Revised Definition of "Waters of the United States"
Response to Comments Document
Section 1 - Proposed Rule General
See the Introduction to this Response to Comments Document for a discussion of the U.S. Environmental
Protection Agency and the U.S. Department of the Army's (hereinafter, the agencies ) comment response
process and organization of the eighteen sections.
1 Proposed Rule General 2
1. l General Expressions of Support for the Proposed Rule 5
1.2 General Expressions of Opposition to the Proposed Rule 6
1.3 Durability and Regulatory Certainty 9
1.3.1 Durability 12
1.3.2 Regulatory certainty 14
1.4 Jurisdictional Determinations and Permitting Issues 17
1.4.1 Jurisdictional determinations 19
1.4.2 Status of pre-existing approved jurisdictional determinations 21
1.4.3 Proj ect and/or operational impacts 22
1.5 Clean Water Act Programs 25
1.5.1 Section 303 28
1.5.2 Section 311 29
1.5.3 Section 401 30
1.5.4 Section 402 31
1.5.5 Section 404 34
1.6 Federal Agency Coordination and Capacity 35
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1 Proposed Rule General
Some commenters provided general suggestions as to what the agencies should consider when
establishing a revised definition of "waters of the United States." These commenters often asked the
agencies to develop a definition that would protect water quality and the ecosystem services that features
such as streams and wetlands provide. Further, many commenters requested that a rule defining "waters
of the United States" be grounded in the best available science and be consistent with the U.S.
Constitution and the Clean Water Act, as well as its objective, congressional intent, and relevant case law.
One commenter suggested that the agencies "work with Congress to clarify the definition and goals of the
[Clean Water Act]" to address uncertainties around the scope of the Act. Another commenter stated that
the agencies should consider new technical information in developing a final rule. Other commenters
suggested that the agencies prioritize public health and water quality over economic factors and consider
climate change and environmental justice when defining "waters of the United States."
Many commenters asserted, generally, that protecting water resources has many benefits, including
improving water quality, helping to ensure safe drinking water, improving public health and communities,
supporting wildlife and fish habitat, addressing climate change, and generally improving the economy.
Some commenters stated that the proposed rule would expand jurisdiction in a manner that would impact
implementation of many Clean Water Act programs, particularly sections 404, 402, 303, and 311, with
some suggesting that the agencies have not adequately evaluated the impact of expansion on those
programs. Another commenter argued that expanding the scope of federal jurisdiction "does not
necessarily correlate with improving water quality" because some projects create environmental benefits,
and because projects that are not subject to federal Clean Water Act jurisdiction may be subject to other
forms of regulation pursuant to state or local regulations.
Numerous commenters requested that the agencies develop a clear and easily implementable definition of
"waters of the United States," with some asking that the definition reflect "pragmatic," "objective,"
"clear," or "commonsense" criteria to provide for consistent, predictable results or easily identifiable
jurisdictional features. Some commenters asserted generally that a rule defining "waters of the United
States" should not be unnecessarily burdensome and should provide regulatory certainty for the regulated
community, with some commenters expressing concern about potential impacts from a revised definition
on the agricultural sector specifically.
Some commenters addressed issues related to a potential second rulemaking on the definition of "waters
of the United States." Other commenters asserted that the agencies should forgo rulemaking altogether
pending the Supreme Court's review of Sackett v. EPA. Another commenter noted that the definition of
"waters of the United States" is a contentious and often polarizing issue.
Agencies' Response: As discussed in Final Rule Preamble Section IV.A, in developing the
final rule, the agencies considered the text of the relevant provisions of the Clean Water Act
and the statute as a whole, the scientific record, relevant Supreme Court case law, 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." The final rule also
reflects consideration of advancements in implementation resources and tools. The agencies
find that the scope of "waters of the United States" defined in the final rule is supported by
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the Clean Water Act and relevant Supreme Court case law and remains well within the
bounds of the agencies' statutory and constitutional limits.
In sum, the final rule generally restores the longstanding and familiar categories of the 1986
regulations and establishes jurisdictional limitations based on case-specific application of
the relatively permanent standard and the significant nexus standard to certain categories
of waters in the rule. The agencies have determined that the significant nexus standard is
consistent with the text, objective, and legislative history of the Clean Water Act, as well as
relevant Supreme Court case law and the best available science. The agencies find that the
relatively permanent standard is administratively useful, as it more readily identifies a
subset of waters that will virtually always significantly affect paragraph (a)(1) waters but
standing alone is insufficient to meet the objective of the Clean Water Act. See Final Rule
Preamble Section IV.A for a comprehensive discussion of the agencies' basis for the final
rule.
In developing the final rule, the agencies reviewed and considered approximately 114,000
comments received on the proposed rule from a broad spectrum of interested parties,
including, but not limited to, the regulated community; non-governmental organizations;
professional societies; state, tribal, and local governments; other federal agencies; members
of Congress; and private citizens. Commenters provided a wide range of feedback on the
proposal, including: the legal basis for the proposed rule; the agencies' proposed treatment
of categories of jurisdictional waters and those features that would not be jurisdictional; the
Economic Analysis and Technical Support Document for the proposed rule; and the need
for a clear and implementable rule that is easy for the public to understand.
The agencies agree that the definition of "waters of the United States" should be clear and
implementable, should not be overly burdensome, and should promote regulatory certainty.
Indeed, in response to comments on the proposal, the agencies revised the rule to improve
the clarity, implementability, and durability of the definition. The agencies find that 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. Further, because the final 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. The agencies also
find that the clarifications in the final rule, including the addition of exclusions that codify
longstanding practice and review of the advancements in implementation resources, tools,
and scientific support address many of the concerns raised in the past about timeliness and
consistency of jurisdictional determinations under the Clean Water Act. See Final Rule
Preamble Sections IV.A.4 and IV.G for further discussion of the agencies' finding that the
final rule is both familiar and implementable, as well as information about implementation
tools. Additionally, to provide further clarity and certainty to the public, the agencies are
codifying exclusions in the final rule's regulatory text for the features described in the
proposed rule preamble as generally non-jurisdictional. Clearly identifying these exclusions
in the rule will simplify the process of determining jurisdiction and is an important aspect
of the agencies' policy goal of providing clarity and certainty. See Final Rule Preamble
Section IV.C.7.
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The agencies also agree with commenters who suggested that the definition of "waters of the
United States" should protect water quality and be grounded in the best available science.
Indeed, because the definition of "waters of the United States" should advance the objective
of the Clean Water Act and that objective is focused on restoring and maintaining water
quality, the best available science informs this final rule. See Final Rule Preamble Section
IV.A.2.C. Further, the agencies agree that protecting water resources has many benefits,
including economic benefits.
The agencies acknowledge commenters' requests that the revised definition of "waters of
the United States" reflect consideration of climate change and environmental justice. While
the agencies did not consider climate change in interpreting the scope of the statutory term
"waters of the United States," there are ways the agencies can consider a changing climate
under the significant nexus standard, but only to the extent it is relevant to the evaluation of
whether the subject waters significantly affect the chemical, physical, or biological integrity
of paragraph (a)(1) waters. See Final Rule Preamble Section IV.C.9.c.ii for further
discussion of how the agencies can consider a changing climate under the significant nexus
standard consistent with the best available science.
Moreover, 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 concerns e.g., minority
(Indigenous peoples and/or people of color), and low-income populations, as specified in
Executive Order 12898. The agencies conclude that 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 Section IV.
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 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, the final rule will establish a regime that is generally
comparable to current practice, and this final rule would generate de minimis costs and
benefits as compared to the pre-2015 regulatory regime that the agencies are currently
implementing.
The agencies also disagree with the suggestion that the rule's impacts have not been
adequately evaluated. The agencies prepared an economic analysis pursuant to the
requirements of Executive Orders 12866 and 13563. Because 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 that rely on the definition of
"waters of the United States" (i.e., sections 303, 311,401, 402, and 404). For additional
discussion of these issues, see the agencies' response to comments in Section 1.5 addressing
Clean Water Act programs and Section 17 on the Economic Analysis. See also Economic
Analysis for the Final Rule.
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The agencies acknowledge that features that are not jurisdictional under the Act may be
subject to water quality protections under state, local, or tribal law. The agencies also
acknowledge that some projects may have environmental benefits.
Further, the agencies recognize the vital role played by farmers and others in the
agricultural sector in providing the nation with food and fiber and considered the views of
these and other interested stakeholders in developing the final rule. See Final Rule
Preamble Section III.C. 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.
Regarding comments discussing a potential second rulemaking, see the agencies' response to comments
in Section 5.0.3. For the agencies' response to comments relating to the Supreme Court's review in
Sackettv. Environmental Protection Agency, 8 F.4th 1075 (9th Cir. 2021), cert, granted, 142 S. Ct. 896
(Jan. 24, 2022) (No. 21-454) , see Section 2.6.1.
1.1 General Expressions of Support for the Proposed Rule
Many commenters expressed support for the proposed rule because they believe it would be protective of
water resources and the ecosystem services they provide, such as fish and wildlife habitat, recreation,
drinking water protection, and support of public health. In addition, many of these commenters suggested
that the proposed rule reflects the best available science and/or is consistent with recent court rulings and
the objective of the Clean Water Act. Multiple commenters also supported the proposed rule as providing
a familiar regulatory framework, with one commenter asserting that the significant nexus standard is a
familiar analysis that the agencies and others have a long history of implementing and could provide
predictability. Another commenter suggested that returning to the pre-2015 framework would reduce
confusion.
Some commenters expressed support for specific elements of the proposed rule or advocated that the
proposed rule should provide for protection of specific features such as ephemeral streams and isolated
wetlands. Another commenter stated that the proposed rule would better accommodate the variable
hydrology found in the arid West, particularly in light of climate change.
Several commenters that expressed support for the proposed rule requested that the agencies act quickly
to finalize the rulemaking. One commenter was supportive of the proposed rule and suggested that, even
though the 2020 NWPR was vacated, finalizing the proposed rule is essential to "codify this change."
Agencies' Response: The agencies agree with commenters who expressed support for the
rule as protective of water resources, reflective of the best available science, and consistent
with the law. 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. They are fully consistent with the statute, informed by relevant Supreme
Court decisions, and reflect a reasonable interpretation based on the record before the
agencies, including consideration of the best available science, as well as the agencies'
expertise and experience implementing the pre-2015 regulatory regime. This final rule will
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protect the quality of the nation's waters by restoring the important protections for
jurisdictional waters provided by the Clean Water Act, including not only protections
provided by the Act's permitting programs, but also protections provided by programs
ranging from water quality standards and total maximum daily loads to oil spill prevention,
preparedness, and response programs, to the tribal and state water quality certification
programs. Further, the agencies find that the final rule advances the Clean Water Act's
statutory objective as it is informed by the best available science provided by upstream
tributaries, adjacent wetlands, and intrastate lakes, as well as lakes and ponds, streams, and
wetlands that do not fall within the other jurisdictional categories to restore and maintain
the water quality of traditional navigable waters, the territorial seas, and interstate waters
(i.e., paragraph (a)(1) waters). See Final Rule Preamble Section IV.A for more information
on the final rule's legal and scientific basis; see also Final Rule Preamble Section IV.C.9.c.ii
for a discussion of how the agencies can consider a changing climate under the significant
nexus standard consistent with the best available science.
