Revised Definition of "Waters of the United States"
Response to Comments Document
Section 17 - Economic Analysis
See the Introductory Section of the Response to Comments (RTC) Document for a discussion of the
Environmental Protection Agency and the Department of the Army's (hereinafter, the agencies ) comment
response process and organization of the eighteen sections.
17 Economic Analysis 3
17.1 State and Tribal Responses to Changes in Federal Jurisdiction 3
17.1.1 National costs and benefits informed by state programs 3
17.1.2 Tribes filling the regulatory gap 4
17.1.3 States filling the regulatory gap 5
17.1.4 Costs to states 12
17.1.5 Other comments on supplementary material to the economic analysis 9
17.2 Scope of Jurisdiction 12
17.2.1 Primary baseline 12
17.2.2 Secondary baseline 16
17.2.3 Other baselines 18
17.3 Benefits 19
17.3.1 General benefits comments 19
17.3.2 Additional benefits categories 21
17.3.3 Number of wetlands and aquatic resource benefits studies 23
17.3.4 Willingness to pay studies 23
17.3.5 Selection of wetlands and aquatic resource benefits studies 24
17.3.6 Benefits transfer approach 26
17.4 Costs 28
17.4.1 General costs comments 28
17.4.2 Permit costs 29
17.4.3 Mitigation costs 30
17.4.4 Costs associated with regulatory uncertainty 31
17.4.5 Costs associated with permitting changes 33
17.4.6 Costs associated with Clean Water Act programs other than the section 404 program 36
17.4.7 Additional cost categories 38
17.5 Distribution of Costs and Distribution of Benefits 42
17.5.1 General comments on accuracy and adequacy 42
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17.5.2 Interstate and transboundary benefits 44
17.5.3 Case studies 45
17.6 Environmental Justice Implications 45
17.6.1 Use of the primary baseline related to environmental justice concerns 45
17.6.2 Comprehensiveness of the environmental justice analysis 47
17.6.3 Ecosystem services in the environmental justice analysis 48
17.6.4 Cumulative risk and environmental justice analysis 49
17.6.5 Environmental justice concerns from implementation of the 2020 NWPR 49
17.6.6 Environmental justice issues associated with changes from the pre-2015 regulatory text
and the pre-2015 regulatory regime 51
17.6.7 Distributional and other considerations in the environmental justice analysis 53
17.6.8 Disproportionate impacts related to water 53
17.6.9 Relationship of race to other factors 55
17.7 Sector Impact Analysis 55
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17
Economic Analysis
17.1 State and Tribal Responses to Changes in Federal Jurisdiction
17.1.1 National costs and benefits informed by state programs
A few commenters disagreed with the agencies' assumption that the proposed rule would have no effect
on states that define "waters of the State" at least as broadly as the proposed "waters of the United States"
definition and urged the agencies to include all states in their analysis. Some commenters stated that the
agencies were wrong to assume that the proposed rule would produce no benefits in those states that have
broader protections than the proposed rule, stating that these states often cannot or will not provide the
same level of protection and that there is nothing to prevent them from reducing state protections.
A commenter urged the agencies to conduct a sensitivity analysis to examine the risk of states repealing
laws that are more protective. A commenter stated that the agencies did not analyze whether states have
adequate capacity and resources to implement programs for non-jurisdictional waters. A commenter
stated that the agencies' assessment of which states have more stringent protections is inaccurate and does
not include the myriad factors that determine whether a state, in practice, is protecting more waters than
the proposed rule.
Another commenter asserted that resource constraints at the state level may lead to underenforcement,
citing comments from states that emphasize constraints. The commenter urged the agencies to consider
these impacts before concluding that increased federal protections offer no benefits in these states. One
commenter stated that states may not have analogous programs for every Clean Water Act requirement,
giving the example that only a handful of states have authority to run a biosolids management program
and only three states are authorized to issue section 404 permits. This commenter stated that even where
analogous programs exist, they may not be as stringent or stringently enforced as the federal counterparts.
The commenter stated that statutory authority to regulate waters does not mean regulations are in place,
noting that any needed rulemaking would entail costs that could be avoided through stronger federal
regulations. The commenter stated that the agencies should perform a more expansive analysis of states'
statutory authority and not assume that they will promulgate regulations to fill the gap. The commenter
also argued that developments after the 2020 Navigable Waters Protection Rule (2020 NWPR) was
promulgated demonstrate the problems of assuming no benefits in these states. A few commenters stated
that Indiana and Ohio reduced protections in response to the 2020 NWPR, stating that this demonstrates
vulnerability in the absence of a federal baseline of protection, in contrast to the agencies' assumption in
the 2020 NWPR about states filling the gap.
One commenter challenged the assumption that all the incremental wetlands affected by the definitional
change would be compromised if federal jurisdiction were not expanded and that all these wetlands would
be preserved or mitigated if it is expanded. The commenter stated that this is inaccurate since tribal, state,
and local governments frequently protect wetlands in the absence of federal jurisdiction. To the contrary,
the commenter asserted state and local planning, monitoring, and enforcement activities may be better-
suited to effectively preserve wetland resources, so the benefits associated with expanding federal
jurisdiction over wetlands could be partially offset by programmatic changes that pass control from tribes,
states and municipalities to federal agencies.
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Agencies' response: The agencies agree with commenters who asserted that states with
regulations relating to "waters of the States" that are at least as broad as the Clean Water
Act will still receive some benefits from the final rule. The agencies agree with commenters
who stated that the economic analysis did not include an assessment of the resources
available to states to fully enforce existing state regulations relating to "waters of the
States." The agencies are unable to determine what resources states would have required to
fill the regulatory gap left by the 2020 NWPR. The agencies agree with the commenter that
stated that not all newly jurisdictional wetlands under the final rule would equate to a full
distribution of costs and benefits, as some states have regulatory programs which can
partially fill the gap. The agencies are unable to determine what proportion of costs and
benefits within given states would be offset by state regulatory programs.
The agencies agree with the commenters that recommended including all states in the
economic analysis. The agencies have estimated potential benefits for all states for both the
proposal and final analysis. Including all states in the total costs and benefits calculations
removes the prior assumptions that were inherent in the quantified costs and benefits
calculations in the Economic Analysis for the Proposed Rule. These assumptions included:
states that have regulations in place that are as broad as the Clean Water Act will not see
benefits from the proposed rule, and states that have regulations in place that are less broad
than the Clean Water Act will see full benefits from the proposed rule. So as not to unduly
overestimate benefits and costs, the agencies have also accounted for existing state laws and
regulations that would produce the same or similar outcomes as federal requirements. The
agencies have catalogued state regulatory programs and definitions related to state waters
in the Supplementary Material to the Economic Analysis for the Final Rule. The agencies
have also provided costs and benefits by state in Appendix C of the Economic Analysis for
the Final Rule. See Chapter II of the Economic Analysis for the Final Rule.
The agencies agree with the commenters that stated that Indiana and Ohio deregulated
definitions of "waters of the State" after implementation of the 2020 NWPR began. The
agencies acknowledge the commenter that requested a sensitivity analysis on the potential
of future deregulation by states. In accordance with EPA's Guidelines for Preparing
Economic Analyses, the agencies are not forecasting potential state actions.1
17.1.2 Tribes filling the regulatory gap
One commenter stated that the 2020 NWPR relied on the faulty assumption that the Clean Water Act
allowed for limited federal jurisdiction, giving states the main regulatory powers to protect water
resources. The commenter asserted that this argument fails where tribes are concerned because federal
law protects tribes from the vagaries of state laws and their enforcement. The commenter further stated
that limiting federal jurisdiction over off-Reservation waters under the 2020 NWPR affected the ability of
tribes to protect sites considered sacred or historically or culturally important, especially in the arid West,
by removing protections under federal law that enable tribes to seek protections for such sites and that are
triggered by Clean Water Act jurisdiction. The commenter stated that the removal of federal jurisdiction
1 U.S. Environmental Protection Agency. (2010). Guidelines for Preparing Economic Analyses. (EPA 240-R-10-
001).
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also places an increased economic burden on the tribes by forcing them to bear responsibility and costs of
protecting water quality in water courses no longer considered federally jurisdictional.
One commenter stated that while the Navajo Nation has its own federally approved water quality
standards, the geographic extent of the Tribe places great strains on the water quality program and its
limited staff and affects their ability to implement the program. The commenter also stated that the bulk
of permits issued on the Navajo Nation are section 404 permits, which require substantial resources to
administer, as evidenced by the fact that only three states and no tribes have been approved to administer
the section 404 permitting programs.
Agencies' Response: The agencies acknowledge that deficiencies in the 2020 NWPR could
have led to adverse impacts to tribes. The agencies acknowledge that because the agencies
generally implement Clean Water Act programs on tribal lands, a reduced scope of Clean
Water Act jurisdiction will affect tribes differently than it will affect states. Currently, of
the tribes that are eligible, most have not received treatment in a manner similar to a state
(TAS) status to administer Clean Water Act regulatory programs. While some tribes have
established tribal water programs under tribal law or have the authority to establish tribal
programs under tribal law, many tribes may lack the capacity to create a tribal water
program under tribal law, to administer a program, or to expand programs that currently
exist. Other tribes may rely on the federal government for enforcement of water quality
violations.
The agencies acknowledge the concern raised by the commenter about the Navajo Nation's
ability to implement Clean Water Act regulatory programs. The agencies qualitatively
discuss the costs to states and tribes to administer Clean Water Act permitting programs in
Chapter II of the Economic Analysis for the Final Rule.
17.1.3 States filling the regulatory gap
Many commenters asserted that states, tribes, territories, and/or local communities are/were unable or
unwilling to fill regulatory gaps left by the definition of "waters of the United States" under the 2020
NWPR. Some commenters supported an increased role of the federal government in Clean Water Act
enforcement on the grounds that states lack technical or financial capacity to take on clean water
enforcement and that the agencies can ensure cost-effective regulations. Some commenters cited existing
regulations that prohibit or significantly limit going above and beyond the requirements of the Clean
Water Act, with a few noting that 36 states have such regulations.
A commenter extensively quoted a 2017 op-ed by Cynthia Giles, a former head of EPA's Office of
Enforcement and Compliance Assurance, which argued that the EPA cannot leave environmental
protection to the states because (1) states often fail to enforce laws when the people harmed are in
downstream states; (2) many significant violators are national companies, and state-by-state enforcement
leads to inefficient and inconsistent results; (3) criminal environmental laws serve as a powerful deterrent,
but many states fail to enforce them; (4) states don't always have the political will to take on companies
with political clout; (5) the EPA helps to ensure a level playing field and prevent violators from obtaining
an unfair competitive advantage; and (6) state enforcement will be weakened without the threat of EPA
enforcement.
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One commenter quoted California's comments on the 2020 NWPR, in which the State asserted that state
authorities have historically worked in conjunction with Clean Water Act authorities and that ensuring the
same level of protection for waters would require significant resources while producing inferior results
because state water quality enforcement mechanisms are not as effective as those under the Clean Water
Act. A commenter stated that even though the EPA provides significant grant funding to states to carry
out regulatory programs implementing federal law, EPA's Solicitor General has admitted that state
enforcement is incomplete and inconsistent, and the agency's water quality data demonstrates that many
states are currently failing to adequately protect communities, waterways, and ecosystems from water
pollution.
A commenter contended that the Clean Water Act provides a nationwide floor of water pollution controls
necessary to protect downstream states, and thus supported the agencies' proposal not to rely on
individual states to fill gaps left in federal jurisdiction. A commenter stated that under the 2020 NWPR,
downstream states bore significantly higher costs due to pollutant loads or floods from upstream states
following removal of federal protections. Another commenter gave examples of investments in water
protection which they stated were at risk due to the 2020 NWPR's removal of protections against
upstream pollution.
Another commenter emphasized the importance of a level regulatory playing field among states,
especially in protecting states and communities from pollution and increased flood risks in upstream
states, noting that any action to expand or contract the scope of federal protection will have direct and
significant impacts on states. A commenter stated that the federal government should provide a minimum
standard of water quality protection because most states rely on federal protection, which is of increasing
importance given the limited supply of water for critical needs. The commenter stated that adverse
impacts are borne unequally among states. The commenter further emphasized that many states rely on
federal wetland protections and that fewer than half of states have their own wetland permitting program.
The commenter stated that the Clean Water Act's requirements need to be strengthened and that any
assumption that states and tribes will pick up the slack is beyond credulity. One commenter quoted
Maryland officials' comments on the 2020 NWPR to say that narrowing the scope of federal jurisdiction
would strip protection from upstream waters in other states, hampering Maryland's ability to preserve and
improve the quality of Chesapeake Bay and other state waters.
A commenter stated that the trend of deregulatory actions by states that occurred during the year that the
2020 NWPR was in effect was likely to continue under the 2020 NWPR. A commenter cited a study that
stated that of the 31 states that the agencies deemed likely to regulate wetlands left unprotected by the
2020 NWPR, at least 16 were unlikely to do so due to restrictive existing legal regimes. The commenter
also stated that even in states that did adopt additional protections, there were efforts to limit or undo
those protections and provided examples of state responses the commenter believes illustrate the fallacy
that states could and would fill the gap created by the 2020 NWPR.
Some commenters focused on states in the Midwest or Great Lakes region, noting that no state there
responded to the 2020 NWPR by expanding state wetland protection, which commenters stated provided
evidence that states would not step in to protect wetlands that lose federal protection. The commenters
gave examples of states that restrict the scope of state wetland protections, including only state or state-
supported activities being regulated in Illinois, Class II wetlands in Indiana being typically unprotected,
Michigan protecting only wetlands connected to traditional navigable waters or over five acres, and
exemption of nonfederal wetlands in Ohio. Some commenters stated that efforts to roll back "waters of
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the United States" coverage has particularly significant consequences for New Mexico since it does not
have primacy to implement the National Pollutant Discharge Elimination System permitting program or
the section 404 permitting program. The commenter stated that New Mexico does not have authority to
fill the gap left if EPA loses its authority to comprehensively protect surface water quality.
A commenter stated that while the agencies have asserted that states and tribes have authority to
implement programs that are more protective than federal programs, Louisiana is among the states that
has chosen not to. One commenter noted that the State of Missouri "did not step up to the challenge" to
protect waters in the State that had been removed from jurisdiction under the 2020 NWPR, stating that
there are still no numeric standards protecting wetlands or smaller streams. A commenter stated that
Florida is among the states that have not filled the regulatory gap.
One commenter stated that Ohio has proactively filled jurisdictional gaps to protect "waters of the State,"
that state and local officials have a long history of working with landowners to improve water quality and
effectively operating under the cooperative federalism structure, and that the State has had rules in place
to protect isolated wetlands since 2015. A few commenters stated that the Ohio EPA issued a combined
general permit for ephemeral streams and some isolated wetlands in 2020 following their removal from
federal jurisdiction under the 2020 NWPR. One commenter argued that this demonstrates the State's
efforts to ensure continued oversight of the resources, while another commenter used this example to
support their conclusion that State's responses do not fill the gaps, stating that the general permit
authorizes fill of wetlands and ephemeral streams under certain thresholds, and that it is not clear how the
State will handle projects impacting areas above the thresholds. One commenter stated that the Ohio
legislature introduced legislation deregulating certain ephemeral features in March 2021.
One commenter urged the agencies to take resource availability into consideration and establish a new
rule that is protective of water features in all states and tribes, not just those that have robust regulatory
systems and resources to implement them.
One commenter who argued that the Clean Water Act's requirements need to be strengthened asserted
that the proposed rule's jurisdictional limits on tributaries, wetlands, and "other waters" will eliminate
protections for many waters relative to the pre-2015 regulatory regime, and that state and tribal
governments will not be able to address the resulting harms. The commenter disputed the suggestion that
states and tribes would manage waters not covered by the proposed rule, contending that the agencies had
acknowledged in the preamble to the proposed rule that states and tribes had not filled the regulatory gap
left by the 2020 NWPR.
Agencies' Response: The agencies agree with commenters that stated that there are a host
of reasons why tribes, states, and other governing entities did not fill the regulatory gap
under the 2020 NWPR. The agencies agree with commenters that there are financial and
technical limits to states' abilities to fill the gap. The agencies acknowledge that some states
have legal limitations to regulating "waters of the States." The agencies agree with the
commenters who stated that many states match the protections of the Clean Water Act and
do not currently have authority to enact more protective regulations, and with those
commenters who noted that states and tribes did not fill the regulatory gaps left by the 2020
NWPR. See final rule preamble section IV.B.3.d.ii. The agencies also acknowledge the
commenters who gave examples of states which they asserted were unwilling to fill the gap.
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The agencies further agree with those commenters who stated that the national regulatory
framework provided by the Clean Water Act protects downstream states. When Congress
enacted the Clean Water Act, it determined that a comprehensive statutory framework was
necessary to restore and maintain the chemical, physical, and biological integrity of the
nation's waters and, accordingly, enacted "an all-encompassing program of water pollution
regulation," Int'lPaper Co. v. Ouelette, 479 U.S. 481, 492-93 (1987).
The agencies acknowledge the commenter's assertion that the proposed rule should provide
states with resources to perform monitoring, restoration, and enforcement and qualitatively
consider such impacts to state administrative activities in the Economic Analysis for the
Final Rule. The agencies acknowledge the commenters who gave examples of how some
states are unable to enforce existing state regulations relating to "waters of the States."
For all of the above reasons, the agencies have decided to include all states in the benefit
cost analysis for the Economic Analysis for the Final Rule. See the agencies' response to
comments in Section 17.1.1 for more details.
The agencies acknowledge the commenter who stated that the deregulatory trend that was
observed while the 2020 NWPR was being implemented would have continued under the
2020 NWPR if that rule had been left intact by courts. In the Economic Analysis for the
Final Rule, the agencies are not forecasting how states would or would not have responded
to continued implementation of the 2020 NWPR.
Regarding comments about how the State of Ohio changed regulatory practice under the
2020 NWPR, see the agencies' response to comment Section 17.1.5.
The agencies agree with the commenter who noted that, per the analysis in the proposed
rule, states and tribes had not filled the regulatory gap left by the 2020 NWPR. This final
rule does establish certain limits on the scope of the Clean Water Act, which are based on
consideration of the text of the relevant provisions of the Clean Water Act and the statute as
a whole, the scientific record, relevant Supreme Court decisions, and the agencies'
experience and technical expertise after more than 45 years of implementing the
longstanding pre-2015 regulations defining "waters of the United States." See Section
IV.A.3 of the Preamble to the Final Rule for further discussion about the limits in the final
rule. States and tribes may establish more protective standards or limits than the Clean
Water Act to manage waters subject to Clean Water Act jurisdiction or waters that fall
beyond the jurisdictional scope of the Act and may choose to address special concerns
related to the protection of water quality and other aquatic resources within their borders.
