
permits with proposed rule
costs (millions 2017$)
Scenario 01,2
IP
$14,700
250
$3.7
GP
$4,400
8,376
$36.9
Total
8,626
$40.5
Scenario l1,3
IP
$14,700
82
$1.2
GP
$4,400
4,635
$20.4
Total
4,717
$21.6
Scenario 21,4
IP
$14,700
48
$0.7
GP
$4,400
3,054
$13.4
Total
3,103
$14.2
Scenario 31,5
IP
$14,700
18
$0.3
GP
$4,400
567
$2.5
Total
585
$2.8
1 Annual average permit reductions based on permits issued in years 2011-2015 estimated to only affect RPWWN-type
wetlands, other non-abutting wetlands, or ephemeral streams.
2 Includes all states except Hawaii and Alaska. Alaska is excluded from the sensitivity analysis methodology because the GIS
layers used in the NHD-NWI adjacency analysis are only available for the conterminous United States.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 257
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Appendix E Sensitivity Analyses
Table E-43: National average annual reduction in CWA section 404 permit application costs
based on the sensitivity analysis methodology
Permit
Type
Unit costs from Corps NWP
analysis (2017$)
Annual average reduction in
permits with proposed rule
Estimated reduction in permit
costs (millions 2017$)
3 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Iowa, Idaho, Kansas, Kentucky, Louisiana,
Missouri, Mississippi, Montana, North Carolina, North Dakota, Nebraska, New Mexico, Nevada, Oklahoma, South Carolina,
South Dakota, Texas, Utah, Wisconsin, West Virginia, and Wyoming.
4 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Idaho, Kentucky, Missouri, Mississippi,
Montana, North Dakota, New Mexico, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming.
5 Includes Arizona, Idaho, Kentucky, Mississippi, and South Dakota.
Table E-44: National average annual cost savings of reduced CWA section 404 related
mitigation requirements based on the sensitivity analysis methodology
Unit
Annual average mitigation
reduction with rule
Low
(Millions 2017$)
High
(Millions 2017$)
Scenario 01,2
Acres
2,735.7
$256.7
$523.5
LF
600,813
$300.7
$683.8
Total
$557.4
$1,207.3
Scenario l1,3
Acres
1,267.4
$99.6
$181.6
LF
372,632
$170.8
$371.6
Total
$270.4
$553.2
Scenario 21,4
Acres
978.1
$86.8
$148.1
LF
274,261
$147.8
$309.9
Total
$234.6
$458.0
Scenario 31,5
Acres
241.7
$16.3
$23.4
LF
85,857
$38.4
$96.2
Total
$54.7
$119.5
1 Annual average mitigation reduction based on permits issued in years 2011-2015 with mitigation requirements on
waterways determined to be RPWWN-type wetlands, other non-abutting wetlands, or ephemeral streams. Excludes permits
issued for mitigation or restoration activities because the main purpose of these activities is to restore or enhance
ecosystem services provided by water resources as opposed to dredge and fill activities that lead to permanent or temporary
losses of ecosystem services. Cost savings are calculated by multiplying the cost of each mitigation acre or linear foot (low
and high estimates) for each state by the expected reduction in annual mitigation requirements, summing the state-level
acreage and linear feet values for each scenario, and multiplying the total by 1.5. The agencies multiply the total by 1.5 to
account for a compensatory mitigation requirement ratio of 1.5:1.
2 Includes all states except Hawaii and Alaska. Alaska is excluded from the sensitivity analysis methodology because the GIS
layers used in the NHD-NWI adjacency analysis are only available for the conterminous United States.
3 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Iowa, Idaho, Kansas, Kentucky, Louisiana,
Missouri, Mississippi, Montana, North Carolina, North Dakota, Nebraska, New Mexico, Nevada, Oklahoma, South Carolina,
South Dakota, Texas, Utah, Wisconsin, West Virginia, and Wyoming
4 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Idaho, Kentucky, Missouri, Mississippi,
Montana, North Dakota, New Mexico, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming
5 Includes Arizona, Idaho, Kentucky, Mississippi, and South Dakota
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 258
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Appendix E Sensitivity Analyses
Table E-45: Total national estimated CWA section 404 program related annual cost savings
based on the sensitivity analysis methodology (Millions 2017$)
Cost Type
Scenario 01
Scenario l2
Scenario 23
Scenario 34
Low
High
Low
High
Low
High
Low
High
Permit Cost
Savings
$40.5
$40.5
$21.6
$21.6
$14.2
$14.2
$2.8
$2.8
Mitigation Cost
Savings
$557.4
$1,207.3
$270.4
$553.2
$234.6
$458.0
$54.7
$119.5
Total
$597.9
$1,247.9
$292.0
$574.8
$248.7
$472.2
$57.5
$122.3
1 Includes all states except Hawaii and Alaska. Alaska is excluded from the sensitivity analysis methodology because the GIS
layers used in the NHD-NWI adjacency analysis are only available for the conterminous United States.
2 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Iowa, Idaho, Kansas, Kentucky, Louisiana,
Missouri, Mississippi, Montana, North Carolina, North Dakota, Nebraska, New Mexico, Nevada, Oklahoma, South Carolina,
South Dakota, Texas, Utah, Wisconsin, West Virginia, and Wyoming.
3 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Idaho, Kentucky, Missouri, Mississippi,
Montana, North Dakota, New Mexico, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming.
4 Includes Arizona, Idaho, Kentucky, Mississippi, and South Dakota.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 259
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Appendix E Sensitivity Analyses
Table E-46: Total national forgone benefit estimate of reduced CWA section 404 related mitigation requirements based on the
Scenario
Households
Annual forgone
mitigation acres
Mean WTP per
household per
acre (2017$)
Mean estimate
of forgone
benefits
(Millions
2017$)
Lower 5th
WTP per
household per
acre (2017$)
Lower 5th
estimate of
forgone
benefits
(Millions
2017$)
Upper 95th
WTP per
household per
acre (2017$)
Upper 95th
estimate of
forgone
benefits
(Millions
2017$)
Scenario 01,2
115,994,247
4,115.0
$0.0251
$362.7
$0.0001
$1.8
$0.0493
$801.4
Scenario l1,3
45,033,201
2,122.8
$0.0192
$120.7
$0.0001
$0.7
$0.0419
$266.3
Scenario 21,4
32,455,035
1,607.7
$0.0212
$108.0
$0.0001
$0.6
$0.0461
$238.8
Scenario 31,5
6,118,413
438.8
$0.0237
$17.5
$0.0001
$0.1
$0.0504
$35.5
1 Annual average mitigation reduction based on permits issued in years 2011-2015 with mitigation requirements on waterways determined to be RPWWN-type wetlands,
other non-abutting wetlands, or ephemeral streams. Excludes permits issued for mitigation or restoration activities because the main purpose of these activities is to restore
or enhance ecosystem services provided by water resources as opposed to dredge and fill activities that lead to permanent or temporary losses of ecosystem services.
2 Includes all states except Hawaii and Alaska. Alaska is excluded from the sensitivity analysis methodology because the GIS layers used in the NHD-NWI adjacency analysis are
only available for the conterminous United States.
3 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Iowa, Idaho, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, North Carolina, North
Dakota, Nebraska, New Mexico, Nevada, Oklahoma, South Carolina, South Dakota, Texas, Utah, Wisconsin, West Virginia, and Wyoming.
4 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Idaho, Kentucky, Missouri, Mississippi, Montana, North Dakota, New Mexico, Oklahoma, South
Carolina, South Dakota, Texas, Utah, and Wyoming.
5 Includes Arizona, Idaho, Kentucky, Mississippi, and South Dakota.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised
260
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Appendix E Sensitivity Analyses
Table E-47 presents state-level average annual reductions in CWA section 404 permit and mitigation
requirements based on the sensitivity analysis methodology, by policy scenario and state. Table E-48,
Table E-49, and Table E-50 present state-level permit cost savings, mitigation cost savings, and total cost
savings (sum of permit cost savings and mitigation cost savings), respectively, based on the sensitivity
analysis methodology.
Table E-51 through Table E-54 present state-level forgone benefits from reduced CWA section 404
related mitigation requirements based on the sensitivity analysis methodology for Scenarios 0, 1,2, and 3,
respectively.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 261
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Appendix E Sensitivity Analyses
Table E-47: Average annual reductions in CWA section 404 permit and mitigation requirements based on the sensitivity analysis
methodology, by state
State
Annual average reduction in permits with proposed rule1
Average annual mitigation reduction with proposed rule2
Individual Permits
General Permits
Acres
Linear feet
Sc. 03
Sc. I4
Sc. 25
Sc. 36
Sc. 03
Sc. I4
Sc. 25
Sc. 36
Sc. 03
Sc. I4
Sc. 25
Sc. 36
Sc. 03
Sc. I4
Sc. 25
Sc. 36
AL
4.4
4.4
4.4
0.0
45.0
45.0
45.0
0.0
88.68
88.68
88.68
0.00
48,153
48,153
48,153
0
AR
2.6
2.6
2.6
0.0
330.0
330.0
330.0
0.0
35.70
35.70
35.70
0.00
15,933
15,933
15,933
0
AZ
5.0
5.0
5.0
5.0
240.6
240.6
240.6
240.6
14.93
14.93
14.93
14.93
2,033
2,033
2,033
2,033
CA
9.0
0.0
0.0
0.0
1,077.0
0.0
0.0
0.0
53.57
0.00
0.00
0.00
110,627
0
0
0
CO
0.4
0.4
0.4
0.0
160.6
160.6
160.6
0.0
3.04
3.04
3.04
0.00
566
566
566
0
CT
0.2
0.0
0.0
0.0
45.8
0.0
0.0
0.0
5.81
0.00
0.00
0.00
0
0
0
0
DE
0.2
0.2
0.2
0.0
5.4
5.4
5.4
0.0
4.56
4.56
4.56
0.00
285
285
285
0
FL
51.2
0.0
0.0
0.0
175.8
0.0
0.0
0.0
861.87
0.00
0.00
0.00
792
0
0
0
GA
4.2
4.2
4.2
0.0
72.0
72.0
72.0
0.0
80.64
80.64
80.64
0.00
2,580
2,580
2,580
0
IA
1.0
1.0
0.0
0.0
41.4
41.4
0.0
0.0
6.69
6.69
0.00
0.00
3,305
3,305
0
0
ID
0.6
0.6
0.6
0.6
10.6
10.6
10.6
10.6
0.92
