Revised Definition of "Waters of the United States"
Response to Comments Document
Section 15 - Exclusions and Exemptions
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.
15 Exemptions and Exclusions 4
15.1 General 4
15.1.1 General support for codifying exclusions in regulatory text 4
15.1.2 Support for codifying exclusions beyond those described in the proposed rule 5
15.1.3 General opposition to codifying exclusions in regulatory text 10
15.1.4 Miscellaneous general comments regarding exclusions 11
15.1.4.1 Support for expressly excluding all non-jurisdictional features 11
15.1.4.2 Support for excluding wetlands that develop within an excluded feature 11
15.1.4.3 The proposed rule's use of the terms "uplands" and "dry lands" 12
15.1.4.4 Other general comments on the proposed rule' s approach to exclusions 12
15.2 Waste Treatment System Exclusion 14
15.2.1 General support for the waste treatment system exclusion 14
15.2.2 General opposition to the waste treatment system exclusion 15
15.2.3 Scope of excluded "waste treatment systems" 16
15.2.3.1 Limiting the waste treatment system exclusion to human-made waterbodies 18
15.2.3.2 Limiting availability of the waste treatment system exclusion to permittees 19
15.2.4 Requirement that excluded waste treatment systems be "designed to meet the
requirements" of the Clean Water Act 19
15.2.5 Including stormwater controls in the waste treatment system exclusion 21
15.2.6 Relationship between excluded waste treatment systems and upstream waters 21
15.2.7 Comments on excluding certain components or types of waste treatment systems 21
15.2.8 Cooling ponds 24
15.2.9 Comments citing examples of excluded waste treatment systems 25
15.3 Prior Converted Cropland 25
15.3.1 General support for a jurisdictional exclusion for prior converted cropland 25
15.3.2 General opposition to a jurisdictional exclusion for prior converted cropland 26
15.3.3 Jurisdictional exclusion for prior converted cropland as set forth in the 2020 NWPR 27
15.3.4 Definition of prior converted cropland 28
15.3.4.1 Prior converted cropland definition 28
15.3.4.2 Which agency should identify prior converted cropland 30
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15.3.5 Comments regarding when or if an area loses its status as prior converted cropland 31
15.3.5.1 Abandonment 33
15.3.5.2 Change in use 35
15.3.5.3 Miscellaneous comments regarding when and whether an area should lose its status as
prior converted cropland 36
15.4 Water Features Associated with Agricultural Activity That Do Not Qualify as
Prior Converted Cropland 38
15.5 Artificially Irrigated Areas That Would Revert to Upland if the Irrigation
Ceased ("Artificially Irrigated Areas") 40
15.6 Artificial Lakes or Ponds Created by Excavating or Diking Dry Land 41
15.6.1 General support for codifying an exclusion for artificial lakes or ponds excavated in dry
land 41
15.6.2 General opposition for codifying an exclusion for artificial lakes or ponds excavated in
dry land 42
15.6.3 Opposition to limiting scope of an exclusion for artificial lakes or ponds to those
constructed in dry land 43
15.6.4 Opposition to limiting scope of an exclusion for artificial lakes or ponds excavated in dry
land based upon the use of such features 44
15.6.5 Comments proposing specific types of artificial lakes or ponds that should be excluded. 45
15.7 WATER-FILLED DEPRESSIONS CREATED IN DRY LAND INCIDENTAL TO CONSTRUCTION
Activity and Pits Excavated in Dry Land for the Purpose of Obtaining Fill, Sand, or
Gravel 46
15.7.1 General support for codifying an exclusion for waterfilled depressions and pits excavated
in dry land for the purpose of obtaining fill, sand, or gravel 46
15.7.2 Comments proposing clarifying language for an exclusion for water-filled depressions and
pits excavated in dry land for the purpose of obtaining fill, sand, or gravel 47
15.7.3 Comments on exclusion for waterfilled depressions and pits excavated in dry land for the
purpose of obtaining fill, sand, or gravel and mining 48
15.7.4 Comments suggesting expanding the exclusion for water-filled depressions 50
15.8 Groundwater 51
15.8.1 General support for an express exclusion for groundwater in the regulatory text 51
15.8.2 General opposition to excluding groundwater from the definition of "waters of the United
States" 53
15.8.3 Underground flows through karst geology or other underground formations 54
15.8.4 Groundwater as a point source 55
15.9 Swales and Erosional Features 55
15.10 Ephemeral Features Other Than Tributaries or Ditches with Ephemeral Flow . 5 8
15.11 Stormwater Controls and \1S4s 61
15.11.1 General support for codification of an exclusion for stormwater management systems
and their components 61
15.11.2 Green infrastructure 63
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15.13.3 Miscellaneous comments discussing exemptions for discharges to "waters of the United
States" 64
15.11.3 Comments asserting that failure to expressly exclude MS4s will complicate NPDES
permitting of MS4s and implementation of MS4s 65
15.11.4 General opposition to codification of an exclusion for stormwater management systems
and their components 66
15.12 WASTEWATER RECYCLING STRUCTURES 66
15.13 Exemptions for Discharges to Features That Are "waters of the United States" .
69
15.13.1 Activity-based exemptions for discharges associated with agricultural activities 69
15.13.2 Activity-based exemptions for discharges associated with activities other than
agricultural activities 71
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15 Exemptions and Exclusions
The agencies received numerous comments regarding exclusions from the definition of "waters of the
United States," in addition to comments regarding the Clean Water Act's statutory permitting exemptions
for certain activities. A feature that is "excluded" from the definition is not a "water of the United States."
The agencies have historically used the term "exclusions" to refer to features expressly excluded from the
definition of "waters of the United States" by regulation. This Response to Comments Document
continues that usage.
By contrast, the term "exemption" refers to an addition of dredged or fill material to "waters of the United
States" from a point source that is generally exempt from the Clean Water Act's general prohibition on
discharges without a permit in section 301(a) and the Act's section 402 and 404 permit requirements.
Exempt discharges generally are defined in relation to a specific activity, such as "normal farming." See,
e.g., 33 U.S.C. 1344(f)(1)(A).
15.1 General
15.1.1 General support for codifying exclusions in regulatory text
Many commenters generally supported identifying in the regulatory text features excluded from the
definition of "waters of the United States," including but not limited to, those features excluded from the
definition of "waters of the United States" in the 2015 Clean Water Rule and the 2020 Navigable Waters
Protection Rule (2020 NWPR). Several of these commenters stated that codifying exclusions in the
regulatory text would provide clarity and certainty, avoid time and cost burdens, and avoid inadvertently
disincentivizing the use of green infrastructure and other important resources that may be related to clean
water and water supply. A few commenters asserted that the agencies have not provided a valid reason for
not codifying exclusions in the regulatory text.
One commenter stated that the use of the word "generally" (as in "generally not waters of the United
States") in the preamble to the proposed rule allows variability in how the referenced features would be
evaluated. The commenter argued that Congress "could not have intended" to allow the agencies to "issue
vague rules and enforce them arbitrarily." One commenter stated that, if the agencies declined to codify
exclusions for the waters described in the 1986 preamble or other features expressly excluded in the 2015
Clean Water Rule or the 2020 NWPR, the agencies should clarify that their decision not to codify
exclusions for those features does not imply that the agencies intend to assert jurisdiction over those
features or that the agencies are reversing past practice of not asserting jurisdiction over those features.
Agencies' Response: The agencies agree with commenters who supported codifying
exclusions in the regulatory text for features identified in the proposed rule as generally
non-jurisdictional under the pre-2015 regulatory regime. Accordingly, the final rule
regulatory text codifies exclusions for features that the agencies generally considered non-
jurisdictional under the pre-2015 regulatory regime and codifies the familiar and
longstanding exclusions for waste treatment systems and prior converted croplands.
Codifying these exclusions in the regulatory text is consistent with the agencies' intent to
interpret "waters of the United States" to mean the waters defined by the familiar 1986
regulations, with amendments to reflect the agencies' determination of the statutory limits
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on the scope of the "waters of the United States" informed by case law, policy
determinations, and the agencies' experience and expertise. See also Final Rule Preamble
Section IV.C.7.
The statement in the Proposed Rule Preamble that "the agencies have generally not
asserted jurisdiction over" certain features is a reference to the statement in the preamble
to the 1986 regulations explaining that the agencies "generally do not consider [these]
waters to be 'Waters of the United States.'" 51 FR 41217. Under the pre-2015 regulatory
regime, the referenced features were generally not considered "waters of the United States"
even though they were not explicitly excluded by regulation. The final rule text provides
further clarification by codifying exclusions for those features, and in so doing eliminates
the authority of the agencies to determine in case-specific circumstances that some such
waters are jurisdictional "waters of the United States." See also Final Rule Preamble
Section IV.C.7 and the agencies' response to comments in Sections 14,15.5,15.6,15.7,15.9.
15.1.2 Support for codifying exclusions beyond those described in the proposed rule
Comments regarding requests for additional exclusions:
Several commenters requested that the agencies identify additional exclusions in the regulatory text,
including exclusions for stormwater control features, wastewater and drinking water treatment systems,
and water recycling structures. These commenters also requested that the agencies identify in the
regulatory text exclusions for components such as constructed conveyance structures; green
infrastructure; and other infrastructure to withdraw, treat, transport, store, or return water in the provision
of drinking water, reuse, wastewater, and/or storm water services. These commenters stated that if these
exclusions were not explicitly identified in the regulatory text, it would add uncertainty, time, and
expense to their work, making it difficult for utilities to repair their facilities, sustainably maintain water
quality and availability, and respond to climate change pressures, in addition to other challenges.
A few commenters requested that the agencies identify in the regulatory text exclusions for human-made
canals, drains, roadside ditches, constructed wetlands, storm ponds, solely interstate waters, isolated
wetlands, conservation projects, low areas in a field, and other similar infrastructure and areas.
A few commenters suggested that the agencies identify in the regulatory text exclusions for ephemeral
features, ditches, quarry and sand pits, and water treatment systems (including settling ponds). The
commenters expressed concern that not including these exclusions will result in increased time, costs, and
effort that will impact their ability to provide construction materials.
A few commenters suggested that the agencies identify in the regulatory text exclusions for several
features related to specific industries, including constructed ponds and ditches, natural depressions, clean-
water diversions, wetlands not adjacent to a navigable water, and drainage ditches.
One commenter suggested that several features should be excluded, including dry washes, ephemeral
streams, irrigation ditches, roadside ditches, human-made conveyances, isolated wetlands, bodies of water
without a surface connection to navigable waters, prior converted cropland, artificial lakes and ponds
constructed in uplands, stormwater runoff, and waste treatment systems.
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One state commenter provided a list of the exclusions the state includes in local freshwater wetlands
rules, including: bermed spill containment areas, commercial or industrial ponds created for the purpose
of providing cooling water, concrete or poly-lined ponds and construction dewatering basins, among
others. Many commenters made general statements of support for expressly excluding certain water
features due to their use in water resource management for local utilities.
Commenters requested that the agencies identify in the regulatory text exclusions for the following water
features:
• Aqueducts;
• Artificial conveyance infrastructure;
• Treatment systems;
• Canals;
• Water storage (including terminal reservoirs, storage ponds, water supply);
• Ditches;
• Mosquito/pesticide application;
• Drinking water;
• Impoundments;
• Constructed wetlands;
• Wastewater recycling;
• Groundwater;
• Diffuse stormwater runoff and directional sheet flow over uplands;
• Water features not identified as jurisdictional waters;
• Green infrastructure;
• Water reuse infrastructure;
• Water supply and delivery infrastructure;
• Decorative water features created in dry land or non-jurisdictional waters, or created pursuant to a
section 404 permit;
• Dry desert (including common desert features like dry washes and alluvial fans);
• Water that is subject to a municipal, industrial, commercial, or agricultural use;
• Alaska permafrost wetlands, Alaska forested wetlands, Alaska wetland mosaics, and Alaska
waters and lands falling under the "other waters" category;
• Post-fire remediation activities;
• Temporary settling basins;
• Artificial wastewater;
• Flood controls;
• Playa lakes;
• Tunnels;
• Water filled excavations from pre-law mine works that are not reestablishing natural drainage;
• Water management features on mine sites that are required under other regulatory schemes; and
• Certain water features on reclaimed mine land, like gullies and non-natural ditches.
One commenter stated that the agencies should clarify that areas within the 100-year floodplain that do
not meet wetland criteria and wetlands that have been converted to upland do not qualify under the
definition of "waters of the United States."
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One commenter specifically requested that structures located in fast land or upland/dry land should be
excluded.
A commenter suggested that drains, ditches, and streams that do not significantly connect to a traditional
navigable water should be exempt.
One commenter stated that stormwater detention, tail water recovery, or other environmentally beneficial
practices should not be considered "waters of the United States."
One commenter provided legal argument that exclusions, specifically, exclusions for ponds and other
waters on manufacturing and industrial sites that are used as part of the manufacturing process, are
consistent with the intent of the Clean Water Act and that inclusion of such waters within the term
"waters of the United States" would be unnecessarily burdensome and confusing and would not forward
the Clean Water Act's objective of restoring and maintaining the chemical, physical and biological
integrity of the nation's waters.
Comments regarding requests for additional exclusions related to wetlands and impoundments:
One commenter stated that wetlands that are not directly abutting jurisdictional waters or that do not share
a direct hydrologic surface connection to jurisdictional waters should be excluded from the proposed rule.
One commenter indicated that if infiltration basins that recharge underground drinking aquifers are
considered as an adjacent wetland, these basins are subject to extensive regulation under the Clean Water
Act.
One commenter requested an exclusion for impoundments that mirrors the language in the 2020 NWPR.
A few commenters recommended that the agencies exempt impoundments that are used for conveyance
and storage of water for industrial use or water supply. One of these commenters stated that these
"impoundments are currently not regulated and should not be regulated as 'waters of the United States' as
they are not connected to a downstream water." A few commenters stated that certain upland
impoundments should be excluded from being a jurisdictional water. One of these commenters argued,
"upland impoundments only releasing water in response to precipitation (ephemeral) should be exempt
from being a jurisdictional water, as the connection between the impoundment and any downstream
jurisdictional water is ephemeral and insufficient to create jurisdiction under [Rapanos Guidance]."1 A
few commenters suggested exclusions for impoundments that existed before the Clean Water Act. More
specifically, one of these commenters argued that jurisdiction should not apply to impoundments that
predate the Clean Water Act, or to waters that were not jurisdictional at the time the impounded feature
was created. Another commenter suggested that the definition of impoundments should not apply to
artificial features "constructed in accordance with the laws in existence at the time of construction."
Comments regarding other issues related to exclusions:
One commenter stated that transfers of water from one waterbody to another solely for the purposes of
water supply and without intervening municipal, industrial, or agricultural use should be excluded from
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 States and Carabell v. United States (June 5, 2007)
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jurisdiction under "waters of the United States." The commenter asserted that these transfers are an
essential element of water resource management for local utilities.
One commenter asserted that the agencies must amend the regulatory text to clarify that traditional
navigable waters are not subject to exclusions.
One commenter suggested that waters converted from "waters of the United States" under section 404
should be considered the same as dry land for Clean Water Act purposes, and therefore be excluded.
One commenter suggested that the agencies clarify that point sources (e.g., ditches and components of
permitted MS4 conveyance systems) are not "waters of the United States."
One commenter stated that the agencies should respect state categorical exclusions or else the agencies
are overstepping state regulatory programs.
Agencies' Response: The agencies disagree with commenters suggesting that the agencies
should exclude features from the definition of "waters of the United States" beyond those
longstanding exclusions and historically generally non-jurisdictional features identified in
the proposed rule.
The final rule text codifies the longstanding and familiar exclusions for waste treatment
systems and prior converted croplands. The final rule text also codifies exclusions for
several features that the agencies generally considered non-jurisdictional under the pre-
2015 regulatory regime. See the agencies' response to comments in Section 15.1.1.
Codification of these exclusions in the final rule text is consistent with the agencies' intent to
interpret "waters of the United States" to mean the waters defined by the familiar 1986
regulations, with amendments to reflect the agencies' determination of the statutory limits
on the scope of the "waters of the United States" informed by case law, policy
determinations, and the agencies' experience and expertise. The agencies did not propose or
request comment on adding exclusions to the definition of "waters of the United States"
beyond the exclusions for waste treatment systems, prior converted cropland, and the
historically generally non-jurisdictional features identified in the proposed rule and codified
in the final rule text.
The agencies' decision not to codify exclusions for other features that were expressly
excluded by regulation in the 2015 Clean Water Rule or the 2020 NWPR does not mean
that the agencies intend to assert Clean Water Act jurisdiction over those features under the
final rule. The agencies will continue to evaluate Clean Water Act jurisdiction on a case-
specific basis and will not assert jurisdiction over features that do not satisfy the definition
of "waters of the United States" articulated in the final rule. As part of their case-specific
assessment, the agencies will continue to consider whether the feature in question was
constructed in dry land, the flow of water in the feature, and other factors. When a feature
does not meet the definition articulated in the final rule, that feature is not a "water of the
United States" and there is no need for an express exclusion. Some of the features that
commenters asked the agencies to exclude may already be covered by one or more of the
exclusions the agencies are including in this rule. To the extent commenters refer to features
that are not waters (e.g., sheetflow), those would not be considered "waters of the United
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States." Further, determinations regarding the jurisdictional status of any specific water
are outside the scope of this rulemaking.
For a discussion of the exclusions set forth in the regulatory text, see Final Rule Preamble
Section IV.C.7. How wetlands will be considered under the final rule is discussed in Final
Rule Preamble Section IV.C.5 and the agencies' response to comments in Section 10.
Impoundments are discussed in the Final Rule Preamble Section IV.C.3 and the agencies'
response to comments in Section 7. Stormwater control features are discussed in the
agencies' response to comments in Section 15.11. Ditches are discussed in the agencies'
response to comments in Section 14 and the Final Rule Preamble Section IV.C.7. Water
recycling structures are discussed in the agencies' response to comments in Section 15.12.
Ephemeral features other than ephemeral streams are discussed in the agencies' response to
comments in Section 15.10. Groundwater is discussed in the agencies' response to comments
in Section 15.8. Wetlands are discussed in the Final Rule Preamble Section IV.C.5 and the
agencies' response to comments in Section 10. To the extent commenters discuss green
infrastructure, see the agencies' response to comments in Section 15.11.2. MS4s are
discussed in the agencies' response to comments in Section 15.11.
The final rule does not change the agencies' approach to water transfers. See 40 CFR
122.3(i).
The exclusions in this rule do not apply to paragraph (a)(1) waters, and therefore, a
traditional navigable water, territorial seas, or interstate water cannot be excluded under
this rule. Where a feature satisfies the terms of an exclusion, it is excluded from jurisdiction
even where the feature would otherwise be jurisdictional under paragraphs (a)(2) through
(5) of the final rule. However, where a feature satisfies the terms of an exclusion but would
otherwise be jurisdictional under paragraph (a)(1) of the final rule, the feature is not
excluded. See Final Rule Preamble Section IV.C.7.
To the extent commenters suggest that waters lawfully converted to dry land pursuant to a
section 404 permit or other lawful means should be treated as "dry land" for purposes of
applying the exclusion, the final rule does not affect the agencies' longstanding approach to
assessing features in their present conditions, assuming that present conditions represent
normal circumstances and have not been altered as a result of recent unauthorized
activities. See, e.g., U.S. Army Corps of Engineers (Corps) RGL 86-9 at Paragraph 3 (Aug.
27,1986)2; United States v. Brace, 2019 WL 3778394 (Aug. 12, 2019) and cases collected
therein; Corps of Engineers 1987 Wetlands Delineation Manual Part IV.F. It is also
important to note that an unauthorized discharge does not render a "water of the United
States" no longer jurisdictional, nor does it sever jurisdiction upstream. Indeed,
"[unauthorized discharges into waters of the United States do not eliminate Clean Water
Act jurisdiction, even where such unauthorized discharges have the effect of destroying
waters of the United States." 33 C.F.R. 323.2 (1987).
2 U.S. Army Corps of Engineers. 1986. Clarification of "Normal Circumstances" in the Wetland Definition (33 CFR
323.2 (c)) available at https://www.nap.usace.army.mil/Portals/39/docs/regulatory/rgls/rgl86-09.pdf
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To the extent the commenter asserts that a ditch cannot be both a jurisdictional water and a
point source, see Final Rule Preamble Section IV.C.7 and the agencies' response to
comments in Section 14 and Section 15.2. To the extent the commenter asserts that
components of an MS4 system cannot be "waters of the United States" because the MS4
system as a whole is a point source, see the agencies' response to comments in Section 15.11.
The final rule does not change the agencies' longstanding interpretation of the Clean Water
Act that it is not relevant whether a water has been constructed or altered by humans for
purposes of determining whether a water is jurisdictional under the Clean Water Act. See
Final Rule Preamble Section IV.C.7.
The agencies disagree with the commenter who stated that the federal government should
limit jurisdiction over "waters of the United States" based on exclusions promulgated by
given states. Under section 510 of the Clean Water Act, unless expressly stated, nothing in
the Clean Water Act precludes or denies the right of any state or tribe to establish more
protective standards or limits than the Clean Water Act. Consistent with the Clean Water
Act, states and tribes retain authority to implement their own programs to protect the
waters in their jurisdiction more broadly and more stringently than the federal
government. See 40 CFR 123.1(i). However, section 510 also prohibits any state or tribe
from adopting a limitation which is less stringent than the limitations of the Clean Water
Act. Therefore, the Clean Water Act does not allow the exclusion of certain "waters of the
United States" on a state-by-state basis.
15.1.3 General opposition to codifying exclusions in regulatory text
A number of commenters asserted that excluding features that would otherwise be jurisdictional from the
definition of "waters of the United States" is not justified by law or science, with some commenters
referencing reports from EPA's Science Advisory Board and other reports as support. These commenters
suggested that any waters with a potential to carry pollutants downstream should not be categorically
excluded. Several commenters likewise argued more that excluding any feature that would otherwise fall
within the definition of "waters of the United States" is inconsistent with the Clean Water Act, regardless
of how longstanding the exclusion may be.