Nothing in the final rule limits or impedes any existing or future state or tribal efforts to
further protect their waters.
The agencies disagree with the commenter who stated that the scope of jurisdiction under
the proposed rule was not protective enough and that many waters under the pre-2015
regulatory regime would be non-jurisdictional under the proposed rule. As discussed in
Final Rule Preamble Section V.A, the final rule will establish a regime that is generally
comparable to current practice, and this rule will generate de minimis costs and benefits as
compared to the pre-2015 regulatory regime that the agencies are currently implementing.
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17.1.5
Other comments on supplementary material to the economic analysis
Many commenters provided details about state regulatory regimes including how they interact with
federal water regulations and how they were affected by the 2020 NWPR.
One commenter stated that Indiana's governor signed into law a bill that repealed state water and wetland
protections, eliminating the requirement that industry and project developers must obtain permits for
impacts to ephemeral features and the requirement that they obtain a permit or perform compensatory
mitigation for impacts to isolated wetlands on agricultural lands.
One commenter requested that the agencies consider additional information in the economic analysis,
including that Colorado state law precludes the discharge of pollutants to state waters without a permit
and defines "waters of the State" more broadly than the "waters of the United States" definition.
However, the commenter asserted the State's ability to depend on a consistent level of federal protection
is an important benefit of the proposed rule because the State relies on the Corps' section 404 permitting
program to regulate dredge and fill activity and protect critical streams and wetlands.
One commenter stated that Florida has persisted in applying the 2020 NWPR definition of "waters of the
United States" in its section 404 permitting program despite the 2020 NWPR's vacatur and clear guidance
from the agencies, including in one case where it allowed an unpermitted fill of a 3-acre wetland. In
contrast, another commenter stated that Florida defines "waters of the State" more broadly than any past
or current federal definition, that the State is a national leader in the protection of wetlands and water
resources, that its constitution and statutes prioritize water resources, and that the State has invested
billions into restoration, protection, and management of those resources. The commenter provided an
overview of the State's section 404 permitting program and concluded that it is more comprehensive than
the federal program. That commenter also stated that as one of three states with authority under section
404, Florida is uniquely situated and directly impacted by proposals to further revise the "waters of the
United States" definition. The commenter stated that state administration of the program has resulted in
better protection and, consistent with Congress's intent for states to hold primary responsibility, the
agencies should encourage more states to do the same. The commenter also provided overviews of several
state initiatives to improve and restore the Everglades ecosystem, funding secured for water quality
improvements, and a 2020 statute which the commenter stated carries a wide range of water quality
protection provisions. Another commenter stated that Florida's authority to regulate water quality under
state law is far broader than the federal "waters of the United States" authority, as Florida statutes define
"waters of the State" broadly, and that definition incorporates all "waters of the United States" by
reference.
One commenter summarized Maine's comments on the 2020 NWPR, which pointed out that under Maine
law, the removal of federal protections for many wetlands meant the removal of any oversight over
alteration of wetlands under 4,300 feet in area.
Two commenters stated that New York's Freshwater Wetlands Act was designed to work in tandem with
the Clean Water Act and relies on federal jurisdiction under sections 401 and 404 to protect freshwater
wetlands that fall outside the scope of state regulation. A commenter stated that freshwater wetlands in
New York are particularly vulnerable to filling and degradation due to state and federal regulatory gaps.
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The commenter stated that a wetland must be delineated on existing freshwater wetland maps to be
subject to regulation under New York state law, but that most of the maps have not been updated in over
20 years given the time-consuming and burdensome amendment process. The commenter also stated that
New York can only regulate wetlands greater than 12.4 acres or those deemed to have unusual local
importance, which they stated leaves hundreds of thousands of acres in high development areas
unprotected, including in New York City. The commenters stated that if federal protections under the
Clean Water Act are limited, then wetlands in New York are unregulated and vulnerable.
Another commenter stated that in North Carolina, wetlands that lost Clean Water Act protections under
the 2020 NWPR remained protected by state regulations, but that there were no permitting mechanisms to
authorize impacts. The commenter stated that the State therefore had to create new regulations to establish
a permitting program.
One commenter provided a summary of water quality programs implemented by the North Dakota
Department of Environmental Quality. The commenter provided data on recent enforcement actions
which resulted in almost $3 million in civil penalties and summary data on its 2017 impaired waters list,
adding that the State works to protect and remediate impaired waters.
One commenter provided an overview of the activities undertaken by the North Dakota Department of
Agriculture such as assisting farmers and ranchers with the use of their land, including by developing and
enforcing effective uniform water quality standards and other standards to ensure compliance with the
Clean Water Act and other environmental laws. The commenter stated that the Department of Agriculture
protects "waters of the United States" and state waters through a water quality program, a fertilizer
program, a Water Bank Program (which helps farmers and ranchers conserve water on their lands and
promotes water quality by offering 10-year rental agreements for the protection of wetlands and wildlife
habitat), and through pesticide regulations and programs designed to protect waters from pesticide
pollution.
A commenter stated that the description of Rhode Island's regulatory program is accurate, except that the
effective date of the revised Freshwater Wetlands Rules has been delayed to July 1, 2022.
One commenter stated that the definition of "waters of the State" provided in the agencies' supplemental
material to the Economic Analysis for Oregon is used by the State's Department of Environmental
Quality to guide water quality monitoring programs, but that the Department of State Lands uses a
different definition to support Oregon's Wetlands & Waterways Regulatory (Removal-Fill) Program,
which is "all natural waterways, tidal and nontidal bays, intermittent streams, constantly flowing streams,
lakes, wetlands, that portion of the Pacific Ocean that is in the boundaries of this state, all other navigable
and non-navigable bodies of water in this state and those portions of the ocean shore, as defined in ORS
390.605, where removal or fill activities are regulated under a state-assumed permit program as provided
in 33 U.S.C. 1344(g) of the Federal Water Pollution Control Act, as amended" (ORS 196.800 (15)). The
commenter also stated that Oregon has a no net loss of wetland goal in statute that requires the State to
"maintain a stable resource base of wetlands," "increase wetland resources by encouraging wetland
restoration and creation," "meet the requirements of federal law in the protection and management of
wetland resources," "promote the protection of wetland values on private lands," and require
compensation for "functions and values for the waters of the State" for permitted impacts.
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A commenter stated that in Tennessee the term "waters of the State" is broader than the 2020 NWPR's
definition of "waters of the United States" because it includes ephemeral streams and isolated wetlands.
The commenter stated that the decision of whether to require mitigation for impacts to these resources
should be a state decision.
Agencies' Response: The agencies acknowledge the input provided by commenters in this
section as it relates to how the agencies captured the regulatory programs of given states
within the Supplementary Material to the Economic Analysis for the Proposed Rule.2 The
agencies have updated that document for the Final Rule as deemed appropriate based on
public comment. These updates included changes to program descriptions for the following
states: Colorado, Maine, New York, North Carolina, Ohio, Oregon, and Rhode Island.
These changes did not warrant a change in the description of these states as regulating state
waters more or less broadly than "waters of the United States." See also Chapter II and
Appendix C of the Economic Analysis for the Final Rule.
The agencies acknowledge the concerns raised by the commenters about the impacts of
limiting federal jurisdiction of wetlands under the Clean Water Act. The final rule does not
reopen the definition of "wetlands" in the agencies' regulations, but it does address which
wetlands are "waters of the United States." The final rule addresses adjacent wetlands
differently than the 2020 NWPR, retaining the definition of "adjacent" from the 1986
regulations and adding language that reflects the relatively permanent and significant nexus
standards. The agencies maintain that this definition of jurisdictional wetlands advances the
objective of the Clean Water Act and is consistent with scientific information on the
important effects of wetlands on the integrity of larger downstream waters.
The agencies acknowledge the commenter's support for the 2020 NWPR's approach to
cooperative federalism but disagree with the commenter's suggestion that no waters lost
protection under this approach. In the Economic Analysis for the Proposed Rule, the
agencies have found that during the year in which 2020 NWPR was in effect, the net change
made by states was deregulatory in nature. The agencies have determined that under the
2020 NWPR, two states which previously protected state waters beyond the scope of
"waters of the United States" removed these expansive protections, whereas no states or
tribes that have previously lacked these broader protections established them. See Chapter
II of the Economic Analysis for the Final Rule.
The agencies acknowledge the commenter who asserted that the decision to require
mitigation for impacts to ephemeral streams and isolated wetlands should be a state
decision. The Clean Water Act may require mitigation for those waters which are
jurisdictional under section 404 of the Clean Water Act. See Section I.B.3 of the Economic
Analysis for the Final Rule for a detailed description of the scope of jurisdiction under the
Final Rule.
2 U.S. Environmental Protection Agency, & U.S. Department of the Army (U.S. EPA and Army). (2022a).
Supplementary Material to the Economic Analysis for the Final "Revised Definition of 'Waters of the United
States'" Rule.
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17.2 Scope of Jurisdiction
17.1.4 Costs to states
Several commenters disputed the way the economic analysis for the proposed rule accounted for costs to
states. Some of these commenters discussed how uncertainty has led to dedicated resources, time, and
money in state governments for creating or updating existing programs with changing definitions of
"waters of the United States." Some commenters noted that there are costs to states for the
implementation of other Clean Water Act programs beyond the section 404 program, such as the section
303 and section 402 programs. Some commenters stated that expanded federal jurisdiction will also lead
to expanded economic impacts to states.
Many commenters noted the costs imposed on states by the 2020 NWPR. A few commenters argued that
the 2020 NWPR shifted the regulatory burden to states without providing adequate resources for state
authorities and overburdened state agencies. Many commenters stated that relying on states to fill gaps
under the 2020 NWPR would have imposed significant administrative costs onto the states. Commenters
provided specific examples of administrative costs for Arizona, California, Colorado, the District of
Columbia, Massachusetts, New Mexico, New York, Oregon, Massachusetts, Wisconsin, and Virginia.
A commenter gave an example of the District of Columbia's development of local regulations for dredge
and fill activities in wetlands and streams no longer subject to Clean Water Act protection, which they
stated took 2,520 hours of staff time and required the hiring of new staff to implement and enforce
permitting programs. The commenter stated that New Mexico had to overhaul its regulations and create a
new permitting program estimated to cost more than $7.5 million per year. A commenter stated that 14
states and the District of Columbia commented on the 2020 NWPR that they would experience significant
hardship in taking on additional water protections to "fill the gap."
One commenter noted that in Colorado's challenge to the 2020 NWPR, the State asserted that it would
experience substantial harm from increased enforcement burdens. The commenter supported the proposed
rule's approach due to the potential decreased enforcement burdens for states. Another commenter
discussing Colorado stated that the 2020 NWPR led to efforts at the state level to fill the perceived "gaps"
in protection of waters through a new state permit program, which they stated would cause additional
complexity and regulatory cost if implemented. One commenter stated that Colorado estimated that 25 to
50 percent of its waters would need state-level protections as long as the 2020 NWPR was in effect
because the State had relied on the federal government to protect the waters previously.
A commenter noted that Oregon identified hundreds of acres of wetlands and other waters that lost federal
protection under section 404 permitting. The commenter also stated that the 2020 NWPR reduced the
scope of Oregon's federal consistency review under the Coastal Zone Management Act, which they stated
likely led to federally permitted activities being inconsistent with state and local enforcement policies.
The commenter stated that only through pre-existing processes was the State made aware of specific
waters determined to be non-jurisdictional, and that it retained authority to rely on other elements of state
law to address potential impacts to state waters. The commenter concluded that the 2020 NWPR
demonstrated that narrowing the definition of "waters of the United States" makes it more difficult for
states to protect state waters due to the narrowing of Clean Water Act section 401 jurisdiction. The
commenter added that state and federal agency relationships and coordination will be beneficial during
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the implementation of this rule. One commenter stated that Virginia's Department of Environmental
Quality has limited resources to protect water quality, and that the proposed rule would ensure additional
resources are available for monitoring, restoration, and enforcement (including via citizen suits). Some
commenters stated that after promulgation of the 2020 NWPR, Arizona developed its own surface water
protection program to ensure protection of important waters no longer deemed "waters of the United
States" at a cost of $2 million in implementation expenses.
A commenter stated that the 2020 NWPR resulted in significant confusion over regulatory boundaries in
North Carolina as it departed from the familiar significant nexus standard for adjacency. The commenter
stated that the 2020 NWPR also resulted in a class of waters that were protected by water quality
standards but lacked a permitting mechanism for reviewing and authorizing impacts, and that the State
had to move quickly and devote significant resources and time to promulgate temporary and permanent
rules to address the permitting gap created by the 2020 NWPR.
One commenter cited Virginia's comments on the 2020 NWPR to reiterate that many states cannot afford
to assume responsibility for regulating fill activities in millions of acres of wetlands left unprotected,
which they estimated would cost up to $18 million upfront and $3.4 million annually. The commenter
stated that the loss of the Corps' knowledge base was a critical cost.
A commenter stated that the 2020 NWPR failed to protect the waters in the State of Washington, shifting
the regulatory burden to states, imposing significant risk of permitting delays and regulatory uncertainty,
and removing the federal layer of protection for cherished resources. One commenter stated that
Washington officials expressed concern about the potential need for additional staff to write permits and
enforce water quality standards after the 2020 NWPR took effect and noted that the Washington
Department of Ecology stated that the 2020 NWPR was a "tragic abdication of federal responsibility" that
could increase the burden to state taxpayers to pay for cleanups.
A commenter stated that North Dakota already has measures to protect its land and waters, including
implementation of the pesticide permitting program under the Clean Water Act. The commenter stated
that the proposed rule would impose an added regulatory burden on the State to manage and enforce
compliance with the ambiguous rule, emphasizing that the State has fiscally limited resources.
One commenter stated that expansion of federal jurisdiction over waters in Florida would create
duplicative, cost-prohibitive, and onerous permitting requirements for cities, counties, municipalities,
businesses, developers, ranchers, and farmers.
Agencies' Response: The agencies acknowledge commenters' concerns regarding the
burdens states may face or costs they may incur under the final rule. The agencies also
acknowledge commenters that pointed to potential decreased burdens for state programs
under this rule. As the final rule is very similar in scope to that of pre-2015 practice, there
will be de minimis new indirect costs associated with the implementation of the final rule.
The agencies recognize the difficulty in properly analyzing potential costs and benefits
related to state regulatory programs and have chosen to shift to a qualitative assessment of
potential costs and benefits related to state regulatory programs in the final rule. See also
the agencies' response to comments in Section 17.1.1.
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The agencies also acknowledge commenters' concerns about the additional burden placed
on states to protect state waters under the 2020 NWPR and the regulatory burden of
jurisdictional determinations for states under the 2020 NWPR. The agencies have
determined that the final rule will address some of the regulatory challenges the 2020
NWPR imposed. Furthermore, the final rule increases clarity and implementability by
streamlining and restructuring the 1986 regulations and providing implementation
guidance informed by sound science, implementation tools, and other resources. See Section
4.2 of the agencies' response to comments for further discussion of the challenges posed by
the 2020 NWPR. The agencies discuss potential impacts on state regulatory programs
relative to a secondary baseline of practice under the 2020 NWPR in Chapter II of the
Economic Analysis for the Final Rule.
The agencies acknowledge that changes to the definition of "waters of the United States"
inevitably have a cost to states. States are obligated to respond to changing regulations, and
these responses consume resources. Even if a federal regulation ultimately decreases state
costs by reducing the need for state oversight of water resources, over the short term, new
regulations require states to become educated on the changes, coordinate with other
stakeholders, and ultimately adapt their actions to the new circumstances. The costs
incurred by states in response to a new regulation vary based on differences in existing state
programs, which makes them extremely difficult to estimate. Furthermore, the final rule
should not place a significant burden on any state, given states' familiarity with the pre-
2015 regime. The final rule is founded on the 1986 regulations that underpin the
longstanding pre-2015 regulatory regime and it builds on and is generally consistent with
that regulatory regime.
The agencies recognize the commenter who asserted that the 2020 NWPR could increase
costs to the states and public. The agencies qualitatively consider administrative and
permitting costs as well as societal costs in the agencies' assessment of costs and benefits in
the Economic Analysis for the Final Rule.
17.2.1 Primary baseline
Some commenters stated that the agencies' estimated "zero impact" relative to the pre-2015 regulatory
regime is true only if the agencies finalized a rule that protects the same scope of waters. A few of these
commenters stated that the agencies should protect waters more fully in a final rule. Other commenters
stated that the agencies' assertion of no economic impacts relative to the primary baseline is dismissive,
meritless, implausible, unrealistic, indefensible, or misleading. A few commenters stated that the agencies
must assess the economic impact of what the commenters perceived to be broadening jurisdiction.
One commenter stated that the proposed rule suggests that more waters would be jurisdictional relative to
both the 2020 NWPR and the present-day approach, which they stated renders the economic analysis
irrelevant since it starts from the premise that the proposed rule would codify the current practices.
A few commenters stated that the proposed rule significantly expands on the pre-2015 regulatory regime
by establishing the "other waters" category. Some of these commenters noted that a reformulated "other
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waters" category is a departure from the pre-2015 regulatory regime based on the Rapanos Guidance.3
One commenter noted that this will affect a "massive number of currently non-jurisdictional water
features." Another commenter stated that the findings of zero costs and benefits associated with the pre-
2015 regulatory regime baseline is inaccurate because of this.
A few commenters suggested that the agencies revisit the economic impact of the proposed rule because,
according to the commenters, the proposal included a broader interpretation of the significant nexus
standard, which would include additional categories of waters as a "water of the United States," such as
ephemeral features and certain wetlands, ditches, and isolated features. The commenter argued that this
broad interpretation would impact the costs and benefits of Clean Water Act programs, which they
contended is not adequately assessed in the Economic Analysis for the Proposed Rule. A commenter
requested that the agencies analyze and discuss the increased section 404 permitting requirements that
will result from the assertion of jurisdiction over "other waters" as well as additional tributaries and
wetlands compared to the pre-2015 regulatory regime as a result of the proposed rule's broader
interpretation of "significant nexus." One commenter stated that structuring the analysis around an
investigation of existing wetland areas fails to reflect the scope of the proposed rule, which they stated
would assert jurisdiction over areas not generally associated with a wetland designation.
A few commenters also stated that the agencies' approach to significant nexus analyses encompasses
broader interpretations of terms like "similarly situated," "in the region," and "relevant reach" which the
agencies can leverage to aggregate waters for jurisdictional determinations. These commenters stated that
due to the expanded jurisdiction relative to the pre-2015 regulatory regime, the agencies' primary baseline
approach and claim of de minimis impacts are deficient.