The agencies also agree that the final rule provides a familiar regulatory framework.
Indeed, the final rule generally restores the longstanding and familiar categories of the 1986
regulations and establishes jurisdictional limitations based on case-specific application of
the relatively permanent standard and the significant nexus standard to certain categories
of waters in the rule. This final rule also increases clarity and implementability by
streamlining and restructuring the 1986 regulations. Since the Supreme Court's decision in
Rapanos v. United States and Carabell v. United States (June 5, 2007), the agencies have over
a decade of nationwide experience in making decisions regarding jurisdiction under the
pre-2015 regulatory regime consistent with the relatively permanent standard and the
significant nexus standard. Regulated entities and other interested parties also have
substantial experience with the 1986 regulations and the two Rapanos standards.
1.2 General Expressions of Opposition to the Proposed Rule
Many commenters expressed opposition to the proposed rule and/or recommended that the agencies
withdraw the proposed rule, with many of these commenters asserting that the proposed rule is overly
expansive and inconsistent with the Clean Water Act and/or Supreme Court precedent. In particular,
commenters expressed concern that the proposed rule would expand jurisdiction to features such as
ephemeral and intermittent features, isolated waters and wetlands, floodplain wetlands, and certain
ditches (including those for storm water control). Numerous commenters also argued that the proposed
rule would improperly expand federal Clean Water Act jurisdiction over features that the commenters
suggested should be subject solely to state jurisdiction.
Additionally, many commenters opposed to the proposed rule suggested that the rule is unreasonable,
does not establish clear jurisdictional boundaries or predictability, and did not provide adequate clarity or
certainty as to how it would be implemented. A commenter contended that the preamble to the proposed
rule was unclear because it offered different alternatives for implementation, and other commenters
criticized the proposed rule as establishing a "subjective" or "arbitrary" approach to determining
jurisdiction. Commenters also expressed concern about the risk of enforcement, penalties, and/or citizen
suits associated with a revised definition of "waters of the United States."
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Multiple commenters argued that the proposed rule, rather than codifying the pre-2015 regulatory regime,
is instead a novel approach to the definition of "waters of the United States." These commenters often
asserted that the proposed rule would unlawfully expand the scope of Clean Water Act jurisdiction, with
some stating that expanding jurisdiction relative to the pre-2015 regulatory regime would cause confusion
and uncertainty.
Many commenters expressed concern that the scope of Clean Water Act jurisdiction under the proposed
rule would negatively impact them and/or their industry or would otherwise be overly burdensome on the
regulated community generally, in part due to the Clean Water Act's permitting requirements. Some of
these commenters criticized the proposed rule as imposing requirements that the commenters viewed as
duplicative of other regulatory programs or "bureaucratic" restrictions that the commenters asserted could
hinder innovation and project implementation. A few commenters also expressed concern that they would
need to incur costs associated with hiring outside experts in order to understand and/or meet the
requirements of the proposed rule, including costs associated with hiring technical or legal consultants
such as scientists, hydrologists, engineers, and lawyers. Another commenter stated that while trained
professionals may be necessary in certain circumstances to evaluate the jurisdictional status of a feature,
providing greater clarity for "the layperson" as to "the meaning of terms, processes, and procedures"
associated with implementing the final rule could minimize reliance on outside experts.
Further, multiple commenters argued that the proposed rule would have a negative impact on the ability
of farmers and ranchers to utilize their land. In addition, several commenters stated that the proposed rule
would negatively impact the recreation industry, including off-road vehicles and golf courses. One
commenter argued that the proposed rule would have unintended consequences for public health and
safety by limiting the location of pesticide treatments. See the agencies' response to comments in Section
17 Economic Analysis for a more detailed discussions of economic impacts.
A couple of commenters opposed to the proposed rule raised concerns around the agencies' workload. A
commenter expressed "concerns with the [agencies'] ability to meet their present workload and to handle
the increased workload if this rule is put into place as currently written, due to being understaffed."
Another commenter argued more generally that the regulatory change associated with the proposed rule
and a potential second rulemaking would "lead to . . . more work for the agencies' staff."
Other commenters expressed concern that the scope of jurisdictional waters under the proposed rule
would not provide for adequate water quality protection and/or meet the objective of the Clean Water Act.
One of these commenters stated that the proposed rule "contains a myopically simplistic approach to
assessing biological integrity that will undermine any ability for the agencies to achieve the goals of the
Clean Water Act." Another commenter expressed concern that the proposed rule would not provide Clean
Water Act protections for many ephemeral and intermittent streams and wetlands in the arid West, which
the commenter stated are important for public drinking water, recreation, and agriculture.
Agencies' Response: The agencies disagree that the rule is overly expansive or inconsistent
with the Clean Water Act or Supreme Court case law. In the final 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
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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." The agencies find that the scope of
"waters of the United States" defined in the final rule is supported by the Clean Water Act
and relevant Supreme Court case law and remains well within the bounds of the agencies'
statutory and constitutional limits. See the agencies' response to comments in Section 2 for a
discussion of the agencies' legal authority to assert jurisdiction over the specific categories
of jurisdictional waters in the final rule. See also Final Rule Preamble Section IV.C for a
description of the types of features that may be jurisdictional under the final rule.
The agencies also disagree that the final rule would expand Clean Water Act jurisdiction
over features that should be subject solely to state jurisdiction. As discussed in Final Rule
Preamble Section IV.A.3, this final rule reflects consideration of the statute as a whole,
including the objective of the Clean Water Act and the policies of the Act with respect to the
role of states and tribes. Where waters do not significantly affect the integrity of waters for
which the federal interest is indisputable, the final rule leaves regulation to the states and
tribes.
Moreover, through the final rulemaking process, the agencies have considered all timely
public comments on the proposed rule, including changes that improve the clarity,
implementability, and durability of the definition. Specifically, the agencies have provided
more clarity in the final rule by: adding limitations to the scope of the definition to the rule
text; adding a definition of "significantly affect" that identifies the functions and factors to
be evaluated as part of a significant nexus analysis; adding exclusions to the rule;
restructuring and streamlining the 1986 regulations; and drawing on more than a decade of
post-Rapanos implementation experience to provide additional implementation guidance
and resources. These improvements, taken together, substantially reduce any inefficiencies
that may be presented by the rule's case-specific approach. The agencies also find that the
clarifications in the final rule, including the addition of exclusions that codify longstanding
practice and review the advancements in implementation resources, tools, and scientific
support address many of the concerns raised in the past about timeliness and consistency of
jurisdictional determinations under the Clean Water Act. Further, 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. To that end, the agencies have included a section in the preamble to the final
rule that provides additional clarity to landowners on how to know when a Clean Water Act
permit is required; this guidance for landowners is available at Final Rule Preamble Section
IV.C.10. See also Final Rule Preamble Section IV.A.4 for discussion of the agencies' finding
that the final rule is both familiar and implementable and Final Rule Preamble Section
IV.G for information about implementation tools. For implementation-related issues
generally, see Final Rule Preamble Section IV.C.
With respect to comments expressing concern about the agencies' workload, the agencies
reiterate—as discussed in this response above and throughout the preamble to the final
rule—that this final rule reflects consideration of the agencies' experience and technical
expertise after more than 45 years of implementing the 1986 regulations defining "waters of
the United States," including more than a decade of experience implementing those
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regulations consistent with the decisions in United States v. Riverside Bayview Homes, 474
U.S. 121,131-35 (1985), Solid Waste Agency of Northern Cook County v. U.S. Army Corps of
Engineers, 531 U.S. 159 (2001) ("SWANCC*'), and Rapanos collectively. Notably, the
agencies have extensive experience making jurisdictional determinations using the relatively
permanent standard and the significant nexus standard.
Regarding some commenters' concerns that the rule may be too subjective or arbitrary, see
the discussion of "significantly affect" in Section IV.C.9 of the Final Rule Preamble. For an
explanation of how the final rule relates to the pre-2015 regulatory regime, see the agencies'
response to comments in Section 3.1.
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. 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 final 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. Individuals uncertain about
the status of waters on their property may obtain a jurisdictional determination from the
Corps. See 33 CFR 325.1; Regulatory Guidance Letter 16-01 (2016). For additional
discussion of these issues, see the agencies' response to comments in Section 1.4, Section 1.5,
and Section 17. See also Economic Analysis for the Final Rule and Final Rule Preamble
Section IV.C.10 (providing guidance to landowners on how to determine when a Clean
Water Act permit is required).
Finally, with respect to comments expressing concern that the final rule's jurisdictional
standards do not provide for adequate Clean Water Act protections, the agencies agree that
the Clean Water Act requires broader protection than the relatively permanent standard,
but have concluded, as explained in Section IV.A.3 of the Final Rule Preamble, that the
significant nexus standard is the best construction of the scope of the Clean Water Act.
Further, as discussed in Section IV.A.2 of the Preamble to the Final Rule, the agencies find
that the final rule advances the Clean Water Act's statutory objective as it is informed by
the best available science concerning the functions provided by upstream tributaries,
adjacent wetlands, and intrastate lakes and ponds, streams, and wetlands that do not fall
within the other jurisdictional categories to restore and maintain the water quality of
traditional navigable waters, the territorial seas, and interstate waters (i.e., the paragraph
(a)(1) waters). See also Section III.E of the Technical Support Document for additional
discussion of the significant nexus standard.
1.3 Durability and Regulatory Certainty
The agencies received many comments on the topic of the proposed rule's durability and/or regulatory
certainty (or similar terms).
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Some commenters discussed durability, regulatory certainty, or similar concepts in relation to previous
and/or anticipated litigation around the agencies' rulemakings on the definition of "waters of the United
States." These commenters generally argued that the agencies' rulemakings revising the definition and
associated litigation had and/or would contribute to regulatory uncertainty or similar issues. Several of
these commenters raised concerns about legal challenges and/or litigation arising from the present
rulemaking to revise the definition of "waters of the United States."
A number of commenters asserted that the proposed rule's reliance on a case-by-case approach is contrary
to or otherwise in tension with the agencies' goals around durability and regulatory certainty. Some of
these commenters suggested that clearer exclusions, definitions of key terms such as "tributary," and/or
more categorically jurisdictional types of waters would provide greater durability, clarity, and/or
regulatory certainty and be less burdensome to comply with. Several commenters asserted that the
proposed rule language was unclear, with one commenter stating that without definitions that are
"specific, clear, reasonably concise, and enforceable," more case-by-case analyses would be needed.
Another commenter criticized the proposed rule's reliance on the significant nexus and relatively
permanent standards as establishing an "ambiguous and inefficient process" for determining Clean Water
Act jurisdiction that would result in "inconsistent implementation [and] regulatory uncertainty." This
commenter asserted that the proposed rule "does not achieve the agencies' goal of creating a foundation
for an enduring and durable ['waters of the United States'] definition," adding that the process for
determining whether a water is jurisdictional "should not be an exhaustive investigation that is only
understood by select federal staff."