A few commenters acknowledged a limited need for exclusions but suggested that clarity and certainty
for certain utilities or industries is not a sufficient reason for an exclusion. One commenter suggested that
new projects constructed in "waters of the United States" should not be excluded from jurisdiction.
Agencies' Response: The agencies disagree with commenters asserting that the agencies
should not codify exclusions from the definition of "waters of the United States." See Final
Rule Preamble Sections III.A., IV.A., and IV.C.7.
The final rule text codifies the familiar and longstanding exclusions for waste treatment
systems and prior converted croplands. The final rule text also codifies exclusions for
several features that the agencies generally considered non-jurisdictional under the pre-
2015 regulatory regime and the 2019 Repeal Rule, and expressly excluded by regulation in
the 2015 Clean Water Rule and 2020 NWPR. See also the agencies' response to comments
in Section 15.1.1. Codification of these exclusions in the regulatory text is consistent with the
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agencies' intent to interpret "waters of the United States" to mean the waters defined by the
familiar 1986 regulations, with amendments to reflect the agencies' determination of the
statutory limits on the scope of the "waters of the United States" informed by case law,
policy determinations, and the agencies' experience and expertise. The exclusions reflect the
agencies' longstanding practice and technical judgment that certain waters and features are
not subject to the Clean Water Act. The exclusions are also guided by Supreme Court
precedent. While waters that do not meet the terms laid out in paragraph (a) are not
"waters of the United States," the exclusions are an important aspect of the agencies' policy
goal of providing clarity, certainty, and predictability for the regulated public and
regulators. The categorical exclusions will simplify the process of determining jurisdiction,
and they reflect the agencies' determinations of the lines of jurisdiction based on case law,
policy determinations, and the agencies' experience and expertise. The exclusions in the
final rule text provide a balance between protection and clarity that is reasonable and
consistent with the statute's objective and the agencies' goal of maintaining consistency with
the pre-2015 regulatory regime while continuing to advance the objective of the Clean
Water Act. See also Final Rule Preamble Sections IV.C.7.
15.1.4 Miscellaneous general comments regarding exclusions
15.1.4.1 Support for expressly excluding all non-jurisdictional features
Several commenters requested that any water that is not explicitly identified in the final rule as
jurisdictional should be expressly excluded in the regulatory text. Some of these commenters specifically
stated that such an approach appropriately allows states to make decisions on waters not regulated by the
Clean Water Act.
Agencies' Response: The agencies disagree with commenters asserting that the agencies
should expressly exclude features that do not satisfy the definition of "waters of the United
States." It is not necessary to codify in the final rule text an exclusion for features that do
not satisfy the definition of "waters of the United States." The agencies will continue to
conduct case-specific analyses to evaluate Clean Water Act jurisdiction as needed and will
not assert jurisdiction over features that do not satisfy the definition of "waters of the
United States" articulated in the final rule. When a feature does not satisfy the definition
articulated in the final rule, that feature is not a "water of the United States," and there is
no need for an explicit exclusion.
15.1.4.2 Support for excluding wetlands that develop within an excludedfeature
Several commenters requested that wetlands that develop entirely within the confines of an excluded
water feature be considered part of the excluded feature and not be considered "waters of the United
States."
Agencies' Response: The agencies agree that wetlands that develop entirely within the
confines of an excluded feature are not jurisdictional. This interpretation is consistent with
the agencies' longstanding approach to this issue and with the agencies' rationale for
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excluding these features. See Final Rule Preamble Section IV.C.7. See also the agencies'
response to comments in Section 14.
15.1.4.3 The proposed rule's use of the terms "uplands " and "dry lands "
Several commenters requested that the agencies provide definitions of "uplands" and "dry lands" as used
in the proposed rule.
Agencies' Response: The agencies have addressed this comment by using the term "dry
land" consistently in the final rule text and explaining the meaning of the term "dry land"
in the Final Rule Preamble. See Final Rule Preamble Section IV.C.7.
15.1.4.4 Other general comments on the proposed rule's approach to exclusions
A few commenters requested that the agencies provide expanded guidance on exclusions, particularly
those features described in the preamble as being "generally" excluded.
Several commenters requested that the agencies expressly exclude all features that may be covered by a
National Pollutant Discharge Elimination System (NPDES) permit or may be part of a system the
discharge from which is covered by an NPDES permit. These commenters asserted that regulation under
the NPDES program already provides the necessary protection and that designating such features as
"waters of the United States" would create redundancy and confusion. In addition to waste treatment
systems and features that convey stormwater as part of an MS4 system, commenters also requested
express exclusions for features or activities covered by the NPDES program including application of
pesticides covered by an NPDES permit, water supply infrastructures that are regulated under either the
NPDES program or the Safe Drinking Water Act, ready-mixed concrete operations subject to an NPDES
permit, and wastewater recycling features that are subject to limitations on the discharge under the
NPDES program.
A few commenters requested that the agencies consult with States and the general public to determine
what additional exclusions should be included in the final rule.
A few commenters suggested removing the excluded categories of waters from the list that defines
"waters of the United States" and instead placing them under a separate heading (b) of what "waters of
the United States" does not include.
Agencies' Response: To the extent the commenters request that the agencies publish
additional guidance on implementation of the exclusions in the final rule, 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 exclusions set
forth in 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 disagree with commenters' request that the agencies expressly exclude all
features that may be subject to an NPDES permit or part of a system that is subject to an
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NPDES permit. The agencies' decision not to codify exclusions for certain features does not
mean that the agencies intend to assert Clean Water Act jurisdiction over those features
under the final rule, particularly in circumstances where the agencies would not have
asserted jurisdiction under the pre-2015 regulatory regime. The agencies will continue to
evaluate Clean Water Act jurisdiction on a case-specific basis and will not assert
jurisdiction over features that do not satisfy the definition of "waters of the United States"
articulated in the final rule. When a feature does not meet the definition articulated in the
final rule, that feature is not a "water of the United States" and there is no need for an
express exclusion. Moreover, water does not lose its jurisdictional status if it is channelized,
ditched, or otherwise modified so long as it continues to meet the definition of "waters of the
United States." See Final Rule Preamble Section IV.C.7. The exclusion for wastewater
treatment systems is discussed in Section IV.C.7 of the Final Rule Preamble and the
agencies' response to comments in Section 15.2. Stormwater control features are discussed
in the agencies' response to comments in Section 15.11. Wastewater recycling features are
discussed in the agencies' response to comments in Section 15.12.
To the extent commenters seek exclusions based upon activities, such as pesticide
application, rather than based upon the nature of the feature receiving the discharge, the
comment is beyond the scope of this rulemaking. Whether a feature is a "water of the
United States" is a function of the characteristics of the feature and not the nature of any
particular discharge into that feature. See also the agencies' response to comments in
Section 15.13 for a discussion of activity-based exemptions from the permitting
requirements of the Clean Water Act.
To the extent commenters recommend that the agencies consult with States and the general
public regarding codification of exclusions, the agencies engaged state and local
governments over a 60-day federalism consultation period during development of this rule,
beginning with an initial federalism consultation meeting on August 5, 2021, and concluding
on October 4, 2021. During the input period, the agencies convened several meetings with
intergovernmental associations and their state or local government members to solicit
feedback on the effort to revise the definition of "waters of the United States." The agencies
also engaged with state and local governments during the public comment period, including
though two virtual roundtables in January 2022. A summary report on the agencies'
consultation efforts with state and local governments is available in the docket for this
action. For more information on the agencies' federalism consultation for this rulemaking,
see Final Rule Preamble Section VI.E and the agencies' response to comments in Section 5.5
The agencies agree that stakeholder input is critical to developing a revised definition of
"waters of the United States." The agencies received over 32,000 recommendation letters
from the public during its pre-proposal outreach and over 114,000 comments on the
proposed rule during the public comment period. The agencies also held a public hearing
and listening sessions with state, tribal, and local governments during the public comment
period to listen to feedback on the proposed rule from co-regulators and a variety of
stakeholders. See Final Rule Preamble Section III.C. Over the course of this rulemaking
process, the agencies received input from a broad range of stakeholders and thoroughly
considered the many comments, suggestions, and recommendations provided by states,
tribes, and stakeholders in developing the final rule and made changes to the rule in
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response to those comments. The agencies intend to continue engaging with stakeholders to
facilitate implementation of the rule moving forward.
To the extent commenters suggest that the regulatory text be reorganized to place excluded
features under a separate subheading, the agencies agree. The final rule identifies features
that are not "waters of the United States" under paragraph (b) the regulatory text. See
Final Rule Preamble Section IV.C.7.
15.2 Waste Treatment System Exclusion
15.2.1 General support for the waste treatment system exclusion
Some commenters asserted that including an exclusion for waste treatment systems in the final rule's
regulatory text would be consistent with the structure and goals of the Clean Water Act. Another
commenter suggested that excluding waste treatment systems aligns with cooperative federalism
principles in the Clean Water Act and respects the states' role in regulating water quality.
Many commenters expressed general support for codifying an exclusion in the rule's regulatory text for
waste treatment systems, as well as specific support for the proposed rule's version of the exclusion, with
some of these commenters stating that this exclusion has existed for decades and that certain industries
have substantial financial investments in such systems. Several commenters asserted that without an
exclusion for waste treatment systems, utilities and industries could face regulatory uncertainty about the
jurisdictional status of certain features, in addition to regulatory delay and expenses, regulatory
redundancy, and impediments to routine maintenance, which some of the commenters claimed could
hamper or preclude the use of waste treatment systems to improve water quality without providing
additional protection to the public or the environment.
A few commenters stated that there is no support for the view that a broad exclusion for waste treatment
systems would result in more "waters of the United States" being used as waste treatment systems, adding
that existing permitting requirements and the risk of enforcement against violators of the Act provides
incentive not to illegally use jurisdictional waters as waste treatment systems.
Additionally, several commenters asserted that certain inconsistencies would arise if waste treatment
systems are not excluded from the definition of "waters of the United States," suggesting, for example,
that waste treatment systems could not serve their intended purpose of protecting downstream water
quality or conserving water if portions of such systems were jurisdictional, as they could not be used to
treat, move, or contain wastewater prior to discharge or in a manner that eliminates the need for any
discharges. Relatedly, some commenters argued that a waste treatment system cannot be both a point
source and "waters of the United States."
Agencies' Response: The agencies agree with commenters who suggested that excluding
waste treatment systems from the definition of "waters of the United States" is a reasonable
and lawful exercise of the agencies' authority to determine the scope of "waters of the
United States." See Ohio Valley Envtl. Coal v. Aracoma Coal Co., 556 F.3d 177, 212 (4th Cir.
2009) (upholding the waste treatment system exclusion as a lawful exercise of the agencies'
"authority to determine which waters are covered by the CWA"). Indeed, the agencies find
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that retaining an exclusion for waste treatment systems in the final rule text is consistent
with the agencies' intent to interpret "waters of the United States" to mean the waters
defined by the familiar 1986 regulations, with amendments to reflect the agencies'
determination of the statutory limits on the scope of the "waters of the United States"
informed by case law, policy determinations, and the agencies' experience and expertise.
The final rule text retains the waste treatment system exclusion from the 1986 regulations
and returns to the longstanding version of the exclusion that the agencies have implemented
for decades. See Final Rule Preamble Section IV.C.7.
Application of the final rule's exclusion to waste treatment systems constructed in whole or
in part in jurisdictional waters does not license dischargers to freely use "waters of the
United States" as waste treatment systems. The exclusion does not exempt discharges of
dredged or fill material associated with construction of a waste treatment system from the
permitting requirements of section 404 of the Clean Water Act—including the requirement
that the discharge represent the least environmentally damaging practicable alternative.
The exclusion also does not free a discharger from the need to comply with the Clean Water
Act for pollutants discharged from a waste treatment system to "waters of the United
States"; only discharges into the waste treatment system are excluded from the Act's
requirements. Under a Clean Water Act section 402 permit, discharges from the waste
treatment system would need to meet the requirements of applicable effluent limitations
guidelines and new source performance standards, as well as any required water quality-
based effluent limitations.
Likewise, the waste treatment system exclusion does not free a discharger from having to
comply with the permitting provisions of the Clean Water Act at the final outfall. For
example, a discharger may not evade the permitting provisions of the Clean Water Act by
discharging directly into a jurisdictional water and then claiming that the dilution or
assimilative capacity of the receiving water is the excluded waste treatment system. See also
Final Rule Preamble Section IV.C.7.
The agencies do not agree that the categories of "point source" and "waters of the United
States" are necessarily mutually exclusive. The agencies have further evaluated this
question and concluded that the better reading of the statute is the agencies' historic
position that a ditch can be both a point source and a "water of the United States." That
position dates back to 1975 in an opinion of the General Counsel of EPA interpreting the
Clean Water Act. For further discussion of this issue, see Final Rule Preamble Section
IV.C.7.c.i and the agencies' response to comments in Section 14 and Section 15.11.
15.2.2 General opposition to the waste treatment system exclusion
Multiple commenters expressed general opposition to excluding waste treatment systems from the
definition of "waters of the United States." Some commenters discussed the history of the waste treatment
system exclusion, including relevant case law, to support the assertion that the exclusion is unlawful or
should at most only apply to human-made bodies of water.
A few commenters stated that it is inconsistent for the agencies to acknowledge that upstream waters can
have chemical, physical, and biological effects on downstream waters through surface or subsurface
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hydrologic connections and yet exclude impoundments that are used as waste treatment systems. These
commenters asserted that the agencies provided no scientific basis for excluding waste treatment systems
from the definition of "waters of the United States."
Agencies' Response: The agencies disagree that the waste treatment system exclusion is
unlawful or otherwise outside the agencies' discretion under the Clean Water Act. The
waste treatment system exclusion is a reasonable and lawful exercise of the agencies'
authority to determine the scope of "waters of the United States." See Ohio Valley Envtl.
Coal v. Aracoma Coal Co., 556 F.3d 177, 212 (4th Cir. 2009) (upholding the waste treatment
system exclusion as a lawful exercise of the agencies' "authority to determine which waters
are covered by the CWA"). The exclusion for waste treatment systems has been part of the
agencies' regulations and implementation of "waters of the United States" for decades.
Retaining an exclusion for waste treatment systems in the final rule text is thus consistent
with the agencies' longstanding practice and technical judgment that certain waters and
features are not subject to the Clean Water Act and reflect the agencies' determinations of
the lines of jurisdiction based on the case law, policy determinations, and the agencies'
experience and expertise.
Moreover, the exclusion does not license dischargers to freely use "waters of the United
States" as waste treatment systems. See Final Rule Preamble Section IV.C.7 and the
agencies' response to comments in Section 15.2.1.
Regarding limiting the scope of the exclusion for waste treatment systems to human-made
waters, see the agencies' response to comments in Section 15.2.3.1.
15.2.3 Scope of excluded "waste treatment systems"
Many commenters suggested that the agencies provide a clear definition of "waste treatment system" and
identify the types of features that would be included in that definition, with some commenters expressing
support specifically for relying on the 2020 NWPR's definition of "waste treatment system." Several
commenters indicated support in particular for the 2020 NWPR's approach of expressly including "all
components" of a system in the definition of "waste treatment system," including related conveyances,
and that the 2020 NWPR's exclusion applied to both active and passive treatment and cooling ponds.
A few commenters requested that the agencies clarify that the waste treatment system exclusion remains
applicable even when the closure process for a waste treatment system has begun. Other commenters
expressed support for not applying the exclusion to a waste treatment system that is abandoned or that
otherwise ceases to serve the treatment function for which it was designed.
Another commenter suggested that the exclusion be limited to instream waste treatment systems
constructed pursuant to a Clean Water Act section 404 permit and asserted that the proposed rule's
approach to the exclusion was too broad, vague, and could incentivize unnecessary impoundment of
jurisdictional waters. The commenter also requested that the agencies clarify that states have the ability to
apply a narrower state law version of the waste treatment system exclusion in "waters of the United
States" and apply state water quality requirements to waste treatment systems that are proposed to be
constructed in "waters of the United States."
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A few commenters asked that the exclusion apply to all waste treatment systems whether or not they were
built in or by impoundment of "waters of the United States."
Agencies' Response: With respect to commenters requesting that the rule include a
definition of waste treatment systems, the agencies view the final rule text as sufficiently
clear and providing an appropriate description of the scope of the exclusion for waste
treatment systems. The final rule text retains the waste treatment system exclusion from the
1986 regulations, with a ministerial change to delete the exclusion's cross-reference to a
definition of "cooling ponds" that no longer exists in the Code of Federal Regulations, and
the addition of a comma that clarifies the agencies' longstanding implementation of the
exclusion as applying only to systems that are designed to meet the requirements of the Act.
Retaining in the final rule text the longstanding version of the exclusion that the agencies
have implemented for decades is consistent with the agencies' intent to interpret "waters of
the United States" to mean the waters defined by the familiar 1986 regulations, with
amendments to reflect the agencies' determination of the statutory limits on the scope of the
"waters of the United States" informed by case law, policy determinations, and the
agencies' experience and expertise.
The agencies' decision not to specify in the final rule text the components described in the
2020 NWPR does not mean that the agencies intend to assert Clean Water Act jurisdiction
over those features under the final rule, particularly in circumstances where the agencies
would not have asserted jurisdiction consistent with their longstanding approach under the
pre-2015 regulatory regime. The agencies have applied the waste treatment system
exclusion as it is reflected in the final rule text for decades. The agencies will continue to
evaluate Clean Water Act jurisdiction on a case-specific basis. As part of this case-specific
assessment, the agencies will continue to consider whether the feature in question is
excavated or created in dry land, the flow of water in the feature, and other factors. The
agencies will not assert jurisdiction over features that do not satisfy the definition of
"waters of the United States" articulated in the final rule. When a feature does not meet the
definition articulated in the final rule, that feature is not a "water of the United States" and
there is no need for an explicit exclusion.
Regarding abandonment of waste treatment systems, consistent with the agencies'
longstanding implementation of the waste treatment system exclusion, including the
agencies' practice under the 2020 NWPR, a waste treatment system that is abandoned or
otherwise ceases to serve the treatment function for which it was designed would not
continue to qualify for the exclusion and could be deemed jurisdictional if it otherwise
meets the final rule's definition of "waters of the United States." See Final Rule Preamble
Section IV.C.7. See also Letter from Benjamin H. Grumbles, Assistant Administrator, EPA
to the Hon. John Paul Woodley, Assistant Secretary of the Army (Civil Works) (March 1,
2006) ("In addition, the Corps authorization for the mining project is conditioned to require
that waters adversely affected while being used as a waste treatment system are restored as
soon as the mining operation is completed and the water ... no longer requires treatment..
.. Once restoration is complete, the stream segment that was waters of the U.S. before
application of the waste treatment system exclusion, resumes its jurisdictional status as a
water of the U.S.").
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The agencies disagree that the waste treatment system exclusion incentivizes the creation of
impoundments. The exclusion does not exempt discharges of dredged or fill material from
the permitting requirements of Clean Water Act section 404 of the Clean Water Act—
including the requirement that the discharge represent the least environmentally damaging
practicable alternative—merely because those discharges are associated with construction
of a waste treatment system. Similarly, discharges from a waste treatment system remain
subject to the permitting requirements of Clean Water Act section 402. The exclusion does
not free a discharger from the need to comply with the Clean Water Act, including any
effluent limitations guidelines and new source performance standards requirements
applicable to the waste treatment system, and requirements applicable to pollutants
discharged from the waste treatment system to "waters of the United States"; only
discharges into an excluded waste treatment system are not subject to the Clean Water
Act's requirements. See also Final Rule Preamble Section IV.C.7.
Finally, nothing in the final rule prevents or precludes states from regulating more
stringently than federal requirements. Under the Clean Water Act, states and tribes retain
authority to implement their own programs to protect the waters in their jurisdiction more
broadly and more stringently than the federal government. See 40 CFR 123.1(i). Under
section 510 of the Clean Water Act, unless expressly stated, nothing in the Clean Water Act
precludes or denies the right of any state or tribe to establish more protective standards or
limits than the Clean Water Act.
15.2.3.1 Limiting the waste treatment system exclusion to human-made waterbodies
Some commenters supported deleting the sentence formerly contained in EPA's regulations that limited
application of the exclusion to human-made bodies of water. Other commenters asserted that the waste
treatment system exclusion should apply only to human-made bodies of water.
Agencies' Response: The agencies disagree that the waste treatment system
exclusion should be limited to human-made features. The final rule maintains the
2020 NWPR's deletion of a suspended sentence that limited application of the
exclusion to human-made bodies of water and that had appeared only in EPA's
NPDES regulations. In so doing, the final rule also maintains the agencies'
longstanding approach to implementing the waste treatment system exclusion, as
the agencies have not limited application of the waste treatment system exclusion to
human-made bodies of water for over four decades.
The agencies' longstanding approach to excluding waste treatment systems—
including those that are not constructed in human-made bodies of water is a
reasonable and lawful exercise of the agencies' authority to determine the scope of
"waters of the United States," see Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556
F.3d 177, 212 (4th Cir. 2009) (upholding the waste treatment system exclusion as a
lawful exercise of the agencies' "authority to determine which waters are covered
by the CWA").
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15.2.3.2 Limiting availability of the waste treatment system exclusion to permittees
A few commenters expressed concern about the agencies' assertion in the preamble "that the waste
treatment system exclusion is generally available only to the permittee using the system for the treatment
function for which such system was designed," suggesting that this introduces ambiguity without
contextual examples. These commenters suggested that the original design or use of a feature should have
no bearing on the waste treatment system exclusion. Another commenter expressed support for the
agencies' position in the proposed rule preamble on this issue.
One commenter expressed support for use of a comma to clarify that the exclusion applies only to
systems created in accordance with the Clean Water Act. The commenter further requested that the final
rule text clarify that the exclusion applies only when the permittee is using the system for the approved
treatment process.