Agencies' Response: The agencies acknowledge the commenters who provided input on the
proposed rule's scope of jurisdiction as compared to the pre-2015 regulatory regime. The
agencies acknowledge that there are indirect costs—both monetary and temporal—
associated with implementation of the final rule. Indeed, there are indirect costs associated
with implementation of all prior rules defining "waters of the United States." As the final
rule is very similar in scope to that of pre-2015 practice, the agencies find that there will be
de minimis new indirect costs associated with the implementation of the final rule. While
analyses under the relatively permanent and significant nexus standards will be slightly
different under the final rule compared to pre-2015 practice, it is expected that those
differences will not have substantive effects to indirect monetary or temporal costs. For
example, it is expected that the number of tributaries, adjacent wetlands, and waters
assessed under paragraph (a)(5) that are found to be jurisdictional under the significant
nexus standard compared to pre-2015 practice will slightly increase under the final rule.
However, the overall proportion of resources that this would impact is likely small.
Therefore, the agencies conclude that there will not be significant costs associated with the
implementation of the significant nexus standard in the final rule. See Chapter I.B of the
Economic Analysis for the Final Rule for further details on the change in scope under the
final rule.
3 U.S. EPA & 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 (June 5, 2007)
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The agencies disagree with the commenter who stated that the Economic Analysis for the
Proposed Rule singularly focused on wetlands. The agencies also disagree with this
commenter's assertion that the rule would consider areas "not generally associated with a
wetland designation" as jurisdictional. See Section I.B of the Economic Analysis for the
Final Rule for more details on the change in scope of jurisdiction.
17.2.2 Secondary baseline
One commenter stated that the agencies must fully consider and socialize the implementation details of
the proposed rule. The commenter asserted that the proposal provided limited information about the scope
of the change from the 2020 NWPR and so the analysis of costs and benefits was unclear.
One commenter expressed concern about the use of the Cowardin codes in the Corps' ORM2 database to
identify permits that would have been required under the proposed rule but not under the 2020 NWPR,
stating that the codes do not align with the 2020 NWPR's jurisdictional categories and that the ORM2
records are categorized according to "aquatic resource types" based on the agencies' guidance from 2008.
The commenter stated that the database does not track information in terms of categories relevant to the
2020 NWPR's and proposed rule's jurisdictional extent, and the commenter urged the agencies to provide
a clear assessment of how many features will be brought under Clean Water Act jurisdiction. The
commenter also stated that the ORM2 data does not capture the entire universe of jurisdictional areas
under the Clean Water Act framework, since it includes only records for situations with section 404
permits, approved jurisdictional determinations, or wetland delineations, and it excludes preliminary
jurisdictional determinations which represent precisely the group of waters likely to become jurisdictional
under the proposed rule and account for a large number of acres. The commenter also stated that the
ORM2 database does not capture all aquatic resources on the subject parcel, but rather only those
impacted by the project directly being evaluated. The commenter stated that due to these deficiencies, the
economic analysis significantly understates the impacts of the proposed rule. The commenter also stated
that the agencies acknowledge uncertainty but do not present sensitivity analyses or adequate
characterization of the impact of uncertainties. This commenter also stated that the agencies' approach to
estimating the extent of waters that may be incrementally deemed jurisdictional (compared to the 2020
NWPR) is inadequate and systematically underestimates the impact of the proposed rule.
One commenter stated that the choice to focus on section 404 permitting activity over the course of one
year may introduce bias, stating that since the definition of "waters of the United States" has changed
several times over the past seven years, it is impossible to speculate if the year chosen had higher or lower
project costs and jurisdictional delays relative to other years.
One commenter argued that the 2020 NWPR should be the baseline for the economic analysis, which is
focused on a rulemaking with the avowed purpose of revising the 2020 NWPR. The commenter asserted
that even if the agencies do not defend the 2020 NWPR in litigation, the vacatur of the regulation by the
District Courts of Arizona and New Mexico is only binding between the limited number of parties in
those proceedings and is therefore not the status quo for the rest of the country.
Agencies' Response: The agencies acknowledge the commenter who stated that the scope of
jurisdiction under the proposed rule was not clear. The agencies sought comment on
alternative options for interpreting a variety of concepts in the proposed rule. As described
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in Final Rule Preamble Section IV.C, the agencies have considered public comments on the
proposed rule and provided clarity regarding how the agencies intend to implement the
final rule. See Section I.B of the Economic Analysis for the Final Rule for further details on
the corresponding change in scope under the final rule.
The agencies disagree with the commenter who criticized the use of the Cowardin
classification system and the ORM2 dataset for assessing the change in scope of jurisdiction
between the 2020 NWPR and the proposed rule. The agencies further disagree with
commenters who stated that the agencies' approach underestimated the impacts of the
proposed rule. The ORM2 dataset includes many variables regarding individual aquatic
resources that have been assessed for jurisdictional status and which have received permits,
including categories that are relevant to the 2020 NWPR. The ORM2 dataset generally does
capture all aquatic resources within determination review areas and/or within the footprint
of regulated activities, and it does include preliminary jurisdictional determinations. The
Cowardin classification within ORM2 has been statically used between the regulatory
regimes, regardless of how "waters of the United States" is defined, and therefore it is the
appropriate variable for comparing change in jurisdiction. By using the Cowardin codes,
the agencies were able to apply a consistent metric to the jurisdictional data under the 2020
NWPR and the Rapanos Guidance utilized under pre-2015 practice to derive differences in
probability of resources being jurisdictional. The results of the comparison demonstrate
meaningful differences between what is jurisdictional under the two regulatory regimes.
The agencies disagree with the commenter who stated that the agencies did not provide
sensitivity analyses or descriptions of the impact of uncertainties in the Economic Analysis
for the Proposed Rule; rather, the agencies provided descriptions of identified uncertainty
and sensitivity analyses where they were deemed appropriate. The Economic Analysis for
the Final Rule includes additional sensitivity analyses.
The agencies disagree with the commenter who stated that one year of data associated with
the 2020 NWPR is not appropriate for use in the secondary baseline analysis. As described
in the Economic Analysis for the Final Rule, the agencies acknowledge that there are
generally minor year-to-year differences in data based on external factors. However, the
agencies have no reason to assume that the 2020 NWPR data is not "normal" data.
The agencies disagree with the commenter who stated that the 2020 NWPR is the
appropriate primary baseline for the proposed rule. As described in the Preamble to the
Final Rule, following a federal district court decision vacating the 2020 NWPR on August
30, 2021, the agencies halted implementation of the 2020 NWPR and began interpreting
"waters of the United States" consistent with the pre-2015 regulatory regime. The pre-2015
regulatory regime is being implemented nationally. Though two courts have vacated the
2020 NWPR and the pre-2015 regulatory regime is currently being implemented, the
agencies have chosen to provide additional information to the public with the 2020 NWPR
as a secondary baseline in the Economic Analysis for the Final Rule. The findings of this
analysis for the secondary baseline of the 2020 NWPR conclude that within the ranges of
indirect costs and benefits considered, benefits consistently outweigh the costs. The analysis
is summarized in section V.A of the Preamble to the Final Rule.
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17.2.3 Other baselines
One commenter requested atable that compares the definitions among the pre-2015 regulatory regime;
the Rapanos Guidance; the 2020 NWPR; and the proposed rule.
One commenter stated that the economic analysis is fundamentally flawed because the chosen baseline
does not reasonably represent a normal level of permitting activity for the purposes of evaluating
economic impacts.
One commenter stated that the agencies have failed to consider and address an important aspect of the
rulemaking because the baseline should be the 1986 regulations without modification, which they stated
was codified in the 2019 Repeal Rule. The commenter stated that while district courts remanded and
vacated the 2020 NWPR, they did not vacate the 2019 Repeal Rule, and as such that should be the
baseline.
A commenter gave an example of the analysis in the 2015 Clean Water Rule, in which the agencies
randomly sampled jurisdictional determination files to evaluate the regulation's effects on streams and
other waters, thereby assessing effects under the other Clean Water Act programs. While acknowledging
that the 2020 NWPR was only in place for a short time, the commenter stated that such an analysis is still
possible (citing some available data on jurisdictional determinations under the 2020 NWPR) and would
enable a better assessment of benefits.
Another commenter stated that they support the machine learning and artificial intelligence approach
described in Appendix A.2 of the Economic Analysis for the Proposed Rule. The commenter stated that
they have been implementing an analysis similar to the approach described, using a model that combines
tabular and imagery data. The commenter stated that they are aiming to advance scholarship and provide
evidence that can be used to evaluate and plan decisions about Clean Water Act rulemaking actions.
Agencies' Response: In response to the request for a table that compares the definition of
"waters of the United States" among prior rules, see tables in Sections I.B.4 and I.B.5 in the
Economic Analysis for the Final Rule.
The agencies disagree with the commenter who stated that the baseline does not reasonably
represent a normal level of permitting activity for the purposes of evaluating economic
impacts. The data used represents section 404 permits issued under the Rapanos Guidance
and under the 2020 NWPR. Both the primary and secondary baselines rely on 10 years of
historical permit data to estimate the level of activity, which the agencies consider to be
more than sufficiently representative of normal permitting activity.
The agencies disagree with the commenter who stated that the 1986 regulations without
modification should be the primary baseline due to the 2019 Repeal Rule. The agencies
stated in the 2019 Repeal Rule that they would implement the definition "consistent with
Supreme Court decisions and longstanding practice, as informed by applicable agency
guidance documents, training, and experience"; ie., consistent with the pre-2015 regulatory
regime. 84 FR 56626 (October 22, 2019).
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The agencies acknowledge the commenter who recommended that the change in scope be
assessed via sampling prior jurisdictional determinations and carrying out desktop analyses
based on implementation of the final rule. The Economic Analysis for the Proposed Rule
provided the methodology and rationale for uncertainty tied to this methodology for such
an exercise in Appendix A, and the agencies sought comment on this approach. The
agencies have determined that such an exercise would inherently increase uncertainty in the
modeling and have continued to use the Cowardin methodology explained in Chapter III of
the Economic Analysis for the Final Rule.
The agencies acknowledge the commenter who provided input regarding machine learning
approaches. While the agencies cannot integrate non-peer reviewed external machine
learning models into the economic analysis, the agencies are interested in reviewing
published results from such endeavors.
17.3 Benefits
17.3.1 General benefits comments
Some commenters stated that clean water protections are essential to the economy. Many of these
commenters provided a general discussion on this topic, and some provided specific examples of the
ecosystem services relevant to flood mitigation, water filtration, pollutant retention/trapping, recreation,
small businesses, commercial fisheries, commercial recreation, tourism, fishing and hunting revenues, the
health of specific fisheries, agriculture, natural resource-based enterprises, harmful algal blooms, and
mitigation banking. Some commenters stated concerns with forgone benefits associated with the 2020
NWPR. In particular, a few commenters cited specific industry impacts due to degraded water quality
such as negative economic impacts on the outdoor recreation industry, including hunting, wildlife
viewing, and fishing; negative economic impacts on the agricultural industry; negative economic impacts
on the mitigation banking and environmental restoration industry; and negative economic impacts on
tourism due to harmful algal blooms in Florida. These commenters generally stated the importance of
such services, and in some cases how the 2020 NWPR could have negatively impacted such services.
A few commenters argued that loss of protection for wetlands under the 2020 NWPR had an economic
impact due to potential increase in flood damage. The commenters asserted that these wetlands provide
essential flood protection and filling them could lead to increased costs to communities from flooding.
Several commenters raised the issue of flooding, stating that the protection of upland wetlands and
ephemeral streams are needed to protect communities from devastating flood damages. One commenter
stated that the destruction or channelization of upland waterbodies that lessen flood peaks is a massive
imposition on the rights of downstream property owners, which the commenter noted counters arguments
that water protection regulations impose on owners of private property. The commenter stated that
flooding costs the United States public billions of dollars annually and noted the 2011 flooding of the
Mississippi cost more than $2 trillion alone. The commenter also gave an example of the 1993 flood of
the Mississippi which, citing studies, they stated was exacerbated by the loss of upland wetlands and
stream channelization. Another commenter also emphasized the flood control benefits of wetlands, stating
that the flooding damages from Hurricane Harvey were valued at $125 billion and citing several studies in
Houston and Florida that they say show a strong correlation between wetland losses and flood damages.
One commenter cited studies that estimate that wetlands provided $264 million in flood protection during
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Hurricane Sandy. A commenter stated that building homes on wetlands will lead to additional costs
elsewhere, since the homes will be located on flood zones, increasing the need for additional flood
insurance (at an average cost of $985 every year) and for unexpected flood repairs (at a cost of $3.75 to
$30 per square foot). The commenter stated that developers who are trying to avoid section 404
permitting costs are failing to consider the future costs homebuyers will face while living on reclaimed
wetlands. One commenter cited a study that stated that the most valuable wetlands for flood mitigation
are those slightly removed from the nearest stream or river (i.e., those not protected under the 2020
NWPR), and the loss of one hectare of wetlands costs society an average of $1,900 in flood damage per
year, and $8,000 per year in developed areas.
One commenter stated that waterbodies filter pollution and provide drinking water for over 117 million
Americans, and that they provide recreational opportunities for millions which powers an outdoor
recreation economy valued at over $689 billion.
One commenter cited a study that stated that more than 70 percent of small business owners believe that
clean water protections help spur economic growth, that only 6 percent say protections are too
burdensome, and that 67 percent believe that water pollution could hurt their business operations.
Some commenters provided illustrative and numeric examples of how clean water protections support the
outdoor recreation economy including fishing, hunting, boating, swimming, and other outdoor
enthusiasts; support businesses including resorts, restaurants, boat sales, and marinas; and the commercial
fishing industry. One commenter provided information and references supporting their assertion that the
commercial fisheries, recreational fisheries, and tourism industries are critical to the region's economy,
and that they are negatively impacted by lax water quality protections. The commenter provided an
example of harmful algal blooms that can lead to beach and fishery closures resulting in millions of
dollars of losses in tourism, seafood, and recreation industries as well as potentially devastating impacts
to wildlife. The commenter cited studies that Virginia, North Carolina, South Carolina, Georgia,
Alabama, and Tennessee have a combined 12,517 miles of shoreline, and that the region has the highest
freshwater biodiversity. One commenter asserted that the 2020 NWPR's impacts on national parks would
result in significant economic harm, arguing that some of the most visited parks are closely connected to
water and depend on water quality, while some are in arid regions where ephemeral streams play a
significant hydrological role. The commenter added that park visitors provide park funding and support
the local economy outside the parks.
One commenter stated that communities rely on industries such as commercial and recreational fishing,
coastal tourism, and seafood that cannot thrive without clean water. Another commenter stated that
revenues raised from issuance of Seneca Nation fishing and hunting licenses depend on quality of Seneca
waters, giving an example of Cattaraugus Creek which is known for its population of steelhead trout and
walleye which attract many fishermen to the areas. One commenter stated that healthy estuaries grow
more oysters, which in turn support greater numbers of fish that sustain tourism and commercial and
recreational fishers, expressing that this shows why strong clean water protections are crucial. One
commenter stated that, by harming wildlife and habitat, the 2020 NWPR threatened states' economic
interests, including income and jobs related to waterfowl and migratory bird hunting, bird watching,
fishing, and water-dependent recreation.
One commenter stated that mitigation banking, stream and wetland restoration, and other ecological
restoration activities under the Clean Water Act contribute to a healthy economy, estimating the impact at
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$25 billion and 220,000 jobs annually. The commenter also stated that the growing industry is key to
increasing the number of green jobs and responsible development opportunities critical to communities.
The commenter stated that the 2020 NWPR represented a rollback of Clean Water Act protections and
prevented the industry from fulfilling its role by drastically increasing the number of waters found to be
outside the protections of the Clean Water Act. The commenter stated that if fewer waters are found to be
jurisdictional then it would result in a decrease in demand for mitigation credits, which is a primary
source of income for the industry. The commenter also stated that the loss of protections and mitigation
requirements would disproportionally cause wetland damages, since more wetland acreage would be lost
to unpermitted development and no mitigation for the losses would be required. The commenter provided
theoretical and actual examples of this outcome. The commenter emphasized that this outcome would be
damaging to the industry, be in conflict with the Bush administration's "no net loss" goal, and place
communities at risk by eliminating protections against rain events and flooding accompanying climate
change.
Some commenters emphasized the importance of public works' provision of drinking water and
wastewater treatment and stated that a new "waters of the United States" regulation that protects source
waters will allow public works agencies to effectively balance environmental concerns with the need to
provide clean and affordable water to communities. One commenter talked about how public works are
often faced with choices between raising rates and potentially pricing members out of critical services or
stretching budgets and risking noncompliance. The commenter stated that reducing impairments of waters
can reduce costs for water providers and their ratepayers. One commenter argued that the 2020 NWPR
exposed more waterways to potentially increased discharges and therefore the costs for local drinking
water agencies and water providers to treat water could have increased, leading to potentially increased
costs for water customers.
Agencies' Response: The agencies appreciate the examples that commenters provided of
benefits of Clean Water Act protections as well as related numerical data and studies. Due
to the nature of benefit transfer models, such as the one used in the Economic Analysis for
the Final Rule, specific numbers referenced by commenters cannot be factored into the
model without the potential for double counting based on peer reviewed studies. However,
many of the benefits and ecosystem services referenced by commenters were included in the
Economic Analysis for the Final Rule, where appropriate. See Chapter III of the Economic
Analysis for the Final Rule for more information on the benefit transfer model used to
analyze the benefits of the final rule. Additionally, see Figure III-2 for a summary of
ecosystem services considered in the Economic Analysis for the Final Rule. The agencies
also note that monetized benefit estimates require the ability to identify when the benefits
occur, quantify the level of change, and place a defensible dollar value on those changes.
Given the myriad ways that the definition of "waters of the United States" can affect which
water features are protected from impacts from different human activities, some categories
of benefits are more appropriately addressed through qualitative discussion in the
Economic Analysis for the Final Rule.
17.3.2 Additional benefits categories
A commenter urged the agencies to consider the economic impact of flooding and stated that the
cumulative impacts of "other waters," including geographically isolated wetlands, are significant.
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A commenter stated that the proposed rule will likely have impacts to groundwater quality and recharge
which should be included in the economic analysis.
A commenter stated that the economic analysis should acknowledge and consider the cost savings
associated with runoff management functions provided by similarly situated but isolated wetlands. The
commenter stated that the proposed rule must recognize the erosion damages associated with altered
hydrology in many watersheds, and that wetland storage loss contributes to downstream infrastructure
damage. The commenter stated that they have been doing research on the benefits of healthy watershed
wetlands and floodplains related to building resilience and preventing flooding and infrastructure,
referring to a forthcoming case study. The commenter urged the agencies to examine the relationship
between upper watershed wetlands and fluvial erosion hazards to accurately document the costs/benefits
of inclusion of floodplain wetland and other categories of wetlands that are geographically isolated but
regionally abundant.