Numerous commenters called for "balance" or otherwise alluded to that concept in their comments, tying
that idea to a sense of "certainty," "durability," and/or similar words. Most of these commenters
highlighted the importance of environmental protection in their discussion of balance, with some
emphasizing a need to balance between providing water quality protections and providing regulatory
certainty. These commenters tended to call for a need to balance and respect the interests of various
sectors and stakeholders, including for example:
• Businesses;
• Communities;
• Economic activity;
• Industry;
• Infrastructure;
• Farmers;
• Landowners,
• Private property rights;
• Ranchers;
• Regulated parties;
• State and local governments; and
• Water resources and supplies.
Agencies' Response: The agencies acknowledge that the definition of "waters of the United
States" has changed multiple times since the Clean Water Act was enacted and that such
changes can contribute to regulatory uncertainty. The agencies also acknowledge that
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litigation over rules revising the definition of "waters of the United States" has at times
contributed to regulatory uncertainty as well as confusion, especially where such litigation
has resulted in different regulatory regimes being in effect in different parts of the country.
In addition, the agencies recognize that this final rule may itself be subject to legal
challenges, and that this gives rise to the possibility of a return to the application of
different regulatory definitions in different states. Yet, the agencies cannot predict the
outcome of any future challenges, and the possibility of courts enjoining the final rule
should not preclude the agencies from taking this final action.
Additionally, the agencies acknowledge that the final rule will result in the need for case-
specific analyses for certain jurisdictional determinations and that some commenters
expressly requested that the rule include more types of categorically jurisdictional or non-
jurisdictional features as a means of potentially providing greater clarity or regulatory
certainty. As discussed in Final Rule Preamble Section IV.A.3, however, the agencies find
that fact-based standards for determining Clean Water Act jurisdiction are appropriate
and are not unique to the definition of "waters of the United States." Indeed, the agencies
have the discretion to consider defining waters as jurisdictional on a categorical basis where
scientifically and legally justified (for example in the final rule, paragraph (a)(1) waters and
their adjacent wetlands) or a case-specific, fact-based approach (for example, in the final
rule, tributaries and their adjacent wetlands that meet the significant nexus standard or
relatively permanent standard). While the latter does not necessarily provide the same
certainty as defining waters as jurisdictional by category, case-specific determinations of the
scope of Clean Water Act jurisdiction are not unusual—in fact, they are the norm. For a
more comprehensive discussion of this issue, see Final Rule Preamble Section IV.A.3.a.iii.
Further, the agencies have provided greater clarity in this final rule by: adding limitations
to the scope of the definition to the rule text; adding a definition of "significantly affect"
that identifies the functions and factors to be evaluated as part of a significant nexus
analysis; restructuring and streamlining the 1986 regulations; and drawing on more than a
decade of post-Rapanos implementation experience to provide additional implementation
guidance and resources. These improvements, taken together, substantially reduce any
inefficiencies that may be presented by the final rule's case-specific approach. The agencies
also find that the clarifications in the final rule, including the addition of exclusions that
codify longstanding practice and review of the advancements in implementation resources,
tools, and scientific support address many of the concerns raised in the past about
timeliness and consistency of jurisdictional determinations under the Clean Water Act. See
Final Rule Preamble Section IV.G for information about implementation data, tools, and
methods that are relevant to jurisdictional determinations under the final rule.
Moreover, to provide further clarity and certainty to the public, the agencies are codifying
exclusions in the final rule's regulatory text for the features described in the proposed rule
preamble as generally non-jurisdictional. Clearly identifying these exclusions in the final
rule will simplify the process of determining jurisdiction and is an important aspect of the
agencies' policy goal of providing clarity and certainty.
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For these reasons, among others discussed more fully in the preamble to the final rule, the
agencies find that the final rule will achieve the agencies' goals of effectively and durably
protecting the quality of the nation's waters.
See also the agencies' response to comments in Section 15 (addressing exclusions) and
Section 18 (addressing other recommendations, including recommendations related to
defining certain terms used in the rule).
1.3.1 Durability
Multiple commenters expressed general support for the agencies' interest in crafting a "durable"
definition of "waters of the United States," with several commenters suggesting that the proposed rule
was consistent with that goal. Other commenters expressed support for developing a durable definition in
a second rulemaking.
A number of commenters suggested that a revised definition of "waters of the United States" would not
be "durable" if it did not take regional considerations into account, such as regional variations in climate
and hydrology, particularly in the arid West. Another commenter stated that a "durable" rule would be
one that provides regulatory certainty without "unnecessarily hindering" the regulated community's
ability to develop and manage projects such as those related to water infrastructure.
Several commenters called for a science-based approach to the definition of "waters of the United States"
in discussing development of a "durable" rule, with one suggesting that a definition grounded in science
could "stand the test of time." A few commenters further related the concept of "durability" to providing
strong water quality protections. One of these commenters asserted that the proposed rule should be more
protective regardless of the agencies' intentions to develop a more durable rule in a second rulemaking.
Other commenters expressed the view that the proposed rule would not advance the agencies' goal of
developing a "durable" definition. Most of these commenters suggested that the proposed rule would not
provide for durability due to the commenters' concerns with the proposed rule's potential impacts on a
specific sector or sectors, particularly the agricultural sector. Commenters identified specific sectors and
types of stakeholders, included the following (in alphabetical order):
• Agencies, co-regulators, and the regulated community, including for example states and tribes,
municipalities, and the specific sectors listed below;
• Agricultural community and industry, including for example farmers, ranchers, cattle producers,
livestock producers, soybean producers, and growers;
• Businesses (including small business)/companies/industries;
• Citizens/communities/the general public;
• Developers;
• Drinking water sector;
• Flood and stormwater managers;
• Foresters;
• Infrastructure sector(s);
• Invasives species management professionals;
• Land managers;
• Landowners/property owners;
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• Mining operations;
• Municipalities;
• Pipeline operators;
• Private and/or public property managers;
• Public health sectors;
• Public interests (e.g., drinking water);
• Public works agencies;
• Ready mix concrete industry;
• Small and rural communities, particularly in terms of drinking water and sanitation;
• Stakeholders generally;
• Taxpayers;
• Water managers (agricultural and municipal);
• Water supply and treatment facilities; and
• Wetland and stream mitigation and ecological restoration providers.
Agencies' Response: The agencies appreciate commenters' expressions of support around
establishing a durable definition of "waters of the United States." For the reasons discussed
in Final Rule Preamble Section IV.A, the agencies find that the final rule will achieve the
agencies' goals of effectively and durably protecting the quality of the nation's waters. The
effectiveness of the final rule is based, in part, on the familiarity of the regulatory
framework to the agencies and stakeholders, with an array of readily available tools and
resources. The final rule also is durable because it is founded on the familiar framework of
the longstanding 1986 regulations, amended to reflect the agencies' interpretation of
appropriate limitations on the geographic scope of the Clean Water Act in light of the law,
the science, and agency expertise. The final rule also reflects the agencies' consideration of
the extensive public comments. This final rule protects the quality of the nation's waters by
restoring the important protections for jurisdictional waters provided by the Clean Water
Act, including not only protections provided by the Act's permitting programs, but also
protections provided by programs ranging from water quality standards and total
maximum daily loads to oil spill prevention, preparedness, and response programs, to the
tribal and state water quality certification programs. See also the agencies' response to
comments in Section 5.0.3 (addressing a potential second rulemaking).
The agencies acknowledge the importance of regional variation and received substantial
feedback on this issue in developing the final rule, including feedback on potential regional
approaches to implementation. This final rule does not preclude the agencies from taking
into account regional considerations as part of a significant nexus analysis, but the agencies
are not explicitly including regional criteria in the rule to ensure they have the flexibility to
address local conditions. The initial phase of implementing the final rule will require
education and training for agency staff as well as co-regulators, stakeholders, and the
regulated public, which will likely include regionally based training to ensure consistent and
efficient implementation of the final rule. For additional discussion of issues related to
regional variation, see the agencies' response to comments in Section 18.3.
Finally, the agencies acknowledge that there are indirect costs—both monetary and
temporal—associated with implementation of the final rule. Indeed, there are indirect costs
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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. 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 and destruction. Each of these programs may subsequently impose
costs as a result of implementation of their specific regulations. See the Economic Analysis
for the Final Rule and the agencies' response to comments in Section 17 for more
information on potential costs and benefits associated with the final rule.
1.3.2 Regulatory certainty
Many commenters expressed concern that the multiple changes to the definition of "waters of United
States" over the years has led to regulatory uncertainty or similar issues. One of these commenters stated
that frequent changes to the definition have had an adverse impact on small and rural communities, which
the commenter stated "often have difficulty providing safe, affordable drinking water and sanitation due
to limited economies of scale and a lack of technical expertise."
A few commenters specifically critiqued changes to the definition of "waters of the United States" that
the commenters perceived as being associated with political administration changes. For example, one
commenter asserted that it is unreasonable for the agencies to "constantly change regulations based on
political headwinds," expressing the view that such an approach "is in direct contradiction of EPA's
mission to administer and enforce Federal laws fairly and effectively." A few commenters used the term
"whiplash" to critique the Clean Water Act's history and/or changes in the definition of "waters of the
United States," with one commenter quoting a statement from Administrator Regan in an EPA press
release that "[i]n recent years, the only constant with ['waters of the United States'] has been change,
creating a whiplash in how to best protect our waters in communities across America." Another
commenter opined that the proposed rule's apparent return to the pre-2015 regulatory regime would not
be permanent and so would contribute to uncertainty and confusion.
Some commenters discussed regulatory certainty relative to prior regulatory regimes around "waters of
the United States." Several commenters expressed support for the 2020 Navigable Waters Protection Rule
(2020 NWPR) as providing regulatory certainty and/or clarity, with some stating that failing to implement
the 2020 NWPR would contribute to regulatory uncertainty. One commenter asserted that the 1986
regulations represent the "only" durable definition of "waters of the United States," stating that it "has
been in place for more than 40 years," "has never been overturned by any court or amended by
Congress," and "represents the epitome of durable regulation." This commenter urged the agencies to
restore the 1986 regulations without any of the regulatory revisions included in the proposed rule. In
contrast, another commenter criticized the 1986 regulations as being ambiguous and providing
insufficient clarity around which waters were jurisdictional; this commenter suggested that the proposed
rule would similarly fail to provide regulatory certainty. A different commenter expressed concern that
the proposed rule's revisions to the 1986 regulations would expand upon, rather than adhere to, the pre-
2015 regulatory regime and that such an expansion would introduce new uncertainties for the regulated
community.
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Many commenters expressed concern that a lack of regulatory certainty under the proposed rule could
interfere with various stakeholders' abilities to plan for and/or seek permits for activities, including
development projects. One commenter argued that the proposed rule does not provide clear standards for
farmers and ranchers and that this uncertainty would subject farmers and ranchers to costs and delays.