Agencies' Response: The agencies do not interpret the waste treatment system exclusion to
allow any party to dispose of waste or discharge pollutants into the excluded feature
without authorization. Rather, for waters that would otherwise meet the final rule's
definition of "waters of the United States," the agencies' intent, consistent with prior
application of the NPDES program, is that the waste treatment system exclusion is
generally available only for discharges associated with the treatment function for which the
system was designed. This approach is also consistent with the purpose of the exclusion. As
the U.S. Court of Appeals for the Ninth Circuit stated: "The [waste treatment system
exclusion] was meant to avoid requiring dischargers to meet effluent discharge standards
for discharges into their own closed system treatment ponds." N. Cal. River Watch v. City of
Healdsburg, 496 F.3d 993,1002 (9th Cir. 2007), cert, denied, 552 U.S. 1180 (2008) (citation
omitted) (emphasis in original). Finally, this approach is also consistent with the agencies'
interpretation, including in the 2020 NWPR, that the waste treatment system exclusion does
not apply to an abandoned waste treatment system or to ones that cease to serve the
treatment function for which they were designed.
15.2.4 Requirement that excluded waste treatment systems be "designed to meet the
requirements" of the Clean Water Act
A few commenters requested clarification that discharges from waste treatment systems to "waters of the
United States" would continue to be subject to regulation by the Clean Water Act section 402 permitting
system. Another commenter asked that construction pursuant to a Clean Water Act section 404 permit not
be a prerequisite for application of the exclusion to waste treatment systems constructed in jurisdictional
waters.
Many commenters suggested that the phrase "designed to meet the requirements of the Clean Water Act"
be modified or removed and that the proposed comma before this phrase should be removed to avoid
confusion over systems built prior to 1972. Some of these commenters asserted that all waste treatment
systems should be excluded regardless of when they were built, while others claimed that waste treatment
systems built prior to 1972 should be excluded under certain circumstances. Several of these commenters
provided specific regulatory text edit suggestions.
One commenter expressed concern that the discussion in the preamble could be misread to mean that a
waste treatment system must have obtained certain permits or must comply with requirements of such
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permits or other Clean Water Act requirements, in order for the system to be excluded from the definition
of "waters of the United States."
A few commenters requested that the agencies clarify that the exclusion for wastewater treatment systems
is not dependent upon the nature of the operations that generate the wastewater that is being treated.
Several commenters opposed the proposed rule's insertion of a comma after the word "lagoon" as unduly
restricting the scope of the exclusion. Other commenters supported insertion of the comma to clarify that
the exclusion applies only to systems designed to meet the requirements of the Clean Water Act.
Agencies' Response: As explained in Final Rule Preamble Section IV.C.7, Clean Water Act
permitting requirements continue to apply to discharges from an excluded waste treatment
system. Consistent with the agencies' longstanding approach, the exclusion does not free a
discharger from the need to comply with the Clean Water Act for pollutants discharged
from a waste treatment system to "waters of the United States"; only discharges into the
waste treatment system are excluded from the Clean Water Act's requirements.
The agencies disagree to the extent commenters asserted that a Clean Water Act section 404
permit should not be required for discharges of dredged or fill material into jurisdictional
waters for the purpose of constructing a waste treatment system. The exclusion does not
free a discharger from the need to comply with the Clean Water Act, including any effluent
limitations guidelines and new source performance standards requirements applicable to
the waste treatment system, and requirements applicable to the pollutants discharged from
a waste treatment system to "waters of the United States"; only discharges into the waste
treatment system are excluded from the Act's requirements. As such, any entity would need
to comply with the Clean Water Act by obtaining a section 404 permit for a new waste
treatment system that will be constructed in "waters of the United States," and a section 402
permit if there are discharges of pollutants from a waste treatment system into "waters of
the United States." See also Final Rule Preamble Section IV.C.7 and Proposed Rule
Preamble Section V.C.8.b.
The final rule text, including the addition of a comma after "lagoons," does not alter the
agencies' longstanding approach of applying the exclusion to features that were constructed
prior to 1972 where such features otherwise function as waste treatment systems designed
to meet the requirements of the Clean Water Act. See also Final Rule Preamble Section
IV.C.7.
Application of the exclusion does not necessarily rest on whether aspects of the waste
treatment system are subject to any specific Clean Water Act permit. For example, there
may be waste treatment systems that do not discharge. Nor is application of the exclusion
limited to specific industries. Nevertheless, for the exclusion to apply, the system must be
operating as a waste treatment system in a manner consistent with Clean Water Act section
301's command that, except in compliance with the Clean Water Act (including its
permitting provisions), the discharge of any pollutant by any person is unlawful. The waste
treatment system exclusion does not free a discharger from having to achieve the effluent
limitations required under Clean Water Act section 301 at the final outfall. For example, a
discharger may not evade the permitting provisions of the Clean Water Act by discharging
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directly into a jurisdictional water and then claiming that the dilution or assimilative
capacity of the receiving water, without more, serves as an excluded waste treatment
system.
15.2.5 Including stormwater controls in the waste treatment system exclusion
Several commenters requested that final rule expressly exclude stormwater management and treatment
systems under the waste treatment system exclusion.
Agencies' Response: Regarding stormwater controls, see the agencies' response to
comments in Section 15.11. The agencies are not including an express exclusion for
stormwater management and treatment systems in the final rule. Even for features that are
not explicitly excluded, the agencies will continue to assess jurisdiction under the final rule
on a case-specific basis. As part of this case-specific assessment, the agencies will continue to
consider whether the feature in question is excavated or created in dry land, the flow of
water in the feature, and other factors. In addition, some of the features that commenters
asked the agencies to exclude may be covered by one or more of the exclusions in the final
rule if they satisfy the criteria for those exclusions.
15.2.6 Relationship between excluded waste treatment systems and upstream waters
A few commenters expressed agreement with the language in the preamble to the proposed rule that the
presence of an excluded waste treatment system does not sever upstream waters from Clean Water Act
jurisdiction. Another commenter recommended that the regulatory text expressly codify this position that
the presence of an excluded waste treatment system does not sever upstream waters from Clean Water
Act jurisdiction.
One commenter expressed disagreement with the language in the preamble that the presence of an
excluded waste treatment system does not sever upstream waters from Clean Water Act jurisdiction.
Agencies' Response: The agencies agree with those commenters who asserted that the
presence of an excluded instream waste treatment system does not sever upstream waters
from Clean Water Act jurisdiction. The final rule does not change the agencies'
longstanding approach to application of the waste treatment system exclusion, including the
agencies' longstanding interpretation that the presence of an excluded instream waste
treatment system does not sever upstream waters from Clean Water Act jurisdiction. The
permitting provisions of the Clean Water Act (including under section 402 and section 404)
do not cease to apply to discharges to upstream waters solely because of the presence of a
downstream excluded waste treatment system. See Final Rule Preamble Section IV.C.7.
15.2.7 Comments on excluding certain components or types of waste treatment systems
One commenter requested that the final rule preamble provide an illustrative list of types of systems that
would be covered under the waste treatment system.
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Several commenters recommended that the waste treatment system exclusion or another exclusion be
applied to groundwater recharge basins and similar facilities such as spreading grounds/basins, treatment
ponds/lagoons, and constructed treatment wetlands used as part of the wastewater process and suggested
that these should be expressly included in the waste treatment system or have an exclusion of their own.
A few commenters recommended that the waste treatment system exclusion extend to zero-discharge and
water recycling facilities
One commenter requested that on-site maintenance of water, including transport, storage, treatment, and
use, be excluded.
The same commenter suggested that the waste treatment system exclusion extend to all human-made
basins and ponds.
One commenter suggested that the waste treatment exclusion extend to land applications and landfill sites
for biosolids.
One commenter suggested that the waste treatment system exclusion extend to small and medium animal
feeding operations that do not require NPDES permits for their discharges. Certain facilities may
discharge from waste treatment systems, but those discharges may not require an NPDES permit. The
commenter expressed concern that the waste treatment system exclusion as proposed may unintentionally
not apply to waste treatment systems treating discharges that do not require an NPDES permit.
One commenter suggested that the waste treatment system exclusion extend to methods used at mining
sites such as wastewater and stormwater retention, concentration (evaporation), settling, or active and
passive treatments to remove or reduce pollutants.
One commenter suggested that the waste treatment system exclusion apply to constructed water quality
treatment wetlands, along with lands which are non-irrigated except by a system of constructed wetlands
designed to remove pollutants, and waste treatment plant buffer property.
One commenter suggested that the waste treatment system exclusion apply to equalizing and storing
activities associated with pollutant removal, along with systems used to treat surface water that will be
used as process water for manufacturing operations.
One commenter requested that drinking water treatment systems receive the same exclusion as waste
treatment systems.
Agencies' Response: Determinations regarding the jurisdictional status of any specific
water are outside the scope of this rulemaking. The agencies will assess jurisdiction under
the final rule on a case-specific basis. As part of this case-specific assessment, the agencies
will continue to consider whether the feature in question is excavated or created in dry land,
the flow of water in the feature, and other factors. The exclusion for waste treatment
systems applies to those features that meet the terms of the exclusion. The agencies will not
assert jurisdiction over features that do not satisfy the definition of "waters of the United
States" articulated in the final rule. A feature that does not meet the definition articulated
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in the final rule is not a "water of the United States." A feature that satisfies one of the
exclusions in the final rule text is also not a "water of the United States."
The final rule does not change the agencies' longstanding framework under the pre-2015
regulatory regime for applying the waste treatment system exclusion. Given the variety of
features and processes that could be employed for waste treatment, the agencies conclude
that an illustrative list would run the risk of being perceived as both over- and under-
inclusive. The agencies' decision not to provide an illustrative list does not mean that the
agencies intend to assert Clean Water Act jurisdiction under the final rule over specific
features or processes identified in the comments, particularly in circumstances where the
agencies would not have asserted jurisdiction consistent with their longstanding approach
to implementing this exclusion under the pre-2015 regulatory regime.
For a discussion of water recycling facilities, see the agencies' response to comments in
Section 15.12. Regarding water transfers, the final rule does not change the agencies'
approach to water transfers. See 40 CFR 122.3(i).
To the extent some commenters suggested extending the waste treatment system exclusion
to all human-made basins and ponds, the final rule does not expand the exclusion beyond its
longstanding parameters. The exclusion applies to human-made features that are waste
treatment systems designed to meet the requirements of the Clean Water Act consistent
with the final rule text. Human-made features that are not waste treatment systems
designed to meet the requirements of the Clean Water Act are not within the waste
treatment system exclusion.
The final rule does not change the agencies' longstanding approach to waste treatment
systems constructed in connection with mining operations. See Letter from Benjamin H.
Grumbles, Assistant Administrator, EPA to the Hon. John Paul Woodley, Assistant
Secretary of the Army (Civil Works) (March 1, 2006); Memorandum from LaJuana S.
Wilcher, Assistant Administrator, to Charles E. Findley, Director, Water Division, Region
X re Clean Water Act regulation of mine tailings disposal (Oct. 2,1992).
Further, nothing in the final rule changes the agencies' longstanding approach to drinking
water systems. The absence of an express exclusion for drinking water systems does not
mean that the agencies intend to assert Clean Water Act jurisdiction under the final rule
over specific features or processes identified in the comments, particularly in circumstances
where the agencies would not have asserted jurisdiction consistent with their longstanding
approach to implementing the exclusion under the pre-2015 regulatory regime.
To the extent a commenter suggests that the exclusion for waste treatment systems should
extend to features that treat waste and discharge but are not required to have a Clean
Water Act permit, the agencies agree. Application of the exclusion does not necessarily rest
on whether aspects of the waste treatment system are subject to any specific Clean Water
Act permit. The final rule does not change the agencies' longstanding application of the
waste treatment system exclusion.
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15.2.8 Cooling ponds
Several commenters expressed support for deleting a reference to a definition for cooling ponds that does
no longer exists in the Code of Federal Regulations.
Another commenter expressed opposition to the 2020 NWPR's definition of "waste treatment system"
that the commenter stated expressly excluded all "cooling ponds" from the definition of "waters of the
United States."
A few commenters contended that, as written, the exclusion for waste treatment systems could be
interpreted to exclude lakes and ponds that would otherwise be considered "waters of the United States"
if, for example, they are used as cooling ponds for utilities or other industries. The commenters requested
that the proposed rule explicitly state that traditional navigable waters and interstate waters are not subject
to the waste treatment system exclusion. Some pointed to case law to justify their arguments and
contended that a "water of the United States" does not lose its federal status by being diverted and
impounded.
Several commenters suggested that the regulatory text or preamble make clear that the waste treatment
exclusion applies to human-made industrial or commercial holding ponds, such as those for cooling water
or process water (i.e., cooling ponds).
Agencies' Response: The agencies agree that the reference to an obsolete definition of
cooling ponds should be removed from the waste treatment system exclusion as it is codified
in the regulatory text.
As explained in Final Rule Preamble Section IV.C.7, the final rule's exclusions—including
the waste treatment system exclusion—do not apply to features that, at the time they are
assessed, are jurisdictional under paragraph (a)(1). Note, however, that an excluded waste
treatment system—such as a cooling pond—may over time take on the characteristics of a
jurisdictional water, such as a paragraph (a)(1) traditional navigable water.3 In this
scenario, the exclusion continues to apply and the waste treatment system does not become
a jurisdictional water under paragraph (a)(1) or any other provision of the rule, unless or
until the system ceases to serve the treatment function for which it was designed (as
discussed in the immediately preceding paragraph).
While certain cooling ponds may fall within the waste treatment system exclusion, the
authorized discharge of heat into a jurisdictional waterbody or the use of a jurisdictional
waterbody as a source of cooling water by itself does not transform that waterbody into a
waste treatment system. For the exclusion to apply, the system must be operating as a waste
treatment system in a manner consistent with the requirements of Clean Water Act section
301 that, except in compliance with the Clean Water Act (including its permitting
provisions), the discharge of any pollutant by any person is unlawful. The waste treatment
system exclusion does not free a discharger from having to comply with the permitting
provisions of the Clean Water Act at the final outfall from the system. For example, a
3 This situation may arise where, for example, a human-made cooling pond constructed in uplands takes on the
characteristics of a traditional navigable water.
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discharger may not evade the permitting provisions of the Clean Water Act by discharging
directly into a jurisdictional water and then claiming that the dilution or assimilative
capacity of the receiving water, without more, serves as an excluded waste treatment
system. See also Final Rule Preamble Section IV.C.7.
15.2.9 Comments citing examples of excluded waste treatment systems
A few commenters provided specific examples of utilities or industries whose cooling and holding ponds,
the commenters contended, have polluted nearby waters.
One commenter described the impacts of coal ash surface impoundments that the commenter asserted
could be excluded as part of a waste treatment system and cited these impacts as a reason not to include
the exclusion for waste treatment systems in the final rule.
Agencies' Response: The agencies acknowledge the examples provided by the commenters.
The waste treatment system exclusion does not free a discharger from the need to comply
with the Clean Water Act for pollutants discharged from a waste treatment system to
"waters of the United States"; only discharges into the waste treatment system are excluded
from the Clean Water Act's requirements. As such, any entity would need to comply with
the Clean Water Act by obtaining a section 404 permit for a new waste treatment system
constructed in "waters of the United States," and a section 402 permit for discharges of
pollutants from a waste treatment system into "waters of the United States." See Final Rule
Preamble Section IV.C.7; see also Final Rule Preamble Section IV.A.2.a (discussing the
Supreme Court's decision in County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S. Ct.
1462 (2020)).
15.3 Prior Converted Cropland
15.3.1 General support for a jurisdictional exclusion for prior converted cropland
Many commenters urge retention of an exclusion for prior converted cropland, noting that farmers have
relied upon the exclusion for decades.
Agencies' Response: The agencies agree with those commenters requesting the continuation
of the exclusion of prior converted croplands. In the final rule the agencies have
repromulgated the regulatory exclusion for prior converted cropland first codified in 1993,
which provided that prior converted cropland is "not 'waters of the United States.'" The
final rule restores longstanding and familiar practice under the pre-2015 regulatory regime
and maintains consistency and compatibility between the agencies' implementation of the
Clean Water Act and the USDA's implementation of the Food Security Act by providing
that prior converted cropland under the Clean Water Act encompasses areas designated by
USDA as prior converted cropland. Areas USDA has not so designated are not eligible for
this Clean Water Act exclusion.
The agencies recognize that farmers and ranchers are leaders in environmental stewardship
and water management and that water is essential to farmers' work to feed and fuel the
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nation. The agencies agree that expressly excluding prior converted cropland from "waters
of the United States" is a reasonable and lawful exercise of the agencies' authority to
determine the scope of "waters of the United States." This categorical exclusion for prior
converted cropland will simplify the process of determining jurisdiction while providing
certainty to farmers seeking to conserve and protect land and waters pursuant to federal
law. The final rule also appropriately balances the need to protect the nation's capability to
produce food and fiber with the need to protect the nation's wetlands. See Final Rule
Preamble Section IV.C.7; Proposed Rule Preamble Section V.C.8.a.
15.3.2 General opposition to a jurisdictional exclusion for prior converted cropland
Some commenters opposed any categorical exclusion for prior converted cropland. A few of these
suggested the exclusion, even as originally promulgated in 1993, lacks a scientific basis and that even
degraded prior converted cropland could still perform some wetlands functions or be restored. These
commenters referenced studies showing how prior converted cropland continues to perform the functions
of wetlands. Another commenter asserted that there is no legal basis for excluding prior converted
croplands.
Several commenters cite to a USD A study to support their assertion that the exclusion for prior converted
cropland should be eliminated or at least limited. See U.S. Dept. of Agric., "Role of Prior Converted
Croplands on Nitrate Processing in Mid-Atlantic Agricultural Landscapes" (Sept. 2017) ("Our research
suggests that prior converted cropland can substantially reduce nitrate export from agricultural watersheds
in the region, an ecosystem function shared with natural and restored wetlands."), available at
https ://www.nrcs .usda.gov/Internet/FSE_DOCUMENTS/nrcseprd 1353132 .pdf.
Agencies' Response: The agencies disagree with commenters who assert that prior
converted cropland should not be excluded from the definition of "waters of the United
States" absent evidence that the area performs no wetland functions and cannot be
restored. Expressly excluding prior converted cropland from "waters of the United States"
is a reasonable and lawful exercise of the agencies' authority to determine the scope of
"waters of the United States." As the agencies explained in 1993, "effective implementation
of the wetlands provisions of the Act without unduly confusing the public and regulated
community is vital to achieving the environmental protection goals of the Clean Water Act."
58 FR 45031. The agencies also noted that "[t]he [Clean Water Act] is not administered in a
vacuum. Statutes other than the [Clean Water Act] and agencies other than the EPA and
the Corps have become an integral part of the federal wetlands protection effort. We
conclude that this effort will be most effective if the agencies involved have, to the extent
possible, consistent and compatible approaches to insuring wetlands protection. 58 FR
45008, 45031-32. Excluding prior converted cropland serves the important purpose of
maintaining consistency among federal programs addressing wetlands while furthering the
objective of the Clean Water Act.
With respect to the USDA study cited by some commenters, the agencies acknowledge that
the final rule's exclusions from the definition of "waters of the United States" are based on
policy and implementation reasons and not based on scientific support. However, the
agencies conclude that the final rule's treatment of prior converted cropland (i.e., the focus
on change in use for areas to no longer be eligible for the exclusion) is consistent with the
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cited study. The USDA study referenced by the commenters compared nitrate export from
two subwatersheds with comparable quantities of cropland within the Choptank River
watershed. The study noted that the subwatershed with a higher percentage of prior
converted cropland exported less nitrate than the subwatershed where the percentage of
prior converted cropland was less. The study attributed this difference to denitrification
being performed by the poorly drained (i.e., wetlands) soils within the prior converted
cropland areas. The final rule is consistent with this study because it removes incentives for
farmers to manipulate prior converted cropland that otherwise would remain idle. The final
rule provides assurance that a farmer can allow prior converted cropland to remain idle or
fallow without concern that the area will lose its prior converted croplands status due to
abandonment. Because the final rule preserves the exclusion unless there is a change in use,
it removes incentives for farmers to periodically disturb prior converted cropland to avoid
the risk that an area would revert to wetlands and lose its prior converted cropland
designation. See agencies' response to comments Section 15.3.5.
15.3.3 Jurisdictional exclusion for prior converted cropland as set forth in the 2020 NWPR
Many commenters requested that the agencies retain the 2020 NWPR's exclusion for prior converted
cropland. These commenters asserted that retaining the 2020 NWPR's version of the exclusion would
reduce confusion in implementing the exclusion for prior converted cropland. Specifically, these
commenters requested that the agencies (i) withdraw the 2005 Joint Memorandum between the Corps and
USDA; (ii) allow areas to be identified as prior converted cropland regardless of whether USDA has
designated it as prior converted cropland; and (iii) allow prior converted cropland to retain its excluded
status so long as the land has been used for a broad range of agricultural purposes at least once in the
preceding five years.
Many commenters stated that the version of the exclusion for prior converted cropland in the 2020 NWPR
provided much-needed clarity and requested it be included in the final rule.
One commenter expressed concern that the proposed rule would require rice farmers to establish that
longstanding rice lands were created on historically dry land. The commenter favored retention of the
2020 NWPR as providing greater certainty and requiring less expenditure by the landowner to
demonstrate that his or her land meets the exclusion for prior converted cropland.
One commenter asserted that until the 2020 NWPR the prior converted cropland exclusion was uncertain
and confusing and required a landowner to proceed through a lengthy and costly process, without
compensation. Another commenter asserted that the proposed rule's definitions are vague and overly
broad and would impair farmers' ability to operate.
Other commenters did not support the definition of prior converted cropland in the 2020 NWPR and
requested a less expansive exclusion.
• One commenter pointed out that the breadth of NWPR's use of the term "agricultural purpose"
introduced confusion and would greatly expand the scope of the exclusion for prior converted
cropland. That commenter gave an example of whether grazing by a single cow would be
sufficient to meet "agricultural purpose."
• Some commenters specifically suggested that the 2020 NWPR definition be modified to include
only significantly degraded lands that are unlikely to be able to revert back to wetlands. One of
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these commenters suggested that the definition should be specifically tied to the production of
food.