0.92
0.92
0.92
140
140
140
140
IL
5.0
0.0
0.0
0.0
208.8
0.0
0.0
0.0
32.56
0.00
0.00
0.00
11,905
0
0
0
IN
1.8
0.0
0.0
0.0
100.8
0.0
0.0
0.0
39.31
0.00
0.00
0.00
58,514
0
0
0
KS
4.4
4.4
0.0
0.0
381.2
381.2
0.0
0.0
17.40
17.40
0.00
0.00
78,904
78,904
0
0
KY
1.8
1.8
1.8
1.8
146.2
146.2
146.2
146.2
39.49
39.49
39.49
39.49
77,074
77,074
77,074
77,074
LA
12.0
12.0
0.0
0.0
316.8
316.8
0.0
0.0
172.78
172.78
0.00
0.00
3,789
3,789
0
0
MA
1.2
0.0
0.0
0.0
41.8
0.0
0.0
0.0
31.68
0.00
0.00
0.00
7
0
0
0
MD
1.0
0.0
0.0
0.0
39.2
0.0
0.0
0.0
5.17
0.00
0.00
0.00
2,432
0
0
0
ME
1.0
0.0
0.0
0.0
82.4
0.0
0.0
0.0
38.43
0.00
0.00
0.00
0
0
0
0
Ml
32.6
0.0
0.0
0.0
223.2
0.0
0.0
0.0
1.92
0.00
0.00
0.00
144
0
0
0
MN
28.4
0.0
0.0
0.0
242.2
0.0
0.0
0.0
221.62
0.00
0.00
0.00
1,112
0
0
0
MO
4.2
4.2
4.2
0.0
264.8
264.8
264.8
0.0
11.73
11.73
11.73
0.00
10,578
10,578
10,578
0
MS
8.6
8.6
8.6
8.6
117.4
117.4
117.4
117.4
125.56
125.56
125.56
125.56
4,485
4,485
4,485
4,485
MT
0.2
0.2
0.2
0.0
21.6
21.6
21.6
0.0
23.72
23.72
23.72
0.00
1,004
1,004
1,004
0
NC
3.4
3.4
0.0
0.0
78.4
78.4
0.0
0.0
25.72
25.72
0.00
0.00
677
677
0
0
ND
1.2
1.2
1.2
0.0
178.0
178.0
178.0
0.0
98.05
98.05
98.05
0.00
13,004
13,004
13,004
0
NE
0.2
0.2
0.0
0.0
34.8
34.8
0.0
0.0
9.27
9.27
0.00
0.00
1,680
1,680
0
0
NH
0.2
0.0
0.0
0.0
34.4
0.0
0.0
0.0
1.87
0.00
0.00
0.00
0
0
0
0
NJ
0.2
0.0
0.0
0.0
0.2
0.0
0.0
0.0
0.83
0.00
0.00
0.00
0
0
0
0
NM
1.8
1.8
1.8
0.0
156.8
156.8
156.8
0.0
6.98
6.98
6.98
0.00
5
5
5
0
NV
0.4
0.4
0.0
0.0
37.8
37.8
0.0
0.0
2.29
2.29
0.00
0.00
924
924
0
0
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 262
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Appendix E Sensitivity Analyses
Table E-47: Average annual reductions in CWA section 404 permit and mitigation requirements based on the sensitivity analysis
methodology, by state
State
Annual average reduction in permits with proposed rule1
Average annual mitigation reduction with proposed rule2
Individual Permits
General Permits
Acres
Linear feet
Sc. 03
Sc. I4
Sc. 25
Sc. 36
Sc. 03
Sc. I4
Sc. 25
Sc. 36
Sc. 03
Sc. I4
Sc. 25
Sc. 36
Sc. 03
Sc. I4
Sc. 25
Sc. 36
NY
4.8
0.0
0.0
0.0
186.6
0.0
0.0
0.0
18.83
0.00
0.00
0.00
1,294
0
0
0
OH
15.0
0.0
0.0
0.0
291.2
0.0
0.0
0.0
36.80
0.00
0.00
0.00
23,263
0
0
0
OK
0.4
0.4
0.4
0.0
53.4
53.4
53.4
0.0
0.82
0.82
0.82
0.00
3,728
3,728
3,728
0
OR
4.8
0.0
0.0
0.0
37.2
0.0
0.0
0.0
31.38
0.00
0.00
0.00
524
0
0
0
PA
2.6
0.0
0.0
0.0
780.6
0.0
0.0
0.0
32.21
0.00
0.00
0.00
4,546
0
0
0
Rl
0.2
0.0
0.0
0.0
12.4
0.0
0.0
0.0
0.53
0.00
0.00
0.00
0
0
0
0
sc
1.4
1.4
1.4
0.0
23.8
23.8
23.8
0.0
29.84
29.84
29.84
0.00
0
0
0
0
SD
1.8
1.8
1.8
1.8
52.0
52.0
52.0
52.0
60.80
60.80
60.80
60.80
2,124
2,124
2,124
2,124
TN
0.6
0.0
0.0
0.0
29.2
0.0
0.0
0.0
3.79
0.00
0.00
0.00
5,452
0
0
0
TX
8.6
8.6
8.6
0.0
1,077.8
1,077.8
1,077.8
0.0
312.45
312.45
312.45
0.00
89,682
89,682
89,682
0
UT
1.0
1.0
1.0
0.0
74.6
74.6
74.6
0.0
4.17
4.17
4.17
0.00
2,609
2,609
2,609
0
VA
3.8
0.0
0.0
0.0
58.0
0.0
0.0
0.0
22.74
0.00
0.00
0.00
5,148
0
0
0
VT
0.0
0.0
0.0
0.0
17.8
0.0
0.0
0.0
1.07
0.00
0.00
0.00
43
0
0
0
WA
4.2
0.0
0.0
0.0
56.8
0.0
0.0
0.0
26.39
0.00
0.00
0.00
2,378
0
0
0
Wl
12.0
12.0
0.0
0.0
247.4
247.4
0.0
0.0
48.13
48.13
0.00
0.00
1,000
1,000
0
0
WV
0.4
0.4
0.0
0.0
442.6
442.6
0.0
0.0
7.01
7.01
0.00
0.00
8,092
8,092
0
0
WY
0.0
0.0
0.0
0.0
23.8
23.8
23.8
0.0
35.97
35.97
35.97
0.00
278
278
278
0
Total
250.0
82.2
48.4
17.8
8,376.2
4,634.8
3,054.4
566.8
2,735.70
1,267.35
978.06
241.70
600,813
372,632
274,261
85,857
1 Annual average permit reductions based on permits issued in years 2011-2015 that only affect RPWWN-type wetlands, other non-abutting wetlands, or ephemeral streams.
2 Annual average mitigation reduction based on permits issued in years 2011-2015 with mitigation requirements on waterways determined to be RPWWN-type wetlands, other non-
abutting wetlands, or ephemeral streams. Excludes permits issued for mitigation or restoration activities because the main purpose of these activities is to restore or enhance
ecosystem services provided by water resources as opposed to dredge and fill activities that lead to permanent or temporary losses of ecosystem services.
3 Includes all states except Hawaii and Alaska. Alaska is excluded from the sensitivity analysis methodology because the GIS layers used in the NHD-NWI adjacency analysis are only
available for the conterminous United States.
4 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Iowa, Idaho, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, North Carolina, North Dakota,
Nebraska, New Mexico, Nevada, Oklahoma, South Carolina, South Dakota, Texas, Utah, Wisconsin, West Virginia, and Wyoming
5 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Idaho, Kentucky, Missouri, Mississippi, Montana, North Dakota, New Mexico, Oklahoma, South Carolina,
South Dakota, Texas, Utah, and Wyoming
6 Includes Arizona, Idaho, Kentucky, Mississippi, and South Dakota
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 263
-------
Appendix E Sensitivity Analyses
Table E-48: Average annual reduction in CWA section 404 permit application costs based on the sensitivity analysis methodology,
by state (Millions 2017$)
State
Scenario 01,2
Scenario l1,3
Scenario 21,4
Scenario 31,5
Individual
General
Total
Individual
General
Total
Individual
General
Total
Individual
General
Total
AL
$0.06
$0.20
$0.26
$0.06
$0.20
$0.26
$0.06
$0.20
$0.26
$0.00
$0.00
$0.00
AR
$0.04
$1.45
$1.49
$0.04
$1.45
$1.49
$0.04
$1.45
$1.49
$0.00
$0.00
$0.00
AZ
$0.07
$1.06
$1.13
$0.07
$1.06
$1.13
$0.07
$1.06
$1.13
$0.07
$1.06
$1.13
CA
$0.13
$4.74
$4.87
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
CO
$0.01
$0.71
$0.71
$0.01
$0.71
$0.71
$0.01
$0.71
$0.71
$0.00
$0.00
$0.00
CT
$0.00
$0.20
$0.20
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
DE
$0.00
$0.02
$0.03
$0.00
$0.02
$0.03
$0.00
$0.02
$0.03
$0.00
$0.00
$0.00
FL
$0.75
$0.77
$1.53
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
GA
$0.06
$0.32
$0.38
$0.06
$0.32
$0.38
$0.06
$0.32
$0.38
$0.00
$0.00
$0.00
IA
$0.01
$0.18
$0.20
$0.01
$0.18
$0.20
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
ID
$0.01
$0.05
$0.06
$0.01
$0.05
$0.06
$0.01
$0.05
$0.06
$0.01
$0.05
$0.06
IL
$0.07
$0.92
$0.99
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
IN
$0.03
$0.44
$0.47
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
KS
$0.06
$1.68
$1.74
$0.06
$1.68
$1.74
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
KY
$0.03
$0.64
$0.67
$0.03
$0.64
$0.67
$0.03
$0.64
$0.67
$0.03
$0.64
$0.67
LA
$0.18
$1.39
$1.57
$0.18
$1.39
$1.57
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
MA
$0.02
$0.18
$0.20
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
MD
$0.01
$0.17
$0.19
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
ME
$0.01
$0.36
$0.38
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Ml
$0.48
$0.98
$1.46
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
MN
$0.42
$1.07
$1.48
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
MO
$0.06
$1.17
$1.23
$0.06
$1.17
$1.23
$0.06
$1.17
$1.23
$0.00
$0.00
$0.00
MS
$0.13
$0.52
$0.64
$0.13
$0.52
$0.64
$0.13
$0.52
$0.64
$0.13
$0.52
$0.64
MT
$0.00
$0.10
$0.10
$0.00
$0.10
$0.10
$0.00
$0.10
$0.10
$0.00
$0.00
$0.00
NC
$0.05
$0.34
$0.39
$0.05
$0.34
$0.39
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
ND
$0.02
$0.78
$0.80
$0.02
$0.78
$0.80
$0.02
$0.78
$0.80
$0.00
$0.00
$0.00
NE
$0.00
$0.15
$0.16
$0.00
$0.15
$0.16
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
NH
$0.00
$0.15
$0.15
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
NJ
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
NM
$0.03
$0.69
$0.72
$0.03
$0.69
$0.72
$0.03
$0.69
$0.72
$0.00
$0.00
$0.00
NV
$0.01
$0.17
$0.17
$0.01
$0.17
$0.17
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
NY
$0.07
$0.82
$0.89
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 264
-------
Appendix E Sensitivity Analyses
Table E-48: Average annual reduction in CWA section 404 permit application costs based on the sensitivity analysis methodology,
Scenario 01,2
Scenario l1,3
Scenario 21,4
Scenario 31,5
Mate
Individual
General
Total
Individual
General
Total
Individual
General
Total
Individual
General
Total
OH
$0.22
$1.28
$1.50
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
OK
$0.01
$0.23
$0.24
$0.01
$0.23
$0.24
$0.01
$0.23
$0.24
$0.00
$0.00
$0.00
OR
$0.07
$0.16
$0.23
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
PA
$0.04
$3.43
$3.47
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Rl
$0.00
$0.05
$0.06
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
sc
$0.02
$0.10
$0.13
$0.02
$0.10
$0.13
$0.02
$0.10
$0.13
$0.00
$0.00
$0.00
SD
$0.03
$0.23
$0.26
$0.03
$0.23
$0.26
$0.03
$0.23
$0.26
$0.03
$0.23
$0.26
TN
$0.01
$0.13
$0.14
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
TX
$0.13
$4.74
$4.87
$0.13
$4.74
$4.87
$0.13
$4.74
$4.87
$0.00
$0.00
$0.00
UT
$0.01
$0.33
$0.34
$0.01
$0.33
$0.34
$0.01
$0.33
$0.34
$0.00
$0.00
$0.00
VA
$0.06
$0.26
$0.31
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
VT
$0.00
$0.08
$0.08
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
WA
$0.06
$0.25
$0.31
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Wl
$0.18
$1.09
$1.26
$0.18
$1.09
$1.26
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
WV
$0.01
$1.95
$1.95
$0.01
$1.95
$1.95
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
WY
$0.00
$0.10
$0.10
$0.00
$0.10
$0.10
$0.00
$0.10
$0.10
$0.00
$0.00
$0.00
Total
$3.68
$36.86
$40.53
$1.21
$20.39
$21.60
$0.71
$13.44
$14.15
$0.26
$2.49
$2.76
1 For each state, permit cost savings are calculated by multiplying the number of individual and general permit reductions (see Table E-48) by the unit costs from the
Corps NWP analysis ($14,700 per individual permit; $4,400 per general permit).