A few commenters raised concerns about the impact of regulatory uncertainty on what they characterized
as beneficial projects, including, for example, flood and stormwater infrastructure, ecological restoration,
and wetland and stream mitigation. Additionally, a few commenters suggested that regulatory uncertainty
and burdens associated with the proposed rule's case-by-case approach to jurisdiction have no
corresponding environmental benefit or do not actually improve water quality.
Agencies' Response: The agencies acknowledge that the definition of "waters of the United
States" has changed multiple times since the Clean Water Act was enacted and that such
changes can contribute to regulatory uncertainty. In this final rule, the agencies are
exercising their authority to construe "waters of the United States" to mean the waters
defined by the familiar 1986 regulations with amendments to reflect the agencies'
interpretation of the statutory limits 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."
In response to comments on the proposal, the agencies revised the rule to improve the
clarity, implementability, and durability of the definition. The agencies find that 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. Further, because the final 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. The agencies also
find that the clarifications in the final rule, including the addition of exclusions for features
that were generally considered non-jurisdictional under the pre-2015 regulatory regime,
and the intervening advancements in implementation resources, tools, and scientific support
address some of the concerns raised in the past about timeliness and consistency of
jurisdictional determinations under the Clean Water Act. See Final Rule Preamble Sections
IV.A.4 and IV.G for further discussion of the agencies' finding that the final rule is both
familiar and implementable, as well as information about implementation tools. Moreover,
to provide further clarity and certainty to the public, the agencies are codifying exclusions
in the final rule's regulatory text for the features described in the proposed rule preamble
as generally non-jurisdictional. Clearly identifying these exclusions in the rule will simplify
the process of determining jurisdiction and is an important aspect of the agencies' policy
goal of providing clarity and certainty. See Final Rule Preamble Section IV.C.7.
In developing the final rule, the agencies thoroughly considered alternatives to the rule,
including the 2015 Clean Water Rule, the 2019 Repeal Rule, and the 2020 NWPR, 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,
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is informed by the best available science, and promptly and durably restores vital
protections to the nation's waters. See Section IV.B of the Preamble to the Final Rule for a
comprehensive discussion of the agencies' consideration of alternatives to the final rule. See
also the agencies' response to comments in Section 3.1 (explaining how the final rule relates
to the pre-2015 regulatory regime and addressing the agencies' decision to revise the 1986
regulations rather than adopt them unchanged).
The agencies acknowledge that a lack of regulatory certainty can adversely impact the
ability to plan for development or other activities. The final rule generally restores the
longstanding and familiar categories of the 1986 regulations and establishes jurisdictional
limitations based on case-specific application of the relatively permanent standard and the
significant nexus standard to certain categories of waters in the rule. Indeed, the agencies
have over a decade of nationwide experience in making decisions regarding jurisdiction
under the pre-2015 regulatory regime consistent with the relatively permanent standard
and the significant nexus standard. Regulated entities and other interested parties have
substantial experience with the 1986 regulations and the two Rapanos standards.
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).
Additionally, the agencies acknowledge that the need for case-specific analyses will continue
under this rule for certain jurisdictional determinations. Given the factual nature of the
jurisdictional inquiry, any standard will require some case-specific factual determinations;
as a result, all definitions of "waters of the United States"—including the pre-2015
regulatory regime, the 2015 Clean Water Rule, and the 2020 NWPR—have required some
level of case-specific analysis. Nonetheless, the agencies find that the clarifications in this
final rule, including the addition of exclusions that codify longstanding practice and review
of the advancements in implementation resources, tools, and scientific support address
many of the concerns raised in the past about timeliness and consistency of jurisdictional
determinations under the Clean Water Act. Specifically, the agencies have provided greater
clarity in this rule by: adding limitations to the scope of the definition to the rule text;
adding a definition of "significantly affect" that identifies the functions and factors to be
evaluated as part of a significant nexus analysis; restructuring and streamlining the 1986
regulations; and drawing on more than a decade of post -Rapanos implementation
experience to provide additional implementation guidance and resources. These
improvements, taken together, substantially reduce any inefficiencies that may be presented
by the final rule's case-specific approach. See Final Rule Preamble Section IV.G for
information about implementation data, tools, and methods that are relevant to
jurisdictional determinations under the final rule.
Finally, 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. See the Economic
Analysis for the Final Rule and the agencies' response to comments in Section 17 for
information on potential costs and benefits associated with the final rule.
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1.4 Jurisdictional Determinations and Permitting Issues
The agencies received many comments on jurisdictional determinations and permitting issues. Many
commenters that provided feedback on jurisdictional determinations and permitting issues did so in the
context of discussing regulatory certainty and related themes, such as a desire for greater efficiency.
Multiple commenters expressed concerns about project and/or operational impacts such as costs and
delays associated with obtaining jurisdictional determinations and necessary permits, in addition to the
impact that delays associated with permitting requirements may have on project planning. Some of these
commenters suggested that costs associated with the process of obtaining a jurisdictional determination
and/or permit are overly burdensome, such as costs associated with hiring consultants and engineers,
submitting permit applications, and additional mitigation and compliance costs that may arise where
jurisdictional waters are found. Several commenters asserted that this process can amount to a $500/acre
or greater decrease in value of the land and that mitigation costs to proceed with development can cost up
to thousands of dollars per linear foot.
Some commenters discussed concerns around issuance of jurisdictional determinations and/or permitting
issues with respect to particular sectors or stakeholder groups, including the following (in alphabetical
order):
• Aggregates industry;
• Agriculture, including the "agricultural community," cattle producers, farmers, "leaders of rural
communities," irrigated agriculture, producers, and ranchers;
• Builders (e.g., homebuilders) and/or land developers;
• Businesses, business owners, small businesses, and large businesses;
• Communities;
• Construction businesses;
• Ditch owners;
• Electricity generation, transmission, distribution and operations, and utilities;
• Energy infrastructure, including clean energy and renewable energy;
• Environmental non-governmental organizations;
• Industries;
• Infrastructure;
• Institutions;
• Flood control managers;
• Foresters and forest owners;
• Housing;
• Landowners/property owners;
• Land improvement contractors;
• Mining;
• Oil and gas companies;
• Pesticides and aerial applicators;
• Pipeline and utility infrastructure;
• Power companies;
• The public;
• Recreation lands management organizations;
• Regulated community and regulated public;
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• States, counties, local government, municipalities, tribal governments, and public agencies;
• "state wetland regulators and related non-governmental organizations;"
• Stormwater control entities;
• Transportation;
• Water management, including conservation, development, delivery, use, and resilience;
• Wetland mitigation and ecological restoration; and
• Wetlands management.
Further, a number of commenters expressed concern that the case-by-case approach to assessing
jurisdiction under the proposed rule would be overly burdensome and lead to uncertainty in permitting for
the regulated community or that the proposed rule's jurisdictional standards were unclear and would thus
contribute to challenges in obtaining jurisdictional determinations or permits. Additionally, many
commenters asserted that a case-by-case approach to assessing jurisdiction would result in increased costs
and delays for the regulated community. Another commenter suggested that case-by-case analyses would
burden the agencies and cause confusion.
Several commenters critiqued the proposed rule as creating an undesirable or unfair choice between
paying for compliance costs (e.g., permitting, consulting, delays) or dealing with enforcement risks (e.g.,
penalties) associated with potential non-compliance. Another commenter voiced concerns about
"increased risk of unintentional violations" as the regulated community adapts to changes in the definition
of "waters of the United States."
Agencies' Response: The agencies acknowledge the need for case-specific analyses will
continue under the final rule for certain jurisdictional determinations, potentially raising
some timeliness and consistency issues that the agencies' rule in 2015 and 2020 were
designed, in part, to reduce. Yet, as discussed in Final Rule Preamble Section IV.A.3, the
agencies find that fact-based standards for determining Clean Water Act jurisdiction are
appropriate and not unique to the definition of "waters of the United States." The agencies
have provided more clarity in this rule by: adding limitations to the scope of the definition
to the rule text; adding a definition of "significantly affect" that identifies the functions and
factors to be evaluated as part of a significant nexus analysis; adding exclusions to the rule;
restructuring and streamlining the 1986 regulations; and drawing on more than a decade of
post-Rapanos implementation experience to provide additional implementation guidance
and resources. These improvements, taken together, substantially reduce any inefficiencies
that may be presented by the rule's case-specific approach. The agencies also find that the
clarifications in the final rule, including the addition of exclusions for features that were
generally considered non-jurisdictional under the pre-2015 regulatory regime, and the
intervening advancements in implementation resources, tools, and scientific support
address many of the concerns raised in the past about timeliness and consistency of
jurisdictional determinations under the Clean Water Act.
The agencies also 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. See the Economic
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Analysis for the Final Rule and the agencies' response to comments in Section 17 for
information on potential costs and benefits associated with the final rule.
The agencies disagree that the final rule's reliance on case-specific analyses for certain
jurisdictional determinations will be burdensome to the agencies. Since the Supreme
Court's decision in Rapanos, the agencies have gained more than a decade of nationwide
experience in making jurisdictional determinations under the pre-2015 regulatory regime
consistent with the relatively permanent standard and the significant nexus standard.
Moreover, the scientific and technical information available to inform the significant nexus
analysis and identify waters that meet the relatively permanent standard has also markedly
improved over time and become more readily available since the agencies first started
implementing both standards. See Final Rule Preamble Section IV.G for information about
implementation data, tools, and methods that are relevant to jurisdictional determinations
under the final rule.
For additional clarity and guidance to assist in implementing the relatively permanent
standard and significant nexus standard, see Section IV.C of the Preamble to the Final
Rule. Specifically, see Final Rule Preamble Sections IV.C.4, IV.C.5, and IV.C.6 for
additional information on how the agencies will implement these standards for tributaries,
adjacent wetlands, and paragraph (a)(5) waters. These sections include guidance on
identifying waterbodies on the landscape, determining which waters are "relatively
permanent, standing or continuously flowing," identifying waters with a "continuous
surface connection" under the relatively permanent standard, and which waters are
"similarly situated" and "in the region" under the significant nexus standard. Further,
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 also the agencies' response to comments in Section 1.3 (addressing issues related to
durability and regulatory certainty).
1.4.1 Jurisdictional determinations
Numerous commenters criticized the proposed rule's case-by-case approach to jurisdictional
determinations, asserting that it could result in similar features being treated differently and that such
inconsistency would be unfair to the regulated community by creating an unequal playing field.
Additionally, many commenters expressed concern that case-by-case analyses would delay the overall
process for obtaining jurisdictional determinations. Commenters also critiqued the case-by-case approach
to jurisdictional determinations as contributing to a general lack of clarity or regulatory certainty. Another
commenter asserted that the agencies should make clear that they bear the burden to justify an assertion of
federal jurisdiction "in case-by-case determinations ... as well as enforcement proceedings."