• A few commenters suggested that the 2020 NWPR standards for excluding prior converted
cropland made it very unlikely that a prior converted cropland would become eligible to be
jurisdictional again. These commenters requested a clearer path to jurisdictional status for prior
converted cropland that revert to wetlands or are put to non-agricultural use.
• A few commenters expressed support for the original 1993 definition.
Agencies' Response: To the extent commenters request that the agencies retain the
exclusion for prior converted cropland in the 2020 NWPR, the agencies disagree. As set
forth in the Final Rule Preamble Section IV.C.7 and the Proposed Rule Preamble Section
V.C.8.a, the agencies chose not to codify the 2020 NWPR's definition because that
interpretation does not carry out the original purpose of the exclusion, which is to ensure
consistency among federal wetland protection programs while protecting the integrity of the
nation's waters. The agencies conclude that the final rule text best achieves the agencies'
goal of maintaining consistency and compatibility between the agencies' implementation of
the Clean Water Act and the USDA's implementation of the Food Security Act, minimizing
disruption of farming operations, and furthering the objective of the Clean Water Act.
In response to requests from commenters to increase the clarity of the exclusions through
the regulatory text, the agencies are noting in the regulations that this exclusion
encompasses areas that USDA has designated as prior converted cropland, and that the
exclusion will cease when the area has changed use so that it is no longer available for the
production of agricultural commodities. The final rule does not reinstate the 2005 Joint
Memorandum, which was rescinded on January 28, 2020. See
https://usace.contentdm.oclc.org/utils/getfile/collection/pl6021collll/id/4288. That said, the
final rule borrows certain concepts from the 2005 Joint Memorandum. See agencies'
response to comments Section 15.3.5.2. With respect to the conditions that would cause the
exclusion for prior converted cropland to no longer apply to an area, see the Final Rule
Preamble Section IV.C.7.a and the agencies' response to comments Section 15.3.5.
To the extent a commenter asserted that the proposed rule would require a farmer to prove
that rice fields were constructed in dry land, the exclusion for prior converted cropland in
the 1993 preamble and in the final rule does not require that the feature be constructed in
dry land. The commenter appears to be confusing the exclusion for prior converted
cropland with the exclusion for " [a] rtificial lakes or ponds created by excavating or diking
dry land to collect and retain water and which are used exclusively for such purposes as
stock watering, irrigation, settling basins, or rice growing," which is codified as section
(b)(5) of the final rule text. See the agencies' response to comments in Section 15.6.
15.3.4 Definition of prior converted cropland
15.3.4.1 Prior converted cropland definition
Many commenters expressed a desire to have a specific definition of prior converted cropland in the
proposed rule to provide clarity.
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One commenter requested that ditches, laterals, and canals within prior converted cropland-designated
land also be part of the prior converted cropland exclusion.
One commenter sought to broaden the exclusion beyond the agricultural context, asserting that there was
no ecological or hydrological rationale for treating wetlands converted to cropland differently than
wetlands converted for industrial purposes.
A few commenters expressed support for the USDA Natural Resources Conservation Service (NRCS)
definition.
Agencies' Response: The agencies agree with those commenters who support including a
definition of prior converted cropland in the rule and those who support using the same
definition of prior converted cropland for purposes of both the Clean Water Act and the
Food Security Act. The final rule will implement the prior converted cropland exclusion so
that it encompasses all areas designated by USDA, and no additional areas. USDA
interprets prior converted cropland to be a "converted wetland where the conversion
occurred prior to December 23,1985, an agricultural commodity had been produced at
least once before December 23,1985, and as of December 23,1985, the converted wetland
did not support woody vegetation and did not meet the hydrologic criteria for farmed
wetland." 7 CFR 12.2. See Final Rule Preamble Section IV.C.7. USDA defines an
agricultural commodity, in turn, as "any crop planted and produced by annual tilling of the
soil, including tilling by one-trip planters, or sugarcane." Id. at 12.2.
The agencies chose not to codify USDA's definition of prior converted cropland, ensuring
that they would retain flexibility to accommodate changes USDA might make. Instead, the
final rule achieves consistency with the USDA's definition by clarifying in the regulatory
text that "Prior converted cropland designated by the Secretary of Agriculture" is not
"waters of the United States."
To the extent commenters assert that the exclusion for prior converted cropland should
extend to features other than wetlands, the agencies disagree. Consistent with longstanding
agency practice, the water features in question on prior converted cropland are wetlands.
The Clean Water Act exclusion for prior converted cropland only covers wetlands and does
not exclude other types of non-wetland aquatic resources (e.g., tributaries, ponds, ditches)
that are located within the prior converted cropland area.
The agencies also disagree with comments asserting that wetlands converted for industrial
use also should be excluded as prior converted cropland. The purpose of the exclusion for
prior converted cropland is to ensure consistency and compatibility between the agencies'
implementation of the Clean Water Act and the USDA's implementation of the Food
Security Act while furthering the objective of the Clean Water Act. Expanding the
exclusion to wetlands converted for industrial use would not further these goals.
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15.3.4.2 Which agency should identify prior converted cropland
Several commenters suggested that prior converted cropland determination should not depend on
determination by the USDA, but rather by the agencies. Some commenters noted that an affirmative
determination of prior converted cropland status by USDA should not be determinative of jurisdictional
status.
Conversely, a few commenters suggested that the agencies should continue their longstanding policy of
consulting with the NRCS to determine these excluded areas and continue to accept NRCS prior
converted cropland certifications as valid "waters of the United States" exclusions.
One commenter requested that the agencies continue to provide cross-agency prior converted cropland
guidance for any new rule.
Agencies' Response: The agencies agree with those commenters who assert that only prior
converted cropland designated by USDA should fall within the exclusion for prior
converted cropland. The final rule provides clarity and maintains consistency and
compatibility between the agencies' implementation of the Clean Water Act and the
USDA's implementation of the Food Security Act by providing that prior converted
cropland under the Clean Water Act encompasses areas designated by USDA as prior
converted cropland. Areas USDA has not so designated are not eligible for this Clean Water
Act exclusion under the final rule.
Consistent with practice under the pre-2015 regulatory regime, a landowner may
demonstrate that a water is a prior converted cropland by providing a USDA prior
converted cropland certification. See 58 FR 45033 ("recognizing [NRCSJ's expertise in
making these [prior converted] cropland determinations, we will continue to rely generally
on determinations made by [NRCS]."). In order to maintain consistency between
implementation of the Clean Water Act and the Food Security Act, the agencies have not
codified USDA's definition of prior converted cropland. By codifying in the regulatory text
that the exclusion covers only areas designated as prior converted cropland by USDA, the
final rule makes clear that the exclusion is consistent with USDA's definition. This
clarification provides certainty and transparency but also ensures flexibility to adapt to any
changes USDA might make in implementing the prior converted cropland exclusion. See
also Final Rule Preamble Section IV.C.7.
That said, the final rule retains the longstanding provision that "for purposes of the Clean
Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA."
Thus, while the scope of the exclusion is limited to areas designated as prior converted
cropland by USDA, the final authority to determine whether the exclusion applies lies with
EPA. For purposes of day-to-day implementation of the permitting provisions of Clean
Water Act section 404, the Corps remains the lead federal agency. Consistent with
longstanding practice, the Corps will continue to make determinations regarding
applicability of the exclusion on a case-specific basis as part of its implementation of its
Clean Water Act section 404 permitting responsibilities and will consult with EPA as
appropriate.
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To the extent commenters request that the agencies provide guidance on implementation of
the exclusion for prior converted cropland, 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's exclusion for prior
converted cropland.
15.3.5 Comments regarding when or if an area loses its status as prior converted cropland
The agencies solicited public comment and many commenters expressed an opinion as to the appropriate
principles for determining the circumstances under which the Clean Water Act exclusion would no longer
apply to a prior converted cropland. These included the abandonment approach as described in the 1993
preamble (58 FR 45031-34), the abandonment approach as embodied in the 2020 NWPR (85 FR 22320-
21), and the change in use approach as implemented by USDA under its regulations. The agencies
received comments favoring each of the foregoing approaches.
A few commenters expressed concern that rice fields could lose prior converted cropland status under the
proposed rule because rice lands may lie fallow for several years due to drought or other lack of water
availability.
Agencies' Response: The agencies have decided to enhance consistency between prior
converted cropland under the Food Security Act and under the Clean Water Act, without
undermining the goals of the Clean Water Act, by implementing the exclusion as ceasing
upon the area's "change in use." Under the final rule, a prior converted cropland would
regain jurisdictional status if it meets the definition of "waters of the United States" and is
subject to a "change in use," meaning that it is no longer available for production of an
agricultural commodity. See Final Rule Preamble Section IV.C.7.a.
At the outset, it is important to note that the agencies agree that areas that do not meet the
definition of "waters of the United States" would not be regulated regardless of their status
as prior converted cropland. The final rule does not change the agencies' longstanding
interpretation that no Clean Water Act authorization is needed for discharges to an area
that has lost its prior converted cropland status unless the area also satisfies the definition
of "waters of the United States."
As explained in the Final Rule Preamble Section IV.C.7, the agencies will implement the
prior converted cropland designation as lasting so long as an area is available for the
production of agricultural commodities, including being left idle for any agricultural
purpose. The exclusion for prior converted cropland would no longer be available following
a "change in use" occurring when prior converted cropland is no longer available for the
production of an agricultural commodity.
Consistent with USDA's interpretation, a "change in use" would not occur "[a]s long as the
area is devoted to the use and management of the land for production of food, fiber, or
horticultural crops..." 7 CFR 12.30(c)(6). The agencies do not interpret changes in use to
include discharges associated with agricultural uses identified in the Corps' and NRCS's
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2005 Memorandum to the Field, such as planting of agricultural crops, production of food
or fiber, haying or grazing, idling consistent with USDA programs, or diversion from crop
production for purposes of preventing erosion or other degradation, as these uses keep the
land available for future production of agricultural commodities. Similarly, an area may
retain its prior converted cropland status if it is used for any of the agricultural purposes
identified in the 2020 NWPR preamble, which "includ[e] but [are] not limited to "idling
land for conservation uses (e.g., habitat; pollinator and wildlife management; and water
storage, supply, and flood management); irrigation tailwater storage; crawfish farming;
cranberry bogs; nutrient retention; and idling land for soil recovery following natural
disasters like hurricanes and drought," as well as "crop production, haying, and grazing,"
so long as the area remains available for the production of agricultural commodities." See
85 FR 22321 (April 21, 2020). Consistent with USDA practice, an area has not experienced a
change in use if, for example, it transitions into a long-term rotation into agroforestry or
perennial crops, such as vineyards or orchards, or if it lies idle and the landowner passively
preserves the area for wildlife use. Generally speaking, idling the land retains its availability
for the production of an agricultural commodity.
The change in use approach is consistent with the underlying purpose of the Clean Water
Act exclusion to achieve as much consistency and compatibility as possible between the
agencies' implementation of the Clean Water Act and the USDA's implementation of the
Food Security Act, thereby providing certainty to farmers seeking to conserve and protect
land and waters pursuant to federal law. Because the wetland conservation provisions of the
Food Security Act only apply to the production of agricultural commodities, a prior
converted cropland designation becomes moot for USDA purposes once land is removed
from agricultural use.
The agencies' approach to prior converted cropland under the final rule imposes less of a
burden on farmers than the approach under the 2020 NWPR or the abandonment
approach under the 1993 preamble. Both the 1993 preamble and the 2020 NWPR versions
of abandonment imposed temporal and qualitative criteria that could cause idled or fallow
land to cease qualifying for the exclusion. Under the 1993 preamble, prior converted
cropland that reverted to wetlands would be considered abandoned unless "once in every
five years [the area] has been used for the production of an agricultural commodity, or the
area has been used and will continue to be used for the production of an agricultural
commodity in a commonly used rotation with aquaculture, grasses, legumes, or pasture
production." 58 FR 45034. Under the 2020 NWPR, "[abandonment occurs when prior
converted cropland is not used for, or in support of, agricultural purposes at least once in
the immediately preceding five years." 85 FR 22341. The 2020 NWPR's preamble explained
that prior converted cropland would not be considered abandoned if it were idled or lying
fallow "for conservation or agricultural purposes." 85 FR 22320.
By contrast, under implementation of the final rule, a prior converted cropland would not
lose its eligibility for the Clean Water Act exclusion regardless of how long it was idled or
fallow or for what purpose, so long as it remains available for use as cropland. In other
words, under the final rule, a farmer could maintain prior converted cropland status
without needing to demonstrate that the area was used for support of agricultural purposes
at least once in the immediately preceding five years or had been idled for conservation or
agricultural purposes. See also Final Rule Preamble Section IV.C.7.
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Under the change in use principle, there is no incentive or need for the farmer to
manipulate idled or fallow fields once every five years to avoid inadvertent abandonment
and loss of the exclusion. Accordingly, the change in use approach provides greater
flexibility for a farmer to manage his or her lands, facilitates soil health and restoration,
and less impediment to a farmer seeking to bring long-idled prior converted cropland back
into crop production.
The final rule's change in use approach also closes the "loophole" identified by some
commenters as associated with the abandonment approach by ensuring that discharges that
would lead to making the land unavailable for crop production would require authorization
under Clean Water Act. See the agencies' response to comments Section 15.3.5.2. The
change in use principle, therefore, appropriately balances the need to protect the nation's
capability to produce food and fiber with the need to protect the nation's wetlands.
With respect to comments regarding the effect of the final rule on rice fields left fallow for
several seasons due to weather conditions, determinations regarding the jurisdictional
status of any specific water are outside the scope of this rulemaking. The agencies will assess
jurisdiction under the final rule on a case-specific basis. That said, as a general matter, an
area would not lose its prior converted cropland status so long as it remains available for
crop production, regardless of whether the purpose for idling the land was related to
conservation or agricultural purposes. See the agencies' response to comments in Sections
15.3.5 and 15.3.5.2.
15.3.5.1 A bandonment
A few commenters suggested that many forms of agriculture don't require annual tillage and planting, so
these should not be standards for determining abandonment.
One commenter suggested that prior converted cropland exclusion status should remain if the land is put
to any non-wetland related beneficial use, until wetlands can be clearly delineated by the agencies as a
result of abandonment.
One commenter suggested that it is not necessary to define "abandonment" if, when a change to a non-
agricultural use is proposed, the agencies conduct the jurisdictional evaluation through a change in use
analysis.
One commenter asserted that use of the abandonment principle for determining when an area ceases to be
prior converted cropland for Clean Water Act purposes under either the pre-2015 regulatory regime or the
2020 NWPR creates a "gap" in the administration of the exclusion that allows dischargers of fill for non-
agricultural purposes to take advantage of an exclusion that was intended to apply to agricultural uses.
Several commenters expressed support for the 2020 NWPR's standard that prior converted cropland
should maintain its designation if it has been used for agricultural purposes at least once in the preceding
five years.
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A few commenters suggested that once something is determined to be prior converted cropland, it should
always be considered prior converted cropland. They claimed that abandonment standards should not be
necessary unless a prior converted cropland has been fully abandoned for agricultural purposes.
Some commenters suggested that prior converted cropland should not be considered abandoned so long as
the land remains available for production of an agricultural commodity or for conservation purposes, or if
irrigation water is denied due to drought or other reasons.
Several commenters objected to the 2020 NWPR's standard and instead suggested support for the original
approach from 1993 that prior converted cropland should maintain its designation if it has been used for
agricultural production at least once in the preceding five years. Many of these commenters objected to
what they asserted was an overly broad definition of "agricultural purposes" in the 2020 NWPR and
would prefer to base the standard on the production of agricultural commodities.
One commenter provided examples of developers who used the 2020 NWPR standard to exclude prior
converted cropland even though they had plans to develop their lands for non-agricultural purposes.
Several commenters did not support a 5-year window for determining if prior converted cropland is
abandoned, suggesting that drought, change in commodity prices, and other factors can keep agricultural
lands out of use.
One commenter questioned the agencies reference in the Proposed Rule Preamble to an area out of
production for six years and questioned whether that reference was inconsistent with a 5-year
abandonment period.
Some commenters suggested a 10-year window would be more appropriate.
Agencies' Response: See the agencies' response to comments in Section 15.3.5. The agencies
will not implement the exclusion using the "abandonment" approach used by the 2020
NWPR because the 2020 NWPR's "abandonment" approach is not consistent with USDA's
approach or with the purposes of the Clean Water Act. See Final Rule Preamble Section
IV.C.7. The agencies agree with those commenters who asserted that the abandonment
approach creates a "gap" or "loophole" that allows dischargers to take advantage of an
exclusion that was intended to apply to crop production uses. See the agencies' response to
comments in Section 15.3.5.2.
To the extent commenters assert that a five-year period may be inappropriate for
determining abandonment because areas may be idled or lay fallow for longer periods for
agricultural purposes, under the final rule's change in use approach, land that is idled for
more than five years can retain its prior converted cropland status so long as it remains
available for use in crop production, regardless of the reason why the land had been idled
or has lain fallow.
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15.3.5.2 Change in use
Several commenters expressed opinions about the agencies' intent for the prior converted cropland
exclusion to be consistent with the Corps-USDA 2005 Joint Guidance for prior converted cropland and its
"change in use" principal.
Many commenters opposed use of the 2005 Joint Guidance and/or "change in use" principle for
determining when an area would lose its status as excluded prior converted cropland. Many commenters
opposed the "change in use" principle for determining when an area would lose its status as excluded
prior converted cropland. These commenters expressed their understanding that the "change in use"
principle would limit farmers' ability to bring an area back into crop production, would lower the value of
the land for purposes of sale, or would reduce the amount of acreage available for non-farming
development. Some of these commenters asserted that the change in use principle was adopted for USDA
wetlands certifications and not prior converted cropland certifications. They claimed that using this
principle would change nearly 30 years of consistent implementation, and therefore it should be
withdrawn.
A few commenters asserted that even if land changed from agricultural to residential use, it theoretically
could still be returned to commodity crop production and therefore should retain the exclusion.
Several commenters expressed support for using the "change in use" principle and requested that prior
converted cropland lose its status if sold for development or is no longer available for production of an
agricultural commodity. Some of these commenters suggested that without the "change in use" principle,
wetlands could be permanently lost to development.
Agencies' Response: For information regarding the final rule's implementation of the
change in use approach, see the Final Rule Preamble Section IV.C.7.a. and the agencies'
response to comments in Section 15.3.5.
To the extent commenters oppose reinstatement of the 2005 Joint Memorandum, the final
rule does not reinstate the 2005 Joint Memorandum, which was rescinded on January 28,
2020. See https://usace.contentdm.oclc.org/utils/getfile/collection/pl6021collll/id/4288. That
said, the final rule borrows certain concepts from the 2005 Joint Memorandum. For
example, among other things, the agencies do not interpret changes in use to include
discharges associated with agricultural uses identified in the Corps' and NRCS's 2005
Memorandum to the Field, such as planting of agricultural crops, production of food or
fiber, haying or grazing, idling consistent with USDA programs, or diversion from crop
production for purposes of preventing erosion or other degradation, as these uses keep the
land available for future production of agricultural commodities.
To the extent commenters assert that land theoretically could always be returned to
commodity crop production because structures could be removed, the agencies disagree.
The agencies interpret availability for commodity crop production to mean that it is
reasonably conceivable that the area in its current condition could be returned to crop
production. Areas that will be developed for residential, commercial, or industrial use;
energy infrastructure; mining; or other non-farming related activities will not meet this
standard of availability for commodity crop production. A "change in use" includes areas
that have undergone soil disturbance such that substantial effort, such as the removal of
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concrete or other permanent structures, would be required to enable the production of
agricultural commodities.
The agencies disagree with the commenters who assert or imply that the change in use
approach narrows or limits the scope of the exclusion as it relates to efforts by a farmer to
bring an idle area back into crop production. To the contrary, the agencies' approach to
prior converted cropland under the final rule also imposes less of a burden on farmers than
the approach under the 2020 NWPR. See the agencies' response to comments in Section
15.3.5. The final rule differs from the abandonment approach as implemented under both
the 1993 preamble and the 2020 NWPR because, under the change in use approach, land
that is idled for more than five years can retain its prior converted cropland status so long
as it remains available for use in crop production, regardless of the reason why the land had
been idled or lain fallow. Under the final rule's change in use approach, land that is idled or
lain fallow for more than five years, and indeed, for any other length of time, can retain its
prior converted cropland status so long as it remains available for use in crop production,
regardless of the reason why the land had been idled or has lain fallow.
The agencies agree with the commenters who assert that the abandonment approach
created a "gap" or "loophole" that allowed dischargers to take advantage of an exclusion
that was intended to apply to crop production uses to render prior converted cropland
unavailable for future farming. The final rule's change in use approach will close this
"loophole" because discharges associated with a non-agricultural use would require a Clean
Water Act section 404 authorization even if the discharge occurs within five years of the last
discharge associated with crop production. Given that the exclusion for prior converted
cropland originated in the Food Security Act, closure of this "loophole" both better aligns
implementation of the Clean Water Act and the Food Security Act and balances the need to
protect the nation's capability to produce food and fiber with the need to protect the
nation's wetlands. The Clean Water Act exclusion for prior converted cropland was not
intended to provide a "loophole" that would allow dischargers to make prior converted
cropland unavailable for future farming by taking advantage of an exclusion that was
intended to apply to crop production uses.
15.3.5.3 Miscellaneous comments regarding when and whether an area should lose its status
as prior converted cropland
Several commenters asserted that prior converted cropland should lose its excluded status if the land
reverts to wetlands that meet the definition of "waters of the United States."
Many commenters asserted that the agencies should clarify that an area is not considered a "water of the
United States," regardless of whether there has been abandonment or change in use, unless the area is a
wetland.
Several commenters expressed concern that agency staff are unfamiliar with modern farming and
conservation practices and that lack of familiarity has caused the agencies to misapply the exclusion for
prior converted cropland in the past. These commenters recommend that agency staff become familiar
with modern farming and conservation practices and consult regularly with NRCS staff so that approved
conservation and agricultural practices are not misinterpreted as violations of the Clean Water Act.