2 Includes all states except Hawaii.
3 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Iowa, Idaho, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, North Carolina,
North Dakota, Nebraska, New Mexico, Nevada, Oklahoma, South Carolina, South Dakota, Texas, Utah, Wisconsin, West Virginia, and Wyoming
4 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Idaho, Kentucky, Missouri, Mississippi, Montana, North Dakota, New Mexico, Oklahoma,
South Carolina, South Dakota, Texas, Utah, and Wyoming
5 Includes Arizona, Idaho, Kentucky, Mississippi, and South Dakota
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised
265
-------
Appendix E Sensitivity Analyses
Table E-49: Average annual reduction in 404 mitigation requirement costs based on the sensitivity analysis methodology, by state
Cost per acre
Cost per LF
Scenario 01,2
Scenario l1,3
Scenario 21,4
Scenario 31,5
State
(2017$)
(2017$)
(Millions 2017$)
(Millions 2017$)
(Millions 2017$)
(Millions 2017$)
Low
High
Low
High
Low
High
Low
High
Low
High
Low
High
AL
$54,000
$105,400
$266
$675
$26.40
$62.77
$26.40
$62.77
$26.40
$62.77
$0.00
$0.00
AR
$30,040
$54,396
$242
$540
$7.39
$15.82
$7.39
$15.82
$7.39
$15.82
$0.00
$0.00
AZ
$54,000
$84,000
$294
$675
$2.11
$3.94
$2.11
$3.94
$2.11
$3.94
$2.11
$3.94
CA
$210,000
$384,250
$294
$675
$65.66
$142.88
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
CO
$51,850
$72,490
$90
$360
$0.31
$0.64
$0.31
$0.64
$0.31
$0.64
$0.00
$0.00
CT
$329,166
$470,629
$294
$675
$2.87
$4.10
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
DE
$34,000
$250,000
$375
$700
$0.39
$2.01
$0.39
$2.01
$0.39
$2.01
$0.00
$0.00
FL
$54,000
$105,400
$294
$675
$70.16
$137.06
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
GA
$172,000
$272,000
$878
$975
$24.20
$36.67
$24.20
$36.67
$24.20
$36.67
$0.00
$0.00
IA
$36,774
$80,711
$90
$383
$0.82
$2.71
$0.82
$2.71
$0.00
$0.00
$0.00
$0.00
ID
$42,250
$81,085
$294
$675
$0.12
$0.25
$0.12
$0.25
$0.12
$0.25
$0.12
$0.25
IL
$64,454
$105,356
$228
$599
$7.22
$15.84
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
IN
$50,000
$71,000
$294
$636
$28.75
$60.01
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
KS
$54,000
$105,400
$90
$360
$12.06
$45.36
$12.06
$45.36
$0.00
$0.00
$0.00
$0.00
KY
$110,016
$165,024
$300
$755
$41.20
$97.06
$41.20
$97.06
$41.20
$97.06
$41.20
$97.06
LA
$10,000
$60,000
$294
$675
$4.26
$19.39
$4.26
$19.39
$0.00
$0.00
$0.00
$0.00
MA
$596,041
$621,330
$100
$200
$28.32
$29.53
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
MD
$62,667
$226,667
$552
$763
$2.50
$4.54
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
ME
$250,906
$374,616
$0
$0
$14.46
$21.60
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Ml
$52,767
$130,800
$230
$993
$0.20
$0.59
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
MN
$9,294
$76,443
$294
$675
$3.58
$26.54
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
MO
$27,000
$81,000
$90
$405
$1.90
$7.85
$1.90
$7.85
$1.90
$7.85
$0.00
$0.00
MS
$26,000
$32,500
$266
$675
$6.69
$10.66
$6.69
$10.66
$6.69
$10.66
$6.69
$10.66
MT
$30,000
$37,000
$294
$675
$1.51
$2.33
$1.51
$2.33
$1.51
$2.33
$0.00
$0.00
NC
$26,445
$71,273
$297
$391
$1.32
$3.15
$1.32
$3.15
$0.00
$0.00
$0.00
$0.00
ND
$40,000
$60,000
$294
$675
$11.62
$21.99
$11.62
$21.99
$11.62
$21.99
$0.00
$0.00
NE
$54,000
$105,400
$90
$360
$0.98
$2.37
$0.98
$2.37
$0.00
$0.00
$0.00
$0.00
NH
$156,283
$220,358
$245
$735
$0.44
$0.62
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
NJ
$38,000
$300,000
$294
$675
$0.05
$0.37
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
NM
$51,850
$72,490
$294
$675
$0.55
$0.76
$0.55
$0.76
$0.55
$0.76
$0.00
$0.00
NV
$106,167
$197,806
$294
$675
$0.77
$1.62
$0.77
$1.62
$0.00
$0.00
$0.00
$0.00
NY
$72,000
$91,580
$310
$420
$2.64
$3.40
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 266
-------
Appendix E Sensitivity Analyses
Table E-49: Average annual reduction in 404 mitigation requirement costs based on the sensitivity analysis methodology, by state
Cost per acre
Cost per LF
Scenario 01,2
Scenario l1,3
Scenario 21,4
Scenario 31,5
State
(2017$)
(2017$)
(Millions 2017$)
(Millions 2017$)
(Millions 2017$)
(Millions 2017$)
Low
High
Low
High
Low
High
Low
High
Low
High
Low
High
OH
$37,500
$216,000
$165
$1,350
$7.83
$59.03
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
OK
$49,700
$60,979
$235
$555
$1.38
$3.18
$1.38
$3.18
$1.38
$3.18
$0.00
$0.00
OR
$54,500
$125,170
$42,339
$81,599
$35.84
$70.03
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
PA
$66,750
$196,895
$401
$865
$5.96
$15.41
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Rl
$462,604
$545,980
$294
$675
$0.37
$0.43
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
sc
$99,223
$171,637
$588
$683
$4.44
$7.68
$4.44
$7.68
$4.44
$7.68
$0.00
$0.00
SD
$40,000
$60,000
$294
$675
$4.58
$7.62
$4.58
$7.62
$4.58
$7.62
$4.58
$7.62
TN
$37,500
$37,500
$240
$362
$2.18
$3.17
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
TX
$54,000
$105,400
$525
$900
$95.93
$170.47
$95.93
$170.47
$95.93
$170.47
$0.00
$0.00
UT
$54,000
$105,400
$294
$675
$1.49
$3.30
$1.49
$3.30
$1.49
$3.30
$0.00
$0.00
VA
$30,000
$200,000
$375
$700
$3.92
$12.23
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
VT
$110,000
$131,549
$294
$675
$0.19
$0.25
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
WA
$69,324
$1,114,494
$294
$675
$3.79
$46.52
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Wl
$70,800
$105,400
$294
$675
$5.55
$8.62
$5.55
$8.62
$0.00
$0.00
$0.00
$0.00
WV
$120,000
$180,000
$728
$826
$10.10
$11.92
$10.10
$11.92
$0.00
$0.00
$0.00
$0.00
WY
$41,667
$50,667
$294
$675
$2.37
$3.02
$2.37
$3.02
$2.37
$3.02
$0.00
$0.00
Total
$557.37
$1,207.33
$270.44
$553.17
$234.58
$458.04
$54.70
$119.54
1 For each state, cost savings are calculated by multiplying the cost of each mitigation acre or linear foot (low and high estimates) by the expected reduction in annual
mitigation requirements (see Table E-48) and summing the acreage and linear feet values for each scenario.
2 Includes all states except Hawaii and Alaska. Alaska is excluded from the sensitivity analysis methodology because the GIS layers used in the NHD-NWI adjacency analysis
are only available for the conterminous United States.
3 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Iowa, Idaho, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, North Carolina, North
Dakota, Nebraska, New Mexico, Nevada, Oklahoma, South Carolina, South Dakota, Texas, Utah, Wisconsin, West Virginia, and Wyoming
4 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Idaho, Kentucky, Missouri, Mississippi, Montana, North Dakota, New Mexico, Oklahoma, South
Carolina, South Dakota, Texas, Utah, and Wyoming
5 Includes Arizona, Idaho, Kentucky, Mississippi, and South Dakota
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 267
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Appendix E Sensitivity Analyses
Table E-50: Total national estimated CWA section 404 program related annual cost
savings based on the sensitivity analysis methodology, by state (Millions 2017$)
State
Scenario 01
Scenario l2
Scenario 23
Scenario 34
Low
High
Low
High
Low
High
Low
High
AL
$26.66
$63.04
$26.66
$63.04
$26.66
$63.04
$0.00
$0.00
AR
$8.88
$17.31
$8.88
$17.31
$8.88
$17.31
$0.00
$0.00
AZ
$3.24
$5.07
$3.24
$5.07
$3.24
$5.07
$3.24
$5.07
CA
$70.53
$147.76
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
CO
$1.03
$1.35
$1.03
$1.35
$1.03
$1.35
$0.00
$0.00
CT
$3.07
$4.30
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
DE
$0.42
$2.04
$0.42
$2.04
$0.42
$2.04
$0.00
$0.00
FL
$71.69
$138.59
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
GA
$24.58
$37.05
$24.58
$37.05
$24.58
$37.05
$0.00
$0.00
IA
$1.01
$2.91
$1.01
$2.91
$0.00
$0.00
$0.00
$0.00
ID
$0.18
$0.31
$0.18
$0.31
$0.18
$0.31
$0.18
$0.31
IL
$8.21
$16.83
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
IN
$29.22
$60.48
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
KS
$13.80
$47.10
$13.80
$47.10
$0.00
$0.00
$0.00
$0.00
KY
$41.87
$97.73
$41.87
$97.73
$41.87
$97.73
$41.87
$97.73
LA
$5.83
$20.96
$5.83
$20.96
$0.00
$0.00
$0.00
$0.00
MA
$28.52
$29.73
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
MD
$2.69
$4.73
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
ME
$14.84
$21.97
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Ml
$1.66
$2.05
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
MN
$5.06
$28.02
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
MO
$3.13
$9.08
$3.13
$9.08
$3.13
$9.08
$0.00
$0.00
MS
$7.33
$11.31
$7.33
$11.31
$7.33
$11.31
$7.33
$11.31
MT
$1.61
$2.43
$1.61
$2.43
$1.61
$2.43
$0.00
$0.00
NC
$1.72
$3.54
$1.72
$3.54
$0.00
$0.00
$0.00
$0.00
ND
$12.42
$22.79
$12.42
$22.79
$12.42
$22.79
$0.00
$0.00
NE
$1.13
$2.53
$1.13
$2.53
$0.00
$0.00
$0.00
$0.00
NH
$0.59
$0.77
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
NJ
$0.05
$0.38
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
NM
$1.26
$1.48
$1.26
$1.48
$1.26
$1.48
$0.00
$0.00
NV
$0.94
$1.79
$0.94
$1.79
$0.00
$0.00
$0.00
$0.00
NY
$3.53
$4.29
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 268
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Appendix E Sensitivity Analyses
Table E-50: Total national estimated CWA section 404 program related annual cost
savings based on the sensitivity analysis methodology, by state (Millions 2017$)
State
Scenario 01
Scenario l2
Scenario 23
Scenario 34
Low
High
Low
High
Low
High
Low
High
OH
$9.33
$60.53
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
OK
$1.62
$3.42
$1.62
$3.42
$1.62
$3.42
$0.00
$0.00
OR
$36.08
$70.26
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
PA
$9.43
$18.88
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Rl
$0.42
$0.49
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
sc
$4.57
$7.81
$4.57
$7.81
$4.57
$7.81
$0.00
$0.00
SD
$4.84
$7.88
$4.84
$7.88
$4.84
$7.88
$4.84
$7.88
TN
$2.31
$3.31
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
TX
$100.80
$175.34
$100.80
$175.34
$100.80
$175.34
$0.00
$0.00
UT
$1.83
$3.64
$1.83
$3.64
$1.83
$3.64
$0.00
$0.00
VA
$4.23
$12.54
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
VT
$0.27
$0.33
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
WA
$4.10
$46.83
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Wl
$6.82
$9.89
$6.82
$9.89
$0.00
$0.00
$0.00
$0.00
WV
$12.05
$13.87
$12.05
$13.87
$0.00
$0.00
$0.00
$0.00
WY
$2.48
$3.12
$2.48
$3.12
$2.48
$3.12
$0.00
$0.00
Total
$597.90
$1,247.86
$292.04
$574.77
$248.73
$472.19
$57.45
$122.30
1 Includes all states except Hawaii and Alaska. Alaska is excluded from the sensitivity analysis methodology because
the GIS layers used in the NHD-NWI adjacency analysis are only available for the conterminous United States.