A few commenters urged the agencies to consider all available information in assessing the value of
strong Clean Water Act protections, citing additional research assessing the value of wetlands, streams,
and other waters. One commenter provided estimates of values provided by streams and wetlands for
ecosystem services including flood protection, water quality enhancement, and carbon sequestration,
which the commenter stated are effectively valued at zero in the agencies' analysis. The commenter cited
studies that estimate that wetlands loss has cost society $36,000 per hectare. The commenter also stated
that studies have shown that the interactions among streams, wetlands, and groundwater are complex and
that some of the greatest benefits of wetlands occur when they are near streams or rivers.
Agencies' Response: The agencies acknowledge that there are numerous potential
categories of benefits associated with changes in the definition of "waters of the United
States," including many of the categories mentioned by commentors. The agencies account
for many of the benefits mentioned by commenters through the estimates of household
willingness to pay for wetlands. See Figure III-2 in Section III.C.2.3 of the Economic
Analysis for the Final Rule. However, monetized benefit estimates require the ability to
identify when the benefits occur, quantify the level of change, and place a defensible dollar
value on those changes. Given the myriad ways that the definition of "waters of the United
States" can affect which water features are protected from impacts from different human
activities, some categories are more appropriately addressed through qualitative discussion
in the Economic Analysis for the Final Rule. See Section III.C.2.3 of the Economic Analysis
for the Final Rule for further discussion. There are also many costs associated with this
rulemaking that could not be captured due to a paucity of data associated with specific
Clean Water Act programs or with specific indirect costs. See Section III.C.2.2 of the
Economic Analysis for the Final Rule for additional discussion.
The agencies disagree with the commenter who stated that the agencies should specifically
assess benefits for "other waters" (referred to as "paragraph (a)(5) waters" in the final
rule). The final rule requires that waters assessed under paragraph (a)(5) meet either the
relatively permanent standard or the significant nexus standard to be jurisdictional.
However, the agencies do not expect that there will be a substantial change in the scope of
jurisdiction over these waters for either baseline considered. See Section I.B of the
Economic Analysis for the Final Rule.
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17.3.3
Number of wetlands and aquatic resource benefits studies
Some commenters expressed concerns about the contingent valuation approach used in the analysis. One
commenter asserted that the approach did not rely on a sufficiently large sample size, stating that 21
studies is not adequate to represent the impacts of a national regulation.
Agencies' response: The agencies disagree with the commenter who stated that the number
of studies in the contingent valuation was inadequate. There is no minimum number of
studies that is necessary to represent the impacts of a national regulation. Studies can vary
significantly by comprehensiveness and scope; likewise, the changes that they capture can
vary in terms of complexity and spatial heterogeneity. A more important factor than the
number of studies is the number of observations, as some studies can provide multiple
observations. In the Economic Analysis for the Final Rule, the total sample size of studies
and observations has been increased to 24 studies and 52 observations.
17.3.4 Willingness to pay studies
A few commenters stated that there is usually a gap between stated willingness to pay (WTP) and actual
willingness to pay, calling into question the accuracy and consistency of the contingent valuation results.
One commenter cited examples of the development of recreational areas that people frequently state are
"priceless" but fail to pay for. The commenter stated that at some point any effort requires funding which
is critically important but not matched to what people say they are willing to pay when they are asked in a
vacuum. One commenter provided an overview of the agencies' approach and stated that contingent
valuation is generally regarded as a second-best approach given the tendency of survey respondents to
provide inaccurate or inconsistent answers. The commenter stated that the agencies do not discuss the
shortcomings of the studies that form the basis of the benefit estimate or the resultant bias. One
commenter argued that WTP is a subjective analysis tool and stated that there are many different
approaches and that the concept is fraught with conflict and rife with lawsuits. One commenter stated that
rather than asking questions about abstract concepts that the public cannot understand or value, the
agencies should ask for input using questions that provide clear benefits or costs to the public such as
'Would you close the local baseball park your kids use that is located in a seasonal floodplain, in order to
obtain water that might be cleaner but might not be used?" The commenter stated that doing the analysis
using this type of question would bring more balance to the discussion since it is a more relatable
question.
Agencies' response: The agencies acknowledge commenters who expressed concern
regarding the general methodology of willingness to pay studies; however, many of these
comments were based on speculative assertions that are outside the scope of this
rulemaking. The agencies acknowledge the commenters who expressed concern regarding
the agencies' quality assurance of studies used in the meta-analysis. The studies that were
included in the meta-analysis were designed to estimate total household WTP. Total WTP
estimates include at least in part non-market values, which, by definition, means that
households do not have experience valuing monetarily and researchers do not have direct
transaction data to analyze. A lack of a market does not constitute a lack of value but does
increase the inherent uncertainty associated with the value estimates. The agencies carefully
reviewed the stated preference studies used in the meta-analysis to ensure that they are well
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designed, and the agencies have no reason to conclude that the respondents did not answer
as accurately and honestly as possible.
17.3.5 Selection of wetlands and aquatic resource benefits studies
Some commenters raised concerns about the selection of studies that the agencies included in the meta-
analysis for the benefits analysis. One commenter stated that the agencies should more clearly explain the
approach used to determine the selection criteria for the studies used in the benefits calculation, stating
that the agencies must provide well-reasoned explanations for all underlying assumptions, ideally with an
empirical basis, as well as the selection criteria for the studies used. The commenter stated that the
agencies have excluded some relevant studies without explanation, including recent analyses that would
be helpful in refining the benefit transfer analysis. The commenter urged the agencies to conduct another
literature review for relevant research prior to finalizing the proposed rule, and to explicitly explain why
certain studies were included in the meta-analysis and others were excluded.
One commenter stated that it was inappropriate to include two Canadian-based studies, given that
Canadian citizens likely have different preferences and constraints than American citizens. Another
commenter stated that the inclusion of the Canadian studies is an improvement to the meta-analysis,
helping to rectify the unreasonably low estimate for baseline acreage in each state in the economic
analysis of the 2020 NWPR.
Some commenters stated that the studies included in the meta-analysis are largely irrelevant and do not
provide accurate estimates of benefits for the types of wetlands likely to be incrementally protected under
the proposed rule. The commenters stated that most of the studies were conducted more than a decade
ago, and that the agencies have not adjusted for changes in recreational patterns and preferences for
ecosystem services overtime. One commenter additionally stated that some of the studies were not
published in peer-reviewed journals. The same commenter stated that there was a wide variation in the
per-household per-acre WTP estimated by the studies, which ranged from below $1 to $78. The
commenter urged the agencies to more fully and transparently describe the 19 studies and carefully
consider how relevant they are to the wetlands at issue. The commenter also stated that the analysis
assumes that the wetlands included in the studies from the meta-analysis have identical functions and
benefits as those that are relevant to the proposed rule, which they stated oversimplifies to the detriment
of accuracy. The commenter gave examples of some studies that estimate values for specific types of
wetland protections and stated that it is not clear that these studies are the appropriate point of comparison
for the wetlands protected by the proposed rule.
Agencies' response: The agencies acknowledge the commenters who requested further
explanation of how studies were selected. Additional clarifying language has been added in
the Economic Analysis for the Final Rule. The agencies also acknowledge the commenters
who recommended conducting an additional review of the literature. The agencies have
continued to review the literature and ultimately included additional studies in the
Economic Analysis for the Final Rule. The agencies have continued to use the same selection
criteria for inclusion of studies in the meta-analysis.4
4 Memorandum to Todd Doley and Steve Whitlock, U.S. EPA, Office of Water, entitled "Notes on inclusion of
source studies and data preparation for wetlands meta-data," (November 18, 2022; available in the docket for this
rule, Docket ID Number EPA-HQ-QW-2021-0602).
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The agencies disagree with the commenter who stated that it was inappropriate to include
Canadian studies in the meta-analysis. The Canadian studies cover wetlands and
households within close proximity to the United States and likely share many similarities.
The Canadian studies meet Office of Management and Budget (OMB) Circular A4
recommendations for compatibility.5 The inclusion of the Canadian wetland valuation
studies significantly improves the performance and reliability of the meta-regression model.
The agencies disagree with the commenter who stated that the studies used in the meta-
analysis are too old to be relevant for estimating benefits. The agencies are not aware of any
evidence that there have been systematic changes in household preferences for the services
provided by wetlands. The agencies disagree that the types of wetlands valued within the
studies in the meta-analysis are not representative of the types of wetlands potentially
affected by the rulemaking. The valuation estimates are for estimated changes in mitigation,
and this mitigation does not need to be on the same site as the permitted project nor does it
need to be for the same type of wetland. The U.S. Army Corps of Engineers bases mitigation
requirements on equivalent services provided by those wetlands that will be impacted.
The agencies acknowledge the commenter that stated that some of the studies used in the
meta-analysis are not peer reviewed. While this may be the case, all studies were screened
rigorously before inclusion in the underlying meta-analysis. The agencies acknowledge the
commenter who referenced the wide range in valuations present in the studies used within
the meta-analysis. These ranges in valuation reflect the nature of willingness to pay in
different geographic areas of the United States.
With respect to the citations and references commenters provided for consideration, the
agencies have responded to the substantive comments received in Sections 1-18 of the
agencies' response to comments, as well as in other locations in the administrative record
for this rule. In doing so, the agencies have responded to the commenters' reference or
citation as it was used to support the commenters' statements. The agencies have also
considered references that were provided to the agencies in response to their request for
additional literature relevant to the conclusions of the Science Report that had been
published since 2014 but that was not included in the agencies' analysis in the Proposed
Rule Technical Support Document (e.g., literature that was not cited in Appendix CI of the
Proposed Rule Technical Support Document). The agencies' response to such literature is
provided in the agencies' response to comments Section 16.2.2. In addition, the agencies
have reviewed reports, citations, and other documents provided by commenters and have
incorporated some of these references, as relevant and appropriate, into the final economic
analysis for the rule. The agencies note that some of the citations provided to them were
already cited in the Proposed Rule Economic Analysis.
5 U.S. Office of Management and Budget. (2003). Circular A-4: Regulatory Analysis. Retrieved from
https://www.whitehonse.gov/wp-content/nploads/legacv drupal fites/omb/eireiilars/A4/a~4.pdf
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17.3.6
Benefits transfer approach
One commenter urged the agencies to better characterize the significant uncertainties involved in the
benefits transfer models, which originate from the error bounds in the original studies as well as the
agencies' own analysis. The commenters stated that the range of benefits provided do not capture inherent
uncertainty in the modeling approach and urged the agencies to follow standard scientific practice in
reporting them.
Several commenters criticized the state-based approach to applying WTP values to households. A few
commenters stated that the assumptions that a) values would accrue to all households in the same state as
a given wetland acre and b) all households benefit equally regardless of distance are unjustified, illogical,
or unsupported and implausible given the types of wetlands involved.
Some commenters critical of the state-based approach asserted that it leads to an underestimate of the
benefits. Some commenters argued that this approach ignores benefits that do not fall neatly within state
boundaries, such as recreational, cultural heritage, resources for future generations, and existence values.
One commenter provided a figure showing the 2020 NWPR determinations to support their argument that
many projects near wetlands impact watersheds that flow downstream to neighboring states. Citing the
Department of Game and Fish, another commenter stated that a significant portion of wildlife viewing in
New Mexico is conducted by out-of-state recreationalists. One commenter cited research that they say
demonstrates that the ecological and recreational benefits constitute the bulk of overall benefits from
water protection and stated that these benefits may reflect a wider range than considered by the agencies.
The commenter stated that non-use values such as existence values do not depend on proximity to
covered areas. Also criticizing the state-based approach, some commenters stated that watershed
connections extend across state boundaries. One commenter gave an example of flooding mitigation
benefits that can accrue as far as 50 km away.
A few commenters stated that the radius-based approach is potentially an improvement over the primary
approach but expressed concern about its application. One commenter stated that the analysis would be
subject to arbitrary selection of radii. The commenter urged that a sensitivity analysis for this approach
should be presented more fully since it reflects the sensitivity of the results to a critical assumption. The
commenter also urged the agencies to undertake a complementary analysis to inform an appropriate
selection of radii. Another commenter stated that the radius-based approach, while an improvement over
the main analysis, still assumes that there are no benefits outside the boundary. The commenter argued
that incorporating non-use benefits outside the outer boundary would be an improvement. The commenter
also argued that, in the case of recreational values, people may travel to enjoy protected resources, so the
benefits would dissipate more slowly over wider distances than local use values. The commenter noted
that the agencies acknowledge the subjectivity of the radius lengths and argued that they should examine
the relevant economic literature to see how studies have defined local boundaries to attempt to establish
an empirical basis for the boundaries. The commenter stated that the 200-mile outer boundary overlooks
how ecosystem services may cover significant distances due to wetlands feeding into watersheds as well
as animal migration, citing the connectivity report6. The commenter stated that the agencies should run a
sensitivity analysis to assess whether each study's local variable interacts with other parameters such as
6 U.S. Environmental Protection Agency. 2015. Connectivity of Streams and Wetlands to Downstream Waters: A
Review and Synthesis of the Scientific Evidence (Final Report). EPA/600/R-14/475F. U.S. Environmental
Protection Agency, Washington, D.C. ("Science Report").
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total distance. The commenter also stated that the agencies should not assume that the appropriate
distance for the local variable will necessarily be the same in each state, given variations in size, total
population, density, and other differences. The commenter stated that a potential solution to the issues
they highlighted with the radius-based approach would be to estimate a continuous decay function to
extrapolate WTP values across space, which would ensure an empirical foundation for selection of
boundaries and estimated changes in benefits as distance increases. The commenter cited several literature
sources and urged the agencies to evaluate available literature to develop the best approach to the distance
decay function, which would also require re-estimation of the existing approach and additional sensitivity
analyses. Citing literature, the commenter (who was generally supportive of the radius-based approach)
also stated that it could be problematic for large states since the 200-mile outer boundary does not
encompass their land mass, which they stated could result in an underestimate of the proposed rule's
benefits in those areas. The commenter suggested re-running the analysis to determine if the size of the
state matters for households' WTP and adjust the analysis accordingly (ideally estimating a decay
function) and reviewing relevant literature to assess whether there is a more appropriate radius distance.
One commenter expressed concern about the regional nature of water valuation, stating that in some areas
of the country (like California), water is a critical resource in short supply whereas in others (like New
Orleans), it is a management concern that must be addressed to protect resources and infrastructure.
Agencies' response: The agencies acknowledge the commenters who expressed concerns
regarding the uncertainties within the original studies used in the meta-analysis. The public
can review the estimated error associated with each study by reviewing the cited studies
listed in Table B-l in Appendix B of the Economic Analysis for the Final Rule. The use of
meta-analysis does not necessarily compound these errors; in fact, deriving multiple
observations from independent studies is a method to reduce the influence of the errors
from any one study.
The agencies agree with many of the concerns expressed by commenters regarding the
state-based benefit transfer approach. For the main benefit estimates used for the Economic
Analysis for the Final Rule, the agencies used a radius-based rather than a state-based
approach, although results from use of the state-based approach can be found in Appendix
D of the Economic Analysis. Appendix D of the Economic Analysis presents the results of
numerous runs using different versions of the meta-regression model and variable settings.
The meta-analysis has regional variables to help account for geographic differences in
wetland services and household preferences.
The agencies acknowledge the commenter who recommended incorporating a decay
function as part of the radius-based approach. The agencies address the concept that WTP
may decline or decay as distance increases by utilizing the "local" variable. This variable is
estimated to address the issue that some households may have a higher WTP for wetlands
within a distance shorter (in this case 30 miles) than the full radius. In addition, the agencies
performed a sensitivity analysis associated with the distance for the full radius to recognize
that households may have WTP for non-local wetlands farther than the local 30-mile
radius. However, the agencies did not include a continuous decay function in the analysis.
The agencies also acknowledge commenters who expressed concern regarding how the
agencies would select radii in a defensible way. The agencies detail the methodology for
selecting the radii in Section III.C of the Economic Analysis for the Final Rule.
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17.4 Costs
17.4.1 General costs comments
Some commenters made general statements about the costs, benefits, or impacts of the proposed rule,
including: that a large and diverse portion of the regulated community would be affected by the proposed
rule; that they were concerned about an increase in resource needs by the regulated community and by
state and/or federal agencies; that the proposed rule would lead to many increases in costs and delays on
critical transportation improvement projects while offering no tangible environmental benefits in return;
that the proposed rule would lead to costly, bureaucratic interactions with federal regulators or civil or
criminal penalties; and that a lack of clarity combined with punitive penalties would result in delays and
costs due to uncertainty and inconsistent application. Many commenters from the regulated community
stated that complex or burdensome regulations will hinder economic growth, job creation, or businesses
in the United States.
Several commenters wrote about site-specific examples of past jurisdictional determinations, mitigation
requirements or discharge management requirements which they found to be expensive, time consuming,
and/or labor intensive, and/or their interpretations of what would or would not be jurisdictional at a site-
specific scale under the proposed rule, with associated cost estimates. Features mentioned included vernal
pools, isolated wetlands, manmade lakes, ditches, ephemeral and intermittent streams, and jurisdictional
wetlands.
Agencies' response: The agencies disagree with commenters that this rule will lead to a
substantial increase in direct and indirect costs to the public and/or private sectors. In this
action, the agencies are finalizing a definition of "waters of the United States" that is within
the agencies' authority under the Act; that advances the objective of the Clean Water Act;
that establishes limitations that are consistent with the statutory text, supported by the
scientific record, and informed by relevant Supreme Court decisions; and that is both
familiar and implementable. See Final Rule Preamble Section IV.A. The agencies disagree
that the final rule generally represents an expansion beyond the pre-2015 regulatory
regime; rather, the agencies expect that there will be a slight and unquantifiable increase in
waters being found to be jurisdictional under the final rule in comparison to the pre-2015
regulatory regime. Indeed, as discussed in Section V.A of the Preamble to the Final Rule,
this rule will establish a regime that is generally comparable to current practice and will
generate de minimis costs and benefits as compared to the pre-2015 regulatory regime that
the agencies are currently implementing. See Section 17.3 of this document for further
discussion of benefits.
Comments regarding the jurisdictional status of any specific water are outside the scope of
this rulemaking, including comments on determinations, permitting, and management of
any specific waters. The agencies will assess jurisdiction under the final rule on a case-
specific basis.
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17.4.2
Permit costs
One commenter noted that the range of permit costs in the proposed rule were based on the range of per-
permit costs only, with no accounting for uncertainties around the additional acreage brought under Clean
Water Act jurisdiction by the proposed rule.