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One commenter noted that the 2020 NWPR made mining prior converted cropland easier and stated a
desire to maintain this.
One commenter suggested the potential for putting converted wetlands to non-agricultural use represents
billions of dollars for farmers and that this value could be lost if prior converted croplands are not
excluded.
A few commenters asserted that prior converted cropland should retain its status so long as the land is put
to any beneficial use, such as wildlife habitat.
A few commenters urged that the agencies ensure that, under the final rule, the exclusion for prior
converted cropland would continue to apply to cropland that is left idle or fallow for conservation or
agricultural purposes for any period of time, and particularly to cropland that is enrolled in conservation
programs administered by USDA or by state or local governments.
A few commenters urge the agencies to adopt the "once prior converted cropland, always prior converted
cropland" approach taken by USDA.
One commenter asserted that the pre-2015 regulatory regime took a "guilty until proven innocent"
approach that placed too much of a burden on farmers to establish applicability of the exclusion for prior
converted cropland. The same commenter also expressed concern that the agencies imposed too much of
a burden on farmers to establish that rice fields were not "waters of the United States" requiring rice fields
to lay fallow for years without compensation.
Agencies' Response: The agencies agree that areas that do not meet the definition of
"waters of the United States" would not be regulated regardless of their status as prior
converted cropland. The final rule does not change the agencies' longstanding
interpretation that Clean Water Act authorization is not needed for discharges to an area
that has lost its prior converted cropland status unless the area also satisfies the definition
of "waters of the United States." Any area that has not reverted to a wetland that meets this
rule's definitions will not be regulated as a "water of the United States." An approved
jurisdictional determination (AJD), or EPA equivalent jurisdictional decision, should
demonstrate that an area has reverted to a wetland under present conditions using the
applicable agency delineation procedures when determining if it meets the definition of
"waters of the United States."
The final rule addresses commenters' concerns that agency staff may not understand when
change in use has occurred due to lack of familiarity with farming practices. Because
implementation of the final rule's change in use approach does not require determining
whether an area has been idled or has lain fallow consistent with modern farming or
conservation practices, the final rule addresses much of the commenters' concerns. The
agencies agree that consultation with NRCS staff as necessary and appropriate is beneficial
and promotes the goal of achieving as much consistency and compatibility as possible in
implementation of the Clean Water Act and the Food Security Act.
The commenter is correct that discharges associated with mining of prior converted
cropland would represent a change in use and would require Clean Water Act
authorization. Given that the exclusion for prior converted cropland originated in the Food
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Security Act, the change in use approach both better aligns implementation of the Clean
Water Act and the Food Security Act and balances the need to protect the nation's
capability to produce food and fiber with the need to protect the nation's wetlands. It is not
the purpose of the Clean Water Act exclusion for prior converted cropland to release
discharges associated with mining or any other non-agricultural land use from regulation
under the Clean Water Act.
The agencies disagree with commenters who asserted that the agencies should maintain the
2020 NWPR's approach to implementing prior converted cropland because the ability to
sell prior converted cropland for non-agricultural development could provide billions of
dollars to farmers. The agencies have concluded that this potential financial benefit to
persons who would no longer be using the land for farming does not effectuate the original
purpose of the exclusion, which was to promote consistency among federal clean water
protection programs in order to help restore and maintain the nation's waters. Moreover,
the exclusion was originally intended to allow farmers to farm their land. The financial
benefit the commenters cite comes from selling farmland to be developed. Further
facilitating these sales does nothing to support farmers who seek to continue to farm and
could even undermine their incentives to do so. The Clean Water Act exclusion for prior
converted cropland was not intended to provide a financial windfall for developing prior
converted cropland and making it unavailable for future farming.
To the extent a few commenters asserted that prior converted cropland should remain
excluded so long as the land is put to any beneficial use, such as wildlife habitat, see the
agencies' response to comments in Section 15.3.5.
To the extent commenters assert that the exclusion should apply to cropland that is left idle
or fallow for conservation or agricultural purposes for any period of time, the agencies
agree that prior converted cropland that is left idle would remain excluded under the final
rule so long as it remains available for the production of agricultural commodities. See the
agencies' response to comments in Section 15.3.5.
With respect to comments urging the agencies to adopt the "once prior converted cropland,
always prior converted cropland" approach taken by USDA, the final rule is consistent with
the USDA's approach that, to maintain a previously determined prior converted cropland
exclusion, the landowner/operator only needs to demonstrate that land use conditions have
not changed such that the land area remains available for the production of an agricultural
commodity. See 7 CFR 12.30(c)(6) ("As long as the affected person is in compliance with the
wetland conservation provision of this part, and as long as the area is devoted to the use and
management of the land for production of food, fiber, or horticultural crops, a certification
made under this section will remain valid and in effect until such time as the person affected
by the certification requests review of the certification by NRCS").
15.4 Water Features Associated with Agricultural Activity That Do Not Qualify as Prior
Converted Cropland
Many commenters generally opposed regulation of agriculture-related water features. Some of these
commenters expressed concern that the final rule will lead to regulation of activities on farmlands and
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pastures, including maintenance activities. These commenters made general statements of support for
agricultural exclusions, and stated that the agencies should expressly exclude the following:
• Playa lakes;
• Ditches (including farm ditches, road ditches, and sediment basins);
• Canals;
• Ponds (including artificial ponds, farm ponds, and stock ponds);
• Prairie potholes;
• Irrigation canals;
• Watering impoundments;
• Water quality wetlands;
• Grass waterways; and
• Terraces, biofilters, prairie strips, saturated buffers.
Many commenters stated that the proposed rule will burden ranchers and landowners, especially with
respect to the cost of permitting requirements. One commenter stated that farmers and ranchers should not
have the burden of proving the historical status of agriculture related water features.
One commenter stated that the proposed rule would inhibit the use of California rice lands seasonally to
benefit the environment because the rule suggests that such lands may be "waters of the United States,"
which would then trigger application of provisions under sections 402 and 404 of the Clean Water Act.
Another commenter asserted that a particular Corps District implemented the prior converted cropland
exclusion as to rice lands by requiring proof that they were constructed in dry land or requiring that they
be idled.
One commenter stated that the proposed language expanding jurisdiction and limiting the exclusion for
artificial lakes or ponds to those created by excavating or diking "dry land" negates the farm pond
exemption.
Agencies' Response: The agencies disagree with commenters asserting that all features
related to agriculture should be excluded from jurisdiction under the Act. As described in
the final rule preamble, Congress clearly intended that some agriculture-related waters are
jurisdictional under the Act and the agencies find that it would not be appropriate to
exclude all agriculture-related waters, like certain ditches, from the definition of "waters of
the United States." See Final Rule Preamble Section IV.C.7.c.i.2. However, as described in
more detail in the final rule preamble, the agencies' final rule excludes several types of
features that are commonly associated with agricultural activities (e.g., prior converted
cropland, certain ditches, certain artificial lakes and ponds). Further, even where a feature
is not excluded, it is only jurisdictional if it satisfies the terms of the categories of waters
that are considered jurisdictional under the final rule.
To the extent commenters express concern that the final rule will negate an exemption for
discharges associated with certain farming activities, the agencies note that the final rule is
limited to defining what features are "waters of the United States" for purposes of the Clean
Water Act (including what features are excluded from that definition). The final rule does
not affect statutory exemptions for discharges into jurisdictional features associated with
certain farming-related activities. For example, the fact that the prior converted cropland
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exclusion would remain available to a farmer who seeks to bring idled land back into crop
production after more than five years of laying fallow is distinct from the question as to
whether activities associated with any such resumption of crop production after a period of
idling would qualify as 'normal' (on-going) farming activities under the exemption set forth
in CWA section 404(f)(1)(A). See also the agencies' response to comments in Section 15.13.
To the extent commenters express concerns regarding whether rice fields may fall within
the final rule's exclusions for prior converted cropland or artificial lakes or ponds
constructed in dry land, see Final Rule Preamble Section IV.C.7 and the agencies' response
to comments in Section 15.3 and Section 15.6.
The agencies disagree with the commenter who stated that the rule negates the farm pond
exemption. The agencies are including in the final rule regulatory text longstanding
exclusions from the definition of "waters of the United States" for features that were
generally considered non-jurisdictional under the pre-2015 regulatory regime. These are
consistent with the agencies' longstanding approach to these features. Further, as noted
above, the final rule does not affect statutory exemptions for discharges into jurisdictional
features associated with certain farming-related activities.
15.5 Artificially Irrigated Areas That Would Revert to Upland if the Irrigation Ceased
("Artificially Irrigated Areas")
Many commenters made general statements of support for expressly excluding artificially irrigated areas
from the definition of "waters of the United States."
One commenter asserted that flooding and discharge from fields used for wetland crop species is
regulated by states and does not need further federal regulation. The commenter further suggested that
federal regulation should focus on the control and use of pesticides that may be used in this production.
One commenter contended that without this exclusion, rice fields not otherwise excluded as prior
converted cropland and which are wet by nature could be designated as jurisdictional which would make
rice farming virtually impossible.
Agencies' Response: The agencies agree with commenters who supported an express
exclusion in the regulatory text for artificially irrigated areas that would revert to dry land
if irrigation ceased. Consistent with the features listed in the preamble to the 1986
regulations, the agencies are codifying an exclusion for artificially irrigated area that would
revert to dry land if the irrigation ceased. See also Final Rule Preamble Section IV.C.7.
To the extent commenters assert that certain discharges or flooding resulting from artificial
irrigation should be excluded, the comments are outside the scope of this rulemaking. The
final rule does not regulate discharges. Regulation, if any, of discharges to create an
artificially irrigated area that would revert to dry land should irrigation cease and
regulation of discharges from artificially irrigated areas are outside the scope of this
rulemaking. Regulation of the control and use of pesticides is also outside the scope of this
rulemaking.
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To the extent commenters refer to rice fields, a feature may be excluded when it fits the
criteria of one of the exclusions included in the final rule and would not otherwise be
jurisdictional under paragraph (a)(1) of this rule. In addition to the exclusions for
artificially irrigated areas and prior converted cropland, the final rule also expressly
excludes artificial lakes or ponds created by excavating or diking dry land to collect and
retain water and which are used exclusively for such purposes as stock watering, irrigation,
settling basins, or rice growing. In addition, the agencies will continue to evaluate Clean
Water Act jurisdiction on a case-specific basis. The agencies will not assert jurisdiction over
features that do not satisfy the definition of "waters of the United States" articulated in
paragraph (a) of the final rule.
The final rule does not affect longstanding activity-based exemptions from the permitting
requirements of the Clean Water Act, such as those found in section 404(f), including the
exemption for discharges of dredge or fill material from "normal farming." See also
agencies' response to comments in Sections 15.3,15.4,15.6, and 15.13.
15.6 Artificial Lakes or Ponds Created by Excavating or Diking Dry Land
15.6.1 General support for codifying an exclusion for artificial lakes or ponds excavated in
dry land
Many commenters made general statements of support for expressly excluding artificial lakes or ponds
excavated in dry land. Some commenters also noted that such features were excluded in past rules
including the 2015 Clean Water Rule and the 2020 NWPR. A few commenters made general assertions
that the exclusion for artificial lakes or ponds excavated in dry land from past versions of the rules
defining "waters of the United States" should be maintained to provide regulatory certainty about
jurisdiction, reduce regulatory delay and expenses, and ensure unimpeded routine maintenance. These
commenters assert that omission of an express exclusion as in the proposed rule would lead to subjective
decisions rather than a clear line as to which waters are jurisdictional and which are not.
One commenter stated that artificial lakes or ponds excavated in dry land are integral to livestock
production and wildlife habitat, providing valuable environmental benefits to water quality by dispersing
ungulates across the landscape and avoiding the potential impacts of animal concentration to "waters of
the United States" features.
One commenter suggested that waters converted from "waters of the United States" under section 404
should be considered the same as "dry land" for Clean Water Act purposes, and therefore be excluded.
Another commenter suggested that it would be helpful if the agencies provided a definition of "artificial
lakes or ponds."
One commenter recommended that the agencies not consider "isolated, open waters at reclaimed mine
sites" to be "waters of the United States."
Agencies' Response: The agencies agree with commenters who supported an express
exclusion in the regulatory text for certain artificial lakes or ponds excavated in dry land. In
the final rule, the agencies are codifying exclusions for certain features that the agencies did
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not generally consider jurisdictional under the pre-2015 regulatory regime. Consistent with
the features listed in the preamble to the 1986 regulations, the agencies are codifying an
exclusion for artificial lakes or ponds created by excavating and/or diking dry land to
collect and retain water and which are used exclusively for such purposes as stock watering,
irrigation, settling basins, or rice growing. The agencies conclude the exclusion in the final
rule text provides sufficient clarity as to the definition of "artificial lakes or ponds."
To the extent commenters suggest that waters lawfully converted to dry land pursuant to a
section 404 permit should be treated as "dry land" for purposes of applying the exclusion,
while the jurisdictional status of a water is assessed on a case-specifc basis by considering
the specific characteristics of the site at issue, generally a feature constructed in an area that
has been lawfully filled under a Section 404 permit would not be "waters of the United
States" under the rule (although, for example, if a landowner creates a ditch in authorized
fill and connects that ditch to the tributary system of a paragraph (a)(1) water and the ditch
carries a relatively permanent flow of water, then it does not meet the ditch exclusion). It is
also important to note that an unauthorized discharge does not render a "water of the
United States" no longer jurisdictional, nor does it sever jurisdiction upstream. Indeed,
"[unauthorized discharges into waters of the United States do not eliminate Clean Water
Act jurisdiction, even where such unauthorized discharges have the effect of destroying
waters of the United States." 33 C.F.R. 323.2 (1987).
The agencies disagree with the commenter who recommended that the agencies
categorically exclude "isolated, open waters at reclaimed mine sites" from the definition of
"waters of the United States." The agencies' decision not to codify an exclusion for these
features does not mean that the agencies intend to assert Clean Water Act jurisdiction over
them under the final rule. The agencies will continue to evaluate Clean Water Act
jurisdiction on a case-specific basis and will not assert jurisdiction over features that do not
satisfy the definition of "waters of the United States" articulated in the final rule.
15.6.2 General opposition for codifying an exclusion for artificial lakes or ponds excavated
in dry land
A few commenters suggested that artificial lakes and ponds should not be excluded. A commenter stated
that nearly all of Missouri's abundant lakes and ponds are not formed naturally, but rather by damming
streams and creeks. These artificial waterbodies are nonetheless used for fishing, swimming, and
sometimes drinking, therefore it is important that they are well-protected.
Agencies' Response: The agencies disagree with commenters who opposed codifying an
exclusion for certain artificial lakes and ponds. Like other features that the agencies
generally have not considered jurisdictional, codifying an exclusion for certain artificial
lakes or ponds excavated in dry land reflects the agencies' determinations of the lines of
jurisdiction based on case law, policy determinations, and the agencies' experience and
expertise. See also Final Rule Preamble Section IV.C.7. Codification of this exclusion
provides important clarity on which features are and are not jurisdictional and will simplify
the process of determining jurisdiction.
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To the extent a commenter expresses concern regarding application of the exclusion to lakes
or ponds created by impounding jurisdictional waters, the agencies note that the feature
must satisfy the terms of the exclusion in order to be excluded from "waters of the United
States." Here, the exclusion is limited to artificial lakes or ponds created by excavating or
diking dry land. The exclusion further is limited to artificial lakes or ponds which are used
exclusively for such purposes as stock watering, irrigation, settling basins. For information
regarding the final rule's application to impounded waters, see Final Rule Preamble Section
IV.C.3 and the agencies' response to comments in Section 7.
15.6.3 Opposition to limiting scope of an exclusion for artificial lakes or ponds to those
constructed in dry land
A few commenters contended that this exclusion should not be limited to artificial lakes and ponds built
in dry land, since such features generally have to be located where there is some water source. The
commenters contended that this condition makes the exclusion ineffective.
One commenter asserted that the 2020 NWPR excluded artificial ponds so long as they were not
impoundments of jurisdictional waters. The commenter then stated that this qualifier was not necessary
because the exclusion only applied to a lake or pond created in uplands (as that term was used in the 2020
NWPR) and a natural lake or impoundment of "waters of the United States" would not meet the definition
of "upland."
A few commenters asserted that it is too difficult to establish that an artificial lake or pond originally was
excavated in dry land and for that reason the agencies should bear the burden of proving that an artificial
lake or pond over which they seek to assert jurisdiction was not originally constructed by excavating or
diking dry land.
A few commenters suggested that artificial lakes or ponds excavated in areas that previously had been
lawfully converted from "waters of the United States" to dry land either pursuant to a section 404 permit
or through other legal means should qualify for the exclusion.
Agencies' Response: Defining the scope of the exclusion for artificial lakes or ponds as
limited to those created by excavating or diking in dry land is consistent with the agencies'
intent to interpret "waters of the United States" to mean the waters defined by the familiar
1986 regulations, with amendments to reflect the agencies' determination of the statutory
limits on the scope of the "waters of the United States" informed by case law, policy
determinations, and the agencies' experience and expertise. The term "dry land" appears in
both the 1986 and 1988 preambles. 51 FR 41217 (Nov. 13,1986); 53 FR 20765 (June 6,
1988).
Impoundments of jurisdictional waters are not covered under this exclusion, as the
exclusion only applies to features that were excavated in dry land or were diked in dry land.
For information on how the final rule applies to impounded waters, see Final Rule
Preamble Section IV.C.3 and the agencies' response to comments in Sections 7 and 15.6.1.
See also Final Rule Preamble Section IV.C.7.
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In response to comments regarding the burden of proving that an artificial lake or pond
was created by excavating or diking dry land, the agencies note that exclusions in the final
rule for features constructed in dry land are consistent with longstanding practice and are
based on the 1980s preamble language for features that were generally considered non-
jurisdictional under pre-2015 practice. The approach in this rule does not represent a
change in the burden of proof for determining if a particular feature has been constructed
in dry land. While the agencies evaluate whether any exclusions apply when making
approved jurisdictional determinations for purposes of efficiency, the person asserting that
the water at issue is excluded under the Clean Water Act or that the person's activities at
issue in the case are exempt under the Act, may have information that is material to proving
that the exclusion or exemption applies. There are circumstances where, absent this
information from the requestor, the agency will be unable to determine that an exclusion
applies. While the 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 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)
("Akers must establish that his activities are exempt"). Where the agencies, based on the
information that they have in the record, are unable to conclude that an exclusion applies,
the agencies will assess the water to see if it meets the jurisdictional criteria of the rule
under paragraphs (a)(1) through (5).
To the extent commenters suggest that waters lawfully converted to dry land pursuant to a
section 404 permit should be treated as "dry land" for purposes of applying the exclusion,
see the agencies' response to comments in Section 15.6.2.
15.6.4 Opposition to limiting scope of an exclusion for artificial lakes or ponds excavated in
dry land based upon the use of such features
Several commenters suggested that the exclusion for artificial lakes or ponds excavated in dry land should
not be limited to features used "exclusively" for the activities specified in the final rule text. These
commenters suggested that the agencies clarify that the list in the final rule text is illustrative and not
exclusive.
Several commenters stated that the term "exclusively" should be removed to reflect the reality that
artificial lakes or ponds excavated in dry land are often used for multiple purposes and that multiple uses
should not remove the exclusion.
Agencies' Response: The final rule text returns to the longstanding and familiar framework
set forth in the 1986 preamble, except that by codifying this exclusion, the agencies have
removed the possibility that these waters could be found jurisdictional on a case-by-case
basis. The agencies anticipate that, as a general matter, artificial lakes or ponds excavated
in dry land that were not considered jurisdictional under the framework of the 1986
preamble would not be considered jurisdictional under the final rule.
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The phrase "such as" demonstrates that the uses listed in the final rule text are illustrative,
not exhaustive. Moreover, the agencies recognize that artificial lakes and ponds are often
used for more than one purpose and can have other beneficial purposes, such as animal
habitat, water retention, or recreation. For example, artificial lakes and ponds that are
created by excavating dry land to collect and retain water for stock watering are often
extensively used by waterfowl and other wildlife. The agencies' historic practice, which the
agencies intend to continue under the final rule, is to consider these features as excluded
even when there is another incidental beneficial use of the feature. See also Final Rule
Preamble Section IV.C.7.
15.6.5 Comments proposing specific types of artificial lakes or ponds that should be
excluded
Several commenters described specific types of artificial lakes or ponds that the commenters request be
excluded.
One commenter expressly requested that all ponds used in the forest industry be excluded, including
ponds used for log storage, log conditioning prior to production of plywood veneers, and recirculating
water on log decks.
One commenter requested that industrial features necessary for the safe and efficient operation of a
facility, such as water storage ponds, impoundments, conveyances and other structures used for fire
water, utility water, cooling water, process water, and raw water be expressly excluded. The commenter
suggested that "cooling ponds" in particular should be excluded, as they were in the 2015 Clean Water
Rule.
One commenter requested that temporary features, such as settling basins for storm water collection and
the water they contain that are created by "mining" activity under an approved Plan of Operation, should
be excluded.
One commenter requested that field tile and engineered farm drainage systems (field waterways, filter
strips, etc.) should be excluded, both for agricultural and industrial purposes.
One commenter requested that water storage reservoirs and farm irrigation and livestock watering should
be excluded, both for agricultural and industrial purposes even where they might have surface water
connection to a downstream jurisdictional water in a typical year. The commenter went on to suggest
that wetlands should be allowed to be contained inside farm reservoirs built to store surface water
without jurisdiction.
One commenter requested that fire suppression ponds should be excluded.
One commenter asserted that the exclusion for artificial lakes or ponds should extend to stormwater
detention/retention systems including water storage reservoirs and tailwater recovery systems, and farm,
irrigation, and stock watering ponds constructed or excavated in upland or in non-jurisdictional waters.