2 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Iowa, Idaho, Kansas, Kentucky,
Louisiana, Missouri, Mississippi, Montana, North Carolina, North Dakota, Nebraska, New Mexico, Nevada,
Oklahoma, South Carolina, South Dakota, Texas, Utah, Wisconsin, West Virginia, and Wyoming
3 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Idaho, Kentucky, Missouri, Mississippi,
Montana, North Dakota, New Mexico, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming
4 Includes Arizona, Idaho, Kentucky, Mississippi, and South Dakota
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 269
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Appendix E Sensitivity Analyses
Table E-51: Total national forgone benefit estimate of reduced CWA section 404 related mitigation requirements based on the
sensitivity analysis methodology, Scenario 0
Households
(HH)
Annual forgone
Mean WTP
Mean estimate
Lower 5th
Lower 5th estimate
Upper 95th WTP
Upper 95th
State
mitigation
acres1
/HH/acre
(2017$)
of forgone
benefits (2017$)
WTP/HH/acre
(2017$)
of forgone benefits
(2017$)
WTP/HH/acre
(2017$)
estimate of forgone
benefits (2017$)
AK
258,058
NA
NA
NA
NA
NA
NA
NA
AL
1,883,791
199.22
$0.0311
$11,653,593
$0.0001
$47,301
$0.0626
$23,495,366
AR
1,147,084
72.28
$0.0315
$2,614,757
$0.0001
$10,333
$0.0631
$5,234,413
AZ
2,380,990
19.60
$0.0363
$1,694,037
$0.0002
$7,072
$0.0793
$3,701,928
CA
12,577,498
307.53
$0.0175
$67,852,677
$0.0001
$351,833
$0.0433
$167,428,542
CO
1,972,868
4.34
$0.0154
$132,149
$0.0001
$686
$0.0383
$327,893
CT
1,371,087
5.81
$0.0487
$387,394
$0.0001
$446
$0.0759
$604,091
DE
342,297
5.22
$0.0275
$49,144
$0.0001
$243
$0.0584
$104,326
FL
7,420,802
863.68
$0.0196
$125,326,995
$0.0001
$661,004
$0.0431
$275,939,755
GA
3,585,584
86.56
$0.0289
$8,977,948
$0.0001
$41,108
$0.0602
$18,681,814
IA
1,221,576
14.28
$0.0071
$123,619
$0.0001
$881
$0.0170
$295,773
ID
579,408
1.24
$0.0169
$12,127
$0.0001
$58
$0.0408
$29,252
IL
4,836,972
59.89
$0.0109
$3,144,739
$0.0001
$19,539
$0.0243
$7,031,505
IN
2,502,154
173.64
$0.0107
$4,647,911
$0.0001
$27,386
$0.0237
$10,288,191
KS
1,112,096
198.54
$0.0058
$1,284,814
$0.0000
$9,275
$0.0142
$3,125,419
KY
1,719,965
216.43
$0.0290
$10,789,433
$0.0001
$44,170
$0.0590
$21,946,025
LA
1,728,360
181.48
$0.0208
$6,529,783
$0.0001
$29,407
$0.0442
$13,870,628
MA
2,547,075
31.69
$0.0492
$3,972,418
$0.0001
$4,373
$0.0757
$6,113,539
MD
2,156,411
10.76
$0.0907
$2,102,864
$0.0005
$12,589
$0.2014
$4,671,661
ME
557,219
38.43
$0.0155
$332,305
$0.0000
$270
$0.0217
$464,747
Ml
3,872,508
2.25
$0.0132
$114,510
$0.0001
$617
$0.0281
$244,281
MN
2,087,227
224.18
$0.0090
$4,221,742
$0.0001
$31,031
$0.0212
$9,914,479
MO
2,375,611
36.01
$0.0113
$963,075
$0.0001
$5,469
$0.0246
$2,105,202
MS
1,115,768
135.86
$0.0322
$4,875,602
$0.0001
$17,692
$0.0632
$9,578,581
MT
409,607
26.03
$0.0155
$164,930
$0.0001
$774
$0.0373
$397,923
NC
3,745,155
27.27
$0.0301
$3,078,189
$0.0001
$13,838
$0.0622
$6,356,526
ND
281,192
127.91
$0.0039
$138,749
$0.0000
$1,038
$0.0098
$350,943
NE
721,130
13.13
$0.0046
$43,411
$0.0000
$330
$0.0115
$108,713
NH
518,973
1.87
$0.0464
$45,160
$0.0001
$49
$0.0723
$70,322
NJ
3,214,360
0.83
$0.0500
$133,320
$0.0001
$140
$0.0758
$202,203
NM
791,395
6.99
$0.0216
$119,572
$0.0001
$535
$0.0504
$279,011
NV
1,006,250
4.41
$0.0171
$76,175
$0.0001
$362
$0.0412
$183,113
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 270
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Appendix E Sensitivity Analyses
Table E-51: Total national forgone benefit estimate of reduced CWA section 404 related mitigation requirements based on the
Households
(HH)
Annual forgone
Mean WTP
Mean estimate
Lower 5th
Lower 5th estimate
Upper 95th WTP
Upper 95th
State
mitigation
acres1
/HH/acre
(2017$)
of forgone
benefits (2017$)
WTP/HH/acre
(2017$)
of forgone benefits
(2017$)
WTP/HH/acre
(2017$)
estimate of forgone
benefits (2017$)
NY
7,317,755
21.80
$0.0497
$7,935,737
$0.0000
$7,233
$0.0733
$11,686,174
OH
4,603,435
90.20
$0.0112
$4,640,886
$0.0001
$26,117
$0.0244
$10,136,912
OK
1,460,450
9.38
$0.0236
$323,171
$0.0001
$1,581
$0.0505
$691,771
OR
1,518,938
32.58
$0.0163
$807,845
$0.0001
$3,921
$0.0396
$1,960,545
PA
5,018,904
42.64
$0.0497
$10,643,350
$0.0000
$9,602
$0.0731
$15,644,600
Rl
413,600
0.53
$0.0536
$11,705
$0.0001
$12
$0.0790
$17,247
sc
1,801,181
29.84
$0.0284
$1,528,072
$0.0001
$7,131
$0.0594
$3,194,982
SD
322,282
65.68
$0.0039
$83,486
$0.0000
$605
$0.0099
$209,710
TN
2,493,552
16.30
$0.0288
$1,172,058
$0.0001
$5,231
$0.0597
$2,425,124
TX
8,922,933
518.33
$0.0137
$63,570,443
$0.0001
$406,658
$0.0320
$147,775,138
UT
877,692
10.16
$0.0148
$131,579
$0.0001
$659
$0.0363
$323,957
VA
3,056,058
34.56
$0.0249
$2,633,725
$0.0001
$14,919
$0.0549
$5,794,192
VT
256,442
1.17
$0.0484
$14,477
$0.0000
$13
$0.0710
$21,205
WA
2,620,076
31.85
$0.0217
$1,811,468
$0.0001
$9,639
$0.0534
$4,452,614
Wl
2,279,768
50.43
$0.0107
$1,234,438
$0.0001
$7,580
$0.0240
$2,755,008
WV
763,831
25.59
$0.0189
$368,546
$0.0001
$1,785
$0.0409
$800,166
WY
226,879
36.61
$0.0165
$137,212
$0.0001
$660
$0.0400
$331,881
Total
115,994,247
$362,651,339
$1,843,196
$801,367,396
1 Annual average forgone mitigation acres (see Table E-48) based on permits issued in years 2011-2015 with mitigation requirements on waterways determined to be RPWWN-
type wetlands, other non-abutting wetlands, or ephemeral streams. Excludes permits issued for mitigation or restoration activities because the main purpose of these
activities is to restore or enhance ecosystem services as opposed to dredge and fill activities that lead to permanent or temporary losses of ecosystem services. Linear feet are
converted to acres by multiplying total linear feet by an average total buffer width of 50 feet (25 feet on each side of the stream) and converting square feet to acres.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised
271
-------
Appendix E Sensitivity Analyses
Table E-52: Total national forgone benefit estimate of reduced mitigation requirements based on the sensitivity analysis methodology,
Scenario 1
Households
(HH)
Annual forgone
Mean WTP
Mean estimate
Lower 5th
Lower 5th estimate
Upper 95th WTP
Upper 95th
State
mitigation
acres1
/HH/acre
(2017$)
of forgone
benefits (2017$)
WTP/HH/acre
(2017$)
of forgone benefits
(2017$)
WTP/HH/acre
(2017$)
estimate of forgone
benefits (2017$)
AK
258,058
NA
NA
NA
NA
NA
NA
NA
AL
1,883,791
199.22
$0.0311
$11,653,593
$0.0001
$47,301
$0.0626
$23,495,366
AR
1,147,084
72.28
$0.0315
$2,614,757
$0.0001
$10,333
$0.0631
$5,234,413
AZ
2,380,990
19.60
$0.0363
$1,694,037
$0.0002
$7,072
$0.0793
$3,701,928
CO
1,972,868
4.34
$0.0154
$132,149
$0.0001
$686
$0.0383
$327,893
DE
342,297
5.22
$0.0275
$49,144
$0.0001
$243
$0.0584
$104,326
GA
3,585,584
86.56
$0.0289
$8,977,948
$0.0001
$41,108
$0.0602
$18,681,814
IA
1,221,576
14.28
$0.0071
$123,619
$0.0001
$881
$0.0170
$295,773
ID
579,408
1.24
$0.0169
$12,127
$0.0001
$58
$0.0408
$29,252
KS
1,112,096
198.54
$0.0058
$1,284,814
$0.0000
$9,275
$0.0142
$3,125,419
KY
1,719,965
216.43
$0.0290
$10,789,433
$0.0001
$44,170
$0.0590
$21,946,025
LA
1,728,360
181.48
$0.0208
$6,529,783
$0.0001
$29,407
$0.0442
$13,870,628
MO
2,375,611
36.01
$0.0113
$963,075
$0.0001
$5,469
$0.0246
$2,105,202
MS
1,115,768
135.86
$0.0322
$4,875,602
$0.0001
$17,692
$0.0632
$9,578,581
MT
409,607
26.03
$0.0155
$164,930
$0.0001
$774
$0.0373
$397,923
NC
3,745,155
27.27
$0.0301
$3,078,189
$0.0001
$13,838
$0.0622
$6,356,526
ND
281,192
127.91
$0.0039
$138,749
$0.0000
$1,038
$0.0098
$350,943
NE
721,130
13.13
$0.0046
$43,411
$0.0000
$330
$0.0115
$108,713
NM
791,395
6.99
$0.0216
$119,572
$0.0001
$535
$0.0504
$279,011
NV
1,006,250
4.41
$0.0171
$76,175
$0.0001
$362
$0.0412
$183,113
OK
1,460,450
9.38
$0.0236
$323,171
$0.0001
$1,581
$0.0505
$691,771
SC
1,801,181
29.84
$0.0284
$1,528,072
$0.0001
$7,131
$0.0594
$3,194,982
SD
322,282
65.68
$0.0039
$83,486
$0.0000
$605
$0.0099
$209,710
TX
8,922,933
518.33
$0.0137
$63,570,443
$0.0001
$406,658
$0.0320
$147,775,138
UT
877,692
10.16
$0.0148
$131,579
$0.0001
$659
$0.0363
$323,957
Wl
2,279,768
50.43
$0.0107
$1,234,438
$0.0001
$7,580
$0.0240
$2,755,008
WV
763,831
25.59
$0.0189
$368,546
$0.0001
$1,785
$0.0409
$800,166
WY
226,879
36.61
$0.0165
$137,212
$0.0001
$660
$0.0400
$331,881
Total
45,033,201
$120,698,053
$657,233
$266,255,464
1 Annual average forgone mitigation acres (see Table E-48) based on permits issued in years 2011-2015 with mitigation requirements on waterways determined to be RPWWN-
type wetlands, other non-abutting wetlands, or ephemeral streams. Excludes permits issued for mitigation or restoration activities because the main purpose of these
activities is to restore or enhance ecosystem services provided by water resources as opposed to dredge and fill activities that lead to permanent or temporary losses of
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 272
-------
Appendix E Sensitivity Analyses
Table E-52: Total national forgone benefit estimate of reduced mitigation requirements based on the sensitivity analysis methodology,
Scenario 1
Households
(HH)
Annual forgone
Mean WTP
Mean estimate
Lower 5th
Lower 5th estimate
Upper 95th WTP
Upper 95th
State
mitigation
/HH/acre
of forgone
WTP/HH/acre
of forgone benefits
WTP/HH/acre
estimate of forgone
acres1
(2017$)
benefits (2017$)
(2017$)
(2017$)
(2017$)
benefits (2017$)
ecosystem services. Linear feet are converted to acres by multiplying total linear feet by an average total buffer width of 50 feet (25 feet on each side of the stream) and
converting square feet to acres.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 273
-------
Appendix E Sensitivity Analyses
Table E-53: Total national forgone benefit estimate of reduced CWA section 404 related mitigation requirements based on the
Households
(HH)
Annual forgone
Mean WTP