Some commenters stated that the distinction between individual and general permits is important for the
purpose of evaluating costs and claimed the economic analysis ignores any potential changes to the
distribution of individual and general permits. The commenters stated that the proposed rule may result in
some projects needing individual permits that would have previously been eligible for general permits,
which they stated is ignored in the economic analysis. A few commenters stated that the economic
analysis also ignores the heterogeneity in impacted acreage between individual and general permits,
instead calculating an average for each type of permit that provides a single estimate of project size.
Some commenters were critical of the permit costs used by the agencies. A few commenters stated that
the costs used are outdated. A few commenters stated that the cost estimates used are over 20 years old
and not adjusted for changes in the permit system. The commenter stated that given the time period of the
analysis, this assumes no real change in permitting costs over more than four decades. The commenter
also stated that the use of the Consumer Price Index (CPI) for urban consumers to adjust costs is not
representative. Some commenters stated that the per-permit costs used were too low.
Some commenters provided estimates of permitting costs, with a few quoting studies (with one citing a
2002 study by Sunding and Zilberman and the other a "Review of the Agencies' 2021 Economic
Analysis" by Brattle) that estimated costs of $3,100 to $217,600 for general permits and $10,900 to
$2,376,800 for individual permits.
One commenter referred to the Rapanos v. United States, 547 U.S. 715 (2006) ("Rapanos ")7 decision,
which they stated referenced estimated individual permit costs of $271,596 and 788 days and general
permit costs of $28,915 and 313 days; the commenter stated that these costs have undoubtedly increased
significantly since then. The commenter stated that the cost of a nationwide permit could be the annual
profit for a given operation and argued that the long process places farmers and ranchers in the position of
either violating the Clean Water Act or allowing their structures to continue to deteriorate or become
destroyed.
Agencies' Response: The agencies acknowledge commenters who provided information
regarding permit costs. As discussed in Final Rule Preamble Section V.A, the final rule will
establish a regime that is generally comparable to current practice, and this rule will
generate de minimis costs and benefits as compared to the pre-2015 regulatory regime that
the agencies are currently implementing.
The agencies disagree with the commenter who stated that the agencies did not consider
uncertainties relating to new acreage brought under jurisdiction by the final rule. The
forecasting of future permits in the economic analysis is tied to jurisdictional determination
data within ORM2. See additional discussion in Section III.C in the Economic Analysis for
the Final Rule.
7 Rapanos v. United States, 547 U.S. 715 (2006) ("Rapanos")
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The agencies acknowledge commenters who expressed concerns regarding the age of the
study that is the basis for permit costs in the economic analysis. However, this is the most up
to date study carried out by the Corps to assess permit costs associated with the section 404
program.
Changes in the proportion of individual and general permits are outside the scope of the
economic analysis, as such speculative forecasting would not adhere to EPA's Guidelines for
Preparing Economic Analyses.
In addition, in response to information from public commenters, the agencies developed an
alternative cost estimate based on unit permit costs from the Sunding and Zilberman (2002)
article8 noted in public comment. This alternative cost analysis can be found in Appendix H
of the Economic Analysis for the Final Rule.
The agencies acknowledge commenters who referenced the permit costs cited in Rapanos;
these costs are reflected in the Sunding and Zilberman (2002) article mentioned above.
17.4.3 Mitigation costs
Some commenters were critical of the mitigation costs used by the agencies in the economic analysis. A
few commenters stated that they have the same concerns over the unit cost estimates as they have over
permitting costs, relating to relevance and inflation, since they are drawn from the same 2000 study. The
commenters also stated that the process for generating the cost estimates was not transparent or
adequately supported.
One commenter stated that many conservation practices are constructed within "waters of the United
States" to serve their purpose of reducing erosion and nutrient loss and providing clean water but stated
that they often incur significant additional costs due to mitigation requirements.
Some commenters provided mitigation cost estimates, with one commenter stating that mitigation costs
can amount to thousands of dollars per linear foot. Another commenter provided mitigation cost estimates
based on the wetlands constructed via the Conservation Reserve Enhancement Program, under which
typical projects require 6,000 to 11,000 credits at a cost of up to $200 per credit, yielding costs of $1.2 to
$2.2 million per project, which the commenter stated overwhelms the cost of $60,000 to $280,000 for
engineering, construction, and easements for a wetland. The commenter stated that the proposed rule's
expansion of Clean Water Act jurisdiction will result in an inability to justify or afford effective wetland
restorations due to exorbitant mitigation costs, disincentivizing soil and water conservation efforts. One
commenter stated that vernal pool mitigation credits in California generally cost more than $100,000,
providing charts showing credit prices and trends. One commenter stated that they were concerned about
the lack of discussion on impacts to mitigation banking availability.
Agencies' Response: The agencies acknowledge commenters who expressed concerns
regarding the age of the study that is the basis for mitigation costs in the economic analysis.
8 Sunding, D., & Zilberman, D. (2002). The economics of environmental regulation by licensing: An assessment of
recent changes to the wetland permitting process. Natural Resources Journal, 59-90.
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However, this is the most recent study carried out by the Corps to assess permit costs
associated with the section 404 program. Commenters did not suggest alternative analyses
the agencies should use to assess section 404 permit costs.
The agencies acknowledge the commenter who expressed concern regarding conservation
projects being required to do mitigation due to impacts of "waters of the United States"
occuring during restoration and conservation activities. In this rule, the agencies are
exercising their authority to interpret "waters of the United States" to mean the waters
defined by the familiar 1986 regulations, with amendments to reflect the agencies'
construction of limitations on the scope of the "waters of the United States" informed by the
text of the relevant provisions of the Clean Water Act and the statute as a whole, the
scientific record, relevant Supreme Court precedent, and the agencies' experience and
technical expertise after more than 45 years of implementing the longstanding pre-2015
regulations defining "waters of the United States." Comments about statutory or regulatory
activity-based exemptions for discharges into "waters of the United States" associated with
certain activities are beyond the scope of this rulemaking.
The agencies acknowledge the commenter who stated the methodology for assessing costs
was not adequately supported. The agencies have added additional language describing the
methodology for generating costs.
The agencies disagree with commenters who stated that mitigation credit supply and
general mitigation costs will go up as a result of this rulemaking. As discussed in Final Rule
Preamble Section V.A, the final rule will establish a regime that is generally comparable to
current practice, and this rule will generate de minimis costs and benefits as compared to
the pre-2015 regulatory regime that the agencies are currently implementing. With respect
to specific features mentioned by commenters, determinations regarding the jurisdictional
status of any specific water are outside the scope of this rulemaking.
17.4.4 Costs associated with regulatory uncertainty
Some commenters emphasized the importance of regulatory clarity, predictability, and/or certainty as to
the scope of federal regulation, and some emphasized that this was particularly important given that
failure to comply can render entities vulnerable to citizen lawsuits. Some commenters stated that clarity is
important for regulated industries that must obtain section 404 permits, some of which lack resources to
decipher and navigate complex regulatory regimes and cannot pass associated costs through to their
consumers. Some commenters stated that under the proposed rule, increased compliance costs will not be
balanced with increased clarity or guidance on implementation.
Commenters from a variety of economic sectors had similar concerns that added regulatory burdens and
uncertainty in permitting would hinder economic growth. Many commenters from the regulated
community stated that the proposed rule may negatively impact planning and completion of development,
improvement, or resilience-based projects. Some commenters noted that the costs associated with this
impact would be in the form of direct increases in costs of overall site development, indirect costs
associated with the availability of mined or precursor materials for production of goods, and timing and
predictability for current and future market demands—all of which could in turn impact consumer prices,
and overall safety, reliability, and environmental integrity of projects. One commenter stated that the
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scope of the Clean Water Act has impacts on where they are allowed to access a natural resource, how
long it takes to permit a new site or expand an existing facility, the costs of planning and site
development, and the life of an operation. One commenter in the aggregate industry of Southwestern
Idaho noted that the cumulative loss for that sector in that specific region could be in the tens of millions
of dollars.
Several commenters stated that the proposed rule will increase the costs for and decrease the availability
of mined or precursor materials needed for their goods. One commenter stated that in some cases reserves
of mined or precursor materials may become economically unviable, causing the need for materials to be
hauled from further away, increasing carbon emissions.
One commenter stated that the proposed rule should be crafted to permit capital-intensive industries to
make investments and planning decisions without having to revise plans and reallocate funds to
accommodate a fluctuating rule.
One commenter stated that as a result of this rule, taxpayers will see a cost increase for infrastructure
improvements which one commenter stated will make the U.S. less competitive with other nations.
Several commenters made general statements that the proposed rule would increase costs or burdens for
farmers and make it more difficult to improve farmland productivity. Some of these commenters
mentioned the impact of unclear regulatory definitions that depend on case-by-case analyses and overly
expansive definitions. Examples of agricultural costs which they stated would increase as a result of the
rule included: normal grazing, manure applications, and additional permitting for containment areas.
Commenters also mentioned that agricultural development on certain features, such as prairie potholes,
and general land stewardship on other features, such as uplands and ephemeral areas, would no longer be
financially feasible. One commenter from a state Attorney General's office asserted that the tens of
thousands of dollars in additional permitting costs to conduct regular farming and ranching activities is
well beyond the means of most family or small business farming and ranching owners. The commenter
stated that waiting for permits to conduct normal activities on agricultural lands would make production
of food in that state significantly more costly.
Several commenters referenced costs associated with application of manure, fertilizer, and/or pesticides
and the monitoring and management of waters for invasive species and algal blooms due to what they
perceive to be an ambiguous rulemaking which will require interpretation.
A commenter stated that the proposed rule's "ad-hoc" approach will result in landowners not knowing
whether features on their private properties are subject to Clean Water Act jurisdiction until a federal
agent uses the "highly subjective" significant nexus standard, asserting that this will have a chilling effect
on the economic development of private property.
Agencies' Response: The agencies disagree with commenters who asserted that there will be
a substantial increase in costs due to ambiguity, instability, and/or uncertainty in relation to
this rulemaking. In this action, the agencies are finalizing a definition of "waters of the
United States" that is within the agencies' authority under the Act; that advances the
objective of the Clean Water Act; that establishes limitations that are consistent with the
statutory text, supported by the scientific record, and informed by relevant Supreme Court
decisions; and that is both familiar and implementable. See Final Rule Preamble Section
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IV.A. The agencies disagree that the final rule generally represents an expansion beyond the
pre-2015 regulatory regime; rather, the agencies expect that there will be a slight and
unquantifiable increase in waters being found to be jurisdictional under the final rule in
comparison to the pre-2015 regulatory regime. Indeed, as discussed in Section V.A of the
Preamble to the Final Rule, this rule will establish a regime that is generally comparable to
current practice and will generate de minimis costs and benefits as compared to the pre-
2015 regulatory regime that the agencies are currently implementing.
The agencies recognize the importance of clarity for members of the regulated community.
The agencies understand that landowners would like to be able to easily discern
whether their property contains any "waters of the United States" such that they
may need to apply for a relevant Clean Water Act permit. With this rule, the
agencies strive to provide additional clarity for the public. To that end, the rule
clearly excludes some waters from Clean Water Act jurisdiction, thereby narrowing
the category of waters that require additional jurisdictional analysis. The rule also
clearly identifies some categories of waters as jurisdictional by rule without the need
for further analysis. For the small percentage of waters that are not categorically
excluded from, or included in, Clean Water Act jurisdiction, and which do not meet
the relatively permanent standard, the agencies have established a new regulatory
provision defining the meaning of "significantly affect" to guide implementation of
the significant nexus standard. This provision provides the public with a clearer
picture of the functions the agencies will assess and the factors the agencies will
consider in determining whether waters being analyzed "significantly affect"
have a material influence on) the integrity of traditional navigable waters, the
territorial seas, or interstate waters and therefore meet the rule's definition of
"waters of the United States." Finally, recognizing the concerns of landowners, the
preamble to the final rule in Section IV.C.10 provides individual landowners with
the step-by-step information needed to make informed decisions.
17.4.5 Costs associated with permitting changes
Several commenters from various economic sectors expressed concern regarding what they perceive to be
an expansion of the definition of "waters of the United States." These commenters specifically expressed
concern about the costs for site development (including permitting and mitigation costs) and management
(including discharge management costs). A commenter expressed concern that an expanded scope of
jurisdiction would lead to more stringent discharge restrictions and restrictions on the ability to use and
maintain features on project sites. Some commenters also expressed concern about the scope of
jurisdiction for features like ephemeral streams, ditches, stormwater management systems, and cooling
ponds. One commenter stated that many state waters that have been adequately monitored, regulated, and
protected for years would become federalized, imposing additional costs on public and private land use
and natural resource management activities.
One commenter stated that a $1,000 increase in the cost of a new home removes over 500,000 buyers
from the market and that making more waters subject to regulations and permitting procedures will make
homes more expensive and exclude families from homeownership. On the other hand, another commenter
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argued that any cost savings from less permitting under a "waters of the United States" definition with a
narrower scope of jurisdiction would not provide economic relief to homebuyers. The commenter stated
that under the lifespan of the 2020 NWPR, the average home price rose by $94,000, and the average
profit margin for residential home builders increased by 1.4 percent and is projected to continue to rise.
The commenter stated that there is no evidence to support an assumption that home developers would
pass any savings from deregulation on to buyers, and argued that those opposing the expansion of the
"waters of the United States" definition are seeking to increase their profits at the expense of the
environment.
One commenter stated that if some or all ephemeral and intermittent features are subject to Clean Water
Act jurisdictions, forest owners would need to expand implementation of state-approved best
management practices, likely by establishing expanded riparian management zones. The commenter
stated that this would remove acreage from forest management, cause significant hardship for forest
owners, and increase fiber costs.
One commenter stated that the proposed rule would expand the scope of waters covered under the Clean
Water Act, and that this would impose higher costs on convenience stores through additional permitting
and regulatory requirements. The commenter emphasized the impact to fuel retailers, who they stated will
need to expend resources to determine whether their activities are covered by the proposed rule; pay for
the development of relevant plans, protections, permits, and other obligations; absorb or pass along to
consumers the costs of the lengthy permitting process; and be subject to increased litigation risks. The
commenter stated that these costs would discourage retailers from investing in new sites and services,
reduce economic activity, and undermine the Biden Administration's and Congress's stated goals.
A commenter stated that the proposed rule would hinder activities conducted in connection with
ephemeral and intermittent washes and tributaries by increasing the cost and uncertainty of compliance,
thereby stifling the development of innovative approaches that generate environmentally beneficial
outcomes. This commenter also stated that they do not believe the agencies will be able to acquire the
expansive budget necessary to fund sufficient staff to perform the work called for by the proposed rule.
Several commenters stated that the proposed rule would result in increased permitting and/or mitigation
costs due to expanded coverage of waterbodies relative to the pre-2015 regulatory regime, with one
commenter stating that it will "sweep in marginal aquatic areas" and lead to increased regulation of
remote and ephemeral areas.
One commenter stated that increased administrative burdens could require a significant commitment of
tribal resources, citing the economic analysis of the 2015 Clean Water Rule where they stated the
agencies acknowledged the increased volume of permit applications, water quality certifications, and
other administrative requirements.
Some commenters expressed concern about permitting delays under the proposed rule, with one stating
that jurisdictional determinations can take between six months and a year to receive, and that the cost of
these delays is compounded by the cost of consultants, engineers, permit applications, and mitigation and
compliance costs. The commenter stated that such delays lead to a decrease in land value of $500 per acre
or more. Another commenter expressed concern about the time and expense required to complete an
approved jurisdictional determination and/or receive permitting authorizations, stating that the proposed
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rule would increase costs to comply with the Clean Water Act without providing clarity and guidance for
implementation.
Some commenters expressed concern about permit costs for pesticide applications, stating that it would
create additional burdens for small businesses and cause communities and governments to lose access to
pesticide applicators. Some commenters stated that the proposed rule would expand the areas needing
National Pollutant Discharge Elimination System (NPDES) permits, which would ultimately be costly to
citizens and communities. One commenter stated that the timing of treatments for the management of
invasive species, harmful algal blooms, and mosquitos is critical and that the need for permit acquisitions
would clearly affect the ability of managers to timely respond. One commenter stated that the proposed
rule would lengthen the process for professional applicators to treat areas at high risk for mosquito
transmitted diseases (e.g., West Nile and Zika), creating a concern for public health and safety.
One commenter stated that the agencies cannot expect to have the states' support by downplaying the
proposed rule's inevitable burden and failing to accurately frame the increased costs.
Several commenters argued that the 2020 NWPR had positive economic impacts, such as reducing
permitting costs, financial burdens, and potential fines for Clean Water Act violations, as well as
providing regulatory predictability that promoted efficiency. A few commenters argued that the 2020
NWPR helped the economy and promoted economic growth by accelerating and promoting the
construction of important energy infrastructure, reducing agricultural costs, and fostering future business
opportunities. Another commenter argued that the 2020 NWPR's clarity and consistency was beneficial
for small businesses that have fewer resources to help them understand and comply with regulations.
Referencing the impact of the 2015 Clean Water Rule, one commenter expressed concern about impacts
to investments in infrastructure projects on reservation land from increased cost, timing, and complexity
of permitting, including section 404 permits. The commenter stated that a tribal infrastructure project
requiring a section 404 permit from the Corps would also require a section 401 water quality certification
from the EPA, causing unnecessary delays and costs, and detracting from the Tribe's ability to provide
services to members.
Agencies' Response: The agencies disagree with commenters who stated that there will be
an increase in costs due to additional or changed permitting associated with this
rulemaking. In this action, the agencies are finalizing a definition of "waters of the United
States" that is within the agencies' authority under the Act; that advances the objective of
the Clean Water Act; that establishes limitations that are consistent with the statutory text,
supported by the scientific record, and informed by relevant Supreme Court decisions; and
that is both familiar and implementable. See Final Rule Preamble Section IV.A. The
agencies disagree that the final rule generally represents an expansion beyond the pre-2015
regulatory regime; rather, the agencies expect that there will be a slight and unquantifiable
increase in waters being found to be jurisdictional under the final rule in comparison to the
pre-2015 regulatory regime. Indeed, as discussed in Section V.A of the Preamble to the
Final Rule, this rule will establish a regime that is generally comparable to current practice
and will generate de minimis costs and benefits as compared to the pre-2015 regulatory
regime that the agencies are currently implementing. Furthermore, as discussed in the Final
Rule Preamble Section IV.A.4, the agencies are establishing a final rule that is both familiar
and implementable.
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The agencies do not agree that the rule is likely to have significant economic impacts, even
as compared to the secondary baseline of the 2020 NWPR. While there are approximately
50,000 permitted projects annually, the forecasted number of additional permits annually
due to the rule compared to the secondary baseline is estimated to be only 7,902 permits.
