Revised Definition of "Waters of the United States"
Response to Comments Document
Section 9 - Lakes and Ponds
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.
9 Lakes and Ponds 2
9.1 JURISDICTIONAL CHARACTERIZATION 2
9.1.1 Separate Category of Waters for Lakes and Ponds 2
9.1.2 Lakes and Ponds as Tributaries 3
9.2 Science/Functions 3
9.3 Implementation 4
9.3.1 Relative Permanence 4
9.3.2 Mapping 5
Revised Definition of "Waters of the United States" - Response to Comments Document
Section 9 - Lakes and Ponds
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9
Lakes and Ponds
9.1 Jurisdictional Characterization
9.1.1 Separate Category of Waters for Lakes and Ponds
Some commenters requested that lakes and ponds be split into a separate jurisdictional category as done
in the 2020 Navigable Waters Protection Rule (2020 NWPR). Several commenters further requested that
the "agencies . . . define a jurisdictional category for lakes and ponds and to only include lakes or ponds
that contribute flow to traditional navigable waters on a perennial, as opposed to intermittent, basis in any
final ["waters of the United States"] rule." Additionally, these commenters requested that the agencies
provide a clear definition of lakes and ponds to provide "clarity and certainty for regulators and the
public."
One commenter specifically requested that lakes be considered a separate category of jurisdiction rather
than "an 'other water.'" In particular, this commenter referenced Indiana lakes, and the estimated value of
their recreational resources, in suggesting that lakes should be categorically jurisdictional rather than
subject to a "significance review."
Agencies' Response: The agencies acknowledge commenters who requested that the rule
identify lakes and ponds as a separate category of "waters of the United States." Consistent
with the agencies' pre-2015 regulations, the final rule does not include a separate category
of waters for lakes and ponds. In this action, the agencies are finalizing a definition of
"waters of the United States" that is within the agencies' authority under the Act; that
advances the objective of the Clean Water Act; that establishes limitations that are
consistent with the statutory text, supported by the scientific record, and informed by
relevant Supreme Court decisions; and that is both familiar and implementable. See Final
Rule Preamble Section IV.A. The agencies have extensive experience implementing this
approach under pre-2015 practice. Certain streams, rivers, lakes, ponds, wetlands, and
impoundments can be assessed as traditional navigable waters or interstate waters under
paragraph (a)(l)(i) or (a)(l)(iii) of this rule; other streams, rivers, lakes, ponds, and
impoundments are situated such that they are part of the tributary system and can be
assessed under paragraph (a)(3) of this rule; and certain lakes, ponds, and impoundments
are situated such that they are not part of the tributary system and would be assessed under
paragraph (a)(5) of the final rule.
For the agencies' response to comments on the flow contributions of lakes and ponds to
downstream paragraph (a)(1) waters, see Section 8 Tributaries.
The agencies acknowledge commenters' requests for clear definitions of lakes and ponds.
While the agencies are not defining "lakes" or "ponds" in this rule, in the final rule
preamble the agencies have provided additional clarity about the types of lakes and ponds
that are and that are not considered "waters of the United States." Additionally, Section
IV.C of the Preamble to the Final Rule provides implementation guidance for identifying
jurisdictional lakes and ponds.
The agencies recognize the importance of specific local or regional aquatic resources and
acknowledge the commenter who requested that lakes be treated as categorically
jurisdictional. Agencies may choose to proceed via rulemaking or adjudication. NLRB v.
Revised Definition of "Waters of the United States" - Response to Comments Document
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Bell Aerospace Co., 416 U.S. 267, 294 (1974) ("the choice between rulemaking and
adjudication lies in the first instance within the [agency's] discretion"). With respect to the
significant nexus standard in particular, Justice Kennedy stated that the agencies could
proceed to determine waters jurisdictional through regulations or adjudication. See 547
U.S. at 780-81. The agencies have concluded that adjudication of which tributaries or
paragraph (a)(5) waters, including lakes and ponds, are within Clean Water Act protections
through case-specific application of the significant nexus standard or the relatively
permanent standard under this rule is appropriate.
9.1.2 Lakes and Ponds as Tributaries
One commenter expressed support for "classifying ponds as tributaries if they meet either the relatively
permanent waters or significant nexus tests," suggesting that doing so would promote consistency. The
commenter further noted that the agencies should consider whether there is science to support these ponds
as jurisdictional in a potential second rulemaking.
Agencies' Response: The agencies interpret tributary for purposes of the final rule to
include rivers, streams, lakes, ponds, and impoundments that flow directly or indirectly
through another water or waters to a traditional navigable water, the territorial seas, an
interstate water, or a paragraph (a)(2) impoundment. Lakes and ponds function as part of
the tributary system where they contribute flow to downstream waters, and therefore it is
reasonable to assess them for jurisdiction as tributaries under the final rule. See Technical
Support Document (TSD) Section III.A. Tributaries are jurisdictional when they meet the
relatively permanent standard or significant standard. Under the final rule, lakes or ponds
may also be jurisdictional under paragraph (a)(5) if they meet the relatively permanent
standard or significant nexus standard. See Final Rule Preamble Section IV.C.6.
In the preamble to the proposed rule, the agencies stated that they would consider changes
through a second rulemaking that they anticipated proposing in the future, which would
build upon the foundation of this rule. The agencies have concluded that this rule is durable
and implementable because it is founded on the familiar framework of the 1986 regulations,
fully consistent with the statute, informed by relevant Supreme Court decisions, and reflects
the record before the agencies, including consideration of the best available science, as well
as the agencies' expertise and experience implementing the pre-2015 regulatory regime. The
agencies may consider further refinements in a future rule to address implementation or
other issues that may arise.