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Agencies' Response: The exclusion for artificial lakes or ponds excavated in dry land
applies only to those lakes and ponds that satisfy the terms of the exclusion. See Final Rule
Preamble Section IV.C.7. Determinations regarding the jurisdictional status of any specific
water are outside the scope of this rulemaking. Even for features that are not explicitly
excluded, the agencies will continue to assess jurisdiction under the final rule on a case-
specific basis. As part of this case-specific assessment, the agencies will continue to consider
whether the feature in question is excavated or created in dry land, the flow of water in the
feature, and other factors. In addition, some of the features that commenters asked the
agencies to exclude may be covered by one or more of the exclusions in the final rule if they
satisfy the criteria for those exclusions. When a feature does not meet the definition
articulated in the final rule, that feature is not a "water of the United States" and there is no
need for an express exclusion.
15.7 Water-filled Depressions Created in Dry Land Incidental to Construction Activity
and Pits Excavated in Dry Land for the Purpose of Obtaining Fill, Sand, or Gravel
15.7.1 General support for codifying an exclusion for waterfilled depressions and pits
excavated in dry land for the purpose of obtaining fill, sand, or gravel
Many commenters generally supported expressly excluding waterfilled depressions and pits excavated in
dry land in the regulatory text. Many of those commenters also asserted that such features were expressly
excluded in past rules including the 2015 Clean Water Rule and the 2020 NWPR.
A few commenters generally asserted that the exclusion for waterfilled depressions and pits excavated in
dry land from the 2015 Clean Water Rule or the 2020 NWPR should be retained to provide regulatory
certainty about jurisdiction and reduce regulatory delay and expenses. These commenters asserted that the
absence of an express exclusion in the proposed rule would lead to subjective decisions rather than a clear
line as to which waters are jurisdictional and which are not.
One commenter asserted that such waterfilled depressions are inevitable during construction, are rarely
associated with navigable waters, and rarely provide measurable environmental benefits.
Agencies' Response: The agencies agree that codifying exclusions for certain features that
the agencies did not generally consider jurisdictional under the pre-2015 regulatory regime
is consistent with the agencies' intent to interpret "waters of the United States" to mean the
waters defined by the familiar 1986 regulations, with amendments to reflect the agencies'
determination of the statutory limits on the scope of the "waters of the United States"
informed by case law, policy determinations, and the agencies' experience and expertise.
See also Final Rule Preamble Section IV.C.7. Consistent with the features listed in the
preamble to the 1986 regulations, the agencies are codifying an exclusion for waterfilled
depressions created in dry land incidental to construction activity and pits excavated in dry
land for the purpose of obtaining fill, sand, or gravel unless and until the construction or
excavation operation is abandoned and the resulting body of water meets the definition of
"waters of the United States." See also Final Rule Preamble Section IV.C.7. See also the
agencies' response to comments in Section 15.7.3 and Section 15.7.4.
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15.7.2 Comments proposing clarifying language for an exclusion for water-filled
depressions and pits excavated in dry land for the purpose of obtaining fill, sand, or
gravel
One commenter suggested several clarifications for the agencies to make for any exclusion of water-filled
depressions and pits excavated in dry land. The commenter asserted that the exclusion should:
• Broadly encompass all depressions created as part of construction, mining, and industrial activities;
• Clearly include quarries, including those related to limestone operations;
• Clarify that the excavated feature itself is excluded (for example, the commenter asserted that
without clarification, this exemption could be understood to exempt a water-filled depression
created to support quarry operations, but not the quarry itself); and
• Confirm the new rule will not change the non-jurisdictional status of existing water-filled
depressions that were permitted or lawfully constructed under the laws at the time of construction,
regardless of whether the feature was constructed in upland.
A commenter suggested specific wording for the exclusion to apply to "water-filled depressions related to
mining, industrial, or construction activity, and quarries and pits excavated for the purpose of obtaining
limestone, fill, sand, or gravel." One commenter asserted that quarries located on or near cement
manufacturing facilities have no connections to navigable waters and should not be defined as
jurisdictional waters.
One commenter specifically requested that utility corridors where compaction from construction
equipment creates a localized hardpan that holds water and aquatic vegetation be included in any water-
filled depression exclusion.
Agencies' Response: The agencies disagree with commenters' suggestions to expand the
exclusion for waterfilled depressions beyond the text of the preamble to the 1986
regulations. Codification of the exclusion as set forth in the preamble to the 1986
regulations, rather than the exclusion as set forth in the text of the 2015 Clean Water Rule
or the 2020 NWPR, is consistent with the agencies' intent to interpret "waters of the United
States" to mean the waters defined by the familiar 1986 regulations, with amendments to
reflect the agencies' determination of the statutory limits on the scope of the "waters of the
United States" informed by case law, policy determinations, and the agencies' experience
and expertise.
The exclusion for waterfilled depressions applies to features that meet the terms of the
exclusion in the final rule text. For example, where a feature is a "pit [] excavated in dry
land for the purpose of obtaining fill, sand, or gravel" and has not been abandoned, the
exclusion applies regardless of whether that pit also could be labeled a "quarry."
With respect to specific features suggested by commenters, determinations regarding the
jurisdictional status of any specific water are outside the scope of this rulemaking. Even for
features that are not explicitly excluded, the agencies will continue to assess jurisdiction
under the final rule on a case-specific basis. As part of this case-specific assessment, the
agencies will continue to consider whether the feature in question is excavated or created in
dry land, the flow of water in the feature, and other factors. In addition, some of the
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features that commenters asked the agencies to exclude may be covered by one or more of
the exclusions in the final rule if they satisfy the criteria for those exclusions. When a
feature does not meet the definition articulated in the final rule, that feature is not a "water
of the United States" and there is no need for an express exclusion.
To the extent commenters suggest that the exclusion should extend expressly to waterfilled
depressions incidental to "mining activity," see the agencies' response to comments in
Section 15.7.3. To the extent commenters suggest the exclusion should more broadly extend
to waterfilled depressions incidental to industrial, agricultural, or other non-construction
activities, see the agencies' response to comments in Section 15.7.4.
To the extent commenters assert that issuance of the final rule should not change the
jurisdictional status of features that were lawfully constructed in reliance on an express
exclusion under the 2020 NWPR or the 2015 Clean Water Rule, the agencies note that the
final rule does not invalidate AJDs issued under prior definitions of "waters of the United
States." As such, any existing AJD—except AJDs issued under the vacated 2020 NWPR,
which are discussed below—will remain available and eligible to support regulatory actions,
such as permitting, until its expiration date, unless one of the criteria for revision is met
under RGL 05-024 or the recipient of such an AJD asks the Corps to issue a new AJD.
Because agency actions are governed by the rule in effect at the time an AJD is issued and
not when the request was made, all approved jurisdictional determinations issued on or
after the effective date of this rule will be made consistent with this rule. Because two
district courts vacated the 2020 NWPR, the agencies have received many questions
regarding the validity of AJDs issued under the 2020 NWPR (hereinafter, "NWPR AJDs").
In response to such inquiries, the agencies have explained that NWPR AJDs, unlike AJDs
issued under other rules that were changed pursuant to notice-and-comment rulemaking
rather than vacatur, may not reliably state the presence, absence, or limits of "waters of the
United States" on a parcel as a result of vacatur and cannot be relied upon by the Corps in
making new permit decisions following the Arizona district court's August 30, 2021 order
vacating the 2020 NWPR. The agencies also note that they will continue to evaluate
potential enforcement actions using the regulations in place when the alleged violation
occurred. For example, if a person excavated a ditch while the pre-2015 regulatory regime
was in effect and the person complied with the terms of the pre-2015 regulatory regime,
today's final rule does not create new liability. See United States v. Lucero, 989 F.3d 1088
(9th Cir. 2021) (explaining that the 2020 NWPR did not apply retroactively to the
defendant's violations, which occurred before the 2020 NWPR became effective).
15.7.3 Comments on exclusion for waterfilled depressions and pits excavated in dry land
for the purpose of obtaining fill sand, or gravel and mining
A few commenters asserted that waterbodies created at mining sites as part of normal mining activities
should be expressly excluded.
4 U.S. Army Corps of Engineers. 2005. Expiration of Geographic Jurisdictional Determinations of Waters of the
United States available at https://www.nap.usace.army.mil/Portals/39/docs/regulatory/rgls/rgl05-02.pdf
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One commenter requested that any water-filled depression exclusion should include language indicating
that sites undergoing active reclamation under state law have not been abandoned. The commenter
provided examples of what they believed to be inconsistent Corps jurisdictional determinations for such
waters, when portions of an inactive mining site were inundated between operators.
That commenter suggested that confusion can arise in cases when an active sand and gravel operation
expands and incorporates an existing wetland, or when a small tributary is "mined through" to access
additional upland ground on the other side of the tributary (assuming no discharge in violation of Clean
Water Act section 404). The commenter recommends that the final rule should clarify that as long as the
pit in question is clearly being mined, 33 CFR 328.5 should not apply because the change is by definition
transient. The commenter further claims that asserting jurisdiction over an entire pit adversely affects
ongoing operations not otherwise subject to Clean Water Act section 404 by precluding the discharge of
any process waste sand back into the pit, which they claim is a common industry practice.
The same commenter suggested there are environmental benefits provided by sand and gravel pits,
including habitat creation for many species.
Agencies' Response: The agencies disagree with commenters to the extent the commenters
suggest that the final rule should expressly exclude waterfilled depressions created for
mining and resource extraction purposes. In this final rule, the agencies are codifying an
exclusion for such features that matches the text of the 1986 preamble language and are not
expanding this exclusion to also exclude depressions incidental to mining activities.
Construction and mining are distinct types of activities and can create depressions with
different characteristics. For example, depressions incidental to mining activities may be
much larger than depressions incidental to construction activities and may exist on the
landscape for a longer time. Limiting the exclusions to depressions incidental to
construction activity is consistent with the agencies' longstanding practice under the pre-
2015 regulatory regime.
Determinations regarding the jurisdictional status of any specific water are outside the
scope of this rulemaking. The agencies will assess jurisdiction under the final rule on a case-
specific basis.
Even for features that are not explicitly excluded, the agencies will continue to assess
jurisdiction under the final rule on a case-specific basis. As part of this case-specific
assessment, the agencies will continue to consider whether the feature in question is
excavated or created in dry land, the flow of water in the feature, and other factors. In
addition, some of the features that commenters asked the agencies to exclude may be
covered by one or more of the exclusions in the final rule if they satisfy the criteria for those
exclusions. The exclusion does encompass pits excavated in dry land for the purpose of
obtaining fill, sand, or gravel that have not been abandoned. Moreover, consistent with
longstanding agency practice, waste treatment systems constructed at mining sites are
expressly excluded. See the agencies' response to comments in Section 15.2. When a feature
does not meet the definition articulated in the final rule, that feature is not a "water of the
United States" and there is no need for an express exclusion.
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The agencies acknowledge the commenter's statement that waterfilled features at sand and
gravel operations may provide habitat and have other beneficial uses. The agencies' historic
practice, which the agencies intend to continue under this rule, is to consider these features
as excluded even when there is another incidental beneficial use of the feature.
15.7.4 Comments suggesting expanding the exclusion for water-filled depressions
A commenter urged the agencies to expand the exclusion for water-filled depressions to include water-
filled depressions incidental to agricultural activities, such as low spots where irrigation water collects.
Several commenters asserted that the exclusion for water-filled depressions should extend to quarries
associated with aggregate, sand, or limestone operations.
One commenter asserted that quarries located on or near cement manufacturing facilities have no
connections to navigable waters and should not be defined as jurisdictional waters.
Agencies' Response: The agencies disagree with commenters to the extent the commenters
urge the agencies to expand the exclusion beyond the text in the 1986 preamble. In this final
rule, the agencies are codifying an exclusion for such features that matches the text of the
1986 preamble language and are not expanding this exclusion to also exclude depressions
incidental to mining activities. See Preamble Final Rule Preamble Section IV.C.7.
Determinations regarding the jurisdictional status of any specific water are outside the
scope of this rulemaking. The agencies will assess jurisdiction under the final rule on a case-
specific basis.
Even for features that are not explicitly excluded, the agencies will continue to assess
jurisdiction under the final rule on a case-specific basis. As part of this case-specific
assessment, the agencies will continue to consider whether the feature in question is
excavated or created in dry land, the flow of water in the feature, and other factors. In
addition, some of the features that commenters asked the agencies to exclude may be
covered by one or more of the exclusions in the final rule if they satisfy the criteria for those
exclusions. The exclusion does encompass pits excavated in dry land for the purpose of
obtaining fill, sand, or gravel that have not been abandoned. Various features associated
with agriculture may fit within one or more other exclusions. See, for example, the agencies'
response to comments in Section 15.4. When a feature does not meet the definition
articulated in the final rule, that feature is not a "water of the United States" and there is no
need for an express exclusion.
The final rule does not affect statutory or regulatory activity-based exemptions for certain
discharges to "waters of the United States" associated with specified activities. See the
agencies' response to comments in Sections 15.4 and 15.13.
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15.8 Groundwater
15.8.1 General support for an express exclusion for groundwater in the regulatory text
Many commenters requested that the agencies expressly exclude groundwater in the regulatory text, as
opposed to stating that groundwater is not jurisdictional in the preamble. Many commenters also noted
that groundwater was excluded in past rules including the 2015 Clean Water Rule and the 2020 NWPR.
Several commenters requested that the agencies clarify whether certain types of groundwater are
excluded, such as groundwater drained through subsurface drainage systems and diffuse or shallow
subsurface flow.
A few commenters suggested that not excluding groundwater could lead to infringements upon
groundwater ownership rights, which should be an intrastate resource left to the states to manage, either
alone or regionally.
A few commenters suggested that making groundwater a "water of the United States" is not necessary
because it is already protected by the Safe Drinking Water Act and Resource Conservation and Recovery
Act, as well as state and local laws.
One commenter stated that, because groundwater quality and supply issues vary dramatically across the
United States, state and local authorities are best positioned to regulate and manage their groundwater
supply.
A few commenters suggested that groundwater should be expressly excluded to provide regulatory
certainty about jurisdiction and/or reduce regulatory delay and expenses. One of these commenters
specifically suggested that as the nation faces increased climate challenges, including drought,
communities need to pursue groundwater reuse strategies without the fear of duplicative and costly
regulations.
One commenter requested that any groundwater exclusion should also exclude groundwater recharge
facilities, including groundwater recharge basins, spreading grounds, infiltration basins and other reuse
features and facilities.
One commenter suggested that expressly excluding groundwater from the final rule would be consistent
with relevant Supreme Court decisions, including the recent County of Maui v. Hawaii Wildlife Fund.
Agencies' Response: While the agencies agree with those commenters who assert that
groundwater is not "waters of the United States," the agencies disagree with those
commenters who seek an express exclusion for groundwater in the final rule text. The
agencies are not adding an exclusion for groundwater to the regulatory text because
groundwater is not surface water and therefore does not fall within the possible scope of
"navigable waters"; there is thus no need for a regulatory exclusion. The agencies have
never taken the position that groundwater falls within the scope of "navigable waters"
under the Clean Water Act. See, e.g., 80 FR 37099-37100 (explaining that the agencies have
never interpreted "waters of the United States" to include groundwater); 85 FR 22278,
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April 21, 2020 (explaining that the agencies have never interpreted "waters of the United
States" to include groundwater). However, when groundwater emerges on the surface, for
example when it becomes baseflow in streams or joins spring fed ponds, it is no longer
considered to be groundwater under this rule. See also the Final Rule Preamble Section
IV.C.7.
Groundwater that is not jurisdictional includes both shallow and deep groundwater, even
where such shallow subsurface water serves as a hydrologic connection that is assessed in
determining if another water is jurisdictional. Groundwater drained through subsurface
drainage systems also is not jurisdictional.
While shallow subsurface waters are not "waters of the United States," shallow subsurface
flow can be relevant to adjacency of a wetland or to significant nexus and may serve under
the final rule as a hydrologic connection in determining whether another water is
jurisdictional. See Final Rule Preamble Sections IV.C.5 and Section IV.C.6 and the
agencies' response to comments in Section 10, Section 11, and Section 12.
To the extent a commenter expressed concern that the final rule could interfere with
ownership over groundwater, the final rule does not impact water ownership or water
rights.
For discussion of water recycling features, see the agencies' response to comments in
Section 15.12.
The agencies agree that the Supreme Court in County of Maui v. Hawaii Wildlife Fund held
that the Congress did not include groundwater within the coverage of the Clean Water Act.
140 S. Ct. at 1472. See also Final Rule Preamble Section IV.C.7. See discussion of County of
Maui, Hawaii v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020), in Final Rule Preamble
Section IV.A.2.a.
The agencies agree with those commenters who note that groundwater is regulated in a
variety of contexts outside the Clean Water Act. Many states include groundwater in their
definitions of "waters of the state" and therefore may subject groundwater to state
regulation. Indeed, the Clean Water Act incentivizes state protection of groundwater. For
example, grants to states under Clean Water Act section 319 may support management
programs that include groundwater quality protection activities as part of a comprehensive
nonpoint source pollution control program. 33 U.S.C. 1329(h)(5)(D). In addition,
groundwater quality is regulated and protected through several other legal mechanisms,
including the Safe Drinking Water Act, the Resource Conservation and Recovery Act, and
various state, tribal, and local laws.
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15.8.2 General opposition to excluding groundwater from the definition of "waters of the
United States"
Several commenters expressed support for protecting groundwater and not excluding it from "waters of
the United States." Many of these commenters asserted that groundwater and surface water are connected
and that the protection of surface water requires protection of groundwater.
Several commenters also opposed an express exclusion for groundwater because surface expression of
groundwater often contributes baseflow to streams, wetlands, and other jurisdictional features. These
commenters expressed concern that an exclusion for groundwater would be interpreted as extending to
surface expressions of groundwater that contribute flow to or form jurisdictional surface waters. One
commenter further specified that zones where groundwater emerges on the ground surface or discharges
through stream channel or lake beds to provide baseflow to intermittent or perennial streams are the
interfacing planes or surfaces that define the jurisdictional boundaries or limits of federal surface water
control and state groundwater control, and that states and the agencies need to collaborate to identify
these boundaries.
A few commenters asserted that the groundwater exclusion is not supported from a scientific perspective,
because of connections between subsurface and surface water, including the flow of pollutants from one
to another. These commenters suggest the agencies should go further to protect groundwater, with some
suggesting that rather than a categorical exclusion, the agencies should determine significant nexus of
groundwater on a case-specific basis. Some of these commenters cited specific studies to back up their
assertions.
One commenter asserted that there is not enough Supreme Court precedent to suggest that groundwater
can never establish a significant nexus to a jurisdictional water. The commenter pointed to County of
Maui v. Hawaii Wildlife Fund and several lower court cases in which jurisdiction was established based
on hydrological connections that allow pollutants to migrate from groundwater to jurisdictional waters.
One commenter mentioned the recent Supreme Court decision in Mississippi v. Tennessee et al. which
held that interstate aquifers are comparable to interstate rivers and that the fact that an aquifer is "located
underground, as opposed to resting above ground," was of "no analytical significance." Therefore, this
commenter recommended that the agencies declare the Floridan Aquifer a Sole Source Aquifer with extra
protections.
One commenter questioned the need to expressly exclude groundwater to the extent such an exclusion
would cover agricultural drainage tiles because that flow generally represents return flow from irrigation,
which is exempt from regulation under the permitting provisions of the Clean Water Act.
Agencies' Response: While the final rule does not include an express exclusion for
groundwater, the agencies disagree with those commenters who urge the agencies to assert
jurisdiction over groundwater. The agencies are not adding an exclusion for groundwater to
the regulatory text because groundwater is not surface water and therefore does not fall
within the possible scope of "navigable waters"; there is thus no need for a regulatory
exclusion. While the agencies agree that science plays a critical role in understanding how
to protect the integrity of our nation's waters, the final rule also necessarily must conform
with the statutory limits on the scope of the "waters of the United States" informed by
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relevant Supreme Court precedent. The agencies have never taken the position that
groundwater falls within the scope of "navigable waters" under the Clean Water Act. See
also Final Rule Preamble Section IV.C.7. For a discussion of temporary underground flow
by rivers and streams, see also the agencies' response to comments in Section 15.8.3.
To the extent commenters express concern regarding Clean Water Act coverage of
groundwater as a source of surface water flow, the final rule does not change the agencies'
longstanding approach that, when groundwater emerges on the surface, for example when
it becomes baseflow in streams or joins spring fed ponds, it is no longer considered to be
groundwater. Accordingly, the agencies' interpretation that groundwater is not covered by
the Clean Water Act does not affect the final rule's coverage of tributaries or wetlands that
have groundwater as a source of hydrology.
While shallow subsurface waters are not "waters of the United States," they can be relevant
under the final rule to assessing the adjacency of a wetland or to significant nexus, and
shallow subsurface waters serve under the final rule as a hydrologic connection in
determining whether another water is jurisdictional. See Final Rule Preamble Sections
IV.C.5 and IV.C.6 and the agencies' response to comments in Section 10, Section 11, and
Section 12.
The agencies' longstanding position that groundwater does not fall within the scope of the
Clean Water Act is consistent with the Supreme Court's holding in County of Maui that
Congress did not include groundwater within the coverage of the Clean Water Act. 140
S.Ct. at 1472. See also Final Rule Preamble Section IV.C.7. See the discussion of County of
Maui, Hawaii v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020), in Final Rule Preamble
Section IV.A.2.a.
The final rule does not affect ownership rights to surface or subsurface waters, including
the doctrine of equitable apportionment and rights to interstate aquifers addressed in
Mississippi v. Tennessee.
The agencies agree that return flows from irrigated agriculture are exempt from the
definition of "point source" pursuant to 33 USC 1362(14). For a discussion of activity-based
exemptions from the permitting requirements of the Clean Water Act, see the agencies'
response to comments in Section 15.13.
15.8.3 Underground flows through karst geology or other underground formations
One commenter stated support for a groundwater exclusion except for karst features (located above or
below ground). A few commenters asked for more protection within areas characterized by karst, stating
that it is very easy for pollution to travel between surface water and groundwater in such areas.