These additional permits are expected to be widely distributed among sectors, muting the
effects in any one sector. The agencies do not consider this to create a significant increase in
the overall permitting burden as compared to the secondary baseline. The agencies
anticipate that permitting levels after this rule is finalized will be comparable to permitting
levels from before the 2020 NWPR was finalized. As such, the final rule is highly unlikely to
have any noticeable impact on overall economic activity.
17.4.6 Costs associated with Clean Water Act programs other than the section 404 program
Some commenters provided input on costs to states to implement Clean Water Act programs under the
revised definition of "waters of the United States," stating that the proposed rule will increase
implementation costs under sections 303, 401, and 402. The commenters urged the agencies to estimate
the associated implementation costs to states. A commenter argued that "[t]he Proposed Rule will impose
a commensurate increase in unwarranted federal compliance requirements under multiple CWA
programs. This action will create a significant increase in costs associated with compliance obligations
under all CWA programs that rely on the definition of "waters of the United States."61 One commenter
stated that "[t]he Agencies must consider the practical impacts of the Proposed Rule on each of the major
CWA programs."
A commenter stated that benefits will accrue under section 303(c) water quality standards, section 311 oil
spill prevention, section 401 water quality certification, and section 402 NPDES, urging the agencies to
expand their assessment of benefits beyond the section 404 program to the extent possible and citing
OMB s Circular A-4.
A commenter stated that the agencies discuss substantial uncertainties around non-section 404 program
costs (including section 303(c) water quality standards, section 311 oil spill prevention, section 401 water
quality certification, and section 402 NPDES permitting), conduct only a cursory and qualitative
assessment, and inappropriately conclude that impacts are likely to be minimal. The commenter stated
that given the importance of jurisdictional scope to many sectors, the economic analysis should rely on
more than conjecture and assumptions to evaluate these costs.
A commenter urged the agencies to undertake a more detailed and comprehensive analysis on how the
changing jurisdiction will directly and indirectly affect all Clean Water Act programs. Some commenters
stated that the analysis significantly underestimates potential costs and urged the agencies to work with
stakeholders to compile up-to-date cost and benefit data for all Clean Water Act programs.
A commenter stated that the agencies acknowledged that states may incur some costs for increased
numbers of section 401 certifications under the proposed rule, but that they ignore the costs to permittees
to obtain the certification and the costs of associated delays.
One commenter stated that costs to states likely represent an unfunded mandate to states. The commenter
urged the agencies to assess the costs to states, tribes, and permittees as fully as possible. The commenter
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stated that the economic analysis for the 2014 proposed Clean Water Rule did account for increased costs
to administer the 401 program and stated that there may be a significant increase in 401 certifications
under the proposed rule due to the increase in jurisdictional waters when moving from the 2020 NWPRto
the pre-2015 regulatory regime.
A commenter was critical of the agencies' approach to potential costs under the section 402 National
Pollutant Discharge Elimination System permit program. The commenter stated that the agencies'
assumption that changes in costs and benefits under this program would be minor is inconsistent with
their assertion that the 2020 NWPR significantly reduced Clean Water Act protections, including under
section 402. The commenter noted that the agencies did acknowledge multiple sources of uncertainty
around section 402 costs, including which entities would be affected, the implementation of the waste
treatment exclusion, the jurisdictional status of lagoons and ponds constructed to comply with other
environmental statutes, and permittee responses to changes in requirements.
A commenter stated that the proposed rule will increase the number of waters to be assessed and for
which total maximum daily loads (TMDLs) will need to be developed, which the commenter stated may
entail significant costs for states and regulated entities. The commenter criticized the agencies' statement
that they are unaware of TMDL revisions that resulted from the promulgation of the 2020 NWPR, stating
that the long-term implications of a change in the definition of "waters of the United States" cannot be
extrapolated from a single year of observations. The commenter stated that the agencies' claim that the
development of water quality standards and TMDLs are independent of the definition of "waters of the
United States" (since states and tribes can apply standards to waters that are not federally jurisdictional) is
inconsistent with the proposed rule's statement that the significant reductions in protections under the
2020 NWPR "have had real world consequences."
Commenters stated that additional tributaries being jurisdictional and being listed as impaired will require
the following: the development of a use attainability study; the identification of designated beneficial
uses; the adoption of site-specific water quality objectives; the application of and compliance with
numeric effluent limits; and the potential for a TMDL allocation.
A commenter expressed concern with the potential increased regulatory burdens under section 303 of the
Clean Water Act, stemming from expanded jurisdiction due to the proposal's approach to significant
nexus and "other waters."
A commenter stated that the expansion of jurisdictional waters under the proposed rule will result in a
significant increase in the number of entities that could "reasonably be expected" to discharge oil to
jurisdictional waters, meaning that they will be required to develop and implement an Spill Prevention,
Control, and Countermeasures (SPCC) Plan and Facility Response Plan, install secondary containment,
implement testing and spill response programs, and ensure compliance with all rule provisions. The
commenter also stated that regulatory compliance subject to Clean Water Act strict liability provisions
may entail costs not associated with voluntary measures.
A commenter was concerned with the approach to analyzing types of broad economic impacts, project-
specific economic impacts, and/or impacts specific to a Clean Water Act permit type on current SPCC
plans, stating that the proposed rule would greatly expand planning, compliance, and cleanup costs.
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Agencies' Response: The agencies disagree with commenters who stated that impacts of this
rulemaking on Clean Water Act programs would lead to increased costs and burdens. As
discussed in Section V.A of the Preamble to the Final Rule, this rule will establish a regime
that is generally comparable to current practice, and the rule will generate de minimis costs
and benefits as compared to the pre-2015 regulatory regime that the agencies are currently
implementing. For differences between the pre-2015 regulatory regime and the final rule,
see Section VI.C of the Preamble to the Final Rule and Section 3.1 of the agencies' Response
to Comments. The agencies further disagree with commenters who stated that the
Economic Analysis for the Proposed Rule should have better quantified effects on Clean
Water Act programs other than the section 404 program. The agencies' ability to quantify
such effects is bound by the availability of national scale data. These programs do not have
data at a national scale that could be used for assessing changes based on the final rule. As a
part of this rulemaking, the agencies have tried to assess if there were any known impacts to
these programs that occurred regionally under the 2020 NWPR in comparison to the 2019
Rule and no known impacts could be identified. The lack of available national scale data
stems in part from the nature of cooperative federalism; states and tribes manage data
associated with their own Clean Water Act programs and are not required to report such
data to the agencies. However, the agencies also note that there is often a lack of data even
at the state or tribal scale. As such, the agencies have appropriately included a qualitative
discussion of effects on other Clean Water Act programs in the Economic Analysis for the
Final Rule.
This action does not contain any unfunded mandate as described in the Unfunded Mandates
Reform Act, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small
governments. The final definition of "waters of the United States" applies broadly to Clean
Water Act programs. The action imposes no enforceable duty on any state, local, or tribal
governments, or the private sector.
The agencies disagree with characterizations of the proposed rule as claiming that the
development of water quality standards and TMDLs are independent of the definition of
"waters of the United States." The Economic Analysis notes that, absent the application of
the Clean Water Act to waters that would return to being jurisdictional under the final
rule, states and tribes can still choose to impose similar state or tribal law requirements on
these waters irrespective of federal mandates. However, the agencies also noted that
changes in Clean Water Act jurisdiction could lead to requests for changes in TMDL waste
load allocations for point sources and load allocations for nonpoint sources. The agencies
also noted that the development and revision of statewide or tribal water quality standards
is typically an ongoing process, so changes that the 2020 NWPR could have precipitated
might not have appeared during the year that it was in effect. See Final Rule Preamble
Section IV.B.3.d and the agencies' response to comments on the 2020 NWPR in Section 4
for additional discussion on the negative impacts of the 2020 NWPR.
17.4.7 Additional cost categories
Some commenters expressed concerns regarding specific types of additional costs, including avoidance
and minimization costs, general indirect costs, criminal enforcement costs, and significant nexus costs.
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Some commenters stated that the agencies do not attempt to quantify costs associated with avoidance
measures (i.e., selection of the least-damaging project type, location, and extent compatible with the
purpose of the project, and analysis of appropriate and practicable alternatives to minimize the impact
footprint) and minimization measures (/. e., incorporation of appropriate and practicable design and risk
avoidance measures) that will be undertaken by permittees. The commenter stated that such costs are
likely to be significant and could dwarf other permitting costs. The commenter also stated that the
agencies are obliged to estimate their extent. Another commenter similarly stated that there would be a
"chilling effect on productive activity" and that farmers have had to avoid any activity on certain areas
out of fear that they may accidentally disturb a feature that could be considered a "water of the United
States." They gave an example of a farmer who reported that under the 2015 Clean Water Rule, he would
have had to create a 15-foot buffer around drainage ditches to avoid runoff of pesticides or fertilizers,
accounting for five percent of the field. The commenter stated that this would result in a loss of revenue
of approximately $1,400 per acre. The commenter stated that these avoidance issues are particularly
apparent in the Southwest where assertion of jurisdiction over ephemeral features is difficult for
landowners to understand, and where civil or criminal penalties may be steep.
One commenter wrote extensively about costs and impacts to the recreational sector. Citing figures from
the Bureau of Economic Analysis, the commenter stated that given the size of the industry, impacts from
the proposed rule should be addressed in the economic analysis. They said that a large amount of
management costs will be incurred and that some opportunities could be lost, since the commenter
assumed that the proposed rule will result in review of existing recreational opportunities. The commenter
said that the proposed rule will undoubtedly impose requirements on floodplain areas that would not have
been considered jurisdictional before. The commenter said that many of the recreational opportunities are
provided by small nonprofits or small communities who do not have resources to handle the section 404
permitting process. They said that the assumption that costs would be uniformly recovered across
households in the region is untrue since most recreational costs are not covered by tax revenue but rather
by outside fiindraising, voluntary taxes on a small portion of users, or other taxes remote to the household
concept; they also said that efforts to expand funding have been unsuccessful. They said that the impacts
could be significant for communities that are reliant on recreational revenue to provide basic services to
citizens. The commenter gave the example of those who recreate on frozen water like snowmobilers and
skiers, saying that guidance on the proposed rule in situations like this is needed but has not been
provided. The commenter said that the costs to recreational opportunities should not be overlooked, and
that they should be analyzed and discussed.
One commenter stated that under the assumption that firms are profit-maximizing entities, a relocation of
a project from the best available option is likely associated with some costs.
One commenter stated that the proposed rule would result in loss of value to lands that are newly
considered jurisdictional due to increased regulatory burdens, uncertainties in obtaining regulatory
authorization, and mitigation requirements. The commenter requested that the agencies provide a
quantitative estimate of the loss of land value and increased regulatory burden that will be borne by
landowners with waters that were categorically excluded under the 2020 NWPR but would be
jurisdictional under the proposed rule. The commenter stated that most landowners do not have the
technical expertise required to prepare a jurisdictional determination application, and that the costs to hire
a qualified person can be substantial, at times approaching the value of the land. The commenter also
stated that the time to obtain a determination under the pre-2015 regime sometimes exceeded one year
(even on small sites), during which time the landowner was deprived of the use of their land.
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One commenter stated the conclusion that there would not be any economic effects from the proposed
rule is illogical. The commenters stated that the costs will be borne by someone, and it is critical to
understand what the costs are and who will bear them. One commenter stated that the Economic Analysis
for the Proposed Rule includes benefits and direct regulatory costs but buries or neglects the compliance
costs of parties who must comply with the regulations.
A commenter stated that the proposed rule would expand jurisdiction and therefore increase opportunities
for civil or criminal enforcement against citizens including North Dakota's farmers and ranchers, since
the Clean Water Act authorizes citizen suits and suing for injunctive relief. The commenter stated that
regardless of the outcomes of such cases, regulated entities would incur substantial costs defending
themselves. The commenter discussed civil fines and criminal penalties associated with Clean Water Act
violations, and the commenter stated that the stakes are so high that landowners must know ahead of time
which features are or are not "waters of the United States." The commenter argued that vague definitions
and case-by-case determinations do not form the basis for reasonable civil and criminal enforcement.
A few commenters questioned if the agencies considered the staff and resources that agencies and others
would need to complete case-by-case analyses. One commenter expressed that while the agencies may be
familiar with the processes of the significant nexus standard, there will be increased workload for federal
staff due to the training requirements to consider the inclusion of non-floodplain waters and "other
waters." One commenter stated that regulatory authorities will also incur costs associated with an
increased number of case-by-case reviews and jurisdictional determinations, since the 2020 NWPR did
not rely on the significant nexus standard. The commenter argued that the proposed rule's use of the
standard and the potential for disagreements between authorities and permittees would increase costs for
regulatory authorities.
Agencies' Response: In response to the additional cost categories that commenters
provided, the agencies acknowledge that there are indirect costs—both monetary and
temporal—associated with implementation of the final rule. Indeed, there are indirect costs
associated with implementation of all prior rules defining "waters of the United States." As
the final rule is very similar in scope to that of pre-2015 practice, there will be de minimis
new indirect costs associated with the implementation of the final rule.
The agencies agree with commenters who stated that there will be different costs associated
with avoidance and minimization under the final rule in comparison to the secondary
baseline of the 2020 NWPR. However, the agencies do not have data associated with these
costs and therefore cannot quantify the difference. As such, these costs are discussed
qualitatively in the economic analysis. See Section III.C.2.2 of the Economic Analysis for the
Final Rule for further discussion. Similarly, there are also myriad benefits associated with
this rulemaking that could not be captured due to a paucity of data associated with specific
ecosystem services. See Section III.C.2.3 of the Economic Analysis for the Final Rule for
further discussion. Even with these caveats, the agencies find the Economic Analysis for the
Final Rule provides a reasonable quantified estimate for the differences in expected costs
and benefits associated with section 404 permitting and mitigation under the final rule as
compared to the two baselines.
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The agencies acknowledge the commenter who requested an estimate in loss of land values
associated with the rulemaking. However, the agencies note that carrying out such an
analysis would be extremely speculative, particularly at a national scale, but even at smaller
spatial scales. The potential impact that a water feature may have on a property is not
necessarily negative related to the land value of that property, and different land uses have
different likelihoods of needing permits for activities associated with jurisdictional waters
(e.g., based on the nature of Clean Water Act exemptions and regulatory exclusions).
The agencies also acknowledge commenters who stated that the significant nexus standard
in particular will lead to increased costs for regulators under this rule, for example due to
the agencies' application of the significant nexus standard to "other waters." However, the
agencies find that this final rule increases clarity and implementability by streamlining and
restructuring the 1986 regulations and providing implementation guidance informed by
sound science, implementation tools, and other resources. Further, because this rule is
founded upon a longstanding regulatory framework and reflects consideration of the
agencies' experience and expertise, as well as updates in implementation tools and
resources, the agencies find that the final rule is generally familiar to the public and
implementable. See Final Rule Preamble Section IV.A.4 for further discussion of the
agencies' finding that the final rule is both familiar and implementable. While analyses
under the relatively permanent and significant nexus standards will be slightly different
under the final rule compared to pre-2015 practice, it is expected that those differences will
not have substantive effects to indirect monetary or temporal costs. The agencies have
extensive experience implementing the relatively permanent standard and significant nexus
standard for wetlands, streams, lakes, and ponds, which are the types of resources that are
assessed under paragraph (a)(5) of this rule, and so will be able to use their experience and
implementation resources to ensure efficiency and consistency of jurisdictional
determinations.
The agencies acknowledge the commenter who expressed concerns over costs associated
with recreation development and management. As explained in Section 17.2 above, the
agencies have concluded that changes in jurisdiction in comparison to the pre-2015
regulatory practice will be de minimis. In terms of the impacts specific to the recreation
sector in comparison to the secondary baseline of the 2020 NWPR, the economic analysis is
carried out on a national scale and depends on a forecast of costs associated with permits
issued under Section 404 of the Clean Water Act. Based on over a decade of permit data
which would have included permits for recreational development, the costs associated with
expanding recreational opportunities are captured in the total forecasted costs presented in
the economic analysis. See Section III.C of the Economic Analysis for the Final Rule for
details on how costs were assessed. See Chapter V and Appendix G of the Economic
Analysis for the Final Rule for details on the sector impact analysis. There is no expected
review of existing recreational opportunities associated with the final rule. See Section
IV.C.10 of the Preamble to the Final Rule for implementation guidance for landowners and
additional information on requesting a jurisdictional determination. In the benefit cost
analysis presented in the economic analysis, there is no assumption that costs will be
'recovered' by any form of tax; rather, the benefits associated with the final rule would
stem from ecosystem services provided by the protection of aquatic resources. See Figure
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III-2 in the Economic Analysis for the Final Rule for an overview of ecosystem services
considered in the economic analysis.
The agencies acknowledge commenters who expressed concerns regarding the cost of
jurisdictional determinations and delays caused by jurisdictional determinations. See the
agencies' response to comments in the previous paragraph. Individuals uncertain about the
status of waters on their property may obtain a jurisdictional determination from the
Corps. The Corps does not charge a fee for this service. See 33 CFR 325.1; Regulatory
Guidance Letter 16-01 (2016), See Section IV.C.10 of the Preamble to the Final Rule for
implementation guidance for landowners and additional information on requesting a
jurisdictional determination.
The agencies disagree with commenters who stated that the agencies did not adequately
quantify costs in the economic analysis. See the agencies' response to comments on costs in
other sub-sections of Section 17.4 above; furthermore, the agencies have noted in the
Economic Analysis for the Final Rule that there are additional costs and benefits that
cannot be quantified. Such costs and benefits are discussed qualitatively, where
appropriate.
The agencies disagree with the commenter who stated that there will be an increase in civil
and criminal enforcement relating to violations of the Clean Water Act due to this
rulemaking in comparison to the 2020 NWPR. The agencies are not aware of evidence of a
decline in enforcement cases under the 2020 NWPR. As such, the agencies have no reason to
expect increased costs associated with enforcement under the final rule in comparison to the
2020 NWPR.
17.5 Distribution of Costs and Distribution of Benefits
17.5.1 General comments on accuracy and adequacy
Many commenters from the regulated community made general statements about the economic analysis
being deficient, flawed, illogical, or incomplete, stating that there is a lack of discussion and analysis to
address incremental costs and benefits (with one stating that other categories of costs and benefits are
deprioritized because they are challenging to estimate), that there is a lack of transparency, or that it does
not include sufficient analyses of environmental justice, tribal impacts, and sectoral impacts. Some
commenters stated that the agencies' claim that the unquantified costs and benefits are "not expected to
negate the positive net benefits" is not justified by any analysis included in the economic analysis report.