Mean estimate
Lower 5th
Lower 5th estimate
Upper 95th WTP
Upper 95th
State
mitigation
acres1
/HH/acre
(2017$)
of forgone
benefits (2017$)
WTP/HH/acre
(2017$)
of forgone benefits
(2017$)
WTP/HH/acre
(2017$)
estimate of forgone
benefits (2017$)
AK
258,058
NA
NA
NA
NA
NA
NA
NA
AL
1,883,791
199.22
$0.0311
$11,653,593
$0.0001
$47,301
$0.0626
$23,495,366
AR
1,147,084
72.28
$0.0315
$2,614,757
$0.0001
$10,333
$0.0631
$5,234,413
AZ
2,380,990
19.60
$0.0363
$1,694,037
$0.0002
$7,072
$0.0793
$3,701,928
CO
1,972,868
4.34
$0.0154
$132,149
$0.0001
$686
$0.0383
$327,893
DE
342,297
5.22
$0.0275
$49,144
$0.0001
$243
$0.0584
$104,326
GA
3,585,584
86.56
$0.0289
$8,977,948
$0.0001
$41,108
$0.0602
$18,681,814
ID
579,408
1.24
$0.0169
$12,127
$0.0001
$58
$0.0408
$29,252
KY
1,719,965
216.43
$0.0290
$10,789,433
$0.0001
$44,170
$0.0590
$21,946,025
MO
2,375,611
36.01
$0.0113
$963,075
$0.0001
$5,469
$0.0246
$2,105,202
MS
1,115,768
135.86
$0.0322
$4,875,602
$0.0001
$17,692
$0.0632
$9,578,581
MT
409,607
26.03
$0.0155
$164,930
$0.0001
$774
$0.0373
$397,923
ND
281,192
127.91
$0.0039
$138,749
$0.0000
$1,038
$0.0098
$350,943
NM
791,395
6.99
$0.0216
$119,572
$0.0001
$535
$0.0504
$279,011
OK
1,460,450
9.38
$0.0236
$323,171
$0.0001
$1,581
$0.0505
$691,771
SC
1,801,181
29.84
$0.0284
$1,528,072
$0.0001
$7,131
$0.0594
$3,194,982
SD
322,282
65.68
$0.0039
$83,486
$0.0000
$605
$0.0099
$209,710
TX
8,922,933
518.33
$0.0137
$63,570,443
$0.0001
$406,658
$0.0320
$147,775,138
UT
877,692
10.16
$0.0148
$131,579
$0.0001
$659
$0.0363
$323,957
WY
226,879
36.61
$0.0165
$137,212
$0.0001
$660
$0.0400
$331,881
Total
32,455,035
$107,959,080
$593,775
$238,760,117
1 Annual average forgone mitigation acres (see Table E-48) based on permits issued in years 2011-2015 with mitigation requirements on waterways determined to be RPWWN-
type wetlands, other non-abutting wetlands, or ephemeral streams. Excludes permits issued for mitigation or restoration activities because the main purpose of these
activities is to restore or enhance ecosystem services provided by water resources as opposed to dredge and fill activities that lead to permanent or temporary losses of
ecosystem services. Linear feet are converted to acres by multiplying total linear feet by an average total buffer width of 50 feet (25 feet on each side of the stream) and
converting square feet to acres.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised
274
-------
Appendix E Sensitivity Analyses
Table E-54: Total national forgone benefit estimate of reduced CWA section 404 related mitigation requirements based on the
Households
(HH)
Annual forgone
Mean WTP
Mean estimate
Lower 5th
Lower 5th estimate
Upper 95th WTP
Upper 95th
State
mitigation
/HH/acre
of forgone
WTP/HH/acre
of forgone benefits
WTP/HH/acre
estimate of forgone
acres1
(2017$)
benefits (2017$)
(2017$)
(2017$)
(2017$)
benefits (2017$)
AZ
2,380,990
19.60
$0.0363
$1,694,037
$0.0002
$7,072
$0.0793
$3,701,928
ID
579,408
1.24
$0.0169
$12,127
$0.0001
$58
$0.0408
$29,252
KY
1,719,965
216.43
$0.0290
$10,789,433
$0.0001
$44,170
$0.0590
$21,946,025
MS
1,115,768
135.86
$0.0322
$4,875,602
$0.0001
$17,692
$0.0632
$9,578,581
SD
322,282
65.68
$0.0039
$83,486
$0.0000
$605
$0.0099
$209,710
Total
6,118,413
$17,454,685
$69,597
$35,465,497
1 Annual average forgone mitigation acres (see Table E-48) based on permits issued in years 2011-2015 with mitigation requirements on waterways determined to be RPWWN-
type wetlands, other non-abutting wetlands, or ephemeral streams. Excludes permits issued for mitigation or restoration activities because the main purpose of these
activities is to restore or enhance ecosystem services provided by water resources as opposed to dredge and fill activities that lead to permanent or temporary losses of
ecosystem services. Linear feet are converted to acres by multiplying total linear feet by an average total buffer width of 50 feet (25 feet on each side of the stream) and
converting square feet to acres.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised
275
-------
Appendix F Stage 2 Analysis State-level Results
Appendix F: Stage 2 Analysis State-level Results
This appendix provides state-level results of the agencies' Stage 2 quantitative assessment, summarized in
Section IV.C. Table F-l presents average annual reductions in CWA section 404 program related permit
and mitigation requirements under the proposed rule, by policy scenario and state. Table F-2, Table F-3,
and Table F-4 present permit cost savings, mitigation cost savings, and total cost savings (sum of permit
cost savings and mitigation cost savings), respectively, by policy scenario and state.
Table F-5, Table F-6, Table F-7, and Table F-8 present forgone benefits from reduced section 404 related
mitigation requirements by policy scenario and state for Scenarios 0, 1, 2, and 3, respectively.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised | 276
-------
Appendix F Stage 2 Analysis State-level Results
Table F-1: Average annual reductions in CWA section 404 related permit and mitigation requirements under the proposed rule, by
policy scenario and state
State
Annual average reduction in permits with proposed rule1
Average annual mitigation reduction with proposed rule2
Individual Permits
General Permits
Acres
Linear Feet
Sc. 03
Sc. I4
Sc. 25
Sc. 36
Sc. 03
Sc. I4
Sc. 25
Sc. 36
Sc. 03
Sc. I4
Sc. 25
Sc. 36
Sc. 03
Sc. I4
Sc. 2s
Sc. 36
AK
1.6
1.6
1.6
0.0
20.2
20.2
20.2
0.0
13.54
13.54
13.54
0.00
0
0
0
0
AL
1.0
1.0
1.0
0.0
28.8
28.8
28.8
0.0
15.25
15.25
15.25
0.00
29,318
29,318
29,318
0
AR
2.0
2.0
2.0
0.0
310.6
310.6
310.6
0.0
18.96
18.96
18.96
0.00
15,261
15,261
15,261
0
AZ
5.0
5.0
5.0
5.0
240.0
240.0
240.0
240.0
14.45
14.45
14.45
14.45
2,033
2,033
2,033
2,033
CA
5.2
0.0
0.0
0.0
1,041.2
0.0
0.0
0.0
18.32
0.00
0.00
0.00
36,866
0
0
0
CO
0.2
0.2
0.2
0.0
108.2
108.2
108.2
0.0
1.27
1.27
1.27
0.00
472
472
472
0
CT
0.0
0.0
0.0
0.0
38.6
0.0
0.0
0.0
0.58
0.00
0.00
0.00
0
0
0
0
DE
0.0
0.0
0.0
0.0
2.2
2.2
2.2
0.0
2.33
2.33
2.33
0.00
0
0
0
0
FL
19.8
0.0
0.0
0.0
55.2
0.0
0.0
0.0
438.85
0.00
0.00
0.00
591
0
0
0
GA
2.2
2.2
2.2
0.0
48.8
48.8
48.8
0.0
35.50
35.50
35.50
0.00
1,886
1,886
1,886
0
IA
0.2
0.2
0.0
0.0
26.4
26.4
0.0
0.0
0.94
0.94
0.00
0.00
2,920
2,920
0
0
ID
0.4
0.4
0.4
0.4
5.6
5.6
5.6
5.6
0.60
0.60
0.60
0.60
140
140
140
140
IL
0.2
0.0
0.0
0.0
123.2
0.0
0.0
0.0
4.72
0.00
0.00
0.00
10,843
0
0
0
IN
0.8
0.0
0.0
0.0
83.6
0.0
0.0
0.0
16.11
0.00
0.00
0.00
51,439
0
0
0
KS
2.8
2.8
0.0
0.0
349.0
349.0
0.0
0.0
8.23
8.23
0.00
0.00
72,741
72,741
0
0
KY
1.8
1.8
1.8
1.8
141.2
141.2
141.2
141.2
13.38
13.38
13.38
13.38
67,596
67,596
67,596
67,596
LA
3.4
3.4
0.0
0.0
262.2
262.2
0.0
0.0
84.95
84.95
0.00
0.00
1,223
1,223
0
0
MA
0.2
0.0
0.0
0.0
12.0
0.0
0.0
0.0
0.56
0.00
0.00
0.00
0
0
0
0
MD
0.0
0.0
0.0
0.0
10.2
0.0
0.0
0.0
0.81
0.00
0.00
0.00
997
0
0
0
ME
0.2
0.0
0.0
0.0
32.0
0.0
0.0
0.0
2.43
0.00
0.00
0.00
0
0
0
0
Ml
0.0
0.0
0.0
0.0
0.6
0.0
0.0
0.0
0.00
0.00
0.00
0.00
0
0
0
0
MN
10.4
0.0
0.0
0.0
101.8
0.0
0.0
0.0
32.80
0.00
0.00
0.00
55
0
0
0
MO
2.6
2.6
2.6
0.0
245.8
245.8
245.8
0.0
6.66
6.66
6.66
0.00
10,155
10,155
10,155
0
MS
2.8
2.8
2.8
2.8
73.8
73.8
73.8
73.8
20.80
20.80
20.80
20.80
3,329
3,329
3,329
3,329
MT
0.0
0.0
0.0
0.0
8.0
8.0
8.0
0.0
2.11
2.11
2.11
0.00
694
694
694
0
NC
0.2
0.2
0.0
0.0
14.6
14.6
0.0
0.0
4.79
4.79
0.00
0.00
0
0
0
0
ND
0.2
0.2
0.2
0.0
15.0
15.0
15.0
0.0
4.77
4.77
4.77
0.00
625
625
625
0
NE
0.2
0.2
0.0
0.0
30.8
30.8
0.0
0.0
2.27
2.27
0.00
0.00
1,186
1,186
0
0
NH
0.0
0.0
0.0
0.0
3.2
0.0
0.0
0.0
0.09
0.00
0.00
0.00
0
0
0
0
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 277
-------
Appendix F Stage 2 Analysis State-level Results
Table F-1: Average annual reductions in CWA section 404 related permit and mitigation requirements under the proposed rule, by
policy scenario and state
State
Annual average reduction in permits with proposed rule1
Average annual mitigation reduction with proposed rule2
Individual Permits
General Permits
Acres
Linear Feet
Sc. 03
Sc. I4
Sc. 25
Sc. 36
Sc. 03
Sc. I4
Sc. 25
Sc. 36
Sc. 03
Sc. I4
Sc. 25
Sc. 36
Sc. 03
Sc. I4
Sc. 2s
Sc. 36
NJ
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.00
0.00
0.00
0.00
0
0
0
0
NM
1.0
1.0
1.0
0.0
152.0
152.0
152.0
0.0
1.36
1.36
1.36
0.00
0
0
0
0
NV
0.4
0.4
0.0
0.0
37.6
37.6
0.0
0.0
2.29
2.29
0.00
0.00
924
924
0
0
NY
0.6
0.0
0.0
0.0
18.8
0.0
0.0
0.0
2.33
0.00
0.00
0.00
953
0
0
0
OH
1.2
0.0
0.0
0.0
187.0
0.0
0.0
0.0
13.91
0.00
0.00
0.00
20,967
0
0
0
OK
0.2
0.2
0.2
0.0
49.6
49.6
49.6
0.0
0.55
0.55
0.55
0.00
3,212
3,212
3,212
0
OR
3.6
0.0
0.0
0.0
19.8
0.0
0.0
0.0
9.95
0.00
0.00
0.00
504
0
0
0
PA
0.2
0.0
0.0
0.0
440.0
0.0
0.0
0.0
6.89
0.00
0.00
0.00
3,179
0
0
0
Rl
0.2
0.0
0.0
0.0
9.6
0.0
0.0
0.0
0.53
0.00
0.00
0.00
0
0
0
0
SC
0.4
0.4
0.4
0.0
5.6
5.6
5.6
0.0
2.71
2.71
2.71
0.00
0
0
0
0
SD
0.4
0.4
0.4
0.4
38.2
38.2
38.2
38.2
4.60
4.60
4.60
4.60
1,563
1,563
1,563
1,563
TN
0.6
0.0
0.0
0.0
25.0
0.0
0.0
0.0
2.49
0.00
0.00
0.00
4,999
0
0
0
TX
6.0
6.0
6.0
0.0
736.6
736.6
736.6
0.0
110.82
110.82
110.82
0.00
86,422
86,422
86,422
0
UT
0.6
0.6
0.6
0.0
71.8
71.8
71.8
0.0
2.08
2.08
2.08
0.00
2,193
2,193
2,193
0
VA
1.6
0.0
0.0
0.0
17.4
0.0
0.0
0.0
5.82
0.00
0.00
0.00
3,539
0
0
0
VT
0.0
0.0
0.0
0.0
1.6
0.0
0.0
0.0
0.50
0.00
0.00
0.00
43
0
0
0
WA
1.6
0.0
0.0
0.0
28.4
0.0
0.0
0.0
10.15
0.00
0.00
0.00
281
0
0
0
Wl
5.4
5.4
0.0
0.0
85.2
85.2
0.0
0.0
27.07
27.07
0.00
0.00
0
0
0
0
WV
0.2
0.2
0.0
0.0
380.4
380.4
0.0
0.0
3.03
3.03
0.00
0.00
6,919
6,919
0
0
WY
0.0
0.0
0.0
0.0
20.6
20.6
20.6
0.0
0.78
0.78
0.78
0.00
213
213
213
0
Total
87.6
41.2
28.4
10.4
5,758.0
3,508.8
2,322.6
498.8
973.94
406.11
272.53
53.84
446,282
311,025
225,112
74,661
1 Annual average permit reductions based on permits issued in years 2011-2015 estimated to only affect RPWWN-type wetlands or ephemeral streams.