Agencies' Response: The agencies recognize the unique circumstances of temporary
underground flow by a river or stream through karst geology or other underground
formations. Historically, the agencies have carried out case-specific analyses and generally
have asserted Clean Water Act jurisdiction over the upstream portion of a river or stream
where the river or stream temporarily flows underground in regions with karst geology or
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other underground formations for some portion of their length and returns to the surface
while maintaining the same or very nearly the same flow and volume. While the agencies
generally have not asserted jurisdiction over the portion of the river or stream that flows
underground, the agencies generally have not considered the temporary underground flow
as severing jurisdiction over the upstream portion of the river or stream. The final rule does
not change this longstanding interpretation. See Final Rule Preamble Section IV.C.4.c.i.l.
See also 85 FR 22279; 80 FR 37078.
15.8.4 Groundwater as a point source
One commenter expressed concerns related to treating groundwater as a point source. This commenter did
not support an interpretation of the Clean Water Act that broadly views groundwater as a functional
equivalent to a point source and stated that only those occurrences when a pollutant travels a small time
and distance through groundwater to surface water should be considered for permitting under the Clean
Water Act. The commenter also asserted that the agencies should coordinate with local entities when
making determinations as to when groundwater should be considered a point source and that states should
hold primacy in determining whether groundwater is a point source. The commenter also stated that
pollution sources traditionally exempt from regulations under the Clean Water Act should not be
regulated when they enter groundwater that may be determined to be a point source.
Agencies' Response: Comments regarding whether the Clean Water Act's permitting
provisions apply to an addition of pollutants that travels from a point source to a "water of
the United States" through groundwater is outside the scope of this rulemaking. The
agencies note that the "functional equivalent" standard articulated by the Supreme Court
in County of Maui is a fact-specific inquiry. See discussion of County of Maui, Hawaii v.
Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020), in Final Rule Preamble Section IV.A.2.a.
15.9 Swales and Erosional Features
Many commenters requested that the agencies expressly exclude swales, gullies, rills, and other erosional
features formed by infrequent or short-duration precipitation and that do not satisfy the definition of
tributary. One commenter noted that these features can be distinguished from tributaries by the lack of an
OHWM.
Many commenters requested that the exclusion for these features be similar to the exclusion set forth in
the 2015 Clean Water Rule or the 2020 NWPR.
A few commenters noted that, under the 2008 Rapanos Guidance, the agencies generally did not assert
jurisdiction over swales or erosional features such as gullies and small washes as characterized by low,
infrequent, or short duration flow. These commenters state that assertion of Clean Water Act jurisdiction
over these types of features would be a departure from the pre-2015 regulatory regime. A few
commenters, referring to statements in the Proposed Rule Preamble that certain features such as swales
and erosional features "generally" are not considered "waters of the United States," requested an
illustrative list of such features that would be the exception to this general statement and would be
considered jurisdictional.
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A few commenters stated that the agencies should provide an illustrative list of swales and erosional
features which are clearly not jurisdictional and would not require any additional jurisdictional analysis.
This commenter also suggested that the agencies should clarify that no additional OHWM analysis is
required for these excluded features because these features are different from ephemeral streams and lack
indicators of an OHWM. A different commenter, however, asserted that it takes little precipitation or flow
to create the appearance of OHWM, and therefore the presence of an OHWM should not be definitive
regarding whether an erosional feature or swale is within the scope of the Clean Water Act.
One commenter suggested that the agencies should provide more flexibility for swales, gullies, and
erosional features to not be considered "waters of the United States" in order for farmers to have the
ability to address them and protect water quality downstream.
One commenter requested a definition for "gullies, swales, and erosional features." This commenter noted
that the distinction between ephemeral tributaries, swales, and erosional features such as rills or gullies
has not been clear from the pre-2015 regulatory definition. The commenter agreed with the proposed rule
approach that swales and gullies would generally not be jurisdictional and lack indicators of OHWM,
whereas ephemeral streams do have these indicators. The commenter requested that this distinction be
added to the regulatory definitions, since the prior lack of definition reduced predictability in permitting
and led to disagreements between state agencies and the Corps.
A few commenters opposed expressly excluding swales, gullies and other erosional features because, as
noted by the Science Advisory Board, such features can be important conduits for moving water between
jurisdictional features. These commenters oppose exclusions from the definition of "waters of the United
States" for features that can serve as conduits for moving water or pollutants to jurisdictional waters to
avoid the potential for unregulated pollutants to enter waters can delay or prevent achieving the CWA
goal of restoring and maintaining the chemical, physical, and biological integrity of the nation's waters.
One commenter requested that the agencies assess ephemeral features beyond swales and erosional
features, including gullies and small washes, to determine if there are additional categories which warrant
explicit exclusion from jurisdiction. The commenter stated that providing this additional information will
reduce the case-specific jurisdictional determination burden and result in a more durable rule less likely to
be subject to legal challenges.
Agencies' Response: The agencies agree with comments that stated that, under the pre-2015
regulatory regime, the agencies generally did not assert jurisdiction over certain swales and
erosional features, such as gullies and small washes. Consistent with the agencies' intent to
return to the familiar and longstanding framework under the pre-2015 regulatory regime
and to provide additional clarity and certainty regarding the definition of "waters of the
United States," the final rule expressly excludes "[s]wales and erosional features (e.g.,
gullies, small washes) characterized by low volume, infrequent, or short duration flow."
The Rapanos Guidance explained that the agencies generally found "[s]wales or erosional
features (e.g., gullies, small washes characterized by low volume, infrequent, or short
duration flow)" to be non-jurisdictional. Rapanos Guidance at 11-12. In the final rule, the
agencies are finalizing two minor changes to the exclusion for swales and erosional features
in this rule as compared to the language in the Rapanos Guidance. First, the final rule's
regulatory text excludes "swales and erosional features" rather than "swales or erosional
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features." Second, the agencies are moving the parentheses in this provision so that only the
phrase ue.g., gullies, small washes" is included in parentheses. See Final Rule Preamble
Section IV.C.7 for an explanation of these minor changes. Notwithstanding these two minor
changes, the agencies' application of the exclusion for these features as compared to the pre-
2015 regulatory regime remains substantively and operationally unchanged.
This exclusion does not extend to features other than those that meet its terms. The agencies
recognize that the 2020 NWPR also excluded "ephemeral" features. To the extent
commenters request that the final rule expressly exclude "ephemeral" features beyond
swales and erosional features characterized by low volume, infrequent, or short duration
flow, see the agencies' responses to comments in Section 15.10.
The agencies agree with commenters who assert that swales, gullies, and other erosional
features can be distinguished from tributaries. Because swales and erosional features were
considered to be generally non-jurisdictional features under pre-2015 practice, the agencies
have extensive experience differentiating between these features and tributaries on the
landscape. See Rapanos Guidance at 11-12. Streams are waterbodies that are typically
characterized by the presence of a channel and an OHWM, and lakes and ponds are
waterbodies that are also typically characterized by the presence of an OHWM, in the
absence of adjacent wetlands. In contrast, erosional features like gullies and rills are
typically more deeply incised than streams and lack an OHWM. Similarly, swales do not
have an OHWM and typically lack a more defined channel that a stream exhibits. In
addition, it should be noted that, although some low gradient depressional areas are
colloquially referred to as "swales," these areas do not meet the regulatory exclusion's
criteria for swales that are discrete topographic features "characterized by low volume,
infrequent, or short duration flow."
To the extent commenters request an illustrative list of features that would or would not
satisfy this exclusion, determinations regarding the jurisdictional status of any specific
water are outside the scope of this rulemaking.
To the extent a commenter requests that the criteria for swales and other erosional features
be further clarified to increase predictability in permitting and to avoid disagreement
between state agencies and the Corps, see Final Rule Preamble Sections IV.C.4 and IV.C.7.
As discussed further in Final Rule Preamble Section IV.A.4, the agencies have determined
the final rule is both familiar and implementable. 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. Consistent implementation of the
final rule will be aided by improved and increased scientific and technical information and
tools that both the agencies and the public can use to determine whether waters are "waters
of the United States." The final rule was developed to increase Clean Water Act program
predictability and consistency by increasing clarity as to the scope of "waters of the United
States" protected under the Act.
The agencies agree that excluded swales and erosional features can be important conduits
for moving water between jurisdictional features. Even when not themselves considered
jurisdictional waters subject to the Clean Water Act because they are excluded, certain
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ditches, swales, gullies, erosional features, and other non-jurisdictional features may be
relevant to the analysis of whether another water is a "water of the United States." For
example, consistent with longstanding practice, excluded surface features may still
contribute to a hydrologic connection relevant for asserting jurisdiction (e.g., between an
adjacent wetland and a jurisdictional water). See Final Rule Preamble Sections IV.C.5 and
IV.C.7.
15.10 Ephemeral Features Other Than Tributaries or Ditches with Ephemeral Flow
Many commenters supported expressly excluding ephemeral features from the definition of "waters of the
United States." Many of the commenters who supported an express exclusion for ephemeral features
pointed to the express exclusion for ephemeral features in the 2020 NWPR. A few commenters stated that
the 2020 NWPR exclusion provided needed clarity, especially for small business and the livestock and
agricultural industries. Several commenters stated that the 2020 NWPR appropriately excluded ephemeral
features, and that such an approach "balances the regulation of the Federal government with the authority
of States and Tribes to more appropriately regulate certain waters within their jurisdiction." One
commenter added that states may be in a better position to address issues related to regional variability of
ephemeral features. A few commenters suggested that the final rule should exclude ephemeral features
from the "waters of the United States" definition to be consistent with Congressional intent and Supreme
Court precedent.
A few commenters expressed concern that the intermittent or seasonal nature of ephemeral streams and
features could create subjective and arbitrary regulatory decisions by the agencies, which could
subsequently increase costs. A few commenters stated that dry creek beds through which water flows only
during extreme weather events should not be considered "waters of the United States." These commenters
assert that these are not relatively permanent waters, and their nexus to traditional navigable waters is
speculative. One commenter stated that ephemeral features, which only carry water temporarily in
response to rainfall, serve as natural drains on agricultural land and should be excluded from the revised
"water of the United States" definition. Several commenters stated that areas that are dry most of the year
which may contain transitory puddles or ephemeral waters should be excluded. One commenter asserted
that it is difficult to distinguish a dry wash from an ephemeral stream and that minimal precipitation
should not cause an otherwise dry waterbody to become jurisdictional.
Several commenters asserted that ephemeral features should be excluded because they are common in the
western and southwestern United States, where precipitation conditions vary dramatically. Some of these
commenters emphasized that the need for flexibility made these types of features better regulated by the
states rather than the federal government. Commenters also expressed concern regarding potential for
inconsistent treatment of ephemeral features in the arid West and southwestern United States. One
commenter suggested that the agencies provide regional definitions for ephemeral features, using larger
traditional navigable waters as geographic boundaries to help clarify and define "waters of the United
States" more clearly.
One commenter stated that any new "waters of the United States" rule should clearly define what
ephemeral drainages are.
A few commenters requested that the agencies include in the regulatory text an exclusion for "non-
relatively permanent waters," which the commenters defined as "waters flowing less than three
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contiguous months per year, except during periods of extreme drought or precipitation according to
USGS standards," including waters with ephemeral and intermittent flow regimes, stormwater run-off,
directional sheet flow over upland areas, swales, erosional features, and arroyos.
A few commenters made general statements of opposition to excluding ephemeral features. One
commenter stated that in the southwestern United States, and many other parts of the nation, it is
commonplace for perennial flows to drain into ephemeral features, excluding perennial flows from
regulation.
One commenter stated that assertion of Clean Water Act jurisdiction over intermittent streams,
waterways, road ditches, and wet concave areas on farms is government overreach.
Agencies' Response: The agencies disagree with commenters who suggest that the agencies
should categorically exclude ephemeral features from the definition of "waters of the United
States." See Final Rule Preamble Section IV.B.3; the agencies' response to comments in
Section 8, Section 11, and Section 13; and Technical Support Document Section III.A.v. In
the final rule, the agencies are neither categorically including nor categorically excluding
ephemeral and intermittent tributaries. Rather, the agencies are defining "waters of the
United States" to include tributaries that meet either the significant nexus standard or the
relatively permanent standard based on their conclusions in section IV.A of the final rule
preamble. Further, there is nothing in the text of the statute or its legislative history that
excludes some categories of tributaries based on their flow regime. Indeed, as discussed
further below, the best available science demonstrates that ephemeral and intermittent
streams can significantly affect the chemical, physical, and biological integrity of paragraph
(a)(1) waters—i.e., traditional navigable waters, the territorial seas, and interstate waters.
The agencies have decided to explain directly the way that the relatively permanent
standard should be implemented, rather than defining the phrase with these terms. As
evidenced by the variety of comments proposing definitions for "perennial" and
"intermittent," adding these terms to this rule could cause confusion and uncertainty. See
also Final Rule Preamble Section IV.C.4. Under the final rule, tributary must flow directly
or indirectly through another water or waters to a traditional navigable water, the
territorial seas, or an interstate water. See Final Rule Preamble Sections IV.C.4, and
IV.C.6. See also the agencies' response to comments in Section 8, Section 11, and Section 13.
To the extent commenters assert that failure to categorically exclude all ephemeral features
is inconsistent with Congressional intent or Supreme Court precedent, the agencies
disagree. See Final Rule Preamble Sections IV.A.3.a.ii.
Several commenters referred to specific types of features that they assert should be
excluded. The agencies note that some features that may be considered "ephemeral" may fit
within one of the final rule's express exclusions. For example, some of the features
described by commenters may be excluded under the final rule as swales and erosional
features characterized by low volume, infrequent, or short duration flow. See Final Rule
Preamble Section IV.C.7 and the agencies' response to comments in Section 15.9.
The agencies acknowledge and agree with those commenters who note that ephemeral
features may be common in the arid West and Southwest. As set forth in the Final Rule
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Preamble Section IV.A.3.a.ii, the scientific record demonstrates many tributaries that flow
for only a short duration in direct response to precipitation are regular and direct sources
of freshwater for the sparse traditional navigable waters in the arid Southwest, such as
portions of the Gila River.
Some of the features that commenters mentioned, like sheetflow, are not waters at all and
would not be considered "waters of the United States."
Even for features that are not explicitly excluded, the agencies will continue to assess
jurisdiction under the final rule on a case-specific basis. As part of this case-specific
assessment, the agencies will continue to consider whether the feature in question is
excavated or created in dry land, the flow of water in the feature, and other factors. In
addition, some of the features that commenters asked the agencies to exclude may be
covered by one or more of the exclusions in the final rule if they satisfy the criteria for those
exclusions.
To the extent the commenters articulate concern that absence of an express exclusion for
ephemeral features from the final rule text leaves too much room for subjective
determination by individual agency personnel or may lead to inconsistent determinations,
as discussed further in Final Rule Preamble Section IV.A.4, the agencies have determined
the final rule is both familiar and implementable. 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. Consistent implementation of the
final rule will be aided by improved and increased scientific and technical information and
tools that both the agencies and the public can use to determine whether waters are "waters
of the United States." See Final Rule Preamble Section IV.G.
To the extent commenters assert that certain types of ephemeral features are better
regulated by the states, the final rule reflects consideration of provisions of the Clean Water
Act referencing the role of the states. Clean Water Act jurisdiction encompasses (and is
limited to) those waters that significantly affect the indisputable federal interest in the
protection of the paragraph (a)(1) waters—ie., traditional navigable waters, the territorial
seas, and interstate waters. Additionally, where protection (or degradation) of waters does
not implicate this federal interest, such waters fall exclusively within state or tribal
regulatory authority, should they choose to exercise it. The final rule appropriately draws
the boundary between federal and exclusively state jurisdiction by ensuring that where
upstream waters significantly affect the integrity of the traditional navigable waters, the
territorial seas, and interstate waters, Clean Water Act programs will apply to ensure that
those downstream waters have a baseline of protection established by federal law. Where
they do not, states and tribes have authority. See also Final Rule Preamble Section. IV.A.
With respect to comments that request the agencies to define "ephemeral drainages," that
term is not used in the final rule, and therefore there is no need for the agencies to provide a
definition.
To the extent a commenter asserts that the absence of an exclusion for ephemeral or
intermittent streams or ditches is government overreach, the agencies disagree. This rule
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establishes limits that appropriately draw the boundary of waters subject to federal
protection. When upstream waters significantly affect the integrity of waters for which the
federal interest is indisputable—the traditional navigable waters, the territorial seas, and
interstate waters—this rule ensures that Clean Water Act programs apply to protect those
paragraph (a)(1) waters by including such upstream waters within the scope of the "waters
of the United States." Where waters do not significantly affect the integrity of waters for
which the federal interest is indisputable, this rule leaves regulation to the states and tribes.
15.11 Stormwater Controls and MS4s
15.11.1 General support for codification of an exclusion for stormwater management systems
and their components
Many commenters generally supported expressly excluding stormwater systems, stormwater control
measures, and/or municipal separate storm sewer systems (MS4s) in the final rule. Many pointed out that
stormwater controls were expressly excluded in the 2015 Clean Water Rule and the 2020 NWPR. More
specifically, several commenters recommended that the agencies expressly exclude "stormwater control
systems constructed to convey, treat, infiltrate, or store stormwater," as well as sheet flow over uplands.
Several commenters stated that an express exclusion of stormwater systems will provide needed clarity
and certainty for regulators, owners/operators of stormwater control features, and the public. These
commenters asserted that, without an express exclusion, MS4 operators would be left uncertain as to
whether certain components of the MS4 system are "waters of the United States." Many commenters
asserted that, to the extent components of an MS4 or other stormwater management system are not
expressly excluded, discharges of stormwater into MS4 components that meet the definition of "waters of
the United States" in the final rule could require an NPDES permit, creating a situation where MS4
permittees would be regulated both when stormwater leaves the system and when it enters the system.
Some of these commenters posited that lack of an express exclusion could lead to a situation where MS4
permittees would be required to achieve water quality standards in some or all parts of the MS4 system.
Many commenters suggested that an express exclusion for MS4 systems would improve regulatory clarity
for MS4s and assist MS4s in the implementation of their permit conditions. Many commenters expressed
concern that permit compliance measures, such as maintenance of ditches, dredging stormwater retention
ponds, etc., would require a Clean Water Act permit, thereby complicating permit compliance.
One commenter suggested that the final rule should account for stormwater systems that have been built
within historic drainageways, stating that this stormwater infrastructure has little resemblance to historic
natural systems and would not support the biological and chemical conditions of jurisdictional waters.
One commenter stated that because the 1986 regulations pre-date the 1987 amendments to the Clean
Water Act and the regulations governing stormwater, the 1986 regulations do not reference stormwater
controls.
Several commenters suggested that the agencies clarify that point sources (e.g., ditches and components
of permitted MS4 conveyance systems) are not "waters of the United States." Many commenters
expressed concern regarding the classification of human-made channels as "waters of the United States."
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One commenter urged the agencies to exclude controls for stormwater associated with construction
activity, particularly sedimentation ponds.
One commenter asserted that the proposed rule's lack of an express exclusion for stormwater control
features would create ambiguity and invite citizen suits.
Agencies' Response: The agencies disagree with commenters who suggest adding an express
exclusion for stormwater control features to the final rule. The final rule text codifies the
familiar and longstanding exclusions for waste treatment systems and prior converted
croplands. The final rule text also codifies exclusions for several features that the agencies
generally considered non-jurisdictional under the pre-2015 regulatory regime and the 2019
Repeal Rule, and expressly excluded by regulation in the 2015 Clean Water Rule and 2020
NWPR. See the agencies' response to comments in Section 15.1.1. Codification of these
exclusions in the final rule text is consistent with the agencies' intent to interpret "waters of
the United States" to mean the waters defined by the familiar 1986 regulations, with
amendments to reflect the agencies' determination of the statutory limits on the scope of the
"waters of the United States" informed by case law, policy determinations, and the
agencies' experience and expertise. The proposed additional exclusions would not achieve
the agencies' goals of maintaining consistency with the pre-2015 regulatory regime while
continuing to advance the objective of the Clean Water Act.
MS4 is a conveyance or system of conveyances that is owned or operated by a public entity,
designed and used to collect or convey stormwater and discharge it to "waters of the United
States." An MS4 is often operated by a municipality or county government, but other storm
sewer systems, such as large public institutions (e.g., military bases) and state departments
of transportation, operate MS4s. 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' decision not to expressly exclude stormwater management controls in the
final rule text does not mean that the agencies intend to assert Clean Water Act jurisdiction
over those features under the final rule. The agencies will continue to evaluate Clean Water
Act jurisdiction on a case-specific basis and will not assert jurisdiction over features that do
not satisfy the definition of "waters of the United States" articulated in the final rule. As
part of this case-specific assessment, the agencies will continue to consider whether the
feature in question is excavated or created in dry land, the flow of water in the feature, and
other factors. Many common stormwater control features, including green infrastructure
features, would not be considered "waters" and would clearly not be "waters of the United
States." For example, rain barrels, urban sidewalk planter boxes, permeable pavements,
green roofs, and urban tree canopies are all effective ways to control stormwater through
green infrastructure features that are clearly not "waters" and would not be "waters of the
United States." Likewise, some of the stormwater control features that commenters asked
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the agencies to exclude may already be covered by one or more of the exclusions in the final
rule provided they meet the criteria. For example, certain features that convey stormwater
may be excluded as ditches under this rule. Similarly, bioswales, which are often found
along curbs and in parking lots and use vegetation or mulch to manage stormwater flows,
may be excluded under the final rule's exclusion for certain swales and erosional features if
they satisfy the terms of that exclusion.
The agencies do not agree with commenters who assert that otherwise jurisdictional waters
incorporated into the drainage or stormwater conveyance system of an MS4 should be
excluded solely because they are used as part of the larger stormwater control system. The
Clean Water Act has long been understood to encompass "natural, modified, or
constructed" tributaries of other covered waters. 80 FR 37078. The past practice of using a
natural, jurisdictional tributary to move stormwater through a system does not nullify that
tributary's status as long as it satisfies the definition of "waters of the United States"
articulated in the final rule. The agencies do not agree with the assertion by some
commenters that a feature cannot be both a "point source" regulated under the NPDES
program and a "water of the United States." See Final Rule Preamble Section IV.C.7 and
the agencies' response to comments in Section 14 and Section 15.2.