One commenter stated that explanations of calculations, assumptions, and discrepancies among different
analyses are not provided, which they stated is particularly troubling given that the analysis is based on an
internal Corps database that is unavailable to outside entities. The commenter stated that any errors and
inconsistences are thus overlooked.
A few commenters requested that the agencies develop a revised economic analysis, providing a more
comprehensive and accurate analysis of the changes and soliciting input from states and regulated entities
in the process. One commenter urged that the full range of economic impacts on local governments and
tribal nations should be considered, stating that their specific county is experiencing a housing shortage
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and that protecting clean water is essential to the development of communities and needed housing stock.
The commenter also stated that economic impacts to farming and ranching operations must be considered,
stating that these industries rely heavily on jurisdictional waters for irrigation of crops and animals. The
commenter further emphasized that tourism is a large industry in the county and stated that the economic
impact on outdoor recreation opportunities must be considered.
One commenter stated that the Economic Analysis for the Proposed Rule finds that the benefits of the
proposed rule's expanded jurisdictional scope exceed the cost; however, the commenter noted that the
economic analysis of the 2020 NWPR found the avoided costs of a narrower jurisdictional scope
exceeded the forgone benefits. The commenter stated that there is a significant discrepancy and requested
that the agencies explain the differences between the two analyses fully and transparently, providing
justification and impact estimates for changes to technical approaches, input values, and assumptions.
One commenter stated that the economic analysis makes numerous references to section III.C.6 for a
discussion of how uncertainty was addressed, but that this section does not exist, making discussion of
analytical uncertainty and assumptions impossible.
Agencies' Response: The agencies acknowledge general comments on the accuracy and
adequacy of the Economic Analysis for the Proposed Rule. The agencies have attempted to
be as transparent and complete with a national economic analysis as the underlying data
allows. The agencies have also attempted to improve on their analysis after considering
public comments on the analysis accompanying the proposed rule. For example, on the cost
side, the agencies have added a sensitivity analysis based on Sunding and Zilberman (2002).
On the benefits side, the agencies present a range of radii approaches alongside a state
approach to capture total willingness to pay.
The agencies disagree with commenters who suggested that the agencies should revise the
economic analysis and solicit additional input from states and regulated entities. Prior to
issuing this final rule, the agencies embarked on an extensive stakeholder outreach process,
including public meetings and federalism and tribal consultations. See Final Rule Preamble
Section III.C. The agencies received over 32,000 recommendation letters from the public
during pre-proposal outreach and over 114,000 comments on the proposed rule during the
public comment period. The agencies understand that the scope of Clean Water Act
jurisdiction is an issue of great national importance and appreciate feedback and
engagement from all stakeholders. The agencies engaged state and local governments over a
60-day federalism consultation period during development of this rule, beginning with an
initial federalism consultation meeting on August 5, 2021, and concluding on October 4,
2021. During the input period, the agencies convened several meetings with
intergovernmental associations and their state or local government members to solicit
feedback on the effort to revise the definition of "waters of the United States." The agencies
also engaged with state and local governments during the public comment period, including
though two virtual roundtables in January 2022. A summary report on the agencies'
consultation efforts with state and local governments is available in the docket for this
action. For more information on the agencies' federalism consultation for this rulemaking,
see Final Rule Preamble Section VI.E and the agencies' response to comments in Section
5.5. EPA and the Army consulted with tribal officials under the EPA Policy on Consultation
and Coordination with Indian Tribes and the Department of the Army American Indian and
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Alaska Native Policy early in the process of developing this regulation to permit them to
have meaningful and timely input into this development. The tribal consultation period
extended from July 30, 2021, to October 4, 2021. During the input period, the agencies
convened several meetings with tribes, intertribal associations, and their members to solicit
feedback on the effort to revise the definition of "waters of the United States." The agencies
also met with individual tribes requesting consultation at a staff-level or leader-to-leader
level, consistent with their requests. A summary report on the agencies' consultation and
engagement efforts with tribes is available in the rulemaking docket. For more information
on the agencies' federalism consultation for this rulemaking, see Final Rule Preamble
Section VI.F and the agencies' response to comments in Section 5.6.
The agencies acknowledge commenters who discussed housing and water availability
matters at the county level; however, these matters are outside the scope of this rulemaking.
The agencies also acknowledge commenters who referenced impacts to the agriculture and
recreation sectors. See Chapter VI of the Economic Analysis for the Final Rule for more
information on the sector analysis.
The agencies acknowledge the commenter who stated that the Economic Analysis for the
2020 NWPR included a different ratio of costs to benefits than the economic analysis for
this rulemaking. The agencies note that there are many differences between the two
economic analyses. The key difference is that the economic analysis for this rulemaking
used the Cowardin classification in assessing the change in scope of jurisdiction between the
2020 NWPR and the pre-2015 regulatory regime. Using one year of data available on
jurisdictional determinations and permits issued under the 2020 NWPR, the agencies
assessed the proportion of resources that required permits and mitigation under the 2020
NWPR compared to the pre-2015 regulatory regime. This proportion was also broken down
by resource type based on the Cowardin codes used for individual aquatic resources.
Additionally, the economic analysis for this rulemaking includes more studies within its
meta-analysis which assisted in assessing willingness to pay values at larger spatial scales.
Much of the analysis and information within the Economic Analysis for the Final Rule
builds on analyses from previous rulemakings that are already available to public. Analyses
are based on the most relevant factors and the best available data. Data that informed the
Economic Analysis for the Final Rule are available for review by the public in the docket
for the final rule (Docket ID No. EPA-HQ-OW-2021-0602).
The agencies appreciate the comment identifying the typographic error regarding Section
III.C.6 in the Economic Analysis for the Proposed Rule. Uncertainty is discussed in Section
III.C.3 of the Economic Analysis for the Proposed Rule and the Economic Analysis for the
Final Rule.
17.5.2 Interstate and transboundary benefits
Some commenters stated that the agencies underestimated interstate benefits or excluded them from the
main analysis, stating that since many wetlands and watersheds cross state boundaries, the agencies
should more fully consider the interstate benefits of federal protections. Another commenter stated that
the agencies undervalued the interstate benefits of the proposed rule by not recognizing that states with
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inclusive definitions of state waters could still suffer harms from neighboring states with weaker
definitions. The commenter stated that upstream states have strong incentives to prioritize industry over
water protections and cited their mapping exercise of approved jurisdictional determinations made under
the 2020 NWPR to illustrate the prevalence of this predicament.
Agencies' Response: The agencies acknowledge the importance of interstate and
transboundary benefits, and the agencies agree with the commenter who asserted that states
with broader definitions of state waters could suffer harms from neighboring states. The
radius approach to calculating benefits, presented in Appendix H of the Economic Analysis
for the Proposed Rule, takes interstate benefits into consideration. The radius approach has
been integrated into the main Economic Analysis for the Final Rule. Furthermore, the
agencies have included 48 states in the modeling of costs and benefits in the Economic
Analysis for the Final Rule.
17.5.3 Case studies
A commenter requested that the agencies revisit the case study locations used in the 2020 NWPR analysis
to conduct a more robust and comparable analysis, stating that the case studies provided a more robust
assessment due to data availability.
Agencies' Response: The agencies have decided not to include case studies in the Economic
Analysis for the Final Rule. The agencies conclude that the quantitative and qualitative
assessments provided in the Economic Analysis for the Final Rule are sufficient to inform
the public regarding the impacts of this rulemaking.
17.6 Environmental Justice Implications
17.6.1 Use of the primary baseline related to environmental justice concerns
One commenter asserted that the use of the 2020 NWPR as a baseline for proposed rule's economic
analysis failed to "consider a more meaningful, longer-term baseline for determining historical
environmental injustices."
Some commenters contended that in the proposed rule the agencies "try to sidestep their environmental
justice obligations by disclaiming any adverse impacts on environmental justice communities." The
commenters asserted that the agencies are using the pre-2015 regulatory regime as the baseline scenario
to determine that returning to that baseline regime under the proposed rule creates no additional impact on
environmental justice communities. The commenters indicated a thorough analysis of the impacts of the
pre-2015 regulatory regime on environmental justice communities is "critical" because "tribes and
environmental justice communities have suffered under that very regime." The commenter pointed to
studies that show that some tribes have reported a loss of 20 percent of wetlands over the last 25 years
under the pre-2015 regulatory regime and that low-income, minority, and/or Indigenous communities
have been impacted by inadequate protection of drinking water and disproportionately impacted by high
water treatment costs.
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Agencies' Response: The agencies recognize that the burdens of environmental pollution
and climate change often fall disproportionately on communities with environmental justice
concerns (e.g., Indigenous peoples, people of color, and low-income populations), and have
qualitatively assessed impacts to these groups in the Economic Analysis for the Final Rule.
While the agencies recognize this concern and the commenters' desire for an analysis on the
impacts of the pre-2015 regulatory regime on communities with environmental justice
concerns, the agencies find that use of the pre-2015 regulatory regime as the primary
baseline and the 2020 NWPR as the secondary baseline for the economic analysis is
appropriate. The agencies use the pre-2015 regulatory regime as the primary baseline in the
analysis as two courts have now vacated the 2020 NWPR and the agencies are currently
implementing the definition of "waters of the United States" consistent with the pre-2015
regulatory regime. The agencies prepared the economic analysis pursuant to the
requirements of Executive Orders 12866 and 13563 to provide information to the public.
The agencies also recognize that the baseline (pre-2015 regulatory regime) could have pre-
existing impacts for communities with environmental justice concerns, but the analysis
focuses on the impacts of changes due to the final rule. For this rule, consistent with
Executive Order 12898 (59 FR 7629, February 16,1994) and Executive Order 14008 on
"Tackling the Climate Crisis at Home and Abroad" (86 FR 7619; January 27, 2021), the
agencies examined whether the change in benefits due to this rule may be differentially
distributed among communities with environmental justice concerns in the affected areas
when compared to both baselines. Regardless of baseline, for most of the wetlands and
affected waters impacted by this rule at a hydrologic unit code (HUC) 12 watershed level,9
there was no evidence of potential environmental justice impacts warranting further
analysis. It is expected that where there were environmental justice impacts at the HUC 12
scale as compared to the secondary baseline of the 2020 NWPR, those impacts would be
beneficial to communities with environmental justice concerns because this rule will result
in more waters being jurisdictional than would be under the 2020 NWPR.
The agencies also note that Executive Orders 12866,13563, and 12898 do not require the
agencies to examine historic environmental injustices. Executive Order 12898 directs
federal agencies, to the greatest extent practicable and permitted by law, to make
environmental justice part of their mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental effects of their
programs, policies, and activities on minority populations (Indigenous peoples and/or
people of color) and low-income populations. This Executive Order does not override the
agencies' authorities under the Clean Water Act, which are discussed in the preamble to the
final rule in Section IV.A.1. Moreover, because the final rule is a definitional rule, it does
not impose any direct impacts on environmental or public health for communities at large.
Therefore, this action does not have disproportionately high and adverse human health or
environmental effects on Indigenous peoples, people of color, and/or low-income
populations. The documentation for this decision is contained in the Economic Analysis for
the Final Rule, which can be found in the docket for this action.
9 HUC boundaries are established by USGS and NRCS. These boundaries are numbered using nested codes to
represent the scale of the watershed size. For example, HUC 12 watersheds are smaller than HUC 4 watersheds.
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See also the agencies' response to comments in Section 17.1 and Chapters IV and V and
Appendix F of the Economic Analysis for the Final Rule.
17.6.2 Comprehensiveness of the environmental justice analysis
Numerous commenters argued for a more comprehensive environmental justice analysis. A commenter
asserted that the agencies need to conduct a more comprehensive impacts analysis that looks at past,
current, and future potential impacts on water quality and involves public outreach and consideration of
comments and recommendations from communities with environmental justice concerns. One commenter
claimed a more comprehensive analysis of environmental justice impacts is necessary for alignment with
E.O. 13990, which the commenter stated aims to "[hold] polluters accountable, including those who
disproportionately harm communities of color and low-income communities."
Agencies' Response: While the agencies recognize that some commenters advocated for the
agencies to perform a more comprehensive environmental justice analysis, the agencies
conclude that they have fulfilled their duties under Executive Orders 12898 and 13990. The
agencies disagree with the commenter who asserted that the environmental justice analysis
should consider past, current, and future potential impacts on water quality. The agencies'
environmental justice analysis compares the final rule to the secondary baseline of the 2020
NWPR, as the effects compared to the primary baseline of the pre-2015 regulatory regime
are expected to be de minimis. See Section IV and Appendix F of the Economic Analysis for
the Final Rule.
This rule establishing the definition of "waters of the United States" does not by itself
impose costs or benefits. Potential costs and benefits would only be incurred as a result of
actions taken under existing Clean Water Act programs relying on the definition of "waters
of the United States" (i.e., sections 303, 311,401, 402, and 404) that are not otherwise
modified by this rule. The definition itself imposes no direct impacts on environmental or
public health for communities at large; therefore, it will have no increased impact on
communities with environmental justice concerns. See Section V.A of the preamble to the
final rule.
In addition, the agencies disagree with the commenter who stated that additional outreach
was needed. Meaningful involvement from communities with environmental justice
concerns, as well as other stakeholders and co-regulators, has been a cornerstone of
development of the final rule. The agencies have conducted tribal and federalism
consultations and extensive public outreach with a wide range of stakeholders, including
with environmental justice organizations. In developing this rule, the agencies have also
reviewed and considered approximately 114,000 timely comments received on the proposed
rule from a broad spectrum of interested parties. The agencies have provided many
opportunities, both pre-proposal and during the public comment period, for stakeholders,
including environmental justice organizations, to provide feedback and input to the
agencies. See also Section III.C of the final rule preamble.
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17.6.3 Ecosystem services in the environmental justice analysis
Numerous commenters specifically mentioned the need for greater consideration of ecosystem services in
the agencies' environmental justice analysis. A couple of commenters observed that the loss of wetlands
has resulted in loss of ecosystem services in densely populated areas. The commenters stated that this loss
of ecosystem services has had disproportionate impacts on communities with environmental justice
concerns. As a result, the commenters recommended an increased emphasis on ecosystem services
through significant nexus analysis and consideration of historical instances of environmental injustice.
One commenter pointed to the need for the agencies to move beyond consideration of the "physical,
chemical, and biological impacts" on water quality to consider the value of ecosystem services of
wetlands, such as the potential for wetlands to reduce urban heat island effects, improve air and water
quality, provide opportunities for hunting and fishing in a more comprehensive environmental justice
analysis.
Some commenters suggested that the proposed rule should more adequately address the value of
ecosystem services and environmental justice issues. One commenter asserted the importance of
protecting wetlands and streams because of their ability to ensure residents have clean water for drinking,
bathing, swimming, and recreation. A commenter indicated their support for emphasis in the proposed
rule on protection and restoration of ecosystem services in areas that have experienced historical losses
and have greater current needs, particularly in low-income communities and communities of color.
Agencies' Response: The agencies acknowledge the commenters' assertions that the
agencies should give more consideration to ecosystem services impacts in the environmental
justice analysis. While the environmental justice analysis does not specifically address
ecosystem services, the monetized benefits from the Economic Analysis for the Final Rule
focuses on the value of ecosystem services provided by wetland areas protected due to
mitigation requirements. The agencies have added additional discussion of ecosystem
services in Section III.C.2.3 of the Economic Analysis for the Final Rule, including Figure
III-2, which provides a conceptual value diagram of how increased mitigation requirements
resulting from the final rule can generate public ecosystem service benefits.
However, the agencies conclude that they can only evaluate ecosystem services to the extent
that they are related to restoring and maintaining the chemical, physical, or biological
integrity of the nation's waters. For example, a significant nexus analysis is limited to an
assessment of only those functions identified in the final rule that have a nexus to the
chemical, physical, or biological integrity of paragraph (a)(1) waters. Thus, there are some
important functions provided by wetlands, tributaries, and waters evaluated under
paragraph (a)(5) that will not be assessed by the agencies when making jurisdictional
decisions under this rule. For example, for purposes of a jurisdictional analysis under the
significant nexus standard, the agencies will not be taking into account the carbon
sequestration benefits that aquatic resources like wetlands provide.
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17.6.4
Cumulative risk and environmental justice analysis
Several commenters pointed out the agencies themselves identified the limitations of their own analysis,
noting the need to expand consideration of cumulative environmental risks caused by exposure to air
pollution and proximity to hazardous waste management facilities.
Several commenters from conservation organizations and tribes also asserted the need to consider the
cumulative impacts of climate change, which often fall disproportionately on communities with
environmental justice concerns. The commenters provided specific examples of the potential impacts on
tribes, including streams becoming intermittent or ephemeral, the effect of warming stream waters on
salmon populations, and increased precipitation levels in the Northeast and Midwest.
Agencies' Response: In the Economic Analysis for the Proposed Rule, the agencies
acknowledged the limitations of their environmental justice analysis and stated that they
planned to broaden consideration of cumulative environmental risk by including exposure
to air pollution (e.g., particulate matter and ozone) and proximity to hazardous waste
management facilities in the analysis for the final rule. The agencies have accordingly
utilized additional environmental indicators included in the EJSCREEN tool in the
environmental justice analysis for the final rule, including lifetime cancer risk from
inhalation of air toxics; the air toxics respiratory hazard index, which is a ratio of exposure
concentration to a health-based reference concentration; diesel particulate matter level in
air, jig/m3; 2016 average annual PM2.5 levels in air, jig/m3; 2016 summer seasonal average
of daily maximum eight-hour ozone concentration in air, parts per billion; the count of
vehicles at major roads within 500 meters, divided by distance in meters; the percent of
housing units built pre-1960, as an indicator of potential lead paint exposure; the count of
hazardous waste management facilities within five kilometers (or the nearest neighbor
outside of five kilometers), divided by distance to the facilities; and the count of proposed
and listed National Priorities List sites within five kilometers (or the nearest neighbor
outside of five kilometers), divided by distance to the sites. The agencies find that this allows
communities with environmental justice concerns to not only be defined by socioeconomic
and demographic information but also their cumulative exposure to environmental hazards
beyond those in the scope of the final rule. See Section IV of the Economic Analysis.
The agencies acknowledge the commenters' assertion that the agencies should consider the
cumulative impacts of climate change in the environmental justice analysis. The agencies
acknowledge that future shifts in climate will have an effect on the characteristics and
frequency of projects requiring Clean Water Act permits. Due in part to the inherent
difficulty in predicting these future effects to Clean Water Act section 404 permitting, the
agencies are unable to consider the cumulative impacts of climate change in the analysis.