2 Annual average mitigation reduction based on permits issued in years 2011-2015 with mitigation requirements on waterways determined to be RPWWN-type wetlands or
ephemeral streams. Excludes permits issued for mitigation or restoration activities because the main purpose of these activities is to restore or enhance ecosystem services
provided by water resources as opposed to dredge and fill activities that lead to permanent or temporary losses of ecosystem services.
3 Includes all states except Hawaii.
4 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Iowa, Idaho, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, North Carolina, North
Dakota, Nebraska, New Mexico, Nevada, Oklahoma, South Carolina, South Dakota, Texas, Utah, Wisconsin, West Virginia, and Wyoming
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 278
-------
Appendix F Stage 2 Analysis State-level Results
Table F-1: Average annual reductions in CWA section 404 related permit and mitigation requirements under the proposed rule, by
policy scenario and state
State
Annual average reduction in permits with proposed rule1
Average annual mitigation reduction with proposed rule2
Individual Permits
General Permits
Acres
Linear Feet
Sc. 03
Sc. I4
Sc. 25
Sc. 36
Sc. 03
Sc. I4
Sc. 25
Sc. 36
Sc. 03
Sc. I4
Sc. 25
Sc. 36
Sc. 03
Sc. I4
Sc. 2s
Sc. 36
5 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Idaho, Kentucky, Missouri, Mississippi, Montana, North Dakota, New Mexico, Oklahoma, South
Carolina, South Dakota, Texas, Utah, and Wyoming
6 Includes Arizona, Idaho, Kentucky, Mississippi, and South Dakota
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 279
-------
Appendix F Stage 2 Analysis State-level Results
Table F-2: Average annual reduction in CWA section 404 permit application costs under the proposed rule, by policy scenario and
state (Millions 2017$)
State
Scenario 01,2
Scenario l1,3
Scenario 21,4
Scenario 31,5
Individual
General
Total
Individual
General
Total
Individual
General
Total
Individual
General
Total
AK
$0.02
$0.09
$0.11
$0.02
$0.09
$0.11
$0.02
$0.09
$0.11
$0.00
$0.00
$0.00
AL
$0.01
$0.13
$0.14
$0.01
$0.13
$0.14
$0.01
$0.13
$0.14
$0.00
$0.00
$0.00
AR
$0.03
$1.37
$1.40
$0.03
$1.37
$1.40
$0.03
$1.37
$1.40
$0.00
$0.00
$0.00
AZ
$0.07
$1.06
$1.13
$0.07
$1.06
$1.13
$0.07
$1.06
$1.13
$0.07
$1.06
$1.13
CA
$0.08
$4.58
$4.66
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
CO
$0.00
$0.48
$0.48
$0.00
$0.48
$0.48
$0.00
$0.48
$0.48
$0.00
$0.00
$0.00
CT
$0.00
$0.17
$0.17
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
DE
$0.00
$0.01
$0.01
$0.00
$0.01
$0.01
$0.00
$0.01
$0.01
$0.00
$0.00
$0.00
FL
$0.29
$0.24
$0.53
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
GA
$0.03
$0.21
$0.25
$0.03
$0.21
$0.25
$0.03
$0.21
$0.25
$0.00
$0.00
$0.00
IA
$0.00
$0.12
$0.12
$0.00
$0.12
$0.12
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
ID
$0.01
$0.02
$0.03
$0.01
$0.02
$0.03
$0.01
$0.02
$0.03
$0.01
$0.02
$0.03
IL
$0.00
$0.54
$0.55
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
IN
$0.01
$0.37
$0.38
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
KS
$0.04
$1.54
$1.58
$0.04
$1.54
$1.58
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
KY
$0.03
$0.62
$0.65
$0.03
$0.62
$0.65
$0.03
$0.62
$0.65
$0.03
$0.62
$0.65
LA
$0.05
$1.15
$1.20
$0.05
$1.15
$1.20
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
MA
$0.00
$0.05
$0.06
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
MD
$0.00
$0.04
$0.04
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
ME
$0.00
$0.14
$0.14
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Ml
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
MN
$0.15
$0.45
$0.60
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
MO
$0.04
$1.08
$1.12
$0.04
$1.08
$1.12
$0.04
$1.08
$1.12
$0.00
$0.00
$0.00
MS
$0.04
$0.32
$0.37
$0.04
$0.32
$0.37
$0.04
$0.32
$0.37
$0.04
$0.32
$0.37
MT
$0.00
$0.04
$0.04
$0.00
$0.04
$0.04
$0.00
$0.04
$0.04
$0.00
$0.00
$0.00
NC
$0.00
$0.06
$0.07
$0.00
$0.06
$0.07
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
ND
$0.00
$0.07
$0.07
$0.00
$0.07
$0.07
$0.00
$0.07
$0.07
$0.00
$0.00
$0.00
NE
$0.00
$0.14
$0.14
$0.00
$0.14
$0.14
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
NH
$0.00
$0.01
$0.01
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
NJ
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 280
-------
Appendix F Stage 2 Analysis State-level Results
Table F-2: Average annual reduction in CWA section 404 permit application costs under the proposed rule, by policy scenario and
state (Millions 2017$)
State
Scenario 01,2
Scenario l1,3
Scenario 21,4
Scenario 31,5
Individual
General
Total
Individual
General
Total
Individual
General
Total
Individual
General
Total
NM
$0.01
$0.67
$0.68
$0.01
$0.67
$0.68
$0.01
$0.67
$0.68
$0.00
$0.00
$0.00
NV
$0.01
$0.17
$0.17
$0.01
$0.17
$0.17
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
NY
$0.01
$0.08
$0.09
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
OH
$0.02
$0.82
$0.84
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
OK
$0.00
$0.22
$0.22
$0.00
$0.22
$0.22
$0.00
$0.22
$0.22
$0.00
$0.00
$0.00
OR
$0.05
$0.09
$0.14
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
PA
$0.00
$1.94
$1.94
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Rl
$0.00
$0.04
$0.05
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
SC
$0.01
$0.02
$0.03
$0.01
$0.02
$0.03
$0.01
$0.02
$0.03
$0.00
$0.00
$0.00
SD
$0.01
$0.17
$0.17
$0.01
$0.17
$0.17
$0.01
$0.17
$0.17
$0.01
$0.17
$0.17
TN
$0.01
$0.11
$0.12
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
TX
$0.09
$3.24
$3.33
$0.09
$3.24
$3.33
$0.09
$3.24
$3.33
$0.00
$0.00
$0.00
UT
$0.01
$0.32
$0.32
$0.01
$0.32
$0.32
$0.01
$0.32
$0.32
$0.00
$0.00
$0.00
VA
$0.02
$0.08
$0.10
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
VT
$0.00
$0.01
$0.01
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
WA
$0.02
$0.12
$0.15
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Wl
$0.08
$0.37
$0.45
$0.08
$0.37
$0.45
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
WV
$0.00
$1.67
$1.68
$0.00
$1.67
$1.68
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
WY
$0.00
$0.09
$0.09
$0.00
$0.09
$0.09
$0.00
$0.09
$0.09
$0.00
$0.00
$0.00
Total
$1.29
$25.34
$26.62
$0.61
$15.44
$16.04
$0.42
$10.22
$10.64
$0.15
$2.19
$2.35
1 For each state, permit cost savings are calculated by multiplying the number of individual and general permit reductions (see Table F-l) by the unit costs from the Corps
NWP analysis ($14,700 per individual permit; $4,400 per general permit).
2 Includes all states except Hawaii.
3 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Iowa, Idaho, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, North Carolina,
North Dakota, Nebraska, New Mexico, Nevada, Oklahoma, South Carolina, South Dakota, Texas, Utah, Wisconsin, West Virginia, and Wyoming
4 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Idaho, Kentucky, Missouri, Mississippi, Montana, North Dakota, New Mexico, Oklahoma,South
Carolina, South Dakota, Texas, Utah, and Wyoming
5 Includes Arizona, Idaho, Kentucky, Mississippi, and South Dakota
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 281
-------
Appendix F Stage 2 Analysis State-level Results
Table F-3: Average annual reduction in CWA section 404 related mitigation requirement costs under the proposed rule, by policy
scenario and state
State
Cost per acre
(2017$)
Cost per LF
(2017$)
Scenario 01,2
(Millions 2017$)
Scenario l1,3
(Millions 2017$)
Scenario 21,4
(Millions 2017$)
Scenario 31,5
(Millions 2017$)
Low
High
Low
High
Low
High
Low
High
Low
High
Low
High
AK
$54,000
$105,400
$294
$675
$0.73
$1.43
$0.73
$1.43
$0.73
$1.43
$0.00
$0.00
AL
$54,000
$105,400
$266
$675
$8.62
$21.40
$8.62
$21.40
$8.62
$21.40
$0.00
$0.00
AR
$30,040
$54,396
$242
$540
$4.26
$9.27
$4.26
$9.27
$4.26
$9.27
$0.00
$0.00
AZ
$54,000
$84,000
$294
$675
$1.38
$2.59
$1.38
$2.59
$1.38
$2.59
$1.38
$2.59
CA
$210,000
$384,250
$294
$675
$14.69
$31.92
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
CO
$51,850
$72,490
$90
$360
$0.11
$0.26
$0.11
$0.26
$0.11
$0.26
$0.00
$0.00
CT
$329,166
$470,629
$294
$675
$0.19
$0.27
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
DE
$34,000
$250,000
$375
$700
$0.08
$0.58
$0.08
$0.58
$0.08
$0.58
$0.00
$0.00
FL
$54,000
$105,400
$294
$675
$23.87
$46.65
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
GA
$172,000
$272,000
$878
$975
$7.76
$11.49
$7.76
$11.49
$7.76
$11.49
$0.00
$0.00
IA
$36,774
$80,711
$90
$383
$0.30
$1.19
$0.30
$1.19
$0.00
$0.00
$0.00
$0.00
ID
$42,250
$81,085
$294
$675
$0.07
$0.14
$0.07
$0.14
$0.07
$0.14
$0.07
$0.14
IL
$64,454
$105,356
$228
$599
$2.78
$6.99
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
IN
$50,000
$71,000
$294
$636
$15.93
$33.86
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
KS
$54,000
$105,400
$90
$360
$6.99
$27.05
$6.99
$27.05
$0.00
$0.00
$0.00
$0.00
KY
$110,016
$165,024
$300
$755
$21.75
$53.24
$21.75
$53.24
$21.75
$53.24
$21.75
$53.24
LA
$10,000
$60,000
$294
$675
$1.21
$5.92
$1.21
$5.92
$0.00
$0.00
$0.00
$0.00
MA
$596,041
$621,330
$100
$200
$0.33
$0.35
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
MD
$62,667
$226,667
$552
$763
$0.60
$0.94
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
ME
$250,906
$374,616
$0
$0
$0.61
$0.91
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Ml
$52,767
$130,800
$230
$993
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
MN
$9,294
$76,443
$294
$675
$0.32
$2.54
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
MO
$27,000
$81,000
$90
$405
$1.09
$4.65
$1.09
$4.65
$1.09
$4.65
$0.00
$0.00
MS
$26,000
$32,500
$266
$675
$1.43
$2.92
$1.43
$2.92
$1.43
$2.92
$1.43
$2.92
MT
$30,000
$37,000
$294
$675
$0.27
$0.55
$0.27
$0.55
$0.27
$0.55
$0.00
$0.00
NC
$26,445
$71,273
$297
$391
$0.13
$0.34
$0.13
$0.34
$0.00
$0.00
$0.00
$0.00
ND
$40,000
$60,000
$294
$675
$0.37
$0.71
$0.37
$0.71
$0.37
$0.71
$0.00
$0.00
NE
$54,000
$105,400
$90
$360
$0.23
$0.67
$0.23
$0.67
$0.00
$0.00
$0.00
$0.00
NH
$156,283
$220,358
$245
$735
$0.01
$0.02
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
NJ
$38,000
$300,000
$294
$675
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 282
-------
Appendix F Stage 2 Analysis State-level Results
Table F-3: Average annual reduction in CWA section 404 related mitigation requirement costs under the proposed rule, by policy
scenario and state
State
Cost per acre
(2017$)
Cost per LF
(2017$)
Scenario 01,2
(Millions 2017$)
Scenario l1,3
(Millions 2017$)
Scenario 21,4
(Millions 2017$)
Scenario 31,5
(Millions 2017$)
Low
High
Low
High
Low
High
Low
High
Low
High
Low
High
NM
$51,850
$72,490
$294
$675
$0.07
$0.10
$0.07
$0.10
$0.07
$0.10
$0.00
$0.00
NV
$106,167
$197,806
$294
$675
$0.52
$1.08
$0.52
$1.08
$0.00
$0.00
$0.00
$0.00
NY
$72,000
$91,580
$310
$420
$0.46
$0.61
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
OH
$37,500
$216,000
$165
$1,350
$3.98
$31.31
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
OK
$49,700
$60,979
$235
$555
$0.78
$1.82
$0.78
$1.82
$0.78
$1.82
$0.00
$0.00
OR
$54,500
$125,170
$42,339
$81,599
$21.88
$42.37
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
PA
$66,750
$196,895
$401
$865
$1.73
$4.11
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Rl
$462,604
$545,980
$294
$675
$0.24
$0.29
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
SC
$99,223
$171,637
$588
$683
$0.27
$0.47
$0.27
$0.47
$0.27
$0.47
$0.00
$0.00
SD
$40,000
$60,000
$294
$675
$0.64
$1.33
$0.64
$1.33
$0.64
$1.33
$0.64
$1.33
TN
$37,500
$37,500
$240
$362
$1.29
$1.90
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
TX
$54,000
$105,400
$525
$900
$51.36
$89.46
$51.36
$89.46
$51.36
$89.46
$0.00
$0.00
UT
$54,000
$105,400
$294
$675
$0.76
$1.70
$0.76
$1.70
$0.76
$1.70
$0.00
$0.00
VA
$30,000
$200,000
$375
$700
$1.50
$3.64
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
VT
$110,000
$131,549
$294
$675
$0.07
$0.10
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
WA
$69,324
$1,114,494
$294
$675
$0.79
$11.50
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Wl
$70,800
$105,400
$294
$675
$1.92
$2.85
$1.92
$2.85
$0.00
$0.00
$0.00
$0.00
WV
$120,000
$180,000
$728
$826
$5.40
$6.26
$5.40
$6.26
$0.00
$0.00
$0.00
$0.00
WY
$41,667
$50,667
$294
$675
$0.10
$0.18
$0.10
$0.18
$0.10
$0.18
$0.00
$0.00
Total
$209.87
$469.96
$118.58
$249.66
$101.90
$204.29
$25.27
$60.23
1 For each state, cost savings are calculated by multiplying the cost of each mitigation acre or linear foot (low and high estimates) by the expected reduction in annual
mitigation requirements (see Table F-l), and summing the acreage and linear feet values for each scenario.