Multiple commenters expressed concern that the process of receiving a jurisdictional determination is
costly and lengthy, with some commenters claiming that the process may take between six months to a
year to complete. One commenter expressed support for "strategies to reduce the demand for federal
jurisdictional determinations and delays for project proponents." A different commenter requested that the
jurisdictional determination process be streamlined so local governments would not spend limited
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financial resources to hire outside professionals. Another commenter called for "standardized processing
of JDs" in the context of different Corps districts' approaches to approved jurisdictional determinations
(AJDs), preliminary jurisdictional determinations (PJDs), communications, timelines, and tracking,
emphasizing that a more standardized or streamlined approach would "ensure regulators are organized
and efficiently using their time to reach a timely JD decision." One commenter stated that it is important
that federal agencies dedicate necessary resources to ensure efficient jurisdictional determinations.
Additionally, a commenter suggested that AJDs should not be subject to a five-year expiration period.
The commenter argued that requiring project proponents to request a new jurisdictional determination
after five years presents an unnecessary regulatory burden because, according to the commenter,
"watercourses do not typically change character" in a five-year timeframe. The commenter asserted that
instead of a five-year expiration period, AJDs should remain valid until the Corps receives a request for a
new jurisdictional determination. Another commenter asserted that EPA should use Corps' jurisdictional
determinations for Clean Water Act section 402 purposes. This commenter argued that it is confusing and
inefficient to limit usage of jurisdictional determinations to the Clean Water Act section 404 program.
Another commenter requested that the rule include reasonable and enforceable time limits on review of
requests for AJDs.
Finally, one commenter expressed the view that the proposed rule is "setting the stage" for the agencies to
"go back to desktop jurisdictional determinations."
Agencies' Response: Regarding the consistency of jurisdictional determinations under the
final rule and related issues such as clarity and regulatory certainty, see the agencies'
response to comments in Section 1.4. For information about implementation data, tools, and
methods that are relevant to jurisdictional determinations under the final rule, see Final
Rule Preamble Section IV.G. See also Final Rule Preamble Section IV.C.10 (providing
guidance to landowners on how to determine when a Clean Water Act permit is required).
Moreover, as with any final regulation, the agencies will consider developing new guidance
to facilitate implementation of the final rule should questions arise in the field regarding
application of the final rule. Nevertheless, the agencies conclude that the final rule, together
with the preamble and existing tools, provides sufficient clarity to allow consistent
implementation of the final rule.
The agencies acknowledge that they will continue to bear the burden of proof for
determinations of whether or not a water is jurisdictional. Further, the agencies note that
while a requestor is not required to provide information regarding applicability of the
exclusions to the agencies during the jurisdictional determination process, it is to their
benefit to do so because the person asserting that a water is excluded or that a person's
activities are exempt under the Clean Water Act bears the burden of proving that the
exclusion or exemption applies. See, e.g., United States v. Akers, 785 F.2d 814, 819 (9th Cir.
1986).
The agencies also 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. See the Economic
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Analysis for the Final Rule and the agencies' response to comments in Section 17 for
information on potential costs and benefits associated with the final rule.
Comments regarding the regulations governing approved jurisdictional determinations
(AJDs), including comments on the five-year expiration period of AJDs or timeframes
associated with review of requests for AJDs, are outside the scope of this rulemaking.
Finally, with respect to the use of "desktop jurisdictional determinations," the agencies
note that they have been using remote sensing and desktop tools to assist with
identifying jurisdictional waters for many years, and that such tools are particularly
critical where field data is unavailable or where a field visit is not possible. Due to
limitations associated with some remote tools, field verification for accuracy may be
necessary (e.g., due to scale or vegetative cover, not all tributaries may be visible in
satellite and aerial photographs or mapped in the National Hydrography Dataset. See
Final Rule Preamble Section IV.G for a detailed discussion of tools and data used in
jurisdictional decisionmaking, including aerial photography, U.S. Geological Survey
maps, and National Wetland Inventory data, among others.
1.4.2 Status of pre-existing approved jurisdictional determinations
A number of commenters expressed confusion or concern over the status of approved jurisdictional
determinations (AJDs) issued under prior rules, particularly the status of AJDs issued under the 2020
NWPR before it was vacated. Some commenters requested that the agencies expressly state in the
preamble that these pre-existing AJDs will remain valid under a new final rule—including AJDs issued
under the 2020 NWPR while it was in effect. This concept is sometimes referred to as "grandfathering."
Many commenters asserted that grandfathering pre-existing AJDs would promote regulatory certainty and
fairness and suggested that the agencies address the status of pre-existing AJDs in the preamble to avoid
confusion and potential costs that could arise in the absence of clarity as to whether such AJDs would be
honored.
In asking the agencies to "grandfather" prior AJDs, several commenters cited case law such as U.S. Army
Corps of Engineers v. Hawkes Co., Inc., 136 S. Ct. 1807 (2016) and administrative documents such as
Regulatory Guidance Letters 05-02 and 16-01. Commenters also referenced the agencies' public
statements on the impact of the vacatur of the 2020 NWPR on pre-existing AJDs, as well as the agencies'
statements in prior rulemakings revising the definition of "waters of the United States." One of these
commenters asserted that the agencies' decision not to rely on AJDs issued under the 2020 NWPR for
new permit decisions has eroded stakeholders' confidence in the value of jurisdictional determinations
and resulted in adverse financial impacts and project delays, cancellations, and/or modifications
associated with the need to obtain a new jurisdictional determination. This commenter stated that, to
restore stakeholder confidence in AJDs, the agencies should solicit public comment on "narrow and
specific criteria" that would be used to reopen or revise AJDs.
A few commenters asserted that in prior rulemakings, the agencies stated that changes to the definition
would not apply retroactively and that existing AJDs (and permits) would not be reopened for
reconsideration under the revised definition. One of these commenters asked that, in addition to honoring
pre-existing AJDs, the agencies refrain from applying the pre-2015 regulatory regime or the new revised
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definition to AJDs associated with pending permit applications that had been deemed complete on or
before the August 30, 2021 district court order vacating the 2020 NWPR. The commenter stated that this
approach would be consistent with statements in a 2008 rulemaking wherein the agencies indicated that
applying new requirements to a permit applicant that has invested time and effort into complying with
prior requirements would impose a substantial hardship, citing 73 FR 19594, 19608 (Apr. 10, 2008).
Further, the commenter requested that the agencies clarify that both vacatur of the NWPR and issuance of
a new revised definition does not constitute "new information" that can be used to reopen an existing AJD
pursuant to Regulatory Guidance Letter 05-02. The commenter argued that such an approach would be
consistent with the agencies' prior practice as well as the Supreme Court's finding in Hawkes that an AJD
is a final agency action. A different commenter argued that the agencies must honor AJDs issued under
the 2020 NWPR, rather than applying the vacatur of the 2020 NWPR retroactively, citing Landgraf v.
USI Film Prods., 511 U.S. 244, 264 (1994) (quoting Bow en v. Georgetown Univ. Hosp., 488 U.S. 204,
208 (1988)).
Agencies' Response: The agencies recognize that promulgation of the final rule could lead
to questions regarding AJDs issued under prior rules defining "waters of the United States"
and the utility of such AJDs to support actions, such as requests for permits, following the
effective date of this rule. The agencies address the effect of the final rule on previously
issued AJDs and the extent to which AJDs issued under prior rules may be relied upon, as
well as the status of AJDs issued under the 2020 NWPR, in Final Rule Preamble Section
IV.F.
The Corps' approach to determining whether to reopen an AJD, including the suggestion
that the agencies solicit public comment on what criteria to use, is outside the scope of this
rulemaking.
1.4.3 Project and/or operational impacts
A number of commenters expressed concern about potential project and/or operational impacts related to
the process of obtaining jurisdictional determinations and/or permits and their associated requirements,
including the need for additional fieldwork. Some commenters suggested that an expansive and/or unclear
definition of "waters of the United States" would lead to more projects requiring permits, which the
commenters stated would increase project expenses, timelines, and general regulatory uncertainty. A few
of these commenters asserted that such compliance costs have no corresponding environmental benefit.
One commenter expressed concern that the proposed revised definition would result in disproportionate
impacts to their state and be unreasonably burdensome to oil and gas operations, maritime operations,
tribal corporations, and rural communities. Another commenter suggested that the proposed rule would
hinder surface water supply projects in their state, such as new reservoirs, stormwater retention ponds,
and storage basins. Another commenter raised concerns about "wildfire impacted drainages" becoming
jurisdictional, including "isolated waters, as aggregated, intermittent or ephemeral streams, or even all
tributaries," which the commenter argued would "impede entities' ability to timely respond to the
devastating impacts of the forest fires ravaging the west."
Multiple commenters who discussed project and/or operational impacts argued that the proposed rule
could or would hinder environmentally beneficial projects. Some commenters provided the following
types of projects as examples:
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• "Climate, clean energy, resilience, and water management projects";
• "Water resiliency projects";
• Flood control projects;
• Forestry "best management practices such as buffers alongside features such as roadside ditches
and ephemeral streams";
• Water treatment and erosion control;
• "Voluntary conservation efforts"; and
• General ecological and water quality benefitting projects, including innovative approaches.
Some commenters discussed consequences beyond the project- or industry-specific scale that they argued
would result from the proposed rule due in part to potential project-, industry-, or sector-specific scale
impacts. These commenters argued that these impacts would lead to consequences related to the
following:
• Economy and/or competitiveness, including for example, related to COVID-19 recovery, supply
chain, or others;
• Utility, energy, and/or other public services and/or associated rates, including for example, costs
for taxpayers or ratepayers;
• Public agency (e.g., federal, state, municipal) resources;
• Public health;
• Environmental issues, including stewardship, justice, and restoration;
• Climate and/or clean energy;
• Recreation lands and trails access and management;
• Homebuilding and homeownership, such as by making it more expensive for developers so that
there is a more costly and higher bar to becoming a homeowner;
• Jobs;
• "Farmers' ability to provide safe, affordable, and abundant food, fuel, and fiber to the citizens of
this nation and the world"; and
• "Energy security."
Additionally, several commenters discussed the proposed rule's impacts and consequences related to
infrastructure (including energy and transportation infrastructure), as well as projects that require the
provision of building materials from the mining and aggregates industries. These commenters tended to
argue that the proposed rule would delay or otherwise interfere with infrastructure development, including
by impacting projects related to energy (as well as clean energy), transportation, water (e.g., supply,
wastewater, flood control), mining, construction, and/or the supply chain generally. A few commenters
further asserted that the proposed rule's potential impacts could interfere with or undermine the Biden
administration's priorities around infrastructure improvements and economic recovery.
Agencies' Response: The agencies find that 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. As discussed in Section V.A of the Preamble to the Final Rule, the final rule will
establish a regime that is generally comparable to current practice and will thus generate de
minimis costs and benefits as compared to the pre-2015 regulatory regime that the agencies
are currently implementing. The agencies expect that there will be a slight and
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unquantifiable increase in waters being found to be jurisdictional under the final rule 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. As noted above, however, because the final
rule is very similar in scope to that of pre-2015 practice, there will be de minimis new
indirect costs associated with implementation of the final rule. Instead, 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 final 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. See the Economic Analysis
for the Final Rule and the agencies' response to comments in Section 17 for more
information on potential costs and benefits associated with the final rule; see also the
agencies' response to comments on regulatory certainty in Section 1.3.