17.6.5 Environmental justice concerns from implementation of the 2020 NWPR
A couple of commenters asserted the previous regulations defining "waters of the United States" have
resulted in environmental injustices and provided numerous examples of such impacts. One commenter
characterized the 2020 NWPR as including "weak clean water protections" and argued that the agencies'
own economic analysis of the proposed rule suggested that weakening of protections for wetlands under
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the 2020 NWPR occurred in areas with greater proportions of communities with environmental justice
concerns than the national average. This same commenter identified 10 communities in which the Corps
made approved jurisdictional determinations that the commenter stated removed protections from critical
waters in potential communities with environmental justice concerns using the EPA's screening tool
EJSCREEN. According to this commenter, the projects impacting communities with environmental
justice concerns include:
• Hardeeville, South Carolina - a 6,000-acre mixed-use development project located near the
Savannah National Wildlife Refuge in an area that the commenter noted was already burdened
with significant industrial pollution (70 percent of residents are people of color; 35 percent of
residents are low-income);
• Weyerhaeuser Site, Winnsboro, South Carolina - an area identified for redevelopment in which
3,000 linear feet of ephemeral streams were determined by the Corps to be non-jurisdictional
under the 2020 NWPR (62 percent of residents are people of color; 40 percent of residents are
low-income);
• Saxe Gotha Industrial Park, Cayce, South Carolina - an industrial park with -28 acres of
wetlands and ~3 acres of pond that the Corps declared non-jurisdictional under the 2020 NWPR,
which the commenter claimed already had high levels of wastewater discharge and a Superfund
site;
• Burke Business Park, Waynesboro, Georgia - a ~500-acre industrial park adjacent to 13 wetlands
covering 30 acres (69 percent of residents are people of color and 49 percent residents are low-
income);
• Brantley County Development, Waynesville, Georgia - a proposed project site that would include
an industrial park and landfill that is an ongoing subject of litigation due to resident opposition for
which the Corps determined had 34.5 acres of non-jurisdictional wetlands under the 2020 NWPR;
• Cocoa Apartment Complex, Cocoa, Florida - a 268-unit apartment complex for which the Corps
determined contained 54.37 acres of non-jurisdictional wetlands (74 percent of residents are
people of color and 70 percent of residents are low-income);
• White Mesa Mine, New Mexico (near the Pueblo of Zia) - expansion of the White Mesa open-pit
gypsum mine for which the Corps determined contained 5,000 linear feet of non-jurisdictional
ephemeral streams under the 2020 NWPR just outside the Pueblo of Zia reservation (100 percent
of residents are people of color and 65 percent are low-income);
• Houston Fuel Oil Terminal Company, Harris County, Texas - the Corps determined operation of
Houston Fuel Oil Terminal Company fuel and crude oil storage and transportation in an area that
the commenter identified had other existing environmental issues, including increased risk of
childhood cancer, above-normal air levels of formaldehyde, high levels of wastewater discharge,
and elevated risks of cancer due to high levels of air toxics;
• Robert Brothers Farm, Wallace, Louisiana - the Corps determined that 23.5 acres of wetlands and
44,580 feet of ditches were non-jurisdictional in an area that the commenter stated had high levels
of industrial pollution, high levels of cancer risk, and high levels of wastewater discharge with the
known nickname of "Cancer Alley"; and
• Former Hollybrook Plantation, East Carroll Parish, Louisiana - the Corps determined that 157
acres of prior converted cropland were non-jurisdictional that the commenter stated was in an
area with substantial flooding and existing degradation due to agricultural, municipal, and
industrial usage (in the immediate project area, 70 percent of residents are people of color and 51
percent of residents are low-income.
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One commenter expressed particular concern about protection of the Cahaba River drinking water
source in Alabama, which the commenter stated originates from small upland drainages, and noted
that costs of drinking water treatment for this drinking water source disproportionately impact low-
income individuals. This commenter provided the specific example of how wastewater from the
Cahaba River basin is exported to the Valley Creek wastewater treatment plant because Valley Creek
(located near predominantly communities with environmental justice concerns) is designated as a
"Limited Wastewater Fishery" that allows higher pollutant loads from wastewater discharge. The
commenter urged that "that no other river should be a sacrifice zone for the water quality of streams
in wealthier communities that are majority white."
Agencies' Response: While impacts on communities with environmental justice concerns
are not a basis for determining the scope of the definition of "waters of the United States,"
the agencies recognize that the burdens of environmental pollution and climate change
often fall disproportionately on communities with environmental justice concerns.
The agencies acknowledge the commenters' assertions that the 2020 NWPR provided less
protection for aquatic resources than the pre-2015 regulatory regime. See Final Rule
Preamble Section III.B.5. The agencies agree with the commenter's assertion that the
agency found in the environmental justice analysis in the Economic Analysis for the
Proposed Rule that changes in wetland area did occur in potential communities with
environmental justice concerns than the national average, but the agencies found that this
occurred only in a small proportion of wetlands that have area changes greater than 50
acres. The agencies have updated the analysis for the Economic Analysis for the Final Rule.
See Chapter IV of the Economic Analysis for the Final Rule.
17.6.6 Environmental justice issues associated with changes from the pre-2015 regulatory
text and the pre-2015 regulatory regime
Numerous commenters asserted the proposed rule would decrease protections for waters compared to the
regulatory text of the pre-2015 definition and expressed concerns regarding what the commenters
perceived to be a lack of an environmental justice analysis conducted. Several commenters indicated the
proposed rule rolls back categorical protections for tributaries and wetlands adjacent to other waters that
were in the pre-2015 regulatory text and asserted the agencies have failed to provide analysis of the
environmental justice impacts of this change. These same commenters claimed the agencies' economic
analysis for the proposed rule continues to falsely assume that limiting the scope of jurisdictional waters
under the Clean Water Act will not impact regulation of activities covered by sections 311 and 402 of the
Clean Water Act. The commenters observed that most tribal lands rely upon the agencies and their
permitting systems to protect tribal waters and narrowing the definition of jurisdictional waters will have
a disproportionate impact on tribes. A commenter expressed concerns that an overly restrictive definition
of "waters of the United States" could cause harm to environmental justice communities. Meanwhile, a
commenter expressed concerns regarding the "mine field of jurisdiction created by the 1986 rules" and
the impact of "unclear rules" on minority farm producers.
Agencies' Response: The agencies recognize the commenters' concerns that the proposed
rule reduces protections for tributaries and adjacent wetlands compared to the pre-2015
regulatory text. The final rule seeks to return generally to the longstanding regulatory
framework that existed prior to the 2015 Clean Water Rule, but also restores those
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regulations with necessary limitations to ensure the definition of "waters of the United
States" reflects consideration of the agencies' statutory authority under the Clean Water
Act and relevant Supreme Court decisions. In developing the final rule, the agencies
thoroughly considered alternatives to this rule, including the pre-2015 regulations, and have
concluded that this final rule best accomplishes the agencies' goals to promulgate a rule that
advances the objective of the Clean Water Act, is consistent with Supreme Court decisions,
is informed by the best available science, and promptly and durably restores vital
protections to the nation's waters. See, e.g., Section IV.B.2 of the Preamble to the Final Rule
for further discussion of the agencies' grounds for concluding that the pre-2015 regulatory
definition, which was recodified in the 2019 Repeal Rule, is not a suitable alternative to the
final rule.
The agencies' environmental analysis does not look at a change from the pre-2015
regulatory text to the final rule. This is because the pre-2015 regulatory text is not a
baseline for the final rule. The agencies are not currently implementing just the regulatory
text from the pre-2015 definition of "waters of the United States"; the agencies are
implementing those regulations consistent with relevant case law and as informed by
applicable guidance. Thus, in this rulemaking effort, "pre-2015 regulatory regime" refers to
the agencies' pre-2015 definition of "waters of the United States," implemented consistent
with relevant case law and longstanding practice, as informed by applicable guidance,
training, and experience. Because the agencies conclude that this final rule represents de
minimis indirect costs and benefits compared to the pre-2015 regulatory regime, the
agencies used the secondary baseline of the 2020 NWPR for the environmental justice
analysis.
The agencies acknowledge the commenters' concerns regarding disproportionate impacts to
communities with environmental justice concerns and to tribes from a narrowing of the
definition of "waters of the United States." While impacts on communities with
environmental justice concerns are not a basis for determining the scope of the definition of
"waters of the United States," the agencies recognize that the burdens of environmental
pollution and climate change often fall disproportionately on communities with
environmental justice concerns. The final rule will result in more waters being found to be
"waters of the United States" compared to the 2020 NWPR. The agencies also expect that
there will be a slight and unquantifiable increase in waters being found to be jurisdictional
under the final rule in comparison to the pre-2015 regulatory regime.
The agencies disagree with the commenters who asserted that the agencies have claimed
that Clean Water Act sections 311 and 402 are not impacted by revisions to the definition of
"waters of the United States." While any impacts are indirect, the agencies clearly list Clean
Water Act sections 311 and 402 amongst the list of programs that use the definition of
"navigable waters" in Section III.A.l of the final rule preamble and explain in that Section
how those programs are impacted by the definition of "waters of the United States." The
final rule does not by itself impose costs or benefits. Potential costs and benefits would only
be incurred as a result of actions taken under existing Clean Water Act programs relying
on the definition of "waters of the United States" (i.e., sections 303, 311,401, 402, and 404)
that are not otherwise modified by this rule. Entities currently are, and will continue to be,
regulated under these programs that protect "waters of the United States" from pollution
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and destruction. Each of these programs may subsequently impose costs as a result of
implementation of their specific regulations. While the agencies are unable to quantify
indirect costs and benefits arising from the final rule to the Clean Water Act section 311
and section 402 programs, the Economic Analysis does provide qualitative assessments for
these programs. The qualitative assessments for the Clean Water Act section 311 and 402
programs provide a national assessment of the potential effects of this rule in cases where
the agencies currently lack the datasets to quantitatively assess the effects. See Sections
III.A and III.B of the Economic Analysis.
17.6.7 Distributional and other considerations in the environmental justice analysis
One commenter called for the agencies to "act quickly to restore robust clean water protections and
defend clean water for the nation's most vulnerable populations" and urged agencies to acknowledge,
identify, and address the inequitable and disproportionate impacts of water pollution on communities with
environmental justice concerns. One commenter observed the proposed rule needs to "do more to address
environmental justice issues." Other commenters expressed the importance for the agencies to consider
environmental justice impacts within the proposed rule, particularly with regards to wetlands loss and
flooding potential due to climate change.
Several commenters provided advice on addressing environmental justice issues. One commenter
expressed that any new rule defining "waters of the United States" should consider inequities caused by
environmental damage and "must identify and prevent the disproportionate harm to the most vulnerable
communities and be applied equitably."
One commenter described ways in which the agencies could ensure that the final rule might advance
environmental justice, including by recognizing how wetlands mitigate flooding risks, filter toxins, and
support migratory birds; focusing efforts on the impacts of communities with environmental justice
concerns in 100-year floodplains; and accounting for different sources of environmental pollution that
impact communities with environmental justice concerns.
Agencies' Response: The agencies acknowledge the commenters' concerns about the extent
to which environmental justice issues were addressed in the proposed rule. While impacts
on communities with environmental justice concerns are not a basis for determining the
scope of the definition of "waters of the United States," the agencies recognize that the
burdens of environmental pollution and climate change often fall disproportionately on
communities with environmental justice concerns. The agencies agree with the commenter's
assertion that a rule to redefine "waters of the United States" should consider distributional
inequities caused by potential environmental impacts, pursuant to E.O. 12898, and have
done so in the Environmental Justice Analysis. See Chapter IV of the Economic Analysis for
the Final Rule.
17.6.8 Disproportionate impacts related to water
Several commenters provided insights into the disproportionate impacts of inadequate water protections
and pollution on communities with environmental justice concerns. One commenter asserted "it is well
established that the burdens of environmental contamination and industrial pollution fall
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disproportionately on low-income communities and communities of color," and observed that water
pollution is "no exception" to this general rule. Several commenters asserted that communities with
environmental justice concerns are more likely to live near areas prone to flooding because such land has
been historically less expensive to build on and sometimes because of the historical existence of redlining
policies. One commenter claimed these vulnerable populations are less likely to have the resources
needed to recover from flood damage. Another commenter asserted that once wetlands are disturbed in
communities with environmental justice concerns, mitigation projects are less likely to be placed in these
areas compared to predominantly white communities. A few commenters also claimed that flooding and
its associated effects are expected to worsen due to climate change impacts. A few commenters cited
studies that estimate that communities with at least 20 percent Black population will see a 40 percent
increase in flood risk by 2050, nearly double the increase in flooding risk compared to communities with
proportionately smaller Black populations.
Other commenters asserted that communities with environmental justice concerns are more likely to live
in areas with water pollution. Commenters also asserted that degraded water quality from industrial
pollution and agricultural runoff are more likely to exist in communities with higher percentages of
people of color. A few commenters asserted that low-income minority populations and tribal
communities, which tend to rely more on fish and aquatic life for food, are disproportionately impacted
by water pollution and fish contamination. One commenter claimed that water pollution, loss of fish
habitat, and changing water temperatures and flows threaten food sources and access to means of social
interaction for people of color. Other commenters asserted the particular importance of water to the
"beliefs, cultural practices, and daily activities" of tribes. A commenter asserted the importance of water
to the local tribes and expressed concerns regarding water quality that result from confusion over
jurisdiction of the Clean Water Act. A couple of commenters also observed that vulnerable populations
are also most likely to live in areas with inadequate water infrastructure. One of these commenters
observed that greater rates of violations of water regulation tend to be observed in counties with
significant vulnerable populations. A few commenters also asserted challenges with clean water access
and drinking water contamination.
Another commenter stated that they provide water and wastewater services to a population that the
commenter characterized as disadvantaged or severely disadvantaged and struggling to afford basic
services. The commenter requested that the agencies consider not increasing the costs of regulatory
compliance through this rule because it could affect water and wastewater affordability, "with an
unintended impact on our most vulnerable customers" who ultimately shoulder compliance costs.
Agencies' Response: The agencies acknowledge the information provided by the
commenters about potential disproportionate impacts to communities with environmental
justice concerns from water pollution and flooding. While impacts on communities with
environmental justice concerns are not a basis for determining the scope of the definition of
"waters of the United States," the agencies recognize that the burdens of environmental
pollution and climate change often fall disproportionately on communities with
environmental justice concerns.
In regard to the final rule's impact on the cost of regulatory compliance, the final rule does
not by itself impose costs or benefits. Potential costs and benefits would only be incurred as
a result of actions taken under existing Clean Water Act programs relying on the definition
of "waters of the United States" (i.e., sections 303, 311, 401, 402, and 404) that are not
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otherwise modified by this rule. Entities currently are, and will continue to be, regulated
under these programs that protect "waters of the United States" from pollution and
destruction. Each of these programs may subsequently impose costs as a result of
implementation of their specific regulations. The agencies qualitatively discuss the indirect
costs and benefits to the Clean Water Act section 402 program in Section III.B of the
Economic Analysis for the Final Rule.
17.6.9 Relationship of race to other factors
One commenter stated that it "would be helpful to include economic facts showing that minority
communities would not struggle with increased housing or land prices that would increase this group's
level of poverty or lack of clean water." The commenter contended that studies demonstrate that race is
one of the most important determinants of consistent access to clean water in the United States, and that
addressing minorities that may have apprehension about a rule change helps the agencies build trust.
Agencies' Response: The agencies acknowledge the commenter's statement that
incorporating an analysis of the economic impacts of the final rule on communities with
environmental justice concerns would be helpful and have evaluated in the environmental
justice analysis if these communities are potentially disproportionately impacted by the
final rule as compared to the secondary baseline of the 2020 NWPR. The agencies recognize
the commenter's assertion that race is an important determining factor for access to clean
water. The agencies have included a variety of demographic information, including race, as
part of their environmental justice analysis. In the analysis, areas that will experience
wetland changes due to the final rule have higher percentages of people of color regardless
of the magnitude of the change. See Chapter IV of the Economic Analysis for the Final
Rule. However, any costs associated with housing or land prices are indirect, outside the
scope of this rulemaking, and are not assessed in the environmental justice analysis. The
final rule is definitional in nature. The regulations established in the final rule are founded
on the familiar framework of the 1986 regulations and are generally consistent with the pre-
2015 regulatory regime.
17.7 Sector Impact Analysis
One commenter stated, "The Agencies also failed to adequately analyze the implications of the Proposed
Rule's changes across CWA programs and its impacts on the public, including small entities in
particular." One commenter stated that the proposed rule would have significant economic impacts on
small entities, stating that the agencies estimated that the Clean Water Act section 404 permit costs would
increase between $108.6 million to $275.9 million for projects in 26 states transitioning from the 2020
NWPR to the proposed rule. The commenter stated that these costs do not reflect costs for section 404
projects in remaining states and other jurisdictions, and do not reflect costs associated with other Clean
Water Act programs such as section 402 and section 311.
One commenter requested that the "Energy Generation" category for the sector analysis be further divided
and analyzed according to project description (e.g., coal, co-gen, geothermal, hydropower, natural gas,
nuclear, oil, solar, and wind).
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Agencies' Response: The agencies disagree with commenters who stated that the agencies
did not consider the implications of this rulemaking on small entities. This rule codifies a
regulatory regime very similar to the one currently being implemented nationwide due to
the vacatur of the 2020 definition of "waters of the United States." Additionally, the final
rule does not "subject" any entities of any size to any specific regulatory burden. It is
designed to clarify the statutory term "navigable waters," defined as "waters of the United
States," which defines the scope of Clean Water Act jurisdiction 33 U.S.C. 1362(7). The
final rule does not by itself impose costs or benefits. Potential costs and benefits would only
be incurred as a result of actions taken under existing Clean Water Act programs relying
on the definition of "waters of the United States" that are not otherwise modified by this
rule. The scope of Clean Water Act jurisdiction is informed by the text, structure, and
history of the Clean Water Act and Supreme Court case law, including the geographical
and hydrological factors identified in Rapanos. See Final Rule Preamble Section III.C for a
summary of the agencies' engagement with co-regulators and stakeholders, including
engagement with small entities.
See section 17.4.6 of this document for the agencies' response to comments regarding costs
associated with other Clean Water Act Programs.
The agencies acknowledge the commenter who provided recommendations for analyzing
the "Energy Generation" category as part of the sector analysis. The agencies use the North
American Industry Classification System (NAICS) as a consistent framework for
describing the potentially affected sectors. The Electric Power Generation sector is a 5-digit
NAICS category, with 8 subsectors at the 6-digit level, some of which match the more
detailed project types noted in the Appendix G of the Economic Analysis for the Final Rule
and in the comment, and some of which do not. As such, the agencies could not consistently
report at the 6-digit NAICS level.
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