2 Includes all states except Hawaii.
3 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Iowa, Idaho, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, North Carolina, North
Dakota, Nebraska, New Mexico, Nevada, Oklahoma, South Carolina, South Dakota, Texas, Utah, Wisconsin, West Virginia, and Wyoming
4 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Idaho, Kentucky, Missouri, Mississippi, Montana, North Dakota, New Mexico, Oklahoma, South
Carolina, South Dakota, Texas, Utah, and Wyoming
5 Includes Arizona, Idaho, Kentucky, Mississippi, and South Dakota
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 283
-------
Appendix F Stage 2 Analysis State-level Results
Table F-4: Total national estimated CWA section 404 related annual cost savings, by
policy scenario and state (Millions 2017$)
State
Scenario 01
Scenario l2
Scenario 23
Scenario 34
Low
High
Low
High
Low
High
Low
High
AK
$0.84
$1.54
$0.84
$1.54
$0.84
$1.54
$0.00
$0.00
AL
$8.76
$21.54
$8.76
$21.54
$8.76
$21.54
$0.00
$0.00
AR
$5.66
$10.67
$5.66
$10.67
$5.66
$10.67
$0.00
$0.00
AZ
$2.51
$3.72
$2.51
$3.72
$2.51
$3.72
$2.51
$3.72
CA
$19.34
$36.58
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
CO
$0.59
$0.74
$0.59
$0.74
$0.59
$0.74
$0.00
$0.00
CT
$0.36
$0.44
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
DE
$0.09
$0.59
$0.09
$0.59
$0.09
$0.59
$0.00
$0.00
FL
$24.41
$47.19
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
GA
$8.01
$11.74
$8.01
$11.74
$8.01
$11.74
$0.00
$0.00
IA
$0.42
$1.31
$0.42
$1.31
$0.00
$0.00
$0.00
$0.00
ID
$0.10
$0.17
$0.10
$0.17
$0.10
$0.17
$0.10
$0.17
IL
$3.32
$7.54
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
IN
$16.31
$34.24
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
KS
$8.57
$28.63
$8.57
$28.63
$0.00
$0.00
$0.00
$0.00
KY
$22.40
$53.89
$22.40
$53.89
$22.40
$53.89
$22.40
$53.89
LA
$2.41
$7.13
$2.41
$7.13
$0.00
$0.00
$0.00
$0.00
MA
$0.39
$0.40
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
MD
$0.65
$0.99
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
ME
$0.75
$1.06
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Ml
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
MN
$0.92
$3.15
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
MO
$2.21
$5.77
$2.21
$5.77
$2.21
$5.77
$0.00
$0.00
MS
$1.79
$3.29
$1.79
$3.29
$1.79
$3.29
$1.79
$3.29
MT
$0.30
$0.58
$0.30
$0.58
$0.30
$0.58
$0.00
$0.00
NC
$0.19
$0.41
$0.19
$0.41
$0.00
$0.00
$0.00
$0.00
ND
$0.44
$0.78
$0.44
$0.78
$0.44
$0.78
$0.00
$0.00
NE
$0.37
$0.80
$0.37
$0.80
$0.00
$0.00
$0.00
$0.00
NH
$0.03
$0.03
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
NJ
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 284
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Appendix F Stage 2 Analysis State-level Results
Table F-4: Total national estimated CWA section 404 related annual cost savings, by
policy scenario and state (Millions 2017$)
State
Scenario 01
Scenario l2
Scenario 23
Scenario 34
Low
High
Low
High
Low
High
Low
High
NM
$0.75
$0.78
$0.75
$0.78
$0.75
$0.78
$0.00
$0.00
NV
$0.69
$1.25
$0.69
$1.25
$0.00
$0.00
$0.00
$0.00
NY
$0.55
$0.71
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
OH
$4.82
$32.15
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
OK
$1.00
$2.04
$1.00
$2.04
$1.00
$2.04
$0.00
$0.00
OR
$22.02
$42.51
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
PA
$3.67
$6.04
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Rl
$0.29
$0.33
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
SC
$0.30
$0.50
$0.30
$0.50
$0.30
$0.50
$0.00
$0.00
SD
$0.82
$1.51
$0.82
$1.51
$0.82
$1.51
$0.82
$1.51
TN
$1.41
$2.02
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
TX
$54.68
$92.79
$54.68
$92.79
$54.68
$92.79
$0.00
$0.00
UT
$1.08
$2.02
$1.08
$2.02
$1.08
$2.02
$0.00
$0.00
VA
$1.60
$3.74
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
VT
$0.08
$0.10
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
WA
$0.93
$11.65
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Wl
$2.37
$3.31
$2.37
$3.31
$0.00
$0.00
$0.00
$0.00
WV
$7.08
$7.94
$7.08
$7.94
$0.00
$0.00
$0.00
$0.00
WY
$0.19
$0.27
$0.19
$0.27
$0.19
$0.27
$0.00
$0.00
Total
$236.49
$496.58
$134.63
$265.71
$112.53
$214.93
$27.61
$62.57
1 Includes all states except Hawaii.
2 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Iowa, Idaho, Kansas, Kentucky,
Louisiana, Missouri, Mississippi, Montana, North Carolina, North Dakota, Nebraska, New Mexico, Nevada,
Oklahoma, South Carolina, South Dakota, Texas, Utah, Wisconsin, West Virginia, and Wyoming
3 Includes Alaska, Alabama, Arkansas, Arizona, Colorado, Delaware, Georgia, Idaho, Kentucky, Missouri, Mississippi,
Montana, North Dakota, New Mexico, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming
4 Includes Arizona, Idaho, Kentucky, Mississippi, and South Dakota
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 285
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Appendix F Stage 2 Analysis State-level Results
Table F-5: Total national forgone benefit estimate of reduced CWA section 404 related mitigation requirements, Scenario 0
State
Households
(HH)
Annual forgone
mitigation
acres1
Mean WTP
/HH/acre
(2017$)
Mean estimate
of forgone
benefits (2017$)
Lower 5th
WTP/HH/acre
(2017$)
Lower 5th estimate
of forgone benefits
(2017$)
Upper 95th WTP
WTP/HH/acre
(2017$)
Upper 95th
estimate of forgone
benefits (2017$)
AK
258,058
13.54
$0.0203
$70,881
$0.0001
$391
$0.0506
$176,916
AL
1,883,791
48.90
$0.0310
$2,856,426
$0.0001
$11,611
$0.0625
$5,761,209
AR
1,147,084
36.47
$0.0315
$1,319,006
$0.0001
$5,214
$0.0631
$2,640,627
AZ
2,380,990
16.79
$0.0363
$1,450,884
$0.0002
$6,057
$0.0793
$3,170,558
CA
12,577,498
60.64
$0.0175
$13,349,609
$0.0001
$69,350
$0.0432
$32,957,756
CO
1,972,868
1.81
$0.0154
$55,198
$0.0001
$287
$0.0383
$136,961
CT
1,371,087
0.58
$0.0487
$38,370
$0.0001
$44
$0.0759
$59,835
DE
342,297
2.33
$0.0275
$21,994
$0.0001
$109
$0.0584
$46,691
FL
7,420,802
439.53
$0.0195
$63,514,306
$0.0001
$336,260
$0.0429
$139,955,173
GA
3,585,584
37.66
$0.0289
$3,904,705
$0.0001
$17,886
$0.0602
$8,125,765
IA
1,221,576
4.29
$0.0071
$37,118
$0.0001
$265
$0.0170
$88,811
ID
579,408
0.76
$0.0169
$7,429
$0.0001
$36
$0.0408
$17,920
IL
4,836,972
17.17
$0.0109
$901,027
$0.0001
$5,601
$0.0243
$2,014,758
IN
2,502,154
75.15
$0.0107
$2,009,643
$0.0001
$11,852
$0.0237
$4,449,370
KS
1,112,096
91.73
$0.0058
$592,948
$0.0000
$4,285
$0.0141
$1,442,577
KY
1,719,965
90.97
$0.0289
$4,529,584
$0.0001
$18,561
$0.0589
$9,215,883
LA
1,728,360
86.35
$0.0208
$3,104,002
$0.0001
$13,991
$0.0442
$6,595,682
MA
2,547,075
0.56
$0.0492
$70,161
$0.0001
$77
$0.0758
$107,995
MD
2,156,411
1.95
$0.0316
$133,136
$0.0002
$797
$0.0703
$295,811
ME
557,219
2.43
$0.0444
$60,263
$0.0000
$49
$0.0621
$84,285
Ml
3,872,508
0.00
$0.0000
$0
$0.0000
$0
$0.0000
$0
MN
2,087,227
32.86
$0.0090
$617,612
$0.0001
$4,547
$0.0212
$1,450,853
MO
2,375,611
18.32
$0.0113
$489,844
$0.0001
$2,782
$0.0246
$1,070,800
MS
1,115,768
24.62
$0.0321
$882,527
$0.0001
$3,206
$0.0631
$1,734,165
MT
409,607
2.91
$0.0155
$18,442
$0.0001
$87
$0.0373
$44,499
NC
3,745,155
4.79
$0.0301
$540,326
$0.0001
$2,429
$0.0622
$1,115,824
ND
281,192
5.48
$0.0039
$5,942
$0.0000
$45
$0.0097
$15,035
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 286
-------
Appendix F Stage 2 Analysis State-level Results
Table F-5: Total national forgone benefit estimate of reduced CWA section 404 related mitigation requirements, Scenario 0
State
Households
(HH)
Annual forgone
mitigation
acres1
Mean WTP
/HH/acre
(2017$)
Mean estimate
of forgone
benefits (2017$)
Lower 5th
WTP/HH/acre
(2017$)
Lower 5th estimate
of forgone benefits
(2017$)
Upper 95th WTP
WTP/HH/acre
(2017$)
Upper 95th
estimate of forgone
benefits (2017$)
NE
721,130
3.63
$0.0046
$12,012
$0.0000
$91
$0.0115
$30,082
NH
518,973
0.09
$0.0466
$2,097
$0.0001
$2
$0.0726
$3,265
NJ
3,214,360
0.00
$0.0000
$0
$0.0000
$0
$0.0000
$0
NM
791,395
1.36
$0.0216
$23,236
$0.0001
$104
$0.0504
$54,221
NV
1,006,250
3.35
$0.0171
$57,864
$0.0001
$275
$0.0412
$139,097
NY
7,317,755
3.43
$0.0497
$1,246,601
$0.0000
$1,136
$0.0732
$1,835,837
OH
4,603,435
37.98
$0.0112
$1,952,871
$0.0001
$10,996
$0.0244
$4,266,102
OK
1,460,450
4.23
$0.0236
$145,818
$0.0001
$713
$0.0505
$312,141
OR
1,518,938
10.53
$0.0163
$261,072
$0.0001
$1,267
$0.0396
$633,619
PA
5,018,904
10.53
$0.0496
$2,623,909
$0.0000
$2,368
$0.0730
$3,857,389
Rl
413,600
0.53
$0.0536
$11,705
$0.0001
$12
$0.0790
$17,247
SC
1,801,181
2.71
$0.0284
$138,978
$0.0001
$649
$0.0594
$290,601
SD
322,282
6.40
$0.0039
$8,129
$0.0000
$59
$0.0099
$20,421
TN
2,493,552
8.22
$0.0288
$591,376
$0.0001
$2,639
$0.0597
$1,223,670
TX
8,922,933
210.02
$0.0137
$25,678,927
$0.0001
$164,691
$0.0319
$59,725,635
UT
877,692
4.60
$0.0148
$59,576
$0.0001
$298
$0.0363
$146,684
VA
3,056,058
9.88
$0.0249
$753,148
$0.0001
$4,267
$0.0549
$1,656,927
VT
256,442
0.55
$0.0484
$6,872
$0.0000
$6
$0.0710
$10,065
WA
2,620,076
10.47
$0.0217
$595,425
$0.0001
$3,169
$0.0534
$1,463,637
Wl
2,279,768
27.07