The agencies disagree with commenters who suggested that the final rule fails to provide
corresponding environmental benefits. In the Economic Analysis for the Final Rule, the
benefit estimates, in particular, do not reflect the full scope of benefits of the rule, as they
omit known sources of benefits that are inherently difficult to quantify. Many of the benefits
provided by potentially jurisdictional water features can be episodic and highly dispersed,
making them inherently difficult to accurately quantify their aggregate effect over time and
across landscapes. Examples of these benefit categories include the ability to sequester
carbon, reduce soil erosion, and retain flood waters. See Section III.C.3 of the Economic
Analysis for the Final Rule for further discussion of the final rule's unquantified benefits.
With respect to concerns that the rule will hinder environmentally beneficial projects, the
agencies emphasize that the final rule will protect the quality of the nation's waters by
restoring the important protections for jurisdictional waters provided by the Clean Water
Act, including not only protections provided by the Act's permitting programs, but also
protections provided by programs ranging from water quality standards and total
maximum daily loads to oil spill prevention, preparedness, and response programs, to the
tribal and state water quality certification programs. Indeed, this final rule advances the
Clean Water Act's statutory objective as it is informed by the best available science
concerning the functions provided by upstream tributaries, adjacent wetlands, and
interstate lakes and ponds, streams, and wetlands that do not fall within the other
jurisdictional categories to restore and maintain the water quality of traditional
navigable waters, the territorial seas, and interstate waters the paragraph (a)(1)
waters). See also Final Rule Preamble Section IV.C.9.c.ii for a discussion of how the
agencies can consider a changing climate under the significant nexus standard consistent
with the best available science.
Further, as discussed in Final Rule Preamble Section IILA.l.b, the fact that a resource
meets the definition of "waters of the United States" does not mean that activities such
as farming, construction, infrastructure development, or resource extraction, cannot
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occur in or near the resource at hand. For example, the Clean Water Act exempts a
number of activities from permitting or from the definition of "point source," including
agricultural storm water and irrigation flows. See 33 U.S.C. 1342(/)(2), 1362(14). Since
1977, the Clean Water Act in section 404(f) has exempted activities such as many
"normal farming, silviculture, and ranching activities" from the section 404 permitting
requirement, including seeding, harvesting, cultivating, planting, and soil and water
conservation practices See 33 U.S.C. 1342(/)(2), 1362(14). The final rule does not affect
these statutory exemptions. In addition, permits are routinely issued under sections 402
and 404 of the Clean Water Act to authorize certain discharges to "waters of the United
States." The permitting authority generally works with permit applicants to ensure that
activities can occur without harming the integrity of the nation's waters.
Moreover, regarding some commenters' concerns that the final rule will increase
permitting delays, the agencies note that where waters are covered by the Clean Water
Act, the agencies have adopted measures to simplify compliance with the Act such as
general permits and tools for expediting the permitting process (e.g., mitigation banks,
in-lieu fee programs, and functional/conditional assessment tools). The agencies intend
to continue to develop general permits and other simplified procedures to ensure that
projects, particularly those that offer environmental or public benefits, can proceed
with the necessary environmental safeguards while minimizing permitting delays.
See also the agencies' response to comments in Section 5.0.4 (addressing infrastructure-
related issues) and Section 5.10 (addressing environmental justice issues).
1.5 Clean Water Act Programs
Numerous commenters noted concerns related to Clean Water Act programs. Though some commenters
referenced Clean Water Act programs generally, many commenters discussed specific Clean Water Act
sections and their respective programs, permits, and regulations, including the following (in numeric
order):
• Section 106;
• Sections 303(a), 303(c), and 303(d) (state water quality standards and total maximum daily load
(TMDL) programs);
• Section 311 (oil pollution prevention and response, spill prevention, control, and countermeasures
program);
• Section 316(b) (related to cooling water intake structures);
• Section 401 (water quality certification program);
• Section 402 (national pollutant discharge elimination system (NPDES) permitting program,
including individual, general, and municipal separate storm sewer system (MS4) and other
stormwater permits; also relates to wet weather issues);
• Section 404 (including nationwide permits, particularly nationwide permits 44, 57, and 58).
Some commenters suggested that ambiguity in the definition of "waters of the United States" would
contribute to ambiguity or related challenges in implementing Clean Water Act programs. Another
commenter emphasized that in revising the definition, the agencies should minimize potential impacts to
state permitting programs and voluntary conservation efforts.
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Multiple commenters asserted that the proposed rule would expand federal jurisdiction in a manner that
would burden the regulated community or specific industries. Some of these commenters suggested that
the significant nexus standard in particular would expand the scope of Clean Water Act jurisdiction and
that the regulated community's associated compliance costs would result in substantial economic impacts
on small businesses, including those in the construction industry. One commenter indicated that the
agencies did not "meaningfully evaluate" potential implications stemming from the difference between
the proposed rule's approach to significant nexus and the approach embodied in the Rapanos Guidance,
particularly with respect to aggregating similarly situated features in the region.
Another commenter asserted that if percolation ponds and constructed wetlands are designated as "waters
of the United States," then normal maintenance operations may require a Clean Water Act section 404
permit and trigger an Environmental Site Assessment, which would obstruct the purpose of the facility.
A few commenters asserted that the proposed rule would increase resources needs (e.g., Clean Water Act
section 106 funds; Clean Water Act State Revolving Funds), with one of these commenters urging the
Corps to request appropriate funding to process permits. Some commenters suggested that the agencies
failed to account for potential economic impacts to states that could arise from implementing Clean Water
Act programs and/or complying generally with Clean Water Act requirements under a broader scope of
jurisdiction; these commenters mentioned costs such as setting water quality standards, administering
storm water permits, and issuing water quality certifications.
Agencies' Response: The agencies acknowledge that the definition of "waters of the United
States" is relevant to the scope of most federal programs to protect water quality under the
Clean Water Act—for example, water quality standard, permitting to address discharges of
pollutants, including discharges of dredged or fill material, processes to address impaired
waters, oil spill prevention, preparedness and response programs, and tribal and state
water quality certification programs—because the Clean Water Act uses the term
"navigable waters" in establishing such programs. A revised definition of "waters of the
United States" can affect these Clean Water Act programs at both the federal and state
level.
As discussed in Final Rule Preamble Section IV.A, this rule generally restores the
longstanding and familiar categories of the 1986 regulations and establishes jurisdictional
limitations based on case-specific application of the relatively permanent standard and the
significant nexus standard to certain categories of waters in the rule. Yet, while the final
rule is founded on, and generally returns to, the longstanding and familiar pre-2015
regulatory regime, it does not implement that regime unchanged. For example, the final
rule adds limitations to the scope of the definition of "waters of the United States," employs
a definition of whether waters "significantly affect" paragraph (a)(1) waters that identifies
the functions and factors to be evaluated, adds exclusions for features that were generally
considered non-jurisdictional under the pre-2015 regulatory regime to the rule text, and, as
explained in Section IV.G of the Preamble to the Final Rule, incorporates advancements in
the implementation data, tools, and methods that have become available since the Rapanos
decision.
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Indeed, contrary to some commenters' assertions, the final rule does not represent an
expansion beyond the text of the pre-2015 regulations and is narrower in some respects
than the pre-2015 regulatory regime. As discussed in Section IV.C of the Preamble to the
Final Rule, the final rule narrows the scope of jurisdiction from the text of the 1986
regulations by replacing the broad Commerce Clause basis for jurisdiction over paragraph
(a)(5) waters with the narrower relatively permanent and significant nexus standards,
eliminating jurisdiction over tributaries and adjacent wetlands based on their connection to
paragraph (a)(5) waters, and eliminating jurisdiction by rule over impoundments of
paragraph (a)(5) waters.; and by explicitly excluding waters that were not expressly
excluded in the text of the 1986 regulations. Further, 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.
Thus, as discussed in Section V.A of the Preamble to the Final Rule, the final rule will
establish a regime that is generally comparable to current practice and this rule would
generate de minimis costs and benefits as compared to the pre-2015 regulatory regime that
the agencies are currently implementing.
With respect to evaluating the difference between the proposed rule's approach to the
significant nexus standard and the approach used in the Rapanos Guidance1, the agencies
sought comment on how to implement the proposed rule's significant nexus standard,
including with respect to aggregation. See 86 FR 69431. As described in Final Rule
Preamble Section IV.C, the agencies have considered public comments on approaches to
implementing the significant nexus standard, including comments related to aggregation,
and have provided clarity around how the agencies intend to implement the significant
nexus standard in the final rule.
The agencies disagree with commenters that asserted that the agencies failed to account for
potential economic impacts to states that could arise from a change in the scope of Clean
Water Act jurisdiction under the proposed rule. The economic analysis for the proposed
rule included an assessment of potential effects to Clean Water Act programs that rely on
the definition of "waters of the United States," including the effect of a change in the scope
of Clean Water Act jurisdiction on programs related to water quality standards, issuance of
general permits including stormwater permits, and the section 401 water quality
certification program.
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." Yet, as
discussed above, because 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. 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
1 U.S. EPA and U.S. Army Corps of Engineers, Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in
Rapanos v. United Slates and Carabell v. United States (June 5,2007)
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States" (Le., 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 and destruction. Each of these
programs may subsequently impose costs as a result of implementation of their specific
regulations. See the Economic Analysis for the Final Rule and the agencies' response to
comments in Section 17 for more information on potential costs and benefits associated with
the final rule.
Further, the final rule does not subject any entities of any size to any specific regulatory
burden. This rule codifies a regulatory regime very similar to the one being implemented
nationwide following the vacatur of the 2020 NWPR definition of "waters of the United
States." The final rule 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). For further discussion on the impacts of the final rule on programs under
Clean Water Act sections 303, 311, 301, 402, and 404, see Chapter III of the Economic
Analysis for the Final Rule. For further discussion on the final rule's impact on different
sectors, see Chapter VI of the Economic Analysis for the Final Rule, as well as the agencies'
response to comments in Section 17. See also the agencies' response to comments in Section
1.3 on regulatory certainty.
Comments regarding funding for processing Clean Water Act permits is outside the scope
of this rulemaking; but see the agencies' response to comments expressing concerns about
the agencies' workload in Section 1.2.
1.5.1 Section 303
Several commenters stated that expanding the definition of "waters of the United States" would affect
Clean Water Act section 303 requirements around developing total maximum daily loads (TMDLs)
and/or establishing new state water quality standards, asserting that these impacts would adversely affect
or otherwise burden the agencies and stakeholders. For example, one commenter asserted that newly
jurisdictional waters would be subject to new water quality standards and TMDLs, which could in turn
diminish property values for stakeholders such as forest owners.
Another commenter suggested that the agencies did not sufficiently evaluate or explain potential impacts
of the proposed revised definition on Clean Water Act section 303 programs, including potential costs
associated with establishing water quality standards for newly jurisdictional waters, monitoring and
assessing whether newly jurisdictional waters are attaining water quality standards, and developing
TMDLs where such waters are not attaining standards. This same commenter also asserted that an
expanded definition of "waters of the United States" has the potential to introduce new litigation risk,
such as citizen suits asking EPA to establish federal water quality standards or TMDLs where states fail
to take timely action on newly jurisdictional waters.