9.2 Science/Functions
One commenter expressed concern that their state has not considered a specific spring pond jurisdictional,
despite the fact that the pond conveys surface water flow and dissolved carbonates to a jurisdictional
river, thereby supporting habitat and prime trout fishing. The commenter requested that the agencies
provide clearer guidance for identifying such features, including in states which have assumed Clean
Water Act section 404 authorities.
One commenter recommended protection of "ephemeral, seasonal ponds" due to their importance to
wildlife.
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One commenter argued that headwaters and their overall health have an impact on downstream water
quality. The commenter contended that this is directly relevant to lakes, which are increasingly subject to
algal blooms due to a changing climate.
Agencies' Response: The final rule preamble includes clear guidance for identifying which
lakes and ponds are jurisdictional as "waters of the United States." Lakes and ponds will be
assessed on a case-specific basis to determine if they are jurisdictional, as described further
in Section IV.C of the Final Rule Preamble. However, determinations regarding the
jurisdictional status of any specific water are outside the scope of this rulemaking.
The agencies acknowledge commenters who described the benefits that headwater lakes and
ponds can have on downstream waters. The scientific literature unequivocally demonstrates
that wetlands and open waters in riparian areas and floodplains are chemically, physically,
and biologically integrated with rivers via functions that improve water quality in paragraph
(a)(1) waters, including: the temporary storage and deposition of channel-forming sediment
and woody debris; temporary storage of local groundwater that supports baseflow in rivers;
transformation and transport of stored organic matter; assimilation, transformation, or
sequestration of pollutants; providing nursery habitat for breeding fish and amphibians;
colonization opportunities for stream invertebrates and maturation habitat for stream
insects; desynchronization of flood waters; and sequestration of pollutants. See TSD Sections
I and III.
9.3 Implementation
9.3.1 Relative Permanence
One commenter asserted that certain types of lakes and ponds should not be jurisdictional, including
"isolated lentic structures" or lakes and ponds that dry out either seasonally or from irrigation use of their
water.
One commenter provided the following recommendation: "Lakes and ponds should only be 'Waters of
the [United States]' if:
a) they are supplied through jurisdictional waters
b) contribute perennial flow to jurisdictional water
c) must be flooded by a jurisdictional water during atypical year; ecological connections between
physically separated lakes and ponds and otherwise jurisdictional water should not be used to assert
jurisdiction."
Another commenter recommended that the agencies provide an explicit explanation of the proposed rule's
approach to jurisdiction over relatively permanent tributary lakes and ponds to help clarify the scope of
jurisdiction under the rule.
Agencies' Response: The agencies disagree with the commenter who stated that isolated
lentic systems should be categorically excluded under this rule. The scientific literature
unequivocally demonstrates that wetlands and open waters in non-floodplain landscape
settings (hereafter called "non-floodplain wetlands") can provide numerous functions that
benefit the chemical, physical, and biological integrity of larger downstream waters,
including the paragraph (a)(1) waters, particularly when analyzed in the aggregate. These
functions include: storage of floodwater; recharge of groundwater that sustains river
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baseflow; retention and transformation of nutrients, metals, and pesticides; export of
organisms or reproductive propagules (e.gseeds, eggs, spores) to downstream waters; and
habitats needed for stream species. This diverse group of wetlands (e.g., many prairie
potholes, vernal pools, playa lakes) can be connected to downstream waters through surface
water, shallow subsurface water, and groundwater flows and through biological and
chemical connections. Some effects of non-floodplain wetlands on larger downstream waters
are due to their relative isolation, rather than their connectivity. Where the wetland
intercepts materials that otherwise would reach downstream water, wetland "sink"
functions trap materials and prevent their export to downstream waters (e.g., sediment and
entrained pollutant removal, water storage). See Technical Support Document Sections I,
III.B, and III.D and the Final Rule Preamble Section IV.C.6 for additional information and
clarification regarding implementation of the intrastate lakes and ponds assessed under
paragraph (a)(5) of the final rule.
The agencies acknowledge commenters who provided recommendations on specific types of
connections that lakes and ponds must have with jurisdictional waters to be considered
"waters of the United States." Under the final rule, lakes and ponds can be jurisdictional as
tributaries if they meet the relatively permanent standard or significant nexus standard. See
Final Rule Preamble Section IV.C.4 for additional discussion and rationale. Under the final
rule, lakes and ponds can also be jurisdiction as paragraph (a)(5) waters if they meet the
relatively permanent standard or significant nexus standard. See Final Rule Preamble
Section IV.C.6 for additional discussion and rationale.
See Final Rule Preamble Section IV.C.4.C for the agencies' approach to implementing the
relatively permanent standard for tributaries under the final rule, including for lakes and
ponds that qualify as tributaries.
9.3.2 Mapping
In the context of discussing lakes and ponds, one commenter stated that United States Geological Survey
maps are a good resource but expressed concern that they can be outdated and missing information. The
commenter recommended "use of google earth or similar, up to date, satellite surveillance or LIDAR."
Agencies' Response: As discussed in Final Rule Preamble Section IV.C and IV.G, the
agencies have identified a variety of implementation guidance, tools, and methods available
for assessing lakes and ponds under the final rule. The agencies are not mandating specific
data or tools to implement the final rule. The agencies will assess jurisdiction based on the
most applicable methods and best available sources of information for the specific site under
evaluation.
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