The agencies do not agree with the commenters who assert that absence of an express
exclusion for stormwater controls would increase complexity or impose additional costs on
operation of MS4s. The final rule does not change the agencies' approach to stormwater
controls and MS4s from the approach taken under the pre-2015 regulatory regime, which
was in place for more than a decade except for the short periods during which the 2015
Clean Water Rule or the 2020 NWPR were in effect. Consequently, there is no basis to
conclude that the final rule will increase the historic cost or complexity of operating MS4s.
While the pre-2015 regulatory regime pre-dates the 1987 amendments to the Clean Water
Act, the agencies have found on several occasions since then and continue to find that the
pre-2015 regulatory regime is an appropriate definition of "waters of the United States."
To the extent commenters assert that human-made waterbodies should be excluded, the
final rule does not change the agencies' longstanding interpretation of the Clean Water Act
that it is not relevant whether a water has been constructed or altered by humans for
purposes of determining whether a water is jurisdictional under the Clean Water Act. See
Final Rule Preamble Section IV.C.7.
To the extent commenters refer to features, such as sheetflow, that are not waters, those
would not be considered "waters of the United States." See Final Rule Preamble Section
IV.C.7.
15.11.2 Green infrastructure
Several commenters suggested that there should be an express exclusion for green infrastructure,
including when such infrastructure is constructed as part of transportation or other facilities. Some
commenters expressed concern that, although the agencies have supported the expanded use of green
infrastructure, the agencies have not expressly excluded green infrastructure. These commenters stated
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that not explicitly excluding green infrastructure from Clean Water Act jurisdiction will create a
disincentive to implement green infrastructure practices (including constructed wetlands which are often
designed to mimic wetland functions and provide habitat) and maintain them, citing costly and time-
consuming permitting processes. For example, one commenter expressed concern that Clean Water Act
section 404 permits could be required for maintenance of green infrastructure. One commenter asserted
that additional regulatory requirements may require resources to be diverted to administrative processes
rather than to water quality improvements. One commenter stated that the exclusions in the final rule need
to allow room for innovative treatment approaches, such as treatment wetlands and offline or inline
regional treatment facilities, and other future innovative treatment approaches.
Agencies' Response: The agencies disagree with commenters requesting an express
exclusion for green infrastructure. The final rule text codifies the familiar and longstanding
exclusions for waste treatment systems and prior converted croplands. The final rule text
also codifies exclusions for several features that the agencies generally considered non-
jurisdictional under the pre-2015 regulatory regime and the 2019 Repeal Rule, and
expressly excluded by regulation in the 2015 Clean Water Rule and 2020 NWPR. See the
agencies' response to comments in Section 15.1.1. Codification of these exclusions in the
final rule text is consistent with the agencies' intent to return to the familiar and
longstanding framework under the pre-2015 regulatory regime and provide additional
clarity and certainty regarding the definition of "waters of the United States."
The agencies' decision not to expressly exclude stormwater management controls or green
infrastructure in the final rule text does not mean that the agencies intend to assert Clean
Water Act jurisdiction over those features under the final rule, particularly in
circumstances where the agencies would not have asserted jurisdiction consistent with their
longstanding approach under the pre-2015 regulatory regime. Generally, the agencies have
not asserted jurisdiction over green infrastructure features that are built in dry land. The
final rule does not change the agencies' approach to green infrastructure from the approach
taken under the pre-2015 regulatory regime, which was in place for more than a decade
except for the short periods during which the 2015 Clean Water Rule or the 2020 NWPR
were in effect. Consequently, there is no basis to conclude that the final rule will increase
the cost or complexity of installing or maintaining green infrastructure.
The agencies will continue to evaluate Clean Water Act jurisdiction on a case-specific basis.
As part of this case-specific assessment, the agencies will continue to consider whether the
feature in question is excavated or created in dry land, the flow of water in the feature, and
other factors. The agencies will not assert jurisdiction over features that do not satisfy the
definition of "waters of the United States" articulated in the final rule. When a feature does
not meet the definition articulated in the final rule, that feature is not a "water of the United
States" and there is no need for an express exclusion.
15.13.3 Miscellaneous comments discussing exemptions for discharges to "waters of the
United States"
Some commenters recommended that the current guidance memo on implementing the Clean Water Act
section 404(f) exemptions should remain in place.
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A few commenters expressed general support for the inclusion of the exemptions included in past rules.
One commenter expressed opposition to any regulatory scheme which removes, or substantively alters,
existing exemptions.
One commenter stated that the agencies should review and potentially expand their nationwide permits
for activities by water providers (to the extent that clear jurisdictional exemptions are not in place and for
water sector activities that cannot be exempted) to guarantee limited adverse impact to water sector
utilities while assuring environmental protection.
Agencies' Response: The final rule does not affect any of the exemptions for certain
discharges from the permitting requirements of the Clean Water Act, including exemptions
from section 404 permitting requirements provided by section 404(f). See also Final Rule
Preamble IV.C.l.
To the extent commenters seek clarification of or revisions to statutory or regulatory
activity-based exemptions for discharges into "waters of the United States" associated with
certain activities, these comments are beyond the scope of this rulemaking. Commenters'
request that the agencies issue or modify nationwide or other general permits to cover
discharges from certain activities also is beyond the scope of this rulemaking.
To the extent commenters request that the agencies issue further guidance regarding either
waters that are "not" "waters of the United States" (i.e., exclusions) or exempted discharges
based upon the activities associated with the discharge, 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.
15.11.3 Comments asserting that failure to expressly exclude MS4s will complicate NPDES
permitting of MS4s and implementation of MS4s
Some commenters expressed concern that the agencies have indicated that there could be a "waters of the
United States" designation within a NPDES permitted area. Commenters stated that this is especially
relevant for governments that have an MS4. These commenters stated that MS4s would be responsible
not only for pollutants that leave the system, but also for pollutants that enter the system, and for
maintaining water quality standards at points in between.
Some commenters expressed concern that the proposed rule will impact the permitting process, resulting
in increased costs and greater difficulties in managing public infrastructure, specifically stating that
section 404 permits may be required for routine maintenance on stormwater conveyance systems,
including when such infrastructure is designed for drainage and flood control purposes and requesting that
the rule clarify impacts on MS4 permits to avoid "double regulation of permitted entities." Several
commenters requested that the final rule clarify that a section 404 permit would not be required to
maintain a Best Management Practice.
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One commenter stated that the proposed rule provides less clarity than either the 2015 Clean Water Rule
or the 2020 NWPR, which in turn makes it more difficult for MS4 operators to map their systems in
compliance with the mapping requirements of their NPDES permits.
Agencies' Response: With respect to the agencies' decision not to codify an exclusion for
stormwater management controls, see the agencies' response to comments in Section
15.11.1.
With respect to MS4 systems, the final rule does not change the agencies' longstanding
approach, including under both the 2015 Clean Water Rule and the 2020 NWPR, as well as
the pre-2015 regulatory regime, that the agencies generally do not assert jurisdiction over
stormwater controls constructed in dry land, and that otherwise jurisdictional waters retain
their jurisdictional status even when incorporated into a stormwater management system.
See also the agencies' response to comments in Section 15.11.1. Because the final rule does
not change the agencies' longstanding approach, there is no basis to conclude that the final
rule would add cost or complexity to operation of MS4s or compliance with NPDES terms
and conditions.
15.11.4 General opposition to codification of an exclusion for stormwater management
systems and their components
One commenter expressed opposition to an exclusion of MS4s from "waters of the United States." This
commenter stated that a blanket exclusion for MS4s would increase unregulated maintenance and
operation activities of traditionally jurisdictional waters, increase negative impacts on jurisdictional
channels and adjacent wetlands, and would not meet the intent of the Clean Water Act.
Agencies' Response: The final rule does not codify an exclusion for stormwater
management systems and their components from the definition of "waters of the United
States." See the agencies' response to comments in Section 15.11.1
15.12 Wastewater Recycling Structures
Many commenters made general statements of support for expressly excluding wastewater recycling
structures, including their distribution structures, in the final rule, whether as part of the Waste Treatment
Systems exclusion or as its own exclusion. Some commenters also noted that such features were excluded
in past rules, including the 2015 Clean Water Rule and the 2020 NWPR.
Several commenters asserted that, without an exclusion for wastewater recycling structures, utilities could
face regulatory uncertainty about jurisdiction (including case-specific jurisdictional determinations),
regulatory delay and expenses, regulatory redundancy, and/or impediments to routine maintenance, all of
which would hamper or preclude the use of a very important tool for water security and resilience to
climate change without providing additional protection to the public or the environment.
One commenter suggested that the agencies should add such an exclusion because such features generally
must be located either where there is some existing water source or adjacent to the sandy soils near
"waters of the United States" that help with percolation/filtration. Further, the commenter asserted that
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wastewater recycling structures are already designed to meet Clean Water Act and Safe Drinking Water
Act requirements.
One commenter noted that the showing required to establish that a wastewater recycling feature was
constructed in upland creates an unnecessary regulatory burden given the fact that any discharge from the
wastewater recycling feature would already be subject to CWA regulation.
One commenter suggested that the final rule should not change the non-jurisdictional status of wastewater
recycling features that were lawfully constructed under the laws at the time of construction, regardless of
whether the feature was constructed in upland.
One commenter suggested that wastewater recycling structures should be under state control as water
recycling contributes to local water supply. This commenter also suggested that the impacts of emerging
contaminants such as PFAS should be considered in this exclusion. The commenter further asserted that
the extent to which contaminants survive treatment techniques in a particular case should be determined
by appropriate testing before allowing wastewater recycling structures to not be regulated as "waters of
the United States."
Agencies' Response: The agencies recognize the importance of water reuse and recycling
and do not intend for the final rule to discourage or create barriers to water reuse and
conservation practices and projects.
The agencies disagree with commenters' request for codification of an express exclusion for
wastewater recycling structures. The final rule text codifies the familiar and longstanding
exclusions for waste treatment systems and prior converted croplands. The final rule text
also codifies exclusions for several features that the agencies generally considered non-
jurisdictional under the pre-2015 regulatory regime. See the agencies' response to
comments in Section 15.1.1. Codification of these exclusions in the final rule text is
consistent with the agencies' intent to interpret "waters of the United States" to mean the
waters defined by the familiar 1986 regulations, with amendments to reflect the agencies'
determination of the statutory limits on the scope of the "waters of the United States"
informed by the law, the science, and agency expertise. The agencies' decision not to
expressly exclude groundwater recharge, water reuse, and water recycling structures in the
final rule text does not mean that the agencies intend to assert Clean Water Act jurisdiction
over those features under the final rule.
The agencies will continue to evaluate Clean Water Act jurisdiction on a case-specific basis.
As part of this case-specific assessment, the agencies will continue to consider whether the
feature in question is excavated or created in dry land, the flow of water in the feature, and
other factors. The agencies will not assert jurisdiction over features that do not satisfy the
definition of "waters of the United States" articulated in the final rule. When a feature does
not meet the definition articulated in the final rule, that feature is not a "water of the United
States" and there is no need for an express exclusion. The agencies also will not assert
jurisdiction over features that meet the criteria for one of the exclusions expressly identified
in the final rule text.
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To the extent commenters assert that the absence of an express exclusion for wastewater
recycling features constructed in dry land creates an unnecessary regulatory burden
because any discharge from such a feature already would be subject to Clean Water Act
regulation, as set forth above, the agencies will not assert jurisdiction over features that do
not meet the definition of "waters of the United States" articulated in the final rule or that
fit within one of the exclusions set forth in the final rule, including the exclusion for waste
treatment systems.
To the extent commenters assert that issuance of the final rule should not change the
jurisdictional status of wastewater recycling features that were lawfully constructed in
reliance on an express exclusion for those features under the 2020 NWPR or the 2015 Clean
Water Rule, regardless of whether the feature was created in upland, the agencies note that
the final rule does not invalidate AJDs issued under prior definitions of "waters of the
United States." As such, any existing AJD—except AJDs issued under the vacated 2020
NWPR, which are discussed below—will remain available and eligible to support
regulatory actions, such as permitting, until its expiration date, unless one of the criteria for
revision is met under RGL 05-02 or the recipient of such an AJD asks the Corps to issue a
new AJD. Because agency actions are governed by the rule in effect at the time an AJD is
issued and not when the request was made, all approved jurisdictional determinations
issued on or after the effective date of this rule will be made consistent with this rule.
Because two district courts vacated the 2020 NWPR, the agencies have received many
questions regarding the validity of AJDs issued under the 2020 NWPR (hereinafter,
"NWPR AJDs"). In response to such inquiries, the agencies have explained that NWPR
AJDs, unlike AJDs issued under other rules that were changed pursuant to notice-and-
comment rulemaking rather than vacatur, may not reliably state the presence, absence, or
limits of "waters of the United States" on a parcel as a result of vacatur and cannot be
relied upon by the Corps in making new permit decisions following the Arizona district
court's August 30, 2021, order vacating the 2020 NWPR. The agencies also note that they
will continue to evaluate potential enforcement actions using the regulations in place when
the alleged violation occurred. For example, if a person excavated a ditch while the pre-2015
regulatory regime was in effect and the person complied with the terms of the pre-2015
regulatory regime, today's final rule does not create new liability. See United States v.
Lucero, 989 F.3d 1088 (9th Cir. 2021) (explaining that the 2020 NWPR did not apply
retroactively to the defendant's violations, which occurred before the 2020 NWPR became
effective).
To the extent that a commenter suggests that wastewater recycling structures should always
be solely under state control because water recycling contributes to local water supply, the
agencies disagree. Many water features contribute to local water supply. In fact,
approximately 117 million people in the United States get some or all of their drinking
water from public water systems that rely in whole or in part on perennial, intermittent, or
ephemeral streams.5 The Clean Water Act plays an important role in protecting surface
sources of drinking water. While the agencies agree that emerging contaminants such as
PFAS are of concern, analysis of the efficacy of treatment techniques is outside the scope of
this rulemaking.
5 Geographic Information Systems Analysis of the Surface Drinking Water Provided by Intermittent, Ephemeral, and
Headwater Streams in the U.S., U.S. EPA (last visited Oct. 12, 2022), https://www.epa.gov/cwa-404/geographic-
information-sy stems-analysis-surface-drinking-water-provided-intermittent.
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15.13 Exemptions for Discharges to Features That Are "waters of the United States"
15.13.1 Activity-based exemptions for discharges associated with agricultural activities
Many commenters requested that discharges associated with agricultural activities be exempt from the
permitting provisions of the Clean Water Act.
One commenter asserted that the proposed rule is inconsistent with Congress' intent and it expands the
agencies' federal jurisdiction. This commenter stated that Congress specifically included in the Clean
Water Act several critical statutory exemptions for agriculture, each of which would be unlawfully
undermined by the proposed rule:
• Section 404 exemption for "normal" farming and ranching activities;
• Section 404 exemption for construction of farm or stock ponds; and
• Exclusions of agricultural stormwater discharges and return flows from irrigated agriculture from
the definition of "point source" and hence, from section 402 permitting.
One commenter stated that in reference to the exemption for "normal agricultural, silvicultural and
ranching practices," the term "normal" should be based on the needs of the plant and soil and should not
be limited to a timing or occurrence standard. Likewise, the commenter asserted that the exemption for
maintenance of farm drainage ditches should not be removed because of a presence of aquatic vegetation
that may have developed since the last clean out.
Many of the commenters who discussed project and operational impacts—and several others—argued
that the proposed rule could or would hinder environmentally-beneficial projects. These commenters
provided the following types of projects as examples:
• Farmers' ecological and conservation efforts, such as those related to water quality, wetlands, soil
conservation, wildlife, sediment, and phosphorous reduction, with one commenter arguing that it
would be cost-prohibitive if farmers had to apply for permits for such activities, leading to
negative environmental impacts, rather than protection;
• "Environmentally beneficial projects and...routine maintenance on...farms such as installing
grass waterways and riparian buffers and maintain drainage ditches and irrigation canals"; and
• Aerial spraying for "crop protection and public health."
Agencies' Response: To the extent commenters seek clarification of or revisions to statutory
or regulatory activity-based exemptions for discharges associated with certain activities, the
comments are beyond the scope of this rulemaking.
The agencies disagree with those commenters who assert that the final rule impacts express
statutory or regulatory exemptions for discharges associated with certain activities. Some
commenters appear to confuse features excluded from the definition of "waters of the
United States" with discharges that are exempted from the permitting provisions of the
Clean Water Act. Like the 1986 regulations, the 2015 Clean Water Rule, and the 2020
NWPR, the final rule identifies certain features as "not" "waters of the United States," ie.,
like the prior regulations, the final rule "excludes" certain features from the term "waters
of the United States." The agencies historically have used the term "exclusions" as a short-
hand way to refer to features that by regulation are "not" "waters of the United States."
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By contrast, the terms "exempt" and "exemption" refer to statutory or regulatory
provisions that exempt an addition of pollutants to "waters of the United States" from the
permitting provisions of the Clean Water Act (i.e., "exempted discharges" or
"exemptions"). Whether a feature is a "water of the United States" is a function of the
characteristics of the feature and not the nature of any particular discharge into that
feature. By contrast, exempt discharges into jurisdictional features generally are defined in
relation to a specific activity, such as "normal farming." See, e.g., 33 U.S.C. 1344(f)(1)(A).
Congress exempted certain discharges from the Clean Water Act or from specific
permitting requirements. The final rule will not affect any of the exemptions, including
exemptions from section 404 permitting requirements provided by section 404(f), such as
those for normal farming, ranching, and silviculture activities (33 U.S.C. 1344(f); 40 CFR
232.3; 33 CFR 323.4) and exemptions from the Clean Water Act section 402 NPDES
permitting requirements, such as for agricultural stormwater discharges and return flows
from irrigated agriculture, or the status of water transfers (33 U.S.C. 1342(1)(1), (1)(2); 33
U.S.C. 1362(14); 40 CFR 122.2,122.3(f)). See also Final Rule Preamble Sections III.A.l.b.
and IV.C.l.
The agencies disagree with those commenters who state that the agencies' assertion of Clean
Water Act jurisdiction over a particular feature precludes certain activities in or near that
feature. The fact that a resource is a "water of the United States" does not mean that
activities such as farming, construction, infrastructure development, or resource extraction,
cannot occur in or near the resource at hand. "[AJfter all, the very existence of a permit
system implies that permission may be granted." United States v. Riverside Bayview Homes,
Inc., 474 U.S. 121,127 (1985).6
In addition, where waters and discharges are subject to 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). General permits are issued on a nationwide,
regional, or state basis for particular categories of activities. The general permit process
allows certain activities to proceed with little or no delay, provided the general or specific
conditions for the general permit are met. Even for those general permits that require
advance notice to the Corps or a state, the average processing time for applications is less
than two months. See Corps, Regulatory Impact Analysis for 2021 Reissuance and
Modification of Nationwide Permits at 11 (January 3, 2021). See also Final Rule Preamble
Sections III.A.l.b. and IV.A.5.b. Examples include Nationwide Permit 40 (Agricultural
Activities), Nationwide Permit 34 (Cranberry Production Activities), Nationwide Permit 41
(Reshaping Existing Drainage Ditches), Nationwide Permit 27 (Aquatic Habitat
Restoration, Establishment, and Enhancement Activities), and Nationwide Permit 18
(Minor Discharges). 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.
6 United States v. Riverside Bayview Homes, 474 U.S. 121, 131-35 (1985)
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To the extent commenters refer to applicability the Clean Water Act permitting provisions
to pesticide application, regulation of the control and use of pesticides is beyond the scope of
this rulemaking.
15.13.2 Activity-based exemptions for discharges associated with activities other than
agricultural activities
One commenter requested clarification of exemptions for the maintenance of flood control systems. This
commenter requested that the proposed rule clarify that Congress intended for Clean Water Act section
404(f)(1)(B) to include routine maintenance of flood control systems, including removal of debris and
trash, and vegetation management from channels critical to the functionality of the flood control structure
and system. This commenter also requested clarification that Clean Water Act section 404(f)(2), which
addresses incidental discharges and is often referred to as the "recapture clause," does not apply to routine
maintenance activities in a flood control system.
Some commenters suggested that the agencies should exempt/exclude county public works infrastructure
development, general maintenance, and repair projects to avoid delay and increased costs.
One commenter requested that any future rule include specific language clarifying the scope of the
exemption from Clean Water Act jurisdiction and permitting for maintenance and emergency
reconstruction of currently serviceable structures, 33 U.S.C. 1344(f)(1)(B), to explicitly recognize
emergency work related to fire recovery or watershed restoration. This commenter suggested that a
permitting exemption should be explicitly recognized at 33 CFR 323.4(a)(2) for these activities with
impacts to "waters of the United States" that are less than 1/10 acre. The commenter asserted that
implementing the exemption in this manner would improve applicant preparedness and mitigation
effectiveness.
A few commenters requested that the agencies specify that routine operation and maintenance of facilities
associated with excluded waters should be explicitly exempted. For example, the exemptions in section
404(f) of the Clean Water Act.
Agencies' Response: To the extent commenters seek clarification of or revisions to statutory
or regulatory activity-based exemptions for discharges associated with certain activities, the
comments are beyond the scope of this rulemaking.
To the extent commenters confuse features that are excluded from the term "waters of the
United States" with activity-based exemptions from the permitting provisions of the Clean
Water Act for discharges associated with certain activities, see the agencies' response to
comments in Section 15.13.1. Whether a feature is a "water of the United States" is a
function of the characteristics of the feature and not the nature of any particular discharge
into that feature. Congress exempted certain discharges from the Clean Water Act or from
specific permitting requirements. The final rule would not affect any of the exemptions,
including exemptions from section 404 permitting requirements provided by section 404(f).
33 U.S.C. 1344(f); 40 CFR 232.3; 33 CFR 323.4. See also Final Rule Preamble Sections
III.A.l.b. and IV.C.l.
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