One commenter stated that if the intent of the proposed rule is to include and manage short-term
stormwater flow condition events, then EPA needs to explain how they intend to establish applicable,
defensible water quality standards and monitoring requirements at the source (e.g., ephemeral stream
areas under short-term wet weather conveyance conditions). This commenter further asserted that if
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stormwater conveyances are now considered point sources, then prior TMDL determinations (i.e.. waste
load and load allocations) will need to be re-examined.
Agencies' Response: The agencies acknowledge that the definition of "waters of the United
States" is relevant to the scope of programs that protect water quality under the Clean
Water Act, including the section 303 programs related to water quality standards and
TMDLs. If a feature is not jurisdictional under the Clean Water Act, states and authorized
tribes are not required to develop water quality standards for it or assess it for
impairments. See also the agencies' response to comments in Section 1.5 (addressing general
comments on the proposed rule's potential effects on Clean Water Act programs).
The agencies disagree with comments suggesting 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, the final 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.
Nonetheless, the agencies recognize that a change in the scope of Clean Water Act
jurisdiction has the potential to increase the number of waters that are assessed and added
to the impaired waters list (and subsequent TMDL development) under Clean Water Act
section 303(d). The potential effect of the definitional change on the number of waterbodies
added to the impaired waters list (and subsequent total maximum daily load (TMDL)
development) is uncertain. See the Economic Analysis for the Final Rule and the agencies'
response to comments in Section 17 for more information on potential costs and benefits
associated with the final rule, including specific discussion of the Clean Water Act section
303 program.
The agencies disagree that the economic analysis for the proposed rule did not adequately
explain the potential impacts of the proposed rule on programs under Clean Water Act
section 303. Specifically, Chapter III of the economic analysis for the proposed rule
described how a revised definition of "waters of the United States" could impact programs
under Clean Water Act section 303 and explained that "the agencies were unable to project
additional costs related to development or revision of water quality standards as a
consequence of the proposed rule relative to the secondary baseline of the NWPR." For the
final rule, indirect costs associated with the implementation of Clean Water Act programs
could not be quantified and are instead qualitatively discussed in the Economic Analysis for
the Final Rule. Additionally, variables representing unknown costs and benefits are noted
within the final calculations of costs and benefits listed within the economic analysis.
See also Chapter III of the Economic Analysis for the Final Rule.
1.5.2 Section 311
A number of commenters wrote about spill prevention, control, and countermeasures (SPCC) plans,
section 311 of the Clean Water Act, and/or related issues more generally. A couple of these commenters
argued that more facilities will require SPCC Plans and compliance with section 311 under the proposed
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rule. One commenter asserted that failure to exempt waters typically associated with dry drainage features
with no significant nexus to flowing waterbodies, including constructed ponds and ditches, natural
depressions, clean-water diversions, wetlands not adjacent to navigable water, and drainage ditches, will
result in oil and gas operators preparing and implementing unnecessary SPCC plans. Another commenter
asserted that the proposed rule's approach to significant nexus will make "other waters" jurisdictional for
the first time, which will subject more facilities to Clean Water Act section 311 SPCC requirements. The
commenter also asserted that it was unreasonable for the agencies to claim that the proposed rule's impact
on Clean Water Act section 311 would be small.
Agencies' Response: The agencies acknowledge that the definition of "waters of the United
States" affects the implementation of Clean Water Act programs, including the section 311
oil spill prevention and preparedness program. As discussed in Chapter III of the Economic
Analysis for the Final Rule, changes in the scope of jurisdictional waters could result in
additional facilities being subject to SPCC requirements, as compared to the secondary
baseline of the 2020 NWPR.
The agencies disagree that the final rule will have significant impact on the Clean Water
Act section 311.The agencies have found no evidence that the 2020 NWPR caused a
substantive change in the universe of facilities or change to the compliance costs for
facilities subject to EPA's SPCC and FRP requirements. The agencies similarly have found
no evidence that the 2020 NWPR caused a substantive change to the number of pipelines or
rail operators that are required to prepare and maintain oil spill response plans. The
agencies conclude that most facilities still chose to continue to implement spill prevention
measures that are considered good engineering practices for their industry, such as
secondary containment, overfill prevention, practices to ensure the safe transfer of oil to
bulk storage containers, and visual inspections of bulk storage containers. The agencies also
did not observe that changes in the scope of "waters of the United States" under the 2020
NWPR had a material effect on spill notification and response. Accordingly, the agencies
anticipate that the impact of the final rule on the Clean Water Act section 311 program will
not be significant.
The agencies disagree that the final rule will result in oil and gas operators preparing and
implementing unnecessary SPCC plans. See Chapter III of the Final Rule Economic
Analysis for further discussion of the final rule's potential impacts on the SPCC program,
including the benefits and costs for facilities.
1.5.3 Section 401
A number of commenters discussed section 401 of the Clean Water Act and/or water quality
certifications. One commenter suggested that vacatur of the 2020 NWPR, and any effect that it may have
on approved jurisdictional determinations issued under the 2020 NWPR, should not impact related
section 401 certifications because such certifications "are for the purpose of determining compliance with
state water quality standards and not WOTUS."
Several commenters argued that an increase in jurisdictional waters will lead to an increase in section 402
and/or section 404 permitting requirements and section 401 certifications. One of these commenters
asserted that an increase in certifications would delay important infrastructure projects and undermine
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state efforts to restore and maintain water quality. Another commenter expressed support for the proposed
rule's scope of jurisdiction because it would provide "greater ability for state agencies to require water
quality certifications under section 401."
Agencies' Response: Comments regarding the impact of vacatur of the 2020 NWPR are
outside the scope of this rulemaking.
As discussed in Chapter III of the Economic Analysis for the Final Rule, the agencies
acknowledge that an increase in the number of EPA-issued Clean Water Act section 402
permits and Clean Water Act section 404 permits would lead to an increase in the number
of section 401 certification actions. However, the agencies disagree that an increase in the
number of Clean Water Act section 401 certifications will undermine state efforts to restore
and maintain their water quality. Rather, Clean Water Act section 401 provides states with
an important tool to help protect the water quality of federally regulated waters within their
borders, in collaboration with federal agencies. As noted in Chapter III of the EA,
certifications may potentially enhance environmental benefits. Furthermore, the agencies
disagree that an increase in certifications would necessarily delay important infrastructure
projects. Clean Water Act section 401 provides temporal limits on the certification process
and any timing delays will be case-specific (e.g., depend on the project type, size, etc.).
Project applicants and certifying states may also leverage the pre-filing meeting request
process to facilitate a timely certification decision. See 40 CFR 121.4.
1.5.4 Section 402
Many commenters wrote about section 402 of the Clean Water Act and/or National Pollutant Discharge
Elimination System (NPDES) permits, such as individual, general, and Municipal Separate Storm Sewer
System (MS4) and other storm water permits. These commenters tended to discuss increased permitting
burdens under section 402 related to their particular sector(s) and associated impacts (e.g., cost, time,
public health, state resources, uncertainty).
A commenter asserted that public utilities, the regulated community, and state and federal permit writers
will be impacted if industrial water features become jurisdictional, because it will alter the point of
compliance. The commenter noted that internal water features at electric facilities have repeatedly been
determined non-jurisdictional. Another commenter noted that the "waters of the United States" definition
would determine the applicability of EPA's Clean Water Act section 316(b) rules and advised the
agencies to consider the impacts of the proposal on the electric power industry, whose industrial water
features historically have been excluded (e.g., cooling ponds and impoundments, active and inactive ash
ponds).
Another commenter asked whether the proposal intended to provide EPA with direct NPDES permitting
authority over non-point pollution sources.
Another commenter provided three recommendations to reduce the burden on MS4s. First, the commenter
suggested limiting "adjacent" waters to those that are bordering or contiguous to other jurisdictional
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waters. Second, the commenter suggested that the waste treatment system exclusion include ditches,
canals, and other waterways that convey stormwater to or from where treatment occurs, or where water is
stored, or flood protection occurs. Lastly, the commenter recommended revising the definition of
"significantly affect" to be "chemical, physical, and biological integrity of waters" instead of "or." This
commenter ultimately asserted that Florida's regulatory regime and the commenter's three
recommendations would protect surface water resources while avoiding the impacts that the 2015 Clean
Water Rule would have had on entities subject to the NPDES and MS4 permit programs. A different
commenter asked that the agencies provide further discussion on the relationship between "significantly
affect" and the section 402 permitting program, asserting that the preamble to the proposed rule
mentioned section 402 only "tangentially and occasionally." This commenter added that states with
"robust groundwater protection regulations should not be adversely affected by interpretation of
definitions that appear to focus more on the Clean Water Act [section 404]."
Another commenter argued that the proposed approach to significant nexus would expand jurisdiction to
ditches and non-navigable waters, and lead to some waters being regulated as both point sources and
"waters of the United States." The commenter asserted that this would lead to additional permits,
duplicative regulatory requirements, and increased risk of citizen suits, which would slow down
infrastructure development or other job-creating economic activity. The commenter also asserted that
expanded jurisdiction would require construction projects to comply with the Construction General
Permit in more waters, which would make it increasingly difficult and costly to design and construct
projects.
Another commenter argued that the proposed definition would create more opportunities for citizen suits
seeking to halt forestry operations, alleging certain forestry activities involve point sources that are not
exempt under Clean Water Act sections 402(1) and 404(f).
Agencies' Response: The agencies acknowledge that the definition of "waters of the United
States" affects the implementation of Clean Water Act programs, including the section 402
NPDES permit program. However, the final rule does not impact the scope of a Clean
Water Act section 402 permit, which authorizes the discharge of pollutants from point
sources to "waters of the United States," in compliance with applicable requirements and
conditions.
As discussed in the Chapter III of the EA, under the 2020 NWPR, any permitted entity that
was discharging to an ephemeral feature or other non-jurisdictional water was still
required to have an NPDES permit if their discharge conveys to a jurisdictional water.
Moving the compliance point for NPDES permits upstream may result in lower effluent
limitations given the difference in pollutant dilution or attenuation. However, regulated
industrial sectors that are likely located near ephemeral streams represent a minority of the
regulated industrial stormwater universe. Additionally, these types of facilities are generally
large and due to their scale, may be more likely to discharge into perennial streams (outside
of the arid West) that are jurisdictional under both the secondary baseline of the 2020
NWPR and the final rule. Therefore, the agencies expect no benefits or costs for industrial
facilities with stormwater discharges regulated under the Phase I rule.
The agencies disagree that the final rule will create an increased permitting burden. As
discussed in Final Rule Preamble Section IV.C, the agencies are codifying a number of
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exclusions from the definition of "waters of the United States," including longstanding
exclusions for prior converted cropland and waste treatment systems, and exclusions for
features that were generally considered non-jurisdictional under the pre-2015 regulatory
regime. See Final Rule Preamble Section IV.C.7 and the agencies' response to comments in
Section 15 for further discussion of the final rule's exclusions. See also Chapter VI of the
Economic Analysis for the Final Rule and the agencies' response to comments in Section 17
for further discussion of sector-specific impacts.