$0.0107
$662,555
$0.0001
$4,069
$0.0240
$1,478,793
WV
763,831
10.98
$0.0189
$158,065
$0.0001
$766
$0.0409
$343,204
WY
226,879
1.03
$0.0165
$3,844
$0.0001
$19
$0.0400
$9,300
Total
115,994,247
$135,575,460
$713,414
$300,293,696
1 Annual average forgone mitigation acres (see Table F-l) based on permits issued in years 2011-2015 with mitigation requirements on waterways determined to be RPWWN-
type wetlands or ephemeral streams. Excludes permits issued for mitigation or restoration activities because the main purpose of these activities is to restore or enhance
ecosystem services provided by water resources as opposed to dredge and fill activities that lead to permanent or temporary losses of ecosystem services. Linear feet are
converted to acres by multiplying total linear feet by an average total buffer width of 50 feet (25 feet on each side of the stream) and converting square feet to acres.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 287
-------
Appendix F Stage 2 Analysis State-level Results
Table F-6: Total national forgone benefit estimate of reduced CWA section 404 related mitigation requirements, Scenario 1
State
Households
(HH)
Annual forgone
mitigation
acres1
Mean WTP
/HH/acre
(2017$)
Mean estimate
of forgone
benefits (2017$)
Lower 5th
WTP/HH/acre
(2017$)
Lower 5th estimate
of forgone benefits
(2017$)
Upper 95th WTP
WTP/HH/acre
(2017$)
Upper 95th
estimate of forgone
benefits (2017$)
AK
258,058
13.54
$0.0203
$70,881
$0.0001
$391
$0.0506
$176,916
AL
1,883,791
48.90
$0.0310
$2,856,426
$0.0001
$11,611
$0.0625
$5,761,209
AR
1,147,084
36.47
$0.0315
$1,319,006
$0.0001
$5,214
$0.0631
$2,640,627
AZ
2,380,990
16.79
$0.0363
$1,450,884
$0.0002
$6,057
$0.0793
$3,170,558
CO
1,972,868
1.81
$0.0154
$55,198
$0.0001
$287
$0.0383
$136,961
DE
342,297
2.33
$0.0275
$21,994
$0.0001
$109
$0.0584
$46,691
GA
3,585,584
37.66
$0.0289
$3,904,705
$0.0001
$17,886
$0.0602
$8,125,765
IA
1,221,576
4.29
$0.0071
$37,118
$0.0001
$265
$0.0170
$88,811
ID
579,408
0.76
$0.0169
$7,429
$0.0001
$36
$0.0408
$17,920
KS
1,112,096
91.73
$0.0058
$592,948
$0.0000
$4,285
$0.0141
$1,442,577
KY
1,719,965
90.97
$0.0289
$4,529,584
$0.0001
$18,561
$0.0589
$9,215,883
LA
1,728,360
86.35
$0.0208
$3,104,002
$0.0001
$13,991
$0.0442
$6,595,682
MO
2,375,611
18.32
$0.0113
$489,844
$0.0001
$2,782
$0.0246
$1,070,800
MS
1,115,768
24.62
$0.0321
$882,527
$0.0001
$3,206
$0.0631
$1,734,165
MT
409,607
2.91
$0.0155
$18,442
$0.0001
$87
$0.0373
$44,499
NC
3,745,155
4.79
$0.0301
$540,326
$0.0001
$2,429
$0.0622
$1,115,824
ND
281,192
5.48
$0.0039
$5,942
$0.0000
$45
$0.0097
$15,035
NE
721,130
3.63
$0.0046
$12,012
$0.0000
$91
$0.0115
$30,082
NM
791,395
1.36
$0.0216
$23,236
$0.0001
$104
$0.0504
$54,221
NV
1,006,250
3.35
$0.0171
$57,864
$0.0001
$275
$0.0412
$139,097
OK
1,460,450
4.23
$0.0236
$145,818
$0.0001
$713
$0.0505
$312,141
SC
1,801,181
2.71
$0.0284
$138,978
$0.0001
$649
$0.0594
$290,601
SD
322,282
6.40
$0.0039
$8,129
$0.0000
$59
$0.0099
$20,421
TX
8,922,933
210.02
$0.0137
$25,678,927
$0.0001
$164,691
$0.0319
$59,725,635
UT
877,692
4.60
$0.0148
$59,576
$0.0001
$298
$0.0363
$146,684
Wl
2,279,768
27.07
$0.0107
$662,555
$0.0001
$4,069
$0.0240
$1,478,793
WV
763,831
10.98
$0.0189
$158,065
$0.0001
$766
$0.0409
$343,204
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 288
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Appendix F Stage 2 Analysis State-level Results
Table F-6: Total national forgone benefit estimate of reduced CWA section 404 related mitigation requirements, Scenario 1
State
Households
(HH)
Annual forgone
mitigation
acres1
Mean WTP
/HH/acre
(2017$)
Mean estimate
of forgone
benefits (2017$)
Lower 5th
WTP/HH/acre
(2017$)
Lower 5th estimate
of forgone benefits
(2017$)
Upper 95th WTP
WTP/HH/acre
(2017$)
Upper 95th
estimate of forgone
benefits (2017$)
WY
226,879
1.03
$0.0165
$3,844
$0.0001
$19
$0.0400
$9,300
Total
45,033,201
$46,836,259
$258,974
$103,950,102
1 Annual average forgone mitigation acres (see Table F-l) based on permits issued in years 2011-2015 with mitigation requirements on waterways determined to be RPWWN-
type wetlands or ephemeral streams. Excludes permits issued for mitigation or restoration activities because the main purpose of these activities is to restore or enhance
ecosystem services provided by water resources as opposed to dredge and fill activities that lead to permanent or temporary losses of ecosystem services. Linear feet are
converted to acres by multiplying total linear feet by an average total buffer width of 50 feet (25 feet on each side of the stream) and converting square feet to acres.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised
289
-------
Appendix F Stage 2 Analysis State-level Results
Table F-7: Total national forgone benefit estimate of reduced CWA section 404 related mitigation requirements, Scenario 2
State
Households
(HH)
Annual forgone
mitigation
acres1
Mean WTP
/HH/acre
(2017$)
Mean estimate
of forgone
benefits (2017$)
Lower 5th
WTP/HH/acre
(2017$)
Lower 5th estimate
of forgone benefits
(2017$)
Upper 95th WTP
WTP/HH/acre
(2017$)
Upper 95th
estimate of forgone
benefits (2017$)
AK
258,058
13.54
$0.0203
$70,881
$0.0001
$391
$0.0506
$176,916
AL
1,883,791
48.90
$0.0310
$2,856,426
$0.0001
$11,611
$0.0625
$5,761,209
AR
1,147,084
36.47
$0.0315
$1,319,006
$0.0001
$5,214
$0.0631
$2,640,627
AZ
2,380,990
16.79
$0.0363
$1,450,884
$0.0002
$6,057
$0.0793
$3,170,558
CO
1,972,868
1.81
$0.0154
$55,198
$0.0001
$287
$0.0383
$136,961
DE
342,297
2.33
$0.0275
$21,994
$0.0001
$109
$0.0584
$46,691
GA
3,585,584
37.66
$0.0289
$3,904,705
$0.0001
$17,886
$0.0602
$8,125,765
ID
579,408
0.76
$0.0169
$7,429
$0.0001
$36
$0.0408
$17,920
KY
1,719,965
90.97
$0.0289
$4,529,584
$0.0001
$18,561
$0.0589
$9,215,883
MO
2,375,611
18.32
$0.0113
$489,844
$0.0001
$2,782
$0.0246
$1,070,800
MS
1,115,768
24.62
$0.0321
$882,527
$0.0001
$3,206
$0.0631
$1,734,165
MT
409,607
2.91
$0.0155
$18,442
$0.0001
$87
$0.0373
$44,499
ND
281,192
5.48
$0.0039
$5,942
$0.0000
$45
$0.0097
$15,035
NM
791,395
1.36
$0.0216
$23,236
$0.0001
$104
$0.0504
$54,221
OK
1,460,450
4.23
$0.0236
$145,818
$0.0001
$713
$0.0505
$312,141
SC
1,801,181
2.71
$0.0284
$138,978
$0.0001
$649
$0.0594
$290,601
SD
322,282
6.40
$0.0039
$8,129
$0.0000
$59
$0.0099
$20,421
TX
8,922,933
210.02
$0.0137
$25,678,927
$0.0001
$164,691
$0.0319
$59,725,635
UT
877,692
4.60
$0.0148
$59,576
$0.0001
$298
$0.0363
$146,684
WY
226,879
1.03
$0.0165
$3,844
$0.0001
$19
$0.0400
$9,300
Total
32,455,035
$41,671,369
$232,803
$92,716,031
1 Annual average forgone mitigation acres (see Table F-l) based on permits issued in years 2011-2015 with mitigation requirements on waterways determined to be RPWWN-
type wetlands or ephemeral streams. Excludes permits issued for mitigation or restoration activities because the main purpose of these activities is to restore or enhance
ecosystem services provided by water resources as opposed to dredge and fill activities that lead to permanent or temporary losses of ecosystem services. Linear feet are
converted to acres by multiplying total linear feet by an average total buffer width of 50 feet (25 feet on each side of the stream) and converting square feet to acres.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised I 290
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Appendix F Stage 2 Analysis State-level Results
Table F-8: Total national forgone benefit estimate of reduced CWA section 404 related mitigation requirements, Scenario 3
State
Households
(HH)
Annual Forgone
Mitigation
Acres1
Mean WTP
/HH/acre
(2017$)
Mean Estimate
of Forgone
Benefits (2017$)
Lower 5th
WTP/HH/acre
(2017$)
Lower 5th Estimate
of Forgone Benefits
(2017$)
Upper 95th WTP
WTP/HH/acre
(2017$)
Upper 95th
Estimate of Forgone
Benefits (2017$)
AZ
2,380,990
16.79
$0.0363
$1,450,884
$0.0002
$6,057
$0.0793
$3,170,558
ID
579,408
0.76
$0.0169
$7,429
$0.0001
$36
$0.0408
$17,920
KY
1,719,965
90.97
$0.0289
$4,529,584
$0.0001
$18,561
$0.0589
$9,215,883
MS
1,115,768
24.62
$0.0321
$882,527
$0.0001
$3,206
$0.0631
$1,734,165
SD
322,282
6.40
$0.0039
$8,129
$0.0000
$59
$0.0099
$20,421
Total
6,118,413
$6,878,552
$27,918
$14,158,947
1 Annual average forgone mitigation acres (see Table F-l) based on permits issued in years 2011-2015 with mitigation requirements on waterways determined to be RPWWN-
type wetlands or ephemeral streams. Excludes permits issued for mitigation or restoration activities because the main purpose of these activities is to restore or enhance
ecosystem services provided by water resources as opposed to dredge and fill activities that lead to permanent or temporary losses of ecosystem services. Linear feet are
converted to acres by multiplying total linear feet by an average total buffer width of 50 feet (25 feet on each side of the stream) and converting square feet to acres.
Economic Analysis for the Proposed Revised Definition of "Waters of the United States" - Revised
291
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