The agencies note that MS4s often rely on a drainage network consisting of jurisdictional
waters as well as constructed conveyance structures to transport stormwater. Where MS4s
have incorporated jurisdictional waters, including otherwise jurisdictional creeks, streams,
or rivers, which may be channelized, ditched, or otherwise modified within their drainage
network, the agencies' longstanding approach is to view those incorporated water features
as jurisdictional waters even if they are considered to be a part of the MS4. Under the final
rule, the agencies retain this approach.
The agencies disagree with commenters that the definition of "adjacent" should be changed
in the final rule. The agencies have retained their longstanding definition of "adjacent" in
the final rule. "Adjacent" is defined as "bordering, contiguous, or neighboring. Wetlands
separated from other 'waters of the United States' by man-made dikes or barriers, natural
river berms, beach dunes and the like are 'adjacent wetlands.'" See Final Rule Preamble
Section IV.A and Section IV.C.8.b.
The agencies disagree with the suggestion that the rule's significant nexus standard is
inconsistent with the Clean Water Act's statutory objective because it uses the phrase
"restore or maintain the chemical, physical, OR (emphasis added) biological integrity of the
Nation's waters" rather than the language in the statutory objective to "restore or maintain
the chemical, physical, AND (emphasis added) biological integrity of the Nation's waters"
and that this inconsistency creates vagueness and confusion. Congress intended the Clean
Water Act to "restore and maintain" all three forms of "integrity," section 101(a), so if any
one of them is compromised, then the statute's stated objective would be contravened. It
would be contrary to the plain language of the statute and subvert the law's objective if the
Clean Water Act only protected paragraph (a)(1) waters upon a showing that there were
effects on every attribute of their integrity. The agencies also disagree that this creates
vagueness or confusion as it is consistent with longstanding practice and clear in the text of
the definition of "significantly affect" in the final rule. As the agencies stated in the Rapanos
Guidance: "Consistent with Justice Kennedy's instruction, EPA and the U.S. Army Corps
of Engineers (Corps) will apply the significant nexus standard in a manner that restores
and maintains any of these three attributes of traditional navigable waters." Rapanos
Guidance at 10 & n.35. See also Final Rule Preamble Section IV.C.9.
The agencies agree that some waters may be regulated as both a "water of the United
States" and a point source.2 For example, where a ditch is jurisdictional, the agencies have
2 A district court has reached a contrary conclusion, but the agencies conclude the decision is poorly reasoned, relies
on the change in interpretation articulated for the first time in the 2020 NWPR and which the agencies reject in this
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historically taken the position that the ditch can be both a "water of the United States" and
a point source and are reinstating this position in this rule. See Final Rule Preamble Section
IV.C.7 for further discussion. However, the agencies disagree that this approach will slow
down infrastructure activity or other job-creating economic activity. Rather, the agencies
are establishing a final rule that is both familiar and implementable. Therefore, to the
extent that the definition affects the implementation of Clean Water Act programs, the final
rule will allow for a familiar and implementable approach. See the agencies' response to
comments in Section 5 for further discussion of the final rule's impacts on infrastructure.
The agencies also disagree that compliance with construction general permits in more
waters will make it increasingly difficult and costly to design and construct projects.
Procedures typically required by construction stormwater general permits have been widely
adopted as normal practices in the construction industry and are frequently required by
local ordinances. As a result, the requirements are not usually considered to impose a
significant burden. An increase in jurisdictional waters is not likely to change these
circumstances for most areas of the country. The exception may be for stormwater
discharges from construction sites in arid states where many streams are ephemeral (e.g.,
Arizona, Nevada, and New Mexico). See Chapter III of the Final Rule Economic Analysis
for further discussion on the final rule's potential impact to construction general permits.
Finally, as discussed in Final Rule Preamble Section IILA.l.b, the Clean Water Act exempts
a number of activities from permitting or from the definition of "point source," see 33
U.S.C. 1342(/)(2), 1362(14), and the final rule does not affect these statutory exemptions.
1.5.5 Section 404
Many commenters discussed section 404 of the Clean Water Act and/or Nationwide Permits (NWP),
including numbers 44, 57, and 58. A number of these commenters discussed general and/or covered
topics discussed elsewhere in this summary, including themes on activities, sectors, and/or waterbody
types. A few commenters voiced their support for use of NWPs and/or expressed concerns that apparent
jurisdictional expansion would threaten their use.
A commenter noted that power companies rely on NWP 57 and will configure their project to avoid the
need for an individual section 404 permit and accompanying requirements (e.g., water quality
certification, NEPA, ESA), which the commenter asserted are timely and costly. The commenter also
referred to the Sunding and Zilberman study3, which showed that an average applicant for an individual
permit spends 788 days and $271,596 to complete the process, while the average NWP applicant spends
313 days and $28,915. Those figures were cited by a few other commenters as well.
rule, and is inconsistent with the position of five Justices in Rapanos. See Toxics Action Center, Inc. & Conservation
Law Found, v. Casella Waste Systems, Inc., 2021 WL 3549938, *8 (D.N.H. Aug. 11, 2021) ("If a waterway can
simultaneously be a navigable water (that is, a water of the United States) and a point source, the distinction the
statute draws between the two categories using the prepositions 'from' and 'to' would be rendered meaningless.").
3 David Sunding & David Zilberman, The Economics of Environmental Regulation by Licensing: An Assessment of
Recent Changes to the Wetland Permitting Process, 42 Nat. Resources J. 59, 74-76 (2002)
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A few commenters discussed state assumption of Clean Water Act section 404. One commenter noted
that a clear "waters of the United States" definition is important for states that have assumed the Clean
Water Act section 404 program and asserted that the 2020 NWPR resulted in greater certainty in
jurisdictional determinations than previous regulations. Another commenter asserted that the uncertainty
surrounding the legal status of "waters of the United States" due to the vacatur of the 2020 NWPR has
created a permitting delay in Florida and claimed that the agencies failed to meet 40 CFR 233.16.
Another commenter advised the agencies to consider specific regionalized issues, specifically noting that
it is important to consider the impact of changes to the federal regulatory structure to wetland permitting
review in New England states that use Corps general permits.
Agencies' Response: See Chapter III of the Final Rule Economic Analysis for discussion of
potential effects on the Clean Water Act section 404 permitting program. See also Appendix
H of the Final Rule Economic Analysis for discussion of the Sunding and Zilberman.
The agencies acknowledge the importance of providing a clear definition of "waters of the
United States," including for states that have assumed implementation of the Clean Water
Act section 404 program. As only waters jurisdictional under the Clean Water Act can be
assumed, this rule does affect the scope of waters a state or tribe can assume. As discussed
in Final Rule Preamble Section IV.A.4, the agencies are establishing a final rule that is both
familiar and implementable. The agencies find that the clarifications in this rule, including
the addition of exclusions that codify longstanding practice, and review of the advancements
in implementation resources, tools, and scientific support address many of the concerns
raised in the past about timeliness and consistency of jurisdictional determinations under
the Clean Water Act. See also Final Rule Preamble Section IV.C.7 and Section IV.D.
Comments regarding the impact of vacatur of the 2020 NWPR and 40 CFR 233.16 are
outside the scope of this rulemaking.
The agencies have considered public comments regarding regional approaches and regional
variations. The final rule will result in increased clarity and certainty regarding the
identification of "waters of the United States." The agencies received many helpful
comments on the proposed rule that resulted in refinement of the final rule to provide
further clarity and certainty to the regulated public. The initial phase of implementing the
final rule will require education and training for agency staff as well as co-regulators,
stakeholders, and the regulated public, which will likely include regionally based training to
ensure consistent and efficient implementation of the final rule. See also the agencies'
response to comments in Section 18.3.
1.6 Federal Agency Coordination and Capacity
Many commenters discussed agency coordination and/or capacity. Several of these commenters raised
concerns about adequate agency capacity (e.g., workload, staffing levels) to implement the proposed rule.
Among these commenters, there was a common concern that such issues would lead to delays and other
project-based and/or operational issues. Other commenters in this group more generally voiced concerns
about experienced or anticipated agency coordination issues, including for example related to mapping,
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jurisdictional determinations, field implementation between the U.S. Environmental Protection Agency
(EPA), the U.S. Army Corps of Engineers (Corps), and/or U.S. Geological Survey (USGS).
One commenter stated that they "recognize that some implementation challenges stem from underfiinding
of the Corps' Regulatory Program to sufficiently staff and train regulators. The reductions in staffing and
training protract permitting and approval timelines, which negatively impacts the economy and the
environment. Without a targeted funding increase for the Regulatory Program, the Corps will continue to
fall short in meeting their own stated timelines and success criteria, and will be ill-equipped to support
forthcoming infrastructure investments."
Many commenters—including many in the context of agency coordination and/or capacity—discussed
state and federal—and in some cases, local—coordination with regard to permitting and/or jurisdictional
issues. These commenters tended to raise concerns about lack of coordination. A few of these
commenters called on the agencies to consider impacts on state funding or budgets. A number of
commenters critiqued what they characterized as a shift from local or state control to federal control or
otherwise voiced concerns about negative impacts on state programs. For example, a commenter wrote,
"The agencies should enhance the co-regulator partnership by providing States with a meaningful role in
making determinations. The collective human resources that can be brought to bear on a decision would
make the process more informed and more efficient. State staff have local knowledge of climactic,
hydrologic, and legal land use and water use factors. Information sharing during the process would
provide valuable resources and help avoid misinterpretations, delays, and unintended consequences."
A few commenters cited approaches from state programs that they referred to as models, for example:
• A commenter discussed Florida's basin management action plan (BMAP), through which it
implements total maximum daily loads (TMDLs) with involvement of MS4 permit holders.
• Another commenter called for "efficiency" and discussed Florida's "streamlined process for
obtaining both a Clean Water Act Section 404 permit and a state environmental resource permit
for changes to the landscape that affect surface water flows."
• A commenter highlighted its coordination with the Corps, providing the example of their joint
application process.
Agencies' Response: 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.
With respect to comments expressing concern about the agencies' workload, the agencies
reiterate—as discussed in this response above and throughout the preamble to the final
rule—that this final rule reflects consideration of the agencies' experience and technical
expertise after more than 45 years of implementing the 1986 regulations defining "waters of
the United States," including more than a decade of experience implementing those
regulations consistent with the decisions in Riverside Bayview, SWANCC, and Rapanos
collectively. Notably, the agencies have extensive experience making jurisdictional
determinations using the relatively permanent standard and the significant nexus standard.
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Comments regarding the agencies' approach to coordinating with each other or with other
federal agencies are outside the scope of this rulemaking, which is related to the definition
of "waters of the United States." Similarly, comments related to streamlining various
permitting processes or similar efficiency measures are outside the scope of this rulemaking.
See also the agencies' response to comments in Section 18 for additional discussion of
commenters' recommendations, some of which are outside the scope of this rulemaking.
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